U.S. Supreme Court Cases, 2019–2020 Term
By Jason S. Cherry, J.D.
Of the 63 cases heard by the U.S. Supreme Court during the 2019–2020 term, there were several criminal and civil law cases that could affect the investigative and employment interests of the law enforcement community. The cases dealt with investigative detention, the insanity defense, cross-border shootings, international child abduction, and employment discrimination. For the 2020-2021 term, the Court will hear cases on the issues of “chokeholds” and a debate on the definition of “seizure” under the Fourth Amendment.
This article offers brief synopses of the cases and their holdings. Law enforcement personnel from state, municipal, and county agencies should be aware that their local laws, regulations, and policies may provide greater protections for citizens in their jurisdictions or place additional limitations on law enforcement actions than described in the following cases, which were decided on the U.S. and not state constitutions.
Decided Criminal Cases
Kansas v. Glover, 140 S.Ct. 1183 (2020)
This case focused on the actions of a deputy who ran the license plate of a moving vehicle and discovered that the registered owner, Charles Glover, Jr., had a revoked driver’s license. The deputy did not observe any traffic violation but conducted an investigative stop of the vehicle based upon an inference the registered owner likely was the driver.1 Glover, who was driving the vehicle without a valid driver’s license, was arrested and charged as a habitual offender under Kansas law.
Supervisory Special Agent Cherry is a legal instructor at the FBI Academy.
The state’s district court granted Glover’s motion to suppress the evidence obtained from the investigative stop on the grounds the deputy did not have reasonable suspicion to stop the vehicle. The state Court of Appeals disagreed with the lower court, reversed the prior decision, and remanded the matter. The Supreme Court of Kansas reversed again, agreeing with the District Court’s opinion.
The U.S. Supreme Court granted certiorari on the issue and held the investigative stop was lawful under the Fourth Amendment because the deputy was reasonable in making a commonsense inference that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.2 In its holding, the U.S. Court described the level of proof for reasonable suspicion as above a “hunch” but also well below the 51 percent of certainty necessary to establish preponderance of the evidence in civil cases.3 The U.S. Court further advised that any inferences used to support the “specific and articulable facts” elements of reasonable suspicion could be based not only upon the specialized training of law enforcement officers but also on general commonsense assumptions or probabilities.4
Kahler v. Kansas, 140 S.Ct. 1021 (2020)
After his wife filed for a divorce, James Kahler drove to his mother-in-law’s house and killed her, his wife, and his two daughters with a firearm. Kahler surrendered to police the next day and was charged with capital murder. At his trial, Kahler attempted to obtain an acquittal under Kansas’ insanity defense by proving that he was unable to form the mental state necessary to commit murder due to a “mental disease or defect.”5 He was unsuccessful and convicted by a jury. At his sentencing, Kahler was allowed to argue he did not understand the moral implications of his actions. The jury did not accept Kahler’s attempt to mitigate his actions and found his crime warranted the death penalty.
Kahler unsuccessfully appealed his conviction up through the state’s legal system. His arguments were eventually heard by the U.S. Supreme Court, which focused its opinion on Kahler’s theory that the Fourteen Amendment’s due process clause required Kansas to adopt a two-pronged insanity test to convict him. The Court identified Kahler’s two-prong insanity test as derivative of the widely influential holding in the M’Naghten’s Case.6 The Court referenced M’Naghten’s Case as requiring two distinct issues the legal system must consider before convicting a defendant who has raised the defense of insanity: the “moral capacity” and “cognitive capacity” tests.7
Under the “moral capacity” test, the government must overcome the defense that a mental disease or defect prevented the defendant from understanding that his or her actions were morally wrong.8 The Court used the analogy where a subject believes a divine power ordained the killing of another person, thereby morally justifying the murder.9 The Court recognized that Kansas, unlike other states, adopted only M’Naghten’s second test, “cognitive capacity,” wherein the defendant must prove a mental disease or defect prevented him or her from forming the mental state to commit the charged crime.10 The Court used the analogy in which an individual is considered to have no “cognitive capacity” if his mental illness prevented him from comprehending how a firearm operates or the fatal repercussions of firing one at another person.11
Addressing Kahler’s argument, the Court affirmed the holdings of the state courts by finding that the due process clause did not require Kansas to adopt M’Naghten’s two separate tests.12 The Court reasoning was based upon two main factors. First, the Court observed that the historical methods and basis for determining insanity has changed many times and resulted in a great deal of disagreement and dissent among mental health professionals.13 As a consequence, states have adopted many different tests for insanity, none of which were so profound and accurate as to justify enacting a uniform test under a new constitutional doctrine.14 Second, the Court found it significant that Kansas allowed a defendant to present all relevant evidence of an individual’s mental state during sentencing.15 This allowance by the state provided an otherwise convicted defendant the opportunity to receive the same mental health treatment as one who was acquitted.16 This last factor in the Kahler case emphasized the necessity of collecting evidence for moral and cognitive capacity because both can be relevant for the conviction and sentencing phases.
