Supreme Court to Rule on Police Shooting Case: Excessive Force and Qualified Immunity

Imagine waking up to your front door opening and being shot multiple times, then finding out the individuals who shot you are protected by qualified immunity. In October 2010, the Mendezes were taking an afternoon nap when they awoke to the sound of their front door opening, followed by the piercing blasts of fifteen gunshots. Five bullets punctured Mr. Mendez’s body, leading to the amputation of his lower left leg. His pregnant girlfriend, now wife, Jennifer, was shot once and a second bullet grazed her hand. On the other side of those bullets stood two Los Angeles County Sheriff’s Department deputies. The deputies were on the property aiding in the search of a wanted parolee.

In the darkness of the room, the deputy saw a silhouette of a man with what he believed to be a rifle, and yelled, “gun!” The “rifle” was actually a BB gun used to kill pests. This is not a completely novel occurrence, and such incidents usually result in officers being individually protected from suit by qualified immunity. Yet this case is different because the District Court for the Central District of California and the Ninth Circuit Court of Appeals held the two deputies individually liable under the Ninth Circuit’s “Provocation Rule.” On March 22, 2017, the Supreme Court heard oral arguments in County of Los Angeles v. Mendez, a case that has the potential to provide clarity on the issue of excessive force claims protected by qualified immunity.

“The Provocation Rule establishes that law enforcement officers are entitled to qualified immunity from damages, unless the officer intentionally or recklessly provokes a violent confrontation. If the provocation is an independent Fourth Amendment violation, officers may be held liable for their otherwise defensive use of deadly force.”

Although the home in this case might appear unconventional, it was where the Mendezes lived for ten months. Their home is referred to as a wooden “shack” in briefs, but even so, the Fourth Amendment protects “shacks.” The Mendezes filed suit against the deputies under 42 U.S.C. § 1983, alleging their Fourth Amendment rights had been violated by an unreasonable search and seizure. The district court held the deputies’ warrantless entry into the shack was a search within the Fourth Amendment and it was not justified by any exigent circumstances or any exceptions to the warrant requirement. The district court also held that the deputies violated the Fourth Amendment knock-and-announce rule by staying silent when they opened the door.

The district court decided that the deputies’ shooting was not excessive force under Graham v. Connor, however, the court awarded damages under the Ninth Circuit’s Provocation Rule. The Provocation Rule establishes that law enforcement officers are entitled to qualified immunity from damages, unless the officer intentionally or recklessly provokes a violent confrontation. If the provocation is an independent Fourth Amendment violation, officers may be held liable for their otherwise defensive use of deadly force. The district court concluded that the deputies’ shooting the Mendezes was not excessive force because their mistaken fear upon seeing the BB gun and reacting was objectively reasonable. However, the deputies were held individually liable because of the prior Fourth Amendment violation and awarded the Mendezes roughly $4 million in damages for the shooting, nominal damages of $1 each for the unreasonable search and the knock-and-announce violation, and attorneys’ fees.

The Ninth Circuit agreed and held the deputies violated clearly established Fourth Amendment law by entering the wooden shack without a warrant. The deputies argued that the reaction from Mr. Mendez with the BB gun was not a violent confrontation because he was simply moving it, thus the rule did not apply. The Ninth Circuit held the Provocation Rule only required that the deputies’ unconstitutional actions created the situation, which led to the shooting and required the deputies to use force that might have otherwise been reasonable.

The Supreme Court granted certiorari and heard oral arguments on two issues, one of those issues was whether the Ninth Circuit’s “Provocation Rule” should be barred because it potentially conflicts with current case law.

In Graham, the Supreme Court held an objectively reasonable standard applies when analyzing the facts and circumstances of excessive force claims such as this. The reasonableness standard is based on the perspective of a reasonable officer on the scene rather than applying 20/20 hindsight or looking at any underlying motivation. The Court reasoned that the “reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”

In a more recent case, Scott v. Harris, the Supreme Court applied the same objective reasonableness standard, but also looked at the series of events that lead to the force applied by the officer. The Court analyzed the actions of the injured party and held his behavior caused the officer to employ the high level of force, thus the Court found the officers’ actions were reasonable under the circumstances.

Currently, a circuit split exists regarding the Ninth Circuit’s Provocation Rule. The deputies argue that Graham applies and that officers need to be free to make split-second choices to respond to threats of force without stopping to replay their prior actions and evaluate whether someone might later accuse them of provoking the situation. Although this is true, some argue that officers should also be required to follow the Constitution in the first place and held liable if they cause the force to be used. The holding in Scott supports this type of analysis. While Graham allows for qualified immunity by looking to what an objectively reasonable officer would do in the situation, the Mendezes propose that Scott also be applied for a totality of the circumstances approach.


The Proposed “Mendez Test”

The Mendezes propose that the Supreme Court not adopt the Ninth Circuit’s Provocation Rule, but instead adopt a new rule regarding excessive force and qualified immunity. The Mendezes propose that when courts are resolving excessive force claims, that “courts may entertain a claim that police action foreseeably created the need for the use of force against a claimant and should apply to the police action the general standard of reasonableness established by Graham and Scott.

“The Mendezes argue that by applying both cases, consideration would also be given to the ‘relative culpability’ of the various actors involved and all issues would be evaluated from the perspective of ‘a reasonable officer on the scene.'”

