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When Asserting Your Constitutional Rights is Cause for Suspicion:
I just came across a Fourth Amendment case, Cady v. Sheahan, 467 F.3d 1057 (7th Cir. 2006), that isn't new but has annoyed me enough to blog about it anyway. It's a case that I'm sure the Seventh Circuit panel found silly — you can listen to the argument here — but I actually think may have a lot of merit. At the very least it's an example of how courts often don't take the Fourth Amendment rules governing Terry stops as seriously as they should.

  Here are the facts. Cady had filed a civil suit against a police officer, and he showed up at a Cook County courthouse in Bridgeview, Illinois sometime between 6:15 and 6:30 a.m on August 22, 2001, to serve process on the officer during an early morning shift-change. He was carrying a briefcase, and his clothes were dirty and wrinkled. He stood outside the courthouse by the sidewalk and waited for the shift change so he could serve process.

  An officer approached Cady to see what he was doing, but Cady apparently declined to answer the officer's question. The officer alerted another officer, Lucio, and Lucio decided to investigate. Lucio approached Cady and asked what he was doing; Cady responded that he was "a federal process server." Officer Lucio asked for Cady's ID. Instead of giving the officer an ID, Cady engaged in a legal discussion with the officer of whether was any law requiring him to have identification with him. In fact, there wasn't. The facts aren't totally clear, but it seems that Cady had chosen not carry an ID that morning because he had researched the law and knew he was not required to do so.

  After a few minutes, Cady asked to speak with Lucio's supervisor. Sargeant Barbat arrived on the scene and asked Cady why he was there and asked to see his ID. Cady stated that he would not reveal his identity "unless he was assured that it would not be used against him in a future criminal prosecution." (This is the Fifth Amendment standard, in case you're wondering.) He also asked Barbat whether "Barbat was making a Terry stop, and if so, what crime he suspected Cady was committing, was about to commit, or had committed," tracking the language of the Illinois Terry stop statute. Cady bolstered his many legal questions and discussion points with supporting legal documents, including a law dictionary and a copy of the Federal Rules of Civil Procedure that he retrieved from a briefcase he was carrying.

  Now we get to the interesting part from a Fourth Amendment standpoint. One of the officers present took the briefcase from Cady and placed it on the hood of a squad car. Then two officers searched the contents of the briefcase. They found a Sullivan's Law Directory, a Bible, an address book, and a pen. No weapons were found. The officers started looking through the books for a name so they could figure out who Cady was. Inside the Bible, they found a name. The officers then closed the briefcase and placed it in their squad car.

  Cady was also personally frisked at this time, but no weapons were discovered. The officers then ran the name that appeared in Cady's Bible through their squad car computer:
Finding that a name was not enough to identify Cady, the officers pressed Cady for more information. Officer Margalus stated that if Cady did not comply, he could be arrested for obstructing a police officer. Officer Jacoby took out his handcuffs and told Cady to put his hands behind his back[.]
  Faced with the threat of arrest for refusing to disclose more information, Cady told the officers his name and date of birth. The officers ran that through the computer and found there was no warrant out for his arrest. They then gave him back his briefcase and sent him on his way. The entire incident lasted "between twenty and thirty minutes."
Tomm:
From what I understand, police are given wide latitude in using trickery and deception to get suspects to do things they wouldn't otherwise do. Does this also allow police to make false threats of arrest in order to coerce responses?

If police are allowed to threaten arrest when they have no basis for making an arrest, I stand horrified. If they aren't, why wasn't it addressed in the decision?
9.11.2008 1:59am
GV:
But, as you know, 9/11 changed everything.

It seems, to me anyway, that there's little the police can't do now a days. Nearly anything the police do is legal, especially for cops who are willing to fib (which, sadly, many are). Somewhat relatedly, you might be interested in this case, which the panel has not published likely in an attempt to avoid en banc review.
9.11.2008 2:01am
Jon Roland (mail) (www):
"You may beat the rap but you won't beat the ride." -- Old cop saying, validated by Atwater v. Lago Vista.

For a discussion of the constitutional issues see Are Cops Constitutional?, Roger Roots, Seton Hall Constitutional L.J. 2001, 685.
9.11.2008 2:09am
Student:
Whole lot easier to tell somebody's a harmless moron and not some nut job hiding in the bushes with a gun after you've investigated. When you first approach some crazy looking guy hiding in the bushes at dawn I'm going to guess things look a bit more suspicious. Whether this thing was constitutional or not you cannot expect anybody to take your analysis seriously when you're looking at it post hoc knowing the guy was harmless. You have to do it the way it looks like the judges tried to do it: considering the point of view of a reasonable officer charged with the safety of a public building full of plenty of targets for crazy people with a grudge. And with all due respect, a gun is hardly the only thing the guy could have had that would have posed a threat to the officer's safety. They did exactly what a reasonable officer would do. Tried to identify him, and when they did so sent him on his way. Oh, you're not a convicted felon just out of the slammer? You're just that crazy pro se guy who's suing every judge in the building? Very well then sir, you have a nice day.
9.11.2008 2:13am
Tomm:
GV: I like that decision. The court has many brilliant insights, including:

"The taser delivers an electric shock; it hurts."
9.11.2008 2:15am
Jon Roland (mail) (www):
Since there are some libertarians in this forum, you might appreciate this answer to the question, what is a libertarian?

A conservative is someone who's bee mugged, a liberal is someone who's been arrested, and a libertarian is someone who's been arrested for shooting the mugger.
9.11.2008 2:16am
OrinKerr:
Student,

Well of course you have to look at that way: That's what I did. You may argue that it's reasonable for the police to rummage through a person's bag for ID if the person won't identify himself, but what case would you cite for the view that it is constitutional? How do you justify it as a matter of law?
9.11.2008 2:19am
jdd6y:
It amazes me that a group of losers with high school diplomas, at best, little job prospects, and a history of corruption, are given the "benefit of the doubt" by the man. To a person, I have not met a member of LAPD to whom I would give the benefit of the doubt in anything and I'd put that sample size at about 150.

I take that back, if you wanted to know the quickest way to Spudnuts then ask the fuzz. I always see them there parked in the handicapped spot next to 5 vacant regular spots.

Why can't courts simply ask themselves, why do people become police? The answer is typically somewhere between "something to prove" and "couldn't pass JC classes." Those are not people who deserve anything other than a high-level of scrutiny.
9.11.2008 2:25am
Bill Poser (mail) (www):
Student,

Cady was not "hiding in the bushes". According to the decision, he was walking back and forth between the outer and inner sidewalks in front of the court building. This is hardly threatening behavior. People are entitled to walk back and forth in public places and they are not obligated to identify themselves. If the police found this behavior suspicious, they could keep an eye on him, but I fail to see anything that justified pressing him.

I also wonder about the search of the briefcase. Leaving aside the fact that it is clear that the police were not looking for weapons in this case, suppose that he had had a weapon in the briefcase. Is it realistic to think that he could open the briefcase and get a hand on the weapon fast enough to be a threat to the police who were standing right in front of him questioning him? He'd have to be awfully quick on the draw. I question whether they were justified in doing anything more than a frisk.
9.11.2008 2:26am
Alan K:
Cady may be a homeless guy and a repeat litigant, but his Fourth Amendment rights count as much as anyone else's.


Does anyone have any fourth amendment rights anymore?

A week ago, there was a report that some politically active people were detained pursuant to a federal “stop-and-search” order.

Professor Kerr, from a constitutional standpoint, what's the difference between a warrant and a federal “stop-and-search” order? Is the difference probable cause? Is the difference oath or affirmation? Or is the difference a neutral and detached magistrate?
9.11.2008 2:29am
EH (mail):
Student sure doesn't think much of the Cook County penal system. I know the pepper steak at Joliet is bad, but it's only on Thursdays. Let it go.
9.11.2008 2:29am
arbitraryaardvark (mail) (www):
Hiibel v Nevada, 542 US 177 (2004) may be the best case for the officers; Hiibel upheld arrest when Hiibel refused to produce a pedestrian license. The court relied on Terry and officer safety factors.
But yeah, I agree that the case is troubling; the 7th has here unilaterally excised the 4th from the constitution. If it doesn't apply here, it's pretty much never going to apply.
9.11.2008 2:34am
DangerMouse:
But what facts justified frisking Cady, rummaging through his briefcase, and finally taking away his briefcase for the duration of the questioning?

Orin, you already gave us the answer: he was acting strangely at a courthouse, a building that judges are particularly inclined to protect zealously.

Judges don't like it when people are standing outside of their temple who think that the Constitution is the law, because it means that what a Judge says isn't the law anymore. This guy knows his rights. The Judges infringed on them for precisely that reason. So that next time, he'll look to a Judge for his rights instead of to the Constitution.

You incredulously state "Terry just doesn't allow it, and Terry is the law." Not to this guy, not anymore, and not because of those Judges. Don't you get it? The law means what they say it means, and to them, it means you don't $*#% with a judges' personal space outside of their modern-day temples. Don't you realize that if one of the Judges went to work, they might've passed near that peasant?
9.11.2008 2:38am
one of many:
I'm interested about this stop-and-search order too, although I am dubious that the reporting is 100% accurate. I've never heard of a federal stop-and-search order.
9.11.2008 2:38am
OrinKerr:
ArbitraryAardvark,

Hiibel doesn't really help the officers, as it deals with whether the officers could ask the question during the Terry stop and whether they could arrest him for refusal to answer. They didn't arrest him here, though, and he didn't challenge the question.
9.11.2008 2:45am
OrinKerr:
I think "a federal stop-and-search order" is just a somewhat unusual name for a Terry stop.
9.11.2008 2:46am
Milhouse (www):
Speaking of Terry stops, there's this. How can this possibly be constitutional? Adults being stopped, in broad daylight, without any suspicion whatsoever?
9.11.2008 2:48am
Boalt 1L:
This post was made even more interesting (and poignant) by the fact that Roger Pilon (of Cato) came to a Federalist Society meeting today and discussed how our rights are being eroded more and more, and how that's a real shame. He provided a nice quote, which I wish I could remember verbatim--something along the lines of: It's the natural tendency of government to grow, and of rights to shrink.

Jon: Thanks for posting Atwater v. Lago Vista; very apropos (and informative).
9.11.2008 2:54am
Mike& (mail):
Orin: I'm not baiting. I'm genuinely curious. In your view, is this case an example of judicial activism?

"Judicial activism" gets thrown around a lot. But other than in certain hot-button issues like abortion and the death penalty, we rarely hear people call cases "activist."

In my view, this case is a product of judicial activism. The law, as you note, is clearly established. Thus, under the law, the search was unconstitutional. Nevertheless, the court ignored the law and upheld the search.

Thus, it's activist.

Do you agree?
9.11.2008 3:04am
Bruce:
I don't know about Orin, but Mike, it sounds to me from Orin's description that the problem here is judicial *inactivism*. That is, the judges just didn't want to be bothered with sorting through the 4th Amendment claims, and so they didn't.
9.11.2008 3:17am
OrinKerr:
Mike&,

Based on what I can tell from the opinion and the argument, I think it's just a case of poor judging. I don't think the judges are intentionally bending the law: I just think they got it wrong. It would be interesting to look to see whether the briefs identified the key issues: most bad decisions are the result of bad briefs (and lazy law clerks, at the federal appellate level), and it may all just be the result of laziness rather than "activism."
9.11.2008 3:17am
Mike& (mail):
I don't think the judges are intentionally bending the law

To me, this has always been the most interesting question: How do you prove whether a judge is bending the law or being activist? After all, we can't get inside a judge's mind. Instead, we use circumstantial evidence to prove activism, just like we'd prove intent in a criminal law case.

Where the an outcome differs from clearly established law, it seems to me that's strong evidence of intent to bend the law.

The law is not always clear, though sometimes it is. Reasonable minds can differ on all sorts of issues. (Which is why I'm hesitant to call an outcome "activist.") But when smart people (all of these judges are very smart) do something contrary to clearly-established law law, it seems that an improper motivation can be shown.

I realize that you may disagree. I just don't see, though, how one can tell if something is "bad judging" or plain-old "judicial activism."

I suppose, in this case, there are alternative explanations, but those don't seem strong. One explanation is that the judges are dumb. I don't think so, though that may be a judgment call. It could be that the court didn't pay much attention to the issue. Yet the opinion is published. If they are not adequately researching opinions before publication, I think there's a problem.

Also, cutting against the inadequate research explanation is this: The panel cited the relevant opinions. Is there an opinion that the court did not cite, but that if it had cited, it would have changed the outcome? I can't think of any.

