Docket No. 15-1983
IN THE
Supreme Court of the United States
OCTOBER TERM 2015
_________
UNITED STATES OF AMERICA,
Petitioner,
v.
ROY CAMPBELL
Respondent.
_________
On Writ of Certiorari to
the United States Court of Appeals
for the Thirteenth Circuit
_________
BRIEF FOR RESPONDENT
_________
Color of Brief’s Cover - Red
Team #345
Regional Assignment - San Francisco
Brief for Respondent
QUESTIONS PRESENTED
1. Did Officer Campbell have a reasonable expectation of privacy in the contents of his
personal work locker, and if so was he subjected to an unreasonable search when Officer
Graham entered without a warrant?
2. Can § 249(a)(1) of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act
of 2009 be constitutionally applied, and if so, do the on-duty actions of Officer Campbell
support the requirement for discriminatory motivation?
ii TABLE OF CONTENTS
QUESTIONS PRESENTED .................................................................................................................... ii TABLE OF CONTENTS ......................................................................................................................... iii TABLE OF AUTHORITIES .................................................................................................................. iv JURISDICTIONAL STATEMENT .......................................................................................................... 1 OPINIONS BELOW ................................................................................................................................. 1 STATEMENT OF THE FACTS ............................................................................................................... 1 PROCEDURAL HISTORY ...................................................................................................................... 3 SUMMARY OF ARGUMENTS ................................................................................................................ 4 STANDARD OF REVIEW ....................................................................................................................... 5 ARGUMENT .............................................................................................................................................. 6 I. The Thirteenth Circuit Properly Granted Officer Campbell’s Suppression Motion .......... 6 A. Officer Campbell had a Reasonable Expectation of Privacy in his Locker .................................... 7 1. Officer Graham had a subjective expectation of privacy in his locker ......................................................... 8 2. Officer Graham had an objectively reasonable expectation of privacy in his locker ............................. 9 i. There was no office policy or practice providing Officer Campbell with notice that his employer could search his personal locker ................................................................................................................. 9 ii. Officer Campbell’s locker was not open and accessible to others ......................................................... 13 iii. The locker was given to Officer Campbell for storing personal items ................................................ 15 iv. Officer Graham is not Officer Campbell’s employer or supervisor ....................................................... 16 v. Officer Campbell’s position as a police officer does not inherently diminish his expectation of privacy in his work locker ................................................................................................................................................ 17 B. Officer Graham’s Search of Officer Campbell’s Locker was Unreasonable ................................ 18 1. Officer Graham’s search does not fall within O’Connor’s warrant exception because he is not a government employer .............................................................................................................................................................. 20 2. Officer Graham’s search was aimed only at investigating suspected criminal activity, not a legitimate work related purpose ......................................................................................................................................... 22 3. Officer Campbell’s position as a police officer does not inherently make a search of his workspace more reasonable where that search is not part of an internal investigation ........................... 28 II. The Thirteenth Circuit Properly Vacated Officer Campbell’s Hate Crime Conviction . 31 A. Section 249(a)(1) of the Hate Crimes Prevention Act Is Unconstitutional ................................ 31 1. Section 249(a)(1) Was Passed Under § 2 of the Thirteenth Amendment ................................................ 32 2. Congress May Not Unilaterally Define “Badges and Incidents” of Slavery .............................................. 33 B. The Hate Crimes Prevention Act Requires “But-­‐For” Causation, and Officer Campbell’s Conduct Does Not Satisfy That Standard ........................................................................................................... 36 1. The Plain Language of the Statute Supports a “But-­‐For” Standard ............................................................. 36 2. The Precedential Background at the Time the Hate Crimes Prevention Act was Passed Supports the “but-­‐for” Causation Standard ........................................................................................................................................ 37 3. There Was Insufficient Evidence Officer Campbell Acted “because of” the Jennings’ Race ............. 40 4. Officer Campbell’s Actions Should be Viewed From the Perspective of a Reasonable Officer Under the Circumstances ........................................................................................................................................................ 41 iii TABLE OF AUTHORITIES
Cases Biehunik v. Felicetta,
441 F.2d 228 (2d Cir. 1971).................................................................................... 17, 28, 29, 30
Bond v. United States,
529 U.S. 334 (2000) .................................................................................................................... 8
Burrage v. United States,
134 S. Ct. 881 (2014) ................................................................................................................ 37
Caldarola v. County of Westchester,
343 F.3d 570 (2d Cir. 2003)...................................................................................................... 15
Camara v. Municipal Court,
387 U.S. 523 (1967) .................................................................................................................. 19
Caruso v. Ward,
72 N.Y. 2d 432 (N.Y. 1988) ......................................................................................... 17, 28, 30
Cerrone v. Brown,
246 F.3d 194 (2d Cir. 2001).................................................................................... 17, 18, 24, 29
Chicago Fire Fighters Union, Local 2 v. City of Chicago,
717 F.Supp. 1314 (N.D. Ill. 1989) ............................................................................................ 10
City of Boerne v. Flores,
521 U.S. 507 (1997) ............................................................................................................ 34, 35
Civil Rights Cases,
109 U.S. 3 (1883) ................................................................................................................ 33, 34
Garrity v. New Jersey,
385 U.S. 493 (1967) ................................................................................................ 17, 18, 22, 28
Gillard v. Schmidt,
579 F.2d 825 (3d Cir. 1978)...................................................................................................... 10
Gonzales v. Raich,
545 U.S. 1 (2005) ...................................................................................................................... 33
Graham v. Connor,
490 U.S. 386 (1989) .................................................................................................................. 42
Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167 (2009) ............................................................................................................ 37, 38
Gwynn v. City of Philadelphia,
719 F.3d 295 (3d Cir. 2013)...................................................................................................... 22
Heien v. N. Carolina,
135 S. Ct. 530 (2014) ................................................................................................................ 42
Jones v. Alfred H. Mayer Co.,
392 U.S. 409 (1968) .................................................................................................................. 34
Katz v. United States,
389 U.S. 347 (1967) ...................................................................................................... 7, 8, 9, 13
Kirkpatrick v. City of Los Angeles,
803 F.2d 485 (9th Cir. 1986) .................................................................................. 17, 28, 29, 30
Kyllo v. United States,
533 U.S. 27 (2001) .................................................................................................................... 18
iv Leventhal v. Knapek,
266 F.3d 64 (2d Cir. 2001)........................................................................................................ 11
Lowe v. City of Macon, Ga.,
720 F.Supp. 994 (M.D. Ga. 1989) ...................................................................................... 23, 29
Mapp v. Ohio,
367 U.S. 643 (1961) .................................................................................................................... 7
McGregor v. Greer,
748 F. Supp. 881 (D.C. Cir. 1990) ............................................................................................ 14
Mincey v. Arizona,
437 U.S. 385 (1978) ............................................................................................................ 18, 22
Moore v. Constantine,
594 N.Y.S.2d 395 (N.Y. App. Div. 1993) ................................................................................ 11
Muick v. Glenayre Electronics,
280 F.3d 741 (7th Cir. 2002) .............................................................................................. 10, 16
Nat’l Treasury Employees Union v. Von Raab,
489 U.S. 656 (1989) ............................................................................................................ 17, 19
New Jersey v. T.L.O.,
469 U.S. 325 (1985) .................................................................................................................. 19
O'Connor v. Ortega,
480 U.S. 709 (1987) ........................................................................................................... passim
Ornelas v. U.S.,
517 U.S. 690 (1996) .................................................................................................................... 5
People v. Neal,
486 N.E.2d 898 (Ill. 1985) ........................................................................................................ 10
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) ............................................................................................................ 38, 39
R.A.V. v. City of St. Paul, Minn.,
505 U.S. 377 (1992) .................................................................................................................. 39
Rossi v. Town of Pelham,
35 F.Supp.2d 58 (D.N.H. 1997) .......................................................................................... 14, 22
Safeco Ins. Co. of Am. v. Burr,
551 U.S. 47 (2007) .................................................................................................................... 37
Schowengerdt v. U.S.,
944 F.2d 483 (9th Cir. 1991) .................................................................................................... 10
Scott v. United States,
436 U.S. 128 (1978) .................................................................................................................. 41
Shields v. Burge,
874 F.2d 1201 (7th Cir. 1989) ............................................................................................ 27, 30
State v. Francisco,
790 S.W.2d 543 (Tenn. Crim. App. 1989)................................................................................ 10
Trujillo v. City of Ontario,
428 F.Supp.2d 1094 (C.D. Cal. 2006) ...................................................................................... 24
U.S. v. Jenkins,
No. CRIM. 12-15-GFVT, 2013 WL 3338650 (E.D. Ky. July 2, 2013).................................... 39
U.S. v. McIntyre,
582 F.2d 1221, 1224 (9th Cir. 1978) ............................................................................ 11, 13, 18
v U.S. v. Slanina,
283 F.3d 670 (5th Cir. 2002) ........................................................................................ 11, 15, 27
United States v. Barrows,
481 F.3d 1245 (10th Cir. 2007) ................................................................................................ 13
United States v. Blok,
188 F.2d 1019 (D.C. Cir. 1951) ................................................................................................ 27
United States v. Cannon,
750 F.3d 492 (5th Cir.) ............................................................................................................. 35
United States v. Hagarty,
388 F.2d 713 (7th Cir. 1968) .................................................................................................... 24
United States v. Hatch,
722 F.3d 1193 (10th Cir. 2013) ................................................................................................ 35
United States v. Jacobson,
466 U.S. 109 (1984) .................................................................................................................... 6
United States v. Jones,
286 F.3d 1146 (9th Cir. 2002) .................................................................................................. 24
United States v. Kahan,
350 F. Supp. 784 (S.D.N.Y. 1972)............................................................................................ 26
United States v. King,
509 F.3d 1338 (11th Cir. 2007) ................................................................................................ 13
United States v. Lopez,
514 U.S. 549 (1995) .................................................................................................................. 32
United States v. Maybee,
687 F.3d 1026 (8th Cir. 2012) .................................................................................................. 36
United States v. Miller,
767 F.3d 585 (6th Cir. 2014) .................................................................................................... 37
United States v. Portillo-Munoz,
643 F.3d 437, 439 (5th Cir.2011) ............................................................................................... 5
United States v. Robinson,
414 U.S. 218 (1973) .................................................................................................................. 41
United States v. Speights,
577 F.2d 362 (3d Cir. 1977)............................................................................................... passim
United States v. Taketa,
923 F.2d 665 (9th Cir. 1991) .................................................................................. 14, 24, 25, 30
United States v. Thorn,
375 F.3d 679 (8th Cir. 2004) .................................................................................................... 13
Univ. of Texas Sw. Med. Ctr. v. Nassar,
133 S. Ct. 2517 (2013) ........................................................................................................ 37, 39
Wiley v. Department of Justice,
328 F.3d 1346 (Fed. Cir. 2003)................................................................................................. 25
Wisconsin v. Mitchell,
508 U.S. 476 (1993) .................................................................................................................. 40
Statutes 18 U.S.C. § 1365(h)(4) ................................................................................................................. 35
18 U.S.C. § 249(a)(1) ............................................................................................................. passim
18 U.S.C. § 249(a)(2) .................................................................................................................... 33
vi 28 U.S.C. § 1254(1) ........................................................................................................................ 1
29 U.S.C. § 623(a)(1) .................................................................................................................... 38
42 U.S.C. § 2000e-2(m) ................................................................................................................ 39
Other Authorities Record .................................................................................................................................... passim
UNITED NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR
2010, Pub.L. No. 111-84 (October 28, 2009) ..................................................................... 32, 33
Constitutional Provisions U.S. Const. amend. IV .................................................................................................................... 6
U.S. Const. amend. XIII................................................................................................................ 32
vii JURISDICTIONAL STATEMENT
The opinion of the United States Court of Appeals for the Thirteenth Circuit was filed on
October 20, 2015. (Record at 17.) Petitioner then filed for writ of certiorari, which this Court
granted on November 3, 2015. (R. at 18.) This Court has jurisdiction under 28 U.S.C. § 1254(1)
(2006).
