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Supreme Court Term 2001-2002

Cases of Interest to Law Enforcement


Legal Officers Section

International Association of Chiefs of Police

Annual Conference

Minneapolis, MN - October 6, 2002

Prepared by Jeffrey Higginbotham, Esq.

Spotsylvania, Virginia



I - First Amendment

II - Fourth Amendment

III - Fifth Amendment

IV - Sixth Amendment

V - Eighth Amendment

VI - Civil Litigation

VII - Discrimination Law

VIII - Cases Pending



I - First Amendment


Free Speech


Thomas v. Chicago Park District, 534 U.S. 316 (1/15/2002) (J. Scalia)   (Organizers of events rallying for the legalization of marijuana challenged a city ordinance requiring individuals to obtain a permit before conducting large-scale events in public parks.  The ordinance provides that the Park District may deny a permit on any of 13 specified grounds, must process applications within 28 days, and must explain its reasons for a denial.  An unsuccessful applicant may appeal; first, to the Park District's general superintendent and then to state court. 


The event organizers contended that if the permit was denied, it was the legal duty of the city to begin litigation to seek judicial review of its decision, and that pending judicial review, the status quo had to be maintained.  The Supreme Court disagreed.  The Court reasoned that the ordinance was a content-neutral permit scheme regulating uses of a public forum and need not contain such procedural safeguards.  The Park District's ordinance is not subject-matter censorship but a content-neutral, time, place, and manner regulation for the use of a public forum. 


“None of the grounds for denying a permit has anything to do with the content of speech.  Indeed, the ordinance is not directed at communicative activity as such, but to all activity in a public park...the object of the permit not to exclude communication of a particular content, but to coordinate multiple uses of limited space, to assure preservation of the park facilities, to prevent uses that are dangerous, unlawful, or impermissible under the Park District's rules, and to assure financial accountability for damage caused by the event.”)


Republican Party of Minnesota v. White, 122 S.Ct. 2528 (6/27/2002) (J. Scalia) (A Minnesota state law and its attendant bar association rule that prohibits candidates seeking election as judges from publicly announcing his/her view on “disputed legal or political issues” violates the First Amendment.  The restrictions imposed by the state's Announce Clause “both prohibits speech on the basis of its content and burdens a category of speech that is at the core of our First Amendment freedoms--speech about the qualifications of candidates for public office.”  Because the limitation impact political speech, it is subject to the strict-scrutiny test, and can survive only if it is (1) narrowly tailored, to serve (2) a compelling state interest. 


The state's asserted interests of impartiality of the judiciary and the appearance of impartiality were not sufficient, however, to meet this test.  “[E]lected judges, regardless of whether they have announced any views beforehand--always face the pressure of an electorate who might disagree with their rulings and therefore vote them off the bench.  Surely the judge who frees Timothy McVeigh places his job much more at risk than the judge who (horror of horrors!) reconsiders his previously announced view on a disputed legal issue.”)


II - Fourth Amendment


Search and Seizure


Kirk v. Louisiana, 122 S.Ct. 2458 (6/24/2002) (Per Curiam) (Based on an anonymous tip that drug sales were occurring at the defendant's residence, police conducted a surveillance and observed several apparent drug sales.  One drug buyer was stopped within a block of the defendant's home.  Based on the stop and the proximity to the suspect's residence, police made a warrantless entry to the defendant's home, arrested him, and searched his person finding drugs, and observed contraband in plain view. 


A search warrant was obtained while the defendant was detained.  Because the entry occurred without a warrant and without a determination by the courts that exigent circumstances existed, the search violated the rule of Payton v. New York, 445 U.S. 573 (1980), that requires a warrant before entry into the defendant's residence, absent consent or an emergency.  “[P]olice officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home.”)


United States v. Drayton, 122 S.Ct. 2105 (6/17/2002) (J. Kennedy) (Drayton was a passenger on a bus bound from Florida to Michigan.  While at a stop in Tallahassee, three plain-clothed officers boarded the bus  as part of a drug interdiction program.  One remained kneeling in the driver's seat, one went to and remained in the back of the bus, and the third moved down the aisle asking passengers questions and seeking consent to search.  Drayton and a companion were seated next to each other. 


The officer first asked the companion for consent to search a bag and then the companion's person.  Consent was given, and when the officer felt hard objects under the companion's clothes consistent, in the officer's experience, with packages of drugs or contraband, he was arrested.  The officer then turned to Drayton and asked, “Mind if I check you?”  Drayton did not respond but lifted his hands away from his legs.  The officer patted Drayton's legs and felt hard objects.  Believing Drayton was carrying drugs, he, too, was arrested. 


A subsequent full search disclosed Drayton had two bundles of cocaine taped to his thighs.  The issue before the Court was whether the officers were constitutionally obligated to advise Drayton that he did not have to consent to the search.  The Court reiterated earlier holdings regarding the legality of police interdiction programs involving bus passengers:  “Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen...


Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage--provided they do not induce cooperation by coercive means...If a reasonable person would feel free to terminate the encounter, then he or she has not been seized.”  In this case, the Court concluded that no seizure of the passengers occurred: “The officers gave the passengers no reason to believe that they were required to answer the officers' questions.


When Officer Lang approached respondents, he did not brandish a weapon or make any intimidating movements. He left the aisle free so that respondents could exit. He spoke to passengers one by one and in a polite, quiet voice. Nothing he said would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise terminating the encounter...There was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice.” 


The Supreme Court then rejected the lower court's ruling that police were required to inform passengers of their right not to cooperate.  “The Court has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search...While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.”  As for various indicia of coercion, the Court said, “[We previously] rejected the claim that the defendant was seized when an officer approached him in an airport, showed him his badge, and asked him to answer some questions....