In light of all of the above, I think the case was activist. The judges had a pre-determined outcome in mind, and they ignored the law to reach the outcome.
9.11.2008 3:37am
Jon Roland (mail) (www):
Boalt 1L:

This post was made even more interesting (and poignant) by the fact that Roger Pilon (of Cato) came to a Federalist Society meeting today and discussed how our rights are being eroded more and more, and how that's a real shame. He provided a nice quote, which I wish I could remember verbatim--something along the lines of: It's the natural tendency of government to grow, and of rights to shrink.


"The natural progress of things is for liberty to yield and government to gain ground." -- Thomas Jefferson. Quoted here.
9.11.2008 3:44am
Jon Roland (mail) (www):
I have argued that Hiibel v Nevada, 542 US 177 (2004) was wrongly decided, because the law cannot command the impossible, so there can be no authority to require anyone to produce something one is not required to have, and there is no constitututional authority to require anyone to have a name. A name is, after all, what other people call us. We are not obliged to answer to it, or accept it, or know what other people might choose to call us from one moment to the next.

To those who think this argument odd, it is actually well-founded in legal history. Hope it makes people think.
9.11.2008 3:51am
neurodoc:
It seems obvious that the officers searched the brief case because they wanted to know who Cady was. It was a search for ID, not guns. Now, maybe that's an understandable human reaction. But Terry just doesn't allow it, and Terry is the law.
Suppose Cady had not called attention to himself in the manner that he did, but instead he did it by appearing to be casing the joint, walking around videotaping an architecturally uninteresting building. Then, would the stop/search have been easier to defend? Under those circumstances, wouldn't the officers have had good cause to determine Cady's identity? If the building were the target of a terrorist attack the next week, they would at least have a good idea whom they were looking for.
9.11.2008 4:01am
OrinKerr:
Jon,

I think there's a reason no one imagined your argument in the road to the Hiibel litigation: As far as I am aware, it has no support in text, history, or precedent of either the Fourth or Fifth Amendment.
9.11.2008 4:03am
one of many:
Oh, Orin, you forgot to mention that the justification for searching the briefcase under Terry standards disappeared when the police took custody of it and didn't return it to him. Even if there were a gun in his briefcase he couldn't very well harm the police with it when the briefcase was locked inside a police car.
9.11.2008 4:12am
theobromophile (www):
They found a Sullivan's Law Directory, a Bible, an address book, and a pen. No weapons were found.

But Prof. Kerr, the pen is mightier than the sword. ;)

This seems to be the logical extension of traffic stops. I've had a handful of police officers who have stopped me for no reason (and flatly admitted so), save to check my license, run my plates, and interrogate me about my life. Apparently, we all have lives that allow us to hang around for twenty or thirty minutes at a time while the police satisfy their curiousity.

While the rationale for stopping drivers ("highly regulated" area) does not directly apply to pedestrians, the case law - and the police habits - are a logical outgrowth of this. Unless I'm mistaken, there is no principled line beyond which the police cannot cross. So long as they do things in sequence (benign questioning to which all persons should submit, lack of answers, suspicious movements, etc), they are justified in engaging in more invasive behaviour.
9.11.2008 4:37am
Jerome Cole (mail) (www):
@Roland: Where do you come up with such bizarre ideas? Ron Paul is controllin ur mind makin sound insane!
9.11.2008 5:49am
Modus Ponens:

[A]n officer is entitled to conduct a limited stop and related protective search for weapons of an individual who is lurking amongst the bushes outside a courthouse two hours before it opens, is shabbily dressed, carrying a briefcase, claims to be a federal process server, refuses to provide identification upon request, and is evasive in response to police questioning (emphasis added).

Of course, had he been nattily dressed, things would have been different.
9.11.2008 7:09am
Public_Defender (mail):
In criminal cases (or criminal-related cases), it's the accused who generally wants to strictly enforce the law, and it's the government that wants the courts to use a close-enough-for-government-work approach.

Professor Kerr is probably right that the panel did not take the litigant's claims seriously because he was pro se. Sad. The panel just vindicated Cady's anti-government paranoia.

I understand how difficult it is to sort through pro se pleadings. I have to do it myself. But it's a judge's duty to judge the case based on the law, not on whether the litigant is annoying or without counsel.

I saw something similar for one of my clients. He was also "an extremely experienced pro se litigant." In one of his actions, he filed a writ seeking his freedom. The case worked its way to the state supreme court, which said the AG's substantive defenses were wrong, but that the guy had filed the wrong action. The court named the right action. He filed that action pro se, but the AG asserted the same substantive defenses that the supreme court had just declared bunk. The AG still won in the trial court. I took over the case on appeal and cleaned the AG's clock. The guy should not have needed a lawyer to win that case.

Even vexatious litigators sometimes file meritorious cases. Many judges (and their clerks) take their job seriously and read the pleadings. Sometimes we get appointments in cases like that. But all too many judges just sweep these cases under the rug using obviously flawed reasoning. And again, that just feeds the paranoia of the pro se litigators.
9.11.2008 7:13am
Arkady:

For example, at one point in the oral argument, Judge Williams says that we now live in a dangerous world, and that "perhaps if we were in a pre-9/11 world, we would have a different case."


There's something disturbing about Judge Williams's statement. It strikes me as, and this isn't as crisp as I'd like, but it strikes me as issuing from a kind of martial-law mentality. It says to me that because we live in post-9/11 world, laws are malleable or, in the event, can be disregarded.
9.11.2008 8:15am
Thatguy (mail):
Explaining the constitution to a cop is like explaining vegetarianism to a shark, not only do they have no idea what you're talking about, and no interest in the subject matter, they lack the mental capacity to even begin to understand your point. Cops are by and large petty tyrants who get into the line of work because of a deep seated desire to push other people around and get away with it. Hell, police departments set MAXIMUM scores on intelligence tests for their applicants.
9.11.2008 8:47am
Mhoram:
Fourth Amendment? We don't need no steenking fourth amendment!
9.11.2008 9:23am
roger:
Orin, you can download the briefs at http://www.ca7.uscourts.gov/briefs.htm. In this instance, it looks like he was represented (presumably on a pro bono basis) by a former Seventh Circuit clerk at Winston &Strawn.
9.11.2008 9:24am
Oren:
I think his mistake was to engage the officers in conversation to begin with. I've had a lot of success showing ID (req'd by state law here, ratified by Hibel) and then just not saying anything. Cops get really flustered when their interrogation techniques are just met with silence and a dead stare.

This guy decided to run his mouth and prove that he was smarter than the cops. I think he conclusively failed.
9.11.2008 9:42am
Oren:
Orin, I think you failed to mention the most important parts of the factual record:
Cady was dressed in dirty, wrinkled clothing, wore a beard, carried a briefcase with him, and emanated a strong body odor
At this rate, there are days when I could probably be arrested with no probable cause at all.

Seriously though, I thought the factual record part of opinions was only supposed to include facts germane to the decision of the case. Cady's clothing, facial hair and odor are (I thought) entirely irrelevant to the protections afforded him by the 4A.
9.11.2008 9:48am
Anderson (mail):
Cady was not "hiding in the bushes".

Court: "an officer is entitled to conduct a limited stop and related protective search for weapons of an individual who is lurking amongst the bushes outside a courthouse"

If he wasn't in the bushes, then they didn't even bother to get the facts straight, much less the law.

But justice is secure in America. The poor, like the rich, have the right to pay a professional process server.
9.11.2008 10:10am
titus32:
It would be interesting to look to see whether the briefs identified the key issues: most bad decisions are the result of bad briefs (and lazy law clerks, at the federal appellate level), and it may all just be the result of laziness rather than "activism."

Knowing one of the authors, I strongly doubt the problem was the brief-writing. In my experience as a clerk, judges are rather blase when it comes to the 4th Amendment -- and this transcends ideology, party affiliation, etc.
9.11.2008 10:17am
tarheel:
This is in the same category as the debate here a while back over whether people with nothing to hide should consent to a search of their vehicle simply because the police ask.

In both cases, police find a way to add a cost to the simple exercise of a constitutional right, which, when exercised, is inconvenient for the police. This guy would have been on his way in 5 minutes instead of 30 had he simply acceded to the police requests, unconstitutional though they may have been. Go along to get along, as they say. In most cases, this may be the rational course for a citizen. I sure am glad, however, when some citizens choose to call the police on the BS, no matter how much it messes up their lives.

I just wish the judges here had the same courage.
9.11.2008 10:17am
cboldt (mail):
-- but his Fourth Amendment rights count as much as anyone else's. --
.
Exactly right. And ours as much as his. "Terry" isn't carved in stone. The question is "reasonableness" as perceived by the government, not as perceived by the target of the search. The search was reasonable according to the Court.
9.11.2008 10:28am
ejo:
these are Cook County courts-if you want to see shabbily dressed smelly people, show up at one any morning. I would say this is a bad circuit for these type of litigants given that one such loon murdered the family of a Northern District judge (just a few floors down at Dirksen).
9.11.2008 10:54am
jccamp (mail):
How about this?

As a mater of law, the judges had to accept the officers' version of events, even if they had to interpret them in the most favorable light to the plaintiff.

The officers confronted a man who, under the circumstances, could easily have been mentally ill (or not). He identifies himself as a Federal officer or agent, which clearly, he is not. He's dirt and smelly, he's two hours early to conduct business, and he's walking back and forth alongside the courthouse, part of the time obscured by bushes. The stop is certainly reasonable. Court security personnel originally asked him why he was there, and he refused to speak with them. Court security called the police. The police didn't initiate the contact with the plaintiff because they were bored and needed to violate someone's right as amusement.

Once stopped, he refuses to identify himself or his explain why he's there. Instead, he proposes a debate on Constitutional issues. After he goes in the briefcase several times, one of the officers decides, belatedly, to look and make sure it contains no weapons. Were I to confront someone who is possibly disturbed, I might have taken the briefcase far earlier. As for withholding the briefcase, that sounds reasonable, unless you don't think the briefcase itself would not have served as a bludgeon when swung.

All the police wanted to do was to alleviate their concern that somehow, this fellow acting strangely represented a potential threat. Why not cut through all the dissembling and look through the briefcase for some sign of "threat-no threat?" According to the decision, once the officers legally looked in the briefcase, they were under no obligation to ignore what else they saw.

The officers finally told the plaintiff that he could either identify himself or suffer arrest. He provides some biographic data, which the police verify and release him, while telling him how to actually accomplish his stated goal of serving process.

I suggest the officers acted reasonably and even commendably, restraining themselves in the face of someone who obviously provoked them.


"I can perhaps see the case for detaining Cady temporarily in light of the strangeness of his appearance and the unusual time and place. But what facts justified frisking Cady, rummaging through his briefcase, and finally taking away his briefcase for the duration of the questioning? "


As for the OP, I find it peculiar that one could think the stop and temporary detention was reasonable - presumably because the man may represent a threat to the courthouse - but the officers could not think at the same time, he might represent a threat to the officers as well. What was the harm of the minimal intrusion of an external pat-down for weapons, compared to the potential for harm had the plaintiff possessed something dangerous. I find it supporting the pat-down that the offices did not immediately grab the plaintiff and search him, but instead only did the external pat-down after some minutes of trying to alleviate their concerns, already described as reasonable.

Finally:
"Invoking your constitutional rights doesn't pose a threat to officer safety. Nor does asking an officer to clarify if he has seized under the Fourth Amendment you pose a threat. Acting like a lawyer doesn't mean you have a gun or a knife."

The officers did not do anything because Cady was invoking his rights or acting like a lawyer, they did what they did because he was non-responsive to their attempts to determine whether he was a threat.

"It seems obvious that the officers searched the brief case because they wanted to know who Cady was."


I don't think that's obvious at all. Apparently neither did the three judge panel.
9.11.2008 11:04am
Matthew 5:41:
The guy had a bible. He should know it says "And if anyone forces you to go one mile, go with him two miles."
9.11.2008 11:05am
Sarcastro (www):
jccamp makes such a good argument it obviates a whole bunch of what I previously thought were Fourth Amendment rights!

If one refuses to consent to the police searching you, you are being non-responsive to their attempts to determine whether he was a threat.

And - get this - that means they get reasonable suspicion to frisk you!

It's like Catch-22, only real!
9.11.2008 11:11am
jccamp (mail):
Nowhere in this case did the police ask for and were denied permission to search the plaintiff. The police sought to learn why an individual was lurking about a courthouse in non-business hours, said lurking giving rise to a reasonable fear the man was a threat. The plaintiff was non-responsive - his right - was was detained until the police could determine he was not a threat - their right.