OPINIONS BELOW
The decision and order of the United States District Court for the Southern District of Old
York is unreported and set out in the record. (R. at 1–13.) The opinion of the United States Court
of Appeals for the Thirteenth Circuit is also unreported and set out in the record. (R. at 14–17.)
STATEMENT OF THE FACTS
Officer Roy Campbell (“Officer Campbell”), a white rookie police officer with the New
Jacksonville Police Department in the state of Old York, began his first day of patrol on June 19,
2013. (R. at 2–3.) That evening, Officer Campbell pulled Mr. Michael Jennings (“Jennings”)
over for a routine traffic stop after Officer Campbell observed Jennings “change[] lanes without
signaling.” (R. at 3.) Jennings was an eighteen-year-old black man driving a 2013 Mercedes
sedan. Id. Officer Campbell approached the car and asked for Jennings’ license and registration.
Id. Officer Campbell then asked Jennings where he got the Mercedes to which Jennings replied
that it was a birthday gift from his father. Id. Officer Campbell asked Jennings to step out of the
car. Id. Jennings was defiant and asked if he had been pulled over for being black. (R. at 4, n.8.)
Jennings then looked into Officer Campbell’s body camera and said “black lives matter.” (R. at
8, n.8.) Officers with the New Jacksonville Police Department are required to wear body cameras
while on duty and are encouraged to upload the footage at the end of their shift. (R. at 4, n.6.)
1 Officer Campbell became agitated from Jennings’ questioning and comments and
shouted that he could pull over anyone he wanted. (R. at 4.) Officer Campbell then attempted to
remove Jennings from the car by opening the car door and ordering him to remove his seatbelt.
Id. Jennings refused to exit the vehicle, pulled the car door closed, and restarted the engine. Id.
Officer Campbell stepped back from the Mercedes as Jennings began revving the engine. Id.
Officer Campbell held onto the steering wheel with his left hand and yelled “stop” and “turn off
the engine.” Id. Officer Campbell then drew his gun with his right hand and in the midst of the
scuffle fired one time, hitting Jennings in the groin. Id. Less than ten seconds had elapsed since
Officer Campbell touched the car door until the shot was fired. Id. Although Officer Campbell’s
body camera recorded the incident, the video is impaired and is difficult to see beginning from
when Officer Campbell tries to remove Jennings from the car. Id.
Officer Campbell told the officers who arrived on the scene that he was dragged after his
left arm was caught in the steering wheel. (R. at 5.) Officer Campbell testified that he was not
sure why Jennings had started the car and began revving the engine. (R. at 6.) He also testified
that he did not know what Jennings was going to do and thought shooting was necessary to
secure his safety under the circumstances. Id.
Officer Campbell placed his body camera in his personal work locker. (R. at 7.) He
removed his department issued lock and replaced it with a personal lock. Id. The record is silent
as to whether this practice is permitted or allowed under office policy. Id. Officer Campbell’s
locker was personally assigned to him by his employer, and was used to store personal items,
such as “personal photographs, a change of clothes, his wallet, and his personal cell phone.” (R.
at 14.) Officer Randall Graham (“Officer Graham”), a police officer of the same rank as Officer
Campbell, “became suspicious” and unilaterally elected to cut the lock off of Officer Campbell’s
2 locker two days after the incident. (R. at 7, n.11.) Officer Graham did not seek a warrant before
doing so. (R. at 7.) Although Officer Graham was not a part of any investigation, he testified that
he went into Officer Campbell’s locker because he believed Officer Campbell might destroy the
body camera and he hoped a more thorough investigation would follow. Id. He testified that his
motivation for searching the locker was because Officer Campbell made racist comments in the
past and he wanted to “force that lying, racist asshole to tell the truth for once.” Id. Moreover,
Officer Graham admitted to being “angered” at Officer Campbell before he chose to break into
his colleague’s locker. Id.
A year prior to Officer Graham searching the locker, the police department had
conducted one unannounced search of all officer lockers as part of a “large-scale corruption
investigation.” (R. at 9.) This previous search was the only search of officer lockers prior to the
Jennings incident and occurred before Officer Campbell joined the force. (R. at 9.) The police
department did not have a policy of searching department lockers, and did not have a consistent
history of such searches. (R. at 15.)
PROCEDURAL HISTORY
Officer Campbell filed a motion to suppress the body camera as the fruit of an illegal
search. (R. at 5.) The District Court denied that request. Id. At a subsequent bench trial, Officer
Campbell was convicted under 18 U.S.C. § 249(a)(1) for willfully causing bodily injury to
another because of that person’s race, color, or national origin. (R. at 1–3.) Officer Campbell
appealed the denial of his motion to suppress and the hate crime conviction. (R. at 14.) The
Thirteenth Circuit Court of Appeals reversed the District Court’s holding on both issues. (R. at
17.) The United States then filed a writ of certiorari to this Court. (R. at 18.)
3 SUMMARY OF ARGUMENTS
1. Officer Campbell’s Suppression Motion Should have been granted
Officer Campbell was subjected to an unreasonable search into a constitutionally
protected area when Officer Graham broke into his personal work locker. As such, his
suppression motion should have been granted by the District Court.
Despite his occupation as a police officer, Officer Campbell held both a subjective and an
objective expectation of privacy in the contents of his work locker. The New Jacksonville Police
Department had no policies alerting Officer Campbell that his locker was subject to entry by his
employer. Furthermore, his locker was hidden from others and was used for storing his personal
items. Finally, police officers do not forfeit their privacy rights by nature of their employment.
Because Officer Campbell had a privacy interest in his locker that was protected by the
Fourth Amendment, and no warrant exception applied to Officer Graham’s warrantless search,
that search was per se unreasonable. First, because the search was conducted by a police officer
and not a government employer. Second, because the search was initiated only with an eye
towards criminal prosecution. And third, because that search was not part of an internal
investigation conducted by superior officers.
2. Officer Campbell’s Conviction Was Properly Vacated
Section 249(a)(1) of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention
Act of 2009 was passed under the Enforcement Clause of the Thirteenth Amendment. However,
it represents an unconstitutional exercise of that power that is out of line with similar Supreme
Court precedent for the Reconstruction Era Amendments. The Hate Crimes Prevention Act is not
remedial in nature, and it is not congruent and proportional to the harms Congress sought to
prevent. Accordingly, § 249(a)(1) must be struck down as unconstitutional.
4 Section 249(a)(1) criminalizes conduct where a defendant willing causes bodily injury
because of the race, color, religion, or national origin. However, there is currently a split between
circuits as to whether the statute requires that the discriminatory motivation be a “substantial
motivating factor” or the “but-for” motivation for the conduct. The language of the statute,
precedential background, and potential for unconstitutional suppression of protected speech all
support that Congress intended the “but-for” standard for crimes committed under § 249(a)(1).
Regardless of the standard the Court adopts, the conduct of Officer Campbell was
insufficient to support a conviction under the Hate Crimes Prevention Act. Further, the actions of
an on-duty officer should be reviewed under the reasonable officer standard of objective
reasonability. Accordingly, the decision of the Court of Appeals vacating Officer Campbell’s
conviction should be affirmed.
STANDARD OF REVIEW
The Court reviews warrantless searches on appeal de novo. Ornelas v. U.S., 517 U.S. 690,
697–98 (1996). The Court reviews the constitutionality of federal statutes de novo. United States
v. Portillo—Munoz, 643 F.3d 437, 439 (5th Cir.2011).
5 ARGUMENT
I. The Thirteenth Circuit Properly Granted Officer Campbell’s Suppression Motion
When Officer Graham conducted a warrantless search of Officer Campbell’s personal
workplace locker, he violated Officer Campbell’s constitutional protection against unreasonable
searches. The Fourth Amendment protects the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
In determining whether a Fourth Amendment violation occurred, the court first considers
whether there was a reasonable expectation of privacy in the area searched. United States v.
Jacobson, 466 U.S. 109, 113 (1984). If a reasonable expectation of privacy is found, the court
must then determine whether the search was reasonable under the circumstances. O'Connor v.
Ortega, 480 U.S. 709, 719 (1987) (plurality opinion).
In the context of government employees, a plurality of this Court in O'Connor rejected
the contention that “public employees can never have a reasonable expectation of privacy in their
place of work,” and established a two-step framework for considering Fourth Amendment claims
against government employers. Id. at 717–19. First, a reviewing court must consider “[t]he
operational realities of the workplace” to determine whether an employee has a reasonable
expectation of privacy on “a case-by-case basis.” Id. at 717–18. Next, where an employee has a
legitimate privacy expectation, an employer's invasion of that expectation “for noninvestigatory,
work-related purposes, as well as for investigations of work-related misconduct, should be
judged by the standard of reasonableness under all the circumstances.” Id. at 725–26.
