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What can law enforcement expect from Justice Amy Coney Barrett?

Justice Barrett is protective of privacy rights and has authored two 7th Circuit opinions wherein she held for the defendant in search and seizure cases

Amy Coney Barrett sworn in AP20301071893382.jpg

President Donald Trump watches as Supreme Court Justice Clarence Thomas administers the Constitutional Oath to Amy Coney Barrett on the South Lawn of the White House in Washington, Oct. 26, 2020.

AP Photo/Patrick Semansky

It is a mistake to believe that merely because a Justice has been labeled “conservative” or “liberal” their vote on a case will march in lockstep with a prevailing political view.

A number of past and present Justices have surprised outside observers with their vote. Justices come to the U.S. Supreme Court with a judicial interpretive philosophy they use to guide their decision-making process. It is well-known that Justice Amy Coney Barrett clerked for Justice Antonin Scalia. She has unabashedly touted Justice Scalia as a mentor and influence upon her own academic scholarship and subsequent jurisprudence. What then does that tell us about Justice Barrett regarding future cases involving law enforcement?

There are two categories of case law emanating from the Supreme Court that seem to have the most immediate impact on how police officers perform their duties, and those are cases involving the Fourth Amendment and qualified immunity.

Fourth Amendment cases

Three Fourth Amendment cases from the 7th Circuit Court of Appeals exemplify Justice Barrett’s jurisprudence in this area.

Much like her mentor, Justice Barrett is protective of privacy rights. Justice Scalia was the author of significant Fourth Amendment decisions protecting individual property rights, particularly those involving the home. His authored opinions in Kyllo v. United States, United States v. Jones and Florida v. Jardines held against government intrusions not supported by a warrant. Similarly, Justice Barrett authored two 7th Circuit opinions wherein she held for the defendant in search and seizure cases.

In United States v. Terry, 915 F.3d 1141 (7th Cir., 2019), Justice Barrett wrote that it was unreasonable for DEA agents to rely on the fact a woman in a bathrobe answered an arrested drug suspect’s door gave them authority for a consent search of the home. Even though the woman signed a consent form, there was no prior inquiry as to who she was, and when it was discovered she did not reside there the agents still continued with the search and seized inculpatory evidence. The district court’s admission of the evidence was reversed. However, the defendant also attempted to suppress a confession he made to agents after arrest. He was read his Miranda warnings, but refused to sign a form acknowledging he was advised of his rights. Instead, he told the agents this was not his first encounter with law enforcement and he was willing to talk. A confession followed. At trial the defendant moved to suppress based on the claim he did not know he was waiving his Miranda rights by speaking with the agents. The trial court denied his motion based on his lack of credibility in asserting he was unaware of his rights, especially in light of his prior experiences with law enforcement. Justice Barrett cited the Supreme Court precedent of Berghuis v. Thompkins in holding there was a proper waiver of the defendant’s Miranda rights.

The case of United States v. Watson, 900 F.3d 892 (7th Cir., 2018) involved an anonymous 911 caller’s report of boys playing with guns near a green or greyish Charger in a parking lot. A responding officer pulled into the lot and blocked the Charger with his vehicle. The Charger’s passenger was subsequently found to possess a gun. In a unanimous opinion, Justice Barrett wrote that the police officer did not have reasonable suspicion to initially block the vehicle based on an anonymous 911 call describing activity lacking specifics of an emergency or a crime. Since gun possession is a lawful activity, without further information, the police action was not supported by reasonable suspicion. In distinguishing the decision in Navarette v. California, 572 U.S. 293 (2014), she wrote the present case, like Navarette, presented a close call, but “falls on the wrong side of the Fourth Amendment.”

In another “close call” case where police were dispatched to a high crime area and a report of three men with guns selling drugs, Justice Barrett wrote a concurring opinion to the 7th Circuit’s denial of the defendant’s appeal on his motion to suppress. Her concurrence in United States v. Wilson, 963 F. 3d 01 (7th Cir., 2020) distinguished the point at which she felt the issue of the defendant’s seizure was relevant to the outcome of the case. While responding to the dispatched call, officers noticed a group of males in a nearby park. One individual appeared to adjust a bulge in his front pocket and turn away from police view. Officers approached the individual and gave him an order to stand, which he did a moment before fleeing. The suspect was chased and tackled by an officer and a gun was recovered. The suspect did not fit the description provided in the original dispatch, but was nonetheless spotted by police and acted in a way that drew their attention. Under the guidelines of Illinois v. Wardlow, 528 U.S. 119 (2000), the suspect’s flight from police while in a high-crime area, wrote Justice Barrett, is sufficient for the officer to chase and seize him. On the other hand, Justice Barrett said if the individual did not flee and the officer’s attempt to seize him was based merely on the attempt to hide a bulge in his pocket while in an area known for drug dealing, then the officer may have lacked reasonable suspicion for the stop.

Qualified immunity cases

Qualified immunity cases have been before the Supreme Court in abundance since the tenure of Chief Justice Roberts began. However, the recent denial of certiorari in several qualified immunity cases may signal that the Court is going to step back from this contentious issue and let the legislative branch weigh in.

During her tenure on the 7th Circuit, Justice Barrett was in the majority in several cases granting qualified immunity to officers in use of force cases. But she also ruled against officers in a qualified immunity case involving false statements made by the officer in a murder case and in another where the officer fabricated evidence. In two cases involving excessive use of force claims against correctional officers she sided with plaintiffs and allowed the lawsuits to proceed. In each of these cases she had to apply existing precedent.

As a conservative Justice in the Scalia mold, she may find common ground with Justice Thomas who, as a steady critic of the Supreme Court’s qualified immunity doctrine, has said it “appears to stray from the statutory text.” (Baxter v. Bracey, 590 U.S. ___ (2020), dissent from a denial of certiorari.)


Justice Barrett joins the Supreme Court in the midst of significant civil upheaval and discussions on police reform. How she and her other junior colleagues, Justices Gorsuch and Kavanaugh, vote on future cases involving Terry stops, warrantless searches, questioning of suspects, use of force and qualified immunity, may have a longstanding impact on policing.

NEXT: 5 SCOTUS cases impacting law enforcement

Terrence P. Dwyer retired from the New York State Police after a 22-year career as a Trooper and Investigator. He is a tenured professor of legal studies at Western Connecticut State University and an attorney consulting on law enforcement liability, disciplinary cases, critical incidents, and employment matters. He is the author of “Homeland Security Law: Issues and Analysis,” Cognella Publishing (2024).