Highlights of This Issue

United States Supreme Court Action

Use of a Thermal Imaging Device to Detect Heat Emanating From a House Is a Fourth Amendment Search.

In a 5-4 decision and an opinion written by Justice Scalia, the U.S. Supreme Court reversed, holding that where, as here, the Government uses a device that is not in general public use, to explore the details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment "search," and is presumptively unreasonable without a warrant. The Court first noted that a "search" does not occur--even when its object is a house explicitly protected by the Fourth Amendment--unless the individual has manifested a subjective expectation of privacy in the searched object, and society is willing to recognize that the expectation is reasonable.

It then said that obtaining by sense-enhancing technology any information regarding a home's interior that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search--at least where (as here) the technology in question is not in general public use. It said that this rule would assure the preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.

Using this criterion, the Court held the information obtained by the thermal imager in this case was the product of a search. The Court rejected the Government's argument that the thermal imaging be upheld because it detected only heat radiating from the home's external surface, calling this a "mechanical" interpretation of the Fourth Amendment. It also rejected the Government's contention that the thermal imaging was constitutional because it did not detect "intimate details," saying that such an approach would be wrong in principle because, in the sanctity of the home, all details are intimate details.

The Court concluded that since the imaging in this case was an unlawful search, the case had to be remanded to determine whether, without the evidence it provided, the search warrant was supported by probable cause--and if not, whether there was any other basis for supporting the admission of the evidence.

Justice Stevens filed a dissenting opinion, in which Chief Justice Rehnquist and Justices O'Connor and Kennedy joined.

Plaintiff filed a civil rights action against a military policeman, alleging, among other things, that defendant had violated his Fourth Amendment rights by using excessive force in arresting him while he protested during Vice President Gore's speech at a San Francisco army base. The district court declined to grant defendant summary judgment on qualified immunity grounds and this was affirmed by the Ninth Circuit Court of Appeals, 194 F.3d 962, on the theory that a pretrial motion to dismiss on qualified immunity grounds and the merits of a Fourth Amendment excessive force claim are identical, since both concern the objective reasonableness of the officer's conduct in light of the circumstances the officer faced at the scene. The Ninth Circuit concluded that summary judgment based on qualified immunity was not appropriate.

On appeal the Supreme Court reversed in an opinion written by Justice Kennedy. The Court held that a pre-trial qualified immunity ruling requires an analysis not susceptible of fusion with the question whether unreasonable force was used in making the arrest. A qualified immunity defense must be considered in proper sequence. A ruling should be made early in the proceedings so that the cost and expenses of trial are avoided where the defense is dispositive. Such immunity is an entitlement not to stand trial, not merely a defense from liability. The initial inquiry is whether a constitutional right would have been violated on the facts alleged, for if no right would have been violated, there is no need for further inquiry into immunity. However, if a violation could be made out on a favorable view of the parties' submissions on a motion to dismiss, the next sequential step is whether the right was clearly established. This inquiry must be undertaken in light of the case's specific context, not as a broad general proposition. The relevant, dispositive inquiry is whether it would be clear to a reasonable officer that the conduct was unlawful in the situation he confronted.

The Court said the approach of the Ninth Circuit to deny summary judgment if a material issue of fact remains on the excessive force claim could undermine the goal of qualified immunity to avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. If the law does not put the officer on notice that his conduct would be clearly unlawful, pre-trial summary judgment based on qualified immunity is appropriate.

It said that if an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, the officer would be justified in using more force than in fact was needed. The qualified immunity inquiry at the motion stage of a case, on the other hand, is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. An officer might correctly perceive all of the relevant facts, but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances.

The Court went on to rule that defendant was entitled to qualified immunity. Assuming that a constitutional violation occurred under the facts alleged, the question was whether this general prohibition was the source for clearly established law that was violated in the circumstances. In the circumstances presented to defendant, which included the duty to protect the Vice President's safety and security from persons unknown in number, there was no clearly established rule prohibiting him from acting as he did. This conclusion was confirmed by the uncontested fact that the force used--dragging plaintiff from the area and shoving him while placing him into a van--was not excessive since plaintiff suffered no injury as a consequence of the officer's conduct.

Justices Ginsburg, Stevens and Breyer concurred in the judgment and Justice Souter dissented.

Arrest, Search and Seizure

Arrest: What Constitutes; Excessive Force in Making a Vehicle Stop

State. Where police officers pulled defendants over, ordered them at gunpoint out of a pickup truck and onto the ground and handcuffed them, this was a Fourth Amendment arrest, requiring probable cause, rather than an investigative stop under Terry v. Ohio, which could be supported by reasonable suspicion. The court noted that there were no specific facts or circumstances indicating that defendants posed a danger that would cause a reasonable officer to resort to the force used, there was no evidence that either defendant was carrying a weapon or that they would use a weapon, and there was no evidence that defendants acted furtively or sought to evade the police officers.

"We are not persuaded by the People's argument that the force used by the police in this case was a reasonable precaution for the safety of the officers because the stop occurred in an isolated area where radio contact was difficult, and the officer's training indicated that persons who cultivate marijuana may be armed and dangerous. This information fails to communicate any specific facts or circumstances suggesting that either defendant would fail to cooperate with the request to stop or would be dangerous. Standing alone this general information does not justify the degree of force employed here."

Two justices dissented.

Federal. This court held, in dealing with a pretextual traffic stop, that although a traffic stop for careless driving may have been pretextual, the stop did not violate the Fourth Amendment, since the officer had probable cause to believe that a traffic violation had occurred based on his observation of a car crossing the divider line on the highway at least twice.

