Supreme Court Cases 2000-2001 term. (Legal Digest).

During the 2000-2001 term, the U.S. Supreme Court ruled on several significant constitutional issues relating to criminal law and procedure, as well as cases involving the civil liability of law enforcement officers acting in the performance of their official duties and one case involving the civil liability of state agencies for violations of the Americans with Disabilities Act. The following is a brief synopsis of these cases. As always, local and state agencies must insure that their own state laws and constitutions have not provided even greater protections than the U.S. constitutional standards before relying on these opinions.

City of Indianapolis v. Edmond, 121 S. Ct. 447 (2000)

In 1990, the Supreme Court held that brief, suspicionless seizures at highway checkpoints for the purpose of combating drunk driving was constitutional. (1) In City of Indianapolis v. Edmond, the Court ruled that when the primary purpose of the checkpoint is to locate illegal drugs, the seizure involved is unconstitutional.

A vehicle stop at a highway checkpoint is a seizure under the Fourth Amendment. (2) Supreme Court checkpoint cases have recognized limited exceptions to the general Fourth Amendment rule that a seizure must be justified by some measure of individualized suspicion. In Edmond, the Court declined to add narcotics checkpoints to the limited exceptions.

The opinion distinguished the narcotics checkpoint from the drunk driving checkpoint by examining the motive for the respective stops. The Court recognized that the drunk driving checkpoint was clearly aimed at reducing the immediate hazard posed by drunk drivers on the highways. On the other hand, "[w]hen law enforcement authorities pursue primarily general crime control purposes at checkpoints..., stops can only be justified by some quantum of individualized suspicion." (3)

It is important to note that Justice O'Connor's majority opinion acknowledged that certain emergency situations likely would permit checkpoints even if their primary purpose was ordinary crime control. O'Connor agreed with the lower appellate court's proposition that the "Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route." (4) Edmond, however, signals the end of routine narcotics checkpoints.

Illinois v. McArthur, 121 S. Ct. 946 (2001)

The Supreme Court held that a police officer's refusal to allow residents to enter their homes without a police officer until a search warrant was obtained was a reasonable seizure that did not violate the Fourth Amendment. Police officers, with probable cause to believe that McArthur had hidden marijuana in his home, knocked on McArthur's door and requested his consent to search his home. He refused. The investigating police officers then told McArthur that he was to stay outside of his home and could not reenter it unless accompanied by a police officer. McArthur was prevented from entering the home unaccompanied for about 2 hours while the police obtained a search warrant. When the warrant was issued, the officers searched McArthur's home and found drug paraphernalia and marijuana, resulting in McArthur's arrest. He was charged with misdemeanor possession of those items. He moved to suppress the evidence on the ground that it was the "fruit" of an unlawful police seizure, namely, the refusal to let him ree nter his home unaccompanied.

The central requirement of the Fourth Amendment is one of reasonableness. Although seizures of personal property are presumed unreasonable unless accomplished pursuant to a warrant, there are exceptions to this rule involving special law enforcement needs and diminished expectations of privacy. The Court recognized that the circumstances in this case were exigent, and the seizure of McArthur's home was tailored to that exigency: it was as limited in time as possible and as unintrusive as possible. (5) In reaching its decision, the Court balanced both privacy and law enforcement concerns to determine if the intrusion was reasonable.

The Court cited four reasons for its conclusion that the seizure of McArthur's home was reasonable. First, the police had probable cause to believe that McArthur's home contained evidence of a crime and unlawful drugs. Second, they had good reason to fear that, unless the home was seized, he would destroy the drugs before they could return with a warrant. Third, they avoided an unnecessary, warrantless entry and warrantless arrest simply by preventing McArthur from entering his home unaccompanied (McArthur was not detained). Fourth, they imposed the restraint for a limited period, only as long as reasonably necessary for them, acting with diligence, to obtain the warrant.

