Standing outside of the U.S. Supreme Court during Police Week.  In 2022 there will be three cases that will impact law enforcement. Will you and your agency be prepared?

A New York State of Mind

On average the twelve district courts in Ohio issue between 2,200 and 2,300 criminal cases each year.  The Supreme Court of Ohio issues approximately fifteen to twenty cases each that impact Ohio law enforcement.  Add another fifteen to twenty Sixth Circuit cases then the U.S. Supreme Court also changes the legal landscape for law enforcement each year.

This voluminous number of cases is at the heart of why I began this website and live presentations throughout our Great State of Ohio – to keep our law enforcement teammates informed on the hardest job in America.

Do not fail your training and do not let your training fail you!

This article looks ahead as to what to expect from the U.S. Supreme Court in 2022.

All three cases originate out of the State of New York.

Hemphill v. New York 

Issue:  Can a plea agreement of a previous defendant not currently on trial, be introduced as evidence to impeach the testimony or theory of the defendant currently on trial.

On Thursday April 6, 2006, Mr. Ronell Gilliam and unidentified black man wearing a blue top got into a physical fight with others in the Bronx.  The unidentified man opened fire with a handgun and a stray bullet hit a passing minivan and killed a two-year-old inside the van.  Law enforcement searched Mr. Gilliam’s apartment and found a blue sweater.  The officers believed that Mr. Gilliam’s best friend Mr. Nicholas Morris had been the shooter who was at the scene.  Law enforcement searched Mr. Morris’ apartment and found firearms, including a .357 and a 9 mm magazine consistent with ammunition.  This ammunition matched the ammunition that killed the two-year-old.

During Mr. Morris trial it was discovered the DNA on the sweater did not match him, so a mistrial was declared.  Mr. Morris had been incarcerated for two years awaiting trial.  He plead guilty to unlawfully possessing a .357 handgun and was immediately released from prison.

In 2011 law enforcement discovered that the DNA on the blue sweater matched that of Mr. Gilliam’s cousin Mr. Darrell Hemphill.  Mr. Hemphill was charged with the murder of the two-year-old victim.  Mr. Hemphill’s grandmother testified that he was wearing a blue sweater on the date of the shooting. Mr. Gilliam testified that, after the shooting, Mr. Hemphill told him to get rid of the blue sweater and the guns, and they had fled to North Carolina together. Mr. Gilliam had also previously returned to New York after Mr. Morris was indicted and gave a statement first accusing Mr. Morris of being the shooter, then stating that was untrue and that Mr. Hemphill was the actual shooter.  There is no documentation if after his accusation that Mr. Morris was the shooter that Mr. Gilliam was no longer his best friend.

During the trial Mr. Hemphill asserted his innocence by accusing Mr. Morris of being the shooter.  He had law enforcement testify about the discovery of the 9mm ammo inside Mr. Morris’s home.  In response the government introduced Mr. Morris plea allocution in which Mr. Morris admitted he unlawfully possessed the .357 handgun and not the 9mm handgun like the one used in the homicide.  Mr. Hemphill objected to the use of the plea allocution because it violated his Sixth Amendment Confrontation Clause right.  The foundation of this argument is that Mr. Hemphill had no opportunity to cross examine a person.  The trial court and New York appellate Courts held that Mr. Hemphill waived his Confrontation Right by giving misleading information that Mr. Morris possessed the 9mm handgun and thus ‘opened the door’ for the plea allocution to be entered in rebuttal.

Mr. Hemphill was convicted and sentenced to twenty-five years.  The U.S. Supreme Court accepted this case, and it will be decided in or before June 2022.

Impact on Ohio Law Enforcement?

This case will underscore the importance of documenting each element of each charge with specificity.  In the moment it was unlikely that the officers could have predicted Mr. Morris’s plea to unlawfully possessing a .357 handgun would be at the center of the defense of the homicide of a two-year-old.

New York State Rifle & Pistol Association, Inc. v. Bruen

Issue:  What limitations can a state law have on limiting Carrying Concealed Weapons holders?

In 1911, the State of New York passed a law which makes it a crime to possess any firearm without a license. Even with a license, concealed-carry permits are needed if gun owners wish to publicly carry their guns so that they are not visible to others. To receive a permit to carry a concealed handgun, an applicant must show “proper cause” and demonstrate a special need for self-protection.

