The U.S. Supreme Court reviews approximately 70-75 cases each year, which is basically about one percent of the total petitions for certiorari it receives annually. While we give incredible weight to the work of the Supreme Court, our body of U.S. case law in many areas is created at the lower federal and state court levels. For instance, in the area of constitutional criminal procedure, it is only when there is a conflict among federal circuits on a particular issue or when a state court decision contradicts settled constitutional understanding that the Supreme Court will weigh in. This still leaves the Supreme Court and its nine Justices an incredible amount of work to do in sifting through the thousands of petitions received annually.
Since the death of Justice Antonin Scalia on February 13, 2016 the Supreme Court has been doing its work with eight justices. Despite President Obama’s selection of moderate U.S. Court of Appeals, D.C. Circuit Court Chief Judge Merrick Garland, the U.S. Senate refused to hold confirmation hearings. Now with the November election concluded and the last days of the Obama Administration coming to a close, it will be left to President-elect Trump to nominate a Scalia successor. Whoever that nominee will be remains to be seen, but it is likely that the conservative majority of the Supreme Court will remain intact and there will be another one or two potential nominees in the next four years as sitting Justices retire.
This is perhaps the biggest news to report from this past year’s activity at the Supreme Court as it relates to law enforcement since it was Trump who secured the endorsement of the Fraternal Order of Police and was the majority choice among working law enforcement in a poll conducted by Police Magazine. The poll cited such issues as the Second Amendment, support for law enforcement and the military, and a desire for change in Washington D.C., as the criteria relied on by law enforcement survey respondents in directing their election choice.
Whoever is next nominated to the Supreme Court will likely have a long tenure since most of the potential nominees on the incoming president’s list are in their late 40s and early 50s. For Supreme Court watchers, such as myself, it is almost as exciting as keeping track of “hot stove” baseball chatter and MLB trade rumors after the winter meetings—notice, I qualified that with the word “almost.” Clearly, baseball trades and the longing for those long lost bubble gum cards are the more satisfying winter preoccupation right now.
1. Birchfield v. North Dakota
Still, the Supreme Court year-end review would not be the same without discussing a little bit of case law. In earlier columns I already provided a more in-depth analysis of the two cases delivered by the Supreme Court this year which had a direct impact on the patrol officer. The first of these, Birchfield v. North Dakota, resulted in a 7-1 decision wherein the Supreme Court held that while the Fourth Amendment permitted a warrantless breath test, it did not permit a warrantless blood test. Despite a state’s implied consent law the Supreme Court held in Birchfield that the intrusive nature of a blood-draw was significantly different than a breath test and voted in favor of the warrant requirement. The Birchfield opinion continued the refinement of the long-standing exigency rule in Schmerber v. California which stood for 47 years until narrowed by Missouri v. McNeely in 2013.
2. Utah v. Strieff
In the second case to directly impact patrol officers, Utah v. Strieff, the Supreme Court held that an unconstitutional Terry stop of an individual, in the absence of flagrant misconduct on the officer’s part, did not invalidate an arrest pursuant to a pre-existing arrest warrant, nor did it require suppression of evidence seized from that arrest. This was a case that highlighted the Supreme Court’s balancing of individual rights against the broader societal cost in releasing a known criminal. Since the federal application of the exclusionary rule in the 1914 case of Weeks v. United States and its subsequent 1961 application to individual states in Mapp v. Ohio, the Supreme Court has crafted exceptions to the harsh outcomes of the rule, namely the suppression of relevant evidence. One of these exceptions, the attenuation doctrine, was applied by the Supreme Court in Strieff to explain a break in the initial unconstitutional stop of Strieff and the subsequent lawful police action.
3. Heffernan v. City of Paterson
One final case deserving of review is Heffernan v. City of Paterson which concerned the First Amendment rights of public employees. In this case, the plaintiff, Jeffrey Heffernan, was demoted from the rank of detective to patrolman based on his employer’s mistaken belief that he was engaging in protected First Amendment speech. Heffernan’s troubles began when, as a favor to his bedridden mother, he went to a campaign distribution center for Lawrence Spagnola, the challenger to the incumbent mayor, in order to pick up a lawn sign his mother requested. Though Heffernan was friends with the challenger he neither supported him in his mayoral bid nor actively campaigned for him. Heffernan’s only offense was to be observed outside the campaign distribution center, holding the lawn sign and talking with campaign staff.
Heffernan’s situation was compounded by the fact that the incumbent mayor running for re-election appointed the chief of police in place at the time. Detective Heffernan’s activities were reported to police supervisors and he was subsequently demoted based on his employer’s mistaken belief he campaigned for Spagnola. In a federal civil rights lawsuit Heffernan alleged he was demoted because he engaged in conduct that (in his employer’s mistaken view of the facts) constituted a constitutionally protected right. The district court, however, found that Heffernan had not engaged in First Amendment conduct, thereby his employer had not deprived him of any constitutionally protected right. The Third Circuit affirmed and stated that “a free speech retaliation claim is actionable…where the adverse action at issue was prompted by an employee’s actual, rather than perceived, exercise of constitutional rights.”
The question eventually before the Supreme Court on review was whether Heffernan’s constitutional claim failed due to his employer’s mistake of fact that he was engaging in protected political speech. It was a matter of what right was in issue—was it focused on the employee’s actual activity or the employer’s motive? Citing an earlier decision in Waters v. Churchill (1994), the Supreme Court found that the employer’s reason for demoting Heffernan was relevant, even if the employer was wrong in its assumption about his activities. The case was then remanded to the lower court to determine whether the employer may have demoted Heffernan based on a different and neutral policy prohibiting police employees from overt involvement in political campaigns.
Within the context of public employment law, which has a significant impact upon law enforcement and other first responders who work for government entities, Heffernan is an important case for First Amendment protections. As a preliminary matter, the Supreme Court rejected the counterintuitive argument of the government employer that “by definition, the government cannot ‘abridge’ a ‘right’ of an employee who does not even seek to exercise it.” As a result of his employer’s perceived, but mistaken view of his activities, Heffernan was demoted based on protected speech and association rights.
Had the City of Paterson’s argument prevailed, the employer’s unlawful conduct would be shielded from liability by its factual mistake, a result endorsed by Justice Thomas in his dissent. This would portend very badly for thousands of public employees across the country who must contend with questionable employment actions based on otherwise protected constitutional rights. Even though Heffernan is a gain for public employee rights it still remains a difficult task to proving an employer’s improper motive in taking an adverse job action against an employee. Heffernan at least shows that First Amendment rights will be scrupulously guarded by the courts.
