Prepared for the

Legal Officers Section

International Association of Chiefs of Police

2005 Annual Conference, Miami Beach, FL

By Jeffrey Higginbotham



I.                    Criminal Procedure

   A. Fourth Amendment

   B. Effective Assistance of Counsel/Fair Trial

   C. Eighth Amendment

II.                 Prison Administration

III.               First Amendment Speech

IV.              Religious Freedom

V.                 Substantive Criminal Law

VI.              Civil Liability

VII.            Employment Discrimination



I.  Criminal Procedure


A.                Fourth Amendment


Muehler v. Mena, 125 S.Ct. 1465 (March 22, 2005) (J. Rehnquist)  (As part of an investigation of a drive-by shooting by suspected gang members, a search warrant was obtained for a residence where several gang members were believed to be living.  Because of the potential for danger, a SWAT team was used to secure the residence and grounds before the search was conducted.  In the early morning hours, the SWAT team entered.  Inside the residence, they found four sleeping persons.  Each was awakened, handcuffed, and taken into the garage that had been converted into a bedroom for the duration of the search.  While detained, an immigration agent who had accompanied the search team questioned Mena.  Upon establishing her lawful residence in the United States, and on completion of the search, Mena was released.  She later sued, alleging held with force greater than that which was reasonable and for a longer period than that which was reasonable.  The Supreme Court ruled against that claim.  The Court said, “Mena’s detention was, under [Michigan v.] Summers, plainly permissible.   An officer’s authority to detain incident to a search is categorical; it does not depend on the ‘quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure’… Thus, Mena’s detention for the duration of the search was reasonable under Summers because a warrant existed to search 1363 Patricia Avenue and she was an occupant of that address at the time of the search.”  The Court also explained the inherent in the authority to detain, is the authority to use force:  “The officers’ use of force in the form of handcuffs to effectuate Mena’s detention in the garage, as well as the detention of the three other occupants, was reasonable because the governmental interests outweigh the marginal intrusion…The imposition of correctly applied handcuffs on Mena, who was already being lawfully detained during a search of the house, was undoubtedly a separate intrusion in addition to detention in the converted garage.  The detention was thus more intrusive than that which we upheld in Summers… But this was no ordinary search.  The governmental interests in not only detaining, but using handcuffs, are at their maximum when, as here, a warrant authorizes a search for weapons and a wanted gang member resides on the premises.  In such inherently dangerous situations, the use of handcuffs minimizes the risk of harm to both officers and occupants…Though this safety risk inherent in executing a search warrant for weapons was sufficient to justify the use of handcuffs, the need to detain multiple occupants made the use of handcuffs all the more reasonable.”  The Supreme Court also found the length of the handcuffed detention was reasonable:  “The duration of a detention can, of course, affect the balance of interests under Graham.  However, the 2- to 3-hour detention in handcuffs in this case does not outweigh the government’s continuing safety interests.  As we have noted, this case involved the detention of four detainees by two officers during a search of a gang house for dangerous weapons. We conclude that the detention of Mena in handcuffs during the search was reasonable.”  Moreover, since the detention was not prolonged by the questioning, “there was no additional seizure within the meaning of the Fourth Amendment.  Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.”  Note:  Justice Kennedy’s concurred, but wrote “to help ensure that police handcuffing during searches becomes neither routine nor unduly prolonged…If the search extends to the point when the hand-cuffs can cause real pain or serious discomfort, provision must be made to alter the conditions of detention at least long enough to attend to the needs of the detainee. This is so even if there is no question that the initial handcuffing was objectively reasonable. The restraint should also be removed if, at any point during the search, it would be readily apparent to any objectively reasonable officer that removing the handcuffs would not compromise the officers’ safety or risk interference or substantial delay in the execution of the search. The time spent in the search here, some two to three hours, certainly approaches, and may well exceed, the time beyond which a detainee’s Fourth Amendment interests require revisiting the necessity of handcuffing in order to ensure the restraint, even if permissible as an initial matter, has not become excessive.”)


