Wednesday, May 19, 2021
The case of Johnson v. Indiana has been distributed for tomorrow's Supreme Court conference. Here is Mr. Johnson's petition for writ of certiorari. Here is the amici curiae brief I wrote on behalf of 98 law professors asking the Court to grant cert. And here is the amicus curiae brief by the CATO Institute asking the Supreme Court to grant cert. Here is the question presented by the cert petition:
To uphold a Terry frisk as constitutional, the First and Ninth Circuits require the frisking officer to have actually suspected that the detainee may be armed and dangerous. Here, the Indiana Supreme Court joined the Seventh and Tenth Circuits by applying a purely objective standard that regards an officer’s actual suspicion as irrelevant to a Terry frisk analysis. And other courts, including the Eighth Circuit and the Supreme Court of Utah, have adopted a hybrid approach wherein an officer’s actual suspicion is a relevant—but not dispositive—factor to weigh in an ultimately objective analysis.
The question presented is: May a court uphold a Terry frisk where the frisking officer did not actually suspect that the detainee was armed and dangerous?
Here's the illustration I give in the law professor amici curiae brief:
For example, it would be in bad faith for a detective to stop and frisk an anxious-looking man who was peering through a jewelry store window at 2:00pm if the detective (a) thought the man was merely nervous about buying an engagement ring; and (b) simply wanted to harass the man. Even if an objectively reasonable officer could have concluded that the man was contemplating a daylight robbery, the detective’s stop and frisk would be unconstitutional because it was not based on such a conclusion and was instead done in bad faith, i.e., simply to harass.
The State of Indiana has waived is right to file a response to the cert petition. The Supreme Court could grant cert without a response, but it's unlikely. I'm hoping that the result of tomorrow's conference is the Supreme Court directing the State to file a response. We'll see what happens.