The third and fourth points made by the Court are the most important considerations to law enforcement. The determination of reasonableness is based on the specific facts of each case, that is; the specific circumstances and the options available to--and ultimately taken by--the police. The fact that the police waited outside McArthur's home, thus minimizing the time spent inside without a warrant, was a significant consideration to the Court. Anything police can do to be less intrusive to the subject's privacy will be well received by a court later evaluating their reasonableness. Like any temporary Fourth Amendment seizure (such as an investigative detention), any unnecessary delay or lack of investigative diligence may render a seizure unreasonable. Obviously the warrant must be secured as quickly as possible, to include consideration of a telephonic warrant or any other means to limit the delay. New and emerging technologies are decreasing the time to acquire a warrant. Failing to take advantage of a tele phonic or other enhanced method of securing a warrant may render the delay unnecessarily long and, therefore, unreasonable.

Board of Trustees of the University of Alabama v. Garrett, 121 S. Ct. 955 (2001)

The question before the Supreme Court in this case was whether the Eleventh Amendment to the Constitution bars federal lawsuits for money damages by individuals against states under the Americans with Disabilities Act (ADA). The Eleventh Amendment to the Constitution is brief: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The Supreme Court has ruled that the amendment means that nonconsenting states may not be sued by private individuals in federal court, whether they are citizens of the state itself, or another state or foreign power. However, Congress may take away the states' Eleventh Amendment immunity in certain circumstances. The question before the Court was whether the ADA properly abrogated that immunity making the states subject to federal lawsuits under the act.

Ms. Garrett was a nurse employed by the University of Alabama in Birmingham Hospital, a state hospital. She was diagnosed with breast cancer and her treatment forced her to take extended leave from her job. When she returned, her employer told her she would have to give up her former position as Director of Nursing. She applied for and received a lower paying job as a nurse manager. She sued, claiming the hospital had discriminated against her based upon her disability in violation of the ADA. The District Court dismissed the case, finding the state was immune from suit under the Eleventh Amendment. The U.S. Court of Appeals for the Eleventh Circuit reversed, ruling that Congress had properly abrogated the states' Eleventh Amendment immunity when it passed the ADA.

The Supreme Court ruled that Congress did not properly abrogate the states' Eleventh Amendment immunity when it passed the ADA. Consequently, nonconsenting states, and units of those states such as state police and state hospitals, are not subject to lawsuits in federal court by private individuals for money damages for violations of the ADA.

This opinion does not mean that states and state entities are free to ignore the ADA. The federal government can enforce the ADA against the states in federal court. In addition, states are free to waive their immunity and permit suits against them for disability discrimination. Some states have done so. Many states have their own laws prohibiting discrimination. In those states, people alleging disability discrimination under state law may be able to assert their ADA claims at the same time in state court.

Ferguson v. City of Charleston, 121 S. Ct. 1281 (2001)

In this case, the Supreme Court addresses the lengths that the police can go in using medical personnel to provide information for criminal prosecution purposes. In response to an increase in the number of prenatal patients who were found to be abusing narcotics, a South Carolina public hospital instituted a policy of testing urine obtained from certain expectant mothers for the presence of narcotics. The policy was intended to protect unborn children by threatening their mothers with criminal prosecution for the use of narcotics (if the use was detected early in the pregnancy) or for child endangerment (if the use was detected late in the pregnancy). Only patients who fell within nine criteria were tested. The testing policy was instituted after earlier programs, which only referred patients who tested positive for narcotics to abuse counseling, failed to stem the abuse of narcotics by expectant mothers. The policy notified patients that all positive test results would be forwarded to the police for possible criminal prosecution and it set forth procedures to ensure that proper chain of custody was maintained during the process. Several women who were arrested after testing positive sued the hospital and police officials for Fourth Amendment violations.

Justice Stevens ruled that the policy violated the Fourth Amendment reasonableness requirement because it constituted an unjustified warrantless search. The Court decided that the urine test, as administered under the policy, was a search as defined by the Fourth Amendment. Therefore, the action was subject to the Fourth Amendment reasonableness requirement. The Fourth Circuit Court of Appeals had previously ruled that the policy was reasonable under the Fourth Amendment because "special needs" justified the testing to serve nonlaw enforcement ends. The Supreme Court rejected this reasoning. The Court ruled that in previous cases where it had allowed such warrantless, suspicionless searches under the "special needs" justification, a balancing of the intrusion into the individual's privacy interest and the "special needs" that justified the policy resulted in findings in favor of the government. (6) In performing the same balancing test in this case, the Court ruled that the intrusion here was far more substan tial and was not justified by the perceived "special needs." Here, adverse test results were not used to disqualify someone for a benefit, but were instead used for criminal prosecution. The court ruled that, despite the hospital's assertions that it only desired to curtail prenatal narcotics abuse, the primary purpose of this testing was law enforcement. Absent probable cause and a warrant, or consent or exigent circumstances, such governmental conduct is prohibited by the Fourth Amendment. The Court remanded the case to determine if the patients' conduct constituted consent to the testing.