Under Graham, to decide if the prior police action was reasonable “a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake” is required. The Mendezes argue that by applying both cases, consideration would also be given to the “relative culpability” of the various actors involved and all issues would be evaluated from the perspective of “a reasonable officer on the scene.” The proposed test differs from the Provocation Rule because it requires “objectively unreasonable conduct instead of an independent constitutional violation.”

Here, the lower courts recognized that when the deputies saw the BB gun, their use of force was reasonable and not excessive. However, the deputies being there without a warrant and not announcing their presence was not reasonable. The deputies ultimately caused the situation and its escalation, and they knew they did not have a search warrant. Furthermore, Mr. Mendez would have been justified and not liable for shooting the deputy under California Penal Code § 198.5, a California law that allows an individual to use force to protect his or her own home and which many states also have on their books.

How can both parties shoot one another and not be held liable? This is exactly what the Supreme Court can clear up by applying and implementing the proposed Mendez test. Police should not have to run through a checklist while dealing with an emergency situation, however that is why exceptions to the warrant requirement exist. This law would allow for innocent individuals to seek redress when officers so blatantly violate the Fourth Amendment and it leads to irreparable harm, and would hold officers individually liable for their actions.

The argument against the Provocation Rule is that officers will be held personally liable if they commit even the slightest Fourth Amendment violation and that officers won’t be able to make the quick decisions that are often necessary. Another argument originates from the reason that qualified immunity exists in the first place. Qualified immunity protects government actors from individual liability in lawsuits without having to go through trial. It holds officers accountable when they act irresponsibly, but it also protects officers from lawsuits while acting reasonably. The Provocation Rule is at odds with qualified immunity in this case because here the officers were acting reasonably when they opened fire, however they did not act reasonably when looking at all of the facts in their entirety. The deputies put themselves in the situation, which lead to the unnecessary shooting of two innocent individuals. The deputies caused the shooting by not having a warrant or announcing their presence. This should be taken into consideration and qualified immunity should not protect those who fall into this category.

If the Supreme Court does not adopt the Mendez test, or uphold the Provocation Rule, the deputies in this case and others in the future will not be held individually responsible for their violations of the Fourth Amendment. However, if the Court wants to change the way officers enforce the Constitution, it should adopt the Mendez test to deter police officers from violating the Constitution and hiding behind qualified immunity.

California Supreme Court May Allow The Censoring Of Consumers’ Online Reviews

Forums such as Yelp, TripAdvisor, Amazon, Facebook, and Twitter, provide consumers with the opportunity to voice their opinions by detailing their experiences as patrons of various restaurants and other local businesses.  The reviews of prior consumers can weigh heavily when potential consumers decide whether they want to support a particular business or not.

The use of social media to leave reviews creates a medium in which “word of mouth” can reach many more individuals who are in search of a specific product or service that can meet their needs.  The accessibility of these forums reaching vast numbers of consumers lead to both positive and negative effects.  For consumers, the ability to read about others’ good, bad, and neutral experiences can help them determine if the particular business is a right fit for them.  For business owners, both positive and negative reviews can indicate to a business what consumers appreciate and also what the business should be doing in order to improve its interactions with consumers.

However, one of the main problems with online reviews occurs when consumers share false negative reviews of a business.  Recently, California Courts have been presented with legal issues arising from the use of online forums, specifically, whether courts have the power to force any specific forum to take down a defamatory review.  Furthermore, courts must address whether any infringement on a consumer’s First Amendment right to free speech arises if a negative review is declared defamatory.

For instance, recently, a California law firm alleged that a past client fraudulently posted false negative Yelp reviews about her experience with their law firm.  Due to the influence of Yelp reviews on a businesses’ reputation, the law firm requested that the former client take down her negative reviews.  The former client refused and the law firm sued the former client for defamation in state court, seeking help from the courts in ensuring its name would not be tarnished.  This case between the law firm and its former client is Hassell v. Bird, and it has made its way all the way up to the California Supreme Court.

Currently, the California Supreme Court is deciding whether to let the Court of Appeals decision stand or whether the Court will issue its own decision.  On September 29, 2014, the Superior Court declared, which then on June 7, 2016 the Court of Appeals affirmed with an opinion written by Justice Ruvolo, that the reviews of the former client were indeed defamatory.  Although Yelp was not a party to the suit, the opinion ordered Yelp to step in to remove these negative false reviews.  The Court explained that since Yelp is an “administrator of the forum” where the negative reviews are found, Yelp is responsible for removing the defamatory speech.

The counsel for Yelp is optimistic that the California Supreme Court has decided to hear its case because it has given Yelp an opportunity to demonstrate how this decision will have an detrimental effect by “restrict[ing] the ability of websites to provide a balanced spectrum of views online.”  Yelp’s counsel and other community members argue that this judicial decision will restrict a consumers’ First Amendment right to free speech.  On the other hand, the law firm’s counsel, San Francisco lawyer Monique Olivier, strongly asserts that these false negative reviews, if considered defamatory, are not protected by the First Amendment, and therefore there is no infringement on a consumers’ right to free speech.  Presently, the California Supreme Court has not decided the matter and the parties in Hassell are awaiting a decision as to whether the higher court will hear their case.