Hernandez v. Mesa, 140 S.Ct. 735 (2020)
In 2010, a U.S. Border Patrol Agent, Jesus Mesa, Jr., fired his service weapon across the border and killed a 15-year-old Mexican boy, Sergio Hernandez, who allegedly had been throwing rocks at the law enforcement officer. Hernandez died from his wounds. The parents attempted to sue Mesa in the United States, arguing that their son’s constitutional rights under the Fourth and Fifth Amendments were violated and sought damages under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics.17
The Court granted review of Hernandez’s civil suit against Mesa, which was dismissed by the Fifth Circuit Court of Appeals after it refused to recognize their cause of action, which was based upon allegations of an unconstitutional usage of deadly force against a foreign national on foreign soil.18 The appellate court held that Hernandez’s claim of a cross-border shooting was an action outside of the limited claims available under Bivens.19 The Fifth Circuit supported the refusal by citing that the separation of powers in the U.S. Constitution prevented the judiciary from creating a new cause of action arising from foreign relations subject matter.20
The majority opinion in Hernandez affirmed the Fifth Circuit’s holding and rationale in abstaining from the expansion of Bivens to include a cause of action for cross-border shootings.21 The Court advised that to do so would exceed constitutional authority and infringe upon the separate powers of the other two branches of government.22 In refusing to infringe upon the Legislative Branch’s authority, the Court explained that if the U.S. Congress had wanted to create a cause of action for foreign nationals to sue government officials for cross-border shootings, it could only be achieved through their powers and not judicially created doctrine.23 The Hernandez Court also advised that the Executive Branch likewise could have agreed to the extradition of Mesa to be sued criminally and civilly in Mexico but had refused to do so for national security and diplomatic reasons, both of which were exclusive areas of government authority constitutionally assigned to the Executive Branch and not intended to be overridden by the judiciary.24
Monasky v. Taglieri, 140 S.Ct. 719 (2020)
In 2019 to 2020, the U.S. State Department assisted in the handling of approximately 719 International Parental Child Abduction (IPCA) cases.25 These types of investigative matters require the involvement of not only the U.S. State Department but also the U.S. Department of Justice and the Federal Bureau of Investigation to resolve.26 If the child has been abducted to a country that is a member of the Hague Convention on the Civil Aspects of International Child Abduction (HCCH), then the U.S. government can pursue the matter through its statutory authority under the International Child Abduction Remedies Act (ICARA).27
In Monasky, the Court emphasized the importance of collecting evidence of an abducted child’s “habitual residence” when determining proper custody issues under the HCCH treaty and ICARA.28 In this case, Taglieri, an Italian citizen, alleged that his wife, Monasky, had unlawfully abducted their daughter from Italy and taken her to Ohio. The District Court agreed with Taglieri and found both parents had intended for the daughter to be raised in Italy, which was deemed her “habitual residence.” The appeals court affirmed, and Monasky appealed the holding up to the U.S. Supreme Court, which observed that neither the HCCH nor the ICARA provided a definition of the term “habitual residence.”29
The Court provided guidance in IPCA cases by establishing a totality-of-the-circumstances test to help trial courts gather the facts necessary to determine the abducted child’s “habitual residence.”30 The Court agreed with Monasky that the existence of a custodial agreement on residency could provide some evidence of residency but emphasized that courts also could review all relevant evidence, including the welfare of the child, residency prior to the abduction, length of time at last residence, or other factor unique to each case.31 The Court found no clear errors in the appellate court’s decision and affirmed its holding, which established the daughter’s place of “habitual residence” as Italy.
