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NINOMANIA:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Friday, June 10, 2011 ::
We now return from the season of exam-grading, and of commencements and graduations (both Regent's annual one, and that of my son Joseph from Christendom College) and of college reunions (my wife's 30th from Yale, which comes on the heel of my own Yale 30th last year), and of certain opera events chronicled on the other blog, to see what damage (or not) the Court has been doing.
First, Kentucky v. King, a Fourth Amendment "exigent circumstances" decision that has drawn some criticism. It contracts the range of the "police-created exigency" exception to the "exigent circumstances" exception to the "warrant requirement" of the Fourth Amendment. Basically, if the police have a "reasonable" basis for believing evidence is being destroyed behind your door, that's an "exigent circumstance," and they can enter your home without a warrant.
And the funny thing is -- the "warrant requirement" of the Fourth Amendment, the "exigent circumstances exception" to the warrant requirement," the "police-created exigency" exception to the exigent circumstances exception: none of these exist in reality, because the Fourth Amemdment, historically recovered, actually discountenances and restricts warrants, and imposes and absolute, not an exception-riddled, ban on "unreasonable" searches and seizures.
A decison like King, therefore, is a product of the Court's multi-decade misconstruction of the Fourth Amemdnent.
First thing to notice. though: this is a War on Drugs case. The War on Drugs, as much as doctrinal confusion, has eaten the Fourth Amendment.
Now on to doctrinal confusion. This case illustrates perfectly why I don't like teaching Criminal Procedure. Nothing in the way it's currently practiced makes sense. They say Substantive Due Process is a nonsensical field. Well it is, but at least it has internal patterns of a sort. You may not know which set of rules the Court will apply in any given sdp case, but at least the range is limited. In Crim Pro, you have bundles of outcomes that are intelligible in themselves but have no connection with any body of doctrine sufficient to distinguish it from other, conflicting, but also applicable, bodies of doctrine.
In King itself, the Court acknowledged that, so far, five different approaches had been taken by lower courts to the question, when does police conduct create an exigent circumstance, thus depriving the prosecution of the benefit of the exigent circumstances exception to the 4th Am warrant requirement? (Slip op. at 8) The Court dismisses them all, and substitutes instead -- reasonableness:
[W]e conclude that the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment.How does this not fall within the general condemnation of definitions that use the term sought to be defined? Where was Scalia, with his usual denunciation of opinions that do nothing but employ lawyers?
But rather than rail further on the King opinion (which, be it noted, garnered the support of Breyer, Sotomayor, and Kagan, as well as the "conservatives" -- I'll discuss Ginsburg's lone dissent at the end), let's read the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.If you were to read that with a mind undistorted by Supreme Court opinions, would you think it meant Warrants Are Good, Warrants Are Your Friends? Of course not: all it says about warrants is ro restrict them, severely. And what does it say about searches and seizures? That they're permitted unless they're unreasonable? Odds bodkins, man, wipe the Realist, Warren-Court sleep from your eyes and read: it's a flat-out ban on "unreasonable searches and seizures."
"Oh but who says which searches and seizures are 'unreasonable'"?
I'm going to scream in a minute. Have you ever studied torts? Especially negligence?
Did you encounter the word "reasonable" there, as in, what does the reasonable person do, did the defendant act reasonably, so forth?
Who decided such questions in tort cases?
Well, the finder of fact, but....
And who was the finder of fact in the vast majority of cases?
Well, the jury, but....
Ah. Thought for a moment you'd forgotten the word.
Yeah but sometimes appellate judges reverse jury outcomes....
Sure, in cases that are sufficient outliers to make it into casebooks. But who always gets the first whack at determining what's "reasonable"?
The finder of fact.
*Forehead rub* And that almost always is...?
Thank you. That didn't hurt, did it?
But what's it got to do with the Fourth Amendment?