It is important to note that the Court did not prohibit the use of all medical test results in criminal prosecutions. When such testing is done by private hospitals, not acting at governmental direction, or for primarily medical purposes, or pursuant to an exigent need (such as drawing blood from someone when there is a reasonable belief that their use of alcohol contributed to a motor vehicle collision), or pursuant to the patient's voluntary consent, the test results may be used by law enforcement for criminal prosecution in compliance with the Fourth Amendment.

Shaw v. Murphy, 121 S. Ct. 1475 (2001)

In this First Amendment case, the Supreme Court ruled that prison inmates do not have heightened protection in their speech when that speech contains legal advice. The case arose when Murphy, an "inmate law clerk" in the Montana State Prison system, attempted to assist a fellow inmate who had been charged with assault. Murphy sent the charged inmate a letter offering his legal advice on the assault charge. Pursuant to prison policy, the letter was intercepted and reviewed. Murphy filed a suit alleging, among other things, that his First Amendment right to free speech had been violated.

While recognizing that "incarceration does not divest prisoners of all constitutional protections," (7) the Supreme Court has recognized that "the constitutional rights that prisoners possess are more limited in scope than the constitutional rights held by individuals in society at large." (8) In 1987, the Supreme Court pronounced that "a prison regulation impinging on inmates' constitutional rights is valid 'if it is reasonably related to legitimate penological interests.'" (9) In Shaw, the Court pronounced that this standard is not heightened when the prison regulation in question restricts First Amendment speech rights, even if the restricted speech contains potential legal advice. Rather, the analysis is identical to that applied to restrictions affecting any other constitutional rights.

This constitutional analysis requires consideration of four relevant factors: 1) the existence of a "'valid, rational connection' between the prison regulation and the legitimate [and neutral] governmental interest put forward to justify it;" 2) the existence of "alternative means of exercising the right" available to inmates; 3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally;" 4) "the absence of ready alternatives" available to the prison for achieving the governmental objectives. (10) The Supreme Court did not conduct the analysis to determine whether the restriction affecting Murphy was valid; rather, the case was remanded to the lower courts for that determination.

By remanding the case with instruction to apply the "rational basis" standard to the prison restriction at issue, the Supreme Court refused to "cloak the provision of legal assistance with any First Amendment protection above and beyond the protection normally accorded prisoners' speech." (11) In addition to remanding the case for the relevant analysis, the Court reminded the examining lower court that "because the 'problems of prisons in America are complex and intractable,' and because courts are particularly 'ill equipped' to deal with [prison] problems, [courts] generally have deferred to the judgments of prison officials in upholding these regulations against constitutional challenge." (12) Clearly, prison administrators have wide latitude in restricting inmate activities. Shaw makes clear that their discretion is not more limited when the inmate activity is the dispensing of legal advice.

Atwater v. City of Lago Vista, 121 S. Ct. 1536 (2001)

This case establishes that custodial arrests are reasonable seizures under the Fourth Amendment regardless of the possible punishment for the crime, which resulted in the arrest. Lago Vista is a city in central Texas. Texas law makes the failure to wear a front seat belt a misdemeanor punishable by a maximum fine of $50. Imprisonment is not a possible penalty. However, as in many other states, Texas law permits police officers to make warrantless arrests for misdemeanors. In March 1997, Gail Atwater was driving her vehicle with her 3-year-old and 5-year-old children in the front seat. Not one of them was wearing a seatbelt. After being stopped by the police, Atwater was handcuffed and transported to the police station for booking. After her mug shot was taken, Atwater was placed alone in a cell for 1 hour. She then appeared before a magistrate and posted a bond for her release. Although she pleaded no contest to the seatbelt violation and paid a $50 fine, Atwater and her husband filed a Section 1983 civil law suit against the arresting officer, the Lago Vista police chief, and the City of Lago Vista. The constitutional basis for the civil suit was that Atwater had been subjected to an unreasonable Fourth Amendment seizure.