Main Issue Addressed by the Courts

The main issue presented before the California Supreme Court is whether an online publisher has a right to notice and the opportunity to be heard before a trial court orders removal of online content.

In Yelp’s Opening Brief on the Merits, Yelp argues that the Court of Appeals decision should be overturned mainly because the court did not provide Yelp with proper due process protections by not taking into account Supreme Court authority that requires notice and the opportunity to be heard when it relates to orders restraining the distribution of speech.  Yelp argues that the Court of Appeals decision was extremely flawed because they created an avenue for courts to easily apply injunctions to non-parties, even without any inquiry into factual accounts of misconduct.  Specifically, Yelp asserts that now anyone who seeks the judicial system to help provide relief to a case regarding defamation, can forum shop in California and “circumvent due process rights” in this state.

Yelp provides that as a publisher of third-party authorized speech, its First Amendment right to control its own website was violated by this decision.  Furthermore, due to this decision, businesses now have an effective tool in removing unflattering commentary whereas online entities like Yelp are denied their right to exercise editorial control in publishing consumer reviews.  Overall, Yelp urges the California Supreme Court to reverse the Court of Appeals’ decision because this case provides an opportunity to abuse the court system in order to stifle speech on the Internet.

In Hassell’s Answering Brief on the Merits, Hassell argues that invoking the First Amendment, the Due Process clause, and the federal Communications Decency Act will not help Yelp escape a court order preventing them from republishing postings that have been judicially determined as defamatory.  Hassell cites to both cases from the U.S. Supreme Court and the California Supreme Court, who have consistently held that defamatory speech falls outside of the scope of First Amendment protections.  For example, U.S. Supreme Court cases, Ashcroft v. Free Speech Coalition and Keeton v. Hustler Magazine, Inc.; and Balboa Island Village Inn, Inc. v. Lemen, a California Supreme Court case, all demonstrate that false statements are not protected from any constitutional provision because they harm both the subject of the false statements and the readers of the statement.

Overall, Hassell declares that the same prohibition against speakers to create defamatory speech should apply to anyone, like Yelp, who is distributing defamatory speech.  Hassell argues that she tried to resolve this matter out of court with both Yelp and Bird, but since she was unsuccessful to coming to a reasonable agreement, she sought the relief that she is rightfully entitled to from the court.


Potential Lasting Effects on Online Forums 

Any action the California Supreme Court takes will have a lasting effect on the limitations of free speech online.  If the California Supreme Court determines that forum administrators, like Yelp, bear the responsibility of monitoring whether a consumer has posted a negative false review that is considered defamatory, businesses can easily have reviews removed by the forum administrator if they believe that the review is offensive and inaccurate.

Anytime there is a negative review that a business believes is defamatory, the business can just go to court in order to receive a declaration telling the forum administrator to delete the personal reviews made by consumers.

Although this decision helps those who want to protect their businesses from false negative reviews, the decision may also create infringements on consumers’ freedom of expression because there is a possibility that their accurate descriptions of their experiences can be declared defamatory and censored by a court.

The restriction of past consumers to freely express their negative opinions of a business can also have an effect on future consumers, because future consumers may be attracted to a business who did something to improve its consumer experience.  Also, without seeing constructive criticism from consumers, businesses will not know how to become better or have an incentive to change.  An honest review is an important asset to a business because it can encourage more foot traffic or it can provide the business with an opportunity to better cater to its consumers.  Although it is unknown how the California Supreme Court will rule, it is likely that this decision will have a lasting effect on how consumers use social media and online forums to review their experiences.

Image by Steve Rhodes (via

Abortion Rights: “ash heap of history” or Surviving the Smoke?

One day after Donald Trump officially became the 45th President of the United States, millions of people across the world marched in solidarity with the 500,000 who protested in the nation’s capital. The Women’s March on Washington, brought those of different genders, ethnicities, religions, and circumstance to send, what Planned Parenthood Federation of America President, Cecile Richards, called “a strong message to the incoming administration that millions of people across this country are prepared to fight attacks on reproductive healthcare.”

“the ash heap of history.”


While the Inauguration has had the effect of stoking the fire for a resistance, one of Donald Trump’s first acts as President was aimed at crippling the very right the Women’s March on Washington aimed to protect. In an Executive Order, the 45th President moved to revive a federal ban eliminating U.S. funding for international health organizations who counsel women on reproductive health, including abortion. With Republicans now controlling the Executive and Legislative Branches of the United States Government, access to legal abortion faces the threat of being placed on, according to Vice President Mike Pence, “the ash heap of history.”

On January 31, 2017, President Trump announced 10th Circuit Court of Appeals Judge, Neil Gorsuch, as his Supreme Court nominee. Following the death of Supreme Court Justice, Antonin Scalia, on February 13, 2016, the highest court has not been complete. Senate Republicans have since refused to hold a hearing for President Obama’s nominee. This nominee appointment gave Trump an enormous role in shaping the composition of the Supreme Court. Judge Gorsuch was a traditional pick many Republicans support, however, the main question is whether Gorsuch’s stance on reproductive health care will bring a negative spark, marking the promised destruction of modern day abortion rights.

