The extent to which Justice Neil Gorsuch, the Supreme Court’s newest member, will impact constitutional jurisprudence affecting our nation’s law enforcement will have to wait until next year for review. Even though he did not take part in the three October Term 2016 use of force cases discussed below, there are hints as to his likely position on a number of Fourth Amendment issues confronting the Supreme Court this coming term.
In his first written decision for the Supreme Court, Henson v. Santander Consumer USA, a Fair Debt Collections Practices Act case, Justice Gorsuch wrote, “it is of course our job to apply faithfully the law…it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done.”
This debut opinion involving debt collection within the banking and finance industry is a well-reasoned, lucid piece of writing, much like his circuit court opinions. It signals a judicious craftsman who will adhere carefully to precedent and textual analysis.
Much like his predecessor, Justice Scalia, he can be expected to be protective of Fourth Amendment rights around the home, but not an absolutist in terms of restricting reasonable law enforcement inquiry based on probable cause. More insight into Justice Gorsuch’s Fourth Amendment jurisprudence will be gleaned as we progress into the New Year and the Supreme Court’s decisions in several Fourth Amendment cases on its docket.
Of these future cases, two have been heard on oral argument during the early part of the October Term 2017:
- District of Columbia v. Wesby, wherein the issue is whether police officers who found late night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespass and whether the officers, if there is no probable cause to arrest, are still entitled to qualified immunity
- Carpenter v. United States, in which the issue is whether the warrantless search and seizure of historical cell phone records revealing the location and movements of a cell phone user over the course of an extended number of days is permitted under the Fourth Amendment.
Two other cases – due to be argued before the Supreme Court in January 2018 – involve the Fourth Amendment and automobiles:
- In Byrd v. United States the issue is whether a vehicle operator has a reasonable expectation of privacy in a rental vehicle when he is not the renter but has the renter’s permission to operate the vehicle
- In Collins v. Virginia the Fourth Amendment issue focuses on the automobile exception and whether it permits a police officer to enter onto private property without a warrant to search a motor vehicle.
Each of these cases promises not only to provide interesting Fourth Amendment analysis, but more insight into Justice Gorsuch’s investigative criminal procedure jurisprudence.
The foregoing is significant since the Supreme Court heard three cases this past October Term 2016 that further added to its use of force case law, first by re-affirming the proper standard for determining “clearly established law” in police use of force cases, then by clarifying the reasonableness standard developed in Graham v. Connor, and later by further limiting a plaintiff’s implied right of action against federal officers under its Bivens framework.
1. White v. Pauly
Beginning with White v. Pauly, the Court issued a per curiam opinion earlier this year on January 9 in which it restated precedent from Anderson v. Creighton (1987) that “clearly established law must be ‘particularized’ to the facts of the case.”
The facts of White v. Pauly, which I more thoroughly outlined in this article, centered on the fatal shooting by police of an armed drunk driving suspect.
Police responded to the residence of the DWI suspect and his brother after receiving a call from two women who had been following the suspect and became involved in a roadside dispute with him. The DWI suspect’s brother was shot and killed by a police officer who arrived at the Pauly brothers’ residence in the midst of an armed standoff with two other police officers. The late responding officer shot the DWI suspect’s brother after the discharge of a shotgun by the suspect was followed by his brother appearing in the doorway of the residence aiming a gun in the direction of the late responding officer. The officer fired his gun without providing a warning.
The federal 10th Circuit Court of Appeals upheld the district court’s denial of qualified immunity for the officer. In overturning the 10th Circuit and remanding the case to the district court, the Supreme Court provided the lower courts with the proper standard for determining “clearly established law” within the context of alleged constitutional violations.
The Court noted that “clearly established law” was not to be “defined at a high level of generality” but applied to the particular facts of the case so as not to make “the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.”
2. County of Los Angeles v. Mendez
The Supreme Court next vacated a 9th Circuit Court of Appeals use of force decision in County of Los Angeles v. Mendez.
In Mendez, LA County Sheriff’s Office deputies were searching for a wanted parolee who was considered “armed and dangerous” and for whom they possessed an arrest warrant. A tip led them to believe the parolee was located at a residence in Lancaster, California.
