Significant Decisions Affecting Law Enforcement

In the United States Supreme Court’s 2002-2003 Term


Prepared for the

International Association of Chiefs of Police

Legal Officers Section


October 25, 2003

Philadelphia, Pennsylvania


Prepared by

Jeffrey Higginbotham

Spotsylvania, Virginia




Criminal Procedure

      Fourth Amendment

      Fifth Amendment

      Sixth Amendment

      First Amendment

            Cross Burning

            Freedom of Association


Criminal Law

      Three Strikes Law


      Offender Registry

      Ex Post Facto


Constitutional Miscellaneous


      Equal Protection

      Due Process

Civil Procedure

      Punitive Damages


Employment and Discrimination

      Affirmative Action

      Family and Medical Leave Act


Cases Pending - Certiorari Granted

      Criminal Procedure


      Civil Liability


Criminal Procedure


• Fourth Amendment


Kaupp v. Texas, 123 S.Ct. 1843 (05/05/2003) (Per Curiam) (When one suspect in a murder investigation failed three polygraph examinations, he implicated Kaupp in the murder.  Police went to Kaupp’s house at about 3:00 A.M. and, without a warrant, took him out of the house.  Kaupp was told only, “We need to go talk.” He replied, “Okay.”  No warrant was obtained because the police lacked probable cause-- they could not corroborate the suspect’s statement implicating Kaupp and Kaupp himself had passed a polygraph a few days earlier.  En route to the police station, they stopped for 5-10 minutes at the scene where the victim’s body had been found.  Finally at the police station, Kaupp was read his Miranda rights.  Kaupp denied involvement in the murder, but when confronted with the other suspect’s statement, he made an admission of guilt, though he denied being the actual killer.  The trial court refused to suppress Kaupp’s confession as the product of an illegal arrest, finding he consented to go with the police and his removal in handcuffs was “routine” and not a restraint the reasonable person would have felt to be significant.  The Supreme Court disagreed.  The Court ruled that it was “...beyond cavil that Kaupp was arrested within the meaning of the Fourth Amendment...A 17-year-old boy was awakened in his bedroom at three in the morning by at least three police officers, one of whom stated ‘we need to go and talk.’  He was taken out in handcuffs, without shoes, dressed only in his underwear in January, placed in a patrol car, driven to the scene of a crime and then to the sheriff’s offices, where he was taken into an interrogation room and questioned.”  Moreover, the Court found insufficient attenuation between the illegal arrest and the confession.  The Miranda warnings “...alone and per se, cannot always...break, for Fourth Amendment purposes, the causal connection between the illegality and the confession...All other factors point the opposite way. There is no indication from the record that any substantial time passed between Kaupp’s removal from his home in handcuffs and his confession after only 10 or 15 minutes of interrogation.  In the interim, he remained in his partially clothed state in the physical custody of a number of officers, some of whom, at least, were conscious that they lacked probable cause to arrest...In fact, the state has not even alleged ‘any meaningful intervening event’ between the illegal arrest and Kaupp’s confession.”) 


Inyo County, California v. Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony, 123 S.Ct. 1887 (May 19, 2003) (J. Ginsburg) (County law enforcement officials were conducting an investigation of alleged welfare fraud involving three Native Americans.  As part of the investigation, Inyo County obtained and served a search warrant for employment records of the three suspects, who were employed by a casino located on a reservation and which was owned by the Indian tribe.  The tribe sued the sheriff and others under 42 U.S.C. §1983, seeking injunctive relief and damages.  The issue before the Court was “...whether a tribe qualifies as a claimant–a ‘person within the jurisdiction’ of the United States–under §1983.”  The Court observed that like any of the 50 states, an Indian tribe is entitled to sovereign immunity if it is sued under §1983.  In a like manner, the Court reasoned that: “Section 1983 was designed to secure private rights against government encroachment...not to advance a sovereign’s prerogative to withhold evidence relevant to a criminal investigation.  For example, as the County acknowledges, a tribal member complaining of a Fourth Amendment violation would be a ‘person’ qualified to sue under §1983...But like other private persons, that member would have no right to immunity from an appropriately executed search warrant based on probable cause.  Accordingly, we hold that the Tribe may not sue under §1983 to vindicate the sovereign right it here claims.”)


• Fifth Amendment


Chavez v. Martinez, 123 S.Ct. 1994 (5/27/2003) (J. Thomas) (Chavez, riding on a bicycle, approached two police officers who were investigating suspicious drug activity.  Chavez was ordered off the bicycle and subjected to a pat down search which yielded a knife tucked in Chavez’s waistband.  A struggle followed and during that struggle, one of the officers yelled, “He’s got my gun.”  The other officer shot Martinez in the face, abdomen and leg, causing permanent blindness and paralysis from the waist down.  He was placed under arrest and taken to the hospital.  Sgt. Chavez accompanied Martinez in the ambulance.  At the hospital, Sgt. Chavez persistently questioned Martinez over a 45-minute period while medical personnel provided treatment.  During the questioning, Martinez frequently made statements that he was “dying” and “choking.”  Throughout the questioning, it was apparent that Martinez was in extreme pain and believed he was going to die.  Although he said he did not want to talk until he had been treated, Sgt. Chavez continued to ask questions and Martinez made incriminating statements about drug use.  Martinez was never charged with a crime and the statements he made at the hospital were not used against him in a criminal proceeding.  Nonetheless, Martinez sued Sgt. Chavez under 42 U.S.C. §1983, alleging that the coerced hospital interrogation violated his Fifth Amendment right to not be compelled to be a witness against himself, and his Fourteenth Amendment due process right to be free from coercive interrogation.  The Supreme Court decided in a split opinion that Sgt. Chavez was not civilly liable for violating Martinez’s Fifth Amendment Miranda rights, because Martinez was never charged with a crime, and therefore, never compelled to be a witness against himself.  The Court reasoned that “mere coercion does not violate the text of the Self-Incrimination Clause absent the use of the compelled statements in a criminal case against the witness.”  Importantly, the Court left open  the possibility that the coercive interrogation violated Martinez’s Fourteenth Amendment Due Process right, but sent that issue back to the trial court for reconsideration.  The Court instructed that although the standard for imposing liability is a “shocks-the-conscience” standard,  the Court’s finding on self-incrimination does “not mean that police torture or other abuse that results in a confession is constitutionally permissible so long as the statements are not used at trial.”)