The Appointments Clause of Article II vests the power to appoint Supreme Court Justices in the Executive Branch and the President. Article II also subjects the President’s nominee to a confirmation by the United States Senate. Following the Senate’s refusal to hold a hearing for President Obama’s nominee, House Speaker, Paul Ryan, said, “Under our Constitution, the president has every right to make this nomination, and the Senate has every right not to confirm a nominee.”

The Supreme Court Justices act as legal protectors of the United States Constitution. In the landmark1803 case of Marbury v. Madison, the Court declared it “emphatically the province and duty of the judicial department to say what the law is.” The Constitution allows justices to “hold their Offices during good Behaviour…” which is interpreted to mean until death, retirement or impeachment for bad “Behaviour.” Although the two other branches of government limit the power of the Supreme Court, a potentially unlimited term gives a Justice power in shaping the laws and future of America.

One social issue the Supreme Court has protected is a woman’s right to a legal abortion. In 1973, the Court expressly declared, in Roe v. Wade, access to legal abortion is safeguarded through the due process clause of the Fourteenth Amendment, giving emphasis to the concept of “substantive due process.” Both the Fifth and Fourteenth Amendments to the Constitution of the United States emphasize no person shall be deprived of “life, liberty, and property, without due process of law.” This concept, analyzed in Roe, examines the question of whether the government’s deprivation of a woman’s “liberty” was justified by a necessary purpose. In a 7-2 decision, the Court found a woman’s right to choose was shielded as a fundamental right under the Fourteenth Amendment through this idea of “liberty.” This gave women autonomy over the pregnancy during the first trimester, preventing any state interference until the second and third trimesters.

The Court’s standard to defend a woman’s right to an abortion, has been further restricted in recent years. Planned Parenthood v. Casey, in 1992, established a State’s ability to make laws restricting pre-viability abortions. The new test allowed restrictions to be placed on first trimester abortions, as long as the restrictions do not place an “undue burden” on women seeking the abortion. The Court’s “undue burden test” generated doubt on whether a woman’s right to an abortion was a fundamental right, which should be held to the highest level of scrutiny. These questions were answered on June 27, 2016 with the Supreme Court’s opinion in Whole Woman’s Health v. Hellerstedt. The 5-3 majority opinion upheld the “undue burden” standard and affirmed abortion is a fundamental right.

The possibility of further restrictions of abortion rights smolder on the horizon, but currently remain at bay.  After Whole Woman’s Health, a Trump appointed nominee will likely swing the Court toward a 5-4 majority in favor of upholding current abortion law. Justices Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan voted to reaffirm Casey’s “undue burden” standard safeguarding a woman’s fundamental right to an abortion. Thomas, Alito, and Roberts were the three Justices to dissent to the opinion. If all the current justices were to remain on the bench until after the next president is elected, the potential threat to abortion rights should remain dormant even if Justice Gorsuch were to side with the dissent.

Specifically, the confirmation of Trump’s nominee creates a right leaning court with moderate conservative Justice, Anthony Kennedy, remaining the swing vote on the issue of abortion. While Kennedy indicated an intention to protect the “undue burden test” by siding with the majority in Whole Woman’s Health, Kennedy’s opinion in a 2007 abortion case suggests personal conflict on the issue. In Gonzales v. Carhart, the Court upheld a congressional ban on “partial-birth abortion.” Kennedy’s opinion suggests he was bothered by the lack of dignity in this procedure. In upholding the ban, Carhart affirmed States have some responsibility toward unborn children and in these rare instances the rights of the unborn overshadow the life of the mother. Kennedy also referenced his belief women may regret their choice stating, “[w]hile we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”


“Trump could establish a relatively young 7-2 conservative court.”

Justice Gorsuch is the first Trump nominee appointed, but with three of the Court’s senior members continuing to age, there remains uncertainty whether he will be his last. If Justice Ginsburg (83), Justice Breyer (78), and Justice Kennedy (80) decide to step down or their health were to fail, Trump could establish a relatively young 7-2 conservative court. In this scenario, the safety net protecting abortion rights is likely to become engulfed in flames.  Especially after Trump publically pledged to appoint justices who would overturn Roe v. Wade and stated “some form of punishment” is necessary for women who have an abortion.

Donald Trump’s appointment of Justice Gorsuch, could also mean a shift in majority regarding reproductive rights. Justice Gorsuch has an impressive legal resume, clerking for two Supreme Court justices, White and Kennedy. A self-described Originalist, Gorsuch is known in the legal profession for his textual analysis in his opinions. Gorsuch told law students at Case Western Reserve University School of Law, judges should “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.” In the controversial Burwell v. Hobby Lobby case in 2013, Gorsuch penned a concurring opinion stating a mandate for employers to provide contraception coverage under the Affordable Care Act was a violation of the rights to religious freedom of Christian employers and religious organizations.  Gorsuch has not been required to give an opinion on Roe v. Wade, therefore his stance on abortion is largely unknown.

“Our constitution does not begin with ‘I, the President.’ It begins with, ‘We, the People.’”

