not know the Supreme Court's Fourth Amendment jurisprudence, or does he just not care? Or does he just think that lower court judges should ignore Supreme Court precedents?
Justice Fortunato wrote an article criticizing Judge Roberts' decision upholding the D.C. government's policy of arresting children for eating on the subway. Here's the criticism:
As statutes and constitutions are often marked by a lack of specificity, and thus allow for divergent interpretations by different judges, it is instructive to examine how Judge Roberts analyzed the Fourth Amendment declaration that people have a right "to be secure in their persons" and to be free from "unreasonable searches and seizures" when he was confronted with the claim of 12-year-old Ansche Hedgepeth that she had been unlawfully arrested and detained by undercover police officers in October of 2000.Her crime? Eating food, specifically one French fry, at a Washington, D.C., subway stop, in contravention of a local ordinance.
For her gustatorial effrontery, police officers took her into custody, handcuffed her behind her back, searched her body and her backpack, removed her shoelaces, and then transported her in a windowless van to a facility for processing and fingerprinting. Throughout this ordeal, the child was sobbing. She was released to her distraught mother three hours later.
When Ansche's mother brought suit, the question presented to Judge Roberts and his colleagues on the U.S. Court of Appeals for the District of Columbia Circuit — which legal commentators maintain is the second most powerful court in the country — was whether Ansche's right to be free from unreasonable searches and seizures had been violated.
Judge Roberts noted the right and responsibility of courts to "inquire into the reasonableness of the manner in which an arrest is conducted," before he went on to rule that the police officers had done nothing unconstitutional in dragooning little Ansche.
We may fairly ask what Judge Roberts thought was reasonable about the scope and nature of the search and temporary incarceration of this child? Did he think that the girl was concealing contraband ketchup? Or an unpatriotic bottle of French wine to quaff with her fried spud? Perhaps there was something about her and her overt display of a French fry that led the officers to conclude that she had a hand grenade in her knapsack.
This outrageous decision is instructive. First, it teaches that a Harvard law degree and a professional lifetime representing corporate clients and the U.S. government are no guarantee that one comprehends the Bill of Rights. . . .
The view that it's generally unreasonable to arrest people for very minor criminal offenses — eating food in the subway, driving without a seat belt, and the like — is perfectly plausible. But it was squarely rejected by the Supreme Court in Atwater v. City of Lago Vista three years before Judge Roberts' decision (as Judge Roberts' opinion expressly discussed). Likewise, one could argue that it was unreasonable for the police to search the backpack, or Ansche Hedgepeth's person — but the Supreme Court has consistently held that the police have the right to search people and their nearby belongings incident to an arrest.
Hedgepeth did argue that Atwater was distinguishable, but I think Judge Roberts was quite right in explaining why her arguments were unpersuasive; the Court's ruling in Atwater did quite clearly control this case. And in any event, Justice Fortunato's op-ed never mentioned Atwater, or explained why Justice Fortunato thought the case didn't control. It left readers with the false impression that Judge Roberts was deciding the matter based on his own views of the Fourth Amendment, with no acknowledgment that he might have felt bound by the Supreme Court's decision.
It seems to me there's nothing outrageous about a lower court judge following the Supreme Court's precedents in this context. But there is something quite troubling about a state judge's publicly criticizing a person, while not revealing to his readers that person's s strongest — and quite likely dispositive — defense.
Thanks to How Appealing for the pointer to Justice Fortunato's op-ed.
UPDATE: I originally mischaracterized Justice Fortunato as a justice of the state Supreme Court; he's a judge on the state Superior Court -- i.e., the trial-level court -- though the honorific that such judges are given in Rhode Island is "Justice." Many thanks to Charles Lovell for the correction. The substance of my criticism remains entirely unaffected.
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Eugene
Although he appears to scorn the thought of arresting someone for eating a french fry, the crux of his argument appears (to me) to instead be that the way in which it took place was unreasonable, as this quote shows:
"Judge Roberts noted the right and responsibility of courts to"inquire into the reasonableness of the manner in which an arrest is conducted," before he went on to rule that the police officers had done nothing unconstitutional in dragooning little Ansche."