Illinois v. Caballes, 125 S.Ct. 834 (January 24, 2005)  (J. Stevens)  (A state trooper stopped a motorist for speeding on the interstate.  When he called in to his dispatcher to report his action, a second trooper heard the call and immediately went to the scene of the stop.  When the second trooper arrived, the motorist was in the first trooper’s car being issued a ticket.  While that was happening, the second trooper walked his drug dog around the outside of the motorist’s car.  The dog alerted at the trunk.  Ultimately, the motorist was convicted on drug charges, over his assertion that reasonable suspicion is required before a drug dog could be used.  The Supreme Court disagreed.  The Court noted that the initial stop for speeding was concededly lawful and that the stop was not prolonged for the purpose of the dog sniff. The Court held: “Accordingly, the use of a well-trained narcotics detection dog – one that ‘does not expose contraband items that would otherwise remain hidden from public view’ – during a lawful traffic stop, generally does not implicate legitimate privacy interests...Any intrusion on respondent’s privacy expectation does not rise to the level of a constitutional cognizable infringement.”  (Internal citation omitted.))


Devenpeck v. Alford, 125 S.Ct. 588 (December 13, 2004)  (J. Scalia)  (Motorists stranded along the highway were assisted by Alford, who pulled up behind their car and activated “wig-wag” lights.  A police officer traveling in the opposite direction turned around and drove back to the scene.  As he approached, Alford quickly left.  The motorists told the officer that they thought Alford was also a police officer.  The police officer, suspecting that Alford was impersonating a police officer, pursued and stopped Alford.  Alford gave inconsistent answers to the officer’s questions.  Moreover, he had equipment in the car that also indicated that Alford might be impersonating a police officer.  Finally, when the investigating officers found a working tape recorder in the car that had been capturing their conversations, Alford was arrested for a violation of the state’s Privacy Act.  The issue before the Court was “…whether an arrest is lawful under the Fourth Amendment when the criminal offense for which there is probable cause to arrest is not ‘closely related’ to the offense stated by the arresting officer at the time of arrest.”  Alford claimed that his arrest was unlawful because the police lacked probable cause.  The lower court ruled in favor Alford, concluding that “…the probable-cause inquiry is further confined to the known facts bearing upon the offense actually invoked at the time of arrest, and that (in addition) the offense supported by these known facts must be ‘closely related’ to the offense that the officer invoked.”  The Supreme Court disagreed:  “We find no basis in precedent or reason for this limitation.”  The Court reasoned, “Our cases make clear that an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause…That is to say, his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.  As we have repeatedly explained, ‘the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action’…The rule that the offense establishing probable cause must be ‘closely related’ to, and based on the same conduct as, the offense identified by the arresting officer at the time of arrest is inconsistent with this precedent.  Such a rule makes the lawfulness of an arrest turn upon the motivation of the arresting officer—eliminating, as validating probable cause, facts that played no part in the officer’s expressed subjective reason for making the arrest, and offenses that are not ‘closely related’ to that subjective reason…This means that the constitutionality of an arrest under a given set of known facts will ‘vary from place to place and from time to time,’ depending on whether the arresting officer states the reason for the detention and, if so, whether he correctly identifies a general class of offense for which probable cause exists.  An arrest made by a knowledgeable, veteran officer would be valid, whereas an arrest made by a rookie in precisely the same circumstances would not.  We see no reason to ascribe to the Fourth Amendment such arbitrarily variable protection.”)