The Supreme Court affirmed the appellate court's ruling that the Fourth Amendment does not prohibit an arrest for a minor criminal offense, even one punishable only by a fine. The Court stated bluntly that "Atwater's arrest satisfied constitutional requirements," (13) because it was based on probable cause to believe that Atwater had committed a crime in the arresting officer's presence. Although the Court recognized that the arrest of Atwater was an exercise of poor judgment, it refused to accept her argument advocating a rule forbidding custodial arrest if conviction for the offense carried no jail time and the government can show no compelling need for immediate detention. Instead, the Supreme Court confirmed what it has held previously: "the standard of probable cause 'applie[s] to all arrests, without the need to balance the interests and circumstances involved in particular situations.'" (14) Therefore, officers can make arrests whenever they possess probable cause that a person has committed an offens e for which an arrest is authorized by law.

Kyllo v. United States, 121 S. Ct. 2038 (2001)

This case raised the issue of whether or not thermal scanning a private residence from outside the residence is a search under the Fourth Amendment. Indoor marijuana growing operations typically require high-intensity lights which produce great amounts of heat. The heat generated by the growing operation escapes from the home and can be detected from outside the home using a thermal imager. The thermal imager converts infrared radiation, which is invisible to the naked eye, into images that depict the relative temperatures of the object scanned--dark areas on the image are cool; light areas are hot. By comparing the thermal image of the suspect's home to that of other homes in the neighborhood, officers can determine if more heat is escaping from the suspect's home, indicating a possible indoor marijuana growing operation. The result of the thermal scan, in combination with other information developed, is then used to secure a search warrant for the suspect's premises.

The legal issue raised by the use of the thermal imager to scan a home is whether or not the scanning is a Fourth Amendment search, requiring a search warrant or an exception to the search warrant requirement. Prior to the Kyllo case, the majority of U.S. Circuit Courts of Appeals considering the issue decided targeting a home with a thermal imager was not a Fourth Amendment search. They reasoned that by taking no steps to conceal the heat emissions, the home owner exhibited no expectation of privacy in the "waste heat" and, even if the home owner did have an expectation of privacy, it was not objectively reasonable. Danny Kyllo brought this issue to the Supreme Court.

A federal officer suspected that Kyllo was growing marijuana in his home. To bolster his probable cause to search Kyllo's home, the officer requested a thermal scan of the home. At three o'clock in the morning, another officer scanned Kyllo's home from the street. The scan showed that certain areas of the home were relatively hot compared to other portions of the home, and that his home was substantially warmer than other homes in the neighborhood. Based in part on the results of the thermal scan, a federal magistrate issued a warrant to search Kyllo's home. Officers found marijuana plants. The district court found that the use of the thermal imager was not a Fourth Amendment search, and refused to suppress the marijuana. Kyllo was convicted, and he appealed.

The U.S. Court of Appeals for the Ninth Circuit eventually found that using a thermal imager to scan a home from the street is not a Fourth Amendment search. Kyllo then petitioned the Supreme Court, which agreed to hear his case.

In a five to four decision, the Supreme Court ruled that targeting a home with a thermal imager from outside the home is a search under the Fourth Amendment. The Court emphasized that inside a private home an expectation of privacy exists, and that expectation is reasonable. Consequently, police use of sense-enhancing technology to obtain any information regarding a private home's interior that could not otherwise have been obtained without physical intrusion into the home, is a search under the Fourth Amendment. Absent a search warrant, or an exception to the warrant requirement, such a search is presumptively unreasonable.

As a practical matter, the Kyllo case will severely restrict the use of thermal imagers to scan private homes or other premises where there is an expectation of privacy. Such scans now require a search warrant, absent exceptions such as consent or emergency.

