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Does Rhode Island State Judge Stephen Fortunato

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.

frankcross (mail):
Isn't it even worse than you say? As I recall the question presented to the court was one of equal protection (minor vs. adult) rather than search and seizure.
7.27.2005 1:22pm
arbitraryaardvark (mail) (www):
I agree with you that Roberts properly folowed binding precedent. And as far as I know DC residents don't have anything like a charter of liberties to point to, other than the federal constitution. But Fortunato, as a state supreme court justice, is free to construe the Rhode Island constitution's search and seizure provisions in the way he has described in the article. Has he done so? I havent beeen hearing of a rash of state constitution-based descisions coming out of Rhode Island, but I don't follow this area as closely as I used to.
7.27.2005 1:33pm
SFMod (mail):
BART and METRO users know the foulness of food and condiments left on trains, smeared over seats and abandoned on floors. All public transit prohibits eating and drinking aboard their coaches, so it was entirely reasonable to arrest someone who violated the law, no matter how insignificant it may seem to others. If police could do the same for other "insignificant" laws like breaking car windows would we still complain? As these trains are publicly owned and operated, they have laws that when disobeyed need to be enforced. Thanks to both the police and the courts for upholding laws passed by legislative bodies. — Stephen
7.27.2005 1:34pm
Eugene Volokh (www):
Frank: Hedgepeth argued both that the government action violated her equal protection rights and that it violated her Fourth Amendment rights, and the D.C. Circuit confronted both questions.

Eugene
7.27.2005 1:38pm
OrinKerr:
To the extent it matters, I believe that Fortunato is a judge on the Superior Court, not the state Supreme Court.
7.27.2005 1:41pm
Eugene Volokh (www):
Thanks to Orin and to reader Charles Lovell for the correction; I've updated the post accordingly (and noted the change in the UPDATE). I do not think this affects my criticism.
7.27.2005 1:48pm
David Berke:
I'm not sure why you're reading this as an attack on the arrest itself, rather than the manner in which the arrest and subsequent related activities took place.

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."
7.27.2005 2:00pm
John Jenkins (mail):
Unreasonable in this context is a term of art referring to whether the officers needed a warrant (the Fourth Amendment protects from unreasonable search and seizure). It has nothing to do with whether the officers were being jerks.
7.27.2005 2:03pm
WHerndon (mail):
After a quick Google search on Justice Fortunato, it's quite clear he's avowed man of the Left who apparently feels no obligation, as a judge, to appear objective and deliberate. He's written for leftwing publications such as In These Times and has harshly criticized the Bush administration in other articles.

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.
7.27.2005 2:22pm
ScurvyOaks (mail):
The last paragraph of Fortunato's article that you quote gives off the scent of jealousy. ("A Harvard law degree . . .") After receiving an undergraduate degree from Providence College, Mr. Fortunato attended George Washington for law school. Wanna bet Harvard dinged him?

(Full disclosure: I went to Harvard Law School, so I'm admittedly biased.)
7.27.2005 2:35pm
Leftist (mail):
It's entertaining to read serious constitutional scholars here and elsewhere explaining why the Constitution allows police to terrorize a young girl who ate a french fry on public transporation property. This must be one of those bad cases that make hard law. The law is a ass, including judicial precedent and a Constitution which don't get government off the backs of the people even to this extent. Many people, confused by what they regard as common sense if not a plain reading of the fourth amendment, would be hard pressed to understand why an arrest, seizure of the person, is reasonable in these circumstances. Lawyers, of course, recognize that the kind of judicial reasoning that would produce an opinion striking down this kind of police conduct would constitute judicial activism and do irreparable harm to our delicate constitutional fabric by unduly infringing on executive powers. By the way, never mind incident to arrest, the police were justified in searching her bag for ketchup, condiment of the crime.
7.27.2005 2:37pm
David Berke:
John,