Feminist leader, Gloria Steinem, pointed out, “Our constitution does not begin with ‘I, the President.’ It begins with, ‘We, the People.’” Year after year, it seems that “we, the people” favor a growing trend toward “pro-choice” abortion rights. For example, in a 2016 Pew Research Center poll, 56% of people stated abortion should be legal in all or most cases, while only 41% said it should be illegal. This majority increased from a 2015 Gallup poll with only 50% identifying as “pro-choice” and 44% identifying as “pro-life.” As our country moves forward with a new conservative President and Legislature, the issue to keep an eye on is the threat to a woman’s fundamental right to choose. Only time will tell how imminent this threat really is.

Image by: Lorie Shaull

Police High-Speed Pursuits: Giving Police the Authority to Intervene Before the Public is Harmed

Police Pursuits. The idea brings to mind thoughts of bank robbers fleeing from the police after committing a daring heist, only to be pursued by inept cops that wind up crashing into each other as the robbers drive away in perfect Hollywood fashion. However, police pursuits are rarely as glamorous and thrilling. In reality, they are terrifying and dangerous. In fact, according to the National Highway Traffic Safety Administration (NHTSA) more than 5,000 bystanders or passengers have been killed in police pursuits since 1979

In recent years there has been a call for police departments to limit their pursuit of fleeing suspects. A simple google search reveals the continuous calls for police to stop pursuing suspects unless they are considered dangerous or committed known violent felonies. For instance, in Jackson, Mississippi, Councilman Kenneth Stokes, in reference to police pursuits coming into his ward, went as far to suggest to the local population “[l]et’s get rocks, let’s get bricks and let’s get bottles and start throwing them and then [police] won’t come in here anymore.” Similarly, in Washington D.C., Charlie Viverette’s mother claimed police should not have been chasing the suspect that hit her son, killing him. Like Charlie Viverette’s mother, many wish to place the blame for such injuries at the feet of the police rather than the fleeing suspect. In those cases, where the police due pursue a suspect and the pursuit ends with the suspect injured or killed, the police not only face criticism from the public, but the department and the individual officers involved become the subject of a civil rights lawsuit.


In attempting to terminate a police pursuit there are a variety of tactics an officer may use. Officers may attempt to “box” a vehicle in by placing cruisers around the suspect’s vehicle and gradually slowing their own speed, forcing the driver to stop. Other methods include using spike stops or the most notable precision immobilization technique, also known as the “PIT maneuver.” During a PIT maneuver, the pursuing officer uses their front push bumper to strike a fleeing vehicles rear quarter panel/bumper of the vehicle, causing the vehicle to spin and end the pursuit. While these are the most common methods, they are not the only methods to end a pursuit.  Each of these methods can involve a high degree of danger for the pursuing officers, the public and the fleeing suspect, as evident by this video, where a fleeing suspect crashes into a police cruiser while trying to avoid spike strips.


The Supreme Court has addressed the issue of use of force in the context of police pursuits only four times. Two of their decisions dealt with vehicles attempting to flee a scene while officers were nearby. The other two, discussed below, addressed the police use of force during the actual high speed pursuit. In each case, the Supreme Court found that either the officer involved did not violate the Fourth Amendment or was entitled to qualified immunity under 42 U.S.C section 1983.

The Supreme Court in 2007 first addressed the Fourth Amendment and use of force during a police vehicle pursuit. In Scott v. Harris, an officer was found to not have violated the Fourth Amendment when the officer rammed a fleeing suspect off the road. Harris was rendered a quadriplegic after leading the police on a six-minute chase that ended when Scott used the push bumper of his cruiser to ram Harris’ vehicle, causing it to veer off into a ditch. The Court held that Scott did not violate the Fourth Amendment because Harris was an actual and imminent threat to the lives of any pedestrians who might have been present, other civilian motorists and the officers involved in the chase.

Harris argued that police should have ceased the pursuit instead of ramming his vehicle, and by ceasing the pursuit the public would have been equally protected. The Court refused to adopt a rule that would give incentives for suspects to escape simply by speeding, running red lights, and endangering the public. Rather, the Court adopted the more sensible rule that “police officer’s attempt to terminate a dangerous high speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”

The Supreme Court’s second decision involving police pursuits came just last year in November 2015, with the case of Mullenix v. Luna. On March 23, 2010, Israel Leija Jr., lead police on high speed pursuit. During the 18-minute chase, Leija and the pursuing officers reached speeds between 85 and 110 miles per hour. Leija phoned the local police dispatcher while fleeing and told them he had a gun and threatened to shoot at the police if they did not abandon their pursuit. The dispatcher promptly relayed this information to all the officers involved.

While other officers pursued Leija, Trooper Mullenix drove to an overpass intending to set up a spike strip.  Directly below the overpass another officer waited with a spike strip already deployed. Mullenix decided to consider a different tactic, shooting at the vehicle to disable it however, Mullenix was not trained in such a procedure. As Leija’s vehicle approached the overpass, Mullenix fired six shots, striking Leija four times in the upper body. Leija’s vehicle continued under the overpass, struck the spike strips, hit a median, and rolled. Leija was killed in the incident.

Relying on its precedent, the Supreme Court reversed the lower courts finding that Mullenix did not have qualified immunity. Instead, the Supreme Court held that Mullenix was entitled to qualified immunity because his actions did not violate clearly established precedent beyond debate.