And while neither Lang nor his colleagues were in uniform or visibly armed, those factors should have little weight in the analysis. Officers are often required to wear uniforms and in many circumstances this is cause for assurance, not discomfort. Much the same can be said for wearing sidearms. That most law enforcement officers are armed is a fact well known to the public. The presence of a holstered firearm thus is unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon....


The arrest of one person does not mean that everyone around him has been seized by police. If anything, Brown's arrest should have put Drayton on notice of the consequences of continuing the encounter by answering the officers' questions. Even after arresting Brown, Lang addressed Drayton in a polite manner and provided him with no indication that he was required to answer Lang's questions.”)


United States v. Knights, 534 U.S. 112 (12/10/2001) (J. Rehnquist) (Knights was sentenced to probation for a drug violation.  As a condition of his probation, Knights agreed that he would “[s]ubmit his... person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer.”  Three days after he began his probation, he became a suspect for criminal vandalism against the local utility company totally $1.5 million. 


A detective established surveillance on Knights' truck, and after observing suspicious activity and items, and knowing the search terms of Knights' probation, searched Knights' residence and found evidence of his criminal activity.  The Supreme Court granted certiorari to decide “whether the Fourth Amendment limits searches pursuant to this probation condition to those with a 'probationary' purpose.” 


The Court applied the Reasonableness Clause of the Fourth Amendment and concluded the search was lawful.  “Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens...


The State has a dual concern with a probationer.  On the one hand is the hope that he will successfully complete probation and be integrated back into the community.  On the other is the concern, quite justified, that he will be more likely to engage in criminal conduct than an ordinary member of the community.  The view of the Court of Appeals in this case would require the State to shut its eyes to the latter concern and concentrate only on the former. 


But we hold that the Fourth Amendment does not put the State to such a choice.  Its interest in apprehending violators of the criminal law, thereby protecting potential victims of criminal enterprise, may therefore justifiably focus on probationers in a way that it does not on the ordinary citizen.  We hold that the balance of these considerations requires no more than reasonable suspicion to conduct a search of this probationer's house.  The degree of individualized suspicion required of a search is a determination of when there is a sufficiently high probability that criminal conduct is occurring to make the intrusion on the individual's privacy interest reasonable...


Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term 'probable cause,” a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable...Those interests warrant a lesser than probable-cause standard here.  When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable.”)


United States v. Arvizu, 534 U.S. 266 (1/27/2001) (J. Rehnquist) (A border patrol agent working a checkpoint in a sparsely populated and remote area of Arizona was notified that an electronic sensor had detected a vehicle moving on roads sometimes used by drug or alien smugglers at about the time agents shifted checkpoint areas.  The agent drove to the area and located Arvizu, driving a minivan-a common car for smugglers.  As the minivan approached the agent's car, it slowed markedly, from 50-55 mph to 25-30 mph.  Inside, the agent observed two adults and three children.  The driver sat rigidly and did not look at the agent, as would most people. 


The children in the back seat sat as if their feet were elevated and propped on something on the floor.  As the agent followed the minivan, the children began waving, but without looking back at the agent's car.  When the car turned on the last road that would avert the checkpoint, the border patrol agent radioed for a registration check and determined the car was registered to a person residing in a neighborhood in nearby Douglas, Arizona, known for drug and alien smuggling.  At that point, the agent stopped the minivan and asked for consent to search.  The resulting search discovered 128.5 pounds of marijuana.  


The defendant moved to suppress on the ground that the border patrol agent lacked reasonable suspicion to make the stop.  Although the motion was denied by the District Court, the Court of Appeals agreed with the defendant and held that, as a matter of law, certain facts-including the slowing of the vehicle, the failure of the driver to acknowledge the agent, the children's unusual waving, and the children's knee position-could not be considered in establishing the requisite reasonable suspicion.  In overturning the Court of Appeals, the Supreme Court noted that the concept of reasonable suspicion was not a precise standard, but that the Court had avoided establishing a “neat set of legal rules.” 


Rather, the Court affirmed its totality-of-the-circumstances approach, and rejected the lower court's interpretation that every fact that had an explanation as equally innocent as criminal could not be used in the reasonable suspicion calculus.  Moreover, the Court instructed that appellate courts should review the findings of the trial courts using an “abuse of discretion” standard, and should not undertake a de novo review of the facts.  Accordingly, the Court reversed the Court of Appeals and affirmed the District Court's finding that reasonable suspicion existed to support the border patrol agent's stop of the defendant's vehicle.)


Department of Housing and Urban Development v. Rucker, 122 S.Ct. 1230 (3/26/2002) (J. Rehnquist) (Congress passed the Anti-Drug Abuse Act which provides that each “public housing agency shall utilize leases which...provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy.”   


The law and leases were challenged on the ground that “innocent” tenants could not be evicted.  The Supreme Court disagreed.  It held that “...that 42 U. S. C. §1437d(l)(6) unambiguously requires lease terms that vest local public housing authorities with the discretion to evict tenants for the drug-related activity of household members and guests whether or not the tenant knew, or should have known, about the activity...Congress' decision not to impose any qualification in the statute, combined with its use of the term 'any' to modify 'drug-related criminal activity,' precludes any knowledge requirement.”)