Apparently, your concept of the 4th A is indeed flawed.
9.11.2008 11:16am
tarheel:
jccamp: I am no expert on the Fourth Amendment, but I don't think Terry "reasonable suspicion" allows the police to rummage through the contents of a briefcase, including opening and reading books/papers in the briefcase. I don't doubt a Terry stop was allowed, but the scope of the search went well beyond "stop and frisk."
9.11.2008 11:18am
ejo:
try the same experiment at any courthouse, federal or state. my guess is that the reaction and the result in the subsequent 1983 lawsuit would be about the same.
9.11.2008 11:20am
Jon Roland (mail) (www):
OrinKerr:

I think there's a reason no one imagined your argument in the road to the Hiibel litigation: As far as I am aware, it has no support in text, history, or precedent of either the Fourth or Fifth Amendment.

You have to go back a lot further than that, to the use of placeholder names like "John Doe" in many countries, and to the cases involving persons who had no record of birth or any firm knowledge of being given a name by a parent, other perhaps than "boy". Still happens to this day.

But one doesn't have to examine history. The text of U.S. and state constitutions are sufficient. You will not find in any of them a provision that requires anyone to have a name, or that prohibits anyone from changing his name, or from using any name for anyone else. All we have is the custom of parents giving their children names, and sometimes the community giving them other names that sometimes stick.

Far from being bizarre, this point takes one into a key area of legal theory that few are taught in law school.
9.11.2008 11:47am
Andy Freeman (mail):
> Tried to identify him

What are the odds that knowing his name would have identified a security issue?

It's not like there's a list of "folks carrying bombs today".

And, since they were willing to take his word as to his name, what are the odds that someone whose name is on such a list would give the name of someone on said list?
9.11.2008 12:09pm
jccamp (mail):
tarheel,

Based on my understanding of Terry, I agree with your thoughts, but apparently, the CCA panel felt that since the issue was the plaintiff's identity and purpose, looking for some indicator of identity was legit, once the briefcase was opened. I'm not sure I follow their reasoning, but both the trial (District Court) judge and the appellate panel felt the same way. So I guess my response is "Sounds good to me."

I saw the search of the briefcase has trivial to the central thrust of the case, since no harm resulted as a result of the briefcase search, no evidence was seized and no suppression was requested. He actually alleged false arrest, false imprisonment and illegal search &seizure.

I think what many may be ignoring is that the plaintiff replied to a mandatory demand for statement of fact in much the same way as he responded to the officers' request for ID and/or purpose. The judges probably felt some credence for the officers' articulated basis for their actions, since the plaintiff prevaricated with required court filings in similar fashion.
9.11.2008 12:14pm
Turk Turon (mail):
Since the cops searched the guy's briefcase, and the guy was appearing pro se, I would argue that the cops were violating his attorney/client privilege.
9.11.2008 12:26pm
jccamp (mail):
And I'd like to add just one more thought...

Like so many other circumstances involving the police and their actions, were any of the posters here in the cops' place, what would you have them do as an alternative?

ignore the call and the man?

Respond to the call, get no answers and no relief for the concern of the courthouse security, and let the man go unchallenged?

Summarily arrest him instead of inquiring?

Follow him around indefinitely until satisfied he was not a threat?

These events do not happen in a vacuum. Unlike the posters here, the cops were not dealing with supposition and the theoretical. They needed to take some affirmative actions to resolve the issue, or they could just shrug their shoulders and leave, I suppose.

So, rather than harping about the cops' handling of a man with apparent mental health issues, why not make some kind of positive suggestion for the cops to follow next time. Tell us what to do. Let me rephrase...tell us what to do in similar circumstances next time.

JC
9.11.2008 12:30pm
Visitor Again:
The fourth amendment, as diluted by the courts, and particularly the U.S. Supreme Court, provides no protection for the freedom to roam in public places without police molestation. Almost anything that piques the curiosity of the police constitutes reasonable suspicion justifying a stop--including, apparently, unpleasant body odor and poor dress. The right to stop, of course, carries with it the right to inquire. But both the police and the courts seem to think the right to inquire embodies the right to insist on an answer that satisfies their curiosity, on penalty of threat of arrest or worse for lack of cooperation.

Supposedly the burden is placed on the police to show reasonable suspicion or probable cause before the citizen's freedom is infringed by detention or arrest.

In reality the burden is placed on the citizen to satisfy the police that they have no ground for suspicion, no cause for arrest, before he is permitted to go on his way.

In some places, like Los Angeles, if the citizen tries to insist on his rights in encounters with the police, he risks his life. It's hardly worthwhile if all he gets in return for taking that risk is court opinions like this one. That opinion isn't judicial activism; it's judicial lawlessness.
9.11.2008 1:08pm
Jones:
The reason cops routinely violate the 4th, etc., is that there are generally no consequences to doing so beyond potential application of the exclusionary rule. Blame the pedestal upon which the exclusionary rule has been raised. Why should law enforcement take the 4th seriously except in cases where the risk of blowing the case procedurally is obvious? If you want it taken seriously, you need civil liability consequences, disciplinary consequences and, potentially, criminal consequences. It's a simple matter of incentives.
9.11.2008 1:22pm
Alan K:
Unlike the posters here, the cops were not dealing with supposition and the theoretical.


And so we begin to see clearly how the peculiar institition of security emanates in a penumbra around the magnometer and x-ray machines at the courthouse door.

It reminds me a bit of NATO's doctrine of “forward defense”. A military strategy adopted for political reasons —to assure our European allies that we would fight for every inch of their territory— was perceived by the Soviets as a military strategy. Soviet defense analysts rightly perceived that “forward defense” could only mean defense forward of the border, that is, a pre-emptive invasion of their Warsaw Pact allies.

A core problem is that intelligence on your adversary's intentions is hard. It's much easier to evaluate your adversaries capabilities. And to evaluate your potential adversary's potential capabilities. Multiplied by a safty factor of ten to compensenate for uncertainty. With another safety factor of two or three thrown in for good measure.

The smelly man lurking in the bushes outside the courthouse early in the morning with a briefcase might be a terrorist carrying a suitcase nuke.

Although, as it happened, he wasn't.

In this particular case, the optimum response would have been for the courthouse security to “just shrug their shoulders and leave”. In hindsight, that would have been easiest and most efficient for everyone.

In order to make that not the best outcome, you have to hallucinate a hypothetical.... The smelly guy might have been a tourist with a suitcase nuke.
9.11.2008 1:37pm
neurodoc:
It's not like there's a list of "folks carrying bombs today".
There are no lists of people thought to be security risks, and if there are, then surely no one who knows his/her name is on such a list would allow their true identity to be discovered? I thought there were such lists and that people on them had been denied entrance to buildings, prevented from flying, etc., rightly or wrongly.
9.11.2008 1:45pm
neurodoc:
jccamp, I am too uninformed about Fourth Amendment law to express a meaningful opinion about the court's decision in this case, but I do think you have done a good job of arguing in support of the officers' conduct, and hence the decision.

I'd be curious to know what you think about the hypothetic I posed at 3:01 AM, giving Cady a video camera and having him apparently casing the building. Would those "facts" make the officers' conduct any easier to justify, especially looking at what was inside his briefcase in an effort to identify him after he refused to do so other than saying he was a "federal process server"? I think they would, no matter how well attired and clean he might have been.
9.11.2008 1:54pm
neurodoc:
"hypothetical"
9.11.2008 1:55pm
Snaphappy Fishsuit Mokiligon:
Roland,

Let me guess: Somehow your theory that nobody has to have a name somehow means you don't have to pay federal income tax. Am I right?
9.11.2008 1:58pm
whit:

Explaining the constitution to a cop is like explaining vegetarianism to a shark, not only do they have no idea what you're talking about, and no interest in the subject matter, they lack the mental capacity to even begin to understand your point. Cops are by and large petty tyrants who get into the line of work because of a deep seated desire to push other people around and get away with it. Hell, police departments set MAXIMUM scores on intelligence tests for their applicants.




just to prove my point from the other post. this is at least the 4th ridiculous cop-bashing post. my point stands.

fwiw, police departments IN GENERAL don't set maximum scores on IQ tests. only one I am aware of (in CT has).

they became a national laughingstock for doing so.
9.11.2008 2:16pm
OrinKerr:
The text of U.S. and state constitutions are sufficient. You will not find in any of them a provision that requires anyone to have a name, or that prohibits anyone from changing his name, or from using any name for anyone else.

Jon Roland, I hate to point out the obvious, but there is a difference between the Constitution permitting something and banning something. The fact that the Constitution doesn't require someone to have a name doesn't mean that states can't impose laws here. Indeed, the opposite is true. Remember that the Constitution includes the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
9.11.2008 2:25pm
Oren:
Well whit, the first few sentences are fairly true (even if presented rudely). As I've said many times before, cops have searched my car with the explicit "well, if it's legal you'll do time, if it's illegal you'll walk but my boss says search all the cars". After having that happen to you more than once, you start to question whether police really believe in the protections of the 4A.
9.11.2008 2:25pm
whit:

The reason cops routinely violate the 4th, etc., is that there are generally no consequences to doing so beyond potential application of the exclusionary rule. Blame the pedestal upon which the exclusionary rule has been raised. Why should law enforcement take the 4th seriously except in cases where the risk of blowing the case procedurally is obvious? If you want it taken seriously, you need civil liability consequences, disciplinary consequences and, potentially, criminal consequences. It's a simple matter of incentives.


not conceding for a second that cops "routinely violate the 4th" but incentives work both ways.

there are already ARE civil liability consequences, disciplinary consequences, and potentially criminal consequences. but there is also an understanding that there is a difference between knowingly violating the4th (and setting out to do so) vs. the instant case where there is significant disagreement about whether the 4th WAS violated, and the proof of that is the decision itself.
9.11.2008 2:27pm
hattio1:
Professor Kerr says;

Cady may be a homeless guy and a repeat litigant, but his Fourth Amendment rights count as much as anyone else's



Well, actually they don't. As this case proves. Anyone doubt that the exact same actions, questions and answers would have had a different outcome if Professor Kerr had shown up dressed as he usually did for court....or even how he does for teaching (I'm assuming they're different, I've never had him in a class).


Professor Kerr also says,

Invoking your constitutional rights doesn't pose a threat to officer safety


Which I also disagree with. Though of course it doesn't pose a physical threat, just one to their sense of control.
9.11.2008 2:27pm
fortyninerdweet (mail):
I believe most responders have skipped over two key reasons the court, in their wisdom, upheld the officers' conduct. One, when first approached Cady failed the "attitude" test. Many of you would not recognize this because it is only an important element in societal discourse to those outside the legal profession. Two, Cady then lied about being a "federal process server". [He was simply a "process server"]. That was two strikes against him. Any sworn officer [from anywhere] failing to take the issue further could expect to be severely disciplined and ridiculed. The die was cast until Cady could be "cleared". Ipso, he caused his own problems. Next case?
9.11.2008 2:30pm
hattio1:
Whit,
When is the last time you've seen someone fired (lost their job, not just a letter in the file) for violating the 4th amendment? When is the last time you've seen an officer lose their OWN money (not the departments) for violating the 4th Amendment?

When an officer "unintentionally" violates the 4th amendment, do their supervising officer or the person who trained them get disciplined?

The fact is we have tons of crimes on the book that have a negligent or reckless mens rea. We do that for a reason, the punishment will keep people from toe-ing up to that line. For officers, it seems the only mens rea is intentional, and then any explanation, no matter how ridiculous, will suffice. In reality, that means no enforcement.
9.11.2008 2:34pm
Joel Rosenberg (mail) (www):
whit writes:

there are already ARE civil liability consequences, disciplinary consequences, and potentially criminal consequences.

Well, it's potential (or turtles, I guess) all the way down. Civil liability? Rare; neither frequent enough nor of great enough magnitude to change behavior, as far as I can tell. Bob Bennet is, locally to me (Minneapolis), the jedi knight of such things, and he's not exactly suffering for business. (In large part, it's because the bill ends up getting paid by the taxpayer. Economic incentives where the paying checkbook belongs to a despised third party aren't, err, terribly reliable.)

Disciplinary consequences? Rare, and (excepting those on the outs with the union and management), serious only for the most egregious of cases. For an invalid Terry Frisk? I'd love to hear about a department where there'd be serious (appropriate, but serious) disciplinary consequences for that. Locally to me, not a chance; the MPD Federation (think of them as Jimmy Hoffa era Teamsters, with better lawyers, guns, and body armor) covers their guys (and guyettes) for far worse than that.

Criminal consequences for an invalid Terry frisk? You've impressed me, previously, as somebody who doesn't make stuff up; I'd love an example. (And the full-tilt-boogie Abner Louima treatment doesn't count as a Terry frisk of the large intestine.)
9.11.2008 2:45pm
whit:
I have never heard of criminal consequences for an invalid terry frisk, and I can't imagine that would be warranted very often.