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?
7.27.2005 2:38pm
Bryan DB:
Personally, I think Atwater is a hideous ruling. Nevertheless, if Judge Roberts is going to give lip service to "inquir[ing] into the reasonableness of the manner in which an arrest is conducted," then it's pretty easy to distinguish Atwater. Minor v. adult; standing on a subway platform v. driving a car and endangering kids; etc. etc. It's not that hard to get rid of Atwater if Roberts really wanted to put substance behind his words.
7.27.2005 2:45pm
AppSocRes (mail):
Two comments on extra-constitutional aspects of the affair: (1) One of the reasons the DC Metro is so pleasant to ride, despite serving a population with a very high incidence of anti-social behavior, is that the Metro and DC police practice zero-tolerance towards any misbehavior on the subway. As George Kelling, et al. would predict this has led to a small amount of difficulties for boisterous teenagers, drunks, and the like; but an enormous amount of public satisfaction with the system, and that not least among populations in the city who are extremely touchy about overbearing police and violations of civil rights. (2) It is my understanding from media reports that the girl was warned by police that she was violating the law and was given an opportunity to either leave the subway with her food or remain and dispose of her fries. She chose to argue the issue. Letting 'teens get away with this kind of sassing soon leads by a slippery slope to something like Boston's Orange Line subway which is notorious for it's filth, rowdy nastiness, and violence.
7.27.2005 3:05pm
Byomtov (mail):
Apparently "unreasonable" doesn't really mean "unreasonable."

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.
7.27.2005 3:16pm
jk (mail):
One pertintent fact that is being ignored in the above discussion is that a DC policy required officers to arrest snacking juveniles. Moreover, as Judge Roberts noted, the question before the Court was "not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution."

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.
7.27.2005 3:25pm
Shelby (mail):
jk:

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.
7.27.2005 3:41pm
Leftist (mail):
jk, no game, set, match on the ground you assert. The argument would then be that the D.C. law requiring arrest is unconstitutional as applied because it authorized arrest in cirdumstances that made the arrest unreasonable. A statute cannot render constitutional an arrest or search which is unconstitutional merely by giving authority to perform it.

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.
7.27.2005 3:46pm
Eugene Volokh (www):
(1) Leftist's argument is a criticism of the Supreme Court's decision in Atwater -- but Fortunato was criticizing Roberts, a lower court judge who's bound by Atwater.

(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.
7.27.2005 3:48pm
Jim O'Sullivn (mail) (www):
Mr. Volokh:
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
7.27.2005 4:08pm
french fry fan (mail):
For another article that leaves out any explanation of why Roberts might have ruled as he did (and, for that matter, why three other Article III judges came to the same conclusion Roberts did), here's a link to an article by a law professor, who ought to have included at least a hint of Robert's thinking.
7.27.2005 4:10pm
jk (mail):
Shelby &Lefty,

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?
7.27.2005 4:18pm
WHerndon (mail):
How in the world this case ever got to the Appeals Court is astonishing, to me. If this had happened to my daughter, I might have been ticked off, but to spend so much time and energy on ... exactly what. I hardly view this incident as a constitutional test case for what constitutes unreasonable search and seizure. It never should have went this far. The story drew lots of attention and there was a commensurate political response. Common sense prevailed and that should have been the end of it.

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.
7.27.2005 4:22pm
DC Metro Rider:

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.
7.27.2005 4:27pm
TL:
Leftist: You are asserting extreme Substantive Due Process arguments in favor of french fry freedom. I believe you are substituting a 14th Amend argument against the DC ordinance (or I suppose 5th Amend in the case of DC); I think it is confusing to blend in the 4th Amend b/c you think the law is fundamentally unfair, thus the search incident to arrest must also be . . .
7.27.2005 4:34pm
Crank (mail) (www):
Wow. If I was a judge and a litigant tried to argue this case without citing Atwater, I'd sanction them. Fortunato is being no less misleading, maybe moreso because his audience isn't likely to do their own research or hear from another side.
7.27.2005 5:16pm
Hugh59 (mail):
No mere french fry. That was a felonious freedom fry!
7.27.2005 5:17pm
wooga:
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?
Well it's quite simple. French fries are ineffective as vehicle passenger restraints. ;)
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.
7.27.2005 5:21pm
Leftist (mail):
Tk and TL,

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.
7.27.2005 6:06pm
M. Simon (mail) (www):
Justice Fortunato swore to uphold the Constitution not Supreme Court precident.

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.
7.27.2005 6:08pm
M. Simon (mail) (www):
Unreasonable is a term of art?