Drug Testing


Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 122 S.Ct. 2559 (6/27/2002) (J. Thomas)  (The school district adopted the Student Activities Drug Testing Policy which requires students to take a drug test before participating in an extracurricular activity, submit to random drug testing while participating in that activity, and agree to be tested at any time upon reasonable suspicion. The urinalysis tests are designed to detect only the use of illegal drugs, including amphetamines, marijuana, cocaine, opiates, and barbiturates, not medical conditions or the presence of authorized prescription medications.  The Policy was challenged as unconstitutional by two students who participated as members of the show choir, the marching band, the Academic Team, and the National Honor Society. 


In deciding whether the Policy violated the Fourth Amendment, the Court noted that: “the Fourth Amendment imposes no irreducible requirement of [individualized] suspicion...[I]n certain limited circumstances, the Government's need to discover such latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting such searches without any measure of individualized suspicion... Therefore, in the context of safety and administrative regulations, a search unsupported by probable cause may be reasonable when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” 


Moreover, the Court stated that “...special needs inhere in the public school context...While schoolchildren do not shed their constitutional rights when they enter the schoolhouse, Fourth Amendment rights are different in public schools than elsewhere; the reasonableness inquiry cannot disregard the schools custodial and tutelary responsibility for children.  In particular, a finding of individualized suspicion may not be necessary when a school conducts drug testing.”  The Court found the drug testing policy was constitutional. 


The students voluntarily participated in the extracurricular activities and, thus, had a reduced expectation of privacy.  In addition, the testing method was relatively unobtrusive, the records were kept confidential and the only consequence for a positive drug test was disqualification from the extracurricular event.  Thus, balanced against the school's interest in preventing drug use among its students, the Policy was lawful under the Fourth Amendment.)


III - Fifth Amendment


Privilege Against Self-Incrimination


McKune v. Lile, 122 S.Ct. 2017 (6/10/2002) (J. Kennedy) (While serving time in prison for a rape and kidnapping charge, Lile was ordered to attend a Sexual Abuse Treatment Program.  “[P]articipating inmates are required to complete and sign an 'Admission of Responsibility' form, in which they discuss and accept responsibility for the crime for which they have been sentenced.


Participating inmates also are required to complete a sexual history form, which details all prior sexual activities, regardless of whether such activities constitute uncharged criminal offenses. A polygraph examination is used to verify the accuracy and completeness of the offender's sexual history.”  Lile was told that if he refused to sign the forms, provide then sexual history and participate, he would lose certain privileges at the prison and be transferred to a four-prisoner cell in the maximum security part of the prison. 


Lile refused to participate on the ground that his forced admission of responsibility, in contrast to his trial testimony, subjected him to a charge of perjury and, therefore, violated his Fifth Amendment privilege against self-incrimination.  The Court disagreed.  Noting that the Fifth Amendment prohibits the compulsion of self-incriminating testimony, the Court found “[t]he consequences in question here--a transfer to another prison where television sets are not placed in each inmate's cell, where exercise facilities are not readily available, and where work and wage opportunities are more limited--are not ones that compel a prisoner to speak about his past crimes despite a desire to remain silent. 


The fact that these consequences are imposed on prisoners, rather than ordinary citizens, moreover, is important in weighing...[the] constitutional claim...The compulsion inquiry must consider the significant restraints already inherent in prison life and the State's own vital interests in rehabilitation goals and procedures within the prison system.


A prison clinical rehabilitation program, which is acknowledged to bear a rational relation to a legitimate penological objective, does not violate the privilege against self-incrimination if the adverse consequences an inmate faces for not participating are related to the program objectives and do not constitute atypical and significant hardships in relation to the ordinary incidents of prison life.”)


Due Process


Dusenbery v. United States, 534 U.S. 161 (1/8/2002) (J. Rehnquist) (Dusenbery pleaded guilty to distribution of cocaine.  Following his imprisonment, the FBI sought to forfeit cash and other items found pursuant to a search warrant following Dusenbery's arrest.  Pursuant to regulations that require notice be sent to parties of interest to the forfeiture, the FBI mailed a certified letters to Dusenbery in prison, his last known address, and the address of his mother in another town. 


In addition, the FBI published notice of its forfeiture action in the appropriate newspaper.  Five years later, Dusenbery filed suit claiming a violation of his due process rights because of inadequate notice of the FBI's intent to forfeit his property.  Testimony established that the certified letter was received at the prison, but there was no proof that Dusenbery actually received the letter.  Nonetheless, the lower courts upheld the forfeiture and the FBI's actions as satisfying Dusenbery's due process rights. 


The Supreme Court reiterated its long-standing precedent established as the test for the adequacy of notice under the Due Process Clause-- is the method used “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” 


According to the Court, “...the Due Process Clause does not require...heroic efforts by the Government; it requires only that the Government's effort be 'reasonably calculated' to apprise a party of the pendency of the action...”  In this case, the Court concluded the FBI had used adequate procedures to satisfy the Due Process Clause.)


United States Postal Service v. Gregory, 534 U.S. 1 (11/13/2001) (J. O'Connor) (A postal employee had been disciplined on three separate occasions, and appealed each through the grievance system available to her under her collective bargaining agreement.  While all three actions were on appeal, a fourth disciplinary action arose.  The Postal Service decided to terminate the employee, relying on the current conduct, as well as the history of past discipline, even though each was still on appeal. 


The Federal Circuit concluded that “...prior disciplinary actions that are subject to ongoing proceedings may not be used to support a penalty's reasonableness.”  The Supreme Court disagreed and reversed.  It ruled that the Merit System Protection Board, which made an initial finding upholding the Postal Service's termination decision, was acting within its authority when it independently reviewed the final disciplinary offense together with the employee's prior disciplinary record.)