The point is this. I have seen officers removed from assignments for doing "questionable" stops and frisks same of which results in loss of pay.

The point about unintentionally vs. intentionally is that in the former case, many JUDGES (and lawyers) can't even agree (iow no unanimity) in whether there WAS a violation. if judges, in hindsight etc. can't agree how can you possibly make the argument that the officer should be disciplined for what judges can't even determine WAS a violation?




The fact is we have tons of crimes on the book that have a negligent or reckless mens rea. We do that for a reason, the punishment will keep people from toe-ing up to that line. For officers, it seems the only mens rea is intentional, and then any explanation, no matter how ridiculous, will suffice. In reality, that means no enforcement.


no. what it means is that when you hire people to enforce the law, you are willing to give them the benefit of the doubt when it comes to good faith.

fwiw, i have had defense AND prosecuting attorneys tell me that (among other things) regardless of whether a frisk is constitutional (as determined later) , they would rather see me (officers) do a frisk and get it suppressed than not do a frisk and get shot. iow, i have had both sides admit that.

the unexcusable sin imo is when an officer tries to make a "bad search good" etc. by falsifying a report or courtroom testimony. i don't think there is a cop alive who has not made a search/stop/whatever where they didn't realize afterwards - oops!. as long as the officer writes a truthful report (i have written them before where i seized drugs and recommended NO charges nor did i arrest the person), that's a reality I can live with.

the idea that there are no discincentives for violating the 4th is laughable. among other things, courtroom credibility is incredibly important. if you lose your credibility, you are generally worthless as an officer.

the problem if the discincentives get too stiff is that it encourages depolicing. i know one agency near me that has an admin with a history of not supporting their officers in all sorts of situation. many officers have depoliced. iow, they sit in parking lots doing crossword puzzles, etc. and will not do ANY pro-active police work. and if they do see somethign in progress, they are incentivized to look the other way and keep driving. you are well aware i am sure that getting sued for inaction is much less likely than gettign sued for action. they know this.

iow, you are looking at it from one side. there are two sides. and overly harsh penalties result in depolicing, which puts the public at much greater risk and results in a free for all atmosphere for criminals.
9.11.2008 3:00pm
Ben White (mail):
This case is a good example of the difference between lawyers and the rest of society. The Constitution is not an excuse and was not written to give you the power to be hover around buildings acting antisocial.

It's like a childrens' "I'm not touching you!!!" game where one kid jumps around another holding his finger within an inch of the other kid's eyeball. He's not doing anything wrong because he's not touching you. It's the most annoying, harassing thing he can get away with that seems to be within the rules.

Lawyers seem to love this ethic. Being good and being responsible are replaced with "following the rules". Since lawyers get paid to make and interpret rules, this is great for them. And the only reasonable defense for the victim is to hire lawyers himself and start a rules-war or to break the rules and solve the problem. Then the lawyers use government force against the victim to enforce the rules. And, as always, they get paid.

You guys are giving the Constitution itself a bad name.

Real people (a.k.a. non-lawyers) are happy when the cops question people like this. They acted reasonably and prudently. They caused no harm. Cady was not injured or damaged or detained despite his antisocial legalistic performance-art nonsense.

Kids who play "I'm not touching you!!!" need to be spanked. Guys like Cady need to be frisked and searched and told to stop loitering around looking for an opportunity to cause trouble for the responsible, productive segment of society. Lawyers need to start caring about right and wrong once in a while instead of "within the rules" or "against the rules".
9.11.2008 3:08pm
Max (mail):
This is so like the medieval arguments over the number of angels that could dance on the head of a pin.

You are all suspects now. Get over it.
9.11.2008 3:15pm
PC:
Kids who play "I'm not touching you!!!" need to be spanked. Guys like Cady need to be frisked and searched and told to stop loitering around looking for an opportunity to cause trouble for the responsible, productive segment of society. Lawyers need to start caring about right and wrong once in a while instead of "within the rules" or "against the rules".


The "nation of men, not laws" defense. Neat.
9.11.2008 3:30pm
JohnCK (mail):
I really don't see how this guy was doing anything. If a terry stop and frisk is justified here, when is it not justified. Further, if the guy had told them his name and produced an ID and the cops had frisked him and rifled through his stuff, I suspect the court would have still found a way to grant summary judgement. I would be curious to see where there are any cases out there were an officer is held liable for a wrongful Terry Stop. Maybe if it were a series of systematic Terry Stops aimed at a particular race, the officer might lose. But I can't see how the officer would lose for on Terry stop. Given that officers are in reality free to stop you and search your person and demand identification essentially at will, how is it that the 4th Amendment really means anything any more?

What is most infuriating is this idea that we have the right to violate the 4th Amendment in the name of "officer safety". First, when compared to other jobs, being a cop is not a particularly dangerous occupation. Second, the dangers that do exist almost never arise from randomly talking to someone on the street. Third, even if they did, it is the cop's job to risk his life for our rights and public safety. If it is a choice between cop's safety and our rights, our rights win. That is what we pay the cops for.
9.11.2008 3:31pm
Dilan Esper (mail) (www):
This is an excellent post by Professor Kerr. I can't really comment on the legal aspects of this (Terry stops aren't really my area of expertise), but certainly the purpose of the Terry doctrine is to protect officer safety, not to permit a generalized search for anything the officers might wish to know.
9.11.2008 3:33pm
jccamp (mail):
Neurodoc-

The key to any such case, as either the decision or your hypothetical, is the 'reasonableness" of the officers' actions. Unfortunately, the best definition for cops to follow is something like "what a reasonable person would do under the same circumstances." For all of the love of verbiage seen in legal documents, no one has ever defined "reasonable" better than this. Generally, then, to analyze the reasonableness of the cops's actions (or better, reactions) is to know only what they knew and see what only they saw, no hindsight allowed.

If someone was out at 3:00 AM, videotaping a Federal courthouse, I think a reasonable person would immediately suspect something might be wrong, or at least find it worthy of further inquiry. This suspicion is subject to relief, assuming the police learn something that makes the actions no longer suspicious. In your hypothetical, say the videographer identifies himself/herself as a film student at a local college, who needs shots of the building from the middle of the roadway, something impossible to film at 3:00 PM. If the police see some substantiation, if the person appears forthcoming and, dare I say it, normal, then I assume all is good with cops and video-taper. On the other hand, if the fellow filming says something like "Go away. I have my rights.", refuses to identify himself or the reason for his presence at 3:00 AM, the police are not going to be satisfied and just leave. His demeanor and appearance may play a part in the officers' take of the totality of circumstance. But they may not. A smelly dirty guy might be released as harmless, while another person in a designer suit might be detained for more investigation. Think "considering all the variables."

In the end, case law like Terry says in essence, that if the police can articulate a reasonable suspicion that a crime has occurred or may occur, they can make threshold inquiries to confirm or relieve their suspicions. That reasonable suspicion can include a person's appearance, presence and/or statements (or lack of same). it can include location, time of day, weather conditions...almost anything that in fact a reasonable person would consider in the officers' place.

The 2nd part of Terry is the frisk part. Quoting directly from the decision..."The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. " Again, given the totality of circumstance, would a prudent person think that the fellow in the instant case might be a threat? He acts like a nut, he looks and smells like a nut, and he is found under circumstances that the OP describes as reasonable to stop and inquire. He refuses to co-operate or allow the cops any basis to stop being suspicious. What does any person think is going to happen next?

And as for several of the posts, I don't think we should be limiting the definition of threat as someone with a suitcase bomb. No need to be so dramatic. Someone with a bottle of lye, or a small .22 firearm, or even a box cutter can represent a deadly threat. I'm not sure that any of the officers in the Cady case thought they were dealing with a guy named Abdul, carrying some of Hussein's missing WMD's. They thought, correctly I think, that they were dealing with a mentally disturbed man, who, by definition, is not operating with the same behavior patterns and logic as the rest of us. Once they determined he was not an apparent threat, he was allowed to go about his business.

And finally, I'd like to repeat myself. Can anyone suggest a reasonable alternative to what the cops did? I see only one response, which says "shrug their shoulders and leave, because in hindsight..." No, you don't get to refer to hindsight. Know what the cops knew, and tell me what to do.

Not all that simple, is it?
9.11.2008 3:39pm
wuzzagrunt (mail):
Jon Roland:

Since there are some libertarians in this forum, you might appreciate this answer to the question, what is a libertarian?

A conservative is someone who's bee mugged, a liberal is someone who's been arrested, and a libertarian is someone who's been arrested for shooting the mugger.

A conservative is a liberal who's been mugged. A libertarian is a conservative who's been mugged.........by the government (or thinks he has).
9.11.2008 3:41pm
Ben White (mail):

The "nation of men, not laws" defense.


This line of argument is just dishonest. See the part about where the police caused no harm. Stop pretending I said something I didn't.

A "nation of laws" doesn't mean we need a specific law or rule governing every single aspect of every single interaction (or potential interaction) between any two people.

You people intentionally miss the point and repeat these talking-points fairly consistently. Why don't you stop quoting bumper stickers and actually put forth a reasonable argument if you can.
9.11.2008 3:42pm
submandave (mail) (www):
Granted that the initial search of the briefcase showed no obvious weapons, but I can see how because of Mr. Cady's unusual attire and behavior the officers felt it was necessary to accurately determine who he was and investigate his background (i.e. priors) before rendering the assesment he was, indeed, harmless. And, by all accounts, they did just this. Had they detained him to prevent serving process or continued to harrass him after completing their investigation or later used the knowledge of his identity to further harrass him I'd stand arm-in-arm with you decrying the violation of his rights. From what you presented, however, I see no harm, no foul, and no slipery slope.
9.11.2008 3:43pm
John Steele (mail):
One thing I think is interesting about this is the infringement of civil liberties by the court. It has been vogue in this counry for the past 8 years to bash Bush for stepping on the Constitution andyet here we have a group of cops and judges running roughshod over the Constitution and the Bush administration isn't anywhere in sight.

Could it be that the problem is not the neo-cons and "that idiot Bush" but society in general? This man did nothing wrong and everything wrong. The only "law" he violated was to stand up to overbearing illegal "authority."
9.11.2008 3:47pm
tarheel:

Real people (a.k.a. non-lawyers) are happy when the cops question people like this.

Of course they are. Until suddenly they become the person "like this." Then they call a lawyer (or wish one the previous 100 people searched for standing around in front of a courthouse had done so).
9.11.2008 3:49pm
Bryan C (mail):
Wouldn't it have made more sense if the officers (or courthouse security) had just observed Cady for a while longer?

Ok, so they frisked him, searched his briefcase, and looked up his name. And then they "sent him on his way". What did all that actually accomplish? All it told them was that he didn't have a weapon on him at the time, and that he wasn't wanted on a warrant. That doesn't necessarily mean he's not dangerous. Maybe he hid a weapon in the bushes. Maybe he's using an alias. Keeping him under observation for a while would've avoided using any questionable tactics, and there would be someone on scene if he'd tried to do anything dangerous.
9.11.2008 3:50pm
jccamp (mail):
Dilan Esper,

Say for the sake of argument what you say is true, that the officers improperly looked in the Bible while properly looking in the briefcase for possible weapons, what harm has been done, what damage to the plaintiff occurred? Looking in the Bible changed absolutely nothing in the incident, and if it had changed something, it would have only served to shorten the time Cady was detained, in other words, acted to his benefit.

The improper part of the search resulted in no criminal charges, no property seized, no arrest, nothing. So, considering the totality of circumstance, given that everything else the officers did was proper other than look in the Bible for a name, then I'm not sure why the CCA ruling is wrong, lazy or any of the other opprobriums asserted.
9.11.2008 3:53pm
jccamp (mail):
Neurodoc -

thanks.

JC
9.11.2008 3:54pm
Ben White (mail):

Until suddenly they become the person "like this." Then they call a lawyer...


And then they go to court and eventually it gets pointed out that the police caused no harm and they should stop bothering everyone because they're unhappy about how one of their mornings went.

After which, they decide they should maybe have acted more grown-up all along. Or maybe they don't because there are ways of profiting from acting like a child if you do it shamelessly enough -- you can get paid off just because all the actual grown-ups want to get on with their lives.
9.11.2008 3:56pm
JohnCK (mail):
How many judges or law professors have ever actually dealt with the police under these circumstances? It is very easy for them to write this off as a minimal infringement. Being, stopped frisked and having your stuff rifled through is utterly humiliating. I suspect if judges were ever subjected to such treatment, their views of Terry stops might change.
9.11.2008 3:57pm
hattio1:
Whit,
The problem with the argument that "even judges and lawyers disagree on this" is that 1) DA's are PAID to disagree...that's what they do, try to get bad stops, searches etc in. 2) Too many judges will agree that anything is ok if the police just say it was for officer safety. And cops and DA's know this and claim that anything is for officer safety.