While some continue to call for the police to stop pursuing only the most egregious or dangerous felonies in the name of public safety, perhaps it is more appropriate for departments to authorize officers to end high speed pursuits in an expedited manner. A fleeing suspect in a motor vehicle becomes a high speed missile aimed at the nearest unlucky innocent bystander who’s done nothing more than be in the wrong place at the wrong time. In contrast, it is the suspect who has made the decision to flee in a motor vehicle, placing the public in danger. Perhaps this is why the Supreme Court has never found an officer’s actions in a high-speed pursuit to be unreasonable. As Justice Scalia in Scott opined,

“we think it appropriate in this process to take into account…their relative culpability. It was [Harris], after all, who intentionally placed himself and the public in danger…”

By adopting a policy that reflects these case precedents, police officers will have the ability, with the constitutional authority, to end high-speed pursuits quickly before the public can be harmed. Rather than chase a suspect’s vehicle for 11-minutes or blame the police, perhaps it is time that society places the blame at the feet of the individual who made the conscious decision to endanger the public. By allowing the police to quickly intervene, this will reduce a suspect’s ability to crash into innocent motorist or pedestrians. In addition, those cases brought by suspects claiming a violation of the Fourth Amendment for a tactic during a high-speed pursuit that resulted in injury or death to the suspect, trial courts should evaluate each case beginning with a rebuttable presumption that a suspect who flees in a motor vehicle poses a danger to the public and officers. With this presumption, it is evident by Supreme Court precedent that when the police use tactics that include the use of deadly force to stop a high-speed pursuit, the actions by the officers do not violate the Fourth Amendment against unreasonable seizures. By adopting a policy that reflects this precedent, perhaps more innocent lives like Charlie Viverette, can be spared and the culpability of a high-speed pursuit can be placed where it rightfully belongs.

Yates v. United States: The Supreme Court Lets Florida Fisherman Off the Hook for Sarbanes-Oxley Charge


Last month, the Supreme Court delivered its opinion in Yates v. United States, overturning the Eleventh Circuit and holding that a provision of Sarbanes Oxley – the law enacted in response to the sort of corporate and accounting fraud seen in the Enron scandal – does not apply to the destruction of fish. That’s right, fish – Red Grouper to be specific. While this may seem like the obvious result, considering the activities of South Florida fisherman share little in common with the sort of white collar crimes we associate with Sarbanes-Oxley, the two lower courts hearing the issue reached a different conclusion, and even the Supreme Court was divided 4-1-4. Ultimately concluding Congress had specific intentions when drafting the poorly worded statute at issue, the plurality dug deep into its tackle box of statutory interpretation tools to limit the scope of the broad phrase “tangible object.” As a plain meaning interpretation would render the statute applicable in virtually every instance of evidence tampering, the Court expressed concern over the leverage the threat of twenty years behind bars would provide prosecutors, especially in instances such as this, where the defendant’s conduct amounts to a mere civil infraction.

In August 2007, John Yates, captain of the Miss Katie, a commercial fishing boat based out of South Florida, was six days into an expedition in the Gulf of Mexico when Officer John Jones of the Florida Fish and Wildlife Conservation Commission boarded his vessel to perform a routine inspection. While on board, Officer Jones noticed several fish hanging on the deck that appeared under the legal limit of 20 inches, a violation punishable by fine or fishing license suspension. Suspecting there may be more, Officer Jones proceeded to inspect the remainder of the Miss Katie’s catch, ultimately discovering 72 undersized fish. After separating the undersized fish from the others, Officer Jones issued Yates a citation and instructed him to leave the fish separated until his vessel returned to port, where they could be properly documented and disposed of.

Four days after the initial interaction, Officer Jones again met up with the Miss Katie upon the vessel’s return to port. Jones reinspected the catch, measuring the fish that had been previously separated as under the legal limit. However, after measuring the fish a second time, Officer Jones noticed the sizes did not match up with his records; although the fish were still undersized, most were just barely under 20 inches. Suspecting the fish were not the same fish he measured before, Officer Jones began an investigation in which he discovered Yates had instructed his crewmembers to throw the smaller fish overboard, and to replace them with other fish in the catch. Based on his orders, Yates was indicted for destroying, concealing, and covering up undersized fish to impede a federal investigation, a violation of 18 U.S.C. § 1519.

As noted above, Section 1519 was enacted as part of the Sarbanes-Oxley Act of 2002 – legislation intended to protect investors by targeting acts of corporate fraud. Section 1519, titled “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy,” provides:

“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States…shall be fined under this title, imprisoned not more than 20 years, or both.”

The issue the court had to decide in the case was whether the fish Yates tossed overboard fall within the scope of a “tangible object” as that term is used in the statute. The Department of Justice urged to the Court to apply a plain meaning interpretation of the phrase, a formulation with which the Federal District Court and Eleventh Circuit Court of Appeals agreed. Yates, on the other hand, pointed to Section 1519’s title and origin as a provision of Sarbanes-Oxley, arguing the statute “only applies to records, documents, or tangible items that relate to recordkeeping.”

