It was five years ago that Gil Grantmore put individual gun rights in the crosshairs.  His article, The Phages of American Law, offered readers a tough and sensible critique of the "causal" interpretation of the Second Amendment.  The causal reading, endorsed by the Fifth Circuit in United States v. Emerson, holds that the individual right to keep and bear arms exists insomuch as it is a necessary means to realize the collective right to a well-regulated militia.  This interpretation is grounded in the framers' belief that militias, intermittent and decentralized by nature, would be ineffectual if the people could not arm themselves for at least some non-militia purposes.  The Fifth Circuit in Emerson observed:   

Absent a citizenry generally keeping and bearing their own private arms, a militia as it was then thought of could not meaningfully exist.  As pointed out by Thomas Cooley, the right of individual Americans to keep, carry, and acquaint themselves with firearms does indeed promote a well-regulated militia by fostering the development of a pool of firearms-familiar citizens that could be called upon to serve in the militia. 

Phages, in my opinion, methodically dismantled Emerson and the causal theory of individual gun rights.  Grantmore's cardinal point was that, because the term "militia" appears in various parts of the Constitution, its broad interpretation in the Second Amendment context would necessarily lead to large and unconscionable expansions of legislative and executive powers.  Grantmore also demonstrated the absurdity of incorporating the Emerson right against the states.

This past term, the Supreme Court, in the watershed decision of District of Columbia v. Heller, recognized an individual right to keep and bear arms.  But instead of taking the causal approach, and straining "militia" to encompass an individual right, the Heller majority simply unhinged the individual right from the militia right.  (Justice Scalia, writing for five justices, concluded that "[t]he prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right [to bear arms].")  The majority then went on to hold that the Amendment codified an implied individual right to keep and bear arms for defensive purposes.  By working around--rather than through--the "militia" language, Heller seems to have sidestepped the constitutional concerns raised by Grantmore. 

On this coming Constitution Day, September 17, Gil Grantmore and I will host a video discussion of the Heller decision.  Subjects of analysis will include originalism, the demise of the causal reading of the Second Amendment, and Heller's impact on law and public policy. 

 

Back in 2005, Justice Kennedy authored the majority opinion in Roper v. Simmons, which held it is cruel and unusual punishment to execute a person for crimes committed as a juvenile. 

The Roper opinion was controversial--not so much for its outcome as for its "internationalist" reasoning.  Kennedy, for a 5-4 majority, famously wrote:

"It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty.... The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions."

The response from the right was swift and severe.  Republicans on the Hill talked openly of impeaching Kennedy.  Tom DeLay, then House Majority Leader, blustered on conservative radio:  "We've got Justice Kennedy writing decisions based upon international law--not the Constitution of the United States. That's just outrageous." 

Fast forward three years... 

This term, in Kennedy v. Louisiana, the Court again focused its attentions on the intersection of the Eighth Amendment and capital punishment.  The petitioner in the Kennedy case, a convicted child rapist, argued that it's cruel and unusual punishment to impose the death penalty for the commission of a non-homicide offense.  Taking cues from Justice Kennedy's reasoning in Roper, amici briefs set forth authority indicating a "global consensus" on sentencing for child rape. 

Yesterday the Court issued it opinions in the Kennedy case.  Overturning petitioner's death sentence, a 5-justice majority concluded that capital punishment for non-homicide offenses against individuals is indeed cruel and unusual. 

Just like in Roper, Justice Kennedy authored the majority opinion. 

Just like in Roper, Kennedy wrote on behalf of Justices Stevens, Souter, Ginsburg, and Breyer. 

But this time around, Kennedy made no reference to foreign law or a global consensus.      

Draw your own conclusions.   

 

The Fourth Amendment warrant requirement is of course riddled with exceptions.  One longstanding rule, for example, is that no warrant is needed to conduct certain searches made incident to a lawful arrest.  This "search incident" doctrine is the product of a relatively straightforward calculus:  Following a lawful arrest, the state's interests in officer safety and preventing the destruction of evidence outweigh the privacy interests of an arrestee.  Just yesterday, in Virginia v. Moore, the Supreme Court clarified the meaning of the doctrinal term "lawful."  This question is more interesting than one might think. 

The debate in Moore basically centered on whether, for the purposes of the "search incident" doctrine, a "lawful" arrest is one consistent with the Fourth Amendment, or, on the other hand, one consistent with constitutional and positive law.  It is not surprising that in our federalist system the two are not always one and the same.  For example, an arrest for a minor criminal offense is "constitutional" so long as probable cause exists.  See, e.g., Atwater v. City of Lago Vista (upholding the famed arrest of a soccer mom for not wearing a seatbelt).  Atwater aside, states are of course free to curtail arrest powers beyond the limits imposed by the Fourth Amendment.  Such extra-constitutional limitations include prohibiting arrests for certain types of offenses and directing officers to follow specific guidelines during arrests.  It is not hard to see how an arrest could be "constitutional" all the while being contrary to state law.

This brings us to Moore, which addressed the following question:  When an arrest falls within this extra-constitutional interspace (i.e., constitutional but unlawful under state law), does an officer's search incident to that arrest violate the Fourth Amendment? 

The Court unanimously resolved this in the negative, holding that the term "lawful" means nothing other than "constitutional."  Put simply, a search is constitutional whenever it is incident to a constitutional arrest--even if the arrest is violative of state law.  This result was not unexpected, as even the more liberal justices seemed wary of Moore's claim at oral argument.  (Justice Souter:  "If the Fourth amendment says it's OK to arrest, then why shouldn't the Fourth Amendment say it's OK for the officer to protect himself.").