This case is a perfect example. Even if you can justify the search of the briefcase under a stop and frisk theory (which I don't think you can, but let's assume it for the sake of argument), you still can't justify hanging onto the briefcase, and you surely can't justify looking into the bible to find out the person's name. Yet, because the lawyers arguing this raise the "officer safety" meme, the judges not only justify that which is justifiable (the stop and frisk) and that which is maybe somehow potentially justifiable but also illegal (the search of the briefcase) but also justify the undefenseable (the detention of the briefcase and the search of the bible for a name).
9.11.2008 3:58pm
Dilan Esper (mail) (www):
Say for the sake of argument what you say is true, that the officers improperly looked in the Bible while properly looking in the briefcase for possible weapons, what harm has been done, what damage to the plaintiff occurred?

That's a legal question of Section 1983 liability which depends on: (1) whether Professor Kerr is right on his Fourth Amendment analysis, which I assume he is; and (2) whether the right was "clearly established" so as to deprive the officer of a qualified immunity defense under Anderson v. Creighton.

Beyond that, I can't comment, because I don't know enough about the development of Terry doctrine and how "clearly established" these propositions are.

And then, if damages were recoverable, they might very well be nominal or relatively low.
9.11.2008 4:03pm
JohnCK (mail):
I would like to hear from the people defending this decision under what circumstances a Terry Stop is not justified?
9.11.2008 4:04pm
PC:
See the part about where the police caused no harm.


Could you point me to the part of the 4th amendment that says an illegal search is legal as long as it causes no harm?
9.11.2008 4:05pm
hattio1:
JohnCK,
That's an easy question...when they're the one who gets stopped and harrassed. As long as it's happening to a dirty, smelly bum, then requiring that person to prove they're not a danger is the right approach. However, that standard should never be applied to them, their friends, or anyone they admire.
9.11.2008 4:07pm
Joel Rosenberg (mail) (www):
Whit writes:

there are two sides. and overly harsh penalties [presumably for police misbehavior. JR] result in depolicing, which puts the public at much greater risk and results in a free for all atmosphere for criminals.

I have heard that before. Where has this happened? Not doubting your word, mind you, but is this theory or reporting?

That said, I'll bravely stand against overly harsh penalties, even if they don't lead to the horrors of depolicing. Can I get you to sign onto appropriately serious penalties?

Ben White writes:

Real people (a.k.a. non-lawyers) are happy when the cops question people like this.

I'm pretty sure that I'm both real and not a lawyer, and, well, it takes other things to make me happy. All in all, if I conclude that a cop is doing something that he oughtn't to be doing to somebody else, and suffers no consequences nor correction for so doing, I get unhappy; it might be me or somebody I care about who is next in line, and not the funny-looking smelly guy.

And, yup, I really, really am a lot more comfortable when the folks with badges and guns and all that stuff not only think that they have to follow the rules, but make an effort to, and engage in some learning behavior when they err, both for their own edification and pour encouragez les autres.

wazzagrunt: Nah. A conservative is a liberal who has been mugged; a liberal is a conservative whose kid just got thumped a cop for "disorderly conduct", and a True Believer in the Fifth and Sixth Amendments is the cop who got indicted for the thumping.
9.11.2008 4:08pm
Joel Rosenberg (mail) (www):
Apologies; that should, of course, have been "thumped by a cop."
9.11.2008 4:09pm
heleneedwards (mail):
@Boalt1L:

If you want to watch the vanishing 4th Amendment in real time, and the indifference of the UC police to the whole concept of constitutional rights, just conduct a simple experiment in the law library. Simply approach one of the obvious non-students (male) in the library. There are always a few sole practitioners around. Explain your project, and have a female friend tell the librarian that the guy spoke to her disrespectfully. The librarian will immediately tell the guy he has to leave. The police will be called. They will require him to produce ID and escort him out solely on the librarian's word. In fact, I offer $100 if it doesn't play out just this way.
9.11.2008 4:09pm
jccamp (mail):
Hattio -

Hanging on to the briefcase may be the most reasonable thing the cops did. They were not trying to deny its contents to the plaintiff. They thought, correctly, that they shouldn't allow Cady to possess something that might be used as a blunt instrument. Had Cady been carrying a croquet mallet or a metal lunch box, would it change your mind about this one issue?

I think everyone agrees that looking in the Bible for a name was a reach, but what harm was done. The four judges who considered the case didn't seem to have a problem with it. The cops were not looking for evidence, they were trying to identify Mr Cady. Had he been catatonic or unconscious, would you object?
9.11.2008 4:10pm
tarheel:

And then they go to court and eventually it gets pointed out that the police caused no harm and they should stop bothering everyone because they're unhappy about how one of their mornings went.

The harm is the violation of a right. And while 99/100 of these kinds of cases might get thrown out, that 100th one is the one that keeps the police from searching your car or tapping your phone with no justification. That's how the law works -- somebody has to challenge the government.

People used to talk about Jehovah's Witnesses the same way you are talking about this kind of litigant. Now we thank them for forcing the government in the early 20th century to recognize First Amendment protections. Everybody is a troublemaker until they are right.
9.11.2008 4:19pm
jccamp (mail):
Dilan -

Considering that the suit dismissed was a 1983 action, doesn't the decision answer your legal question?
9.11.2008 4:20pm
Ben White (mail):
PC:


Could you point me to the part of the 4th amendment that says an illegal search is legal as long as it causes no harm?


I'm not arguing it was legal. I'm arguing it was the right thing to do. Perhaps you need to reread the original post?

If it were ruled illegal (which would be yet another step toward the end of our civil society and the emerging legalistic-antagonism-based society that is replacing it), then I'd expect Cady could collect $0 for the damages he suffered.

One would hope that would be $0 minus all the court costs and attorney fees for the officers so Cady might pay for his mistake and learn something about leading a responsible life -- but such hopes are fanciful.
9.11.2008 4:20pm
JohnCK (mail):
"I'm not arguing it was legal. I'm arguing it was the right thing to do. Perhaps you need to reread the original post?"

So it is okay for the cops to break the law? Further, why was it the right thing to do? What are the chances this person was going to harm anyone? In addition, if he really did mean harm, chances are he would have either ran or shot the cops as they approached. The search did nothing to improve the safety of the cops. They violated this person's rights and humiliated him to obtain a dubious reduction in risk.
9.11.2008 4:26pm
Joel Rosenberg (mail) (www):
I'm not arguing it was legal. I'm arguing it was the right thing to do.

What is your general rule, if any, for when agents of the government should be able to do something illegal with impunity when they -- or you -- think it's the right thing to do?
9.11.2008 4:27pm
Dilan Esper (mail) (www):
Considering that the suit dismissed was a 1983 action, doesn't the decision answer your legal question?

I thought the entire point of Professor Kerr was that the Court got its 4th Amendment analysis wrong. If it did, then it may very well be the case that the right Professor Kerr is discussing is actually clearly established, in which case you could get 1983 liability. Or maybe it isn't, in which case the Court should have found a 4th Amendment violation under Saucier v. Katz and held the officers were nonetheless immune from suit.

Maybe you think the Court got the Fourth Amendment discussion right, but that isn't what Professor Kerr is claiming. And I assume the man (who is a serious Fourth Amendment scholar) knows what he is talking about. If he's wrong, you should point to the cases that establish that.
9.11.2008 4:28pm
PC:
I'm not arguing it was legal. I'm arguing it was the right thing to do. Perhaps you need to reread the original post?


Which goes back to my original post about a nation of men, not laws. While harm may be factored in when determining monetary damages awarded, the fact remains that a law that is not enforced ends up being an ineffective law. If you think the police should be able to search someone outside of the limits of Terry then work to change the law. Allowing officers to break the law without repercussions disrespects the law and the police.
9.11.2008 4:28pm
hattio1:
Jccamp says;

Hanging on to the briefcase may be the most reasonable thing the cops did. They were not trying to deny its contents to the plaintiff. They thought, correctly, that they shouldn't allow Cady to possess something that might be used as a blunt instrument. Had Cady been carrying a croquet mallet or a metal lunch box, would it change your mind about this one issue?


No. They have guns. Once again, it's not Mr. Cady's duty to prove he's not dangerous (and how does knowing his name prove he's not dangerous anyway?). Let me ask you this, what do you think justified treating Mr. Cady as a danger, and what changed when they actually handed it back to him? Is everyone whose name they don't know a danger, or just those who are dirty and smelly? Believe me, the cops don't have a list of folks who are known to be safe, so all they knew at that point was that he did not have a record.

Let me ask you a question. If keeping the briefcase was reasonable for safety, what should they have done if his record showed an extensive history of assaultive behavior all with briefcases, but no current restrictions. In other words, no parole, no probation, no warrants etc? They would have had to give him back his briefcase. So why couldn't they do that BEFORE they knew who he was?

BTW, just to show how much your reaching...not all briefcases are hard objects. I've owned soft sided briefcases before. I didn't read the whole opinion, but I read the background info. They never say it's a hard-sided briefcase. Why are you assuming this even was a safety issue?
9.11.2008 4:31pm
jccamp (mail):
Dilan,

BTW, I agree completely with your original post ("the purpose of the Terry doctrine is to protect officer safety, not to permit a generalized search for anything the officers might wish to know.").

I just question whether that single act - looking for a name in the Bible - in and of itself and removed from what the cops did correctly, is a big deal.
9.11.2008 4:32pm
Joel Rosenberg (mail) (www):
I think it was the 14th Amendment Jerry Pournelle suggested that we should repass, with the sole change of adding, "... and this time we mean it!" but I think maybe the 4th should be added to the list.
9.11.2008 4:34pm
jccamp (mail):
"Why are you assuming this even was a safety issue?"

OK, why else would they take the the briefcase? They had already looked in it. And unless your briefcase is a Nerf case, I bet some one could be hurt if he/she was hit with it.

Actually, what happened was that Cady finally told the police who he was and why he was there. They verified his identity and that he was not wanted, and instructed him on the correct procedure for serving process. One the police established who he was and why he was there, obviously, their suspicion abated and they released him.

In the end analysis, according to the courts and the law of the land, the officers acted properly. Stop thinking about other cases which may or may not be proper police conduct, and focus on this narrow case. The cops just did their job.
9.11.2008 4:43pm
Fub:
jccamp wrote at 9.11.2008 2:39pm:
And finally, I'd like to repeat myself. Can anyone suggest a reasonable alternative to what the cops did? I see only one response, which says "shrug their shoulders and leave, because in hindsight..." No, you don't get to refer to hindsight. Know what the cops knew, and tell me what to do.

Not all that simple, is it?.
Too simple.

Page 2, FN 2:
2 Officer Lucio was alerted by court services officers that a suspicious individual was found lurking in the bushes outside of the courthouse, and was refusing to cooperate with court services officers' questioning.
Yet when Officer Lucio arrived, Mr. Cady was not "lurking". In the words of the court:
Cady walked back and forth between the outer and inner sidewalks on the east side of the courthouse, the latter of which was obscured by bushes and was not often used by the public.
Walking around in public view is not lurking. Lurking, for criminal law purposes involves concealing oneself and lying in wait to commit a crime. Mr. Cady was doing neither. He was visible in a place where he had a perfect right to be, and for a lawful purpose, even though some police might want that sidewalk to be their own exclusive turf.

So, Rule 1: A reasonable police officer should not take the word of a fellow cop as gospel truth when your own eyes tell you he was exaggerating or lying.

From the facts on page 2:
Defendant Lucio approached Cady at approximately 6:40 a.m.2 Officer Lucio asked Cady why he was at the courthouse, to which Cady responded that he was a federal process server. Officer Lucio requested identification, but Cady refused. The conversation proceeded with officer Lucio under the impression that Cady was claiming to be a federal officer,...
Rule 2: Don't jump to unreasonable conclusions without asking obvious followup questions. Cady was honest if semantically ambiguous in stating that he was a "federal process server". That is, he was actually there to serve process in a federal case. A simple followup question would have clarified, such as "Are you here to serve process in a federal case?" Any reasonable person would have answered that question. Probably even Cady. But Cady wasn't asked.

I think it was reasonable to take Cady at his word, but the police didn't. They also conveniently didn't ask to see the federal papers he claimed to be serving, or even ask if he was there to serve process. They actively fed their imaginations by ignoring every reasonable alternative. They actively misinterpreted his words by not asking for clarification. They were obviously trying to bootstrap reasonable suspicion by jumping to the foolish conclusion that he was "impersonating a federal officer".

So, Rule 3: Don't behave like a jackass when questioning civilians just because you can get away with it.