Sattazahn v. Pennsylvania, 537 U.S.101 (1/14/2003) (J. Scalia) (The defendant was convicted of murder during the commission of a robbery.  The jury hung on the death penalty and, under Pennsylvania law, the judge then imposed a life sentence.  The conviction was reversed on appeal, however, and the state gave notice that it again intended to seek the death penalty.  The question before the Court was whether the Double Jeopardy Clause of the Fifth Amendment prohibited the State from seeking the death penalty that it did not obtain during the first trial.  The Court’s majority concluded that the Double Jeopardy Clause did not bar the State from seeking the death penalty:  “[T]he touchstone for double-jeopardy protection in capital-sentencing proceedings is whether there has been an ‘acquittal.’  Petitioner here cannot establish that the jury or the court ‘acquitted’ him during his first capital-sentencing proceeding.”)


• Sixth Amendment


Wiggins v. Smith, 123 S.Ct. 2527 (June 26, 2003) (J. O’Connor) (After the defendant’s murder conviction, his public defender attorneys sought a bifurcated sentencing hearing because they wanted to separately present proof that the defendant was not the person who actually committed the murder and then to offer mitigation evidence of the hard life that the defendant had suffered.  The trial judge denied the bifurcation motion.  At the sentencing hearing, defense counsel’s opening statement informed the jury that it would hear of the defendant’s hard life.  However, no evidence or testimony was ever introduced on that issue.  Wiggins thereafter appealed, claiming he was not given effective assistance of counsel because of his attorneys’ failure to investigate his life experiences, that included frequent physical and sexual abuse as a child, and offer such evidence to the jury.  The Court began by noting the legal standard for Sixth Amendment ineffective-assistance-of-counsel claims: “An ineffective assistance claim has two components:  A petitioner must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense.”  In establishing the deficiency of counsel’s performance, though, the Court cautioned that it was difficult to second guess strategic decisions: “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.  In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.  In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.”  Accordingly, the Court framed the issue as “...not whether counsel should have presented a mitigation case.  Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable.”  The Supreme Court then found that the defense counsels’ decision was unreasonable:  “Counsel’s decision not to expand their investigation beyond the PSI and the DSS records fell short of the professional standards...[A]ny reasonably competent attorney would have realized that pursuing these leads was necessary to making an informed choice among possible defenses, particularly given the apparent absence of any aggravating factors in petitioner’s background...Indeed, counsel uncovered no evidence in their investigation to suggest that a mitigation case, in its own right, would be counterproductive, or that further investigation would have been fruitless...”)


Massaro v. United States, 123 S.Ct. 1690 (April 23, 2003) (J. Kennedy) (A day before Massaro’s trial on federal racketeering charges was to begin, prosecutors learned of a bullet alleged to have come from the car in which the victim’s body was found.  The prosecutors did not disclose this new evidence to the defense until several days later, after the defense had given its opening statement.  Defense counsel declined, on several occasions, a continuance so that it could have it could examine the evidence.   Following a conviction, Massaro appealed, arguing the trial court erred in admitting the evidence, but never arguing Massaro was denied the effective assistance of counsel.  When his direct appeal was unsuccessful, Massaro then filed a petition for habeas relief, arguing for the first time he was denied the effective assistance of counsel.  The issue before the Supreme Court was whether a defendant is entitled to raise an ineffective-assistance-of-counsel claim on collateral appeal, when the claim was also available on direct appeal.  The Court ruled that a criminal defendant may raise such a claim on his collateral appeal: “[T]he general rule that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice...The procedural default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law’s important interest in the finality of judgments.  We conclude that requiring a criminal defendant to bring ineffective-assistance-of-counsel claims on direct appeal does not promote these objectives.”)


• First Amendment


 Cross Burning


Virginia v. Black, 123 S.Ct. 1536 (4/7/2003) (J. O’Connor) (In two separate cases, consolidated in this appeal and opinion, challenges were made to the Virginia law which prohibits burning of a cross with the intent to intimidate a person or group of persons.  In the first case, a cross was burned at a Ku Klux Klan rally held on private property, but observable from the roadway nearby and from a few houses located in the vicinity.  The Klan burned the cross, but did not direct its burning at any identifiable person or group.  In the second case, a cross was burned in the yard of an African-American apparently in retaliation for a complaint to a neighbor about shots being fired in that neighbor’s backyard as part of a shooting range.  Both incidents led to convictions for the persons involved and the statute was challenged as being facially unconstitutional.  The Court reviewed the history of cross burning and noted that since 1905, the Klan had often burned crosses “as a tool of intimidation and a threat of impending violence...[and] while a burning cross does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives.  And when a cross burning is used to intimidate, few if any messages are more powerful.”  The Court acknowledged that the “...burning of a cross is symbolic expression.  The reason why the Klan burns a cross at its rallies, or individuals place a burning cross on someone else’s lawn, is that the burning cross represents the message that the speaker wishes to communicate.  Individuals burn crosses as opposed to other means of communication because cross burning carries a message in an effective and dramatic manner.  [But, the] fact that cross burning is symbolic expression, however, does not resolve the constitutional question.”  The Court upheld the statute, saying, “Virginia’s statute does not run afoul of the First Amendment insofar as it bans cross burning with intent to intimidate...the Virginia statute does not single out for opprobrium only that speech directed toward ‘one of the specified disfavored topics’...It does not matter whether an individual burns a cross with intent to intimidate because of the victim’s race, gender, or religion, or because of the victim’s ‘political affiliation, union membership, or homosexuality’...The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation.  Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning’s long and pernicious history as a signal of impending violence.  Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.  A ban on cross burning carried out with the intent to intimidate is fully consistent with...and is proscribable under the First Amendment.”  The Court went on to find, however, that another portion of the Virginia statute was invalid.  The Virginia statute provided that “any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.”  That provision, held the Court, was overly broad:  “The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation.  But that same act may mean only that the person is engaged in core political speech.  The prima facie evidence provision in this statute blurs the line between these two meanings of a burning cross.  As interpreted by the jury instruction, the provision chills constitutionally protected political speech because of the possibility that a State will prosecute–and potentially convict–somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect...The prima facie provision makes no effort to distinguish among these different types of cross burnings.  It does not distinguish between a cross burning done with the purpose of creating anger or resentment and a cross burning done with the purpose of threatening or intimidating a victim.  It does not distinguish between a cross burning at a public rally or a cross burning on a neighbor’s lawn.  It does not treat the cross burning directed at an individual differently from the cross burning directed at a group of like-minded believers.  It allows a jury to treat a cross burning on the property of another with the owner’s acquiescence in the same manner as a cross burning on the property of another without the owner’s permission.”  Accordingly, the Court reversed the conviction of the Klan leader, and remanded the other case for retrial.)


