Craig E. Ferrell Jr., Deputy Director/General Counsel (Ret.), Houston Police Department, and Assistant Professor of Law and Criminal Justice, Houston Baptist University
The U.S. Supreme Court’s October 2018 through June 2019 term began with only eight of the nine justices seated. Justice Brett Kavanaugh did not get confirmed and sworn in until October 6, 2018, and then, only a few months later, Justice Ruth Bader Ginsburg’s illness kept her off the bench for oral arguments in January. It wasn’t until February 2019 that the court consistently had all nine justices to hear oral arguments. This probably contributed to last session’s unusually slow pace in deciding cases and issuing opinions.
However, every chief should be reminded that, even if the subject of a court case is not technically a criminal justice matter, it can still impact law enforcement officers and staff in very profound ways. Therefore, it is critical for police leaders in the United States to stay abreast of all U.S. Supreme Court decisions—and, sometimes, it is even more important to know what criminal justice and other high-profile matters they have chosen to review. For example, this term is shaping up to be a block-buster term, as the court has already granted review in 50 cases, which is far more than it normally grants this early in the process. Cases on the docket involve very controversial issues such as the Second Amendment, sexual orientation discrimination in employment, the Affordable Care Act, and government aid to parochial schools. Considering that 2020 will include a U.S. presidential election, all law enforcement executives will have to be especially alert and ready to adjust policies and procedures that could be affected by upcoming decisions.
2019–2020 U.S. Supreme Court Cases to Watch
Altitude Express v. Zarda and Bostock v. Clayton County, Georgia
The issue pending before the Supreme Court in these two cases is whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of … sex” encompasses discrimination based on an individual’s sexual orientation. Depending upon the outcome of this case, agencies could see new allegations of discrimination filed, and all supervisors should be ready to address them. Regardless of which way this decision goes, an agency should already have policies in place to deal with allegations of this nature.1
Hernández v. Mesa
On June 7, 2010, in a culvert on the border between the United States and Mexico, U.S. Border Patrol agent Jesus Mesa fatally shot Sergio Hernández, a 15-year-old Mexican boy, allegedly without any justification. At the time of the shooting, Mesa was in the United States, while Hernández was on Mexican soil. In a divided en banc decision, the U.S. Fifth Circuit held that the Hernández family could not assert a claim under the Fourth Amendment because Hernández was a Mexican citizen who was on Mexican territory at the time of the shooting. Hernández’s family appealed this decision to the Supreme Court. The Supreme Court agreed to hear the case and asked the parties to brief the additional question of whether the Hernández family has a right to sue for damages under Bivens v. Six Unknown Fed. Narcotics Agents, a landmark decision that opened the door to civil litigation against police officers throughout the United States for violating someone’s civil rights where no other federal remedy is provided for the violation of a constitutional right, based on the principle that for every wrong, there is or should be a remedy, unless the U.S. Congress has specifically said there is no recovery available.2
The issue pending before the Supreme Court is whether a U.S. Border Patrol agent can be sued for fatally shooting a Mexican teenager across the U.S.-Mexico border as a violation of the Fourth Amendment’s protection against unreasonable searches and seizures.3
Kahler v. Kansas
The issue pending before the Supreme Court in this case is whether the Eighth and Fourteenth Amendments allow a state (Kansas) to abolish the insanity defense. While this will not directly impact many police departments or their investigative processes, all police administrators should still be aware of the final ruling since the public will expect police chiefs to stay abreast of all criminal justice matters and this one will likely be talked about a lot.4
Kansas v. Glover
The issue pending before the Supreme Court is whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle, absent any information to the contrary.
The facts which brought this case to the high court’s attention arose from a Kansas deputy who checked the registration on a pickup truck and, after learning that the truck was registered to Charles Glover Jr. (whose driver’s license had been revoked), decided to pull the truck over to investigate whether the driver had a valid driver’s license. Glover, the registered owner, was the driver and was charged with driving without a license. Glover argued that the evidence from the stop should not be admitted because the deputy lacked the reasonable suspicion required by Fourth Amendment to make a traffic stop. The State of Kansas argued that the deputy did have reasonable suspicion because he knew that the car’s owner did not have a valid driver’s license, and he could reasonably infer that the owner of the car could be the person driving it. The Kansas Supreme Court disagreed, prompting the state to appeal their decision to the U.S. Supreme Court, which agreed to hear the case, with oral arguments scheduled for November 4, 2019. Depending upon how the court rules in this case, many agencies’ procedures for traffic stops could be impacted across the United States.5
Mathena v. Malvo
This case is more commonly known as the “DC Sniper” case. In the fall of 2002, when Lee Malvo was a minor, he took part in a series of fatal shootings in the Washington, DC, metropolitan area—the so-called DC sniper attacks. He committed the murders along with and at the urging of John Allen Muhammad, a man almost 25 years older than him, who was executed by lethal injection on November 10, 2009. Malvo is currently serving multiple life without parole sentences imposed for crimes committed when he was under the age of 18. He filed a federal habeas corpus petition.