From Page 3:
Cady's briefcase was returned to him and he was sent off with information regarding the correct procedures for serving a summons on a Cook County Sheriff's officer.
Nowhere in the narrative recited by the court did it state that the officers actually found the summons or other papers to be served. That convenient omission indicates that the court wasn't particularly interested in the truth either. Yet the same officers magically intuited that Cady was in fact there to serve a federal summons, because they told him "the correct procedures". So, either the officers omitted informing the court that they had found the federal summons, or the court disregarded that fact as irrelevant, or they didn't find the papers.

So, Rule 4: Don't shade testimony to hide facts, even if the court is willing to overlook those facts. That way the officer can at least say that he was honest and told the whole truth but the court disregarded it.

What would I have done?

After Mr. Cady said he was a "federal process server", I would have said "Thanks. So, are you here to serve process in a federal case?"

If Cady had declined to answer or begun arguing about some law, I would have told him very straightforwardly, "A courthouse police officer just called us and said you were lurking suspiciously. I don't think you're lurking suspiciously, so if you can show or tell me anything that indicates you're actually here just to serve federal papers, I can tell those courthouse clowns they're full of bull and not to bother you or me about it again."

That puts the officer on the civilian's "side". The officer just wants to do justice and abide by the law. Civilians can tell the difference between that an an overbearing power trip. Chances are good that any honest civilian would produce the federal papers willingly.

Police have enough trouble because civilians think they're power-tripping bullies. It doesn't help police to behave in a way that removes all doubts about it. I've seen bus drivers handle totally raving crazy people far better than the police dealt with Cady.

Reading this case made me suspect the police were actually thinking "This guy is probably here to sue a brother cop. Let's show him who's boss."
9.11.2008 4:43pm
Ben White (mail):

The harm is the violation of a right. And while 99/100 of these kinds of cases might get thrown out, that 100th one is the one that keeps the police from searching your car or tapping your phone with no justification. That's how the law works -- somebody has to challenge the government.


Not when no harm is done. Rights descend from the right to be free and to be left whole and unharmed. It's not a game of pushing the envelope and causing as many problems as you can get away with.

You are basically saying that we can never have a society. If you do the right thing, but there's a rule against it, you'll be punished. Because rules triumph over right and wrong and justice is the alleged motive (the sales pitch) for the rules -- never to be confused with the result of the rules.

And there's lots of money in it for people who can memorize all the rules and be careful to exploit them for maximum gain without producing anything or sparing a thought to the consequences to others.
9.11.2008 4:48pm
GW Crawford (mail):
There was a routine on a British comedy show, 'Not the Nine O'Clock News', where a police officer is being questioned about an arrest he had made earlier that day.

Chief: So you charged him with, and I quote, "wearing a loud shirt in a quiet neighbour hood"
Constable: Yes.
Chief: You then also charged him with 'having tight, kinky hair and large lips'
Constable: Yes
Chief: Were you aware that the person in question was black?
Constable: No, sir.
Chief: Okay then. Off you go!
9.11.2008 4:48pm
David M. Nieporent (www):
And finally, I'd like to repeat myself. Can anyone suggest a reasonable alternative to what the cops did? I see only one response, which says "shrug their shoulders and leave, because in hindsight..." No, you don't get to refer to hindsight. Know what the cops knew, and tell me what to do.
Well, here's one thing: if you're claiming that you're acting out of a question of safety rather than a desire to harass someone, then don't go around reading his bible under the pretense of searching for weapons.

The stop itself may have been reasonable. A frisk may have been reasonable. That's all the law allows. (They were free to stay there and watch him, if -- despite the lack of any evidence of a crime, and lack of weapons -- they really thought he was a threat.)
9.11.2008 4:51pm
hattio1:
jccamp,
Okay, you answered one question (why you were assuming it was a safety issue). Thank you, I'll get back to that in a moment.

But you failed to answer a more involved and more particular question. What should they have done if he had no warrants, probation, parole, other legal restrictions and yet had a long, violent history of assaultive behavior all with briefcases.

As to your answer to the first question, I wasn't clear when I asked the question. Why do you assume that retaining the briefcase after searching it and finding it didn't contain a weapon was a safety issue? Your answer will probably be the same; ie. why else would they keep the briefcase? But that's just circular. Professor Kerr made a pretty convincing argument that taking the briefcase in the first place was about finding his identity, not officer safety. And I think that argument is even more convincing when applied to the narrower question of why they kept the briefcase.

But, there's another likely answer to your question. Quite a few people will do what they can to be a pain in someone else's ass whenever it costs them nothing. That' human nature for some (unfortunately, relative large) percentage of humans. Cops are humans. I'll leave the asides about whether more of these people become cops, or whether this attitude bleeds over to good folks who become cops for all the right reasons.
9.11.2008 4:53pm
Brett:
See the part about where the police caused no harm.

Except, you know, how they violated the man's right to be secure in his person, papers, and effects.

Details, details.
9.11.2008 4:55pm
PC:
Not when no harm is done. Rights descend from the right to be free and to be left whole and unharmed.


Could you further explain where this concept of no harm comes from? If the police were to search your house everyday while you were away at work, but were careful to make sure everything was put back in its place, would that be justifiable by your no harm rule?
9.11.2008 4:55pm
Oren:

The Constitution is not an excuse and was not written to give you the power to be hover around buildings acting antisocial.

Fact checking is essential. As it happens, the Constitution protects exactly that.

Lawyers need to start caring about right and wrong once in a while instead of "within the rules" or "against the rules".

The problem with this, of course, is that everyone thinks that they are right and the other guy is wrong -- nobody says "I'm the bad guy, he's the upright citizen". Of course, the other guy says the same thing -- we've gotten nowhere in terms of finding a viable way of solving real problems.
9.11.2008 5:03pm
Kent G. Budge (www):

Any ideas why they looked through the Bible, opening it up to the cover page where a name might be? What, did they think Cady had a very thin gun tucked in the cover page?


In fairness, hollowing out a thick book to conceal a small pistol within it is not unknown, if rather uncommon.

http://en.wikipedia.org/wiki/Concealing_objects_in_a_book
9.11.2008 5:18pm
Ben White (mail):

As it happens, the Constitution protects exactly that.

And I made no statement about what the Constitution "protects". It has been interpreted to "protect" lots of things. It can be argued to "protect" anything and everything (or nothing).


we've gotten nowhere in terms of finding a viable way of solving real problems.


What the police did was viable and solved the problem without creating any new problems. But you seem to want to create a new problem for them by punishing them in some way -- causing them actual harm as a response to the lack of harm they caused Cady.

Maybe they should be punished with having to talk to police officers for 30 minutes and having to give their names out.
9.11.2008 5:18pm
Wince and Nod (mail) (www):
Goodness gracious. Look, mentally ill people are more dangerous than people who aren't. People have the well developed ability to figure out, via intuition - another word for rapid pattern matching - when another person is dangerous. This is generally done via behavior. Odd dress, lack of personal hygene and paranoia are some the things a reasonable person might immediately use to determine whether a man was dangerous. (Why do you think the movies use all three as visual clues for dangerousness?) Mr. Cady exhibited all three. It's as if you never heard of Gavin De Becker.

It's certainly true that everyone has the right to act mentally unstable. But Clayton Cramer would be glad to point out how deinstitutionalization has made everyone less safe, including those whom it was supposed to help.

This is a case of balancing of rights, as usual. You feel less safe because police officers can question and search you. OK, so do I. Cops are dangerous. I also feel less safe because there are mentally unstable people, often with treatable illnesses, wandering around. Do you?

Depolicing is a real problem, as well.

Let's see some balance between the competing rights. Oh, wait. The court did do some balancing, and found Mr Cady was not sufficiently harmed.

Yours,
Wince
9.11.2008 5:20pm
Ben White (mail):
Brett:

The court disagrees. Why do you quote one rule and then ignore the other rules that explain why this one was not violated?

"You are wrong because you are wrong" is not an argument.

(And your statement completely misses the point I was originally making anyway...)
9.11.2008 5:24pm
David M. Nieporent (www):
This case is a good example of the difference between lawyers and the rest of society. The Constitution is not an excuse and was not written to give you the power to be hover around buildings acting antisocial.
The Constitution was written to give you the power to do anything you want, unless it violates a specific law. That you don't understand this is quite sad. In a free society, everything which is not explicitly forbidden is permitted; it's in a totalitarian society that your reverse version applies.
9.11.2008 5:30pm
David M. Nieporent (www):
What the police did was viable and solved the problem without creating any new problems.
Uh, isn't this backwards? What the police did solved no problem, because there wasn't one, and did create a new one -- for Cady.
But you seem to want to create a new problem for them by punishing them in some way -- causing them actual harm as a response to the lack of harm they caused Cady.
Being detained is a harm.
9.11.2008 5:37pm
Oren:
For the record, I don't think that was an egregious case. Certainly within the bounds of qualified immunity and all that. That said, Cady should have just shut his mouth -- you don't argue the Constitution with police any more than you debate your tax liability with an accountant.
9.11.2008 5:41pm
Ben White (mail):
PC:

People lead actual lives where they make decisions to do things or not. You are saying that every decision anyone makes in interacting with (or failing to interact with) someone else requires many hypothetical test cases to determine the precise, limited principle that forms the basis of the specific choices.

Example:

I see a co-worker.

Do I say "Hello"? Let me think. What if I said "Hello, you look nice." Would that be acceptable? Who might disagree? Should I do a legal search? What if I said "Hello, I think you look nice?" Would that be OK since it's just an opinion?

Maybe I should get a lawyer to draft a greeting I could recite. Hmm. I wonder why life is so bad and everyone's so lonely and our society has become so divisive and polarized.

Oh, there she goes. I missed my chance to talk to her. I hope she wasn't offended when I didn't offer a greeting. I should talk to a lawyer and ask about my liability exposure in case she is.


People lead actual lives.
9.11.2008 5:42pm
Joel Rosenberg (mail) (www):
Yup; people lead actual lives; having uppity servants interfere with actual lives doesn't make them better, particular when the uppity servants have badges and guns.

I'm unfond of the notion that if cops aren't free to detain and frisk folks as they please, regardless of the reasons, that we'll be subject to the horrors of "depolicing;" it doesn't make a lot of (well, far as I can tell, any) sense.
9.11.2008 5:50pm
PC:
You are saying that every decision anyone makes in interacting with (or failing to interact with) someone else requires many hypothetical test cases to determine the precise, limited principle that forms the basis of the specific choices.


No, I am saying that the police, under the color of authority, have a duty to weigh their actions and whether those actions are legal or not. Due to the power we entrust in police officers they should be held to a higher standard than your average non-law enforcement agent. Besides, ignorance of the law is no excuse, donchyaknow?
9.11.2008 5:53pm
Wince and Nod (mail) (www):
The Constitution is not an excuse and was not written to give you the power to be hover around buildings acting antisocial.
The Constitution was written to give you the power to do anything you want, unless it violates a specific law. That you don't understand this is quite sad.

Like the laws against loitering and disorderly conduct. I think if you review the actual laws legislative bodies were passing at the time the Constitution and the various amendments were ratified you will find out that the U.S. was never a libertarian paradise. Officers were allowed far more latitiude in both 1800 (post Bill of Rights) and 1880 (post 14th) than they are now.

David, I understand your point quite well. Is the balancing of competing rights (right to take reasonable steps to protect yourself and others vs right to be free of unreasonable search and seizure in this case) such a difficult concept? I know it is hard to practice, but is it so hard to see?

Yours,
Wince
9.11.2008 5:59pm
Wince and Nod (mail) (www):
Joel Rosenberg,

that we'll be subject to the horrors of "depolicing;" it doesn't make a lot of (well, far as I can tell, any) sense.

Only to someone who has not studied police behavior (and the resulting increases in crime rates) in places where officers are not supported by the local power structure. Feel free to continue to point out the problem of over policing which occurs when the police are given too much latitude. It's a real problem which makes sense and causes real harm, as you have poined out. But sticking your head in the sand won't make the problem of depolicing go away. It's also a real problem which makes sense and causes real harm.

That's where the difficult balancing act comes in.

Yours,
Wince
9.11.2008 6:06pm
David Chesler (mail) (www):
whit says: they would rather see me (officers) do a frisk and get it suppressed than not do a frisk and get shot.

