Monthly Archives: April 2014

Arizona v. Hicks

480 U. S. 321

March 3, 1987

Police entered an apartment after a bullet was shot through its floor into the apartment below. During the search of the apartment for guns, an officer saw some stereo equipment that appeared to be stolen. He moved one piece slightly in order to read the serial number – and it turned out that the equipment was indeed stolen. Hicks moved to suppress the stereo evidence on the grounds that it had been searched without probable cause.

Scalia wrote for a 6-3 majority which agreed that the evidence must be suppressed. He first made clear that touching and moving objects constituted a “search” for Fourth Amendment purposes. Previous cases suggested that potential evidence of a crime separate from the one being investigated could be searched if it was in plain view. Whether probable cause was necessary to search objects in plain view  was an open question, and Scalia answered in the affirmative, desiring a bright line rule and a means of curbing excessive police snooping. Arizona had (rather stupidly) conceded that it lacked probable cause, and so Scalia held the search unconstitutional. White offered a brief concurrence, which stated that evidence searched under the plain view rule need not be discovered inadvertently.

Powell and O’Connor filed dissents, both of which were joined by the other and by Chief Justice Rehnquist. Powell found the majority opinion’s definition of a search to be impractical and myopic. “Under the Court’s decision, if one watch is lying face up and the other lying face down, reading the serial number on one of the watches would not be a search.” O’Connor felt that touching the stereo was less a “search” than a “cursory examination,” and that the balancing of interests served by the Fourth Amendment should weigh against suppression. She also felt that the Court could simply hold that probable cause existed, even if Arizona said it did not.

I will admit that in my lifetime I have sometimes ridiculed O’Connor for her distaste of bright lines, but this is one of those cases that shows the wisdom of that propensity. Scalia’s rigid formalism just seems wrong given the facts of the case. Also, can I mention again how much I hate the exclusionary rule? It boggles the mind that the Court cares less about an owner getting back his stolen property than it does about a police officer touching an object for a few seconds. “It is not good to show partiality to the guilty by perverting the justice due to the innocent” – Proverbs 18:5


United States v. Dunn

480 U. S. 294

March 3, 1987

Drug enforcement agents suspected Dunn of manufacturing illegal drugs on his 198 acre ranch. Without a warrant, they crossed a few fences, peered inside a barn with a flashlight, and found evidence of illegal drug production. Dunn moved to suppress the evidence on the argument that the drug agents violated his Fourth Amendment rights by looking inside the barn.

Justice White wrote for a 7-2 majority that upheld admission of the drug evidence. While it would have been unconstitutional for the agents to have similarly looked into Dunn’s home, the Court held that the barn was not within the home’s curtilage. This was because the barn was several dozen yards from the main house, the main house was enclosed by yet another fence, the agents had no reason to believe that the barn was being used for domestic activity, and the barn was only minimally protected from observation. White also ruled that Dunn had no reasonable expectation of privacy because the barn was not actually entered, and because fences do not automatically grant such a privacy expectation.

Brennan dissented, and was joined by Marshall. He cited a long list of state and federal cases which had held that a barn was within a home’s curtilage, found the factors that the Court had listed in making the opposite determination unimportant, and accused the majority of being indifferent to the culture of farm life (this was laughably ironic, given that Brennan grew up in Newark, New Jersey, while White grew up in the sleepy farm country of Wellington, Colorado). Brennan also argued that the barn was a place of business, and that places of business have a well recognized right to freedom from excessively intrusive surveillance.

If you read every case starting from the beginning of the term, you may be wondering by now where the heck Scalia is. In the 44 decisions before this one, he wrote a grand total of three opinions, all of which were short and unmemorable. Fear not! From here on out, his opinions will become far more frequent. In Dunn he contributed a brief statement joining White in everything but his contention that the agents should have a reasonable belief that the barn was not used for domestic activity. Scalia said that they needn’t even have a reasonable belief – it was enough that the barn actually wasn’t used for protected domestic activity.

Much as it pains me, I have to admit that I think Brennan is probably right in this case. There should have been a reasonable expectation of privacy for Dunn’s barn, and the drug agents should have gotten a warrant. If anything, this case highlights my disagreement with the exclusionary rule as it currently stands – I am ultimately glad that White’s side won because this is precisely the sort of potential violation that I simply don’t see as heinous enough to require total suppression of the evidence.

School Bd. of Nassau Cty. v. Arline

480 U. S. 273

March 3, 1987

A federal law called the Rehabilitation Act prohibited public schools from discriminating against handicapped people if they were otherwise qualified for a position. Gene Arline was fired from her teaching job because of her tuberculosis, which is an infectious disease. Arline and the school board disputed whether an infectious disease like TB could be considered a handicap for the purposes of the Rehabilitation Act.