Bostock v. Clayton County Georgia, 140 S.Ct. 1731 (2020)
The Court consolidated three separate cases in Bostock, each of which focused on the issue of whether Title VII of the Civil Rights Act prohibited employment discrimination against individuals based upon their sexual orientation or transgender status. It also determined if such discrimination had to be the sole reason or just a factor in an employer’s “mixed motive” decision to terminate the employee or take other adverse actions.32
Two of the claimants for Title VII protection alleged they were terminated after their employers discovered they were homosexuals. The third claimant alleged wrongful termination after informing her employer that the employee would begin identifying as a female after having been employed for 2 years as a male. The employers did not dispute they fired the claimants for being homosexual or transgender.33
The Bostock majority examined Title VII’s statutory language34 and determined that the “plain language” clearly demonstrated Congress’ intention to provide citizens with broad protections from employment discrimination based upon a number of factors, including the “biological sex” of the individual, which was a category of protection that encompassed both homosexuals and transgender employees.35
In a further analysis of the Title VII statute, the Court also found that discriminatory conduct based upon a person’s “biological sex” could be merely a factor in an adverse action and did not have to be the sole reason to constitute a violation of Title VII.36 For example, based upon the decision in Bostock an employer who has “mixed motives” in terminating or applying adverse or disciplinary actions against an employee for homosexuality and poor work product still would be in violation of Title VII of the Civil Rights Act.
Babb v. Wilke, 140 S.Ct. 1168 (2020)
Similar to the “mixed motive” issue in Title VII of the Civil Rights Act, the Court in Babb examined the Age Discrimination in Employment Act (ADEA) to determine if claimants for its protections had to prove that any adverse or disciplinary actions by an employer were based partially or solely upon age discrimination.37 In this case, Babb, a pharmacist at the U.S. Department of Veterans Affairs, alleged she was subject to adverse actions based at least partially upon her age. Her case was reviewed by the Supreme Court after a federal appeals court found the ADEA required age discrimination to be the sole cause of the adverse or disciplinary actions.
The Court found that the statutory language of the ADEA,38 as applied to private and state or local employers, prohibited disciplinary or adverse actions only when age discrimination was the sole factor.39 However, after the enactment of 29 U.S.C.A. § 633a, the Court found Congress had intended to apply a stricter standard on federal employers by prohibiting “any” discrimination based upon age.40 Based upon the Court’s reasoning in Babb, a private, state, or local employer could take disciplinary or adverse actions for “mixed motives”—for example, age and poor work product—without committing a violation of the ADEA. However, a federal employer would be prohibited from taking any disciplinary or adverse actions for a similar “mixed motive” decision.
The Babb Court noted that when age discrimination was not the sole factor, a claimant for ADEA protections likely would not be entitled to a full remedy because the discriminatory actions were not the full cause of the harm or injury.41 Taking the fact pattern above, if an employee was fired for age-related reasons and poor work product, then reinstatement or full damages for wrongful termination may not be available because the remedy would be tailored to address just the prohibited discrimination.