Kyllo also has broader implications. The Supreme Court clearly expressed concerns regarding any technology used by police to gather information about the interior of any premises from the outside. In light of the Kyllo decision, law enforcement must reexamine its use of any technology to probe anywhere a reasonable expectation might exist for compliance with the Fourth Amendment.

Saucier v. Katz, 121 S. Ct. 2151 (2001)

The Supreme Court held that the inquiry as to whether an arresting police officer is entitled to qualified immunity for the use of excessive force is distinct from the inquiry as to whether the use of force was objectively reasonable under Fourth Amendment excessive force analysis. The two issues must be addressed separately and not combined into one question.

Katz, president of an animal rights group, filed a suit against Saucier, a military policeman. Katz alleged, among other things, that Saucier had violated his Fourth Amendment rights by using excessive force in arresting him while he protested during a speech by former vice president Gore at a San Francisco, California, army base.

In any civil rights lawsuit alleging excessive force, there are two critical issues: whether the actions of the arresting officer violated the Constitution and, if so, whether the officer is entitled to qualified immunity. The first question is evaluated under the Fourth Amendment reasonableness standard that focuses on whether the officer's conduct was objectively reasonable. (15) The second question focuses on whether the officer's actions violated any clearly established law of which the police officer should have been aware at the time. (16)

The Ninth Circuit Court of Appeals held that the two questions were essentially identical, because both concern the objective reasonableness of the officer's conduct in light of the circumstances the officer faced at the scene. The Supreme Court disagreed, holding that a qualified immunity ruling requires an analysis not susceptible of fusion with the question whether unreasonable force was used in making the arrest. It held that each issue must be considered in proper sequence, and that a ruling on qualified immunity should be made early in the proceedings so that the cost and expenses of trial may be avoided. Qualified immunity is an entitlement not to stand trial, not a defense from liability. The initial inquiry is whether a constitutional right would have been violated on the facts alleged by the plaintiff; if no right was violated, there is no need for further inquiry into immunity. However, if a violation could be made viewing the facts in a light most favorable to the plaintiff/arrestee, the next, se quential step is to inquire whether the right was clearly established at the time of the seizure. Like the Fourth Amendment analysis, this inquiry is made in the factual context of the specific case, not as a broad general proposition. The relevant inquiry is whether it would be clear to a reasonable officer that the specific conduct was unlawful in the situation he confronted.

In overruling the Ninth Circuit, the Court reiterated its previous position in Graham v. Connor (17) that an officer's conduct in searching or seizing may be reasonable but still incorrect. The Court gave the example of an officer who reasonably, but mistakenly, believes that a suspect is likely to fight back, resulting in the officer justifiably using more force than in fact was needed. The qualified immunity inquiry's concern, on the other hand, is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. An officer might correctly perceive all of the relevant facts, but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. The Court characterized the qualified immunity inquiry as having a "further dimension; " (18) it made a distinction between a use of force being objectively reasonable and a police officer understanding whether a particular use of force is legal.

It is difficult to assess what practical effect the Katz decision will have on American law enforcement. Cases involving an objectively unreasonable use of force by a police officer where the officer is entitled to qualified immunity are relatively unusual. (19) Also, even though individual officers/defendants may receive qualified immunity, such immunity will not extend to their departments who may remain liable. (20) That said, the tone of the opinion in Katz makes clear that the Court pays great deference to the risks assumed by law enforcement and strongly reinforces its previous decisions in police use of force cases.

Texas v. Cobb, 121 S. Ct. 1335 (2001)

In Cobb, the Supreme Court clearly limited the scope of the protections under the Sixth Amendment right to counsel to charged offenses. The case arose when Raymond Cobb was accused of burglarizing a home. At the time of the burglary, the home was occupied by a woman and her 16-month-old daughter. When the owner of the home returned from work he found the house burglarized and his family missing. After receiving a report of the burglary and disappearances, the police conducted an investigation and eventually questioned Cobb regarding the incident. Cobb admitted to the burglary but denied any knowledge of the whereabouts of the woman and child.