With Brennan writing, the Court ruled 7-2 that communicable diseases were handicaps by the terms of the statute. Using a broad swath of legislative history and agency interpretation, he showed that diseases were clearly within the law’s definition of handicap. He also rejected the claim that a school board’s discrimination on the basis of a handicap’s contagious effects could be distinguished from discrimination on the basis of the handicap itself. Even so holding, Brennan remanded for further determination regarding whether Arline was “otherwise qualified” for the teaching position, and whether reasonable accommodations could be made to insure the safety of her students.

Rehnquist dissented, and was joined by Scalia. Unlike Brennan, he thought discrimination on the basis of contagiousness could be separated from discrimination on the basis of handicap, and he disputed much of the legislative history that Brennan provided. I’m not sure who’s right, but in all honesty I’m not sure why it matters. Even if Arline was discriminated against based on a handicap, Brennan still agrees that she can be dismissed if that handicap makes her unqualified for the job. It seems like either way the result will almost always be the same. As for Arline, while I have some sympathy for her, trying to continue teaching does seem self-centered. A good mark of humility and maturity is accepting that our weaknesses sometimes do prevent us from safely working in the field we love.

Springfield v. Kibbe

480 U. S. 257

February 25, 1987

A very ineptly conducted car chase ended with a police officer shooting the suspect dead after a few feeble attempts at roadblocks failed. Kibbe, the administratrix of the victim’s estate, argued that inadequate training of police forces caused the suspect’s death, and that the municipality could be sued in a section 1983 action. The Supreme Court granted certiorari to decide if inadequate training could be the basis for a 1983 suit, and to determine what amount of negligence would be required to find such liability if it existed.

After granting certiorari, the Court discovered that the parties had not devoted much attention to the standard of negligence question in the litigation below. For that reason, the Court dismissed the writ of certiorari as improvidently granted in a 5-4 per curiam opinion. O’Connor, joined by Rehnquist, White, and Powell, dissented from this dismissal. She argued that the Court of Appeals had discussed the level of negligence question, and that this was enough to allow the Court to pass on it even if the parties were uninterested. Moving to the merits, she held that a municipality could be held liable for inadequate training under section 1983, but only if there was a clear showing of deliberate indifference to the rights of suspects – which is to say gross negligence at a minimum. O’Connor felt this heightened standard was necessary to insure strong causality. Examining the facts before her, she could not say that the police showed deliberate indifference, and thus rejected Kibbe’s claim.

Here’s another case where the Supreme Court avoided a decision on the basis of some stupid justiciability principle. I completely agree with O’Connor that the Court should have decided the case. Punting in cases like this only causes thousands of dollars to be wasted on further judicial proceedings toward the end of finally getting an answer out of the Supreme Court. With regard to the merits, O’Connor makes a good case, but I find myself wanting to hear the other side. Sadly, the five Justice majority deprived me of any chance to hear it.

FCC v. Florida Power Corp.

480 U. S. 245

February 25, 1987

In the 1980s, cable television providers often ran their cables along telephone polls  with the consent of utility companies. Congress passed the Pole Attachment Act to allow the FCC to regulate the rates that utility companies could charge cable companies in the absence of any state regulation. When the FCC required Florida Power to lower the costs that it charged cable providers, Florida Power argued that the FCC’s regulations violated the Fifth Amendment’s takings clause.

Unanimously, the Court rejected this Fifth Amendment challenge. Marshall wrote that the Pole Attachment Act did not mandate that utility companies allow cable companies to occupy its property. Because utility companies retained the right to refuse arrangements with cable companies, the law and regulations did not amount to a takings clause violation. Marshall also upheld the rates imposed by the FCC in this particular case, since the rates it mandated were sufficient to cover the costs of carrying television cables. Powell, in a brief concurrence joined by O’Connor, grumbled that Marshall should have written more analysis about an agency’s power to set rates.

Based simply on the established precedents, the Court appears to have gotten it right. Nonetheless, I’m very uncomfortable about unelected agencies being able to set prices for economic transaction, especially with such minimal judicial control to insure fair pricing. I would be very interested in a broader challenge to the authority of the FCC and other agencies to regulate in such a fashion. Bottom line: I find the entire regulatory state Constitutionally dubious.

Martin v. Ohio

480 U. S. 228

February 25, 1987

Following a heated argument, Earline Martin killed her husband Walter with three shots from a gun. At trial, she raised a self-defense claim, which Ohio law required her to prove by the preponderance of the evidence (i.e. more likely than not). The jury found her guilty, but Martin objected on due process grounds to bearing the burden of proof on her self defense claim.

