In this annual summary of recent U.S. Supreme Court decisions and their implications for police, we focus on the nuances of free speech related to threats, standards for home entry and surveillance, use-of-force and qualified immunity, and evolving regulations on firearms and public safety.
Harassment and stalking
Social media platforms increase participation in public discourse. They provide a true democratization of thought — open and expansive — yet they are also a forum for vitriolic speech. Sometimes harsh criticism and coarse language devolve even further into public rants, accusations and threats. While speech is a guarded constitutional right, there are limits.
A true threat — what the U.S. Supreme Court defined in Virginia v. Black, 538 US. 343 (2003) as “Intimidation …where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death” — is not protected speech and often results in police response to a criminal complaint based on state statutes proscribing harassment or threatening behavior. Police officers make arrests based on the content of the alleged threat, which is permitted since reasonable time, place and manner restrictions can be placed on speech for public safety purposes (Cox v. New Hampshire, 312 U.S. 569 (1941)). However, the Supreme Court’s June 2023 decision in Counterman v. Colorado requires that the state prove a defendant had some subjective understanding of their statements’ threatening nature, even if it only rises to a level of recklessness. What this means is that reliance on a victim’s objective expression of fear or intimidation is not enough, the government must prove the subjective element in an unprotected speech case. Justice Kagan’s majority opinion acknowledged the increased difficulty in the prosecution of true threat cases resulting from the Court’s decision but said such a standard was necessary, otherwise protected, non-threatening speech is endangered.
The case came about when Billy Raymond Counterman was arrested for stalking after sending numerous messages via Facebook to female Colorado musician Coles Whalen. The messages were sent over two years and contained some benign communications (“Good morning sweetheart”; “I am going to the store would you like anything?”) and other more frightening messages (“Fuck off permanently.”; “Staying in cyber life is going to kill you.”; “You’re not being good for human relations. Die.”) Whalen did not know the sender and filed a police complaint. Counterman was charged under a state statute making it unlawful to repeatedly make any form of communication with another person in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” Colo. Rev. Stat. § 18–3–602(1)(c) (2022). The stalking statute Counterman was charged under prohibited the repeated following, approaching, contacting, or surveilling of another person. Other than the Facebook posts, prosecutors had no other evidence against Counterman.
While the case focused on the error of the state’s sole reliance on an objective standard — a victim’s expression of fear — the Court also established a minimum requirement of recklessness on the part of a defendant as the standard for proving subjective awareness of their conduct’s impact upon a victim. Eight years earlier in Elonis v. United States, 575 U.S. 723 (2015), the Supreme Court overturned a conviction under the federal anti-stalking statute. In the 8-1 majority opinion Chief Justice Roberts wrote: “The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” Counterman said that the prosecution must at least prove a defendant “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
This latest Supreme Court case focusing on speech should remind police officers of the necessity, when conducting harassment and stalking investigations, to look beyond merely relying on a complainant victim’s expression of fear, intimidation, or threat, and to establish tangible proof of the perpetrator’s criminal intent.
Cases where the Supreme Court denied review
Aside from the Counterman case, there were no other Court opinions directly impacting police in the October 2022 term. This is rare since over the past few years the Court usually had a few cases dealing with Fourth Amendment issues, qualified immunity, or use of force.
What was more significant in my review were the cases in which the Court denied certiorari and let the lower court decisions stand. There were four such cases of note.
1. Pennington v. West Virginia
The first, Pennington v. West Virginia (No. 22-747) was a petition to determine whether police entry into a home to look for a juvenile under a pick-up order, an equivalent to an arrest warrant for truancy, was sufficient to justify entry absent consent, exigent circumstances, or probable cause of wrongdoing. The 16-year-old truant was found in the house hiding behind a medicine cabinet. Her mother was charged with child concealment. The West Virginia Supreme Court ruled that the entry did not violate the U.S. Supreme Court holding in Payton v. New York, 445 U.S. 573 (1980) permitting an arrest warrant based on a reasonable belief a wanted individual would be found within a location. The case sought to clarify the federal circuit court split regarding the Payton language. Some circuits hold that reasonable belief equates to probable cause (3rd, 4th, and 9th, with the 6th and 7th circuits leaning the same way) and others that the standard in less stringent than probable cause (2nd, 10th and D.C. Circuits.) The Supreme Court’s denial of certiorari leaves circuit court splits and existing state court interpretations in place.