United States v. Ruiz, 122 S.Ct. 2450 (6/24/2002) (J. Breyer) (After immigration agents found 30 kilograms of marijuana in Ruiz' luggage, federal prosecutors offered her a fast track plea bargain.  That bargain, standard in that district, asks a defendant to waive indictment, trial, and an appeal.  In return, the Government agrees to recommend to the sentencing judge a two-level departure downward from the otherwise applicable United States Sentencing Guidelines sentence. 


The bargain also requires the government to disclose exculpatory evidence on a continuing basis, but requires the defendant to waive access to “...impeachment information relating to any informants or other witnesses, as well as the right to receive information supporting any affirmative defense the defendant raises if the case goes to trial.”  Because Ruiz would not agree to this waiver, the prosecutors withdrew their bargaining offer.  Following indictment, and without a plea bargain, Ruiz pleaded guilty.  The issue before the Court was “...whether the Fifth and Sixth Amendments require federal prosecutors, before entering into a binding plea agreement with a criminal defendant, to disclose 'impeachment information relating to any informants or other witnesses.'”   


In deciding that there is no obligation under the Constitution, the Court reasoned that “the Constitution insists, among other things, that the defendant enter a guilty plea that is 'voluntary' and that the defendant must make related waivers 'knowing[ly], intelligent[ly], [and] with sufficient awareness of the relevant circumstances...”  Impeachment information, said the Court, might aid the defendant in making a wise decision, but does not affect the voluntary, knowing and intelligent waiver of rights. 


Moreover, “[a]t the same time, a constitutional obligation to provide impeachment information during plea bargaining, prior to entry of a guilty plea, could seriously interfere with the Government's interest in securing those guilty pleas that are factually justified, desired by defendants, and help to secure the efficient administration of justice.”)



IV - Sixth Amendment


Right to Counsel


Alabama v. Shelton, 122 S.Ct. 1764 (5/20/2002) (J. Ginsburg)  (After representing himself at a bench trial, Shelton was convicted of third-degree assault, a class A misdemeanor carrying a maximum punishment of one year imprisonment and a $2000 fine.  He invoked his right to a new trial before a jury in Circuit Court where he again appeared without a lawyer and was again convicted. The court repeatedly warned Shelton about the problems self-representation entailed, but at no time offered him assistance of counsel at state expense.  The Circuit Court sentenced Shelton to serve 30 days in the county prison, but suspended that sentence and placed Shelton on two years unsupervised probation, conditioned on his payment of court costs, a $500 fine, reparations of $25, and restitution in the amount of $516.69. 


In earlier decisions, the Supreme Court ruled the Sixth Amendment right to counsel requires that  “...defense counsel must be appointed in any criminal prosecution, whether classified as petty, misdemeanor, or felony...that actually leads to imprisonment even for a brief period...[but] drew the line at actual imprisonment, holding that counsel need not be appointed when the defendant is fined for the charged crime, but is not sentenced to a term of imprisonment.” 


In this case, the Court held that: “A suspended sentence is a prison term imposed for the offense of conviction.  Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense.  The uncounseled conviction at that point result[s] in imprisonment...[and ends] up in the actual deprivation of a persons liberty...This is precisely what the Sixth Amendment...does not allow.”)


Mickens v. Taylor, 122 S.Ct. 1237 (3/27/2002) (J. Scalia) (Mickens was convicted of murder and sentenced to death.  He sought habeas relief on the grounds that his trial counsel was also the counsel of record representing the victim on juvenile charges pending at the time of Mickens' victim's death. 


The attorney did not disclose this fact to Mickens.  “The question presented in this case is what a defendant must show in order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known.”  The Court noted that the general rule requires a defendant to “...demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  But, it also noted that exceptions to that rule exist when the magnitude of the circumstances require. 


The Court concluded, however, that in cases alleging counsel's conflict of interest, a “...proposed rule of automatic reversal when there existed a conflict that did not affect counsel's performance, but the trial judge failed to make the... mandated inquiry, makes little policy sense.  As discussed, the rule applied when the trial judge is not aware of the conflict (and thus not obligated to inquire) is that prejudice will be presumed only if the conflict has significantly affected counsel's performance--thereby rendering the verdict unreliable, even though ...prejudice cannot be shown.')


Right to Jury Trial


Ring v. Arizona, 122 S.Ct. 2428 (6/24/2002) (J. Ginsburg) (Ring and others were involved in the robbery of an armored truck that also resulted in the killing of one of the armored car drivers.  A tip led the police to Ring as a suspect and after determining that he and another suspect made large cash purchases shortly after the robbery, the police wiretapped the suspects' telephones.  Incriminating telephone conversations were intercepted.  Finally, a search of Ring's house discovered a large amount of cash for which Ring provided inadequate and false explanation. 


The jury convicted ring only of felony murder, finding the murder occurred during the commission of a felony, but did not convict Ring of first degree murder.  At the sentencing hearing before the trial judge, additional facts were adduced that established the aggravating factors warranting the death penalty under Arizona law. 


Ring was subsequently sentenced to death and appealed on the ground that the imposition of the death penalty by the judge violated his constitutional rights.  The Supreme Court held that the Sixth Amendment guarantee of a jury trial invalidates a state's death penalty process if the judge, not the jury, finds facts which warrant imposition of the death penalty.) 


V - Eighth Amendment


Cruel and Unusual Punishment


Hope v. Pelzer, 122 S.Ct. 2508 (6//27/2002) (J. Stevens) (A prison inmate who was handcuffed to a “hitching post” on two occasions for disciplinary reasons suffered cruel and unusual punishment under the Eighth Amendment.  On the first occasion, the prisoner was handcuffed for two hours on the post, and was offered drinking water and a bathroom break every 15 minutes.  Because he was only slightly taller than the hitching post, his arms were above shoulder height and grew tired from being handcuffed so high.  Whenever he tried moving his arms to improve his circulation, the handcuffs cut into his wrists, causing pain and discomfort. 


