Case Law Updates


Issue: Whether an officer has to establish that the suspect is both armed and dangerous before the officer can conduct a lawful Terry frisk

Facts:   Police officers received a tip that a man located in a parking lot known for drug activity had just loaded a firearm, concealed it in his pocket, and got into a car driven by a woman. An officer located the car and conducted a traffic stop after he saw that its occupants were not wearing seatbelts. The officer ordered Robinson, the passenger, to exit the car, and when he did, another officer frisked Robinson for weapons. The officer seized a loaded gun from the front pocket of Robinson’s pants. Robinson was arrested for being a felon in possession of a firearm. Robinson filed a motion to suppress the firearm, claiming the officer’s frisk violated the Fourth Amendment. Robinson argued that to support a Terry frisk for weapons, an officer must reasonably suspect the person being frisked is both armed and dangerous. Here, while the officer might have suspected that he was carrying a loaded firearm, Robinson claimed the officer had no facts to support a belief that he was dangerous. At the time of the frisk, West Virginia residents could lawfully carry a concealed firearm if they had received a concealed carry license from the state. According to Robinson, as far as the officer knew, the state could have issued him a permit to lawfully carry a concealed firearm. The court disagreed, noting the Supreme Court has repeatedly recognized that whenever police officers conduct a traditional Terry stop or a traffic stop, they subject themselves to a risk of harm. Consequently, established Supreme Court case law imposes two requirements before an officer may conduct a frisk. First, the stop must be lawful. Second, that during the valid but forced encounter, or stop, the officer must reasonably suspect that the person is armed.

Held: As the Supreme Court found in Terry v. Ohio, the officer reasonably suspected Terry was armed “and thus presented a threat to the officer’s safety” while the officer was conducting his investigation. The Supreme Court deliberately linked “armed” and “dangerous,” recognizing that frisks in subsequent cases were lawful where the stops were valid and the officer reasonably believed that the person stopped “was armed and thus” dangerous. The use of “and thus” recognizes that the risk of danger is created simply because the person, who was forcibly stopped, is armed.

Bottom Line: An officer who makes a lawful traffic stop, and who has a reasonable suspicion that one of the vehicle’s occupants is armed, may frisk that person for the officer’s protection and the safety of everyone on the scene.

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Issue: Whether a police officer, who arrived late and assumed his fellow officers followed proper procedures, should be denied qualified immunity in a civil lawsuit for shooting an individual?

Facts: Officers responded to a residence after a call regarding a recent road rage incident. The officers approached the house tactfully, knocked on the door and demanded that the occupants come outside. Witnesses testified that the officers did not identify themselves as police. The occupants announced that they had guns. As they did, a third officer (White) arrived and heard that statement. He took cover as the occupants yelled at the officers and fired two shotgun blasts out of the residence. The third officer returned fire and killed one of the occupants

The District Court and 10th Circuit Court of Appeals held that an officer who arrives late at an ongoing police action after witnessing shots being fired by one of several individuals in a house surrounded by other officers cannot claim qualified immunity when that officer shoots and kills an armed occupant of the house without first giving a warning. The 10th Circuit found that, since the officer had a position behind a stone wall and had to move before he fired, he was required to first give verbal warnings to the occupants before firing at them.

Held: Reversed. The Supreme Court ruled that the officer did not violate clearly established law, and therefore was entitled to qualified immunity. The Court repeated that, under Mullenix and previous cases, qualified immunity attaches when an official’s conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

The Court found that, under the Fourth Amendment, clearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action, in circumstances like this one, from assuming that his fellow officers have followed proper procedures, such as officer identification. The Court then wrote that nothing requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one the officer confronted here.

Bottom Line: The court said the officer couldn’t be sued because there was no case on the books finding an officer liable under the exact same circumstances.

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Issue: Whether the discipline of two police officers based on their Facebook posts, which was in violation of the police department’s policy, was a violation of their First Amendment rights?

Facts: Two officers made Facebook posts stating some negative comments about their police department. Sergeants learned of the exchange and notified the Chief of Police. The Chief determined it violated the Department’s social networking policy and instructed the sergeants to discipline the officers. The officers received written reprimands and were later excluded from participating in a promotion process. Later, the officers stated they were going to challenge the disciplinary actions alleging a First Amendment violation. Afterwards, the officers became the subject of complaints and investigations within the Department. The Chief decided  to fire one of the officers, but that officer resigned before that happened.

Thus, there are several steps that a court will apply in deciding whether an officer, or any public employee’s speech is protected by the First Amendment:

  1. Is the speech about a matter  that would be of public concern?  Note, speech that is purely personal is not protected and any review will end if the court determines that the speech is purely personal
  2. If the court has determined that the speech is a matter of public concern, the court will turn to a balancing of the employee’s interest as a citizen in commenting on the matter of public concern versus the interests of the law enforcement agency (or any governmental entity) “in promoting the efficiency of the public services it performs through its employees.”
  3. Note: Speech that is found to be disruptive to the law enforcement operation may be subject to restriction even if it is a matter of public concern.

Held: The Petersburg Police Department Policy was Unconstitutional due to the Negative Comments Provision that states.

“Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public's perception of the department is not protected by the First Amendment free speech clause, in accordance with established case law.”

This court determined this provision was overbroad and would restrict speech/expression that was protected by the First Amendment.

Discipline of these Officers:

The discipline given to these officers was unconstitutional because they were:
1.      Speaking on a Matter of Public Concern AND
2.      The Chief did not establish that the comments would Meaningfully Impair the Efficiency of the Police Department.

The Court found that the law was clearly established and therefore, the Chief was not entitled to qualified immunity.

Bottom Line: Agencies should review Social Networking Policies and any policy limiting employee speech/expression to determine if there are provisions within the policy which would prohibit protected speech that would not impact agency operations.

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