B.                 Effective Assistance of Counsel/Fair Trial


Rompilla v. Beard, 125 S.Ct. 2456 (June 20, 2005) (J. Souter)  (Rompilla was convicted of murder and sentenced to death based on Pennsylvania’s statutory scheme under which the prosecution proved sufficient aggravating factors that outweighed the minimal mitigation offered by the defendant.  On appeal, Rompilla argued his public defenders provided ineffective counsel at his trial by failing to present evidence of his difficult childhood, mental capacity, health problems and alcohol abuse.  The lower court upheld the conviction, finding that the attorneys’ effort to uncover such evidence was reasonable.  The Supreme Court defined the case as “…look[ing] to norms of adequate investigation in preparing for the sentencing phase of a capital trial, when defense counsel’s job is to counter the State’s evidence of aggravated culpability with evidence in mitigation.”  The Court also noted that the public defenders had interviewed the defendant (who was largely unhelpful), family members who were concerned more with the defendant’s claim of innocence than mitigating evidence, and three mental health experts who provided no useful information.  On appeal, represented by new lawyers, Rompilla argued that the original attorneys should have further examined school records, records of prior arrests and incarcerations and evidence of alcohol dependence.  The Supreme Court concluded:  “We hold that even when a capital defendant’s family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial… It flouts prudence to deny that a defense lawyer should try to look at a file he knows the prosecution will cull for aggravating evidence, let alone when the file is sitting in the trial courthouse, open for the asking.  No reasonable lawyer would forgo examination of the file thinking he could do as well by asking the defendant or family relations whether they recalled anything helpful or damaging in the prior victim’s testimony.  Nor would a reasonable lawyer compare possible searches for school reports, juvenile records, and evidence of drinking habits to the opportunity to take a look at a file disclosing what the prosecutor knows and even plans to read from in his case. Questioning a few more family members and searching for old records can promise less than looking for a needle in a haystack, when a lawyer truly has reason to doubt there is any needle there…But looking at a file the prosecution says it will use is a sure bet: whatever may be in that file is going to tell defense counsel something about what the prosecution can produce.”)


Deck v. Missouri, 125 S.Ct. 2007 (May 23, 2005) (J. Breyer)  (At a sentencing hearing, the defendant, who had been convicted of murder, was required to wear leg shackles and a belly chain over the objection of his attorney who argued that the restraints suggested to the jury that his client was presently violent.  The Court noted the rule as it applies to the guilt phase of a trial:  “The law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need.”  The Court then determined that a similar rule must be applied to sentencing hearings:  “The considerations that militate against the routine use of visible shackles during the guilt phase of a criminal trial apply with like force to penalty proceedings in capital cases.  This is obviously so in respect to…securing a meaningful defense and maintaining dignified proceedings…Nonetheless, shackles at the penalty phase threaten related concerns.  Although the jury is no longer deciding between guilt and innocence, it is deciding between life and death. That decision, given the ‘severity’ and ‘finality’ of the sanction, is no less important than the decision about guilt.   Accordingly, the Court ruled, “[T]he Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is ‘justified by an essential state interest,’ -- such as the interest in courtroom security -- specific to the defendant on trial.”)


Halbert v. Michigan, 125 S.Ct. 2582 (June 23, 2005) (J. Ginsburg)  (A 1994 state constitutional amendment allowed defendants who pleaded guilty or nolo contendre to appeal their conviction only with leave of the court.  After that amendment, most Michigan courts refused to appoint counsel for indigent defendants who sought to appeal.  That practice was challenged on Equal Protection and Due Process grounds.  The Supreme Court reversed the practice of the Michigan courts, ruling that appointed counsel must be provided to indigent defendants who appeal their convictions to the state court of appeals.  The Court reasoned, “Court of Appeals, because it is an error-correction instance, is guided in responding to leave to appeal applications by the merits of the particular defendant’s claims, not by the general importance of the questions presented.  Whether formally categorized as the decision of an appeal or the disposal of a leave application, the Court of Appeals’ ruling on a plea-convicted defendant’s claims provides the first, and likely the only, direct review the defendant’s conviction and sentence will receive. Parties like Halbert, however, are disarmed in their endeavor to gain first-tier review…Navigating the appellate process without a lawyer’s assistance is a perilous endeavor for a layperson, and well beyond the competence of individuals, like Halbert,  who have little education, learning disabilities, and mental impairments… Appeals by defendants convicted on their pleas may involve “myriad and often complicated” substantive issues…”  Accordingly, the Court found in favor of the defendant and reversed the practice of the state courts.)


C.                Eighth Amendment


Roper v. Simmons, 125S.Ct. 1183 (March 1, 2005)  (J. Kennedy)  (The “Cruel and Unusual Punishment” clause of the Eight Amendment, applicable to the states through the Fourteenth Amendment, does not permit imposition of the death penalty when the offender was under the age of 18 at the time of the crime.)


