First responders live in a world measured by split seconds. During an emergency, deciding whether an action—or inaction—is appropriate can have drastic and immediate consequences. The circumstances surrounding such decisions can change quickly.
The legal fabric of society can also change in an instant, rendering once-acceptable practices as constitutional violations. In the most recent term of the Supreme Court of the United States (SCOTUS), no less than three such decisions were issued, transforming what constitutes acceptable practices for public safety professionals.
Behaviors and reflexes, however, are not so easily changed. Training coordinators and department heads must be deliberate about implementing policies and providing education to accommodate new law.
Kingsley v. Hendrickson
Decided on June 22, 2015, this case has immediate implications for correctional officers, and possibly signals a change in use of force jurisprudence for all peace officers.
In 2010, while awaiting trial for a drug charge in a Wisconsin county jail, petitioner Michael Kingsley repeatedly refused instructions from correctional officers to remove a piece of paper covering a light fixture above the bed in his cell. Kingsley had to be forcibly removed from his cell and placed in handcuffs, which involved a correctional officer placing a knee in Kingsley’s back, stunning him with a Taser for five seconds, and allegedly slamming Kingsley’s head into the concrete bunk.
Under 42 USC § 1983, Kingsley filed suit seeking damages for excessive use of force in violation of due process. At trial, the jury was instructed that the correctional officers were not liable unless they recklessly disregarded Kingsley’s rights, and accordingly ruled in their favor. At issue during the subsequent appeals was whether the officers’ use of force needed to be subjectively unreasonable—the officers knew they were violating Kingsley’s rights—or just objectively unreasonable from the perspective of a reasonable officer on the scene.
Recognizing that jail officials are expected to preserve internal order and discipline, as well as maintain institutional security, the Court nonetheless held that the objective standard was more appropriate. Though a subjective standard applies to convicted criminals, the court reiterated that “pretrial detainees cannot be punished at all,” and are being held only for their safe custody.
In the wake of the decision, legal scholars predict that this case may signal a change across the board for what constitutes appropriate or actionable use of force. However, for those worried about an influx of claims by the new standard, the Prison Litigation Reform Act of 1995 was designed to deter the filing of frivolous litigation against prison officials. “Objectively unreasonable” standards in other contexts have not resulted in an excessive number of lawsuits.
Grady v. North Carolina
A case with which most law enforcement agencies are likely already familiar—United States v. Jones (2012)—previously established that officers are within the purview of the Fourth Amendment when they install a GPS tracking device on a suspect’s vehicle. Whether and to what extent the Court’s holding applied to other tracking mechanisms, however, remained unclear.
On March 15, 2015, SCOTUS provided guidance on this topic. Petitioner Torrey Dale Grady, twice convicted as a sex offender in North Carolina, was ordered upon his release to wear a satellite-based ankle monitoring system for the remainder of his life. Grady challenged the decision, arguing that his Fourth Amendment rights to be free from unreasonable searches and seizures would be unreasonably impinged.
Despite the State’s objections that this situation was distinguishable from the earlier GPS decision because it involved a civil, rather than a criminal, monitoring program, the Court nonetheless held that the monitoring program constituted a search. It echoed earlier decisions which held that a search occurs whenever the government gains information by physically intruding on constitutionally protected areas. Such searches become unconstitutional if they are unreasonable under a totality of the circumstances.
However, the Court declined to clarify whether lifelong sex offender monitoring is reasonable, instead remanding that portion of the decision back to the lower courts. Regardless, public safety and criminal justice professionals will need to reassess their search and seizure policies to reflect the Court’s increasingly-restrictive stance.
Obergefell v. Hodges
The Supreme Court’s recent ruling authorizing same sex marriage not only signals sweeping social change, but also may have unforeseen consequences for public safety professionals, according to Dr. Ron Wallace, associate professor of Criminal Justice at American Military University.
Departments leery of discrimination lawsuits will need to readdress some of their training and policies. For instance, conjugal visits at correctional facilities may need to reflect the new definition of marriage or risk being held accountable for disparate treatment of same sex couples. As stated by Dr. Wallace, “Agencies must recognize that failing to deal with same-sex couples the same way as heterosexual couples has the potential to open the door for discrimination-based lawsuits.”
In this vein, departments may want to consider sensitivity training for personnel if local cultural values conflict with the new law. Such training would not only be beneficial for interactions with the public, but also internally. One of the petitioners in this landmark case was an Army Reserve Sergeant First Class and a reminder that same sex couples exist among the ranks of first responders.
The impact of the Obergefell decision for public safety professionals is not restricted to the confines of discrimination policies and lawsuits, however. Perhaps the most significant implication is for domestic violence incidents, which represent 15-50 percent of calls to police at most departments. The National Violence Against Women survey revealed that men in same-sex relationships are more than three times as likely to experience domestic violence than those in heterosexual relationships. (Women are 75 percent more likely.) If there is an increase in same-sex relationships triggered by the Court’s holding, departments could anticipate a greater need for domestic violence intervention.
Due to spousal privilege, eliciting testimony from same-sex partners during trial may also prove to be more difficult now that the Court has recognized the legitimacy of these marriages. This privilege—invoked by a spouse to refuse to testify against their significant other—extends to any observation or communication that occurred during or prior to the marriage, so long as the couple is still married at trial.
As with any new ruling, loopholes can be created. Criminal justice professionals will need to be mindful of identifying creative wrinkles which may not have existed before.
There is no grace period for constitutional violations, so departments should work immediately to create and implement policies implicated by the Supreme Court’s recent decisions. At a minimum, corrections personnel must be mindful that use of force standards have changed, and that conjugal visits should be extended to same sex partners to avoid discrimination claims.
Likewise, police officers must reevaluate invasive surveillance programs for reasonableness and be prepared to defend such decisions. Nobody knows with complete certainty what the law will say a year, month, or minute from now, but by using the Supreme Court as a barometer of social change, departments will best be able to make informed policy decisions.