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Trump Is Right About 'Stop and Frisk'

Former NY Mayor Rudolph Giuliani has this op-ed with the above title in the WSJ.

One of the strategies that helped bring about an 85% reduction in crime in New York City between 1994 and 2013 was the careful and appropriate use of "stop and frisk." This practice dramatically reduced the number of guns, knives and other dangerous weapons, as well as illicit drugs, in the city.

But according to candidate Hillary Clinton and moderator Lester Holt during Monday night's presidential debate, stop and frisk is "unconstitutional." They are wrong. In Mrs. Clinton's case, it's the usual misrepresenting she does when she does not know what she is talking about. As for Mr. Holt, if a moderator is going to interfere, he should do some homework and not pretend to know the law when he does not. Mr. Holt and NBC cannot overrule the U.S. Supreme Court.
See my previous post on this subject for the citation and an excerpt of the case.  Continuing with Mr. Giuliani's piece:

Stop and Frisk

The controversy over the practice of "stop and frisk" has entered the presidential campaign.  Let's begin with a trivia question.  Who wrote the Supreme Court decision upholding "stop and frisk" upon reasonable suspicion?

(a)  William Rehnquist
(b)  Antonin Scalia
(c)  Roger Taney
(d)  Earl Warren
Akhil Reed Amar of Yale Law is a rarity -- a prominent legal academic who has his head screwed on straight when it comes to the Fourth Amendment exclusionary rule.  He has this post at SCOTUSblog titled The Court after Scalia: The despicable and dispensable exclusionary rule.  No doubt about where he stands.

I agree with what Professor Amar says about the exclusionary rule, but not so much what he says about the Justices.  He begins by noting the difference between cases where the Court was focused on the substantive Fourth Amendment question and cases where it focused on the exclusionary remedy:

In countless cases over the last forty years, the Court has held that the Fourth Amendment was violated by the facts at hand, and has thus ordered or upheld evidentiary exclusion....   But whenever the modern Court has squarely focused on the exclusionary rule itself - giving express thought to whether the rule's contours should be widened or narrowed - the Justices have almost always ruled against the rule, and have done so in case after case dripping with implied or express contempt for it.
This contempt is well founded:

The exclusionary rule has no sound footing in any originalist legal source material. None. Nothing in the text as originally understood supports it; no framer ever endorsed it; no judge in America for the first century after independence ever followed the exclusionary rule or any genuine prototype of it. On one of the very few occasions when a lawyer tried to argue for exclusion before 1876, the lawyer was laughed out of court by America's preeminent jurists, led by Joseph Story.
A bit of rhetorical exaggeration there.  Laughing wasn't Justice Story's style.  But he did make very clear that the exclusionary argument had no basis in the law at that time.  My brief in Utah v. Strieff has more on this.

Mapp v. Ohio, the case that imposed the exclusionary rule on the states, was wrongly decided as an original matter.  A long string of decisions has chipped away at it, limiting the damage it does to some extent, but the case has not been overruled.  Why not, and what of the future?
All fifty states utilize implied consent laws to require motorists arrested on suspicion of driving under the influence ("DUI") to submit to a chemical test to determine the amount of alcohol and/or drugs in her/her system.  The blood alcohol concentration ("BAC") results are the best evidence of intoxication level to be used in a subsequent DUI prosecution.  

Earlier this week, the Supreme Court ruled on three consolidated cases brought by three different motorists who challenged the criminal penalty for refusing to consent to a chemical test of their breath, blood, or urine.  The post I wrote summarizing these three cases can be found here.  

In Minnesota and North Dakota (and 11 other states), it a separate crime to refuse to a chemical test.  California does not make refusal a separate crime, but instead it can be used as a sentencing enhancement if the motorist is convicted of a DUI.  Now that Birchfield/Bernard/Beylund hold that a warrant is required for all chemical testing of blood, the California legislature will need to modify the current law (VC 23612) to comport with the Supreme Court's ruling.  
Senior Circuit Judge Jon Newman of USCA2 has this op-ed in the WaPo, proposing expanded civil remedies for police misconduct.  It is an important subject and worthy of serious consideration, but I think Judge Newman's article may mislead folks who are not familiar with the law in this area, both nonlawyers and lawyers who specialize in other areas.  Judge Newman writes,

The acquittal Thursday of another Baltimore police officer charged in the death of Freddie Gray, like the acquittal 25 years ago of the Los Angeles officers who beat Rodney King, reveals the inadequacy of the criminal-law remedy. Suing the police for money under a strengthened federal civil rights law would be a better response to police misconduct.

Right now, however, federal law makes it more difficult to sue a police officer for denying a citizen his constitutional rights than for injuring him by ordinary negligence. If an officer negligently drives his car and injures a citizen, the victim can win money just by proving negligence, and the city that employs the officer pays whatever the jury awards.