II.        Prison Administration


Johnson v. California, 125 S.Ct. 1141 (February 23, 2005)  (J. O’Connor)  (For the first 60 days of incarceration, it was the unwritten policy of the Department of Corrections to place inmates in two-person cells according to race, pending their final assignment elsewhere in the state’s correctional facilities.  The state defended the practice as necessary to avoid gang-related violence.  The Court accepted the case to decide whether the prison’s policy was governed by the general rule subjecting all race-based decisions to a strict scrutiny, requiring “the CDC to demonstrate that its policy is narrowly tailored to serve a compelling state interest.”  The Court acknowledged the prison administrator’s special concern for preventing violence, but said, “strict scrutiny does not preclude the ability of prison officials to address the compelling interest in prison safety. Prison administrators, however, will have to demonstrate that any race-based policies are narrowly tailored to that end.”  The Court held that the strict scrutiny test is applicable.  The Court then remanded the case because the “…fact that strict scrutiny applies ‘says nothing about the ultimate validity of any particular law; that determination is the job of the court applying strict scrutiny’…At this juncture, no such determination has been made. On remand, the CDC will have the burden of demonstrating that its policy is narrowly tailored with regard to new inmates as well as transferees. Prisons are dangerous places, and the special circumstances they present may justify racial classifications in some contexts.  Such circumstances can be considered in applying strict scrutiny, which is designed to take relevant differences into account.”)


Cutter v. Wilkinson, 125 S.Ct. 2113 (May 31, 2005) (J. Ginsburg)  (The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U. S. C. §2000cc–1(a)(1)–(2), provides in part: “No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution,” unless the burden furthers “a compelling governmental interest, and does so by “the least restrictive means.”   Inmates at a prison operated by the Ohio Department of Rehabilitation and Correction sued, asserting that their “nonmainstream” religions: the Satanist, Wicca, and Asatru religions, and the Church of Jesus Christ Christian were not accorded protection under the RLUIPA.   Specifically, the inmates complained that the prison officials failed to accommodate their religious exercise in a variety of different ways, including retaliating and discriminating against them for exercising their nontraditional faiths, denying them access to religious literature, denying them the same opportunities for group worship that are granted to adherents of mainstream religions, forbidding them to adhere to the dress and appearance mandates of their religions, withholding religious ceremonial items that are substantially identical to those that the adherents of mainstream religions are permitted, and failing to provide a chaplain trained in their faith.”   The Supreme Court  found the “…RLUIPA’s institutionalized-persons provision compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise.”  Importantly, the Court noted that RLUIPA protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.  But the Act does not elevate accommodation of religious observances over an institution’s need to maintain order and safety.”)


Wilkinson v. Austin, 125 S.Ct. 2384 (June 13, 2005)  (J. Kennedy)  (Prisoners challenged the classification system used by the State of Ohio to determine which prisoners were sent to the SuperMax facility.  The conditions of such a facility are harsh:  the cells are  14’ x 7’and prisoners remain there 23 hours each day, all meals are eaten alone, the recreation area is indoors, a light must be on in each cell at all times, visitations are rare, and placement is for an indefinite period of time and causes the loss of eligibility for parole.  “It is fairy to say OSP inmates are deprived of almost any environmental or sensory stimuli and of almost all human contact.”  Assignment to the SuperMax or another facility is based largely upon a security classification that considers  numerous factors, including the nature of the underlying offense, criminal history, or gang affiliation, and is subject to modification at any time during the inmate’s prison term if, for instance, he engages in misconduct or is deemed a security risk.  The Supreme Court first noted that under the harsh conditions the comprise life at the SuperMax, “… any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context. It follows that respondents have a liberty interest in avoiding assignment to OSP.”  The Court then analyzed whether Ohio accorded prisoners due process in deciding assignments to the SuperMax.  The Court applied Matthews v. Eldridge, 424 U. S. 319 (1976), which required consideration of three factors:  “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”   The Court concluded, “A balance of the Mathews factors yields the conclusion that Ohio’s New Policy is adequate to safeguard an inmate’s liberty interest in not being assigned to OSP.  Ohio is not, for example, attempting to remove an inmate from free society for a specific parole violation…or to revoke good time credits for specific, serious misbehavior…where more formal, adversary-type procedures might be useful.  Where the inquiry draws more on the experience of prison administrators, and where the State’s interest implicates the safety of other inmates and prison personnel, the informal, nonadversary procedures…provide the appropriate model. “)


III.       First Amendment Speech


City of San Diego v. Roe, 125 S. Ct. 521 (2004)  (Per Curiam)  (A police officer could be dismissed for selling on Ebay obscene videotapes of himself dressed in a generic police uniform.  His conduct was not protected speech under the First Amendment.  “Although Roe’s activities took place outside the workplace and purported to be about subjects not related to his employment, the SDPD demonstrated legitimate and substantial interests of its own that were compromised by his speech.  Far from confining his activities to speech unrelated to his employment, Roe took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer.  The use of the uniform, the law enforcement reference in the Web site, the listing of the speaker as ‘in the field of law enforcement,’ and the debased parody of an officer performing indecent acts while in the course of official duties brought the mission of the employer and the professionalism of its officers into serious disrepute.”)