Officer Campbell did have a reasonable expectation of privacy in his personal work
locker, and furthermore Officer Graham’s search fell outside the narrow warrant exception
outlined by this Court in O’Connor. Consequently, Officer Graham’s warrantless search is
6 patently in conflict with the Fourth Amendment. Evidence seized in violation of the Fourth
Amendment must be suppressed from future use at trial. Mapp v. Ohio, 367 U.S. 643, 654
(1961). Accordingly, this Court should affirm the Thirteenth Circuit Court of Appeals and find
that Officer Campbell’s body camera was unlawfully seized from his personal work locker and
should not have been admitted against him at trial.
A. Officer Campbell had a Reasonable Expectation of Privacy in his Locker
Officer Campbell had a reasonable expectation of privacy in his personal work locker. A
constitutionally justified expectation of privacy has two requirements: “first that a person have
exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one
that society is prepared to recognize as ‘reasonable.’” Katz v. United States, 389 U.S. 347, 361
(1967) (Harlan, J., concurring). Police officers and other government employees do not “lose
Fourth Amendment rights merely because they work for the government instead of a private
employer.” O’Connor, 480 U.S. at 717 (plurality opinion). Government employees can, and
often do, establish expectations of privacy in their workplace, including government offices,
desks, computers, filing cabinets, and lockers. For purposes of the Fourth Amendment, “[t]he
workplace includes those areas and items that are related to work and are generally within the
employer’s control.” Id. at 715. This Court should find that Officer Campbell’s locker was part
of his workplace, and therefore falls under the purview of the Fourth Amendment, because it was
given to him incidental to his employment and by his employer.
Property ownership in the place searched may be instructive in finding an expectation of
privacy, but it is far from dispositive. To the contrary, the protection of the Fourth Amendment
against unreasonable searches and seizures depends not upon a property right in the invaded
space—but upon whether the space was an area in which there was a reasonable expectation of
7 freedom from government intrusion. Katz, 389 U.S. at 352. Thus, it is well settled that “the
Fourth Amendment protects people, not places.” Id. at 351 (finding a reasonable expectation of
privacy in a public phone booth). Thus, the fact that Officer Campbell did not own his work
locker should have little bearing on this Court’s ruling.
When considering the reasonableness of a government employee’s expectation of privacy
in his or her workplace, courts must look to “[t]he operational realities of the workplace.” Id. at
717. Moreover, “[g]iven the great variety of work environments in the public sector, the question
whether an employee has a reasonable expectation of privacy must be addressed on a case-bycase basis.” Id. at 718. For example, in O’Connor this Court found a reasonable expectation of
privacy in a government doctor’s desk and file cabinets where the doctor did not share his
workspace with other workers, he kept both personal items and work documents in his
workspace, and no office policy existed which either expressly prohibited or allowed storage of
personal items in his workspace. Id. at 718–19.
1. Officer Graham had a subjective expectation of privacy in his locker
For the Fourth Amendment to offer protection to any area, a person must have “exhibited
an actual (subjective) expectation of privacy” in that space. Katz, 389 U.S. at 361 (Harlan, J.,
concurring). Here, Officer Campbell exhibited a subjective expectation of privacy in the contents
of his personal work locker. One has a subjective expectation of privacy if they have taken
efforts to preserve something as private. See Bond v. United States, 529 U.S. 334, 338 (2000)
(holding that placing an object in an opaque bag and placing the bag above a bus seat established
a subjective expectation of privacy). Here, Officer Campbell stored personal property in his
locker—a locker given to him for his exclusive use, which was inaccessible to both the public
and his fellow officers. He took affirmative steps towards securing the privacy of his locker by
8 placing a personal lock on it. (R. at 14.) Thus, this Court should not hesitate to find that Officer
Campbell held a subjective expectation of privacy in his locker.
2. Officer Graham had an objectively reasonable expectation of privacy in
his locker
Officer Campbell also held an objective expectation of privacy “that society is prepared
to recognize as ‘reasonable.’” Katz, 389 U.S. at 361 (1967) (Harlan, J., concurring). In finding
that Officer Campbell had an objectively reasonable expectation of privacy in his personal work
locker, this Court should consider certain factors that are relevant to the “operational realities of
[Officer Campbell’s] workplace.” O’Connor, 480 U.S. 717 (plurality opinion). These factors
include: i) whether office regulations and procedures placed Officer Campbell on notice that his
locker was subject to employer intrusions; ii) the openness and accessibility of the locker; iii) the
purpose and nature of the locker; iv) the work relationship between Officers Campbell and
Graham; and v) the nature of Officer Campbell’s employment.
i.
There was no office policy or practice providing Officer Campbell
with notice that his employer could search his personal locker
Officer Campbell had a reasonable expectation of privacy in the contents of his locker
because the New Jacksonville Police Department did not have a policy of searching officer
lockers. One factor courts consistently look to when evaluating the presence of an objectively
reasonable expectation of privacy in the workplace is the existence—or nonexistence—of office
policies, practices, or regulations that may provide notice to the employee that certain areas are
subject to employer intrusion. As this Court has previously observed, “[p]ublic employees’
expectations of privacy in their offices, desks, and file cabinets . . . may be reduced by virtue of
actual office practices and procedures, or by legitimate regulation.” O’Connor, 480 U.S. 717
(plurality opinion). The four dissenting Justices in O’Connor shared this belief. See id. at 737
9 (Blackmun, J., dissenting). Consequently, employment policies or regulations alerting
government employees that their workspace is subject to search can dramatically simplify the
task of evaluating the presence of a reasonable expectation of privacy. Simply put, where
government employees are actually notified that their employer has retained rights to access their
workspace, no reasonable expectation from intrusion can exist. Gillard v. Schmidt, 579 F.2d 825,
829 (3d Cir. 1978) (“[A]n employer may conduct a search in accordance with a regulation or
practice that would dispel in advance any expectations of privacy.”). This is because the
government is free to “attach whatever conditions” it wishes on property given to its employees
for personal use. Muick v. Glenayre Electronics, 280 F.3d 741, 743 (7th Cir. 2002).
Subsequent case law confirms that courts routinely defer to a public employer’s official
policies expressly granting access to the employee’s workspace and have regularly relied on such
policies in ruling that no expectation of privacy exists. See, e.g., Schowengerdt v. U.S., 944 F.2d
483, 489 (9th Cir. 1991) (“[Government employee] was ‘on notice from his employer that
searches of the type to which he was subjected might occur from time to time for work-related
purposes.’”) (internal citation omitted); Chicago Fire Fighters Union, Local 2 v. City of
Chicago, 717 F.Supp. 1314, 1319 (N.D. Ill. 1989) (“[Firefighters] were aware that their lockers
were subject to warrantless searches” due to announcements and postings of an office policy
permitting such intrusion). Several cases have specifically found that police officers may lose an
expectation of privacy in their workspace where they are on notice that their superiors have the
authority to search their personal spaces. See, e.g., People v. Neal, 486 N.E.2d 898, 901 (Ill.
1985) (finding police officer had no expectation of privacy due in part to “periodic inspections”
by supervisors under color of office policy and the officer “was aware of such inspections.”);
State v. Francisco, 790 S.W.2d 543, 544 (Tenn. Crim. App. 1989) (holding a departmental
10 policy defeated a police officer’s claim of an expectation of privacy in a government vehicle);
Moore v. Constantine, 594 N.Y.S.2d 395, 397 (N.Y. App. Div. 1993) (upholding the legality of a
search of police officer’s locker where the officer’s superiors “routinely obtained access to the
work-related contents of [his] locker.”).
By contrast, however, common office practices and policies may actually afford a
government employee a reasonable expectation of privacy where a policy of invasion by
supervisors does not exist. See, e.g., Leventhal v. Knapek, 266 F.3d 64, 74 (2d Cir. 2001)
(finding a government employee had a reasonable expectation of privacy in workspace in part
because his employer did not have a “general practice of routinely conducting searches.”); U.S.
v. Slanina, 283 F.3d 670, 677 (5th Cir. 2002) (holding employee had a reasonable expectation of
privacy due in part to the “absence of a city policy” placing him on notice that his workspace
would be monitored). Similarly, police officers have been found to hold reasonable expectations
of privacy in certain situations where office policies do not warn them that their workspace is
subject to search. See, e.g., U.S. v. McIntyre, 582 F.2d 1221, 1224 (9th Cir. 1978) (finding police
officers had a reasonable expectation in privacy largely because the government “failed to show
a regulatory scheme or specific office practice” which might diminish that privacy expectation).
A highly instructive case from the Third Circuit Court of Appeals is United States v.
Speights, 577 F.2d 362 (3d Cir. 1977). Speights involved a police officer that retained a locker at
the police headquarters with both a personal lock and a department issued lock. Id. at 363. There
were no regulations that addressed the issue of personal locks on police lockers, nor was there
any notice that the lockers could be searched. Id. at 363–64. Upon receiving a tip that Speights
was concealing an illegal sawed-off shotgun in his personal locker, a supervisor opened his
locker using a master key for the department issued lock and bolt cutters for the personal lock.
11 Id. at 362–63. Speights was subsequently prosecuted for illegally possessing the weapon. Id. at
362. On appeal, the Third Circuit found that the government had conducted an illegal search into
a constitutionally protected area and concluded “[o]nly if the police department had a practice of
opening lockers with private locks without the consent of the user would [the officer’s] privacy
expectation be unreasonable.” Id. at 364. The court addressed the fact that there had been
scattered instances of inspections of the lockers in the past few years (four in the past twelve
years), but nonetheless found “there [was] insufficient evidence to conclude that the police
department practice negated [the officer’s] otherwise reasonable expectation of privacy.” Id.
Like the officer in Speights, Officer Campbell held a reasonable expectation of privacy in
his personal locker where a personal lock was used, no policy expressly forbade the use of a
personal lock, and the police department had no common practice of opening officer lockers. The
record indicates the New Jacksonville Police Department did not have a routine practice or
written regulation informing the officers that their supervisors could inspect personal lockers
“either for cause or at random.” (R. at 15–16.) To the contrary, the facts suggest that Officer
Campbell had no basis for suspecting that his locker could be breached without his consent.
Although the record does reflect one instance of unannounced searches of all officer lockers
about one year before this case, this was a singular occurrence that happened before Officer
Campbell joined the police force. (R. at 9.) This isolated event could not have negated the
reasonable expectation of privacy Officer Campbell and the other officers held unless the New
Jacksonville Police Department articulated a policy or regulation informing them that their
personal lockers would henceforth be subject to search by supervisors. No such policy existed.
