theCircusWeakman
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User ID: 2239
theCircusWeakman
4mo ago
In my experience, many criminal lawyers share your reaction to this kind of hypothetical: "We can't allow cops to trample important freedoms, no matter how many lives it saves!" The value of the hypothetical is its ability to elicit that response; it illustrates exactly how out-of-touch the field of criminal law has become. Forget the possibility that lives are at stake; let's focus on the "freedoms" at stake. In this hypothetical, all that's at stake is the freedom to refuse to show a cop what's in your covered basket.
Imagine a country just like the US, with a constitution just like the US Constitution, as interpreted by the US Supreme Court, with this sole exception: people walking around in public must show the contents of their pockets, handbags, briefcases, etc. if a cop orders them to (with or without any degree of articulable suspicion). The cops still need to follow the US rules before they can touch or seize anything from a person, or perform any more invasive search, or enter a private area like a home. Would that be "tyranny"?
I don't think so. The impact on the average law-abiding person would probably round to zero. Cops probably wouldn't even ask most of the time. Under Pennsylvania v. Mimms, cops can legally order you to get out of your car during any traffic stop, but that's never happened to me.
The only people who would realistically be impacted by this sort of rule would be habitual criminals, who would find it tremendously inconvenient. Street-level drug dealers would be at constant risk of discovery. Felons would have to leave their concealed weapons at home, no doubt greatly reducing the rate of opportunistic/impulsive violent crime. Smugglers, who currently can carry duffel bags full of contraband with near impunity, could no longer rely on the forbearance of law enforcement.
Under the current system, cops can't articulate the requisite "suspicion" or "probable cause" based on a person's race, their class, or their status as a felon/vagrant/deviant/obvious troublemaker, even when those facts would cause reasonably normal people to suspect that someone was up to no good. For one example: I'm amazed by the prevalence of face tattoos in mugshots, vs. among the general population. I guarantee that cops know to keep an eye on people with face and neck tattoos. But I'm also sure they hesitate to articulate "face tattoos" as part of the "probable cause" or "reasonable suspicion" they need to conduct a search, seizure, or frisk.
A rule freeing cops from having to articulate probable cause for certain kinds of minimally-intrusive searches would greatly increase the crime-fighting ability of law enforcement, at negligible cost to the law-abiding masses. Civilization needs functional law enforcement a hell of a lot more than it needs elaborate protection for the rights of "criminal scum" (or the whims of obstreperous civil libertarians).
Instead, we have created a huge legal infrastructure for the purpose of protecting criminals, and criminals alone, from "unreasonable" searches and seizures. (The exclusionary rule only protects you if the cops actually find evidence of a crime and try to prosecute you; if they invade your privacy and don't discover evidence of crime, the exclusionary rule doesn't help you at all!) Modern innovations in criminal law are almost entirely based on finding more and more arcane technicalities to secure the release of criminals who were caught red-handed and are indisputably guilty. And lawyers still feel conflicted about letting cops do their jobs. How did we get to this point?
June is coming to an end, which means all the most controversial SCOTUS opinions are coming out in the traditional big lump. These opinions are sharply divided, often along ideological lines, with lively dissents and concurrences--pretty enjoyable for a law nerd like me. Relevant to this thread, these cases tend to focus on big culture-war topics like abortion and gender stuff. This week saw the following:
Medina v. Planned Parenthood South Atlantic - Abortion. Congress requires States who receive Medicaid funds to, among other things, permit patients to obtain medical assistance from "any qualified provider." South Carolina receives federal Medicaid funding, but excludes Planned Parenthood from its Medicaid program because state law prohibits using public funds for abortion. Planned Parenthood files a section 1983 claim (this is important, IMO) arguing that it is a "qualified provider" and that Congress's Medicaid statute created a federal right for any qualified provider to receive Medicaid funds. The court, with a 6-3 conservative-liberal split, says "no." Gorsuch writes the majority opinion: the "any-qualified-provider" provision of the federal Medicaid statute does not create a right for medical providers to receive Medicaid funding. All it does is specify a condition with which participating States must "substantially comply" in order to receive federal funding. If South Carolina doesn't want to comply, the feds can kick South Carolina out of the Medicaid program, but that's not the same as creating a "right" to Medicaid funds. Section 1983 is only for vindication of a person's federal rights; there is no right for a provider to receive Medicaid funding from a State, so Planned Parenthood doesn't have a valid 1983 claim. Jackson writes the dissent; I didn't really read it carefully, because the majority seems clearly to have the better argument here. Everyone agrees that South Carolina could, if it wanted to, simply reject federal funding altogether. Then nobody in South Carolina would get Medicaid funding, and South Carolina wouldn't have to abide by any of the provisions of the Medicaid statute. It's hard to say that people have an enforceable federal "right" to receive Medicaid funding from a state, when everyone acknowledges that the state has no obligation to participate in the Medicaid system at all.