In a four-one-four decision, Justice Ruth Bader Ginsburg, writing for the plurality, reversed the lower court and agreed with Yates’ interpretation. Focusing on the context in which the phrase “tangible object” appears, the section’s title and location amongst other specialized provisions in the code, and the list of words preceding the phrase, the main opinion concluded “tangible object” within Section 1519 is limited to those objects used to record or preserve information. Relying in part of the principle of noscitur a sociis – “a word is known by the company it keeps” – the court stated, “‘[t]angible object’ is the last in a list of terms that begins ‘any record or document.’ The term is therefore appropriately read to refer, not to any tangible object, but specifically to the subset of tangible objects involving records and documents, i.e. objects used to record or preserve information.” Justice Alito, in his concurring opinion, similarly relied on the statute’s list of nouns and verbs preceding the phrase “tangible object,” as well as the section’s title. In his view, “[a]lthough perhaps none of these features by itself would tip the case in favor of Yates, the three combined do so.”

According to the dissent, authored by Justice Kagan and joined by Justices Scalia, Kennedy and Thomas, the issue was much simpler than the plurality’s “fishing expedition” to come up with an interpretation made it out to be. In their view, the plain meaning of “tangible object” includes fish, and the long list of words surrounding the phrase expressed Congress’ intent that the statute has a wide range of application. Despite agreeing with the plurality that Section 1519 is a “bad law – too broad and undifferentiated, with too-high maximum penalties, which gives prosecutors too much leverage and sentencers too much discretion[,]” the dissent saw the plurality as replacing a statute enacted by Congress with an alternative of its own design.

Although the plurality’s opinion in Yates reads like a lesson in obscure principles of statutory interpretation, the oral argument in this case provides the greatest insight to the justifications for the holding. After asking the Department of Justice attorney about several hypothetical scenarios such as an individual throwing back a single undersized fish, someone who picks and disposes of a protected flower, or a camper who covers embers from a fire where it was not allowed, the Court appeared reluctant to interpret the statute in a manner that would allow its application to such a wide variety of trivial cases. In the words of Chief Justice Roberts, the statute’s 20-year maximum sentence would provide prosecutors “extraordinary leverage,” encouraging offenders to take plea deals that would still exceed what is fitting for their conduct. Of particular concern to the Justices was a statement made by the DOJ attorney that it is agency policy to seek the most severe punishment available when pursuing prosecution.

As pointed out by the dissent, Section 1519 is not an outlier, “but an emblem of a deeper pathology in the federal criminal code.” Overly broad statutes with high maximum punishments and affording prosecutors and judges a great deal of discretion are not uncommon in our system, and undoubtedly contribute to our country’s status as the world leader in incarceration. Although the decision in Yates at times seems as though the Court was reaching to achieve the desired outcome, this case sends an important message that similar broadly worded statutes will be closely scrutinized, including not only their legislative history, but also the context, title, placement in the code, and the potential far reaching consequences.

Proposition 8 Oral Arguments

Three advocates addressed the Supreme Court today in Hollingsworth v. Perry, the Prop 8 case. The audio of the arguments is available on Supreme Court website, under the Hollingsworth v. Perry tab.  The first advocate argued on behalf of the petitioners, maintaining that same-sex and opposite-sex couples are not “similarly situated” for Equal Protection purposes. The second argued on behalf of the respondents, arguing that denying same-sex couples the ability to marry violated their constitutional rights. The third advocate argued on behalf of the United States as amicus, proposing that the decision to allow inclusive domestic partnerships but not the label of marriage be limited to states. While each advocate attempted to begin his argument with a grand statement about the importance of this case, each was reminded to address the standing issue first.

Petitioners argued that homosexuality should not be viewed as an immutable characteristic. The foundation of this argument was the notion that same-sex couples are not capable of procreation, a characteristic that separates them from heterosexual couples. The state has an interest, petitioners argued, in promoting marriage as the optimal environment for procreation and raising children. Petitioners further argued that the same sex marriage “experiment” is still new and that there is limited data on the potential harms and benefits of such arrangements on society.

The biggest challenge to petitioners’ argument came from Justice Kagan, who inquired about the underinclusivity of this argument. Justice Kagan asked if infertile heterosexual couples should be allowed to marry. Justice Kagan, herself born in 1960, then asked if heterosexual couples over 55 should be allowed to marry. Those couples, she explained, would not likely be capable of bearing children.

The thrust of this argument is that the state cannot moderate who marries based on their procreative ability. Clearly, the Court explained, a regulation requiring couples to submit to fertility questionaires before being granted a marriage license would be unconstitutional. Fertility is a requirement that the state simply cannot enforce.

Respondents argued that same sex couples were a protected class, as homosexuality represents an immutable characteristic. Respondents maintained that restricting marriage to heterosexual couples denied to same-sex couples rights that heterosexual couples enjoy. Respondents also mentioned the rights of the children of same sex couples, who are denied the opportunity to have two parents whose relationship is acknowledged under the law as legitimate.

Justice Scalia presented the biggest challenge to respondents’ argument. Justice Scalia, known to base many of his findings on historical and traditional definitions of the law, inquired about the history of marriage. In its broadest articulation, marriage has been a union between a man and a woman since its inception, and indeed before the Constitution was written. Justice Scalia asked when denial of marriage to same sex couples became unconstitutional, which sparked a back and forth debate that seemed to frustrate both Justice and advocate.