The phrases "manner in which an arrest is conducted" and "dragooning" do not necessarily suggest a disagreement with the decision to arrest or search itself.
If the manner in which the arrest and subsequent search are conducted is a matter of constitutional import, and I am insufficiently familiar with 4th Amendment jurisprudence to know, a fair point could be made that this was "unreasonable."
All fair game -- for opinion writers and polemicists. But for a state or federal judge? Uh uh. (Ditto for Janice Brown's New Deal comments).
In any case, Fortunato, given his obvious bias and rash judgment, does not appear to be someone who ought to be taken seriously.
(Full disclosure: I went to Harvard Law School, so I'm admittedly biased.)
That may well be true, but I maintain that his criticism appears to be more of "whether the officers were being jerks" than mere fact of the arrest.
However, I'm not sure that you are correct, as this would suggest that anything short of actual violence (i.e. full body cavity search) would be acceptable in any arrest. I'm not even sure that actual violence would be a matter of constitutional import as you have described it.
Furthermore, the Roberts opinion stated that courts are obliged to look into the manner in which the arrest is conducted. Are you saying that he is wrong, as well?
Let's remember that the next time we hear some conservative complain about liberals ignoring the plain meaning of the Constitution. Should be in about 30 seconds.
In other words, because there is no dispute that the child violated the city ordinance, DC's "zero tolerance policy" required the officers, unfortunately, to arrest Hedgepeth for eating her french fry. Game, set, &match.
It's being ignored because it isn't pertinent. If the arrest violated the Fourth Amendment, DC's policy would be irrelevant (and void). City ordinances don't trump the US Constitution.
More problematic is that judicial precedent has not given the fourth amendment's "reasonbleness" requirement any real substance. As Byomtov says, unreasonable does not mean unreasonable in the U.S. Supreme Court's dictionary. Which is why I said in my earlier post that many people are confused by the plain text of the fourth amendment, which says searches and seizures must be reasonable.
Once he is on the Supreme Court, Mr. Justice Roberts will not be bound by precedent, of course, and he will be free to disregard this nonsensical reading of the reasonableness requirement. I have that on the authority of the Attorney General.
(2) It's possible to distinguish any case from any other case, the question is whether the distinction is justified, given the logic of the Supreme Court decision you're obligated to follow. I think the Roberts opinion persuasively explained why Atwater was indeed on point there.
(3) In any event, it seems to me that Justice Fortunato did his readers a serious disservice by criticizing Judge Roberts' decision without acknowledging that there was a Supreme Court case that seemed very much on point. If Fortunato acknowledged Atwater but explained why it was different, and why Roberts should have distinguished it, that would have been a different story.
It looks like Roberts is in for a lot of sliming of this nature. Yes, we must fight back.
He writes:"We may fairly ask what Judge Roberts thought was reasonable about the scope and nature of the search and temporary incarceration of this child?" And we may fairly ask what qualifies Justice Fortunato for a seat an an American bench, especially since his public criticism of the decision is supported by no authority more persuasive than his own wisecrcking rhetoric.
Oh, and Justice Fortunato, a sentence that begins [w]e may fairly ask..." should not end with a question mark, because it is not a question. The sentence merely references a proposed a question. I hope your opinions are more carefully edited that your newspaper articles.
Jim O'Sullivan
The DC law/policy states that children eating on the subway must be arrested. The child here ate a french fry. An officer witnessed her eating. He therefore had probable cause to arrest her and then search her. In light of Atwater--which held that the fourth amendment was not violated when, pursuant to state law (I think), an officer arrested a person who failed to wear seatbelt--how did the arrest here violate the 4th Amendment?
I live in DC and well remember when the case hit the news. From my recollection, the subway where she was arrested is near a school, and students frequently violate the subway's rules against eating and leaving trash in the subway. The police have held talks at the school to encourage students to behave properly, but evidently to little avail.
