Category Archives: SCOTUS

Memphis’s 48-Hour Investigative Hold Policy Heads to the Supreme Court

By Daniel Horwitz:

In a recent petition for writ of certiorari filed with the United States Supreme Court, a Tennessee defendant represented by Kirkland & Ellis – a white shoe law firm based in Washington, D.C. – has presented a direct challenge to the Memphis Police Department’s once-pervasive “48-hour hold” policy.  The defendant’s cert. petition draws heavily on legal scholarship published by this author and by University of Memphis Law Professor Steven Mulroy in 2015 and 2013, respectively.[1]  Both law review articles condemn as unconstitutional the practice of arresting suspects without a warrant and intentionally delaying their right to a hearing before a judge so that law enforcement can use the delay to gather additional incriminating evidence.

Until recently, such 48-hour investigative holds were utilized regularly throughout Shelby County, with some estimates indicating that they were carried out approximately 1,000 times per year.[2]  As a general rule, suspects who were subjected to the Memphis Police Department’s “hold” policy would be arrested without a warrant on suspicion of having committed a crime, and they would then be interrogated by law enforcement for the next 48 hours.  If additional incriminating evidence was discovered in the interim, then the individual would be brought in front of a magistrate for a “Gerstein hearing”: a constitutionally required proceeding in which a judge or magistrate reviews the legitimacy of a warrantless arrest to ensure that the arresting officers had probable cause to make it.  If additional incriminating evidence was not discovered, however, then the officers would typically let the suspect go.

The primary problem with such a practice, however, is that it violates the Fourth Amendment’s prohibition against unreasonable seizures.  In the 1991 case County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991), the U.S. Supreme Court made clear beyond any doubt that intentionally delaying a suspect’s Gerstein hearing “for the purpose of gathering additional evidence to justify the arrest” is unconstitutional.  Notwithstanding this unambiguous declaration, however, some courts – including the Tennessee Supreme Court – have repeatedly turned a blind eye toward law enforcement’s illicit use of “investigative holds” so long as it was ultimately determined that the arresting officers had probable cause to make the arrest in the first place.  However, as this author details in his (award-winning!)[3] 2015 Memphis Law Review article: The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, this holding is in error for five separate reasons:

First, this conclusion confounds the essential distinction between a judicial determination of probable cause, which is a constitutional right, and a probable cause determination made by law enforcement, which carries no constitutional significance.  Second, it violates the “administrative purpose” requirement initially established by the Supreme Court in Gerstein and subsequently reaffirmed in McLaughlin, which permits law enforcement to delay a warrantless arrestee’s Gerstein hearing for administratively necessary reasons only.  Third, this conclusion fails to grasp the crucial distinction between, on the one hand, delaying a warrantless arrestee’s Gerstein hearing for investigative reasons, and on the other, continuing an investigation while the administrative steps leading up to a warrantless arrestee’s Gerstein hearing are simultaneously being completed.  Fourth, such a holding renders McLaughlin‘s express prohibition on “delays for the purpose of gathering additional evidence to justify [an] arrest” superfluous, because all arrests that are unsupported by probable cause are already prohibited by the Fourth Amendment.  Fifth, by introducing hindsight bias into probable cause determinations and by allowing a substantial number of warrantless arrests to evade judicial review of any kind, this holding substantially diminishes the value of the check on law enforcement that Gerstein was meant to provide.[4]

This is the second year in a row that investigative holds have reached the steps of the Supreme Court, with a similar petition for writ of certiorari having been filed by two veteran Supreme Court litigators last Spring.  There is also an existing (and growing) Circuit split on the issue, which significantly raises the likelihood that the pending petition will be granted.  Given the vanishingly small number of cases accepted by the Supreme Court each term, however, and given that the Court is currently short-staffed as a consequence of the U.S. Senate’s unprecedented refusal to hold confirmation hearings for Supreme Court nominee Merrick Garland, the likelihood of any individual cert. petition being accepted for review remains minuscule.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

[1] Daniel A. Horwitz, The First 48: Ending the, Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, 45 U. Mem. L. Rev. 519 (2015), available at https://works.bepress.com/daniel_horwitz/3/; Steven J. Mulroy, “Hold” On: The Remarkably Resilient, Constitutionally Dubious 48-Hour Hold, 63 Case W. Res. L. Rev. 815 (2013).