Five deputies went to the residence, three knocked on the front door and two went to cover the back door. The two deputies searched the yard, which contained debris and abandoned automobiles. There were also three metal storage sheds and a shack on the property. In the shack resided the respondent Angel Mendez who lived there with his pregnant girlfriend.
Deputies checked the shack without knocking and Mendez, who was asleep on a futon with his girlfriend, got up and grabbed a BB gun. As the deputies entered they observed Mendez standing in front of them with the BB gun pointed in their general direction. The deputies expended a total of 15 rounds, wounding both Mendez and his girlfriend.
A lawsuit filed by Mendez and his girlfriend (his wife at the time of suit) alleged civil rights violations under 42 USC §1983. The allegations focused on the deputies’ warrantless entry, their failure to knock and announce and an excessive use force.
At trial the plaintiffs were successful on the warrantless entry and no-knock claims, but were only awarded nominal damages. The deputies’ use of force was found to be reasonable, but the trial court awarded several million dollars of damages based on the 9th Circuit “provocation rule” as a basis for liability despite the original finding of reasonableness in the use of force.
The “provocation rule” is a judicially created rule whereby the use of reasonable force by a police officer can still result in liability under the Fourth Amendment if the officer committed a separate Fourth Amendment violation that led to or contributed to the use of force.
The 9th Circuit in Mendez affirmed the trial court’s finding of liability under the “provocation rule,” but it also went further in stating that the deputies were liable for their use of force even without applying the “provocation rule.”
The U.S. Supreme Court, in an opinion written by Justice Alito, highlighted the error in the “provocation rule” as utilizing another Fourth Amendment violation to “manufacture an excessive use of force claim.” Justice Alito described it as a conflation of Fourth Amendment claims. The Supreme Court remanded the case back to the 9th Circuit to determine the use of force claim without relying on the causation analysis prompted by the “provocation rule.”
3. Hernandez v. Mesa
The case of Hernandez v. Mesa involved the shooting of a 15-year-old Mexican national at the U.S.-Mexico border by a U.S. Border Patrol agent. The 15-year-old victim was located in Mexico and the agent shot from his position on the U.S. side of a water culvert.
The facts allege that the victim and his friends had been in the area running from the Mexican side across the culvert and up and embankment to the U.S. side, touching a fence and then running back to the Mexican side. They were also throwing rocks in the area.
The responding agent fired two shots at the 15-year-old and one struck him in the face and killed him.
The Supreme Court was confronted with three questions for review:
- Did the victim’s parents have a claim against the federal agent under Bivens v. Six Unknown Federal Narcotics Agents?
- Did the shooting violate the victim’s Fourth Amendment rights?
- Was the agent entitled to qualified immunity?
Leading up to the oral argument in this case, many articles and podcasts provided extensive analysis of the intricacies of constitutional law and international borders.
For those hoping for a sweeping or insightful Supreme Court decision, the per curiam opinion of the Court was a disappointment. The Supreme Court did not rule on the merits of the case, instead it said the lower court erred by deciding the Fourth Amendment claim before deciding whether the plaintiffs had an implied right of action under Bivens.
The Court relied on its recent decision in Ziglar v. Abassi, a case determining whether or not a Bivens civil rights action against federal officials should even go forward, to send the Hernandez case back to the 5th Circuit. Once again, the application of qualified immunity was at the edge of the core issue.
Justice Gorsuch did not take part in Hernandez and, along with Justices Sotomayor and Kagan, did not take part in Ziglar. Yet, there are interesting ideological lines to be drawn over the Supreme Court’s qualified immunity case history, and Justice Gorsuch’s voice will be added to future cases on the subject.
In April 2017, the Court denied certiorari in Salazar-Limon v. City of Houston, a section 1983 case involving alleged police use of excessive force in the shooting of an individual. Justice Alito, joined by Justice Thomas, wrote a concurring opinion to the denial of certiorari, while Justice Sotomayor, joined by Justice Ginsburg, wrote a dissent. These two opinions reflect an ideological battleground upon which the fate of future use of force cases may rest.
For now the law appears settled, but there does seem to be smoke rising within the Supreme Court and there may be some challenges along the way to its qualified immunity line of cases. We will have to wait and see what future cases bring, but the coming year is looking to be as interesting as this past one.