On the second occasion, the prisoner was punished more severely.  He was forced to take off his shirt, and he remained shirtless all day while the sun burned his skin.  He remained attached to the post for approximately seven hours. During this 7-hour period, he was given water only once or twice and was given no bathroom breaks.  At one point, a guard taunted the prisoner about his thirst, giving water to a dog then intentionally spilling it in front of the prisoner.  The Court made two important rulings. 


First, the conduct alleged by the prisoner constituted cruel and unusual punishment:  (1) “As the facts are alleged by Hope, the Eighth Amendment violation is obvious. Any safety concerns had long since abated by the time petitioner was handcuffed to the hitching post because Hope had already been subdued, handcuffed, placed in leg irons, and transported back to the prison. He was separated from his work squad and not given the opportunity to return to work. Despite the clear lack of an emergency situation, the respondents knowingly subjected him to a substantial risk of physical harm, to unnecessary pain caused by the handcuffs and the restricted position of confinement for a 7-hour period, to unnecessary exposure to the heat of the sun, to prolonged thirst and taunting, and to a deprivation of bathroom breaks that created a risk of particular discomfort and humiliation. 


The use of the hitching post under these circumstances violated the basic concept underlying the Eighth Amendment[, which] is nothing less than the dignity of man...This punitive treatment amounts to gratuitous infliction of  'wanton and unnecessary' pain that our precedent clearly prohibits.”  (2) Public officials are entitled to qualified immunity if their actions do not violate clearly established law.  For a law to be clearly established, however, the facts of the instant case and those relied upon by the court need not be “materially similar.”   “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.  Indeed....we [previously] expressly rejected a requirement that previous cases be 'fundamentally similar.'” 


Although earlier cases involving 'fundamentally similar' facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.”  Much like the analysis afforded criminal defendants who challenge statutes based on vagueness, the Court indicated that legal test was whether the accused had “fair warning” that his conduct was unconstitutional. 


The Court concluded that the “wanton treatment was not done of necessity, but as punishment for prior conduct. Even if there might once have been a question regarding the constitutionality of this practice, the Eleventh Circuit well as the DOJ report condemning the practice, put a reasonable officer on notice that the use of the hitching post under the circumstances alleged by Hope was unlawful.”  Accordingly, no defense of qualified immunity was available.)


VI - Civil Litigation

Prison Litigation


Porter v. Nussle,  534 U.S. 516 (2/26/2002) (J. Ginsburg) (Under the Prison Litigation Reform Act of 1994 (PLRA), a prison inmate is required to exhaust any administrative remedy before filing a civil action under 42 U.S.C. §1983 challenging the prison conditions.  In this case, the inmate did not exhaust available administrative remedies, but filed directly in federal court alleging he was beaten by guards in violation of the Eighth Amendment.  The lower court concluded that the PLRA does not apply to individual excessive force complaints.  The Supreme Court disagreed and held that “...the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.”)


Bivens Liability


Correctional Services Corporation v. Malesko, 534 U.S. 61 (11/27/2001) (J. Rehnquist) (Malesko sued the operators of a half-way house to which he was assigned as part of his sentence for securities fraud violations.  Correctional Services Corporation (CSC) operated the half-way house under a contract with the Federal Bureau of Prisons.  Under a CSC rule, inmates who lived below the sixth floor of its facility were forbidden to use the elevator.  Because of a preexisting heart condition, Malesko was exempted.  An employee of CSC, however, did not know of the exemption and refused to allow Malesko to use the elevator.  The climb up the stairs caused Malesko to collapse. 


He later filed the suit, seeking to extend Bivens liability to CSC.  The Supreme Court reject the overture to extend liability to agencies acting under color of law.  “In 30 years of Bivens jurisprudence we have extended its holding only twice, to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer's unconstitutional conduct. 


Where such circumstances are not present, we have consistently rejected invitations to extend Bivens, often for reasons that foreclose its extension here...The purpose of Bivens is to deter individual federal officers from committing constitutional violations...the threat of litigation and liability will adequately deter federal officers for Bivens purposes no matter that they may enjoy qualified immunity...are indemnified by the employing agency or entity...or are acting pursuant to an entity's policy...[T]he threat of suit against an individual's employer was not the kind of deterrence contemplated by Bivens.”  Note:  “[T]he question whether a Bivens action might lie against a private individual is not presented here.”)


VII - Discrimination Law


Americans with Disabilities Act


Barnes v. Gorman, 122 S.Ct. 2097 (6/17/2002) (J. Scalia) (Gorman, a paraplegic confined to a wheelchair, lacked voluntary control over his lower torso, including his bladder, and wears a catheter attached to a urine bag around his waist.  Gorman  was arrested for trespass after fighting with a bouncer at a Kansas City, Missouri, nightclub.  While waiting for a police van to transport him to the station, he was denied permission to use a restroom to empty his urine bag. When the van arrived, it was not equipped to receive Gorman's wheelchair.