 Freedom of Association


Overton v. Bazzetta, 123 S.Ct. 2162 (June 16, 2003) (J. Kennedy) (In response to overcrowded prison conditions starting in the 1990s, Michigan prison officials adopted new regulations designed to limit the number of visitors an inmate was permitted.  The rules were aimed at decreasing disruption at the prison; easing the administration of visitors, particularly minors; and preventing drug smuggling and trafficking.   The regulations were challenged as violative of due process, the First Amendment right of association, and the Eighth Amendment.  As to the First Amendment claim, the Court held that the “...very object of imprisonment is confinement.  Many of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner.  An inmate does not retain rights inconsistent with proper incarceration.  And, as our cases have established, freedom of association is among the rights least compatible with incarceration...Some curtailment of that freedom must be expected in the prison context.  We do not hold, and we do not imply, that any right to intimate association is altogether terminated by incarceration or is always irrelevant to claims made by prisoners. We need not attempt to explore or define the asserted right of association at any length or determine the extent to which it survives incarceration because the challenged regulations bear a rational relation to legitimate penological interests.  This suffices to sustain the regulation in question.”  The Court explained that the rational basis test requires that “[w]e must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them...The burden, moreover, is not on the State to prove the validity of prison regulations but on the prisoner to disprove it.”  Finally, the Court said, with respect to the challenge under the Eighth Amendment, “Much of what we have said already about the withdrawal of privileges that incarceration is expected to bring applies here as well.  Michigan, like many other States, uses withdrawal of visitation privileges for a limited period as a regular means of effecting prison discipline.  This is not a dramatic departure from accepted standards for conditions of confinement...Nor does the regulation create inhumane prison conditions, deprive inmates of basic necessities or fail to protect their health or safety.  Nor does it involve the infliction of pain or injury, or deliberate indifference to the risk that it might occur.”  Accordingly, the regulations established by the prison were upheld.)




Virginia v. Hicks, 123 S.Ct. 2191 (June 16, 2003) (J. Scalia) (The owners of a private residential complex authorized the police to issue trespass warnings to anyone who was not a resident, employee of the complex, and anyone who could not show a legitimate business or social reason for being on the property.  A person who returned to the property after receiving a trespass warning was subject to arrest and prosecution.  Hicks was a frequent violator of the rule and following one of his arrests and convictions, he challenged the complex’s policy of banning certain persons as a violation of his First Amendment rights.  The Court upheld the complex’s policy:  “As for the written provision authorizing the police to arrest those who return to Whitcomb Court after receiving a barment notice: That certainly does not violate the First Amendment as applied to persons whose postnotice entry is not for the purpose of engaging in constitutionally protected speech.  And Hicks has not even established that it would violate the First Amendment as applied to persons whose postnotice entry is for that purpose.  Even assuming the streets of Whitcomb Court are a public forum, the notice-barment rule subjects to arrest those who reenter after trespassing and after being warned not to return – regardless of whether, upon their return, they seek to engage in speech.  Neither the basis for the barment sanction (the prior trespass) nor its purpose (preventing future trespasses) has anything to do with the First Amendment.  Punishing its violation by a person who wishes to engage in free speech no more implicates the First Amendment than would the punishment of a person who has (pursuant to lawful regulation) been banned from a public park after vandalizing it, and who ignores the ban in order to take part in a political demonstration.  Here, as there, it is Hicks’ nonexpressive conduct–his entry in violation of the notice-barment rule–not his speech, for which he is punished as a trespasser.”)


Criminal Law


• Three-Strikes Law


Lockyer v. Andrade, 123 S.Ct. 1166 (3/5/2003) (J. O’Connor) (Andrade was convicted on two counts of theft for stealing videos worth $153.54 from K-Mart on two occasions.  He had numerous prior convictions and the State decided to charge the offenses as felonies.  Following his conviction, he was sentenced to two consecutive prison terms of 25 years to life, based on California’s three-strikes law.  Andrade challenged his sentencing on the ground that such punishment for such minor offenses was grossly disproportionate and violated the Eighth Amendment.  The Court did not reach the merits of the defendant’s argument, however, choosing a jurisdictional ground for its decision.  The Court said, “[W]e do not reach the question whether the state court erred and instead focus solely on whether [28 U.S.C.] §2254(d) forecloses habeas relief on Andrade’s Eighth Amendment claim.”  Under that statute, habeas relief may not be granted on a claim that has been litigated in state court unless the lower court’s ruling “...resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”  In applying that “clearly-established-Federal-law” test, the Court concluded that its jurisprudence had established only that a defendant’s sentence to a term of years was subject to a proportionality principle, but that the its jurisprudence had failed to provide meaningful guidance in applying the principle in a given case; therefore, a court should overturn on proportionality grounds a term-of- years sentence only in rare and extreme cases.   “Here, however, the governing legal principle gives legislatures broad discretion to fashion a sentence that fits within the scope of the proportionality principle -- the ‘precise contours’ of which ‘are unclear’...And it was not objectively unreasonable for the California Court of Appeal to conclude that these ‘contours’ permitted an affirmance of Andrade’s sentence...The gross disproportionality principle reserves a constitutional violation for only the extraordinary case.  In applying this principle for §2254(d)(1) purposes, it was not an unreasonable application of our clearly established law for the California Court of Appeal to affirm Andrade’s sentence of two consecutive terms of 25 years to life in prison.”)


• Conspiracy


United States v. Recio, 537 U.S. 270 (January 21, 2003) (J. Breyer) (Nevada police officers stopped a truck and found a large quantity of illegal drugs.  The occupants of the truck told the police that they were to deliver it to a location in Boise, Idaho, and agreed to cooperate with the police in a sting operation to identify and arrest others.  Upon arrival in Boise, telephone calls were placed to a contact number and about three hours later, two people arrived to take possession of the truck.  Police arrested those two people and charged them with conspiracy, along with the original occupants.  Although all four were convicted at trial, the judge reversed the conviction of the Idaho pair when he applied a Ninth Circuit rule that allows conviction under a conspiracy theory only if the defendants joined the conspiracy before the police took possession of the illegal drugs.  The Court disagreed with this rule: “The Court has repeatedly said that the essence of a conspiracy is ‘an agreement to commit an unlawful act’...That being so, the Government’s defeat of the conspiracy’s objective will not necessarily and automatically terminate the conspiracy.”)