The Court ruled 5-4 that Ohio could shift the burden of proof for such an affirmative defense. White wrote for the majority. Ohio, he explained, had to prove every element of the murder charge beyond a reasonable doubt, and could shift burdens for affirmative defenses only because nothing in those defenses constituted an additional element of the crime. He also noted that affirmative defense burden shifting was permitted when both the Fifth and Fourteenth Amendments were ratified.

Powell dissented, and was joined by Brennan, Marshall, and Blackmun. He thought that self-defense was so central to the question of guilt that the state should carry the burden, that the deference given to states by the majority opinion was unbounded and dangerous, and that Ohio’s jury instructions would have been confusing to a typical jury. In a section not joined by Blackmun, Powell proposed that a state should be required to prove any issue beyond a reasonable doubt if that issue could make the difference between guilt and non-guilt, or punishment and non-punishment.

This is one of those strange cases where the political lines have flipped completely in less than three decades. Here, a conservative majority outvotes a liberal minority to find that defendants raising self-defense claims bear some extra burden to justify their actions. Today, the death of another Martin – Trayvon rather than Walter – demonstrates that the poles have switched. In any event, while I think White had better legal reasoning, I also think states should not make defendants bear the burden of proof for affirmative defenses.

California v. Cabazon Band of Mission Indians

480 U. S. 202

February 25, 1987

The Cabazon Indian tribe of California regularly conducted bingo and card games for profit, in apparent violation of both state and county ordinances. Federal policy generally exempts Indians from state and local law, but one federal law did give California broad authority in the realm of criminal law, and some narrower authority in the realm of civil law. Another federal law made violations of state gambling laws a federal crime.

Writing for a 6-3 majority, Justice White held that the state and local law did not apply to the Indians. Because California did allow bingo and card games in certain situations, White characterized the state’s laws on the subject as civil rather than criminal. With regard to the law that made violations of state laws a federal crime, White simply reasoned that a federal law could logically not be enforced and prosecuted by a state. Finally, after weighing the federal policy of promoting Indian gambling, and California’s asserted need to crack down on organized crime, he concluded that California’s interests were too weak in the face of Indian sovereignty to justify the enforcement of its civil laws in this instance.

Stevens dissented, and was joined by O’Connor and Scalia. He cited precedents where the Court had held state law applicable to Indian tribes on the civil law issues of alcohol and tobacco. Gambling, he said, should be no different. He also felt that California’s organized crime rationale was persuasive, and that Congress had never explicitly given support to exemptions for Indian gambling.

His dissent also contained this astonishingly bad and inapt analogy: “To argue that the tribal bingo games comply with the public policy of California because the State permits some other gambling is tantamount to arguing that driving over 60 miles an hour is consistent with public policy because the State allows driving at speeds of up to 55 miles an hour.”

Thus, for the second time in two days, Stevens totally brushed aside any respect for Indian sovereignty. I’m not drawing any conclusions yet, but I can’t deny that the word racism has flitted across my mind. To be fair, his discussion of the precedents is more convincing than White’s, but I’m willing to believe that those precedents were wrongly decided. I’m not particularly happy that so many Indian tribes resort to gambling as a means of income, and I’m a bit perturbed that the Department of the Interior would back the practice so vigorously. At the same time though, it was rather heartless for California to try to deprive the Cabazon band of its only real source of sustenance.

United States v. Paradise

480 U. S. 149

February 25, 1987

For decades, Alabama discriminated against blacks in hiring state troopers. Finally, in 1972, a District Court judge addressed this unconstitutional discrimination by mandating that Alabama hire a black 50% of the time when a spot came open, until blacks accounted for 25% of the total state trooper force. Alabama dragged its feet in response to this order, and almost never gave the black troopers it hired promotions. Finally, in 1984, the District Court imposed another remedy: blacks would have to receive 50% of the promotions until a workable system was put in place to insure that promotion discrimination would not happen in the future. The United States, intervening as a petitioner, objected to this order, claiming that it would violate the equal protection clause by discriminating against whites.

The Court upheld the District Court’s remedy in a 5-4 vote. Brennan, joined by Marshall, Blackmun, and Powell, wrote the plurality opinion. Brennan said that a remedy which takes account of race must be narrowly tailored to serve a compelling government interest. Ridding promotions in state police forces from racial discrimination was such a compelling interest, even if promotion was not the initial focus of the original ruling from 1972. The remedy was also narrowly tailored. It was reasonable response to Alabama’s foot dragging, it only applied until non-discriminatory hiring procedures were developed, it solved the existing trooper imbalance quickly, and it did not require the termination of any white troopers. Given all this, the remedy did not violate the equal protection clause.