Over Gorman's objection, the officers removed him from his wheelchair and used a seatbelt and his own belt to strap him to a narrow bench in the rear of the van. During the ride to the police station, Gorman released his seatbelt, fearing it placed excessive pressure on his urine bag. Eventually, the other belt came loose and Gorman fell to the floor, rupturing his urine bag and injuring his shoulder and back. The driver, the only officer in the van, finding it impossible to lift respondent, fastened him to a support for the remainder of the trip. Upon arriving at the station, respondent was booked, processed, and released; later he was convicted of misdemeanor trespass. After these events, respondent suffered serious medical problems including a bladder infection, serious lower back pain, and uncontrollable spasms in his paralyzed areas that left him unable to work full time. 


Gorman sued under the Americans with Disabilities Act, alleging that the city failed to maintain appropriate policies for the arrest and transportation of persons with spinal cord injuries.  A jury found in favor of Gorman, awarding $1 million in compensatory damages and $1.2 million in punitive damages.  The Court overturned the punitive damage award, concluding that “...the well settled rule that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done,” did not apply. 


Rather, the Court reasoned that “[w]hen a federal-funds recipient violates conditions of Spending Clause legislation, the wrong done is the failure to provide what the contractual obligation requires; and that wrong is made good when the recipient compensates the Federal Government or a third-party beneficiary (as in this case) for the loss caused by that failure...The obvious way to do this is to put private parties in as good a position as they would have been had the contract been performed.   Punitive damages are not compensatory, and are therefore not embraced within the rule...” that generally gives courts wide latitude in crafting a remedy under a federal statute.) 


Chevron U. S. A. Inc., v. Echazabal, 122 S.Ct. 2045 (6/10/2002) (J. Souter) (Echazabal worked for a contractor doing business with Chevron.  When he was diagnosed with a liver ailment, Chevron asked the contractor to move him away from the refinery based on medical advice that continued exposure to toxins would further damage his liver.  Instead, the contractor terminated Echazabal.  He sued, claiming that his dismissal violated the Americans with Disabilities Act.  At issue before the Court was the EEOC regulation which allows an employer to refuse to hire an individual with a disability if employment would pose a direct threat to the health or safety of the individual or others. 


The text of the ADA speaks only to direct threats to the health or safety of others; accordingly, Echazabal argued that the canon of construction--expressio unius exclusio alterius (expressing one item of [an] associated group or series excludes another left unmentioned)-- prevented the employer from discharging him.  The Court disagreed, however, and found the EEOC's regulation to be within its rulemaking authority.  Accordingly, employers may engage in otherwise prohibited discrimination when necessary to prevent direct threats to the health and safety of workers and others.)


U.S. Airways, Inc. v. Barnett, 122 S.Ct. 1516 (4/29/2002) (J. Breyer) (Barnett, a cargo handler for U.S. Airways, suffered a back injury and transferred to a mail room position.  When a permanent mail room position opened, Barnett asked for the position as a reasonable accommodation for his disability.  U.S. Airways declined to allow Barnett to hold the position based on the fact that its union contract required it to allow more senior union members to bid on the position.  Barnett sued under the Americans with Disabilities Act.  The Court was faced with deciding whether the ADA's duty of reasonable accommodation was superior to the provisions of a collective bargaining agreement. 


The Court rejected the employer's argument that the ADA does not allow for preferences for individuals with a disability, but rather only requires fair and equal opportunities.  “The simple fact that an accommodation would provide a 'preference' in the sense that it would permit the worker with a disability to violate a rule that others must obey--cannot, in and of itself, automatically show that the accommodation is not 'reasonable.'”


The Court also described the burdens of proof in cases involving a request for reasonable accommodation: “[A] plaintiff/employee (to defeat a defendant/employer's motion for summary judgment) need only show that an 'accommodation' seems reasonable on its face, i.e., ordinarily or in the run of cases...Once the plaintiff has made this showing, the defendant/employer then must show special (typically case specific) circumstances that demonstrate undue hardship in the particular circumstances.”  The Court then concluded that “The statute does not require proof on a case-by-case basis that a seniority system should prevail. 


That is because it would not be reasonable in the run of cases that the assignment in question trump the rules of a seniority system. To the contrary, it will ordinarily be unreasonable for the assignment to prevail.”   The ruling did leave the door slightly ajar, because “[t]he plaintiff (here the employee) nonetheless remains free to show that special circumstances warrant a finding that, despite the presence of a seniority system (which the ADA may not trump in the run of cases), the requested 'accommodation' is 'reasonable' on the particular facts.”)


Toyota Motor Manufacturing, Kentucky, Inc v. Williams, 534 U.S. 184 (1/08/2002) (J.  O'Connor)  (A factory worker claiming she was disabled because of her carpal tunnel syndrome and other related impairments, sued her former employer for failing to provide her with a reasonable accommodation as required by the ADA.  The Court held “...that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives.


The impairment's impact must also be permanent or long-term...An individualized assessment of the effect of an impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person. Carpal tunnel syndrome, one of respondent's impairments, is just such a condition. While cases of severe carpal tunnel syndrome are characterized by muscle atrophy and extreme sensory deficits, mild cases generally do not have either of these effects and create only intermittent symptoms of numbness and tingling...


When addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with her specific job...Even more critically, the manual tasks unique to any particular job are not necessarily important parts of most people's lives.  As a result, occupation-specific tasks may have only limited relevance to the manual task inquiry. 


In this case, 'repetitive work with hands and arms extended at or above shoulder levels for extended periods of time' not an important part of most people's daily lives.  The [lower] court, therefore, should not have considered respondent's inability to do such manual work in her specialized assembly line job as sufficient proof that she was substantially limited in performing manual tasks.”)