• Offender Registry


Connecticut Department of Pubic Safety v. Doe, 123 S.Ct.  1160 (March 5, 2003) (J. Rehnquist) (A convicted sex offender challenged Connecticut’s sex offender registration law on the ground that it denied him due process of law and impermissibly infringed on his reputational (liberty) interest because it did not take into account his current level of dangerousness.  The Connecticut law applies to all persons convicted of criminal offenses against a minor, violent and nonviolent sexual offenses, and felonies committed for a sexual purpose.  Covered offenders must register with the Connecticut Department of Public Safety upon their release into the community, and provide personal information (including name, address, photograph, and DNA sample); notice of any change in residence; and periodic submission of an updated photograph. The registration requirement runs for 10 years in most cases; those convicted of sexually violent offenses must register for life.  The registry is published on the Internet and is available at various public locations.  The Court rejected the challenge: “[E]ven if respondent could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders–currently dangerous or not–must be publicly disclosed.  Unless respondent can show that that substantive rule of law is defective (by conflicting with a provision of the Constitution), any hearing on current dangerousness is a bootless exercise.  It may be that respondent’s claim is actually a substantive challenge to Connecticut’s statute ‘recast in ‘procedural due process’ terms’.... Nonetheless, respondent expressly disavows any reliance on the substantive component of the Fourteenth Amendment’s protections...and maintains, as he did below, that his challenge is strictly a procedural one.  But States are not barred by principles of ‘procedural due process’ from drawing such classifications...Such claims ‘must ultimately be analyzed’ in terms of substantive, not procedural, due process...Because the question is not properly before us, we express no opinion as to whether Connecticut’s Megan’s Law violates principles of substantive due process.”)


• Ex Post Facto


Smith v. Doe, 123 S.Ct. 1140 (3/5/2003) (J. Kennedy) (Two convicted sex offenders challenged Alaska’s sex offender registry law on the ground that it was applied to them in violation of the Ex Post Facto Clause of the Constitution.  Both men were convicted for sex offenses and released from prison in 1990.  The statute was enacted by the Alaska legislature in 1994, but required even past sex offenders to register.  The Court used a three-pronged analysis: (1) If the registry is punishment, then it cannot be applied retroactively; (2) if not punitive, is it a valid exercise of legislative authority to enact a regulatory scheme that is civil, not criminal in nature; and (3) if it is a putatively civil and nonpunitive scheme, is it nonetheless so punitive as to negate the State’s intention to create a civil scheme.  Using that analysis, the Court concluded: (a) Alaska’s sex offender registry was a civil, not criminal punishment scheme: “The legislature found that ‘sex offenders pose a high risk of reoffending,’ and identified ‘protecting the public from sex offenders’ as the ‘primary governmental interest’ of the law...The legislature further determined that ‘release of certain information about sex offenders to public agencies and the general public will assist in protecting the public safety’...[A]n imposition of restrictive measures on sex offenders adjudged to be dangerous is ‘a legitimate nonpunitive governmental objective and has been historically so regarded’...’Nothing on the face of the statute suggests that the legislature sought to create anything other than a civil...scheme designed to protect the public from harm.”   (b) Moreover, the requirement of registration was not so onerous that it converted a civil scheme to a punitive one even though it made no determination as to current or future levels of dangerousness.  The State could validly act to curb recidivism, deter crime, and for protection of the public: “Our examination of the Act’s effects leads to the determination that respondents cannot show...that the effects of the law negate Alaska’s intention to establish a civil regulatory scheme.  The Act is nonpunitive, and its retroactive application does not violate the Ex Post Facto Clause.”)


Stogner v. California, 123 S.Ct. 2446 (June 26, 2003) (J. Breyer) (In 1993, California enacted a new criminal statute of limitations governing sex-related child abuse crimes.  Under the new law, prosecutions could be brought in cases where the statute of limitations had expired if the victim had reported the abuse to the police, there was independent evidence that clearly and convincingly corroborated the victim, and the prosecution began within one year of the victim’s report.  When the new law was used to revive the prosecution of a man at least 22 years after the old statute of limitations had run, it was challenged as violative of the Ex Post Facto Clause of the Constitution.  After an exhaustive discussion of the history of the Ex Post Facto provision of the Constitution, and an equally exhaustive discussion of that history in Justice Kennedy’s dissent, the Court concluded that the statute was unconstitutional.  “California’s law subjects an individual such as Stogner to prosecution long after the State has, in effect, granted an amnesty, telling him that he is ‘at liberty to return to his country...and that from henceforth he may cease to preserve the proofs of his innocence’...It retroactively withdraws a complete defense to prosecution after it has already attached, and it does so in a manner that allows the State to withdraw this defense at will and with respect to individuals already identified...’Unfair’ seems to us a fair characterization.”)




Scheidler v. NOW, Inc., et al. and Operation Rescue v. NOW, Inc., et al., 537 U.S. 393 (February 26, 2003) (J. Rehnquist) (In 1986, the National Organization for Women, Inc. (NOW), filed suit in federal court against the various anti-abortion groups, alleging that their protest missions amounted to a pattern of extortion and therefore violated the Racketeer Influenced and Corrupt Organizations Act (RICO).  The defendants defended by arguing that an organization must have an economic motive to engage in racketeering acts, and because it did not benefit financially from its protests, it did not violate RICO.  In 1994, the U.S. Supreme Court decided in favor of NOW that “RICO does not require proof that either the racketeering enterprise or the predicate acts of racketeering in 1962(c) [of RICO] were motivated by economic purpose...Predicate acts, such as the alleged extortion here, may not benefit the protesters financially, but they still may drain money from the economy by harming businesses such as the clinics.”  On remand, the trial court awarded money damages to several clinics and issued a nation-wide injunction against the groups’ anti-abortion protests.  On appeal this time, the issue was whether the protesters’ actions constituted extortion.  The Court held that the anti-abortion protesters did not commit extortion within the meaning of the Hobbs Act, because the anti-abortion protesters did not obtain property from the clinics or from the women seeking abortions, an element necessary to extortion, though not necessary to coercion.  Accordingly,  a nationwide injunction was not permitted.)


