The 2019 U.S. Supreme Court term, which ran from Oct. 2019 to Oct. 2020, did not present many cases relevant to policing, however, Justice Clarence Thomas had more to write on matters, directly and indirectly, related to policing than his colleagues.
a reasonable inference
The April 6 release of the Supreme Court’s decision in Kansas v. Glover involved a Fourth Amendment case focusing on vehicle stops. The facts of the case began with a motor vehicle stop by a deputy sheriff based on a license plate check showing the registered owner’s driver’s license was revoked. When subsequent investigation indicated the revoked owner was operating the vehicle, he was arrested as a habitual violator under Kansas law.
At issue on appeal was the reasonableness of the inference drawn by the deputy in making the stop. At the time of the stop, there was no independent knowledge possessed by the deputy confirming that the registered owner, Charles Glover, was the one driving the vehicle.
Writing for the majority, Justice Clarence Thomas said the inference drawn by the deputy was reasonable under Supreme Court precedent allowing officers to make “commonsense judgments and inferences about human behavior.” Justice Thomas also noted that reasonable suspicion is a less demanding standard depending on the “factual and practical considerations of everyday life on which reasonable and prudent” officers act.
The Kansas v. Glover case should not be read too broadly. Explicit in Justice Thomas’ reasoning was also the fact of a state’s vital interest in ensuring licensing, registration and inspection requirements on vehicles. Inferential knowledge in this context may not extend to other situations where a Fourth Amendment search or seizure is involved, particularly within the home.
qualified immunity
A more recent decision of interest was Taylor v. Riojas, decided on November 2 of this year and within the new October term.
This case involved an inmate section 1983 civil rights claim against correctional officers who placed him for six days in “shockingly unsanitary cells.” The Fifth Circuit Court of Appeals held that the conditions under which the inmate was confined violated the Eighth Amendment prohibition on cruel and unusual punishment but granted the officers qualified immunity.
The Supreme Court, in a per curiam opinion, reversed and said the lower court erred in granting qualified immunity “because no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.”
This was the only qualified immunity case reviewed by the Supreme Court since the mid-year social unrest and calls for abolishing the qualified immunity defense. While Justice Alito disagreed with the procedural reasons for granting review, he agreed with his colleagues’ assessment that qualified immunity should not have been extended to the officers. Justice Thomas dissented without written opinion. The grounds for his dissent would be helpful to know in this case since Justice Thomas has been a critic of the Supreme Court’s qualified immunity jurisprudence.
Beginning with his 2017 concurrence in Ziglar v. Abbasi, Justice Thomas has ramped up his criticism of the qualified immunity defense, which he asserts is a judicial construct. A textualist like Justice Thomas disavows any judicial attempts to create a defense or immunity since the original Civil Rights Act of 1871, from which the section 1983 statute emanates, did not provide for any defenses or immunities.
On June 15 Justice Thomas once again expressed his position on qualified immunity when he authored a dissent to the denial of certiorari in Baxter v. Bracey. The facts of this case involve a burglar who was caught in the act by responding police officers. A police dog was released to apprehend the burglar and he was bitten. The burglar claimed he had already surrendered when the dog was released and subsequently sued for violation of his civil rights under 42 USC section 1983.
The Sixth Circuit Court of Appeals, relying on Supreme Court precedent, granted qualified immunity to the officers because their conduct did not violate a clearly established right. The burglary suspect appealed, and the Supreme Court denied certiorari.
Justice Thomas wrote a dissent to the denial and reiterated his doubts about the Supreme Court’s qualified immunity jurisprudence. The dissent goes into a brief history of the section 1983 statute before questioning the Supreme Court’s use of a “clearly established law” analysis and then outlining his objections to the qualified immunity defense. He concludes the dissent by stating he would have granted certiorari.
Clearly, Justice Thomas wants his colleagues to reconsider the Supreme Court’s qualified immunity jurisprudence. While he has been ahead of more recent social reform efforts to abolish qualified immunity, the reformers seek to discard the defense and Justice Thomas’ position is that it is more appropriate for the legislative branch to determine the necessity for the defense. This is a legal issue likely to make its way back to the Supreme Court and it will be interesting to see if Justice Thomas can convince his colleagues to re-think prior precedent.
Threats of violence
The Supreme Court denied certiorari in companion cases, Kansas v. Boettger and Kansas v. Johnson, stemming from arrests based on threats made by the defendants.
Justice Thomas wrote a dissent wherein, once again, he said he would grant certiorari. This time the cases involved the First Amendment and whether it prohibited states from criminalizing threats made with reckless disregard of the risk in causing fear to another.
In the first case, the defendant told the son of a police detective that he “was going to end up finding [his] dad in a ditch.” The second case involved a defendant who told his mother he wished she were dead, he would help her die, and he was going to kill her. Both convictions were overturned by the Kansas Supreme Court as protected speech under the U.S. Supreme Court precedent of Virginia v. Black, in which a state statute criminalizing cross-burning was found to be unconstitutional due to the statute’s presumption of intent to intimidate.
Justice Thomas dissented in the Virginia v. Black case and wrote there should be a First Amendment exception to cross-burning based on the historical association of cross-burning with terrorism. Because he felt the Kansas Supreme Court’s decision in the two cases created a split from the Supreme Courts in other states, Justice Thomas said he would grant certiorari to resolve the split and determine if the First Amendment actually bars criminalizing threats of violence made with reckless disregard of causing fear.
Justice Thomas, who has consistently upheld free speech rights, noted that no prior U.S. Supreme Court precedent required a state statute to include intent to intimidate as a required element in criminal threat statutes. The failure to grant certiorari, according to Justice Thomas, only avoided an issue likely to further divide state courts and eventually make its way back to the U.S. Supreme Court.
Upcoming cases to watch
Upcoming cases this term to watch include a case out of the First Circuit Court of Appeals, Caniglia v. Strom, and the question as to whether the “community caretaking” exception to the Fourth Amendment warrant requirement applies to the home.
Another case waiting for oral argument, Lange v. California, will decide if the exigent circumstances exception to the warrant requirement applies when police are pursuing an individual suspected of committing a misdemeanor.
More on these cases once opinions are issued.
NEXT: What can law enforcement expect from Justice Amy Coney Barrett?