Age Discrimination in Employment Act


Raygor v. Regents of the University of Minnesota,  534 U.S. 533 (2/27/2002) (J.  O'Connor) (Two university professors claimed to be victims of age discrimination and filed suit in federal court under the Age Discrimination in Employment Act (ADEA).  The also asserted related state claims.  When their ADEA suit was dismissed on Eleventh Amendment grounds, their state claims were refiled in state court, but not until after the normal statute of limitations had run.  The issue before the Supreme Court was whether the failed federal claim acted to toll the statute of limitations on the state claims as provided by 28 U.S.C. §1367. 


The Court held that it did not in these circumstances.  “We hold that respondent never consented to suit in federal court on petitioners' state law claims and that 1367(d) does not toll the period of limitations for state law claims asserted against nonconsenting state defendants that are dismissed on Eleventh Amendment grounds. Therefore, §1367(d) did not operate to toll the period of limitations for petitioners' claims...”)


Family and Medical Leave Act


Ragsdale v. Wolverine World Wide, Inc., 122 S.Ct. 1155 (3/19/2002) (J. Kennedy)  (Plaintiff was diagnosed with cancer and was unable to work during her medical treatment and recovery.  Her employer allowed her to be absent from work for 30 weeks, but did not tell her that the time included the leave she was entitled to under the Family and Medical Leave Act.  Because the employer failed to notify Ragsdale that her FMLA time was running, the lower court concluded the Department of Labor regulation, at 29 C.F.R.  §825.700(a), that provides, “If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement,” controlled and, Ragsdale was entitled to twelve weeks or additional leave. 


The Supreme Court reversed.  “The challenged regulation is invalid because it alters the FMLA's cause of action in a fundamental way:  It relieves employees of the burden of proving any real impairment of their rights and resulting prejudice...By mandating these results absent a showing of consequential harm, the regulation worked an end run around important limitations of the statute's remedial scheme.”)


Title VII


National Railroad Passenger Corporation v. Morgan, 122 S.Ct. 2061 (6/10/2002) (J. Thomas) (Plaintiff filed a claim under Title VII, alleging discrete acts of discrimination and racial harassment.  The lower courts concluded that the employer could not be held liable for acts of discrimination that occurred outside the statutory statute of limitations.  Under Title VII, in a State that has an entity with the authority to grant or seek relief with respect to the alleged unlawful practice, an employee who initially files a grievance with that agency must file the charge with the EEOC within 300 days of the employment practice.  In all other States, the charge must be filed within 180 days.  A claim is time barred if it is not filed within these time limits. 


The issue before the Supreme Court was “...whether, and under what circumstances, a Title VII plaintiff may file suit on events that fall outside th[e] statutory time period.”  The crucible, according to the Court, is the statute's phrase “after the alleged unlawful employment practice occurred.”  That phrase requires a different application depending on the nature of the alleged discrimination and produced two holdings.  First, “[a] discrete retaliatory or discriminatory act 'occurred' on the day that it 'happened.'  A party, therefore, must file a charge within either 180 or 300 days of the date of the act or lose the ability to recover for it.”  Second, “[h]ostile environment claims are different in kind from discrete acts.  Their very nature involves repeated conduct...The “unlawful employment practice” therefore cannot be said to occur on any particular day...


Given, therefore, that the incidents comprising a hostile work environment are part of one unlawful employment practice, the employer may be liable for all acts that are part of this single claim.  In order for the charge to be timely, the employee need only file a charge within 180 or 300 days of any act that is part of the hostile work environment.”  Recognizing that under some circumstances, an employer could be significantly disadvantaged in defending against allegations of hostile environment discrimination that encompassed acts well in the past, the Court noted that “ employer may raise a laches defense, which bars a plaintiff from maintaining a suit if he unreasonably delays in filing a suit and as a result harms the defendant.  This defense 'requires proof of  (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.'”)


Edelman v. Lynchburg College, 122 S.Ct. 1145 (3/26/2002) (J. Souter) (When Edelman was denied tenure, he alleged gender discrimination.  His complaint to the EEOC was timely filed, but his oath verification of his complaint did not occur until after the time to file had passed.  The issue before the Court was whether EEOC's regulations permitting an out-of-time verification to an otherwise timely complaint was valid.  The Court ruled in favor of the EEOC and Edelman. 


“The point of the time limitation is to encourage a potential charging party to raise a discrimination claim before it gets stale, for the sake of a reliable result and a speedy end to any illegal practice that proves out.  The verification requirement has the different object of protecting employers from the disruption and expense of responding to a claim unless a complainant is serious enough and sure enough to support it by oath subject to liability for perjury.  This object, however, demands an oath only by the time the employer is obliged to respond to the charge, not at the time an employee files it with the EEOC.”)


Swierkiewicz v. Sorema,  534 U.S. 506 (2/26/2002) (J. Thomas) (Plaintiff, a 53-year old native of Hungary was demoted from his executive position with a reinsurance company in favor of a younger man of French descent.  The president of the company was also from France.  When plaintiff pushed his grievances, he was given the choice of resigning or being fired.  He refused to resign and was discharged.  He filed suit claiming illegal discrimination based on his age and national origin.  His claims were dismissed in the lower courts for failure to allege sufficient facts to establish a prima facie case upon which an inference of discrimination could be made. 


The Second Circuit Court of Appeals concluded that plaintiff was required to allege in his complaint “...(1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination.”  The Supreme Court rejected this reading of McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), finding that case established the evidentiary standard for plaintiffs, but not a pleading standard: “[A]n employment discrimination complaint need not include such facts and instead must contain only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'”)


Equal Employment Opportunity Commission v. Waffle House, Inc., 534 U.S. 279 (1/15/2002) (J. Stevens) (As a condition of employment, all Waffle House employees are required to agree in writing to submit all employment disputes to arbitration.  Sixteen days after beginning work as a grill cook, an employee suffered a seizure and was thereafter terminated.  He did not file an arbitration complaint, but rather filed a complaint of discrimination with the EEOC alleging a violation of the Americans with Disabilities Act.  After unsuccessful efforts at conciliation, EEOC filed an enforcement action in federal court. 