Moreover, there were no postings or written regulations that might have diminished Officer
Campbell’s expectation of privacy in his work locker. Officer Campbell similarly never signed a
12 release form acknowledging his employer’s right to enter his private workspace. There is simply
no basis for concluding that Officer Campbell was on notice that his personal work locker was
accessible by others. Here, the government has “failed to show a regulatory scheme or specific
office practice” of opening officer lockers that might have limited Officer Campbell’s reasonable
expectation that the contents of his locker were private to all but himself. McIntyre, 582 F.2d at
1224. Officer Campbell has thus “met his burden of showing a constitutionally justified
expectation of privacy in his locker and the government has failed to rebut [his] evidence” by
showing an office policy or regulation to the contrary. Speights, 557 F.2d at 365.
ii.
Officer Campbell’s locker was not open and accessible to others
Additionally, because Officer Campbell’s locker was not open and accessible to others,
his expectation of privacy was reasonable. A plurality of this Court found that no expectation of
privacy can exist where a government employee’s workspace is “so open to fellow employees or
to the public that no expectation of privacy is reasonable.” O’Connor, 480 U.S. 718 (plurality
opinion). This is because “[w]hat a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment protection.” Katz, 389 U.S. at 351. The
more accessible the item or area is to others, the less likely an individual employee’s claim of
privacy might be found credible. United States v. Thorn, 375 F.3d 679, 684 (8th Cir. 2004).
Hence, courts have rejected claims of an expectation of privacy when the employee knew or
should have known that others could access the employee’s workspace. See, e.g., United States v.
King, 509 F.3d 1338, 1341–42 (11th Cir. 2007) (finding no reasonable expectation of privacy in
“shared” files accessible to an entire computer network); United States v. Barrows, 481 F.3d
1245, 1248–49 (10th Cir. 2007) (public employee had no reasonable expectation of privacy in a
computer which he left out and unprotected from use by others).
13 By contrast, “where a public employee has [his] own office or desk which co-workers
and superiors normally do not enter . . . an expectation of privacy may be reasonable.” McGregor
v. Greer, 748 F. Supp. 881, 888 (D.C. Cir. 1990). Indeed, courts have found a search would
violate a government employee’s objectively reasonable expectation of privacy when the
employee had no reason to expect that others would access the space examined. See, e.g.,
O’Connor, 480 U.S. at 718–19 (plurality opinion) (doctor had expectation of privacy in desk and
file cabinets where no other employees had access other than superiors); United States v. Taketa,
923 F.2d 665, 671 (9th Cir. 1991) (holding “a reasonable expectation of privacy [exists] in an
area ‘given over to [an employee’s] exclusive use.’”) (internal citation omitted); Rossi v. Town of
Pelham, 35 F.Supp.2d 58, 62 (D.N.H. 1997) (finding a reasonable expectation of privacy in an
office that the public could not access and other employees did not enter).
Here, it is not disputed that Officer Campbell exclusively used the locker in question. The
locker was assigned solely to Officer Campbell to use. No other officers had access to that space.
Officer Campbell did not leave his locker open, he never granted others access, and he did not
share it with any of his fellow officers. To the contrary—he placed a personal lock to ensure that
he and only he could access the locker. Furthermore, Officer Campbell had no reason to suspect
even his superiors at the Police Department could access his space. Therefore, this Court should
find that the personal and private nature of his locker significantly contributes to Officer
Campbell’s reasonable expectation of privacy in its contents.
The District Court erred in finding no reasonable expectation of privacy because Officer
Campbell “cannot claim that he thought no one else would have access to his locker.” (R. at 10.)
Notably, “[p]rivacy does not require solitude.” Taketa, 923 F.3d at 673. “[A] private space (such
as a desk) within an otherwise public space (such as a government building) will justify an
14 expectation of privacy.” Caldarola v. County of Westchester, 343 F.3d 570, 575 (2d Cir. 2003).
Thus, the fact that other officers may have had access to the locker room and could have seen
Officer Campbell open his locker at times does not give Officer Campbell any less of a
reasonable expectation of privacy in his locker. Furthermore, the existence of a master key to
Officer Campbell’s locker does not defeat his expectation of privacy. Taketa, 923 F.2d at 673
(observing that “allowing the existence of a master key to overcome the expectation of privacy
would defeat the legitimate privacy interest of any hotel, office, or apartment occupant”). In
Speights, the police officer admitted to knowing his superiors had a master key to his locker, and
yet the court still found a reasonable expectation of privacy. Speights, 557 F.2d at 363–65 (“The
fact that the police officers . . . knew that most of the lockers could be opened with a master key
does not make an expectation of privacy unreasonable.”); see also Slanina, 283 F.3d at 676
(finding a reasonable expectation of privacy despite the presence of a master key). As such, the
fact that the Police Department could have bypassed the department issued lock before Officer
Campbell changed it out for a personal lock does not in and of itself defeat his claim. Again,
“[p]rivacy does not require solitude.” Taketa, 923 F.3d at 673.
iii.
The locker was given to Officer Campbell for storing personal items
Further contributing to Officer Campbell’s reasonable expectation of privacy is the nature
and use of the locker provided to him by the New Jacksonville Police Department. The record
establishes that Officer Campbell was assigned the locker for storing personal items. He used the
locker to store “family and other personal photographs, a change of clothes, his wallet, and his
personal cell phone.” (R. at 14.) Given the nature and intended use of the locker, Officer
Campbell “had a right to expect that his personal effects would remain private absent probable
cause to search and a warrant.” (R. at 14–15.) Other courts have held that “if the employer equips
15 the employee’s office with a safe or file cabinet or other receptacle in which to keep his private
papers, he can assume that the contents of [that space] are private.” Muick, 280 F.3d at 743. See
also Speights, 557 F.2d at 364 (finding a reasonable expectation of privacy partly because
officers stored personal items in department issued lockers). This Court in O’Connor similarly
found the presence of personal items contributes to a reasonable expectation of privacy.
O’Connor, 480 U.S. at 718–19 (plurality opinion). The Court here should likewise find the
presence of Officer Campbell’s personal items and the department’s intended use of the locker to
store those personal items as greatly contributing to a reasonable expectation of privacy.
iv.
Officer Graham is not Officer Campbell’s employer or supervisor
In finding Officer Campbell’s expectation of privacy in his personal work locker to be
reasonable, this Court should also consider the fact that Officer Graham is not a supervisor or
employer to Officer Campbell, but rather is a police officer of identical rank. (R. at 7, n.11.) In
finding that “[t]he operational realities of the workplace . . . may make some employees'
expectations of privacy unreasonable when an intrusion is by a supervisor rather than a law
enforcement official,” the Court narrowly tailored its ruling to only apply when the search is
executed by a supervisor or employer of a government employee. O’Connor, 480 U.S. at 717
(plurality opinion) (emphasis added). Although the “operational realities” of the workplace may
be relevant in evaluating the reasonableness of Officer Campbell’s expectation of privacy from
searches conducted by his employer, these facts present a different case. The Court should
analyze this issue through a more restrictive lens because an employer supervising his
subordinates did not conduct this search. Here, a police officer—acting without the express or
implied authority of his employer—executed this search. (R. at 7.) Although Officer Graham’s
search may have fallen under the narrow O’Connor rule if he had been acting under the direction
16 of a supervisor, the facts plainly demonstrate Officer Graham was acting on his own. Id. This
necessarily simplifies the Court’s task, as this case actually presents nothing more than a
straightforward Fourth Amendment search by a police officer—not a search by an employer
governed by O’Connor. Although a tenable argument could be made that Officer Campbell did
not have a reasonable expectation of privacy in a locker provided to him by his employer when
his employer does the searching, that argument vanishes here because the search in this case was
conducted by a police officer not acting in a supervisory capacity.
v.
Officer Campbell’s position as a police officer does not inherently
diminish his expectation of privacy in his work locker
Officer Campbell’s chosen profession does not defeat his assertion that he held a
reasonable expectation of privacy in his personal work locker. In other contexts, this Court has
found that certain industries, such as the United States Mint, must subject their employees to
certain routine searches. Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 671
(1989). However, this Court has never held that a police officer is, by virtue of his profession,
deprived of the protection of the Constitution. Garrity v. New Jersey, 385 U.S. 493 (1967). To
the contrary, this Court has found law enforcement officers “are not relegated to a watered-down
version of constitutional rights.” Id. at 500. Thus, the fact that Officer Campbell is a police
officer does not alter the Fourth Amendment analysis presented to the Court. See Cerrone v.
Brown, 246 F.3d 194, 199–200 (2d Cir. 2001).
Despite these findings, several lower courts have found the special status held by police
officers diminishes their expectation of privacy to some extent. See, e.g., Biehunik v. Felicetta,
441 F.2d 228, 230 (2d Cir. 1971); Kirkpatrick v. City of Los Angeles, 803 F.2d 485, 488 (9th Cir.
1986); Caruso v. Ward, 72 N.Y. 2d 432, 439 (N.Y. 1988). This Court is not bound by those
decisions and should find that police officers do not have diminished expectations of privacy in
17 their workplace simply because they wear a badge. The occupation of the government employee
should not alter the Court’s analysis here, and as previously noted several lower courts have
found police officers do have reasonable expectations of privacy in their workspace when
looking at the specific facts of those cases. See McIntyre, 582 F.2d at 1224; see also Speights,
577 F.2d at 364. Again, the proper test is to look at the “operational realities of the workplace”
on a “case-by-case basis.” O’Connor, 480 U.S. 717–18 (plurality opinion). The fact that Officer
Campbell is a police officer does not dramatically alter this analysis. To hold otherwise would be
to find police officers are “relegated to a watered-down version of constitutional rights.” Garrity,
385 U.S at 500. That is not the state of the law, nor should it be. Such a rule would “erode the
principle that a criminal suspect who is a policeman enjoys the same rights as other suspects.”
Cerrone, 246 F.3d at 200.
This Court should therefore find that Officer Campbell had a reasonable expectation of
privacy in his locker, and that consequently Officer Graham’s intrusion implicated the Fourth
Amendment.
B. Officer Graham’s Search of Officer Campbell’s Locker was Unreasonable
Since Officer Campbell had a reasonable expectation of privacy in his workplace, Officer
Graham’s intrusion into that area qualifies as a “search” for purposes of the Fourth Amendment.
Kyllo v. United States, 533 U.S. 27, 33 (2001). Generally, a warrant must be obtained before a
government actor can conduct a search that violates an individual’s reasonable expectation of
privacy. Mincey v. Arizona, 437 U.S. 385, 390 (1978) (stating the “cardinal principle” of Fourth
Amendment jurisprudence that “searches conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable” unless a warrant exception applies).