Constitutional Miscellaneous


• Privacy


Lawrence v. Texas, 123 S.Ct. 2472 (June 26, 2003) (J. Kennedy) (Police were dispatched to a private residence in response to a reported weapons disturbance.  When they entered an apartment where Lawrence  resided, the officers observed Lawrence and another man engaging in a sexual act.  The two were arrested, held in custody over night, and charged and convicted under a state law which prohibited sexual acts between persons of the same sex.  Both men appealed their convictions claiming the Texas statute violated the Equal Protection and Due Process  Clauses of the Constitution.  The Supreme Court narrowed its analysis to the Due Process Clause and the protection it provides to a person’s liberty interest.  Ultimately, the Court overruled its decision in Bowers v. Hardwick, 478 U.S. 186 (1986), which had upheld the constitutionality of a state’s sodomy statute.  The Court reasoned, “The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act.  Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.  The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.  This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.  It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.  When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.  The liberty protected by the Constitution allows homosexual persons the right to make this choice...The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.  The petitioners are entitled to respect for their private lives.  The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.  Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”  Seemingly in answer to critics of the Court’s ruling, the Court also made mention of the issues not involved in this case: “The present case does not involve minors.  It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.  It does not involve public conduct or prostitution.  It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” But, the Court did strike down its Bowers decision and described the breadth of the liberty protection within the Constitution: “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.  In our tradition the State is not omnipresent in the home.  And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence.  Freedom extends beyond spatial bounds.  Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”)


• Equal Protection


Fitzgerald v. Racing Association of Central Iowa, 123 S.Ct. 2156 (June 9, 2003)     (J. Breyer) (Iowa imposed a tax on the slot machine revenues of race tracks that was different from the tax rate imposed on the slot machine revenues of licensed gambling river boats.  A challenge was levied against the tax on the ground that the disparate tax rates violated the Constitution’s Equal Protection Clause.  The Supreme Court rejected the challenge, noting that since the unequal tax rates were not based on race or any other suspect classification, the law was subject only to a rational basis analysis.  The Court described the rational basis test as follows: “The Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.”  The Court then  found that the legislature’s purpose in passing the tax law met the rational basis standard.  The Court even commented that the State had considerable leeway to adopt such a scheme, noting that “Once one realizes that not every provision in a law must share a single objective, one has no difficulty finding the necessary rational support for the 20 percent/36 percent differential here at issue.  That difference, harmful to the racetracks, is helpful to the riverboats, which, as respondents concede, were also facing financial peril...These two characterizations are but opposite sides of the same coin...”)


• Due Process


City of Los Angeles v. David, 123 S.Ct. 1895 (May 19, 2003) (Per Curiam) (David had his car towed for illegal parking and paid $134.50 to recover it.  Because he believed the “NO PARKING” sign was unfairly obscured by untrimmed trees, he asked for a hearing.  He was unsuccessful in overturning his fine and fees.  David then sued, claiming the 27 days he was required to wait from the day his car was towed until his hearing was a violation of due process because it was not prompt enough.  The Court ruled in favor of the City of Los Angeles.  The Court reiterated that the test for process which is due is three-part: “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.”  Applying that test to these facts, the Court held that the loss of use of David’s money and car was not significant and could be made whole by paying interest or some monetary amount.  Moreover, the delay did not compromise the accuracy of the hearing and the city was entitled to some time due to the administrative burdens associated with arranging for and holding hearings on parking tickets.)


Sell v. United States, 123 S.Ct. 2174 (June 16, 2003) (J. Breyer) (Sell was indicted for fraud based on improper billing of dental insurance claims.  He had a history of mental illness over a 15-year period, including episodes where he saw a leopard outside his dental office boarding a bus, a belief that communists had contaminated the gold he used in patients’ fillings, and his belief that God told him that for every FBI person he killed, a soul will be saved.  Following his criminal fraud indictment, he was ordered examined by psychiatrists who determined Sell was then competent to stand trial.  Sell was granted bail.  However, at a subsequent court hearing, Sell’s behavior became out of control and the judge revoked his bail.  A second mental examination was ordered, this time concluding that he was incompetent to stand trial.  The mental health experts recommended that Sell take anti-psychotic drugs to normalize his behavior.  Sell refused and the staff sought the court’s permission to medicate Sell against his will.  The Supreme Court accepted the case to decide “...whether the Constitution permits the Government to administer antipsychotic drugs involuntarily to a mentally ill criminal defendant -- in order to render that defendant competent to stand trial for serious, but nonviolent, crimes.”  The Court reasoned that “...the Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.  This standard will permit involuntary administration of drugs solely for trial competence purposes in certain instances.  But those instances may be rare.”)



Civil Procedure


• Punitive Damages


State Farm Mutual Automobile Insurance Co. v. Campbell, 123 S.Ct. 1513 (April 7, 2003) (J. Kennedy)   (In BMW of North America v. Gore, 517 U.S. 559 (1996) the Supreme Court ruled that in certain instances, an award of punitive damages could be so excessive as to violate due process and “...instructed courts reviewing punitive damages to consider three guideposts: (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.”  Applying those tests to this case, the court concluded “this case is neither close nor difficult.”  In this case, State Farm’s insured was responsible for a car accident that killed one person and left another permanently disabled.  State Farm’s own investigation concluded its insured was at fault, but refused to settle the case.  Even after trial, State Farm refused to pay at the policy limits toward the judgment, and told the insured that it would do nothing to help with the judgment in excess of the policy limits.  The injured persons and the insured joined to sue State Farm for its bad faith dealings.  That suit resulted in a judgment in favor of the plaintiffs in the amount of $2.6 million in compensatory damages and $145 million in punitive damages, which the trial court reduced to $1 million and $25 million respectively.  In finding the award of punitive damages excessive, the Court held, “An application of the Gore guideposts to the facts of this case, especially in light of the substantial compensatory damages awarded (a portion of which contained a punitive element), likely would justify a punitive damages award at or near the amount of compensatory damages.  The punitive award of $145 million, therefore, was neither reasonable nor proportionate to the wrong committed, and it was an irrational and arbitrary deprivation of the property of the defendant.”)


• Jurisdiction


Breuer v. Jim’s Concrete of Brevard, Inc., 123 S.Ct. 1882 (May 19, 2003)     (J. Souter) (Breuer sued his employer in state court for unpaid wages, liquidated damages, prejudgment interest, and attorney’s fees under the Fair Labor Standards Act (FLSA).  The employer removed the case to Federal court under the removal provisions of 28 U.S.C. §1441(a).  Breuer then sought to have the case returned to the state court, and appealed when his attempt was unsuccessful.  The Supreme Court noted that an employee who brings suit against his employer under the FLSA has the option of bringing his action in either state or Federal court.  The Supreme Court ruled in favor of the employer, finding that removal to Federal court is not barred or preempted by the federal statutory provisions governing the FLSA or removal: “The right to maintain an action may indeed be a right to fight to the finish, but removal does nothing to defeat that right; far from concluding a case before final judgment, removal just transfers it from one forum to another.  As between a state and a federal forum, the statute seems to betray an indifference, with its provision merely for maintaining action ‘in any Federal or State Court’.”)


United States v. Bean, 123 S.Ct. 584 (December 12, 2002) (J. Thomas) (Bean was convicted of trying to take 200 rounds of ammunition into Mexico.  Based on that felony conviction, he was prohibited from possession or dealing in firearms and ammunition.  He applied to the Bureau of Alcohol, Tobacco and Firearms (BATF) for relief from his prohibition.  BATF, however, returned his application to him and advised him that it was prohibited by Congress from expending funds to process such applications.  Bean sued, asking the trial court to make the determination in BATF’s stead.  The lower courts ruled in favor of Bean and removed his firearms and ammunition disability.  In reviewing the statute under which the lower courts acted, the Supreme Court noted that courts have jurisdiction to review the BATF’s decision, but only when it denies an application for dissolution of the firearms disability.  Because the BATF did not actually deny the application, the trial court was without jurisdiction.)