IV.            Religious Freedom


McCreary County v. American Civil Liberties Union of Kentucky, 125 S.Ct. 2722 (June 27, 2005) (J. Souter)  (Two counties in Kentucky had displays of the biblical Ten Commandments on public display.  After a lawsuit was filed challenging the display, certain modifications were made to explain them as Kentucky’s “precedent legal code.”  They were still challenged as violative of the First Amendment’s freedom of religion protections.  The Supreme Court said, “When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides.”  In deciding these issues, the Court held, “…the counties’ manifest objective may be dispositive of the constitutional enquiry, and that the development of the presentation should be considered when determining its purpose.”  In applying that test to the facts, the Supreme Court concluded that counties had a predominantly religious purpose in the public displays and upheld the lower court’s injunction against the displays.)


Van Orden v. Perry, 125 S.Ct. 1040 (June 27, 2005) (J. Rhenquist)  (Among the 21 monuments and 17 historical markers on the grounds of the Texas state capital is a 6’ by 3.5’ monolith containing the biblical Ten Commandments.  Its presence on state ground was challenged as a violation of the Establishment Clause of the First Amendment.  The Court acknowledged that “[s]imply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause…There are, of course, limits to the display of religious messages or symbols…The placement of the Ten Commandments monument on the Texas State Capitol grounds is a far more passive use of those texts than was the case in Stone, where the text confronted elementary school students every day.  Indeed, Van Orden, the petitioner here, apparently walked by the monument for a number of years before bringing this lawsuit. The monument is therefore also quite different from the prayers involved in Schempp and Lee v. Weisman. Texas has treated her Capitol grounds monuments as representing the several strands in the State’s political and legal history. The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government. We cannot say that Texas’ display of this monument violates the Establishment Clause of the First Amendment.”)


V.            Substantive Criminal Law


Gonzales v. Raich, 125 S.Ct. 2195 (June 6, 20050 (J. Stevens)  (In 1996, California passed the Compassionate Use Act to allow physicians to prescribe and seriously ill persons to use marijuana for medicinal purposes.  This case pitted the California law against the federal drug statutes that have no medical exception for the use or distribution of marijuana.  The Supreme Court ruled that Congress was within its authority to pass the federal Controlled Substances Act using its Commerce Clause powers:  “In assessing the scope of Congress’ authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding...Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere… and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA.”  Accordingly, the Court found the federal laws had primacy over California’s statutes, permitting prosecution under federal law if the government believed it necessary.  The Court provided, however, an alternative for Raich:  “We do note, however, the presence of another avenue of relief.  As the Solicitor General confirmed during oral argument, the statute authorizes procedures for the reclassification of Schedule I drugs.  But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress.”)


Small v. United States, 125 S.Ct. 1752 (April 26, 2005) (J. Breyer)  (Small was convicted and imprisoned in Japan for smuggling firearms and ammunition into Japan.  Upon his release, he traveled to the United States and purchased a weapon from a licensed dealer in Pennsylvania.  He was thereafter charged under U.S. law with being a felon in possession of a firearm.  Small pleaded guilty, but reserved his right to challenge the underlying statute that criminalized possession of a weapon by a person convicted of a felony “in any court.”   The Court found in favor of Small.   In addressing the issue, the Court noted, “In determining the scope of the statutory phrase we find help in the ‘commonsense notion that Congress generally legislates with domestic concerns in mind.’… This notion has led the Court to adopt the legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, application.”  In analyzing the underlying federal statute, the Court found that statute’s lengthy legislative history confirms the fact that “Congress did not consider whether foreign convictions should or should not serve as a predicate to liability under the provision here at issue” and ultimately concluded that “the phrase ‘convicted in any court’ refers only to domestic courts, not to foreign courts.”  The Supreme Court noted, however, that “Congress, of course, remains free to change this conclusion through statutory amendment.”)