The plaintiffs in this case are the New York State Rifle & Pistol Association (NYSRPA) and two individuals, Mr. Robert Nash and Mr. Brandon Koch. Mr. Nash and Mr. Koch applied for licenses to carry concealed handguns. The government denied their licenses because they failed to show “proper cause.” Both men were granted restricted licenses to carry concealed handguns outside the home for hunting and target practice, and in areas not “frequented by the general public.” Mr. Koch’s license also allows him to carry a concealed handgun while commuting to and from work. Other members of the NYSRPA would like to exercise their right to carry handguns for self-defense but also have been denied licenses.

The important question presented in this case is whether New York’s law requiring that applicants for concealed-carry licenses demonstrate a special need for self-defense (the Sullivan Act) violates the Second Amendment?

The U.S. Supreme Court accepted this case, and it will be decided in or before June 2022.

Impact on Ohio Law Enforcement?

Depending on how the court rules on this case there may be need for the Ohio Legislature to modify the Ohio Revised Code on CCW holders.

Thompson v. Clark

Issue:  Can a plaintiff sue law enforcement under federal law 42 U.S.C. §1983 for deprivation of civil rights if criminal charges are dropped?

In January of 2014, the sister-in-law of Mr. Larry Thompson called 911 to report suspected child abuse after seeing Mr. Thompson’s newborn child crying during a diaper change with “red rashes” on her backside. Two Emergency Medical Technicians (EMT) arrived at petitioner’s apartment, but they left after talking with Mr. Thompson.

Mr. Thompson alleges that he was unaware of the 911 call and, knowing of no reason for concern, advised the EMTs they came to the wrong apartment. NYPD Officer Pagiel Clark alleges that Mr. Thompson “angrily” confronted the EMTs and that the EMTs left to deescalate the situation.

A short time later, outside of Mr. Thompson’s apartment, the EMTs encountered four New York City police officers; Officer Paigel Clark #28472, Officer Paul Montefusco #10580, Officer Phillip Romano #6295 and Officer Gerard Bouwmans #2102.  The EMTs advised the officer that they had seen Mr. Thompson’s daughter but did not examine her. The officers proceeded to Mr. Thompson’s apartment and asked to enter to examine the child. Mr. Thompson declined. The parties dispute what happened next. Mr. Thompson asserts he never physically resisted the police, and that the officers pushed through the door, tackled petitioner, and pinned him facedown, with their body weight on petitioner’s head and back. Officer Clark alleges that Mr. Thompson physically attempted to prevent the police from investigating the child abuse report.

Either way, after the police entered Mr. Thompson’s apartment, the EMTs examined Mr. Thompson’s daughter, and observed only a diaper rash with no evidence of abuse. The EMTs took the child to the hospital for further examination. The parties agree that medical professionals confirmed the child showed no sign of abuse.

Officer Clark later signed a complaint, drafted by an assistant district attorney, charging Mr. Thompson with two crimes. One, the complaint accused Mr. Thompson of obstructing a lawful police investigation into Mr. Thompson’s child’s welfare. Two, the complaint charged Mr. Thompson with resisting a lawful arrest for obstruction by slapping an officer, flailing his arms, and struggling. Mr. Thompson stayed in jail for two days before he was released and later the charges were dropped.

If Mr. Thompson would have only complied at the time of the initial contact with the E.M.T.’s he would not have been arrested, spent two days in jail and would have been cleared of the child abuses claims made by a relative.  Compliance can go a long way.

Alleging that he was detained without probable cause because of these baseless charges, in violation of the Fourth Amendment, Mr. Thompson filed suit under 42 U.S.C. §1983, alleging Fourth Amendment violations. But the U.S. Court of Appeals for the Second Circuit ruled that Mr. Thompson could not bring this claim. Under that Circuit’s precedent, this type of Section 1983 suit is permitted only if the prior prosecution ends in a way that somehow demonstrates the innocence of the accused person. In Mr. Thompson’s case, because the state simply dropped the charges, there was no affirmative indication of his innocence, and he therefore could not sue over the violation of his constitutional rights.

The U.S. Supreme Court accepted this case, and it will be decided in or before June 2022.

Impact on Ohio Law Enforcement?

Depending on how the court rules on this case there may be some impact on the way charges are dropped and plea bargains are agreed.