But when an officer uses excessive force or makes an unlawful arrest or search, proving wrongful conduct is not enough. Under Section 1983 of the federal civil rights statute, the officer can escape liability with the special defense of qualified immunity -- showing that he reasonably believed his conduct was lawful, even if it was not. And if the jury finds the officer liable, federal law does not require his employer to pay the award.
There is some truth here, but there is more to it.
This morning, the U.S. Supreme Court decided three consolidated cases involving the implied consent laws that all 50 states utilize in their efforts to combat the serious problem of drunk driving.  The implied consent laws imply a lawfully arrested motorist's consent to chemical testing as a matter of law and the state uses the test results as probative evidence of intoxication in a subsequent DUI prosecution.  Some motorists, usually repeat offenders, refuse requests for testing because they know that the Blood Alcohol Concentration ("BAC") results would impose harsher penalties than that of simply refusing a test.  The standard legal consequence in most states for test refusal is the suspension or revocation of a motorist's driver's license.  A refusal can also be admitted as evidence of intoxication in a DUI prosecution.  Based on recidivist drunk driver statistics, it does not matter if they have a driver's license or not.  The suspension or revocation of a driver's license does nothing to stop a person from drinking and driving if that person chooses to get into a car and drive while intoxicated.

Thirteen states gave some teeth to their implied consent laws and made it a crime to refuse testing.

Mixed Result in DUI Cases

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In three consolidated cases, of which the lead is Birchfield v. North Dakota, No. 14-1468, the U.S. Supreme Court held today:

Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.
CJLF filed a brief in one of the three, Beylund v. Levi, No. 14-1507, a civil case challenging the suspension of Beylund's driver's license for refusing a blood test after being informed he could be criminally prosecuted for refusing.  In addition to the legality of the requirement, CJLF argued that the suspension was valid regardless, as the federal Fourth Amendment exclusionary rule does not apply to civil proceedings.  The U.S. Supreme Court left that question open for the North Dakota Supreme Court on remand on the theory that state law might "provide a remedy" not required by federal law.

Although we did not get everything we wanted, this is mostly a win for the life-saving cause of getting drunks off the road. 
As noted briefly this morning, the U.S. Supreme Court decided a case on the Fourth Amendment exclusionary rule, Utah v. Strieff, No. 14-1373.  The Fourth Amendment exclusionary rule is the rule that an item of evidence -- regardless of how reliable it may be and much value it may have in guiding the trier of fact to the truth of the matter to be decided in the criminal case -- must be excluded if it is found that the police violated the complex rules governing search and seizures under that Amendment.

The exclusionary rule has no basis in the text of the Fourth Amendment.  It was unknown to American law at the time the Amendment was adopted and for a century thereafter.  It was unknown to the pre-Independence law of England, from which our legal tradition was derived.  The rule was created by the Supreme Court out of whole cloth in the twentieth century and the tail end of the nineteenth, a century after Amendment was adopted.  The question appears in few court decisions before that time because there obviously was no such rule, and the few defendants to raise the proposition merely got decisions stating flatly that there was no such rule.  This history is traced in CJLF's brief in Strieff, along with a rebuttal of the lone academic to advance a contrary proposition.  For an originalist, that is enough to dispose of any case where the Fourth Amendment is relied on as the sole authority for the exclusion of evidence.  There is no such legitimate rule.

However, the Supreme Court decided to the contrary in Mapp v. Ohio (1961), a decision which Justice Harlan noted in dissent was so far in excess of the limits of the Supreme Court's legitimate constitutional powers as to make the Court's voice "only a voice of power, not of reason."  In later years, varying majorities of the Court have been unwilling to overrule Mapp, but Justice Harlan's description of the rule as "so unwise in principle and so inexpedient in policy" was never far below the surface, and numerous limitations and exceptions have been devised to reduce the harsh effects of the rule in its bare form.

Today's decision in Strieff is specifically on the "attenuation" exception, but the influence of the "good faith" cases is also evident, making a clear connection between the two branches of Fourth Amendment jurisprudence.
The U.S. Supreme Court has reversed a decision of the Utah Supreme Court suppressing evidence from a stop conducted in good faith by a police officer.  Utah v. Strieff, No. 14-1373, was decided 5-3.

On a quick scan, it does not appear to be the sweeping decision I was hoping for, but a win's a win.

Update:  A follow-up post is here.  CJLF's press release is here.
One of my least favorite U.S. Supreme Court precedents is Mapp v. Ohio (1961).  That is the case that imposed on the states the rule previously followed by federal courts that evidence obtained in violation of the Fourth Amendment (with "violation" determined long after the fact and frequently unknowable to the police at the time of the search or seizure) must be excluded from a criminal trial.