What about the other possibilities? In particular, where does "not do a frisk and not get shot" fit into that spectrum? What are the odds that a frisk will stop you from getting shot? How many frisks that don't do anything to keep you from getting shot are justified by those odds?
9.11.2008 6:19pm
ejo:
actually, officers do get to rely on information relayed to them by others in the 4th Amendment context. certainly, the extent to which they do so changes based on the nature of the information relayed and the source. that same courthouse is a public building but I have to go through security when I go there. was the conduct reasonable? sure seems like it under the totality of the circumstances.
9.11.2008 6:23pm
Joel Rosenberg (mail) (www):
Wince: apologies for my apparent lack of clarity. I'm not suggesting it's not a problem when police officers, for whatever reasons, choose not to do their jobs; I am suggesting, as clearly as I can, that the treatment (including preventative prophylaxis) for that problem need not -- and should not -- include anything approximating a blank check for misbehavior, even when (as in this case) it's historically minor misbehavior.

whit: I don't want you to get shot, either. Pinky swear. That said, while you don't take the risks that cab drivers, stop'n'rob operators, and/or truck drivers do, I do want you to follow the law, and not act beyond the scope of the authority that the Constitution (and less important laws) give to you while you're on the job, and voluntarily undertaking a real (albeit small) risk of getting hurt or killed.

And I'd really, really rather you not go to all the trouble to arrest a dangerous person who actually has committed a dangerous crime, and then have the evidence of that crime tossed because you broke the law, for reasons that I do hope are obvious; seems like a bad thing to me.
9.11.2008 6:40pm
Alcyoneus (mail):
An interesting point has gotten lost, both in the discussion and in Mr. Kerr's post.

It's not surprising at all that Cady lost his lawsuit. He is a repeat pro se litigant in the Seventh Circuit — what the Seventh Circuit called "an extremely experienced pro se litigant." (Kerr)

Apparently, even the courts have a problem with citizens using their rights to the fullest. Is it only the professional legal class that can litigate in the courts? No.
9.11.2008 6:41pm
Mars vs Hollywood:
Apparently, even the courts have a problem with citizens using their rights to the fullest. Is it only the professional legal class that can litigate in the courts? No.

So is there no point at which a person who files repeated and (I'm gonna go out on a limb here) frivolous lawsuits damages their credibility before the court?
9.11.2008 6:48pm
D Palmer (mail):
If Mr, Cady had been asleep on a park bench, or even just walking past the courthouse, I would agree that the search was unreasonable.

However, that isn't the case here. The police outside a courthouse, a place where violent people come and where violent retaliatory acts happen, saw a disheveled man carrying a briefcase walking back and forth outside the building.

Given the nature of the building and the hightened awareness that is, and should be, applied in this location, the officers quite reasonably approached the man and asked him who he was and why he was there. A question easily answered by: "I am Davy Cady and I am here to serve a summons." With that answer, the cops should have gone back to being vigilant, and left Mr. Cady alone.

Instead he was evasive and argumentative. At which point he elevated his status as a potential threat. A potential threat who also happened to be carrying an object that could easily contain a weapon. The police reacted appropriately to determine that Mr. Cady was not infact a threat.

The Cook County and Chicago police are not, unfortunately, known for their honesty. I have served on 2 juries in Cook County over the past 18 years. The first time, when I was in my mid 20's, I voted to convict based almost solely on the testimony of a police officer. Were I faced with that decision again today, in my early 40's, I would almost certainly vote to acquit as local law enforcement has destroyed the automatic trust and deference I used to give them. I say this so that other commenters don't think I am a police syncophant or appologist.

Mr. Cady's actions may simply have reflected poor treatment he has received from law enforcement in the past. So I am not inclined to judge him harshly for choosing the path he did. But in that place at that time, I think that actions taking by the police were reasonable and not unconstitutional.
9.11.2008 6:56pm
Alcyoneus (mail):
What the police did was viable and solved the problem without creating any new problems. But you seem to want to create a new problem for them by punishing them in some way -- causing them actual harm as a response to the lack of harm they caused Cady. Maybe they should be punished with having to talk to police officers for 30 minutes and having to give their names out. (Mr. White)


You know, I agree with you. So, next time you write a speeding ticket remember that the driver wasn't really "creating any new problems" and perhaps solving one in his "real life."

People apply pedantic standards to the police because police apply pedantic standards to everyone else. Call us everyday citizens crazy: we don't like the government (cops)giving us the runaround.

I wasn't being ironic. I really don't think the police acted wrongly. But police bring upon themselves the pedantic scrutiny under which you are now bristling.

I will say that there is a slippery slope here. If cops can roust citizens on little things, it can easily escalate into big things. So there is some value in keeping up the pedantic scrutiny. Police have the unique authority to use "overwhelming force" not just defensive force. Cops can legally beat people and throw them in cages.

I guess being put into a cage is no big deal for Mr. White, since he says Cady has no standing for damages. Since I think Mr. White would find being caged a rather damaging experience, I suspect he's not being entirely honest. Let's dangle some handcuffs in his face and see how he reacts.
9.11.2008 6:59pm
Ben White (mail):

Being detained is a harm.


Having a 20-30 minute conversation in a public location where you are already standing and waiting is hardly "being detained". If it is, then this is the exception to "being detained is a harm", because there was clearly no harm.


The Constitution was written to give you the power to do anything you want...


You have the power "to do anything you want" already, Constitution or no. (It's just a question of getting away with it.) The Constitution doesn't turn antisocial behavior into a virtue.
9.11.2008 7:00pm
Alcyoneus (mail):
So is there no point at which a person who files repeated and (I'm gonna go out on a limb here) frivolous lawsuits damages their credibility before the court? (MArs)


As a practical matter, yes. But courts are obligated to consider each case on the merits. We currently have a court system that is constructed by and for an elite class: lawyers. This is unethical, unconstitutional, and undemocratic.
9.11.2008 7:05pm
Alcyoneus (mail):

Having a 20-30 minute conversation in a public location where you are already standing and waiting is hardly "being detained". If it is, then this is the exception to "being detained is a harm", because there was clearly no harm.

He was searched in public (that's humiliating and therefore a harm), and he was threatened with physical coercion by the police (that's scary and a harm) and he was threatened with being caged (that means more than 20-30 minutes of detention was at play).

It's not nearly as clear as you say.
9.11.2008 7:08pm
Kent Gatewood (mail):
I would be willing to hand my driver's license to the officer, but as to revealing my reason for being in the location, no. Lying is not an option, because it is a crime and wrong. But speaking to an officer opens me up risk; therefore, I should remain silent.
9.11.2008 7:18pm
Ben White (mail):
Alcyoneus:

I am not a police officer.

I don't think the police should write speeding tickets for exactly the reason you describe: they're basically stealing (or at least taking) money from people who are minding their own business.

The speeding rule is an example of yet-another rule. I object to people being ruled (by laws OR men) when their actions are innocent and reasonable. The cops were acting like normal people might act. Speeders are acting like normal people act. But nevermind that, there's money to be made writing, enforcing, and interpreting rules.
9.11.2008 7:20pm
Wince and Nod (mail) (www):
I'm not suggesting it's not a problem when police officers, for whatever reasons, choose not to do their jobs;

Good. The problem occurs when someone stands over our police officers and second guesses everything they do. That's called micromanagement, and it causes everyone (not just police) to stop doing their jobs. And yes some of the commenters here sound like sterling micromanagers.

Hmmmm. ... anything approximating a blank check for misbehavior ... We aren't even close to anything approximating a blank check for misbehavior, especially in this case, where there was no misbehavior. Applying that sentence to this case is ridiculous hyperbole. We are better off finding out better ways to detect and punish real misbehavior - which we know exists - than systematically troubling officers with cases like this one. Allowing Mr. Cade his lawsuit sounds like a reasonable amount of scrutiny. He's had his day in court as is his right - good - he lost - also good. BTW, did anyone notice the chilling effect of this lawsuit on proper police misbehavior?

Maybe they should be punished with having to talk to police officers for 30 minutes and having to give their names out.

Well, weren't they forced to give depositions, rehearse their testimony till it came out their ears, go testify in court and be grilled by an aggressive lawyer, etc., etc.? When did that become a enjoyable? I'd say it would be worse than what Mr. Cady went through!

Yours,
Wince
9.11.2008 7:26pm
Joel Rosenberg (mail) (www):
Good. The problem occurs when someone stands over our police officers and second guesses everything they do. That's called micromanagement, and it causes everyone (not just police) to stop doing their jobs. And yes some of the commenters here sound like sterling micromanagers.

Geez, I wish. Lately, locally, I'd just settle for a little embarrassment about a dozen of them shamelessly and shamefully confusing a 21-year-old unresisting girl with either a dummy mace target or a pinata.

With a little less heat: having the employer second-guess the employees' job performance -- or lack thereof -- is just one of those minor indignities that the employed really ought to suffer with just a little equanimity. When -- all too rarely in police work, with any effect -- it actually happens.

Kind of amazing, really: two of the most privileged classes in our society -- tenured college/university professors and police officers -- have almost (or not almost) preposterous latitude in how they do their jobs, and many members of both classes, and their kneejerking supporters, bitch endlessly about how little freedom they have.
9.11.2008 8:13pm
Oren:

Having a 20-30 minute conversation in a public location where you are already standing and waiting is hardly "being detained".

Except he wasn't free to leave, which makes it absolutely a detention. It's not even a close question: not free to leave = seized.
9.11.2008 8:20pm
David Schwartz (mail):
Once, when I was a much younger man, I (along with several other people) was asked for ID. I elected to provide it, since I was doing nothing wrong and nothing to hide. Nobody else did. Guess who got charged?

The crime, "failure to present a certificate of tax authority". The circumstances? I was sitting on a chair talking to a friend. Yes, that's all I was doing.

Did I have a certificate of tax authority? No. Is one required to sit in a chair that happens to be behind a booth at a flea market? Not to my knowledge. (Maximum penalty? One year in jail. $10,000 fine.)

So why don't people want to give their name to police? Because if we walk away without him knowing who we are, he can't make our lives miserable.
9.11.2008 8:25pm
ohwilleke:
It seems to me that there ought to be both a 4th Amendment right and a takings clause right in these circumstances.

In any case where there is a search and nothing is produced by that search, the government has deprived you of your time and for a limited time, your property, without your permission, and should be required to provide just compensation, even if there was a reasonable suspicion or probable cause for the search. In a case like this one the damages on a takings clause theory would be nominal, but innocent search victims should be entitled to some remedy for what they are required to endure (which can sometimes be far, far more disruptive, e.g., in cases of subpeona's directed at innocent non-parties).
9.11.2008 8:40pm
Milhouse (www):
jccamp, you yourself admitted that to make a Terry stop the police must be able to "articulate a reasonable suspicion that a crime has occurred or may occur". In this case we are specifically told that Cady asked Barbat whether "Barbat was making a Terry stop, and if so, what crime he suspected Cady was committing, was about to commit, or had committed," and Barbat could not do so. It would seem therefore that you have just admitted that the stop was not lawful, and therefore neither was the search that followed. QED.
9.11.2008 8:46pm
Mars vs Hollywood:
Cady asked Barbat whether "Barbat was making a Terry stop, and if so, what crime he suspected Cady was committing, was about to commit, or had committed," and Barbat could not do so.

Where are you getting that? There's no indication in the post as to what Barbat's response was.
9.11.2008 8:55pm
Ben White (mail):
Oren:


Except he wasn't free to leave, which makes it absolutely a detention. It's not even a close question: not free to leave = seized.


By that standard, any conversation with police officers in public is "seized". Walking away after a police officer says "Hello" certainly seems suspicious. Why are you trying to flee? Are you trying to hide something?

So you can't walk away without worrying about escalating the situation to where you might actually be detained and/or searched. So you're effectively detained already, as soon as a officer says "Hello".

And that's a "harm", apparently.
9.11.2008 9:19pm
Oren:

By that standard, any conversation with police officers in public is "seized". Walking away after a police officer says "Hello" certainly seems suspicious.

That's why you ask "Am I free to leave?" -- it forces the officer to either release you or admit that he's seizing you. I've used it to great effect on a number of occasions.
9.11.2008 9:25pm
Seamus (mail):

Still, as a matter of law, the court's explanation strikes me as incredibly lame. I can perhaps see the case for detaining Cady temporarily in light of the strangeness of his appearance and the unusual time and place. But what facts justified frisking Cady, rummaging through his briefcase, and finally taking away his briefcase for the duration of the questioning? What was the threat to officer safety? Invoking your constitutional rights doesn't pose a threat to officer safety. Nor does asking an officer to clarify if he has seized under the Fourth Amendment you pose a threat. Acting like a lawyer doesn't mean you have a gun or a knife.



You don't understand. He was failing to respect the authority of the police. That makes him an inherently dangerous person. A smartass like that is a potential terrorist. The police were right to fear for their safety, maybe even their lives.
9.11.2008 9:46pm
Oren:
You should really do a better job distinguishing the authority (auctoritas) of the police with their powers (potestas). Good police officers effortlessly exude the former, the others make up for their lack with an excess of the latter.
9.11.2008 10:20pm
Joel Rosenberg (mail) (www):
By that standard, any conversation with police officers in public is "seized". Walking away after a police officer says "Hello" certainly seems suspicious.