The issue pending before the Supreme Court is technical in nature and addresses the extent to which juveniles can receive life sentences without the possibility of parole and whether the subsequent court decisions are retroactive in nature.6
McKinney V. Arizona
The facts of this case start in March 1991, when James McKinney (age 23) and his half-brother, Charles Hedlund, robbed the home of Christine Mertens. During the robbery, McKinney killed Mertens. Two weeks later, the brothers robbed the home of Jim McClain, also killing McClain in the process. In 1993, McKinney was found guilty of first-degree murder in both incidents, and he was sentenced to death.
However, McKinney, whose childhood was marred by severe abuse and extreme poverty, was diagnosed with PTSD “resulting from the horrific childhood he had suffered,” and the psychologist testified that witnessing violence could trigger McKinney’s childhood trauma and produce “diminished capacity.” Should this factor have been considered as mitigating evidence under the precedent in Eddings v. Oklahoma? The trial judge credited the psychologist’s testimony, so under Eddings, the answer now would be yes, but under Arizona law at the time, the judge was prohibited from considering non-statutory mitigating evidence unconnected to the crime. Because McKinney’s PTSD was not connected to the burglaries, the judge could not take it into consideration when sentencing McKinney.
The issues pending before the U.S. Supreme Court are (1) whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted and (2) whether the correction of error under Eddings v. Oklahoma requires resentencing.7
Depending upon the outcome of this case, death penalty sentences across the United States could be reopened for new evidence to be considered necessitating resentencing.
New York State Rifle & Pistol Association Inc. v. City of New York, New York
This will be the first major gun case to be heard by the Supreme Court in nearly 10 years since their two landmark decisions in District of Columbia v. Heller in 2008 and the follow-up case of McDonald v. City of Chicago in 2010, which made the constitutional right to bear arms apply to not only federal authorities but also to local, state, and county jurisdictions.8
The issue pending before the Supreme Court is whether New York City can ban transporting a licensed, locked, and unloaded gun to a home or shooting range outside the city limits and whether that regulation is consistent with the Second Amendment, the Commerce Clause, or the Constitutional Right to Travel. Everyone across the United States will be talking about this case no matter how the court rules.9
Ramos v. Louisiana
In 2015, petitioner Evangelisto Ramos was indicted in Louisiana state court for second-degree murder. At the Ramos trial, 10 of the 12 jurors found him guilty, and, under a provision of Louisiana’s constitution that, at the time, allowed for nonunanimous jury verdicts where at least 10 of the 12 jurors agree in the judgment, that was enough to convict Ramos. He was sentenced to life in prison without parole. Ramos appealed his conviction, arguing that the U.S. Constitution requires jury unanimity to convict. The Louisiana Court of Appeal, relying on a 1972 U.S. Supreme Court decision called Apodaca v. Oregon, rejected Ramos’s claim that Louisiana’s nonunanimity rule is unconstitutional, and when Ramos appealed that decision to the Louisiana Supreme Court, it denied review.10
The issue pending before the Supreme Court is whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict. (Louisiana voters amended the state constitution in 2018 to prohibit nonunanimous verdicts in criminal cases.)11
Shular v. United States
Eddie Shular pleaded guilty to charges of possession of a firearm by a convicted felon and to possession of cocaine and cocaine base. Shular was classified as an armed career criminal because of six previous drug convictions in Florida. He filed a written objection to the classification, arguing his previous drug convictions were not “serious drug offenses” under the Armed Career Criminal Act (ACCA). This is a case to watch since the part of the United States one is in could affect classification.
The issue pending before the Supreme Court is whether the determination of a “serious drug offense” under the ACCA requires the same categorical approach used in the determination of a “violent felony” under the act.12
So much is going on this time of year, and this October promises to be even more challenging than ever for law enforcement. Elections are gearing up all over the United States in what seems to be one of the most intensely divisive presidential elections since John Adams v. Thomas Jefferson, which scholars say is when negative campaigning was first seen in the United States. School has started and football is in full swing. Add to that the challenges of a holiday shopping season that seems to start earlier every year, and it’s clear that October brings heavy workloads to every U.S. police leader. So how can any chief expect to follow the Supreme Court and still manage his or her agency? One of the best ways is to always read the IACP’s monthly Police Chief magazine, specifically including, but not limited to, the Chief’s Counsel column, since it often will be the first-place police leaders will see a summary of key U.S. Supreme Court decisions that affect law enforcement.
1 “Altitude-Express v. Zarda,” SCOTUSblog; “Bostock v. Clayton County, Georgia,” SCOTUSblog.
2 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
3 “Hernandez v. Mesa,” SCOTUSblog.
4 “Kahler v. Kansas,” SCOTUSblog.
5 “Kansas v. Glover,” SCOTUSblog.
6 “Mathena v. Malvo,” SCOTUSblog.
7 “McKinney v. Arizona,” SCOTUSblog; Eddings v. Oklahoma, 455 U.S. 104 (1982).
8 District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010).
9 “New York State Rifle & Pistol Association Inc. v. City of New York, New York,” SCOTUSblog.
10 Apodaca v. Oregon, 406 U.S. 404 (1972).
11 “Ramos v. Louisiana,” SCOTUSblog.
12 “Shular v. United States,” SCOTUSblog.
This article original appeared in IACP Police Chief Magazine: https://www.policechiefmagazine.org/chiefs-counsel-us-supreme-court-sneak-peek/