Free Speech Coalition, Inc. v. Paxton - Pornography 6-3 conservative opinion, Thomas. First Amendment does not prohibit Texas from requiring age-verification for pornographic websites. Kagan writes the dissent.
Mahmoud v. Taylor - LGBTQ+ Books and Lessons in Schools 6-3 conservative opinion, Alito. Religious students and parents have a constitutional right, under the free exercise clause, to opt-out of pro-LGBTQ+ curricula in public schools. Thomas writes a concurrence. Sotomayor wrote the dissent.
In my opinion, the biggest case today was:
Trump v. CASA, Inc. - Immigration BUT ACTUALLY Federal Court Procedure (sounds boring but is, IMO, super important) 6-3 conservative opinion, Barrett. 3 concurrences! 2 dissents! This is the "birthright citizenship" case: does the Court agree with the Trump administration that some people born on U.S. soil are nevertheless not American citizens? IDK! Because the Court doesn't answer that question. Instead, it addresses whether the lower federal court had the authority to issue a nationwide injunction against the Trump administration's immigration enforcement proceedings. The Court held it did not have that authority. Federal courts can only determine cases and issue binding decisions as to the parties before them, not the country as a whole. The lower court's national injunction is stayed as to any people not among the parties to the suit.
Some are saying the Court "punted" on the birthright citizenship thing, but I think the Court actually addressed a far more important culture-war issue. "Nationwide" or "universal" injunctions have been part of the playbook for activists' (especially progressive activists) lawfare for a long time. The idea is to find some sympathetic plaintiff who would be affected by a statute or executive action you don't like, shop around the whole country until you find a judge who agrees with you, and then get that judge--before the case has even been tried--to indefinitely prevent the government from applying the challenged law/regulation/action to anyone, anywhere in the country. This opinion represents a potentially huge obstacle to progressive activist's attempts to stymie Trump's immigration agenda.
Less interesting cases, IMO:
Gutierrez v. Saenz - Criminal Procedure. A lurid murder case gives rise to a pretty boring dispute about death-row inmates' standing to request post-conviction testing of DNA evidence. I can't really figure out the nuances of the Texas law at issue or the procedural history, but it looks like the Sotomayor-led majority thinks Gutierrez has standing; he has a Fourteenth Amendment liberty interest in the ability to request post-conviction DNA testing, even though the prosecutor apparently has both the right and the express intention to refuse that request in this case. Barrett concurs but chides the majority for "muddying the waters of standing doctrine." Alito, joined by Thomas and Gorsuch, dissents. Thomas, typically, offers a solo dissent on the quixotic ground that the Fourteenth Amendment has been misinterpreted by the Supreme Court since the early twentieth century; in his view, the "liberty" interests protected by the 14A do not include state-created entitlements like Texas' post-conviction DNA testing procedure. My read: SCOTUS lets a death-row inmate file a doomed, pointless post-conviction motion that doesn't have any hope of success but will probably delay his execution for a few more years (Gutierrez was convicted in 1998).
Riley v. Bondi - Immigration/Deportation. Deportation is a hot-button topic right now, but this opinion about filing deadlines and the distinction between claims-processing rules and jurisdictional requirements is too dry for me to get worked up about. Perhaps notable for the fact that Gorsuch broke from the conservative majority to join, in part, Sotomayor's dissent. Pretty boring overall!
There were others, but they don't have as much culture war salience as the above, IMO. I meant to do a longer write-up, a little paragraph for each case, but I'm too tired ... sorry
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