Stevens concurred in judgment. Unlike Brennan, he did not feel that the District Court was even required to make its remedies narrowly tailored. Stevens argued that a court should have broad discretion in addressing racial discrimination, and that remedies should stand as long as they were reasonable. Powell joined the plurality in full, and wrote a concurrence. It added little of substance, but it underscored Brennan’s argument that the remedy was narrowly tailored when examined against the facts of the case.

O’Connor dissented, and was joined by Rehnquist and Scalia. She felt that the remedy focused too much on speed and percentages, and that there was too little concern about the racial discrimination that the remedy temporarily mandated. She also argued that there were a lot of other less intrusive remedies that the District Court didn’t even bother to stop and consider. White filed a two sentence dissent which contained the unelaborated statement that he agreed with most of O’Connor’s arguments.

From time to time, one comes across power hungry and self-important District judges who impose truly extraordinary remedies in the face of violations which do not merit such raw exercises of judicial fiat. Paradise is a borderline case for me. Like O’Connor, I do think the District Court should have found another remedy in light of the equal protection issues raised by reverse discrimination. Given how long the litigation had run though, the remedy may have been barely within the bounds of discretion. If there’s any lesson to be learned from the tortuous Paradise saga, it’s that it’s best not to discriminate in the first instance.

Hobbie v. Unemployment Appeals Comm’n of Fla.

480 U. S. 136

February 25, 1987

Paula Hobbie converted to Seventh Day Adventism, and was later fired from the jewelry store she worked at for her refusal to work on Saturdays. When she applied for unemployment compensation, she was denied with the explanation that compensation was not provided to employees who were fired due to “misconduct.” Hobbie contended that this denial violated the free exercise clause.

Brennan wrote for an 8-1 majority in favor of Hobbie. He found that the case was controlled entirely by two earlier and almost identical precedents, Sherbert v. Verner and Thomas v. Review Board. He quickly dismissed some attempts to distinguish those cases on the grounds that Hobbie was a convert, and that the denial of benefits was slightly less onerous than in the precedents. Brennan also specifically reaffirmed the Court’s commitment to subjecting all government burdens on free exercise to strict scrutiny, requiring the government to prove a compelling interest.

Powell concurred in judgment. He found that the Sherbert and Thomas precedents controlled, but bizarrely objected to Brennan’s restatement of the compelling interest test. Stevens, knowing he was bound by the precedents, concurred in judgment without offering any explanation as to why he did not join the majority opinion. As I explained previously, Stevens is always a passive-agressive tool in religion cases. Rehnquist dissented, adhering to his view that Thomas was wrongly decided.

This case was very sad to read. The decision itself was great, but I read it knowing full well that the free exercise clause would never be quite this strong again. In the next several years, Scalia and White would fall away from the compelling interest standard, and judicially cripple freedom of religion. It was also heartbreaking to see Brennan writing the majority opinion, knowing that no liberal Justice would ever do such a thing today. It’s even more striking to see Brennan caring about religious Americans being disfavored by unemployment commissions when you remember that he joined the majority in Wimberly. It was a different era indeed.

Western Air Lines, Inc. v. Board of Equalization of S. D.

480 U. S. 123

February 24, 1987

South Dakota placed a property tax on aircrafts, but the proceeds of that tax were used entirely for the benefits of airports and airlines. Two decades after this tax was first imposed, Congress passed a law banning property taxes on aircrafts unless the tax was an “in lieu tax which is wholly utilized for airport and aeronautical purposes.” On its face, the South Dakota tax appeared to be squarely within the letter of this exception, but that didn’t stop several airline companies from filing suit against the collection of the tax.

O’Connor wrote for a unanimous Court, upholding the property tax. The airlines claimed that the words “in lieu” meant that the tax must actually replace a previous tax. O’Connor patiently explained that “in lieu” meant ‘to the exclusion of any other form of property tax which could potentially be levied.’ O’Connor is to be commended for her constraint – I would have simply said “Your argument is self-evidently stupid. Stop wasting our time.” White wrote a brief concurrence, which stated his agreement with the majority opinion, and also his belief that the Court should not have taken the case.

Favorite quote from the majority opinion: “South Dakota could satisfy appellants’ interpretation of § 1513(d)(3) by simply amending its tax code so that its airline flight property tax took some other form, then the following session substituting for that tax a tax utilized wholly for aeronautical purposes. This exercise of replacing one tax with another, while contributing somewhat to a state legislature’s workload, would contribute nothing to the policies of the Airport and Airway Improvement Act.