Nguyen v. United States, 123 S.Ct. 2130 (June 9, 2003) (J. Stevens) (The defendants were convicted in Guam of federal illegal drug charges and sentenced to lengthy prison terms.  Each appealed his conviction to the Ninth Circuit.  The appellate panel consisted of two judges from the Ninth Circuit and the Chief Judge from the District Court for the Northern Mariana Islands.  The convictions were affirmed by this panel.  The defendants then objected, arguing that since the judge sitting by designation was not an Article III judge with life-time tenure, but instead a judge appointed by the President and confirmed by the Senate for a 10-year term under Article IV of the Constitution, the affirmed conviction must be set aside.  The Supreme Court agreed that the panel did not have the authority to hear the appeal.  The Court noted that the federal statute permitting district court judges to sit by designation must be read strictly, and found that the judges of the courts of the Mariana Islands and Guam were not technically judges of the district courts.)


Employment and Discrimination


• Affirmative Action


Gratz v. Bollinger, 123 S.Ct. 2411 (June 23, 2003) (J. Rehnquist) (A class-action lawsuit was brought against the University of Michigan alleging that its use of race in offering admission to the University was in violation of federal law.  The issue before the Supreme Court was “...whether the University of Michigan’s use of racial preferences in undergraduate admissions violate[s] the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964...or 42 U.S.C. §1981.”    In making its decision on student admissions, the University considered a number of factors, including high school grades, standardized test scores, high school quality, curriculum strength, geography, alumni relationships, leadership, and race.  During the years relevant to this litigation, the University conceded that it had offered admission to virtually every qualified applicant considered African-American, Hispanic, and Native American, because it considered them to be “underrepresented minorities.”   The underrepresented minority applicants were advantaged through the use of a point system that gave such an applicant 20 points based solely upon her/his minority status.  On the merits of the claim, the Court noted that the University’s interest in diversity must “...withstand our strict scrutiny analysis, [and] respondents must demonstrate that the University’s use of race in its current admission program employs ‘narrowly tailored measures that further compelling governmental interests.’”  The Court concluded, “We find that the University’s policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single ‘underrepresented minority’ applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program.”  The Court relied significantly on Justice Powell’s opinion in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), where Justice Powell emphasized “...the importance of considering each particular applicant as an individual, assessing all of the qualities that individual possesses, and in turn, evaluating that individual’s ability to contribute to the unique setting of higher education...[but] did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university’s diversity...Instead, under the approach Justice Powell described, each characteristic of a particular applicant was to be considered in assessing the applicant’s entire application.”  Applying that logic to the instant case, the Court noted that “The current LSA policy does not provide such individualized consideration.  The LSA’s policy automatically distributes 20 points to every single applicant from an ‘underrepresented minority’ group, as defined by the University.  The only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups.  Moreover, unlike Justice Powell’s example, where the race of a ‘particular black applicant’ could be considered without being decisive...the LSA’s automatic distribution of 20 points has the effect of making ‘the factor of race...decisive’ for virtually every minimally qualified underrepresented minority applicant.”  Accordingly, the Supreme Court held, “We conclude, therefore, that because the University’s use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents’ asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment.  We further find that the admissions policy also violates Title VI and 42 U.S.C. §1981.”)


Grutter v. Bollinger, 123 S.Ct. 2325 (June 23, 2003) (J. O’Connor) (The University of Michigan’s Law School had an admissions policy that “...requires admissions officials to evaluate each applicant based on all the information available in the file, including a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School...In reviewing an applicant’s file, admissions officials must consider the applicant’s undergraduate grade point average (GPA) and Law School Admissions Test (LSAT) score because they are important (if imperfect) predictors of academic success in law school...The policy makes clear, however, that even the highest possible score does not guarantee admission to the Law School...Nor does a low score automatically disqualify an applicant...Rather, the policy requires admissions officials to look beyond grades and test scores to other criteria that are important to the Law School’s educational objectives...So-called ‘soft’ variables such as ‘the enthusiasm of recommenders, the quality of the undergraduate institution, the quality of the applicant’s essay, and the areas and difficulty of undergraduate course selection’ are all brought to bear in assessing an ‘applicant’s likely contributions to the intellectual and social life of the institution’...The policy aspires to ‘achieve that diversity which has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts’...The policy does not restrict the types of diversity contributions eligible for ‘substantial weight’ in the admissions process, but instead recognizes ‘many possible bases for diversity admissions’... The policy does, however, reaffirm the Law School’s longstanding commitment to ‘one particular type of diversity,’ that is, ‘racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers’...By enrolling a “ ‘critical mass’ of [underrepresented] minority students,’ the Law School seeks to ‘ensur[e] their ability to make unique contributions to the character of the Law School.’”  This policy resulted in a legal challenge of illegal discrimination when a white applicant was denied admission to the Law School.  The Law School defended its actions citing the need “ ensure that a critical mass of underrepresented minority students would be reached so as to realize the educational benefits of a diverse student body...[It]  stressed, however, that [the Law School]...did not seek to admit any particular number or percentage of underrepresented minority students.”  The Law School defined “critical mass” as “meaningful numbers “ or “meaningful representation,” enough “ encourage[] underrepresented minority students to participate in the classroom and not feel isolated...or like spokespersons for their race.”  The Supreme Court began its analysis be endorsing the strict scrutiny test for discrimination based on racial classifications.  It then held that: “[T]he Law School has a compelling interest in attaining a diverse student body.  The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer.  The Law School’s assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici.  Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university.”  The Court also noted the special context of higher education and its impact on society as a significant reason for permitting race-conscious decisions in a university’s policy: “We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to ‘sustaining our political and cultural heritage’ with a fundamental role in maintaining the fabric of society...Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.  Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation’s leaders...In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.  All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.”   The Supreme Court then analyzed the University’s admission policy to determine whether it was narrowly tailored to address its compelling interest of a diverse student body.  It noted, “To be narrowly tailored, a race-conscious admissions program cannot use a quota system...Universities can, however, consider race or ethnicity more flexibly as a ‘plus’ factor in the context of individualized consideration of each and every applicant...When using race as a ‘plus’ factor in university admissions, a university’s admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.  The importance of this individualized consideration in the context of a race-conscious admissions program is paramount.”  Last, the Court warned that “...race-conscious admissions policies must be limited in time.  This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands.  Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle.   We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point.  The Law School, too, concedes that all ‘race-conscious programs must have reasonable durational limits’...In the context of higher education, the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity...We take the Law School at its word that it would ‘like nothing better than to find a race-neutral admissions formula’ and will terminate its race-conscious admissions program as soon as practicable.”  In sum, the Court ruled “...the Equal Protection Clause [nor federal statutes]...prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”)