Despite my having some reservations about the Court's interpretation of its precedent in Di Re (see Orin Kerr's post here ), the Moore opinion is, as a matter of policy, undoubtedly a good one.  This is, in large part, because it ensures a tax-free zone for the future development of search and seizure law at the state level. 

Let me explain.   

The Fourth Amendment provides an absolute floor on search and seizure rights.  All observers, no matter their judicial philosophy, envision that the states, which are well-positioned to gauge the particular privacy and enforcement interests of their citizens, are free to enact extra-constitutional regulations to protect privacy rights beyond those guaranteed by the Fourth Amendment.     

Extra-constitutional regulations are more likely to be enacted, all things being equal, by legislatures with unfettered authority to select remedies (e.g., exclusion, civil liability, administrative sanctions, or, for that matter, no remedy at all).  If the Court had, as Moore argued, pegged the "search incident" doctrine to state law rather than constitutional law, the Fourth Amendment (which is bound to the costly remedy of exclusion) would effectively impose an "exclusion tax" on those well-meaning legislatures that opt to enact extra-constitutional search and seizure regulations.  One can easily envision a bloc of legislators which (1) seeks to curtail arrest powers in a particular way, (2) is willing to create a remedy of administrative sanctions or civil liability, but (3) is unwilling to create a remedy of exclusion.  Under such circumstances, the state government would be willing to "produce" the extra-constitutional regulations at natural costs--but not when saddled with a constitutionally-imposed exclusion tax. 

This illustrates that when the Court commandeers exclusion as the remedy for the violations of extra-constitutional search and seizure regulations, some state legislatures will rationally respond by simply repealing existing regulations and/or refusing to enact future regulations.  The all-or-nothing approach proposed by Moore, if adopted, would have likely resulted in weaker regulation of law enforcement, and, from a more theoretical perspective, an undue obstruction of the natural development of search and seizure law.  Thankfully, the Court decided otherwise, concluding wisely that the Fourth Amendment imposes no exclusion tax on state legislatures.     

This month's Louisville Forum luncheon will address the morality of the death penalty.   Panelists include:

• Mike DiGiuro, father of murder victim, Trent DiGiuro
• Maria Hines, Kentucky Coalition to Abolish the Death Penalty
• Senator Dan Seum, (R), Kentucky Senate District 38
• Representative Jim Wayne, (D), Kentucky House District 35

The luncheon will be held at Vincenzo's at noon on Wednesday, December 12.  You can register online or by calling (502) 329-0111.

 

A glaring problem with our criminal justice system is that police officers frequently perjure themselves when questioned about the misconduct of their colleagues.  This unfortunate practice, popularly known as the Blue Code of Silence, can be understood as a function of officer incentives. 

On one hand, the costs of implicating a fellow officer with truthful testimony are thought to be high.  The costs include threats of violence, diminished professional status, increased public scrutiny, and waning resources (due to meetings, depositions, hearings, etc.).   

On the other hand, the costs of lying under oath are perceived by the officer to be minimal. In a lawsuit for excessive use of force, the jury normally finds facts by sorting through conflicting testimonial accounts of the event at issue.  Perjury convictions are exceedingly rare in these types of "swearing match" scenarios.  Even if the jury adopts the plaintiff's version of the encounter (which is uncommon), proving that an officer knowingly gave false testimony is virtually impossible.  Rational officers behaving in their own self-interest have thus found themselves adhering to the Blue Code of Silence. 

While this state of affairs is undoubtedly distressing, it is important to understand that officer incentives shift with emerging technologies.  Consider, for example, the video-recording function installed in most new cell phones and digital cameras.  Literally tens of millions of Americans--at this very moment--are carrying some type of video recorder in their pockets or purses.  The diffusion and portability of video recording devices has lead to a boon of non-official recordings of police misconduct.  (See, e.g., use of taser; threat of pretextual arrest).   

Not only do private video recordings of police encounters clear the fog of disputed testimony (and thereby provide fact-finders with reliable accounts of challenged conduct), but they are, perhaps less obviously, an effective instrument with which to deter police perjury.   

Imagine an officer contemplating lying under oath to protect a colleague.  Under the old scenario, the rational officer realized that his testimony could only be rebutted by the testimony of the plaintiff (or perhaps that of a witness).  A perjury conviction was, for the reasons discussed above, not of legitimate concern to the officer.  Now consider the new scenario, where the rational officer realizes that his testimony could be rebutted by a yet unreleased video of the challenged encounter.  In this situation, a perjury conviction looms as a real possibility.  It is important to note that the underlying police encounter need not be recorded in order to stoke the officer's fears--the mere potential that a recording might subsequently surface will likely shift the officer's perceived incentives.  

The next step, as I see it, is the creation of an on-line repository for videos of suspicious police encounters.  I envision a website, managed by a private organization, where individuals can forward video footage of police misconduct.  The managers of the repository would serve as public stewards, inventorying the videos, tracking civil rights lawsuits, and releasing footage that contradicts the sworn testimony of police officers.   

Importantly, a critical mass of the repository's inventory should remain confidential (e.g., footage should only be released upon a demonstrated need to impeach an officer's sworn testimony).  That way, the rational officer will never be sure, at the time of his sworn testimony, whether a recording of the encounter exists.  Public surveillance of the police will thus be, to borrow from Foucault, "permanent in its effects, even if it is discontinuous in its action."  See how this is the converse of Bentham's Panopticon, in that the government official, who has been the traditional surveiller, is now cast in the role of the surveilled.

So it seems that, from the rational officer's perspective, the marginal cost of perjury rises ever so slightly with each sale of a cell phone.  And with a little societal coordination, coming in the form of an on-line repository, we just might find a measurable number of police officers defecting from the Blue Code of Silence.