Comcast Corporation v. National Association of African American-Owned Media, 140 S.Ct. 1009 (2020)
Like the Bostock and Babb cases, the Court addressed whether allegations of discriminatory conduct had to be a partial or sole factor in finding a violation of 42 U.S.C.A. § 1981 of the Civil Rights Act.42 In this case, the National Association of African American-Owned Media represented the plaintiff, Entertainment Studios Network (ESN), which proclaimed itself to be a media company with 100 percent African-American ownership. ESN alleged that despite its many efforts, Comcast refused to carry ESN’s media channels. Though ESN stipulated that Comcast’s refusal was based upon some legitimate business reasons, the plaintiff alleged a portion of Comcast’s motivations were founded on racial discrimination.43
The Court examined the common law principles that a plaintiff must prove “but for” the defendant’s action, herein racial discrimination, the result would have been different (i.e., Comcast would have contracted to air ESN’s channels).44 Upon an analysis of the statutory language in § 1981, the majority found that Congress intended to prohibit conduct based solely upon discrimination.45 With this understanding in mind and the stipulations that Comcast had legitimate business reasons for its conduct, the Court found ESN could not state a claim under § 1981 without alleging racial discrimination as the sole cause of its injury.46 The Court also declined to shift the burden of proof from the plaintiff to the defendant and force Comcast to prove that racial motivation was not the sole cause of its refusal to carry ESN channels.47
Cases of Interest, 2020-2021
King v. United States, 917 F.3d 409 (6th Cir. 2019), cert. granted Brownback v. King, 140 S.Ct. 2563 (2020)
The Brownback case presents the U.S. Supreme Court with several legal issues under the U.S. Constitution. The facts of Brownback arise from an investigative detention conducted by a federal task force, which consisted of members of state and local law enforcement, that sought to identify and apprehend the suspect of a 2014 home invasion.48 The task force, which had information the suspect visited a certain convenience store to purchase a soda in the afternoon, set up surveillance while wearing plain clothes. While walking in the area, the plaintiff, James King, was approached by the task force members and asked a series of questions. When King could not produce identification, he was asked to place his hands behind his back. King initially complied, and a pocketknife was taken from his clothing. When one of the officers pulled out King’s wallet, he attempted to flee.
King struggled with the officers and was placed in a “choke hold” by a detective.49 King bit the detective, who began striking King to free his arm. King released his bite and continued to resist until a bystander helped to hold his legs down.
After being acquitted of criminal charges related to the encounter with law enforcement, King filed a Federal Tort Claims Act (FTCA), civil rights action pursuant to 42 U.S.C.A. § 1983 (“Civil action for deprivation of rights”), and Bivens action for unlawful seizure and excessive use of force. The District Court granted qualified immunity to the law enforcement officers, dismissed the FTCA for lack of subject-matter jurisdiction after finding the plaintiff had failed to allege the defendants had violated state law, and dismissed the § 1983 action against members of the task force who were employed by the state of Michigan but were considered federal officers operating under the auspices of the U.S. government.
The U.S. Court of Appeals for the Sixth Circuit held that the dismissal of the FTCA for lack of subject-matter jurisdiction did not prevent the plaintiff from amending the complaint to allege a violation of state law and refiling a new FTCA in federal court based upon the same fact pattern.50 The appellate court also upheld the district court’s holding and rationale for the dismissal of the § 1983 action.51 The appellate court reversed the decision to grant qualified immunity because it found sufficient facts that would allow a reasonable juror to find the investigative detention, subsequent search, and use of force, including a “choke hold,” unreasonable and a violation of King’s Fourth Amendment rights.52 The U.S. Supreme Court will determine if the district court’s dismissal of the FTCA for lack of subject-matter jurisdiction represents a “final judgment” and prevents a plaintiff from amending the complaint to allege a violation of state law based under the FTCA and the same injuries.53
Torres v. Madrid, 769 Fed. Appx. 654 (10th Cir. 2019), cert. granted, 140 S.Ct. 680 (2020)
Uniformed officers attempted to arrest the plaintiff, who was a known member of a criminal gang. The plaintiff ran and got inside her vehicle. Officers commanded her to show her hands. The plaintiff refused to comply, started her vehicle, and tried to drive away. The plaintiff drove toward one of the arresting officers. They responded by firing at her, striking the plaintiff twice. The plaintiff’s vehicle crashed into another vehicle. The plaintiff then stole another vehicle and escaped the scene. She drove to a hospital and was admitted under an alias but eventually was discovered and placed into police custody the next day.
After her conviction, the plaintiff initiated a § 1983 action against both officers for violation of her Fourth Amendment rights, alleging an unreasonable seizure due to the excessive use of force. The district court held that the plaintiff’s successful escape from police custody and control was not considered a “seizure”; therefore, no constitutional rights were violated, and the officers were granted qualified immunity. The Tenth Circuit Court of Appeals affirmed the holding and rationale of the lower court.54 The appellate court cited its own circuit’s precedent that a “seizure” requires the loss of freedom of movement and, in the cases of shootings that do not result in a death, stated the subject must be in the physical control of law enforcement.55 The U.S. Supreme Court will hear the case to determine if physical force must be successful in placing a subject in custody or control to be deemed a “seizure.”56
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult with their legal advisers.