• Family and Medical Leave Act


Nevada Department of Human Resources v. Hibbs, 123 S.Ct. 1972 (May 27, 2003) (J. Rehnquist) (Hibbs asked his employer for permission to use his 12 weeks of unpaid leave under the Family and Medical Leave Act (FMLA) to care for his spouse who had been severely injured in an automobile accident.  His request for leave was granted, and he was permitted to use the leave as needed between May and December 1997.  Hibbs did so until August 5, 1997, after which he did not return to work.  In October 1997, the Department informed respondent that he had exhausted his FMLA leave, that no further leave would be granted, and that he must report to work by November 12, 1997; when he failed to do so and was terminated.  Hibbs sued, seeking compensatory damages and equitable relief under the FMLA, but his suit was dismissed on the ground that the state enjoyed sovereign immunity against suit.  The Court said, “Congress may... abrogate such immunity in federal court if it makes its intention to abrogate unmistakably clear in the language of the statute and acts pursuant to a valid exercise of its power under §5 of the Fourteenth Amendment...The clarity of Congress’ intent here is not fairly debatable.  The Act enables employees to seek damages ‘against any employer (including a public agency) in any Federal or State court of competent jurisdiction,’ 29 U.S.C. §2617(a)(2), and Congress has defined ‘public agency’ to include both ‘the government of a State or political subdivision thereof’ and ‘any agency of...a State, or a political subdivision of a State’...This case turns, then, on whether Congress acted within its constitutional authority when it sought to abrogate the States’ immunity for purposes of the FMLA’s family-leave provision.”  The Court reaffirmed its prior holdings that a state’s sovereign immunity cannot be abrogated by Congress’ authority under Article I.  Rather, sovereign immunity can be voided only if Congress acts on its authority under Section 5 of the Fourteenth Amendment and in doing so enacts “ prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct.”  The Court then noted that the FMLA’s purpose was to deter and prevent illegal discrimination based on gender and that there was sufficient historical proof that such problems existed even in state employment.  Thus, the Court held, “[T]he States’ record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of prophylactic §5 legislation.”)


• Miscellaneous


Desert Palace, Inc., dba Caesars Palace Hotel & Casino v. Costa, 123 S.Ct. 2148 (June 9, 2003) (J. Thomas) (An employee sued her employer for sex discrimination.  At trial, two relevant jury instructions were issued.  First, the jury was instructed that the plaintiff had the burden of proving, by a preponderance of the evidence, that she “suffered adverse work conditions” and that her sex “was a motivating factor in any such work conditions imposed upon her.”  Second, the jury was given a mixed-motive instruction that “...if you find that the defendant’s treatment of the plaintiff was motivated by both gender and lawful reasons, you must decide whether the plaintiff is entitled to damages.  The plaintiff is entitled to damages unless the defendant proves by a preponderance of the evidence that the defendant would have treated plaintiff similarly even if the plaintiff’s gender had played no role in the employment decision.”  At issue before the Supreme Court was whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction.  The Court refused to adopt a standard that would have required a heightened level of proof for a plaintiff to receive a mixed-motive jury instruction.  It noted that even in criminal cases -- where the ultimate burden of proof beyond a reasonable doubt is higher than a Title VII plaintiff’s preponderance-of-the-evidence burden -- circumstantial evidence may be  sufficient to carry meet the burden.  Moreover, the statute setting forth the plaintiff’s burden contains no indication of the heightened burden standard.  Accordingly, the Court ruled, “In order to obtain an instruction under §2000e—2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or national origin was a motivating factor for any employment practice.’”)


Black & Decker Disability Plan v. Lord, 123 S.Ct. 1965 (5/27/2003 (J. Ginsburg)  (Black & Decker provided an employee disability plan governed by the Employee Retirement Income Security Act of 1974 (ERISA).  Lord, an employee, submitted medical documentation of his disability.  The plan’s administrator, however, directed Lord to submit to an examination by another physician, who determined that Lord could perform certain sedentary work.  Lord sued, claiming that the employer was bound by the medical opinion of the “primary treating physician.”  The Supreme Court refused to adopt that rule: “But, we hold, courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant’s physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician’s evaluation.”)


Cases Pending Decision

Certiorari Granted


• Criminal Procedure


United States v. Banks, 282 F.3d 699 (9th Cir. 2002) (What constitutes a reasonable waiting period before officers may infer that they have been denied admittance?  The Ninth Circuit decision requires of matrix for police officer decision making, to include, but not limited to,  the following factors:  (a) size of the residence; (b) location of the residence; (c) location of the officers in relation to the main living or sleeping areas of the residence; (d) time of day; (e) nature of the suspected offense; (f) evidence demonstrating the suspect’s guilt; (g) suspect’s prior convictions and, if any, the type of offense for which he was convicted; and (h) any other observations triggering the senses of the officers that reasonably would lead one to believe that immediate entry was necessary.)


United States v. Patane, 304 F.3d 1013 (10th Cir. 2002) (A man under arrest was advised of his Miranda rights, but incompletely.  When the officer told the suspect of his right to remain silent, the suspect said that he knew his rights, and the officer stopped any further Miranda warnings.  The suspect then told police where a gun was located.  The gun was seized by the police and used as evidence.   The lower courts suppressed the gun, finding that it was the fruit of an illegally obtained admission because “...Miranda’s deterrent purpose would not be vindicated meaningfully by suppression only of Patane’s statement.  We hold that the physical fruits of this Miranda violation must be suppressed.”) 


United States v. Fellers, 285 F.3d 721 (8th Cir. 2002) (Police officers went to Fellers’ house to arrest him based on an outstanding indictment.  When the officers were admitted to the house, they said they were there to talk about his involvement in the distribution and use of illegal drugs, but no Miranda warnings were given.   Fellers made damaging admissions.  He was then taken to jail where he was given his Miranda warnings and waived his rights in writing.  He confessed to the police.  The lower court excluded his admissions made in his home, but allowed his post-Miranda jail confession.  “It [would be] an unwarranted extension of Miranda to hold that simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.”)


