The New Jersey Police Chief Magazine | January 2025
Continued from previous page “ can strip the Second Amendment right of any one subject to a protective order — even if he has never been accused or convicted of a crime .” Answering , with “ It cannot ,” Justice Thomas further wrote that “ Court and Government do not point to a single historical law revoking a citizen ’ s Second Amendment right based on possible interpersonal violence ... in the interest of ensuring the Government can regulate one subset of society , today ’ s decision puts at risk the Second Amendment rights of many more .” Patrol officers responding to domestic violence calls may respectfully disagree with him on this last case .
Malicious Prosecution Police often arrest individuals for multiple charges . Probable cause for one crime though does not alleviate the requirement that probable cause exists for all crimes charged . By a 6-1 majority , the Court in Chiaverini v . City of Napoleon overturned a Sixth Circuit decision that affirmed a district court ’ s grant of summary judgment in favor of police officers against a malicious prosecution claim under 42 USC § 1983 .
The petitioner was arrested for two misdemeanor offenses and a felony money laundering charge . The latter he claimed was based on lies about what he stated to the officers . He was arrested and had property and records seized from his business . The charges were later dismissed , and he initiated a malicious prosecution claim against the officers . Both the district court and Sixth circuit held that the presence of probable cause for at least one offense negated a malicious prosecution claim . However , the Supreme Court overruled the Sixth Circuit and said that the presence of probable cause is not categorically applied to an arrest .
Justice Kagan wrote that “ courts should evaluate suits like Chiaverini ’ s charge by charge .” Malicious prosecution claims can be sustained if a plaintiff can show an unlawful charge caused them to be arrested without probable cause .
Public Nuisance Laws The case City of Grants Pass v . Johnson took aim at anti-camping on public property ordinances . At issue was the City of Grants Pass , Oregon ordinance establishing civil and criminal penalties for camping on public property . The city established anti-camping , anti-sleeping and parking exclusion ordinances to dissuade homeless individuals from residing on its public property . Police officers were authorized to issue written exclusion orders to individuals with two or more violations . A class-action lawsuit on behalf of a representative plaintiff was initiated with the claim being that such ordinances creating civil and criminal penalties were cruel and unusual punishment against the homeless and violated the Eighth Amendment .
It is axiomatic that individuals are not punished in the United States because of their status . In Robinson v . California , 370 U . S . 660 ( 1962 ), the Supreme Court said it was unconstitutional to arrest someone for being a drug addict . Criminal law requires an act and accompanying mental state , such as an intent to possess or sell drugs . Five years later in Powell v . Texas , 392 U . S . 514 ( 1967 ), the Court said an alcoholic could be arrested for public intoxication because the act of drinking to the point of public intoxication is distinct from being an alcoholic .
The Grants Pass decision similarly distinguished between punishing individual status versus a neutrally applied statute , like public intoxication Justice Gorsuch ’ s 6-3 majority opinion held that enforcement of generally applicable laws regulating camping on public property does not constitute cruel and unusual punishment ” prohibited by the Eighth Amendment . He maintained a few key points in doing so :
1 . |
The Eighth Amendment ’ s Cruel and Unusual Punishments Clause historically limited punishments upon conviction , not the |
behaviors that can be criminalized . |
2 . |
Robinson v . California was a narrow holding distinguishable from laws prohibiting specific conduct . |
3 . |
The anti-camping ordinance is neutrally applied , regardless of an individual ’ s housing status . |
As always , officers must remain aware of significant U . S . Supreme Court decisions and how they may impact their enforcement role . These decisions could redefine police procedures , training and community interactions nationwide . Officers and agencies alike must prepare for the ripple effects on daily operations and policy frameworks .
About the Author Terrence P . Dwyer retired from the New York State Police after a 22-year career as a Trooper and Investigator . He is a tenured professor of legal studies at Western Connecticut State University and an attorney consulting on law enforcement liability , disciplinary cases , critical incidents , and employment matters . He is the author of “ Homeland Security Law : Issues and Analysis ,” Cognella Publishing ( 2024 ).
9