The court said a traffic stop, even if pretextual, does not violate the Fourth Amendment if an officer making the stop has probable cause to believe that a traffic violation has occurred. Only if it is clear that what the police observed did not constitute a violation of a traffic law for which the officer wrote a citation, would there then be no "objective basis" for the stop, and the stop would be illegal.

"The traffic stop may have been pretextual. Officer Sander's own testimony does not conceal the fact that at the time he suspected smuggling. Although he was not carrying a radar gun, he did have a drug-sniffing dog with him. But under Whren v. United States [517 U.S. 806 (1996)], a traffic stop, even if pretextual, does not violate the Fourth Amendment if the officer making the stop has 'probable cause to believe that a traffic violation has occurred.' This is an objective test based on the facts known to the officer at the time of the stop, not on the motivations of the officer in making the stop. On the other hand, if it is clear that what the police observed did not constitute a violation of the cited traffic law, there is no 'objective basis' for the stop, and the stop is illegal."

A consent search after the stop was ruled constitutionally valid.

A circuit judge dissented.

Trial Procedure

Indictments: Police Officers; Intervening Indictments on Racial Profiling Charges

State. The conduct of an attorney general during grand jury proceedings against two state troopers in connection with a shooting of van occupants during a traffic stop, in obtaining and releasing an intervening indictment against the troopers on charges relating to alleged racial profiling, was held not to be improper. The court noted that the proceedings were bifurcated to promote impartially of each panel, the grand jurors considering the shooting incident were questioned to determine whether their ability to be fair had been compromised by the intervening indictment on the charges relating to racial profiling, and two grand jurors were excused as having been tainted by the intervening indictment.

". . . the point to be stressed is that we cannot fault the Attorney General's Office for mounting a timely investigation and obtaining an indictment when faced with evidence that defendants might have violated the law. There is no evidence in the record to support the judge's charge that release of the intervening indictment was calculated to deny, or had the effect of denying, the defendants' rights. . . ."

Two justices concurred and dissented in part.

Civil Liability / Personnnel Law

Use of Force: Handcuffs; Graham v. Connor

Federal. Where officers arrested a woman following her physical altercation with her grown daughter, and the arrestee sued, claiming that her wrist was allegedly swollen from being handcuffed, the court found that "handcuffing too tightly, without more, does not amount to excessive force." There was no allegation that the officers acted "with malice," touched her, or did anything other than placing the handcuffs on her. The court held that the arresting officers were entitled to qualified immunity.

But see, Kostrzewa v. City of Troy, 2001 U.S.App. Lexis 7362 (6th Cir. 2001), where the court said that the overly tight application of handcuffs on a nonviolent detainee may be excessive use of force, in the absence of any indication that the detainee would resist or attempt to flee.

"While the Supreme Court in Graham [Graham v. Connor, 490 U.S. 386 (1989)] acknowledged that the government has the right to use, or threaten to use, 'some degree of physical coercion' when making an arrest, it is not clear from the face of the complaint that the government's interests in officer and public safety outweigh the detainee's interests in being free from severe pain and risk of injury, particularly in this case, where a non-violent detainee was forced to wear handcuffs that were allegedly too small, even on their loosest setting, simply because the City's policy may have required it."

Further, "for the district court to make a blanket statement that the use of handcuffs on detainees is, in all cases, objectively reasonable is at odds with the Supreme Court's holding in Graham that the particular facts of each case be examined when making a determination of the reasonableness of the force used."

Federal. Three occupants of a car were killed in a collision with another vehicle being pursued by police officers. The pursued vehicle ran a red light while being chased for a stolen vehicle offense. The pursuit involved speeds in excess of sixty to sixty-five miles per hour through residential areas. While a written department policy required that all pursuits be supervised and directed officers to terminate such pursuits when the hazards outweigh the benefits, no supervisor or watch commander was notified of the pursuit, so it was not supervised. The estate of one of the decedents sued the officers and city. A federal appeals court ruled that the officers were entitled to qualified immunity because it was not clearly established in May of 1990, the time of the incident, that a police officer could be liable under 42 U.S.C. 1983 in a high speed pursuit case for an injury caused by a third party.

The plaintiff argued that the city should still be held liable on the basis of actions characterized as arbitrary or conscience-shocking in a constitutional sense, even if there were no unconstitutional acts by individual officers. Specifically, it pointed to alleged inadequate policies, training and supervision of officers with respect to high speed pursuits. This argument was rejected.

"The threshold issue is whether the action causing the harm (police pursuit resulting in death of innocent bystander) states a constitutional violation at all. Because there was no evidence that the officer intended to harm the decedents, Lewis [County of Sacramento v. Lewis, 523 U.S. 833 (1998)] dictates that no constitutional harm has been committed." Under these circumstances, the court ruled, "a municipality cannot be held liable. . . . Even if it could be said that [the city's] policies, training, and supervision were unconstitutional, the City cannot be held liable where, as here, the officers did not commit a constitutional violation."

Federal. A police officer terminated for wearing a cross pin on his uniform, in violation of a police department policy which prohibited the wearing of pins on uniforms unless approved by the police chief, could not establish a religious discrimination claim under Title VII of the Civil Rights Act of 1964. The evidence indicated that the officer failed to respond to his police chief's reasonable offers of accommodation, which included allowing the officer to wear a cross ring or bracelet instead of the pin.

" . . . The no-pins policy serves a legitimate governmental purpose in the context of uniformed law enforcement personnel, and Daniels undoubtedly has myriad alternative ways to manifest this tenet of his religion."