Here, it is undisputed that Officer Graham made no effort to obtain a warrant before he searched
18 Officer Campbell’s locker. (R. at 7.) Consequently, his warrantless search was unconstitutional
unless this Court finds it to have been otherwise reasonable. Evaluating the “reasonableness” of a
search conducted by a public employer necessarily requires the court to “balance the invasion of
the employee’s legitimate expectations of privacy against the government’s need for supervision
and control, and the efficient operation of the workplace.” O’Connor, 480 U.S. 719–20 (plurality
opinion).
In defining different classes of reasonable searches, this Court has carved out several
exceptions to the warrant requirement, including what has come to be known as the “special
needs” doctrine. The “special needs” exception permits government actors to circumvent the
usual warrant requirement when its employees are acting in a non-law enforcement capacity.
See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring) (applying
the “special needs” exception to permit public school officials to search student property without
a warrant to maintain discipline and order in public schools); Von Raab, 489 U.S. at 677
(applying the “special needs” exception to permit warrantless drug testing of Customs employees
seeking promotions). Under these narrow conditions, this Court has found that the need for
public officials to pursue legitimate, non-law enforcement objectives justifies relaxing the
warrant requirement, as “the burden of obtaining a warrant is likely to frustrate the governmental
purpose behind the search.” Camara v. Municipal Court, 387 U.S. 523, 533 (1967).
A plurality of this Court in O’Connor found that in the context of government
employment, the government’s role as an employer—rather than a law-enforcer—presents such a
“special need.” O’Connor, U.S. 480 at 725 (plurality opinion). Indeed, employers “frequently
need to enter the offices and desks of their employees for legitimate work-related reasons wholly
unrelated to illegal conduct” because employers and supervisors are tasked with “promoting the
19 government agency’s work in a prompt and efficient manner.” Id. at 721. Accordingly,
“requiring an employer to obtain a warrant whenever the employer wished to enter an
employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the
routine conduct of business and would be unduly burdensome.” Id. at 722. To require a warrant
in such circumstances would be unreasonable considering government employers “are hardly in
the business of investigating the violation of criminal laws,” and thus the justification for
restricting government actors from gaining access into constitutionally protected areas greatly
diminishes. Id. (plurality opinion). Ultimately, this Court in O’Connor held that “public
employer intrusions on the constitutionally protected privacy interests of government employees
for noninvestigatory, work-related purposes, as well as for investigations of work-related
misconduct, should be judged by the standard of reasonableness under all the circumstances.” Id.
at 725–26 (emphasis added).
This Court should find Officer Graham’s search was unreasonable for several reasons.
First, because his search falls outside O’Connor’s narrow warrant exception because he himself
is not Officer Campbell’s employer. Second, because his search was not for a “noninvestigatory,
work-related purpose,” or to investigate “work-related misconduct.” Third, because Officer
Campbell’s position as a police officer does not inherently make a search of his workspace more
reasonable where that search is not part of an internal investigation.
1. Officer Graham’s search does not fall within O’Connor’s warrant
exception because he is not a government employer
Since Officer Graham was acting neither as a government employer nor under the
direction of a government employer, his search of Officer Campbell’s personal work locker does
not fall within the narrow O’Connor warrant exception. Consequently, his search was
unreasonable and unconstitutional. The first requirement for a search to fall within O’Connor’s
20 “special needs” warrant exception is that the search be conducted by a “public employer.”
O’Connor, 480 U.S. at 725 (plurality opinion). The policy reason justifying O’Connor’s warrant
exception is entirely dependent on the presence of a government employer. Id. at 721 (finding
employers “frequently need to enter the offices and desks of their employees for legitimate workrelated reasons wholly unrelated to illegal conduct.”). Throughout her plurality opinion, Justice
O’Connor mentions “employers” thirty-four times and “supervisors” eleven times. Id. at 714729. The word “agent” is never used, and the word “employee” is only used to describe the
subject of the search, not the person performing the search. Id. It is evident then—by the Court’s
specific language—that a necessary predicate for a search to fall within O’Connor’s “special
needs” warrant exception is that the search originate from an employer or supervisor. Justice
Scalia confirms this in his O’Connor concurrence, arguing that “[t]he identity of the searcher
(police v. employer) is relevant . . . to whether the search of the protected area is reasonable.” Id.
at 731 (Scalia, J., concurring).
As such, the plain reading of this Court’s plurality holding in O’Connor makes this a
simple case for the Court to decide. O’Connor’s “special needs” warrant exception can only
apply when a government supervisor or employer conducts a search. This was not the case here.
Officer Graham was a police officer of equivalent rank to Officer Campbell. (R. at 7, n.11.)
Additionally, Officer Graham was not acting under the authorization of a superior, but rather
conducted his own independent investigation. (R. at 7.) In making the argument that O’Connor’s
“special needs” warrant exception applies in this case, Petitioner is trying to fit a square peg into
a round hole. To find otherwise would require this Court to essentially draft a new rule whereby
police officers need a warrant or warrant exception to search private citizens, but can perform
warrantless searches at will on their fellow police officers. This Court should not craft such a
21 rule, as to do so would effectively degrade police officers “to a watered-down version of
constitutional rights.” Garrity, 385 U.S. at 500.
Moreover, the lower courts have adopted this reading of O’Connor. See, e.g., Gwynn v.
City of Philadelphia, 719 F.3d 295, 303 (3d Cir. 2013) (upholding a search on a police officer
where that search was conducted by “superior officers.”); Rossi, 35 F.Supp.2d. at 67
(“Warrantless work-related searches conducted by police should not be upheld under the
[O’Connor] exception because a lesser intrusive warrantless search by the employee's supervisor
will fully realize the concern for workplace efficiency.”). In Rossi, the Court concluded that
O’Connor’s warrant exception did not apply where a police officer searched a public employee’s
office because the search was a “police intrusion” rather than a search conducted by an
employer. Rossi, 35 F.Supp.2d. at 65–66. The Court should draw a similar conclusion here.
Officer Graham could have brought his suspicion to the attention of his supervisors.
Subsequently, if Officer Campbell’s employer conducted a search, that search may have fallen
under O’Connor’s “special needs” warrant exception depending on the purpose of the search at
its inception (see discussion below). However, Officer Graham made no effort to alert a
supervisor—he took it upon himself to break into a fellow police officer’s locker. If O'Connor
truly is a “special need” for government employers, it cannot apply here. This was a “police
intrusion” that does not qualify for heightened protection under O’Connor. Thus, in the absence
of a warrant supported by probable cause, Officer Graham’s search is “per se unreasonable.”
Mincey, 437 U.S. at 390.
2. Officer Graham’s search was aimed only at investigating suspected
criminal activity, not a legitimate work related purpose
Even if this Court were to find O’Connor’s reasonableness test does apply despite the
fact Officer Graham is not a government employer, this Court should nonetheless find his search
22 to be unreasonable because it was aimed solely at investigating crime. As the Thirteenth Circuit
Court of Appeal properly pointed out, “[t]he purpose of the search is critical.” (R. at 16); see also
Lowe v. City of Macon, Ga., 720 F.Supp. 994, 998 (M.D. Ga. 1989) (“It is the purpose behind the
search which is controlling as to which standard, probable cause, or reasonable suspicion will be
applied.”). O’Connor’s reasonableness test is predicated on the search being for
“noninvestigatory, work-related purposes” or to investigate “work-related misconduct.”
O’Connor, 480 U.S. at 725–26 (plurality opinion). This requirement limits the O’Connor
exception to circumstances in which the government employers who conduct the search are
acting in their capacity as employers, rather than law enforcers.
Allowing warrantless searches for “noninvestigatory, work-related purposes” supports
the government’s interest in promoting productivity in the workplace. Id. at 723. Operational
efficiency “would suffer if employers were required to have probable cause before they entered
an employee’s desk for the purpose of finding a file or piece of office correspondence.” Id. It is
this reason alone that “public employers must be given wide latitude to enter employee offices
for work-related, noninvestigatory reasons.” Id. Additionally, warrantless searches for
investigating “work-related misconduct” are reasonable because “employers have an interest in
ensuring that their agencies operate in an effective and efficient manner, and the work of these
agencies inevitably suffers from . . . work-related misfeasance of its employees.” Id. at 724.
Whether a search pursuant to O’Connor is for “noninvestigatory, work-related purposes” or to
investigate “work-related misconduct,” that search must be both justified at its inception and
sufficiently narrow in its scope. Id. at 726.
By glaring contrast, however, a public employer's search for evidence of criminal
conduct does not benefit from the “reasonableness” standard set forth in O'Connor. As the Ninth
23 Circuit Court of Appeals in Taketa observed, “[t]he rationale for the lesser burden O’Connor
places on public employers is not applicable for [public employers] engaged in a criminal
investigation.” Taketa, 923 F.2d at 675. Indeed, a law enforcement agency should not be
permitted to “cloak itself in its public employer robes” when searching for evidence to be used in
a criminal prosecution and still fall within O’Connor’s warrant exception. Id. Correspondingly,
courts have routinely invalidated warrantless workplace searches when the facts demonstrate the
search’s purpose was to investigate crime. See, e.g., Trujillo v. City of Ontario, 428 F.Supp.2d
1094, 1109 (C.D. Cal. 2006) (finding a search initiated exclusively to investigate possible
criminal conduct is governed by the probable cause standard); United States v. Hagarty, 388
F.2d 713, 717 (7th Cir. 1968) (invalidating a workplace search where the purpose was “to detect
criminal activity” rather than “to supervise” a government employee); United States v. Jones,
286 F.3d 1146, 1151 (9th Cir. 2002) (“The O’Connor standard is not applicable to federal agents
engaged in criminal investigations.”). Similarly, when evaluating whether a police officer’s
search of his fellow officer falls within O’Connor, “the crucial question is not whether the
investigation involves actions arising out of [the] police officer's duties, but whether the
investigation's objective is to discipline the officer within the department or to seek criminal
prosecution.” Cerrone, 246 F.3d at 200 (emphasis added).
Here, Officer Graham’s search did not take the form of an employer conducting a search
for a “noninvestigatory, work-related purpose.” Nor was it to investigate “work-related
misconduct.” Rather, his search was initiated for no other purpose than to investigate possible
criminal conduct. The record shows Officer Graham became suspicious of Officer Campbell and
believed he was hiding inculpatory evidence in his personal locker after he replaced the
department-issued lock with a personal lock the day after the Jennings incident. (R. at 7.) Officer
24 Graham admitted to being angered by Officer Campbell’s derogatory comments towards African
Americans and testified that he used bolt cutters to remove the lock because he believed it
necessary to “force that lying, racist asshole to tell the truth for once.” Id. Furthermore, on crossexamination Officer Graham admitted that “he hoped a more thorough investigation would
follow once he discovered the camera.” Id. The fact that he was not part of any ongoing
investigation is immaterial. By cutting off Officer Campbell’s personal lock, Officer Graham
effectively conducted his own independent investigation. Moreover, the facts demonstrate
Officer Graham was fully aware a criminal investigation was actively ongoing. This greatly
mitigates any possible assertion by Petitioner that Officer Graham’s solo efforts did not
contribute towards that ongoing criminal investigation—whether Officer Graham was officially
acting on behalf of that investigation or not.