Respondents first addressed this question with another question, asking when antimiscegenation laws became unconstitutional, but Justice Scalia had a quick response: when the Fourteenth Amendment passed. Respondents then proposed that when homosexuals were recognized as a protected class, forbidding them rights became unconstitutional. Justice Scalia then inquired when that took place, to which respondents had no answer. Justice Scalia ended his questioning by asserting that the court could not make a determination, given the uncertainty of this event.

Finally, the Solicitor General addressed the court as amicus on behalf of the United States government. The government’s position was assertedly limited, affecting only the eight states that allow for essentially all the state benefits of marriage through domestic partnerships, and merely restrict the use of the word “marriage.” The United States asserted that denial of this title is unconstitutional, as there is no rational basis to deny it when the domestic partnership status affords all the rights of marriage.

A few justices challenged this proposition, mainly because it is somewhat confusing on its face. The government’s position suggests that offering more rights to a class might actually be less constitutionally valid than offering fewer rights to that class. Indeed, the government argued that the states not offering domestic partnerships would be unaffected by this ruling.

The argument is not as perplexing as the justices proposed. The government’s position is merely limited to the facts of this case. California offers domestic partnerships with all the benefits of a marriage but without the title. The government’s position is that California’s formulation, specifically, is invalid, not that other states’ laws are alternatively valid. As amicus explained, the issue of a broader, more fundamental right to marriage should be left to another case.

It is unclear how this case will be determined. As anticipated, the more conservative justices appeared critical of respondents, while more progressive justices appeared critical of petitioners. But this is not the end of the discussion. There is still the issue of standing to contend with, and a few of the justices, Justice Kennedy in particular, questioned the wisdom of granting certiorari in the first place. It is still possible that the case will be determined not on the merits, but on the issue of standing. If that is the case, the battle for same-sex marriage will be saved for another day.

Hollingsworth v. Perry: United States Supreme Court Grants Certiorari to Hear the ‘Prop 8’ Case

As the marriage equality battle enters the U.S. Supreme Court, which will take up both the Defense of Marriage Act and California’s Proposition 8, Shawn Barnett, Golden Gate University Law Review’s Managing Editor, offers a Case Summary of Hollingsworth v. Perry, starting all the way back in 2008 with In re Marriage Cases.

A generation ago, the notion of a legal basis for same-sex marriage was so disregarded that the United States Supreme Court dismissed a case involving the issue without even writing an opinion.  On February 7, 2012, the United States Court of Appeals for the Ninth Circuit affirmed a decision striking down a ban on same-sex marriage in the nation’s most populous state as violative of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

While forty years had passed between the two decisions, the controversy surrounding same-sex marriage in California lay dormant until 2004 when then-San Francisco Mayor Gavin Newsom became a prominent figure in the fight for marriage equality.  He was the driving force behind a protest described as “civil disobedience,” issuing marriage licenses to same-sex couples.  This protest, and the four thousand marriages that took place before a court injunction halted them, were the triggering events of an issue that has divided the state for the better part of the last decade.

Those marriages led to a series of lawsuits culminating in a ruling by the California Supreme Court declaring the denial of same-sex marriages unconstitutional, followed by a state constitutional amendment effectively reversing that ruling.  The controversy culminated in the Ninth Circuit’s decision, discussed here.  Eight years and over seventy-three million dollars later, this controversy seems to have been decided—at least for Californians—with the opinion in Perry v. Brown.

The United States District Court for the Northern District of California was the first federal court to consider Proposition 8.  Judge Vaughn Walker issued his judgment for the plaintiffs, finding Proposition 8 unconstitutional based on the Equal Protection Clause of the Fourteen Amendment of the United States Constitution because Proposition 8 discriminated against same-sex couples without any rational reason for doing so.

The Ninth Circuit has twice considered the issue of same-sex marriage.  After the District Court’s decision, a three-judge panel heard the appeal.  This opinion, authored by Judge Stephen Reinhardt, affirmed the District Court’s conclusion that Proposition 8 violated the Fourteenth Amendment of the U.S. Constitution.  The majority agreed with the District Court that Proposition 8 violated the Fourteenth Amendment of the United States Constitution.  Finding no other basis than discrimination against same-sex couples as the motivation behind Proposition 8, the court determined that it was invalid.  The second time the Ninth Circuit weighed in on Proposition 8, it was to deny a request for a rehearing en banc.

On December 7, 2012, the Supreme Court of the United States granted the writ of certiorari requested by the defenders of Proposition 8.  Now titled Hollingsworth v. Perry, the Supreme Court directed both parties to argue “[w]hether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman” and “[w]hether petitioners have standing under Article III, § 2 of the Constitution in this case.”

While the Ninth Circuit’s ruling and subsequent denial for rehearing appears to be a victory for marriage equality, the narrow holding of Perry had focused specifically on the validity of Proposition 8 as an amendment to the California Constitution, rather than on same-sex marriage as a fundamental right.  However, with the granting of certiorari to a case involving the Defense of Marriage Act, it would appear that the Supreme Court will decide both cases on their merits and make a determination of the rights of same-sex couples to marry under the Fourteenth Amendment.

To allow for a full understanding of the case now before the Supreme Court, this Case Summary covers both opinions by the Ninth Circuit Court of Appeals; that is, the initial three-judge decision and the subsequent denial for rehearing en banc.

Click here to view the full Case Summary.