2. Lombardo v. City of St. Louis
In the next case, Lombardo v. City of St. Louis (No. 22-510) the Court revisited a case decided in 2021 and sent it back down to the Eighth Circuit Court of Appeals with instructions that a lower court’s review of the reasonableness of a use of force under the standard of Graham v. O’Connor cannot be applied mechanically (see U.S. Supreme Court review 2021.) The family of an individual who died in police custody wanted the Supreme Court to review the Eighth Circuit’s decision on its second review. The Eighth Circuit, after reconsidering the Graham standards, again ruled in favor of the police and found the use of force was not per se unreasonable and the officers were entitled to qualified immunity. The U.S. Supreme Court denied review on June 20, 2023.
3. Fox v. Campbell
Fox v. Campbell (No. 22-848), certiorari denied on October 2, 2023, involved consideration of Graham v. Connor standards and whether qualified immunity applied to police shots fired at an individual but missed. The issue was whether the use of force was excessive. The Sixth Circuit Court of Appeals ruled against the officers and affirmed the district court holding in an interlocutory appeal for summary judgment. (See, Campbell v. Cheatham County Sheriff’s Department, et al., 47 F.4th 468 (6th Cir. 2022).)
The lower court denied in part the police officer’s summary judgment motion and left the excessive force claim for trial. The background facts are that sheriff’s deputies went to a home on a welfare check. Within 28 seconds of arrival a deputy fired two shots at the residence door as it was being opened by the resident who said he had a gun (he did not) and then six more shots at 31 seconds. The Sixth Circuit affirmed the district court determination that the reasonableness of the deputy’s use of force under the circumstances was an issue of fact best left to a jury.
4. Moore v. United States
Lastly, in Moore v. United States (No. 22-800), the issue in the petitioning defendant’s request for review was whether long-term police use of a surveillance camera targeted at a person’s home and curtilage is a Fourth Amendment search.
The First Circuit held that under the circumstances and the Supreme Court’s prior holding in U.S. v. Carpenter, 138 S. Ct. 2206 (2018), the search did not violate the Fourth Amendment. The First Circuit cited a prior pole camera decision in United States v. Tuggle, 4 F.4th 505, 524 (7th Cir. 2021) to address the curtilage issue (“[T]he stationary cameras placed around [the defendant]’s house captured an important sliver of [his] life, but they did not paint the type of exhaustive picture of his every movement that the Supreme Court has frowned upon.”) The U.S. Supreme Court denied certiorari when Tuggle came before it in 2022 (Tuggle v. United States, 142 S. Ct. 1107 (2022)) and, once again in Moore, left the lower circuit court decision in place.
Ghost guns before the court
One final subject to address is the Supreme Court’s continuing jurisprudence concerning the Second Amendment and its impact on police officers.
On October 5, 2023, an application was sent to Justice Alito to vacate a September 14, 2023, order of the United States District Court for the Northern District of Texas that blocked the federal government from enforcing a Bureau of Alcohol, Tobacco, Firearms, and Explosives rule regarding ghost guns against gun manufacturers Blackhawk Manufacturing and Defense Distributed. On October 16, 2023, the Court vacated the injunction in Garland v. Blackhawk Manufacturing Group. An earlier August 2023 application pertaining to the ATF rule (87 Fed. Reg. 24652, April 26, 2022), Garland v. Vanderstock, resulted in a 5-4 decision vacating a prior stay of enforcement issued by the Northern District of Texas. This matter is likely to find its way back to the Court in one form or another.
The issue of ghost guns — generally, a collection of gun parts sold as ready-to-assemble kits — for now is guided by the ATF rule, which aids in the traceability of the weapon.
As the relatively new 2023 term of the Supreme Court progresses, two other important gun cases are pending before the Court flowing from its decision in NYSRPA v. Bruen, 142 S. Ct. 2111 (2022):
- Garland v. Cargill will focus on whether a bump stock device is a “machinegun” as defined in 26 U.S.C. § 5845(b) because it is designed and intended for use in converting a rifle into a machinegun.
- United States v. Rahimi will determine whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic violence restraining orders, violates the Second Amendment.
Both case results could have important outcomes for police officers and their exposure to gun threats and violence.