Does that mean that ordinary laymen can no longer understand the words as written?

Some one call in Franz Kafka.
7.27.2005 6:18pm
Kid Handsome (mail) (www):
While I agree with Judge Roberts in this instance (though I do wish judges would be more free in expressing their beliefs that the executive branch should exercise restraint when reasonable). However, my main point hopefully gets back to what I believe is your secondary question (the primary question being whether Judge Roberts was legally correct).

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.
7.27.2005 6:21pm
M. Simon (mail) (www):
If you grant police all the power necessary you can have a very neat and orderly society. Would it still be American?

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.
7.27.2005 6:25pm
jk (mail):
Lefty,

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.
7.27.2005 6:28pm
T. More (www):
This issue is disciussed over at Balkinization as well, where I pointed out that, contrary to suggestions there that Justice Souter's opinion invited future judges to distinguish in cases like this, his very opinion, in a footnote, considered the facts of the french fry case, which has been posed by counsel as part of a parade of horribles, and he pretty clearly indicated that no Constitutional issues would be raised by it. It does not always pay to read footnotes, but it sometimes costs not to.
7.27.2005 6:31pm
SKlein:
Lefty--your point is really beside the point. Fortunato's argument is intellectually dishonest in not acknowledging that Roberts was applying precedent of a superior court. Had he done so, he could then fairly (if not persuasively) argue either that the precedent was distinguishable or that Roberts should not follow offensive precedent or that Roberts should have agonized more about the inujustice of the precedent. Moreover, Roberts decision and the intellectual dishonesty of the criticism is hardly beyond the grasp of non-lawyers. You don't need to be a lawyer to understand that the legal system requires that decisions made by persons of superior authority must be followed by their inferiors, even if wrong. For that matter, the logic of Atwater, though debatable and, I think, wrong, is hardly so absurd as to demand ridicule from any fair-minded person.
7.27.2005 6:51pm
M. Simon (mail) (www):
SKlein,

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.
7.27.2005 7:10pm
hf:
A problem with Atwater, and other SC cases related to pre-trial detention, is that they permit the effective penalty for being accused of an offense to be more severe than the penalty for being actually guilty. Many people would view being processed into jail and then someday being released as "not guilty" as far more punishing than being ticketed and paying a small cash fine.

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.
7.27.2005 8:46pm
Cory (mail):
Leftist: Can you give any evidence whatsoever that the 4th amendment was understood to vacate all unreasonable laws? Your argument requires that, but as far as I know no has understood that to be the case.

"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.
7.27.2005 8:51pm
hf:

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.
7.27.2005 9:23pm
SKlein:
m simon--your retort is sophomoric in its true sense. The constitution includes not just (or principally) the bill of rights, but also intitutional structure, includng a court system that allows for higher and lower courts. There is no role for courts, let alone a court hierarchy, if "defending the Constitution" means that each person must act according to her sincerely held belief as to what the constitution means, without deference to any decision making system established in that very constitution.
7.27.2005 10:42pm
Leftist (mail):
Responding to comments,

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.
7.28.2005 1:50am
jk (mail):
Leftist,

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."
7.28.2005 10:13am
SKlein:
Leftist, indeed your critique of Atwater is thoughtful and persuasive and my labelling it as "off-point" wasn't intended to shut you up, only to point out that it didn't make Fortunato's attack intellectually honest. Also, very few of the posters were defending Atwater, as such. A lawyer's professional training tells him that it simply doesn't matter to Roberts' opinion whether Atwater was rightly decided. Plainly, there are downsides to a worldview in which it doesn't matter whether rules are right or wrong, but, in grossly oversimplified form, that is how we approach the world.
7.28.2005 2:31pm
Allen Asch (mail):
The Fourth Amendment analysis in Judge Roberts' decision is not required by Atwater v. City of Lago Vista as some have claimed. The Supreme Court case upheld an officer's discretion in the field to make arrests for minor crimes while Judge Roberts' decision allows a zero tolerance policy taking away an officer's discretion.

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.
7.29.2005 1:21am
jk (mail):
Asch, why does this distinction matter?
7.29.2005 10:38am
Allen Asch (mail):
jk,

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.
7.29.2005 6:43pm