[2] Horwitz, supra at 529 (citing Mulroy, supra, at 846).

[3] The First 48 was selected as a “must-read” publication by the National Association of Criminal Defense Lawyers’ “Getting Scholarship into Court Project” and featured in the June 2015 edition of The Champion magazine.

[4] Horwitz, supra, at 522–23 (citations omitted).

Can Rep. Womick Impeach Governor Haslam and U.S. Supreme Court Justices Breyer, Ginsburg, Kagan, Kennedy and Sotomayor over the same-sex marriage ruling?

Can Rep. Womick impeach Governor Haslam and U.S. Supreme Court Justices Breyer, Ginsburg, Kagan, Kennedy and Sotomayor over the same-sex marriage ruling?

In a word:  No.

Like ScotBlog?  Join our email list or contact us here, or follow along on Twitter @Scot_Blog and facebook at https://www.facebook.com/scotblog.org

 

 

SCOTUS Decision Day Roundup: Supreme Court upholds ACA subsidies and approves disparate impact claims under the Fair Housing Act.

By Daniel A. Horwitz

Today was a major decision day at the Supreme Court of the United States.  Although the Court released only two opinions, both of today’s decisions carry enormous social import in Tennessee and throughout the nation.  Each also represents a major victory for the Obama Administration, which secured wins in support of its health care and housing policies.  The day’s two decisions were as follows:

1.  King v. Burwell (6-3):

In 2010, Congress passed the Patient Protection and Affordable Care Act (“the ACA”), which has since been derided by many as “Obamacare.”  Among other provisions of the law, the ACA sought to make insurance more affordable by giving refundable tax credits to individuals with household incomes that fell between 100 percent and 400 percent of the federal poverty line.

The ACA also required the creation of an “Exchange” in each state, which is essentially a marketplace that allows people to compare and purchase health insurance plans.  The Act afforded each state the option of establishing its own Exchange, but it also provided that the federal government would establish “such Exchange” if a state chose not to establish its own exchange.  At issue in this case, the ACA further provided that tax credits “shall be allowed” to any “applicable taxpayer,” but only if the taxpayer had enrolled in an insurance plan through “an Exchange established by the State[.]”  Thus, the specific question presented in this case was whether tax credits would be available on all exchanges, or whether they would only  apply to exchanges established by states.

Held:  Tax credits are available to individuals in states that have a federal exchange.   According to the Supreme Court:  “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”  Consequently, based on the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme,” tax credits are available to individuals who purchase health insurance on either a federally-created or a state-created insurance exchange.

Special commentary and Tennessee connections:  The importance of the Supreme Court’s decision in King v. Burwell cannot be overstated.  In light of the continuing controversy surrounding the Affordable Care Act, this decision carries tremendous social and political significance.  Consequently, Continue reading SCOTUS Decision Day Roundup: Supreme Court upholds ACA subsidies and approves disparate impact claims under the Fair Housing Act.

SCOTUS Decision Day Roundup: Spider-Man royalties, raisin takings, and some Supreme Court humor

By Daniel A. Horwitz

The Supreme Court of the United States issued four opinions today that addressed patent royalty payments, administrative searches of hotel guest logs, use of force against detainees, and the application of the Fifth Amendment’s takings clause to personal property.

A few of the Justices also offered a rare, entertaining glimpse into Supreme Court humor.  “[H]aving the Court of Appeals calculate ‘just compensation’ in this case would be a fruitless exercise,” Justice Thomas wrote in a concurring opinion involving government takings of raisins.  “In this world, with great power there must also come—great responsibility,” quoted Justice Kagan in a case involving royalties over a Spider-Man toy, who also quipped that “[p]atents endow their holders with certain superpowers,” and that “[t]he parties had contemplated that royalties would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can).”  The day’s four opinions were as follows: Continue reading SCOTUS Decision Day Roundup: Spider-Man royalties, raisin takings, and some Supreme Court humor

SCOTUS Decision Day Roundup: A Criminal Justice and First Amendment Jubilee

By Daniel A. Horwitz

The Supreme Court of the United States issued six opinions today, several of which may affect the development of Tennessee law or pending Tennessee cases.  The day’s opinions were largely centered on criminal justice and first amendment issues, and their holdings were as follows: Continue reading SCOTUS Decision Day Roundup: A Criminal Justice and First Amendment Jubilee