Supervisory Special Agent Cherry can be reached at email@example.com.
1 Kansas v. Glover, 140 S.Ct. 1183, 1187 (2020).
2 Id. at 1187-1188.
3 Id. at 1187-1188.
5 Kansas Statute Annotated (K.S.A.) § 21-5209, “Defense of lack of mental state.”
6 Kahler v. Kansas, 140 S.Ct. 1021, 1025 (2020), citing to M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (H.L. 1843).
7 Id. at 1025-1026.
8 Id. at 1025, 1035-1036.
9 Id. at 1026.
12 Id. at 1037.
13 Id. at 1028-1029, 1037, citing a report by the American Psychiatric Association in which it was noted that “insanity is a matter of some uncertainty.”
14 Id. at 1025, 1035-1036.
15 Id. at 1031.
16 Id. at 1032.
17 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 91 S.Ct. 1999 (1971) was a landmark decision in which the U.S. Supreme Court held that citizens have an implied right of action against government officials for violation of the Fourth Amendment search and seizure provisions.
18 Hernandez v. Mesa, 140 S.Ct. 735, 741 (2020).
21 Id. at 743, 747.
23 Id. at 747-749.
24 Id. at 745-746.
25 U.S. Department of State, Annual Report on International Child Abduction 2020, p. 1, accessed November 9, 2020, https://travel.state.gov/content/dam/NEWIPCAAssets/2020%20Annual%20Report%20and%20Appendices%201MAY2020.pdf.
26 For resource materials, see U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention, A Law Enforcement Guide on International Parental Kidnapping, July 2018, accessed November 9, 2020, https://ojjdp.ojp.gov/sites/g/files/xyckuh176/files/pubs/250606.pdf.
27 For a list of active membership countries to the HCCH treaty, see Hague Conference on Private International Law, “HCCH Members,” accessed November 9, 2020, https://www.hcch.net/en/states/hcch-members.
28 Monasky v. Taglieri, 140 S.Ct. 719 (2020).
29 Id. at 726-727.
30 Id. at 730.
31 Id. 727-729.
32 Bostock v. Clayton County Georgia, 140 S.Ct. 1731 (2020).
33 Id. at 1737.
34 42 U.S.C.A. § 2000e-2 (Westlaw through Pub. L. No.116-158).
35 Id. at 1749-1753.
36 Id. at 1739-1742.
37 Babb v. Wilke, 140 S.Ct. 1168 (2020).
38 29 U.S.C.A. § 633a (Westlaw through Pub. L. No.116-158).
39 Id. at 1176-1177.
40 Id. at 1177-1178.
41 Id. at 1178.
42 Comcast Corporation v. National Association of African American-Owned Media, 140 S.Ct. 1009 (2020).
43 Id. at 1013.
44 Id. at 1014-1015.
45 Id. at 1015-1016.
46 Id. at 1017-1018.
47 Id. at 1019.
48 King v. United States, 917 F.3d 409 (6th Cir. 2019).
49 Id. at 417 (Author’s note: From the case briefing, it is uncertain if the term “choke hold” was used by the plaintiff, stipulated to by the defendants, or merely a word adopted by the court).
50 Id. at 421.
51 Id. at 433-434.
52 Id. at 422-431.
53 “Brownback v. King,” SCOTUSblog, accessed November 9, 2020, https://www.scotusblog.com/case-files/cases/brownback-v-king/.
54 Torres v. Madrid, 769 Fed. Appx. 654,657 (10th Cir. 2019).
55 Id. at 657, citing to Brooks v. Gaenzle, 614 F.3d. 1213, 1219, 1224 (19th Cir. 2010).
56 “Torres v. Madrid,” SCOTUSblog, accessed November 9, 2020 https://www.scotusblog.com/case-files/cases/torres-v-madrid/.