Whitfield v. United States, 125 S.Ct. 687 (January 11, 2005)  (J. O’Connor)  (Whitfield was indicted and convicted for conspiracy to engage in money laundering based on his participation in a scheme which defrauded investors.  The indictment, however, did not allege, nor did the government prove any overt act in furtherance of the conspiracy.  Whitfield challenged the conviction on the basis that conspiracy convictions require proof on an overt act.  The Court disagreed.  The Supreme Court examined the underlying federal statute and concluded, “We have consistently held that the common law understanding of conspiracy ‘does not make the doing of any act other than the act of conspiring a condition of liability.’ ”)


VI.       Civil Liability


Exxon Mobile Corporation v. Allapattah Services, Inc., 125 S.Ct. 2611 (June 23, 2005) (J. Kennedy)  (“We hold that, where the other elements of jurisdiction are present and at least one named plaintiff in the action satisfies the amount-in-controversy requirement, §1367 does authorize supplemental jurisdiction over the claims of other plaintiffs in the same Article III case or controversy, even if those claims are for less than the jurisdictional amount specified in the statute setting forth the requirements for diversity jurisdiction.”)


Town of Castle Rock, Colorado v. Gonzales, 125 S.Ct. 2796 (June 27, 2005)  (J. Scalia)  (As part of a divorce proceeding, a restraining order was entered limiting the husband’s contact with his wife and restricting his ability to spend time with his children.  When the husband violated the restraining order, the wife called the police, but was told they could not do anything at that time.  A total of four telephone calls to the police, and one trip to the police station, were made, but each time the police rebuffed the wife’s request for help and made no effort to enforce the restraining order.  Later that night, the husband showed up at the police station, where police killed him after he opened fire at the police.  It was later discovered that he had murdered his three children as well.  The wife sued the town, alleging that it had a policy or practice of ineffective enforcement of domestic restraining orders and in doing so, violated her Due Process rights.  The Court centered the inquiry on whether the wife had a property interest in the restraining order that was entitled to due process protection.  The wife argued that she did because the restraining order facially contained an instruction, consistent with state law, ordering law enforcement officials to make “every reasonable effort” to enforce the order and “arrest” or “seek a warrant” for the husband for violation of the order, if there was probable cause to do so.  The Court rejected that argument, however, finding that the command of the restraining order and the corollary state statute was far from mandatory.  Rather, the Court reasoned that the police still had considerable discretion:  “[The] Colorado restraining-order statute assertedly mandated—whether her interest lay in having police arrest her husband, having them seek a warrant for his arrest, or having them ‘use every reasonable means, up to and including arrest, to enforce the order’s terms’…Such indeterminacy is not the hallmark of a duty that is mandatory. Nor can someone be safely deemed ‘entitled’ to something when the identity of the alleged entitlement is vague…The creation of a personal entitlement to something as vague and novel as enforcement of restraining orders cannot ‘simply g[o] without saying’…We conclude that Colorado has not created such an entitlement.”  Accordingly, the Court held:  “… respondent did not, for purposes of the Due Process Clause, have a property interest in police enforcement of the restraining order against her husband.  It is accordingly unnecessary to address the Court of Appeals’ determination…that the town’s custom or policy prevented the police from giving her due process when they deprived her of that alleged interest…In light of today’s decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its ‘substantive’ manifestations. This result reflects our continuing reluctance to treat the Fourteenth Amendment as ‘a font of tort law’…but it does not mean States are powerless to provide victims with personally enforceable remedies.  Although the framers of the Fourteenth Amendment and the Civil Rights Act of 1871, 17 Stat. 13 (the original source of §1983), did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system under state law.”)