Maryland v. Pringle, No. 129 September Term, 2001 (Md. 08/27/2002) (“We hold that there was not probable cause to support the arrest of the petitioner in the car when he had not admitted ownership of the drugs. Specifically, we hold that there was not probable cause to arrest petitioner, who was not the owner of the vehicle, when petitioner was merely the front seat passenger and the only evidence supporting the arrest was a sum of money in the closed front glove compartment and drugs that were hidden from view in the armrest in the backseat of the vehicle.”  Moreover, with respect to a subsequent confession, the “...confession was...the product of his illegal arrest and the improper and continuing coercion arising from that illegal arrest that existed up until the point of the confession.  Any element of voluntariness evidenced by petitioner’s waiver of his Miranda rights and subsequent confession does not, ultimately, dissipate the taint of the illegal arrest and the continuing improper coercion.  The temporal proximity of the illegal arrest, along with the police officer’s statement, which effect continued, does not attenuate, via the confession, the taint of the illegal arrest.  In examining the facts and circumstances of this case under the Brown factors, petitioner’s confession at such a proximate time to the illegal arrest, and while the improper coercive influence continued, without more facts does not support attenuation and, therefore, the confession was the fruit of an illegal arrest.”)


Arizona v. Gant,  43 P.3d 188 (Ariz.App.Div.2 2002) (Gant arrived at a residence at which the police were already present.  When Gant arrived, police shined a flashlight into the car.  Gant got out of the car and walked in the direction of the police.  When the police recognized him and called his name, Gant responded that he was that person.  Gant was arrested on an outstanding warrant.  Though he was at least 30 feet from his car, his car was searched incident to Gant’s arrest.  The lower court concluded that the search was improper and that the rule of Belton v. New York was inapplicable in these facts.  [T]he record before us does not support a finding that the police were attempting to initiate contact with Gant while he was in the vehicle either by confronting him or by signaling an intent to confront him, notwithstanding the officer’s shining the flashlight.  Therefore, the search of Gant’s vehicle was outside the scope of Belton.”)


Illinois v. Lidster, No. 2-99-1288 ( App. Ct. Ill. 2d Dist. 03/30/2001) (Police established an “informational roadblock” at the scene of an unsolved hit and run accident.  As Lidster approached the roadblock in his vehicle, he almost hit one of the officers.  When the officers talked to Lidster and suspected he may be driving under the influence of alcohol, he was ordered to the side of the road and given field sobriety tests.  When he failed the tests, he was arrested.   He challenged the roadblock as an unreasonable seizure and sought the suppression of the sobriety test.   The court held that “ is impossible to escape the conclusion that the roadblock’s ostensible purpose was to seek evidence of ‘ordinary criminal wrongdoing.’ [Officer] Vasil testified that the roadblock was set up in the hope of obtaining more information about a driver responsible for killing a bicyclist a week earlier.  The police stopped cars near the site of the accident and at about the same time of day the accident occurred in the hope that someone who left work at that time or otherwise traveled that route regularly might have seen the accident.  The express purpose of the roadblock was to search for evidence of a crime.”  Accordingly, under City of Indianapolis v. Edmond, the roadblock was unconstitutional and evidence found after Lidster’s illegal seizure had to be suppressed.)


Missouri v. Seibert, No. SC84315 (Mo. 12/10/2002) (A woman was arrested in connection with the arson/murder of her sons.  She was arrested at 3:00 A.M. at the hospital, and taken to the police station.  Once at the police station, Seibert was left in a small interview room for 15 to 20 minutes to ‘give her a little time to think about the situation.’  Without issuing a Miranda warning, Officer Hanrahan then questioned her for 30 to 40 minutes.  He squeezed her arm and repeated the same statement, ‘Donald was also to die in his sleep,’ throughout much of the interview.  After she made an admission indicating that she knew Donald was to die in his sleep, she was given a 20-minute break for coffee and a cigarette.  Officer Hanrahan then resumed the interview, this time using a tape recorder, and advised Seibert of her Miranda rights.  Seibert signed a waiver form.  The court held that the officer  improperly obtained Seibert’s first statement because he intentionally violated Miranda when he interrogated her, not giving her an opportunity to waive her rights.  When the officer resumed the interrogation 20 minutes later and gave Seibert her Miranda warning, Seibert waived her rights, it was legally ineffectual since the simple recitation of the Miranda warning does not resurrect the opportunity to obtain a voluntary waiver.  Seibert’s second, recorded statement clearly was the product of the invalid first statement, and it should have been suppressed.  Because of the evidentiary strength of a confession and the contents of Seibert’s second statement, the court’s error in not suppressing the statement was not harmless.)


• Discrimination


Raytheon Company v. Hernandez, 292 F.3d 1038 (9th Cir. 2002) (“[A]n unwritten policy against rehiring former employees who were terminated for any violation of its misconduct rules, although not unlawful on its face, violates the ADA as applied to former drug addicts whose only work-related offense was testing positive because of their addiction.  If Hernandez is in fact no longer using drugs and has been successfully rehabilitated, he may not be denied re-employment simply because of his past record of drug addiction.”)


Jones v. R.R. Donnelley & Sons Company, 305 F.3d 717 (7th Cir. 2002) (What is the appropriate statute of limitations for suits alleging racial discrimination in employment terminations and racially hostile environments under 42 U.S.C. §1981?)


• Civil Liability


Groh v. Ramirez, 283 F.3d 985 (9th Cir. 2002) (An ATF Agent applied for a warrant to search for and seize various items, including an automatic rifle, a rocket launcher, a grenade launcher and grenades.  The affidavit specified both the place to be searched and the items to be seized; however, the actual warrant omitted the items to be seized and instead contained a description of the suspect’s property.   Because the warrant was facially defective, it caused the search to be unreasonable and subjected the officers to potential liability, depending on the role of the officers during the search:  “The officers who lead the team that executes a warrant are responsible for ensuring that they have lawful authority for their actions.  A key aspect of this responsibility is making sure that they have a proper warrant that in fact authorizes the search and seizure they are about to conduct.  The leaders of the expedition may not simply assume that the warrant authorizes the search and seizure.  Rather, they must actually read the warrant and satisfy themselves that they understand its scope and limitations, and that it is not defective in some obvious way...The leaders of the search team must also make sure that a copy of the warrant is available to give to the person whose property is being searched at the commencement of the search, and that such copy has no missing pages or other obvious defects.  Line officers, on the other hand, are required to do much less.  They do not have to actually read or even see the warrant; they may accept the word of their superiors that they have a warrant and that it is valid...The line officers here acted reasonably:  They were told that a warrant had been obtained and learned through an advance briefing what items could be seized...Because they were not required to read the warrant, the line officers conducting this search cannot reasonably have been expected to know that it was defective.”)