Could the situation have been handled better? Yes. The girl should have been warned to leave the station immediately. If she complied, I think the officer should have let the incident drop. Common sense should have prevailed.
But this issue raises a host of questions. What if the teen didnt comply? Would that have justified arrest? If not, why not?
DC has a zero-tolerance policy for eating on the subway. That's why its the cleanest and most pleasant subway system I have ever ridden on. Nobody, I mean nobody, eats on the trains, or plays loud music, or anything like that. The city has set clear rules, the city has enforced them vigorously, and the results are plain for all to see.
For argument's sake, let's assume, as Leftist seems to, that the arrest represented a violation of constitutional rights. Does this mean the court then has to tell us how much eating must occur before arrest is permissible?
If you can't arrest someone for eating one french fry, how about two? Or a handful? Or a bagful? What about a small bag of peanuts? Should the court be expected to set firm guidelines on how much eating is allowed?
Doesn't the subway have the right to set its own rules and drawn its own line? Is it unconstitutional to set such rules in the first place?
Talk about micromanagement.
The Constitutionality of the ordinance outlawing eating on the Metro was not in question. It is a crime, albeit a minor one, to eat on the Metro. The Constitutionality of the zero tolerance policy (mandatory arrest of juvenile violators) was challenged, and there Atwater does seem to be controlling. DC can fairly say "no eating on the Metro." The police officer, having personally witnessed this crime, had probable cause to arrest the violator regardless of her age. The policy of arresting minors instead of ticketing them may have been bad, but as Roberts said, that wasn't the issue.
I also note that (as Roberts did), DC residents have properly chastised those responsible. The offending policy has been changed through legislative/executive processes without judicial fiat.
People critical of this case should either (a) criticize the legislature for enacting the law, or (b) criticize the police for enforcing it in this instance. If you argue Roberts should have ignored controlling precedent because the "jerk police" enforced a "mean law," you would have to afford Judge Roy Moore the same luxury.
In response to the question and the comment, the thrust of my two messages has been the disparity between a straightforward, common sense reading of the fourth amendment and the reading the french fry case (and others) give it, with the highly entertaining consequence of serious constitutional scholars explaining why terrozing a young french-fry-eating girl is constitutional. Lawyers might understand why Roberts ruled the way he did; a large part of the public will not no matter how hard the Volokh Conspiracy and other conspirators try to get it across to them. The public will have to be told not to worry, the law works in mysterious ways.
I haven't even read Atwater, although I'm aware of it and know the precedents it undoubtedly relied on. I haven't tried to distinguish the french fry case, and for all I know it is not distinguishable on legally persuasive grounds. I haven't singled out Roberts for criticism. I have said I think that the girl's arrest should be prohibited by the fourth amendment because it was unreasonable, but that takes on not only Roberts'opinion but Supreme Court precedent as well, which he was bound to apply. Whether he could or should have distinguished Atwater, again, is not something I addressed.
The fourth amendment's reasonableness requirement has nothing to do with due process reasonableness. The reasons the Supreme Court has eschewed giving it any substance may partly coincide, for all I know, with the reasons the Lochner due process approach has fallen out of favor, although, off the top, my memory is that the reasonableness requirement was all but shorn of any substance before Lochner was discarded. Those who believe the text of the Constitution is important might want to read the text of the fourth amendment.
By the way, if I were to assert a substantive due process argument--and I hasten to add I would not make such an argument in the french fry case--I would not put it in terms of french-fry freedom, as you do, but in terms of freedom from governmental interference with the normal activities of life. See the majority opinion in Lawrence v. Texas, authored by a conservative Reagan appointee, which points out that the liberty at stake there was not that of engaging in homosexual sodomy, as wrongly asserted in Bowers v. Hardwick, but of engaging in private consensual sexual activity free from governmental intrusion. It continues to surprise me that some neo-conservatives seek to justify incursions on liberty by trivializing the liberty at stake rather than regarding it as liberty from governmental interference in general. As Mr. Justice Douglas, author of Griswold v. Connecticut, often said--this just to get under your skin--the purpose of the Bill of Rights was to get the government off the backs of the people. I still believe that.
