Last month, the U.S. Supreme Court held that police may not enter a private home without a search warrant to perform a “community caretaking” function. The Justices were unanimous in reaching this conclusion, though several concurred to clarify their points of view. One could understand the Justices as manifesting an unusual respect for privacy. I would instead read the decision as suggesting a somewhat different and more radical shift. The message of “Defund the Police” appears to have gotten through to our Supreme Court, perhaps without their fully realizing it.
In Caniglia v. Strom, the story began with Edward Caniglia placing a handgun on his dining room table and asking his wife to shoot him. His wife left the house and spent the night at a hotel, but she became worried the next morning when she was unable to reach her husband by phone. She called the police, and they accompanied her back to her house, where she found her husband on the porch, apparently unharmed. The police encouraged him to go for a psychiatric evaluation, which he agreed to do if they promised not to seize his guns from inside the house. Once Caniglia had left, however, the police entered the home and seized his weapons. Caniglia later sued the police for violating his Fourth Amendment rights when they entered the house and seized his property without a warrant and without consent.
The police and many court-watchers had assumed prior to this case that when police want to check on someone’s wellbeing, they are performing a community caretaking function and could legally enter the home without a warrant. In one Supreme Court case, Cady v. Dombrowski, police were able to look around inside a car that had been in an accident, under a community caretaking rationale.
Unlike other exceptions to the warrant requirement, however, it is unclear what the warrant application would have had to say in Caniglia’s case if police had first sought one. His wife was not reporting a crime, owning firearms is not necessarily criminal, and having been suicidally depressed violates no criminal law such that police might need to look for evidence of it. Once Caniglia had left for a psychiatric evaluation, it is hard to know what sort of probable cause the police had to authorize them to obtain a warrant for entering the home and seizing the man’s guns. If a person is a danger to himself, then he might be subject to civil commitment, under Addington v. Texas, if the government can prove his mental illness and his danger to himself by clear and convincing evidence. But even attempted suicide is no longer a crime, as it once was, so the Fourth Amendment might limit what police could do at the investigative phase.
The police officers’ community caretaking function, at least as a broad category, falls outside the scope of typical police officer activity of the sort that rests on probable cause, with or without a warrant. It is the kind of conduct unrelated to conventional or core law enforcement responsibilities. And that is precisely what many people mean to remove from police jurisdiction and to invest in nonviolent alternatives when they press for “defunding the police.” They want the police to stop performing functions unrelated to criminal justice and to law and order. They argue that we should not be paying police officers to force themselves into people’s lives to address non-criminal problems.
Several Justices wrote separately to qualify the majority opinion and say that police may well have the authority, consistent with the Fourth Amendment, to enter homes without a warrant if a true health emergency presents itself. Justice Alito, for example, maintained that permissible “community caretaking” by the police could include “conducting a search or seizure for the purpose of preventing a person from committing suicide.” And if neighbors of a resident worry that the resident is “in urgent need of medical attention and cannot summon help,” Justice Alito strongly implied that he would view a warrantless entry to check on the resident’s condition as legitimate and lawful under the Fourth Amendment. Justice Kavanaugh, going further, said that “police officers may enter a home without a warrant in circumstances where they are reasonably trying to prevent a potential suicide or help an elderly person who has been out of contact and may have fallen and suffered a serious injury.”
Notably, however, the various concurring opinions limiting the impact of the unanimous majority amounted to only four votes: the Chief Justice, Justice Breyer, Justice Alito, and Justice Kavanaugh. The reservation of some “community caretaking” for police—suicidality and checking on a neighbor specifically—thus remains uncertain. In keeping with this uncertainty, just yesterday, the Supreme Court granted, vacated, and remanded (GVRed) in Sanders v. United States, in light of Caniglia. GVRs generally indicate that a recent decision plainly dictates the result in the remanded case. Accordingly, yesterday’s GVR suggests that Caniglia and its potential to defund the police is not a fact-bound and narrow one-off. To be sure, Justice Kavanaugh wrote separately, concurring in the GVR, to suggest ways in which the lower court might resolve the remanded case in favor of the government’s authority to enter without a warrant. But this resistance may signal its own opposite as powerfully as the Court’s failure to either hear the new case on the merits or simply deny certiorari without comment.
Returning to Caniglia itself, what surprised me as a reader was the assumption by the various concurrences that if police, an armed and quasi-military body, cannot enter a home to help a resident, then no one will be able to assist the resident. It does not even seem to occur to any of the four who wrote or joined a separate concurrence that perhaps a social worker, someone experienced in investigating reports of child neglect and perhaps trained in mental health or geriatric needs, could offer superior intervention to what’s on offer from a police officer trained primarily to investigate crime. Defunding the police here could mean a reallocation of responsibilities so that more qualified people enter homes to help someone who is not a criminal suspect or a suspected victim of crime. The unanimous majority, coupled with only a minority wanting to reserve these jobs for law enforcement, could require such reallocation.
If we consider some of the cases in which police have used deadly force on unarmed civilians, we see the cost of sending cops to where their expertise does not extend. A study called “Overlooked in the Undercounted: the Role of Mental Illness in Fatal Law Enforcement Encounters” explains that although untreated mentally ill adults make up only 2% of the population, they make up a quarter of all fatal police encounters and are also sixteen times more likely to be killed during a police encounter than other civilians approached or stopped by police. It would seem imperative that someone trained in helping the mentally ill be the one involved in providing such help.
Reflecting such thinking, the city of Austin, Texas, created a mental health option for 9-1-1 callers. Such a move might save lives, in light of what too often happens when armed police show up at a home after a 9-1-1 call by the family member of a mentally ill individual. People trained in interacting with those who have mental disorders are unlikely to use (or even to have the option of using) deadly force against a person suffering a psychotic episode that precludes his putting his hands in the air or otherwise demonstrating submission to police.
Even if some of the same people (i.e., police officers) are involved in responding to mental health-related emergency calls, those people—in keeping with sociologist Erving Goffman’s dramaturgical theory of behavior—will occupy a different role and thus behave differently in the presence of challenging behavior. Goffman viewed people as more like actors on a stage than stable characters who always behave the same way in every situation. Austin, Texas, may provide a natural experiment for this theory because many of the people who will be responding to 9-1-1 mental health calls are the same police officers who might have once responded to such calls in the role of law-and-order official. The difference is that with the new option, the officers will arrive on the scene wearing their social worker hats rather than reaching for their guns.
With the U.S. Supreme Court’s decision denying police the authority to perform a community caretaking function by entering a home without a warrant to seize a potentially suicidal person’s weapons, we might see cities besides Austin reassigning non-criminal police work to people wearing the mental health worker hat. In effectively defunding the police, the Court will eventually have to clarify what non-police actors must do to comply with the Fourth Amendment as they carry out community caretaking functions. A warrant, based upon probable cause to believe one will find evidence of crime or criminals in a private home, seems ill-suited to such functions.
Let us hope that either the Supreme Court or cities like Austin continue to contract the category of situations in which police have the authority to enter a home, guns drawn. It would be a pleasant surprise if the Roberts Court led the way in defunding the police.