Enforcement and Investigations

It has been three cases and nearly a decade in the making but the Supreme Court has finally ruled in Nieves v. Bartlett that the existence of probable cause defeats a First Amendment retaliatory arrest case…with one, small caveat. The State and Local Legal Center (SLLC) filed an amicus brief in favor of the broader ruling in this case.

While police officer Luis Nieves and Russell Bartlett have different versions of what happened at Artic Man, a weeklong winter sports festival in Alaska, even the Ninth Circuit agreed that Sergeant Nieves had probable cause to arrest Bartlett. Sergeant Nieves knew Bartlett had been drinking and talking loudly when he saw Bartlett stand close to another officer and the officer push Bartlett away. But Bartlett claimed Sergeant Nieves really arrested him in violation of his First Amendment free speech rights because he had refused to speak to Sergeant Nieves previously, which Bartlett reminded Sergeant Nieves of when he was being arrested.

The issue the Supreme Court will decide in McDonough v. Smith is whether the statute of limitations for a due process fabrication of evidence claim begins to run when the criminal proceedings terminate in the defendant’s favor, or when the defendant becomes aware of the tainted evidence and its improper use. The States and Local Legal Center (SLLC) amicus brief argues for the latter standard.

Edward McDonough, former Democratic Commissioner of Rensselaer County Board of Elections, approved forged absentee ballot applications which he claims he didn’t know had been falsified. Youel Smith investigated and prosecuted McDonough. McDonough claims Smith “engaged in an elaborate scheme to frame McDonough for the crimes by, among other things, fabricating evidence.” After two trials, McDonough was ultimately acquitted.

In a per curiam (unauthored) unanimous opinion in City of Escondido v. Emmons the Supreme Court granted one police officer qualified immunity and instructed the Ninth Circuit to decide again whether another officer should have been granted qualified immunity. As it has done many times before, the Supreme Court criticized the Ninth Circuit for defining the right at issue (here to be free from excessive force) at too high a level of generality.

In April 2013 police arrested Maggie Emmons’ husband at their apartment for domestic violence. A few weeks later, after Maggie’s husband had been released, police received a 911 call from Maggie’s roommate’s mother, Trina. While Trina was on the phone with her daughter she overheard Maggie and her daughter yelling at each other and Maggie’s daughter screaming for help.

When the officers knocked on the door no one answered but they were able to try to convince Maggie to open the door by talking to her through a side window. An unidentified male told Maggie to back away from the window. Officer Craig was the only officer standing outside the door when a man walked out of the apartment. Officer Craig told the man not to close the door but he did and he tried to brush past Officer Craig. Officer Craig stopped him, took him to the ground, and handcuffed him. The man was Maggie’s father, Marty Emmons. He sued Officer Craig and Sergeant Toth, another officer at the scene, for excessive force.

In an amicus brief in Gamble v. United States, the State and Local Legal Center (SLLC) asks the Supreme Court not to overrule the “separate sovereigns” exception to the Double Jeopardy Clause. This exception allows states and the federal government to convict and sentence a person for the same conduct.

Gamble was prosecuted for and convicted of possession of a firearm by a convicted felon under both Alabama and United States law. His challenge to the “separate sovereigns” exception is unsurprising given that Justice Thomas joined Justice Ginsburg’s concurring opinion in Puerto Rico v. Sanchez-Valle (2016), which suggested the Court do a “fresh examination” of the “separate sovereigns” exception. These Justices are on opposite ends of the ideological spectrum and typically don’t vote together in close cases. 

In Sanchez-Valle the Court held that the Double Jeopardy Clause bars both Puerto Rico and the United States from prosecuting a person for the same conduct under equivalent criminal laws. Puerto Rico isn’t a sovereign distinct from the United States because it derived its authority from the U.S. Congress.

Collins v. Virginia is like a tricky logic problem. Police need a warrant to search the curtilage of a home but not to search a vehicle. So is a warrant needed to search a vehicle located on the curtilage of a home? Yes holds the Supreme Court.

More technically, in an 8-1 decision the Supreme Court held that the Fourth Amendment automobile exception does not permit police officers to search vehicles parked in the curtilage of a home without a warrant.  

The State and Local Legal Center (SLLC) Supreme Court amicus brief in Lozman v. City of Riviera Beach argues if probable cause exists to make an arrest the arrestee should be barred from bringing a First Amendment retaliatory arrest lawsuit.

Fane Lozman lived in a floating house in the...

What if a police officer arrests someone in retaliation for engaging in speech protected by the First Amendment but the officer also had probable cause to arrest that person for different, legitimate reason? In Lozman v. City of Riviera Beach the Supreme Court will decide whether that person may sue the police officer for violating his or her First Amendment rights.

Fane Lozman lived in a floating house in the Riviera Beach Marina. The City proposed to redevelop the marina using eminent domain and Lozman became “an outspoken critic” regularly criticizing the mayor and city council at council meetings. At a city council meeting Lozman offered comments about former county commissioners who had served in other communities being arrested. A councilperson had Lozman arrested for refusing to stop talking. Lozman was not ultimately charged with disorderly conduct or resisting arrest.

In United States v. Carpenter the Supreme Court will decide whether police must obtain warrants per the Fourth Amendment to require wireless carriers to provide cell-site data. State and local governments have an interest in obtaining cell-site data as quickly and easily as possible as it can provide solid evidence a particular person was near the scene of a crime.  

Cellphones work by establishing a radio connection with the nearest cell tower. Towers project signals in different directions or “sectors.” In urban areas, cell sites typically cover from between a half-mile to two miles. Wireless companies maintain cell-site information for phone calls.

CSG South

This SLC Regional Resource examines the history of and predecessors to body-worn cameras in law enforcement; policy issues associated with them, including considerations for implementation such as data storage, staffing and privacy; and existing laws and policies that regulate their use in the 15 SLC member states.

In its amicus brief in County of Los Angeles v. Mendez the State and Local Legal Center (SLLC) asks the Supreme Court to reject the “provocation” rule, where any time a police officer violates the Fourth Amendment and violence ensues, the officer will be personally liable for money damages for the resulting physical injuries.

Everyone agrees police officers used reasonable force when they shot Angel Mendez. As officers entered, unannounced, the shack where Mendez was staying they saw a silhouette of Mendez pointing what looked like a rifle at them. The Ninth Circuit awarded him and his wife damages because the officers didn’t have a warrant in violation of the Fourth Amendment to search the shack thereby “provoking” Mendez.

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