The District Court erroneously found that because this search was made by a police
officer in a police department, the distinction between investigating for evidence of crime and
searching for a work-related purpose was “necessarily conflated.” (R. at 9.) Rather, “in looking
to ascertain whether the investigation is criminal in nature, the proper focus is not on the
positions or capabilities of the persons conducting the search, but rather the reason for the search
itself.” Wiley v. Department of Justice, 328 F.3d 1346, 1352 (Fed. Cir. 2003). When a supervisor
in law enforcement seeks to employ O’Connor’s relaxed warrant requirement and the exclusive
goal of their search was to investigate crime, they have effectively “switched roles from public
employer to criminal investigator,” and thus “the investigation change[s] and the standard of
reasonableness imposed on the search change[s] with it.” Taketa, 923 F.2d at 675. Officer
Graham had no concern for effectuating office productivity. He likewise had no motive to
investigate a potential violation of workplace policy. Although a rational argument could be
25 made that Officer Campbell committed work-place misconduct by not uploading his body
camera footage in a timely fashion, see (R. at 4, n.6,) the purpose of Officer Graham’s search
was not to discipline a fellow officer for violating this rule. His aim was to expose a colleague he
believed to be a “racist asshole” whom he believed needed to be held criminally accountable for
a perceived hate crime.
Employers and supervisors concern themselves with office productivity and preventing
workplace rules violations. Police officers, by contrast, are chiefly concerned with investigating
crime and achieving convictions. See O’Connor, 480 U.S. at 721 (plurality opinion) (“[P]olice . .
. conduct searches for the primary purpose of obtaining evidence for use in criminal or other
enforcement proceedings.”). As the Thirteenth Circuit Court of Appeals properly observed, “[i]t
was clear, especially to a fellow police officer, that if Officer Campbell was lying about the
events of June 19, a criminal investigation and prosecution were sure to follow.” (R. at 17.) Here,
Officer Graham was not “looking for some needed document or record and inadvertently
[happened] upon incriminating evidence.” United States v. Kahan, 350 F. Supp. 784, 791
(S.D.N.Y. 1972) (finding a government employee was subjected to an unreasonable workplace
search where that search occurred after a criminal investigation had begun), rev’d in part on
other grounds, 479 F.2d 290 (2d Cir. 1972), rev’d with directions to reinstate the district court
judgment, 514 U.S. 239 (1974). Officer Graham was performing his primary function as a police
officer: looking for evidence to use in criminal prosecutions and trying to enforce the law.
Officer Graham’s testimony is consistent with this. He wanted nothing more than for a fellow
officer to “tell the truth for once” and stand trial. (R. at 7.)
Petitioner may argue this was a “dual purpose search,” meaning it was both to investigate
work-related misconduct and aimed at investigating criminal conduct. Numerous courts have
26 held that such “dual purpose searches” fall under O’Connor’s “reasonableness” standard. See,
e.g., Slanina, 283 F.3d at 678 (finding O’Connor applicable where an investigation into workplace misconduct is also a criminal investigation because “O’Connor’s goal of ensuring an
efficient workplace should not be frustrated simply because the same misconduct that violates a
government employer’s policy also happens to be illegal.”); Shields v. Burge, 874 F.2d 1201,
1202–05 (7th Cir. 1989) (applying the O’Connor warrant exception to an internal investigation
of a police sergeant that coincided with a criminal investigation). Yet, for reasons stated above,
the facts here provide no basis for supposing that Officer Graham had any concern for
investigating work-related misconduct when he used bolt cutters to remove Officer Campbell’s
personal lock. (R. at 7.) At the moment of the search’s inception, Officer Graham was not
motivated by upholding departmental policy requiring officers to upload body camera footage in
a timely fashion. Rather, his only concern was to investigate someone he thought committed a
hate crime. Any argument made by Petitioner to the contrary is pretext in an unfounded attempt
to legitimize an illegal search.
Because the facts demonstrate Officer Graham’s single purpose at the search’s inception
was to investigate suspected criminal conduct, O’Connor’s “reasonableness” test is entirely
inapplicable. This search was part of an effort to secure evidence of a crime, which is “precisely
the kind of search by policemen . . . against which the constitutional prohibition was directed.”
United States v. Blok, 188 F.2d 1019, 1021 (D.C. Cir. 1951). Consequently, Officer Graham’s
warrantless search violated Officer Campbell’s constitutional right to be free from unreasonable
searches, and the body camera footage must be suppressed from use at trial.
27 3. Officer Campbell’s position as a police officer does not inherently make a
search of his workspace more reasonable where that search is not part of
an internal investigation
Finally, Officer Campbell’s occupation as a police officer does not intrinsically make the
warrantless search of his personal work locker any more reasonable because the search was not
part of an internal investigation conducted by the New Jacksonville Police Department.
Petitioner may argue that Officer Campbell’s status as a police officer should be factored into the
reasonableness analysis, for “it is within the State’s power to regulate the conduct of its police
officers even when the conduct involves the exercise of a constitutionally protected right.”
Caruso, 72 N.Y. 2d at 439 (internal citation omitted). Ostensibly, the “privacy expectations of
police officers” are “diminished by virtue of their membership in a paramilitary force, the
integrity of which is a recognized and important State concern.” Id. But see Garrity, 385 U.S. at
500 (stating police “are not relegated to a watered-down version of constitutional rights.”).
Several lower courts have supported this perspective. For example, in Biehunik v.
Felicetta the Second Circuit commented that the public has a “substantial” interest in “ensuring
the appearance and actuality of police integrity.” Biehunik, 441 F.2d at 230. There, the Court
found “a trustworthy police force is a precondition of minimal social stability,” and that
policemen cannot reasonably expect “the same freedom from governmental restraints” because
they “voluntarily accept the unique states of watchman of the social order.” Id. at 230–31.
Pursuant to this reasoning, the Court in Biehunik found that forcing sixty-two police officers to
participate in a criminal line-up was reasonable even where no probable cause existed to support
the line-up. Id. at 231. Likewise, in Kirkpatrick v. City of Los Angeles, the Ninth Circuit found
“the government has an interest in police integrity which must be considered in evaluating the
reasonableness of investigative searches of police officers.” Kirkpatrick, 803 F.2d at 488.
28 Although the Court in Kirkpatrick found forcing police officers to be subjected to a strip search
was unreasonable in that particular case, they cited Biehunik favorably. Id. at 490–91.
However, the common thread linking Biehunik and Kirkpatrick that is not present in this
case is that those cases involve searches conducted by a superior officer as part of an ongoing
internal investigation of inferior police officers. In Biehunik, “[t]he lineup was ordered by that
official of the police department charged with running an efficient and law-abiding
organization—the Police Commissioner.” Biehunik, 441 F.2d at 230. Consequently, “Biehunik’s
exception to the probable cause requirement is limited to internal disciplinary investigations.”
Cerrone, 246 F.3d at 201. Similarly, the officer strip-search in Kirkpatrick was ordered by the
police Lieutenant in order to “protect the officers’ records and the department’s credibility.”
Kirkpatrick, 803 F.2d at 487. To be sure, an organized society would encourage its police chiefs
to conduct internal investigations aimed at supervising their police force so that the public trusts
and respects their local police department. But where a search is not part of such an internal
investigation, but rather is conducted by an inferior officer who is in no way concerned with
supervising others, that policy objective disappears. The District Court relied on Biehunik and
Kirkpatrick in overruling Officer Campbell's motion to suppress, but it erred in ignoring this
crucial distinction. (R. at 9.)
In Lowe v. City of Macon, Ga., the Court specifically examined how Kirkpatrick and
Biehunik “involved purely internal investigations,” and thus “[t]he purpose of the searches and
seizures on those cases was not to gather evidence for criminal prosecution.” Lowe, 720 F.Supp
at 997–98 (emphasis added). The Court in Lowe discussed how it might be sound public policy
to lower a police officer’s Fourth Amendment protections when a police supervisor conducts an
internal investigation, but only in that narrow context. Id. Indeed, various other courts have
29 found investigations into law enforcement officers may be reasonable where those searches are
part of internal investigations. See, e.g., Taketa, 923 F.2d at 674 (finding the search of a DEA
office by other DEA agents to be an “internal investigation directed at uncovering work-related
employee misconduct.”); Shields, 874 F.2d at 1202–05 (applying the O’Connor exception to an
internal affairs investigation of a police sergeant).
Likewise, Officer Graham’s search was entirely dissimilar from the “large-scale
corruption investigation” previously conducted by the New Jacksonville Police Department. (R.
at 9.) Those searches, which were specifically carried out to help prevent police dishonesty and
initiated by New Jacksonville Police Department superiors who were charged with investigating
officer misconduct, were arguably justified for the reasons discussed above in Caruso, Biehunik,
and Kirkpatrick. However, that is a far cry from the case presented here. Again, a search is only
reasonable within the O’Connor special needs warrant exception if it is justified at its inception.
O’Connor, 480 U.S. at 726 (plurality opinion). At the genesis of Officer Graham’s search, he had
neither the intent nor the authority to conduct an internal investigation. Absent this possible
justification for finding Officer Graham’s search to be reasonable, the Court is left with nothing
more than a police officer breaking into a constitutionally protected area in hopes of finding
evidence of crime.
When Officer Graham sought access to Officer Campbell’s locker, he was presented with
two legal options that could have achieved that end. First, he could have pursued a warrant based
upon probable cause. Indeed, the Thirteenth Circuit Court of Appeals noted that “there was no
reason the locker couldn’t have been secured pending a request for a search warrant.” (R. at 17.)
Alternatively, Officer Graham “should have reported his suspicions to his superiors and let them
handle it.” (R. at 14.) That may have lead to a warrantless search falling within O’Connor’s
30 narrow “special needs” warrant exception. But Officer Graham elected to take neither legal
option presented to him. He allowed “his anger at a racist colleague to cloud his judgment” and
conducted an illegal search. Id. Consequently, Officer Graham’s search was unreasonable and
the body camera footage should not have been admitted at trial.