Waffle House sought dismissal of that suit based on the arbitration agreement signed by the employee.  The issue before the Court was “...whether an agreement between an employer and an employee to arbitrate employment-related disputes bars the Equal Employment Opportunity Commission (EEOC) from pursuing victim-specific judicial relief, such as backpay, reinstatement, and damages, in an enforcement action alleging that the employer has violated Title I of the Americans with Disabilities Act of 1990 (ADA)...” 


The Court held that the arbitration agreement did not strip the EEOC of its authority to proceed.  “[O]nce a charge is filed, the exact opposite is true under the statute--the EEOC is in command of the process. The EEOC has exclusive jurisdiction over the claim for 180 days.  During that time, the employee must obtain a right-to-sue letter from the agency before prosecuting the claim.  If, however, the EEOC files suit on its own, the employee has no independent cause of action, although the employee may intervene in the EEOC's suit...


In fact, the EEOC takes the position that it may pursue a claim on the employee's behalf even after the employee has disavowed any desire to seek relief...The statute clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake.  Absent textual support for a contrary view, it is the public agency's province--not that of the court--to determine whether public resources should be committed to the recovery of victim-specific relief.  And if the agency makes that determination, the statutory text unambiguously authorizes it to proceed in a judicial forum.” 


Note: “It is an open question whether a settlement or arbitration judgment would affect the validity of the EEOC's claim or the character of relief the EEOC may seek.”)


VIII - Cases Pending on Grants of Certiorari


First Amendment


Virginia v. Black, 553 S.E.2d 738 (Va. 2001) 

(Is the Virginia statute that bans cross-burning "with the intent of intimidating any person or group of persons" overbroad and in violation of the 1st Amendment, even though the statute reaches all such intimidation and is not limited to any racial, religious, or other content-focused category?)


Criminal Laws


Scheidler, et al. v. National Organization for Women, Inc., et al,

Operation Rescue v. National Organization for Women, Inc., et al.

267 F.3d 687 (7th Cir. 2001)


(Is injunctive relief available in a private civil action for treble damages brought under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1964(c)?  Whether the Hobbs Act, which makes it a crime to obstruct, delay, or affect interstate commerce “by robbery or extortion” criminalizes the activities of political protesters who engage in sit-ins and demonstrations that obstruct the public's access to a business' premises and interfere with the freedom of putative customers to obtain services offered there?)


Lockyer  v. Andrade, 270 F.3d 743 (9th Cir. 2001)

Ewing v. California, (unpublished) 2002 WL 480176 (Cal. Ct. App. 2nd Dist. (2001)


(Does California's three-strikes law, providing for a twenty-five years to life prison term for a third strike conviction, violate the Eighth Amendment's prohibition against cruel and unusual punishment when applied to a defendant whose third strike conviction is for petty theft with a prior theft-related conviction?)


U.S. v. Recio, 270 F.3d 845, (9th Cir. 2001)


(Whether a conspiracy ends as a matter of law when the government frustrates its objective.  That is, when police seize drugs that are the subject of the conspiracy, is it legally possible for the conspiracy to continue?)


Civil Liability


Chavez v. Martinez, 270 F.3d 852 (9th Cir. 2001)


Facts:  During an investigation of drug activity, officers saw Martinez riding a bicycle.  They ordered him off and conducted frisk, and discovered a knife in his belt.  As the officers then attempted to arrest him, a struggled ensued.  When the suspect got one of the officer's weapon, the second officer shot Martinez in the face, spine, leg and knee.  Chavez, the patrol supervisor, arrived on the scene and subsequently traveled to the hospital with Martinez.  In the emergency room, Chavez repeatedly tried to interrogate Martinez to get his version of the events. 


Martinez, who was mostly unresponsive, objected because he thought he was dying and wanted the medical treatment being administered.  The lower court concluded that “[e]ven though Martinez's statements were not used against him in a criminal proceeding, Chavez's coercive questioning violated Martinez's Fifth Amendment rights...” and that the law was clearly established.  Thus, Chavez' claim of qualified immunity was denied.


(Was the Ninth Circuit correct in characterizing the Supreme Court's Fifth Amendment discussion in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), as non-binding dicta when it rejected the notion that a Fifth Amendment violation only occurs when the defendant's rights are violated at trial? 


Does a violation of the Fifth Amendment, potentially resulting in an award of civil damages, occur at the time of the purported coercive interview or only when and if the state introduces the constitutionally violative statement in a criminal proceeding?  Was the Ninth Circuit correct in holding that the conduct of the investigating officer in this case was so offensive as to deny him qualified immunity? )


Due Process/Ex Post Facto


Connecticut Dept. of Public Safety v. Doe, John, et al., 271 F.3d 38 (2d Cir. 2001)


(Does the Due Process Clause of the Fourteenth Amendment prevent a State from listing convicted sex offenders in a publicly disseminated registry without first affording such offenders individualized hearings on their current dangerousness?)


Smith, et al. v. Doe, 259 F.3d 979 (9th Cir. 2001)


(Does Alaska's Sex Offender Registration Act, on its face or as implemented, impose punishment for the purposes of the Constitution's ex post facto clause, as applied to sex offenders whose crimes were committed before the statute's enactment.)




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