Cobb was indicted on the burglary charge and invoked his Sixth Amendment right to counsel. After being freed on bond, Cobb admitted to his father that he had killed the woman and child. Cobb's father reported his son's confession to the police and a warrant was obtained for the arrest of Cobb on charges of murder. Following his arrest, Cobb waived his Miranda rights, reiterated his confession, and led police to the location where he had buried the woman and child.

After a trial, during which Cobb's confession was admitted and evidence obtained from the grave site was introduced, Cobb was convicted of capital murder and sentenced to death. Cobb subsequently appealed his conviction on the ground that the interrogation that followed his arrest on the murder charges violated his Sixth Amendment right to counsel. The defense argued that the Sixth Amendment right to counsel, which had attached and had been invoked with respect to the burglary charges, precluded any attempts by the police to deliberately elicit information from Cobb about the factually related murders. The Court of Criminal Appeals agreed that the murders were "factually interwoven with the burglary" (21) and, therefore, Cobb's Sixth Amendment right to counsel had attached on the capital murder charge even though he had not been charged with the offense at the time of the interrogation. Cobb's conviction was reversed and the case was remanded for a new trial.

The Supreme Court made clear its view regarding the scope of the Sixth Amendment protections when it stated "[t]he Texas Court of Criminal Appeals held that a criminal defendant's Sixth Amendment right to counsel attaches not only to the offense with which he is charged, but to other offenses 'closely related factually' to the charged offense. We hold that our [earlier] decision in McNeil v. Wisconsin (22) meant what it said, and that the Sixth Amendment right is 'offense specific.'" (23) Recognizing that many criminal statutes are similar, the definition of an 'offense' cannot necessarily be "limited to the four corners of a charging instrument." (24) Rather, the Court applied a definition it had conceived in another context. In Blockburger v. United States (25) the court explained "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact, which the other does not." (26)

Applying the Blockburger test to the case at hand, the Supreme Court noted that, at the time of the confession in question, Cobb had been indicted for the burglary but had not been charged in the murders. After reviewing the Texas Penal Code, the Court concluded that each offense required proof of at least one fact that the other did not and, therefore, were not the same offenses under Blockburger. Thus, the interrogation did not violate Cobb's Sixth Amendment right to counsel and the confession was admissible.

When law enforcement officers find themselves investigating an individual who already has been charged with an offense, concerns regarding the Sixth Amendment can be assuaged by reviewing the criminal statutes and applying the Blockburger test. If each crime requires proof of at least one additional fact, the crimes are not the same for purposes of the Sixth Amendment.

Nevada v. Hicks,

121 S. Ct. 2304 (2001)

This case involves tribal court jurisdiction in a civil liability matter involving state officials acting within the scope of their employment. On two occasions, Nevada game wardens obtained state warrants to search Hicks' home, located on tribal land, for evidence of poaching that occurred on nontribal land. Neither search produced evidence of the alleged crime. However, Hicks claimed that some of his property had been damaged during the searches and that the second search exceeded the bounds of the warrant. Hicks filed a Section 1983 civil lawsuit in tribal court alleging constitutional violations by the game wardens, as well as claims of trespass and other civil wrongs. The tribal court decided it had jurisdiction over Hicks' claims. The game wardens and the State of Nevada appealed that decision. The U.S. Circuit Court of Appeals for the Ninth Circuit held that the tribal court had jurisdiction because the searches had occurred on land owned by the tribe within the reservation's boundaries.

The case was appealed to the U.S. Supreme Court. The Court held that 1) the tribal court did not have jurisdiction to decide tort claims arising from the execution of search warrants by state officials on tribal land for evidence of crimes committed outside the boundaries of the reservation; 2) the tribal court did not have authority to adjudicate Section 1983 claims; and 3) exhaustion of claims in tribal court was not required before seeking federal court relief. The Court reversed and remanded the case.

The Court found that the tribal court did not automatically have jurisdiction over the acts Hicks complained of simply because they occurred on tribal land. Land ownership is merely one factor to consider. The tribe does have the right to make laws and be governed by them, and any tribal assertion of regulatory authority over nontribal members must be tied to those tribal laws. The Court noted, however, that states have authority to issue process authorizing its officials to enter tribal lands to enforce state law. The Court recognized that states have criminal jurisdiction over tribal members dwelling on reservations for crimes committed off the reservation. Considering these facts, the Court concluded that tribal authority to regulate state officers executing process related to the violation of state laws committed outside the boundaries of the reservation is not essential to tribal self-government or internal relations.