In my view, the criminal trial should be all about a reliable determination of whether the defendant did it.  All reliable evidence should be considered.  If you want to put the police on trial for what they did, that should be a separate case.

One of the objections to eliminating the Fourth Amendment exclusionary rule and relying on civil remedies is that the doctrine of qualified immunity prevents the resolution of previously undetermined questions.  That is, if the searchee sues the police officer, the officer is entitled to immunity as long as what he did was not clearly illegal at the time of the search.  So how can you ever get to a judicial determination to make the law clear for future cases?

One answer is that if the action in question is a regular practice of the police department, you sue the city, not the cop, and there is no immunity.  Today's decision of the U.S. Court of Appeals for the Ninth Circuit in Lowry v. City of San Diego, No. 13-56141, illustrates the point.

Oh, Never Mind

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Devlin Barrett reports for the WSJ:

The Justice Department filed court papers Monday saying it had cracked the iPhone of a San Bernardino, Calif., terrorist, seeking to drop its legal case to force Apple Inc. to help them unlock it.

The move signals a temporary retreat from a high-stakes fight between Washington and Silicon Valley over privacy and security in the digital age.

The filing short-circuits a pending legal showdown over whether the government can force technology companies to write software to aid in criminal investigations, but it is unlikely to avert the long-term conflict between federal agents and technology executives over how secure electronic communications should be, and what firms should have to do to help the government access their customers' data.

New U.S. Supreme Court Cases

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The U.S. Supreme Court has issued a short orders list out of its Friday conference today.

The one criminal case taken up is the corruption conviction of former Virginia Governor Robert McDonnell.  The question presented is:

Under the federal bribery statute, Hobbs Act, and honest-services fraud statute, 18 U.S.C. ยงยง 201, 1346, 1951, it is a felony to agree to take "official action" in exchange for money, campaign contributions, or any other thing of value. The question presented is whether "official action" is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.
The Court declined a second question on jury voir dire and pretrial publicity.

Also taken up was law-enforcement-related civil case, Manuel v. City of Joliet, No. 14-9496.  "The question presented is whether an individual's Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment."

A long orders list will likely be issued Tuesday.  (Monday is a government holiday.)  If the usual pattern holds, all the grants are on today's list, and Tuesday's list will be all denials.

The San Bernardino Massacre

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I have held off commenting on the San Bernardino massacre until more was known.  Today's WSJ has a number of articles on the emerging picture and the policy dilemmas we faced as we decide what to do to reduce the risk of such horrors.

Use of Force and Suing Police Officers

Today, after multiple relistings, the U.S. Supreme Court summarily decided Mullenix v. Luna, No. 14-1143.

On the night of March 23, 2010, Sergeant Randy Baker of the Tulia, Texas Police Department followed Israel Leija, Jr., to a drive-in restaurant, with a warrant for his arrest. 773 F. 3d 712, 715-716 (CA5 2014). When Baker approached Leija's car and informed him that he was under arrest, Leija sped off, headed for Interstate 27. 2013 WL 4017124, *1 (ND Tex., Aug. 7, 2013). Baker gave chase and was quickly joined by Trooper Gabriel Rodriguez of the Texas Department of Public Safety (DPS). 773
F. 3d, at 716.

Leija entered the interstate and led the officers on an 18-minute chase at speeds between 85 and 110 miles per hour. Ibid. Twice during the chase, Leija called the Tulia Police dispatcher, claiming to have a gun and threatening to shoot at police officers if they did not abandon their pursuit. The dispatcher relayed Leija's threats, together with a report that Leija might be intoxicated, to all concerned officers.
So when the natural consequences of Leija's voluntary choices follow in due course, what does his widow do?  Sue the police officer, of course.  The person actually at fault is dead, and she has his estate anyway, such as it is.

Under Supreme Court precedent, police officers are immune from suit so long as the law is not clearly established that their acts are illegal under the circumstances.  In immunity cases, as in habeas corpus cases, lower federal courts regularly try to avoid the rule by defining the "clearly established" law at an excessive level of generality.  Summary reversal of such decisions has taken up an inordinate portion of the Supreme Court's docket for some years now.  This one is reversed with only one dissent, by Justice Sotomayor.

French Surveillance Law Upheld

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Sam Schechner and Matthew Dalton report in the WSJ:

PARIS--France's top constitutional court mostly upheld a new French surveillance law that would give intelligence services broad new powers to spy in France and abroad.

The court-backed provisions of the law allow a wide range of new surveillance techniques meant for the Internet age, including the collection of "metadata" about online traffic and the use of software that can monitor every keystroke on a computer. The court said intelligence services can use these tools without approval of a judge, though the government must still seek permission from an independent body created to oversee surveillance activities.

The court, known as the Constitutional Council, did strike down a provision of the law that would allow emergency surveillance without the approval of the prime minister or another minister in the government.

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