II. The Thirteenth Circuit Properly Vacated Officer Campbell’s Hate Crime
Conviction
The Court of Appeals correctly determined that Officer Campbell’s conviction under the
Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 (“Hate Crimes
Prevention Act”) was impermissible. Beyond the factual insufficiencies within the record, the
Hate Crimes Prevention Act should be struck down as unconstitutional. Congress exceeded the
scope of their constitutional authority under § 2 of the Thirteenth Amendment when they enacted
§ 249(a)(1) of the Hate Crimes Prevention Act. Even if this Court were to find that the Hate
Crimes Prevention Act is constitutional, this Court should adopt the “but-for” causation test for
the motivational requirement of § 249(a)(1). Under any standard, however, Officer Campbell’s
actions taken within the line of duty cannot support a conviction under the Hate Crimes
Prevention Act. Accordingly, the decision of the Court of Appeals vacating the conviction of
Officer Campbell under the Hate Crimes Prevention Act should be affirmed.
A. Section 249(a)(1) of the Hate Crimes Prevention Act Is Unconstitutional
Section 249(a)(1) of the Hate Crimes Prevention Act may not be constitutionally applied
to Officer Campbell because it cannot be constitutionally applied to anyone. Congress
impermissibly exceeded the scope of their authority under § 2 of the Thirteenth Amendment
when it passed the Hate Crimes Prevention Act. The Court should build from recent precedent
regarding the Reconstruction Amendments and hold that Congress must act remedially when
31 using the Enforcement Clause of the Thirteenth Amendment and pass laws that are proportional
and congruent. Accordingly, § 249(a)(1) should be struck down as unconstitutional.
1. Section 249(a)(1) Was Passed Under § 2 of the Thirteenth Amendment
This Court has not yet analyzed 18 U.S.C. § 249(a)(1) or its constitutionality. Congress
purported to pass § 249(a)(1) under the Thirteenth Amendment. Because § 249(a)(1) exceeds the
scope of authority contained within the Thirteenth Amendment, it is not a permissible exercise of
Congressional authority, and must be found unconstitutional.
Congress does not have a national police power. United States v. Lopez, 514 U.S. 549,
566 (1995). The laws of the legislature are thus defined and limited by the grants of power
contained within the Constitution, and Congress may not pass laws beyond those grants of
power. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176–78 (1803); United States v. Morrison,
529 U.S. 598, 607 (2000).
The Thirteenth Amendment states that “[n]either slavery nor involuntary servitude,
except as a punishment for crime whereof the party shall have been duly convicted, shall exist
within the United States, or any place subject to their jurisdiction,” and that “Congress shall have
power to enforce this article by appropriate legislation.” U.S. Const. amend. XIII. If the Hate
Crimes Prevention Act is to be constitutional, its prohibited conduct must fall within the power
granted by the Thirteenth Amendment.
The Hate Crimes Prevention Act prohibits physical violence “because of the [victim’s]
actual or perceived race, color, religion, or national origin.” 18 U.S.C. 249(a)(1). At the time the
Hate Crimes Prevention Act was passed, Congress purported to make findings in support of their
federal jurisdiction. See UNITED NATIONAL DEFENSE AUTHORIZATION ACT FOR
FISCAL YEAR 2010, Pub.L. No. 111-84, § 4702(7) (October 28, 2009). Congress stated that the
32 Hate Crimes Prevention Act was passed under the Thirteenth and Fourteenth Amendments, as
well as the Commerce Clause of Article I. Id.
Section 249(a)(1) may only constitutionally fall—if at all—under the power granted by §
2 of the Thirteenth Amendment. Laws passed under the Fourteenth Amendment require state
action. See Civil Rights Cases, 109 U.S. 3, 10–11 (1883). Laws passed under the Commerce
power of the Commerce Clause must fall with three categories: (1) the channels of interstate
commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate
commerce; and (3) activities that “substantially affect” interstate commerce. See Gonzales v.
Raich, 545 U.S. 1, 33–34 (2005). Section 249(a)(1) applies to anyone, “whether or not acting
under color of law,” so it cannot be passed under the Fourteenth Amendment. 18 U.S.C. §
249(a)(1). Similarly—and unlike § 249(a)(2)—§ 249(a)(1) contains no element requiring a
showing of a nexus with interstate commerce. Compare 18 U.S.C. § 249(a)(1) with 18 U.S.C. §
249(a)(2). Accordingly, if § 249(a)(1) does not fall permissibly within the scope of authority
granted to Congress by the Thirteenth Amendment, it is not constitutional.
2. Congress May Not Unilaterally Define “Badges and Incidents” of Slavery
In the relevant findings of the Hate Crimes Prevention Act, Congress stated that
“eliminating racially motivated violence is an important means of eliminating, to the extent
possible, the badges, incidents, and relics of slavery and involuntary servitude.” Pub.L. No. 11184, § 4702(7). The “badges and incidents” language stems from one of the first Supreme Court
opinions to fully evaluate the scope of Congress’ power to legislate under the Thirteenth
Amendment, the Civil Rights Cases. 109 U.S. 3. In that case, this Court recognized that the
Thirteenth Amendment—in § 1—established that slavery could no longer exist within the United
States, and effectively nullified all state laws which established or upheld slavery. Id. at 20.
33 Section 2, however, clothed Congress with the power to pass all laws necessary and proper to
“abolish[] all badges and incidents of slavery” within the United States. Id.
The Court then evaluated whether Congress could prohibit discrimination based on race
in public accommodations under § 2 of the Thirteenth Amendment. Civil Rights Cases, 109 U.S.
at 21. Denial of admission to an inn, public conveyance, or theater did not qualify as a badge or
incident of slavery. Id. The Court reasoned that the Amendment abolished slavery and
involuntary servitude, and any legislation deemed necessary and proper to enforce the
Amendment would be to remove the “inseparable concomitants of that state.” Id. at 25. Indeed,
“mere discriminations on account of race or color were not regarded as badges of slavery.” Id.
Once slavery and its “inseparable concomitants” were abolished, Congress would only be able to
act under the Fourteenth or Fifteenth Amendments to ensure equal protection and nondiscrimination. Id.
In 1968, the interpretation of § 2 of the Thirteenth Amendment was expanded
significantly. See Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). In Jones, the Court held
that Congress not only had the power to establish laws to abolish the badges and incidents of
slavery, but that Congress itself could define what those badges and incidents are—so long as the
determination is rational. Id. at 440.
However, more recent cases involving the other Reconstruction Amendments have
rejected the idea that Congress may “define its own powers” by altering the scope of § 5 of the
Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, 529 (1997). The Court noted
that the Reconstruction Amendments were remedial in nature, and thus limited Congress’ power
under the Enforcement Clause of the Fourteenth Amendment by requiring that legislation have
“congruence and proportionality” between the injury to be prevented or remedied and the means
34 adopted to that end. Id. at 520 (finding the Religious Freedom Restoration Act unconstitutional
as non-remedial legislation, as well as out of proportion to any harm Congress might seek to
remedy).
Under the City of Boerne test, it is clear that the Hate Crimes Prevention Act cannot be
considered remedial. The Hate Crimes Prevention Act potentially criminalizes large areas of
conduct—bodily injury, for example, is defined as: a cut, abrasion, bruise, burn, or
disfigurement; physical pain; illness; impairment of the function of a bodily member, organ, or
mental faculty; or any other injury to the body, no matter how temporary. 18 U.S.C. §
1365(h)(4). Criminalizing any conduct that results in a bodily injury—any injury, no matter how
temporary—is not proportional and congruent to harms that could be considered badges and
incidents of slavery. Therefore, if this Court adopts the City of Boerne test for the Thirteenth
Amendment, §249(a)(1) must be struck down as unconstitutionally overbroad.
The courts of several circuits have examined the Hate Crimes Prevention Act for
constitutionality. Several have noted that they were required by Jones to give deference to
Congress’s findings that “eliminating racially motivated violence is an important means of
eliminating . . . the badges, incidents, and relics of slavery and involuntary servitude.” See
United States v. Hatch, 722 F.3d 1193, 1200 (10th Cir. 2013); and United States v. Cannon, 750
F.3d 492, 505 (5th Cir. 2014) cert. denied, 135 S. Ct. 709, 190 L. Ed. 2d 445 (2014) and cert.
denied sub nom. McLaughlin v. United States, 135 S. Ct. 709 (2014) and cert. denied sub nom.
Kerstetter v. United States, 135 S. Ct. 709 (2014).
This Court should bring Thirteenth Amendment legislation in line with recent
Reconstruction Amendment precedent, and hold that Congress must show that the law is
congruent and proportional to the harm sought to be remedied. Because the Hate Crimes
35 Prevention Act fails that test, it must be struck down as an unconstitutional exercise of § 2 of the
Thirteenth Amendment.
B. The Hate Crimes Prevention Act Requires “But-For” Causation, and Officer
Campbell’s Conduct Does Not Satisfy That Standard
The District Court and Court of Appeals declined to adopt the “but-for” or “substantial
motivating factor” test which has previously been applied to determine discriminatory
motivation under the Hate Crimes Prevention Act. (R. at 13, 17.) Although the District Court
decision states that race was a “but-for” motivation for pulling over Jennings, the statute requires
that the bodily injury occurs “because of” the race of the victim. See (R. at 13.); 18 U.S.C. §
249(a)(1). The District Court decision then continued that race was “more than a substantial
factor” in the events. (R. at 13.) The Court of Appeal vacated the decision of the District Court,
but also declined to establish the proper test to be applied under the Hate Crimes Prevention Act.
(R. at 17.) This Court should hold that the “but-for” test is the proper standard for evaluating
conduct under the Hate Crimes Prevention Act.
1. The Plain Language of the Statute Supports a “But-For” Standard
The Hate Crimes Prevention Act § 249(a)(1) states that any person who “willfully causes
bodily injury to any person . . . because of the actual or perceived race, color, religion, or
national origin of [that] person” may be imprisoned in accordance with that title. 18 U.S.C. §
249(a)(1) (emphasis added). The District Court noted that the words “because of” have been
interpreted differently in the two circuits in which the issue has been addressed. (R. at 12.) In
U.S. v. Maybee, the Eighth Circuit held that the Hate Crimes Prevention Act merely required that
race or national origin was a “substantial motivating factor” of the conduct being prosecuted.
United States v. Maybee, 687 F.3d 1026, 1028 (8th Cir. 2012). The Sixth Circuit reversed a
conviction under the Hate Crimes Prevention Act in U.S. v. Miller, determining that a “but-for”
36 standard was appropriate for the language “because of” chosen by Congress. United States v.