Brosseau v. Haugen, 125 S.Ct. 596  (December 13, 2004)  (Per Curiam)   (Police learned that a no-bond warrant was outstanding for Haugen for drug charges.  The next day, police responded to a disturbance call at Haugen’s mother’s house.  Haugen fled, but was seen after a 30-45 minute search.  Haugen ran to a car and jumped inside.  Officer Brosseau ordered him out of the car at gunpoint, but Haugen refused to comply.  Officer Brosseau broke the car window with her weapon and struck Haugen in the head with her gun.  Haugen continued to try to flee and when he started the car, Officer Brosseau fired one time, striking, but not killing Haugen.  She fired at Haugen because she feared for her safety, the safety of other officers at the scene, and for the safety of citizens also nearby.  Haugen managed to drive away, but stopped a short distance away when he realized he had been shot.  Haugen pleaded guilty to “eluding” police.  He thereafter sued, alleging the use of excessive force.  The Supreme Court decided the case to clarify its ruling with regard to qualified immunity.  The Court reversed the Ninth Circuit that held that Tennessee v. Garner  and Graham v. Connor  had clearly established the law regarding the use of deadly force in these circumstances.  The Court found error in the appellate court’s ruling because it failed to determine if the use of deadly force was clearly established in the more particularized circumstances of this case, to wit:  whether to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.”  The Court then concluded that at least three lower court cases with  similar facts indicated that the law was not clearly established.  The Court held that for the law to be clearly established, and a police officer to have fair warning that her conduct violated a constitutional right, a court must find the law must have been decided not just in general terms, but in the context in which the violation is alleged to have occurred.)




VII.            Employment Discrimination


Smith v. City of Jackson, Mississippi, 125 S.Ct. 1536 (March 30, 2005)  (J. Stevens)  (The City adopted a pay plan designed to attract and retain qualified people, provide incentive for performance, maintain competitiveness with other public sector agencies and ensure equitable compensation to all employees regardless of age, sex, race and/or disability.”  Later, the plan was revised for police officers in an effort to bring the starting salaries of police officers up to the regional average.  It granted raises to all police officers and police dispatchers.  Those who had less than five years of tenure received proportionately greater raises when compared to their former pay than those with more seniority.  Older officers challenged the pay plan under a disparate impact theory under the Age Discrimination in Employment Act (ADEA).  The issue before the Court was whether a disparate impact claim could be prosecuted under the ADEA.  The Court noted that the ADEA was substantially similar to Title VII, and in both cases, the “text focuses on the effects of the action on the employee rather than the motivation for the action of the employer.”  The Court concluded that disparate impact claims were permissible under the ADEA.  The Court noted, however, that “…textual differences between the ADEA and Title VII make it clear that even though both statutes authorize recovery on a disparate-impact theory, the scope of disparate-impact liability under ADEA is narrower than under Title VII.”  One such limitation is a provision in the ADEA that permits an employer to engage in “otherwise prohibited” actions  “where the differentiation is based on reasonable factors other than age.”  The Court explained that Congress’ decision to limit the coverage of the ADEA by including this provision “…is consistent with the fact that age, unlike race or other classifications protected by Title VII, not uncommonly has relevance to an individual’s capacity to engage in certain types of employment.  To be sure, Congress recognized that this is not always the case, and that society may perceive those differences to be larger or more consequential than they are in fact… Thus, it is not surprising that certain employment criteria that are routinely used may be reasonable despite their adverse impact on older workers as a group.  Moreover, intentional discrimination on the basis of age has not occurred at the same levels as discrimination against those protected by Title VII.  While the ADEA reflects Congress’ intent to give older workers employment opportunities whenever possible, the… provision reflects this historical difference.”   Applying the law, then, to the facts of the case, the Supreme Court concluded, “First, almost two-thirds (66.2%) of the officers under 40 received raises of more than 10% while less than half (45.3%) of those over 40 did.  Second, the average percentage increase for the entire class of officers with less than five years of tenure was somewhat higher than the percentage for those with more seniority.13 Because older officers tended to occupy more senior positions, on average they received smaller increases when measured as a percentage of their salary. The basic explanation for the differential was the City’s perceived need to raise the salaries of junior officers to make them competitive with comparable positions in the market.  Thus, the disparate impact is attributable to the City’s decision to give raises based on seniority and position.  Reliance on seniority and rank is unquestionably reasonable given the City’s goal of raising employees’ salaries to match those in surrounding communities.  In sum, we hold that the City’s decision to grant a larger raise to lower echelon employees for the purpose of bringing salaries in line with that of surrounding police forces was a decision based on a ‘reasonable factor other than age’ that responded to the City’s legitimate goal of retaining police officers.”)