Now I know you law guys have rules (which is why I like physics - you can't violate the law, no matter how hard you try) but I think it is refreshing to have a Judge who takes his oath seriously. It may suggest that the Supreme Court revisit the issue the next time it gets a relevant case.
Perhaps the law itself is unconstitutional as applied to a child. In fact I wonder if feeding a baby with a bottle (breast feeding?) is illegal?
Personally I blame the drug war for eviserating the IVth (among others). So maybe under the drug war standard the search and siezure in this case was not unreasonable.
Alcohol prohibition of course caused a lot of similar problems Constitutionally. How soon we forget.
The Nazi Comparison.
Does that mean that ordinary laymen can no longer understand the words as written?
Some one call in Franz Kafka.
I hold the apparently radical belief (as does Justice Thomas to a more limited extent), that precedents are extremely overvalued in our system. I would very much like for lower court judges at all levels to occasionally ignore or rule contrary to (as opposed to distinguishing based on facts) precedents that are clearly outdated, harmful or offensive to the constitution. We all know, regardless of our political leanings, how far Supreme Court precedents have taken us from the intent/letter of the constitution. It doesn't take a genius to understand the basic tenets and language of the 2nd, 4th, 5th, 9th and 10th amendments - although it apparently takes a genius to completely ignore or misinterpret them as extensively as the Supreme Court.
To sum up. I would love for more lower court judges to defy and even ridicule a fair number Supreme Court decisions. Hopefully, it would cause the Supremes to reexamine many such precedents and make it possible to reverse or clarify some of the more obtuse determinations. Certainly it wouldn't harm us to have a system that was more efficient and less cumbersome than our current system in which every case is distinguished by whichever facts a judge randomly decides deserve inclusion or exclusion from existing precedent. If nothing else, researching cases would be simpler and costs of litigation would (maybe) plummet.
A lot of people these days think so. I'm not so sure.
We no longer have many peace officers in this country. We do have a lot of enforcers. The mafias could not do much better.
It's really very simple. In order to arrest a person under the 4th Amendment, an officer needs probable cause. An officer has probable cause when, "at the moment the facts and circumstances within [his] knowledge and of which [he] had reasonable trustworthy information were sufficient to warrant a prudent man in believing that the [french fry eater] had committed or was committing an offense." Beck v. Ohio, 379 US 89, 91 (1964). Here, there is no dispute that the child was breaking a law by eating french fries and the law required such violators to be arrested. There is also no dispute that most sane people think it is a stupid law that leads to ridiculous results like what happened here.
Simply put, if you want to challenge the constitutionality of this law, you need to look to other provisions of the constitution, nothwithstanding your common-sense reading of the 4th Amendment.
I'm with you.
Oaths to defend the Constitution mean nothing. We should eliminate them. Perhaps an oath to defend precedents could be substituted, at least for judges.
And the argument that the detention isn't punishment doesn't wash. Why are those found guilty given credit for time already served?
It's part of a larger problem with some people in the legal profession. They don't seem to realize that the legal process is often far more costly, damaging, and punishing to everyone involved than the final verdict. In civil law, people aren't afraid of losing lawsuits, they're afraid of being sued at all. In the case of Atwater and the french fry girl, whether they were guilty or not would make almost no difference in the total amount of inconvenience and cost incurred.
"The reasons the Supreme Court has eschewed giving it any substance may partly coincide..."
The court has not eschewed giving it any substance. It still protects you from being searched if e.g. you have not comitted a crime. This is, in my view, the plain meaning of the amendment. It was not intended to overturn laws, but to prevent searches when the police had no good reason to think that a law had been broken.
Cory, jk:
The 4th doesn't vacate unreasonable laws, but it does prohibit unreasonable seizures, and there was certainly a seizure in the given case.