Miller, 767 F.3d 585, 589 (6th Cir. 2014).
This Court has rejected this type of mixed-motivation statutory construction under nearly
identical language. Court precedent clearly establishes the Court’s interpretation of the phrase
“because of” as requiring a “but-for” causal relationship with regards to motive. See Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009); and Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47,
63–64, n. 14 (2007).
Indeed, this Court has recently rejected a similar statutory construction by the Eighth
Circuit under similar statutory language. In Burrage v. United States, this Court established a
“but-for” causation requirement from language in the Controlled Substance Act creating a
sentencing enhancement when death “results from” the use of a drug distributed by a defendant.
Burrage v. United States, 134 S. Ct. 881, 892 (2014). The Burrage Court compared the “results
from” language to the line of cases “insist[ing] on but-for causality” for phrases such as “results
from” and “because of” where “there is no textual or contextual indication to the contrary . . . .”
Id. at 888–89. The language of the Hate Crimes Prevention Act contains no textual or contextual
indication that Congress intended any other meaning than “but-for” causality. Consequently,
based on the plain language of the statute this Court should adopt the “but-for” test for §
249(a)(1) as the proper test.
2. The Precedential Background at the Time the Hate Crimes Prevention
Act was Passed Supports the “but-for” Causation Standard
Congress passed the Hate Crimes Prevention Act in 2009. Where Congress passes
legislation, they are presumed to have acted within the precedential background available at the
time. See Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2525 (2013). Congress is also
presumed to have incorporated the default rules of this background, “absent an indication to the
37 contrary in the statute itself.” Id. Because Congress was well aware of the precedential
background against which the Hate Crimes Prevention Act was passed, their deliberate use of the
phrase “because of” should be given the meaning that would have been established during that
time period.
Earlier in 2009, this Court examined the Age Discrimination in Employment Act of 1967
(“ADEA”) and determined that the proper burden of proof to establish a disparate-treatment
claim is “but-for” causation. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009). The
language at issue within the ADEA established that “[i]t shall be unlawful for an employer . . . to
fail or refuse to hire or to discharge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's age.” 29 U.S.C. § 623(a)(1) (emphasis added). The Court held that
such language should begin with the assumption that the “ordinary meaning of that language
accurately expresses the legislative purpose.” Gross, 557 U.S. at 175. Applying the ordinary
meaning of the language, the Court determined that a “but-for” causal relationship was required
under the Act. Id. at 177–78. The Gross Court even called into question earlier precedent
establishing “mixed-motivation” Title VII claims, noting that “it is far from clear that the Court
would have the same approach [as Price Waterhouse] were it to consider the question today in
the first instance.” Gross, 557 U.S. at 178–79. It was with this background that Congress passed
the Hate Crimes Prevention Act. And therefore, Congress’ choice of “because of” is consistent
with “but-for” causality.
If Congress did wish to establish a “substantial motivating factor” standard in the Hate
Crimes Prevention Act, it was aware of the proper language to use. In the 1989 decision Price
Waterhouse v. Hopkins, the Court created a burden shifting approach to discrimination claims
38 under Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989) (plurality opinion). The
decision allowed a plaintiff to prevail on a claim of status-based discrimination so long as one of
the prohibited traits was a “motivating” or “substantial” factor in the employer’s decision. Id.; id.
at 259 (White, J., concurring in judgment) However, the employer could escape liability through
a showing that it would have taken the same employment action in the absence of all
discriminatory animus—in other words, if the discriminatory motive was not the “but-for” cause
of the adverse employment action. See Nassar, 133 S. Ct. at 2526 (examining Price
Waterhouse).
Just two years later in 1991, Congress amended the Civil Rights Act, expressly providing
that an employment action was unlawful so long as it was established that a prohibited trait was
“a motivating factor for any employment practice, even though other factors also motivated the
practice.” 42 U.S.C. § 2000e-2(m). The Nassar Court held that following Congress’ 1991
amendments, any sections containing the “because of” language that were not subject to
§ 2000e-2(m) should be interpreted using the plain meaning of the words, requiring the plaintiff
to establish “but-for” causation to prevail, since Congress had added explicit language where a
lesser standard was desired. Id.
To read the statute as allowing conviction where the discriminatory intent is merely one
of many mixed motivations would also render the statute an impermissible restriction on speech.
As noted in U.S. v. Jenkins, to pursue a person’s motivations, expression, or thought is “suspect
business” under this Court’s jurisprudence. U.S. v. Jenkins, No. CRIM. 12-15-GFVT, 2013 WL
3338650, at *5 (E.D. Ky. July 2, 2013), aff'd (Sept. 12, 2014), aff'd (Sept. 12, 2014) (comparing
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 378 (1992) (striking down an ordinance on First
Amendment grounds as targeting expression instead of conduct) with Wisconsin v. Mitchell, 508
39 U.S. 476 (1993) (upholding a state statute establishing sentencing enhancements when victims
are selected based on race)). Here, the District Court noted comments made during and after the
incident, but failed to make any connection linking those comments with the actual charged
conduct. (R. at 13.) Requiring the strict “but-for” standard ensures that conduct motivated by
discriminatory animus is the conduct being punished, not the speech, beliefs, or thoughts of the
defendant. Any lesser standard would run afoul of First Amendment protections.
The plain language of § 249(a)(1)—taken with the precedential background in place at
the time the Hate Crimes Prevention Act was passed—establishes that Congress intended a “butfor” standard for racial motivation. To adopt the “substantial motivating factor” test would be
contrary to the language of the Hate Crimes Prevention Act and established Supreme Court
precedent, and would create an unconstitutional restriction on speech. Accordingly, this Court
should adopt the “but-for” test as the correct standard for 18 U.S.C. § 249(a)(1).
3. There Was Insufficient Evidence Officer Campbell Acted “because of”
the Jennings’ Race
The Court of Appeals correctly determined that there was insufficient evidence within the
record to support Officer Campbell’s conviction under the Hate Crimes Prevention Act. To
establish a crime under 18 U.S.C. 249(a)(1), the government must show—beyond a reasonable
doubt—that the defendant “willfully cause[d] bodily injury . . . because of the actual or perceived
race” of the victim.” 18 U.S.C. § 249(a)(1). Regardless of whether this Court adopts the “butfor” or “substantial motivating factor” test, there was insufficient evidence to establish that the
actions of Officer Campbell and the bodily injury to Jennings during the traffic stop were
because of his race. Admittedly the record paints a convincing picture that Officer Campbell
harbors racial animus, and that prejudice may have played a part in Officer Campbell’s choice to
pull over Jennings. (R. at 3). The record also suggests Officer Campbell was proud of what he
40 had done after the fact. (R. at 6). But the record is noticeably light on evidence demonstrating
that—at the moment Officer Campbell pulled the trigger—his distaste for a black man was the
motivating factor compelling his shot. This was a split-second decision by Officer Campbell, and
it was an overreaction to a perceived threat, but it was not a hate crime.
On this evidence, the District Court could not have found that Officer Campbell shot
Jennings “because of” racial animus. “This is not enough to convict him of a hate crime.” (R. at
17.) Jennings’ race. Because there is no evidence within the record which could support the
necessary elements of § 249(a)(1), this Court should affirm the ruling of the Court of Appeal
vacating Officer Campbell’s conviction.
4. Officer Campbell’s Actions Should be Viewed From the Perspective of a
Reasonable Officer Under the Circumstances
The actions taken by Officer Campbell during the traffic stop were reasonable when
taken from the perspective of a reasonable officer under the circumstances. When force is used
by an on-duty officer, the need to make split-second decisions affecting both public and officer
safety means that courts should evaluate those decisions under a test of objective reasonability,
even where the officer may have underlying subjective motivation. (R. at 17.) Applying that test,
Officer Campbell’s actions were objectively reasonable.
Although the Hate Crimes Prevention Act has not previously been applied to an officer,
the Civil Rights Act has been extensively litigated and can provide guidance in the application of
the Hate Crimes Prevention Act to the actions of an on-duty police officer. When a claim for
excessive force is brought against the actions of a police officer, the inquiry is whether the
officer’s actions were objectively reasonable “in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.” See Scott v. United States, 436
U.S. 128, 137–39 (1978). An officer's evil intentions do not factor into the determination of
41 whether the force used was reasonable. Id. at 198 (citing United States v. Robinson, 414 U.S. 218
(1973)).
In applying the Hate Crimes Prevention Act to the actions of an on-duty officer, the Court
should seek to protect the ability of officers to engage in difficult balancing of risk and safety.
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.” Graham v. Connor, 490 U.S. 386, 397 (1989.
Regardless of any question of Officer Campbell’s motives in the initial stop of Jennings,
the stop was initiated when Jennings failed to signal while changing lanes. (R. at 3.) Officers
need only “reasonable suspicion”—that is, “a particularized and objective basis for suspecting
the particular person stopped” of breaking the law to initiate a traffic stop. Heien v. N. Carolina,
135 S. Ct. 530, 536 (2014). Officer Campbell thus had a legal basis for stopping Jennings.
During the course of the traffic stop, Officer Campbell requested that Jennings remove
his seatbelt and open the car door. (R. at 4.) At this point, Jennings pulled the door shut and
restarted his car. Id. Jennings had his foot on the accelerator—revving the engine, though it was
not yet in gear. Id. Officer Campbell yelled “stop” and “turn off the engine” before firing the
shot into the car which struck Jennings. Id.
Officer Campbell explained that he felt as though he was being dragged by Jennings. (R.
at 5.) He fired his weapon in an attempt to prevent further injury to himself and to prevent
Jennings from fleeing. Id. Officer Campbell, faced with a defiant criminal suspect who was
resisting arrest, had to make a split-second decision regarding his safety and the safety of the
community. (R. at 4–5.) Although with perfect hindsight it appears as though he made the wrong
choice in discharging his service weapon, Officer Campbell’s conduct should be evaluated based
42 on what the officer, in his training and experience, believed was reasonable in the heat of the
moment. Evaluated under the circumstances, Officer Campbell acted reasonably to prevent
Jennings from fleeing the scene in his vehicle. Objectively reasonable conduct by a police officer
acting in the line of duty should not be sufficient to establish criminal liability under the Hate
Crimes Prevention Act. Accordingly, the decision of the Thirteenth Circuit Court of Appeals
vacating Officer Campbell’s conviction should be affirmed.
Conclusion
For the foregoing reasons, this Court should affirm the decision of the Thirteenth Circuit
Court of Appeals.
43