SCOTUS Year in Review : The Impact of Recent Rulings on Police Procedures
A look at the nuances of free speech related to threats , standards for home entry , use of force and qualified immunity , and evolving regulations on firearms
By Terrence P . Dwyer , Esq .
Reprinted with permission from Police1 , www . police1 . com .
The New Jersey Police Chief Magazine | January 2024
In this annual summary of recent U . S . Supreme Court decisions and their implications for police , we focus on the nuances of free speech related to threats , standards for home entry and surveillance , use-of-force and qualified immunity , and evolving regulations on firearms and public safety .
Harassment and stalking Social media platforms increase participation in public discourse . They provide a true democratization of thought — open and expansive — yet they are also a forum for vitriolic speech . Sometimes harsh criticism and coarse language devolve even further into public rants , accusations and threats . While speech is a guarded constitutional right , there are limits .
A true threat — what the U . S . Supreme Court defined in Virginia v . Black , 538 US . 343 ( 2003 ) as “ Intimidation ... where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death ” - is not protected speech and often results in police response to a criminal complaint based on state statutes proscribing harassment or threatening behavior . Police officers make arrests based on the content of the alleged threat , which is permitted since reasonable time , place and manner restrictions can be placed on speech for public safety purposes ( Cox v . New Hampshire , 312 U . S . 569 ( 1941 )). However , the Supreme Court ’ s June 2023 decision in Counterman v . Colorado requires that the state prove a defendant had some subjective understanding of their statements ’ threatening nature , even if it only rises to a level of recklessness . What this means is that reliance on a victim ’ s objective expression of fear or intimidation is not enough , the government must prove the subjective element in an unprotected speech case . Justice Kagan ’ s majority opinion acknowledged the increased difficulty in the prosecution of true threat cases resulting from the Court ’ s decision but said such a standard was not necessary , otherwise protected , non-threatening speech is endangered .
The case came about when Billy Raymond Counterman was arrested for stalking after sending numerous messages via Facebook to female Colorado musicians Coles Whalen . The messages were sent over two years and contained some benign communications ( Good morning , sweetheart ”; “ I am going to the store would you like anything ?”) and other more frightening messages (“ Fuck off permanently .”; “ Staying in cyber life is going to kill you .”; “ You ’ re not being good for human relations . Die .”) Whalen did not k now the sender and filed a police complaint . Counterman was charged under a state statute making it unlawful to repeatedly make any form of communication with another person in “ a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person ... to suffer serious emotional distress .” Colo . Rev . Stat 18-3-602 ( 1 ) ( c )( 2022 ). The stalking statute Counterman was charged under prohibited the repeated following , approaching , contacting , or surveilling of another person . Other than the Facebook posts , prosecutors had no other evidence against Counterman .
While the case focused on the error of the state ’ s sole reliance on an objective standard — a victim ’ s expression of fear — the Court also established a minimum requirement of recklessness on the part of a defendant as the standard for proving subjective awareness of their conduct ’ s impact upon a victim . Eight years earlier in Elonis v . United States , 575 U . S . 723 ( 2015 ), the Supreme Court overturned a conviction under the federal anti-stalking statute . In the 8-1 majority opinion Chief Justice Roberts wrote : “ the jury was instructed that the Government need prove only that a reasonable person would regard Elonis ’ s communications as threats , and that was error . Federal criminal liability generally does not turn solely on the results of an act without considering the defendant ’ s mental state .” Counterman said that the prosecution must at least provide a defendant “ consciously disregarded a substantial risk that his communications would be viewed as threatening violence .”
This latest Supreme Court case focusing on speech should remind police officers of the necessity , when
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