Why would that be? Is it suspicious activity to not interrupt one's day to engage in a conversation?

I'm trying to understand this. Where I live, there's often quasi-off-duty cops working a Target, liquor stores, and such, and from time to time, one of them says, "Hello" as I walk by. Polite fellow that I am, I often wish them a nice day, and proceed on my way, but if I'm not in a mood to, and just continue on my way, on what basis would that be suspicious?
9.11.2008 10:26pm
Oren:
Sorry, hit "post too soon". The whole thing should read:

You should really do a better job distinguishing the authority (auctoritas) of the police with their powers (potestas). Good police officers effortlessly exude the former, the others make up for their lack with an excessive display of the latter.

It is grammatically impossible to "fail to respect authority" because, by definition, authority is the quality of attracting respect and moral weight. Insofar as someone is not being respected they have, by definition, no authority. That is not to say that they do not legitimately wield the power of the state -- they certainly do -- no one has realistically ever claimed a system of government that works solely out of respect for authority.
9.11.2008 10:27pm
Oren:

Polite fellow that I am, I often wish them a nice day, and proceed on my way, but if I'm not in a mood to, and just continue on my way, on what basis would that be suspicious?

It wouldn't. The point is that when you are actually engaged in a non-trivial conversation with an officer of his instigation (e.g. he stops you to ask what you are doing) that he might not readily consent to you walking away. Clearly in the instant case, the plaintiff was seized for fourth amendment terms (the defense stipulated to that effect) -- the only question was whether the seizure qualifies as "reasonable" under the 4A.
9.11.2008 10:29pm
jccamp (mail):
Millhouse -

"It would seem therefore that you have just admitted that the stop was not lawful, and therefore neither was the search that followed. "


Prof Kerr, in the OP, seems clear himself that the initial stop was legitimate. He draws the line at the frisk and briefcase search. As for what Cady asked the officers, we have no transcript of the conversation. There's nothing in the record that the officer could not (or even did not) answer. I have not admitted any such thing as you assert.

Hattio -

I presume the briefcase was removed and placed in safekeeping for reasons of safety. One of the officers decided Cady was probably unbalanced, and holding a large object in his hand. I say this from personal experience, and also because there does not appear any other reason for the officers to do so. If there is some (hypothetical) nefarious reason, I'd be pleased to consider it.

As for the issue of Cady (again, hypothetically) having no arrest warrants but having a history of attacking cops with briefcases, the officers would do what they did here. They would consider the totality of circumstances and act accordingly. Prior arrests are not necessarily predictive of future behavior, but the officers would ignore a violent history at their own peril. Say, instead, they discovered Cady had a history of threatening harm to federal judges. Do you agree that might change things, insofar as determining why Cady was there at 6:00 in the morning and whether he was a genuine threat?

As for the cops arbitrarily harassing Cady, as you suggest, why would you assume such a thing? They stop a man who is found in suspicious circumstances, albeit what the cops only later determine to be legal circumstances. They ask him to identify himself and he claims to be a "Federal process server" which is patently false (you know, a lie), especially given his physical condition. He refuses to cooperate further. The police pat him down - not search him, there's a difference - and look in his briefcase to make sure he has no method of harming anyone. One of the cops opens the flyleaf of the Bible looking for a name, since Cady won't even provide his name, let alone the purpose of his being in a business hours location at 6:00 AM. That single act of opening the Bible strikes me as the solitary shaky action in the entire incident. Cady was released unharmed and un-arrested with all of his property. Four officers, who should have been handling traffic accidents in rush hour, or responding to emergencies, were instead standing around with someone suffering from mental defect, who decided to bust their chops and make things difficult.

I'd add two things: four different Federal judges agreed that the cops did no wrong. There wasn't even a dissenting opinion from the appellate judges. Although lots of people here disagree, as a matter of settled law, the cops acted correctly. In that sense, my opinion is really meaningless.

Next, given the number of widely publicized occurrences of genuine police wrongdoing, either from bad faith or incredibly stupid actions, why are we beating this to death?

Any person should have the expectation that an officer can't approach one and demand identification or explanation of presence...unless the officer has an articulable reasonable suspicion, as in this case.

If Cady was wandering back and forth in front of your house at 3:00 AM, looking and appearing like a mental case, sometimes walking into areas of a public sidewalk where he could no longer be seen because of shadows or vegetation, do you think your wife or kids might get scared and call the police? Would you really like the cops, under those circumstances, to ignore the call? To stop the fellow, only to be told "None of your business" or similar, and have the cops then leave without further investigation?
9.11.2008 10:33pm
Neshobanakni (mail):
Judge Williams says that we now live in a dangerous world, and that "perhaps if we were in a pre-9/11 world, we would have a different case."

This happened prior to 9/11, so it was a pre-9/11 world. If having grubby clothes and not showering is now a crime, a lot of us are in trouble (though I shower at least once a month, whether I need it or not).

Oh, and, E.H., Joliet has been closed for many years now. But the pepper steak lives on.

Tom on the rez.
9.11.2008 10:34pm
jccamp (mail):
Oren is correct. This definitely was a seizure under 4th A terms. He frames the issue correctly.
9.11.2008 10:36pm
jccamp (mail):
Great post from the Professor. I'm not sure anyone was able to change anyone else's mind or opinion, but with all of the posts flying hither and yon, there was a refreshing lack of personal insult and nasty talk.

Good for us all. Thanks.

JC
9.11.2008 10:42pm
Oren:
OT (but this discussion is about dead anyway), but this was pretty cool. I can imagine the outrage from whit if his dept joins the program.
9.11.2008 11:48pm
jccamp (mail):
Yikes! We keep this up, and the only place one will hear smart-ass repartee and witty come-backs will be cop/buddy/Bruce Willis movies.

Example:
"I'm being arrested??? What's the charge?"
"There is no charge, sir. This is your tax dollar at work."
9.12.2008 12:06am
sassr:
Good post, Orin.
9.12.2008 12:16am
Jay Myers:
whit:

fwiw, i have had defense AND prosecuting attorneys tell me that (among other things) regardless of whether a frisk is constitutional (as determined later) , they would rather see me (officers) do a frisk and get it suppressed than not do a frisk and get shot. iow, i have had both sides admit that.

I'm sorry, whit, but I would rather see cops die than have police officers decide that they can violate people's constitutional rights whenever they feel they have good enough reason. Having the results of the illegal search thrown out doesn't even begin to correct the damage. That would be like saying that an abortion completely wipes out the violation of a rape.

I would also rather see Americans die in terrorist attacks than to see the government erode our freedom. There is a reason those rights were added to the constitution. It was to keep governments and their agents from usurping powers that they were not granted and ignoring limits that we had placed on the powers they were given.

The rule of law means that the law must be obeyed by all, especially the government. When cops decide to make illegal stops, searches, and seizures they stop enforcing the law and become themselves lawless.
9.12.2008 12:28am
inmypajamas:
A guy with no ID and a briefcase outside a public building, pacing back and forth. What in the world could possibly interest the police about that? If he did have a bomb or weapon and the cops let him enter the building, how much more concerned about the Fourth Amendment would you be after he killed 10 people?

From my decided unlawyerly perspective, I think the guy was a jerk looking to pull someone in to his crusade. He deliberately chose not to carry ID and to be difficult. He will probably have a great career at the ACLU.

I would also rather see Americans die in terrorist attacks than to see the government erode our freedom.


Wow, I really don't know what to say to that except I'm sure glad you're not in charge of anything important.
9.12.2008 1:04am
David M. Nieporent (www):
Having a 20-30 minute conversation in a public location where you are already standing and waiting is hardly "being detained".
A police interrogation -- with you being frisked, having your property seized, and being ordered to put your hands behind your back so the police can arrest you -- is hardly a "conversation."

You have the power "to do anything you want" already, Constitution or no. (It's just a question of getting away with it.) The Constitution doesn't turn antisocial behavior into a virtue.
Walking around in a public place is not "antisocial behavior." I think you're confused here; it was the police who engaged in antisocial behavior.
9.12.2008 1:29am
one of many:
OT (but this discussion is about dead anyway), but this was pretty cool. I can imagine the outrage from whit if his dept joins the program.

You need a tamper-proof 12 hour recording (to cover long shifts) with no ability to be shut-off by the officer for it to be really useful as intended, but I doubt that police would or should accept that level of violation of their civil liberties.
9.12.2008 1:42am
Jon Roland (mail) (www):
Snaphappy Fishsuit Mokiligon:

Let me guess: Somehow your theory that nobody has to have a name somehow means you don't have to pay federal income tax. Am I right?

No. Whether a person owes a tax has nothing to do whether he has a name. The law is about substance, not labeling. But, of course, for the IRS your name is your SSN. They don't care about the name your parents might have called you.
9.12.2008 2:00am
Jon Roland (mail) (www):
OrinKerr:

The text of U.S. and state constitutions are sufficient. You will not find in any of them a provision that requires anyone to have a name, or that prohibits anyone from changing his name, or from using any name for anyone else.

Jon Roland, I hate to point out the obvious, but there is a difference between the Constitution permitting something and banning something. The fact that the Constitution doesn't require someone to have a name doesn't mean that states can't impose laws here. Indeed, the opposite is true. Remember that the Constitution includes the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

It is indeed obvious, but just because the Tenth Amendment reserves powers to the states or the people doesn't mean it delegates the power to the states. Read my words carefully. I included both U.S. and state constitutions, and you will not find such authority in any of the state constitutions, or even in any of their police power statutes. Even the Nevada statute that gave rise to Hiibel did not require anyone to have a name. It only required a person to "identify" himself, which could be done in many ways without having a name.
9.12.2008 2:09am
Jones:
Joel Rosenberg (9/11 1:45pm), thanks for filling in some specifics re consequences to cops of violating the 4th. My understanding of such consequences is limited to the 100,000 ft. view, though that view is pretty telling.

Whit (9/11 2:00pm), I agree law enforcement shouldn't be greatly imperiled in marginal cases where constitutionality is quite unclear. But it should be for patterns and habits of obviously unconstitutional behavior, e.g. "search all the cars." A supervisor or lawyer who says that should be viewed as unqualified for any law enforcement role in a free society.

My argument is that near-universal worship of the exclusionary rule within the legal community has led 4th A. law, over time and quite predictably, to neglect other disincentives/consequences for unconstitutional behavior. This leaves criminals with effective recourse (suppression of evidence), but leaves the innocent damaged. At further risk of thread-jacking, I'll add that constitutionally infirm substantive law (especially drug prohibition) has contributed mightily to said worship of the exclusionary rule and a general derailment of search and seizure law.

I wasn't suggesting criminal culpability would be appropriate in the Cady case. For the record, my (non-expert) view is that the Cady incident started as a valid Terry stop, but became clearly unconstitutional once the briefcase was opened, b/c probable cause was then required and absent. A sound police dept. would admit a clear mistake, discipline the officer, and pay Cady $100 or so on its own initiative. (No, I'm not ACLU-ish and wouldn't favor a seven figure recovery here!!)
9.12.2008 3:33pm
David Chesler (mail) (www):
Things would be a lot better if people could admit they'd made a mistake, make an apology, and back it up with $100, or a case of beer, or a dinner, or a new front door. Unfortunately people tend to dig in, and it takes a seven-figure award to get their attention. (That keeps lawyers on both sides employed.)
9.12.2008 4:05pm
Fred (mail):
So have our 4th amendment rights eroded over the years? 30-50 years ago you could be stopped at any time frisked, arrested for vagrancy, held for hours on end, etc. Have things gotten better or worse since then?
9.13.2008 11:17pm
tsotha:
I don't have any problem with the cops frisking Cady and taking a peek in his briefcase to make sure he didn't have a gun, especially in light of his (subjectively) suspicious behavior.

But I don't see by what logic one could defend the taking of the briefcase. The case didn't even have an "iffy" weapon, like a nail file or a bag of quarters. So why didn't they give his property back immediately, and why didn't they end the interview at that point instead of bullying him until he surrendered his ID?

What it looks like is tacit encouragement for cops to clear the riffraff from the front of the court building so an actual threat will stand out. And what is this:

For example, at one point in the oral argument, Judge Williams says that we now live in a dangerous world, and that "perhaps if we were in a pre-9/11 world, we would have a different case."

Really? I'm sympathetic to changes necessary as a result of our newly(?) dangerous world, but the court may be overstating its importance on the international terrorist's "to bomb" list.
9.15.2008 3:22am