At Volokh Conspiracy over the past two days Orin Kerr has been blogging on the Sixth Circuit's decision in United States v. Davis, the "fuzzy dice" case. The case involves a Sixth Circuit panel's decision to strike down Michigan's safety statute penalizing driving when the driver's vision is obstructed by something dangling form the window, like "fuzzy dice" or a giant Tweety Bird air-freshener. Yesterday's post, giving the details of the case, can be found here.
Today, Kerr posts on a new wrinkle in Davis - the Sixth Circuit apparently issued its decision without complying with federal statute 28 U.S.C. 2403(b) which requires the federal court to inform the state attorney general that it is considering the constitutionality of a state statute so that the state may intervene "...for an argument on the question of constitutionality." According to Kerr, Michigan only learned of the Sixth Circuit's decision to review the statute when the Sixth Circuit ruled on December 19th, 2008. If this is true, then Michigan has the right to remedy the statutory violation. And, Kerr notes, the remedy could come in the form of reversal or rehearing.
Our own Kent Scheidegger commented on Kerr's post to add that Michigan should intervene, and to comment "A Sixth Circuit precedent would be binding and 'clearly established' law in a suit in federal district court against a Michigan police officer under 42 USC 1983 for supposedly violating the civil rights of a future fuzzy dice dangler pulled over for violating the state statute. Section 2403 gives the state the right to intervene in this case, and the Michigan AG should exercise that right." "In criminal cases, the state courts can disagree with the lower federal courts, and Fourth Amendment exclusionary rule decisions are generally not reviewable on habeas under Stone v. Powell, 428 U.S. 465 (1976). California and the Ninth Circuit disagreed on parole/probation search conditions until the Supreme Court settled it in United States v. Knights, 534 U.S. 112 (2001)."
Today, Kerr posts on a new wrinkle in Davis - the Sixth Circuit apparently issued its decision without complying with federal statute 28 U.S.C. 2403(b) which requires the federal court to inform the state attorney general that it is considering the constitutionality of a state statute so that the state may intervene "...for an argument on the question of constitutionality." According to Kerr, Michigan only learned of the Sixth Circuit's decision to review the statute when the Sixth Circuit ruled on December 19th, 2008. If this is true, then Michigan has the right to remedy the statutory violation. And, Kerr notes, the remedy could come in the form of reversal or rehearing.
Our own Kent Scheidegger commented on Kerr's post to add that Michigan should intervene, and to comment "A Sixth Circuit precedent would be binding and 'clearly established' law in a suit in federal district court against a Michigan police officer under 42 USC 1983 for supposedly violating the civil rights of a future fuzzy dice dangler pulled over for violating the state statute. Section 2403 gives the state the right to intervene in this case, and the Michigan AG should exercise that right." "In criminal cases, the state courts can disagree with the lower federal courts, and Fourth Amendment exclusionary rule decisions are generally not reviewable on habeas under Stone v. Powell, 428 U.S. 465 (1976). California and the Ninth Circuit disagreed on parole/probation search conditions until the Supreme Court settled it in United States v. Knights, 534 U.S. 112 (2001)."
In Knights, Knights was arrested after a detective searched Knights' apartment, without a warrant, but pursuant to a probation agreement where Knights had contractually "[s]ubmit[ted} his ... person, property, place of residence, vehicle, personal effects,
to search at anytime, with or without a search warrant, warrant of
arrest or reasonable cause by any probation officer or law enforcement
officer." The search resulted in physical evidence implicating Knights in the arson of a PG&E power transformer in Napa County. The District Court found the evidence from the "reasonable" search should be suppressed because the search was conducted for "investigatory" rather than "probationary" purposes. The Ninth Circuit affirmed.
The federal courts' decisions were in direct contrast to the California Supreme Court's decision in People v. Woods, 21 Cal. 4th 668 (1999), which upheld an officer's right to search a probationer regardless of investigatory or probationary purpose. The U.S. Supreme Court granted certiorari to address "the constitutionality of searches made pursuant to this common California probation condition[,]" which mentioned nothing about the purpose of the search.
The Supreme Court concluded that the search was reasonable, based on the the totality of the circumstances, "with the probation search condition being a salient circumstance." With the Supreme Court's decision resting on reasonableness under Fourth Amendment standards, "there was no basis for examining the official purpose." In other words, the California Supreme's Woods' decision could stand without conflicting with the District Court's decision, or, as Kent put it "the state courts can disagree with the lower federal courts...." Our amicus brief in Knights can be found here.
So, what does Knights have to do with the "fuzzy dice" case? Well, if Michigan asserts its right to intervene on the constitutionality of its vehicular safety statute, then any action brought in state court will not be bound by the Sixth Circuit's ruling. However, if the Michigan AG fails to act then the Sixth Circuit's precedent would "be binding and 'clearly established' law in a suit in federal district court against a Michigan police officer under 42 USC 1983 for supposedly violating the civil rights of a future fuzzy dice dangler pulled over for violating the state statute." If this is precedent in federal court, then the Michigan Supreme Court might be tempted to follow its lead, something the Knights decision held the Michigan Court is not obligated to do.
The federal courts' decisions were in direct contrast to the California Supreme Court's decision in People v. Woods, 21 Cal. 4th 668 (1999), which upheld an officer's right to search a probationer regardless of investigatory or probationary purpose. The U.S. Supreme Court granted certiorari to address "the constitutionality of searches made pursuant to this common California probation condition[,]" which mentioned nothing about the purpose of the search.
The Supreme Court concluded that the search was reasonable, based on the the totality of the circumstances, "with the probation search condition being a salient circumstance." With the Supreme Court's decision resting on reasonableness under Fourth Amendment standards, "there was no basis for examining the official purpose." In other words, the California Supreme's Woods' decision could stand without conflicting with the District Court's decision, or, as Kent put it "the state courts can disagree with the lower federal courts...." Our amicus brief in Knights can be found here.
So, what does Knights have to do with the "fuzzy dice" case? Well, if Michigan asserts its right to intervene on the constitutionality of its vehicular safety statute, then any action brought in state court will not be bound by the Sixth Circuit's ruling. However, if the Michigan AG fails to act then the Sixth Circuit's precedent would "be binding and 'clearly established' law in a suit in federal district court against a Michigan police officer under 42 USC 1983 for supposedly violating the civil rights of a future fuzzy dice dangler pulled over for violating the state statute." If this is precedent in federal court, then the Michigan Supreme Court might be tempted to follow its lead, something the Knights decision held the Michigan Court is not obligated to do.
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