The Court also found that tribal courts are not courts of general jurisdiction comparable to state courts. Therefore, they do not have jurisdiction over lawsuits filed under Section 1983. To consider tribal courts as courts of general jurisdiction would create an anomaly in the law. Title 28 Section, 1441, U.S. Code permits Section 1983 actions brought in state courts to be removed to federal courts. However, the law makes no provision for removal of such actions from tribal courts into federal courts. Rather than judicially creating a right of removal, the Court decided that tribal courts cannot entertain Section 1983 suits. Because tribal courts lack jurisdiction over Section 1983 lawsuits and lawsuits involving state officials performing their official duties on tribal lands, the Court concluded that there is no need for state officials to exhaust tribal remedies prior to seeking relief in federal court.

Endnotes

(1.) Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).

(2.) Id. at 450.

(3.) Edmond, 121 S. Ct. at 457.

(4.) Id. at 455.

(5.) In this case, the police had been in the home immediately prior to having probable cause of the existence of the contraband, so they knew no one was in the home. Had they been unsure of whether anyone else was present, they would have been justified in doing a "protective sweep" of the home to ensure no one was present that might destroy the evidence.

(6.) Skinner v. Railway Labor Executives' Assn., 109 S. Ct. 1402 (1989) (mandatory narcotics testing of railway employees involved in accidents); Treasury Employees v. Von Raab, 109 S. Ct. 1384 (1989) (U.S. Customs employees seeking promotion to sensitive positions); and Vernonia School Dist. 47J v. Acton, 115 S. Ct. 2386 (1995) (high school students participating in team sports).

(7.) 121 S. Ct. at 1479.

(8.) Id.

(9.) 121 S. Ct. at 1478 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).

(10.) Shaw, 121 S. Ct. at 1479 (quoting Turner v. Safley, 482 U.S. at 90.)

(11.) Shaw, 121 S. Ct. at 1480.

(12.) Shaw, 121 S. Ct. at 1479 (quoting Turner v. Safley, 482 U.S. at 404-405).

(13.) Atwater, 121 S. Ct. at 1557.

(14.) Atwater, 121 S. Ct. at 1557 (quoting Dunaway v. New York, 442 U.S. at 208.

(15.) The Court defined this evaluation in Graham v. Connor, 490 U.S. 386, 396 (1989):

Where...the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons...against unreasonable...seizures" of the person.... Determining whether the force used to effect a particular seizure is "reasonable" under the Fourth Amendment requires a careful balancing of" 'the nature and quality of the intrusion on the individual's Fourth Amendment interests'" against the countervailing governmental interests at stake. Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.... Because "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, nor by the mistaken execution of a valid search warrant on the wrong premises. With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation.

(16.) The standard for qualified immunity is "[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also Malley v. Briggs, 475 U.S. 335, 341 (1986); where the Court said that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." See also Anderson v. Creighton, 483 U.S. 635, 640 (1987), in which the Court defined what constitutes a clearly established right:

The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful,... but it is to say that in the light of preexisting law the unlawfulness must be apparent.

(17.) Supra note 7.

(18.) Saucier, 121 S. Ct. at 2159.

(19.) See Cruz v. Laramie, 239 F.3d 1183 (2001), Tenth Circuit. The Court of Appeals held that the use of "hog-tie" restraint on an arrestee whose diminished capacity is apparent constitutes excessive force in violation of the Fourth Amendment, but because the right was not clearly established in June 1996, when such a restraint was used on arrestee while be appeared to be on drugs, the officers were protected by qualified immunity with respect to federal civil rights claims. See also Tennessee v. Garner, 471 U.S. 1 (1985) where the Court held that the use of deadly force against an unarmed nondangerous fleeing subject was objectively unreasonable but, as in Cruz, held the individual officer/defendants to be immune.

(20.) See Monell v. Department of Social Services of the City of New York, 436 U.S. 658