The SC has said many times that probable cause isn't always necessary for a search to be reasonable (Terry, airports, borders, etc.). To turn it around, probable cause doesn't inevitably make it reasonable. Probable cause (or even certain guilt) for a parking violation would not justify arresting a cardiac patient off an operating table.
Nowhere have I said the law prohibiting eating on public transporation is unconstitutional; I think it's a very good law and I like zero tolerance, which may be achieved consistently with my preferred reading of the fourth amendment merely by citation of the offender and imposition of hefty fines. Nowhere have I said that all unreasonable laws are invalid under the fourth amendment, only unreasonable seizures of the person (and searches of papers and effects and so on). I would give the reasonableness requirement a broader reading--one insisting that the seizure of the person must be reasonable in all the circumstances, one that says unreasonable means unreasonable -- than those who say it only means a warrant is required or that probable cause is required, readings which render the reasonableness requirement largely surplus. The framers used "probable cause" in the warrant clause and if they meant unreaonable to be equivalent only to lack of probable cause they would have used the probable cause terminology alone instead of the reasonableness language. I haven't done any historical research, but, I think the framers would be horrified that, given the pervasiveness of the modern regulatory state, any person, much less a child, may be seized for eating french fries or any of a zillion other infractions.
Sorry I did not limit my remarks to the Rhode Island justice's critique. I am new here and did not realize you are so strict in what is on topic. What prompted my comments was the spectacle of esteemed lawyers and academics feeling compelled to come to the defense of an opinion which upholds the constitutionality of police conduct terrorizing a young french-fry eating girL in the face of the fourth amendment's plain langugage prohibiting unreasonable seizures and in forums that are known for advocating things like sticking to the text of the Constitution. I found it amusing. Next time, if there is one, I'll try to stay on topic.
I for one appreciated your thoughtful posts. Thanks. Perhaps next time that Atwater comes up for discussion, the Conspiracy and its readers can flesh these issues out.... You can play the role of O'Connor and the others Souter.
I also had no qualms about your comments moving "off topic."
And, while Prof. Volokh may be correct that it's "possible to distinguish any case from any other case," this distinction was actually explicitly mentioned in the opinion when the Supreme Court wrote that the officer in Atwater v. City of Lago Vista was, "authorized (not required, but authorized) to make a custodial arrest without balancing costs and benefits or determining whether or not Atwater's arrest was in some sense necessary.." (emphasis added)
Perhaps, the US Supreme Court would extend its ruling in Atwater v. City of Lago Vista that upheld the constitutionality of an officer's discretion in the field to allow a zero tolerance policy taking away an officer's discretion. But, to claim the ruling in Atwater v. City of Lago Vista had to be applied to Judge Roberts' decision is contradicted by the text of the opinion.
The distinction matters because it seems to contradict the part of Prof. Volokh's argument in which he claims:
"The view that it's generally unreasonable to arrest people for very minor criminal offenses — eating food in the subway, driving without a seat belt, and the like — is perfectly plausible. But it was squarely rejected by the Supreme Court in Atwater v. City of Lago Vista three years before Judge Roberts' decision."
My distinction matters because it seems to contradict Prof. Volokh's claim that the US Supreme Court had previously "squarely rejected" a Fourth Amendment claim like the one Judge Roberts rejected.
Further, my distinction matters because it similarly seems to contradict the part of Prof. Volokh's argument in which he claims "the Court's ruling in Atwater did quite clearly control this case."
Finally, my distinction matters because it may remove the basis for the part of Prof. Volokh's argument where he concludes that "there's nothing outrageous about a lower court judge following the Supreme Court's precedents in this context."
Again, when I read Atwater v. City of Lago Vista, I see a Court explicitly upholding officer discretion "lest every discretionary judgment in the field be converted into an occasion for constitutional review." I don't believe it's accurate to claim a case upholding an officer's discretion in the field to take people into custody for minor crimes "clearly controls" a case challenging a zero tolerance policy that takes away an officer's discretion. In this post and the last, I've provided quoted text from Atwater v. City of Lago Vista that supports my argument.