Well now perhaps I've at least motivated you to read what Akhil Amar has written on this (also here, pp. 68-77). More of an originalist than some conservatives are, he remembered that in the experience of drafters of the 4th Am, unreasonable invasions of one's home -- whether by a private party or by a public agent acting under color of law -- was a tort. The offended party could sue. And what was a warrant? It was a certificate from the King -- remember, under Colonial-era separation of powers, before Independence and the Constitution, the judges still worked for the King -- saying, these defandant-officers had permission to do what they did, so let 'em off. Now you can see why the 4th Am doesn't like warrants: they were get-out-of-jail-free cards. Or rather, get-out-of-civil-liability-free cards.
So the two parts of the 4th Am -- the no-unreasonable searches part, and the no-warrants part -- are indeed linked, but our Supreme Court has linked them in a way that turns the amendment on its head. In no particular order, it has made two moves: it has made 4th Am "reasonableness" a matter of law for federal judges, rather than a matter of fact for juries; and it has transformed warrants from despised devices of tyranny into beloved guarantees of liberty: just get a warrant and everything's fine.
Except a rigidly enforced "warrant requirement" regime doesn't correspond to realities of law-enforcement life. So, having invented the warrant requirement, the Court has had to invent further legal fictions to keep the first one going: so we have an array of "exceptions to the warrant requirement," including the catch-all, "exigent circumstances," which boils down to "whenever police really need one." For reasons we have now seen, the warrant requirement is a fiction, so it stands to reason that further fictions are necessary to make it work in the real world. But then those supporting fictions need further supporting fictions, lest they go too far in weakening the warrant requirement fiction: hence, the "police-created exigency exception" to the "exigigent circumstances exception" to the "warrant requirement."
Yes, a lot more confusion than doing what the 4th Am originally commanded: make (federal) officers answerable to local juries, not to federal judges, for the reasonableness of their conduct; and view warrants not as the touchstone of "reasonableness" but as disfavored permission-slips for the breaking of otherwise-applicable law.
Yes, I know it's a long way from here to there. We've created mountainous doctrines of official immunity for police officers' conduct. We can't just flip a switch and return to an originalist 4th Am regime. But what looks better, that -- or Kentucky v. King? Would you at least be interested in measures that might lower the barriers to a new 4th Am originalism? More qualifications of police immunity, for instance? Laws against police interference with citizen filming? Etc.
Now, as to Justice Ginsburg's solo dissent. It may be wise policy, but it doesn't get to the root. I reproduce here her first two paragraphs:
The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment’s force.[Ellipses in original] Her courtesy in citing a Scalia opinion (Kyllo) is noteworthy. Beyond praise is her avoidance of a split infinitive in her first sentence. Most legal writers would have said "to routinely dishonor" and been done with it, claiming that in legal writing infinitives simply must be split sometimes, assuming they've even heard of the rule against doing so. Besides Justice Ginsburg, the only Justice who routinely avoids them is Justice Scalia. This may be, like their shared love of opera, evidence of their shared roots in the immigrant, work-hard-get-good-grades culture of ethnic, outer-borough New York City.
But she does not achieve escape velocity from the 4th Am standard model's gravitational pull. Not her fault: what lawyer in his (sorry, RBG!) right mind would argue, in a brief, what Amar does in his scholarship and I've just done on this blog? To see how Ginsburg does not do it, notice that she uses the conventional term "warrant requirement" in her first paragraph. If I'm right, then saying "warrant requirement" re the 4th Am is like saying "coercion requirement" re the 5th. Le sigh.
She gets a little closer in the second graf where the calls the two parts of the amendment "comlementary" and notes the second part's restrictions on the issuance of warrants. But this turns out to be in the context of insisting on the narrowness of exceptions to the "warrant requirement." If one is going to continue believing in the "warrant requirement," then I suppose believing in its narrowness is the best way to remain faithful to the amendment's purpose. Just as I believe that if you've jumped off the Empire State Building, grabbing a passing horizontal flagpole may be your best way to break momentum. Neither is very promising.
:: David M. Wagner 12:41 PM [+] ::