Saturday, October 24, 2009


This Supreme Court case has made some headlines since Chief Justice Roberts, joined by Justice Scalia, Dissented from the Decision of the Court not to review the case and to let it stand as decided by the Supreme Court of Virginia.

It’s not an SO case, but it struck me as a similar dynamic.

The individual was the subject of an anonymous phone tip to the police (not on a 911 line apparently, and there are no tapes of it) about a man in a “striped shirt” and a certain type of car with a certain partial plate driving down a certain street and that he was intoxicated.

A police car happened to be nearby and responded to the radio call that went out. That officer saw such a car on that street, turned around and quietly followed it. The car braked before arriving at an “uncontrolled intersection” (no lights or signs in any direction) and a bit further on braked when approaching a red light – which the officer decided was “erratic”.

Apparently having noticed the police car behind him the driver pulled over to let it pass, whereupon the officer put on his warning lights, sounded his siren, and made a traffic stop. The driver appeared intoxicated to the officer when forced to step out of the car.

The defendant/driver moved to have the evidence of his intoxication suppressed since the stop itself was a violation of Fourth Amendment rights against unreasonable search and seizure. The trial court refused and he was convicted. He appealed to the State Appeals Court, and that Court upheld the trial court. He appealed to the Virginia Supreme Court and that Court reversed the conviction.

At which point the Commonwealth of Virginia appealed to the US Supreme Court.

The US Supreme Court refused to review, basically leaving the case as the Virginia Supreme Court had handled it.

Since CJ Roberts appears in his Dissent to echo much of what was proposed in the Amicus Curiae Brief from Mothers Against Drunk Driving, I’ll reference a few points made in the MADD Amicus Brief, and then the Roberts Dissent.

The question is whether police can make traffic stops on the basis of anonymous tips, even when they themselves have not observed any offending behavior.

The MADD position is that such ‘anonymous tips’ are a vital tool in their thirty-year struggle against drunk-driving (DD). Their mission is “to stop drunk driving, support the victims of this violent crime, and prevent underage drinking”. All worthy objectives, even that interesting twist that drunk-driving is a violent crime.

They classify DD as “a serious national public health hazard”, in addition to it being a violent crime.

Further, they assert that “by requiring law enforcement officials to personally observe erratic driving before acting on an anonymous tip, the decision of the Virginia Supreme Court dangerously limits law enforcement officials’ ability to intervene and stop drunk driving before an accident occurs, and undermines government efforts to deter drunk driving”.

This, I think, illustrates the nub of the problem: is there a crime (or health hazard) so urgent and violently dangerous that the police power may act without any observed evidence in order to prevent it? And more ominously to the point: is there any crime or health hazard so urgent and violently dangerous that the police power can be trusted with “flexibility” in the matter?

Because let’s not be deceived by what’s at stake here: the Constitutional integrity and viability of the Framers vision and the United States as a Constitutional Republic. Yes, the scenes of a particular crime are grisly and enraging, but no analysis can stop there. To rework the old Chinese proverb: it is easy to perceive a great tree falling, harder to perceive the forest growing. The ‘forest’ is the Constitutional integrity of the Republic.

You can quickly see where things can go in a Constitutional Republic when the police are allowed to deploy their authority without any evidence.

We arrive here at ‘preventive law’, the theory that if a type of crime is bad, then it’s better to prevent it than to clean up after it.

This opens all sorts of watertight doors deep within the hull of Our great Ship of Liberty. First, you have the police able to inject their authority without any observable proof of criminal behavior. Second, you get a ‘type of crime’ that can quickly start to expand: MADD began its work in 1980 and since then the country has seen drugs, domestic violence, and sex-offenses added to the list of crimes that for one reason or another are ‘too bad’ not to try to prevent. (You may come up with some others.)

Thus it is considered somehow negligent for the government and the courts to force an officer to wait until he witnesses a crime in one of these categories.

I have always felt that this position doesn’t really understand what is at stake in all of this. Nobody can doubt the awfulness of certain crimes, and frankly the inherent riskiness of living on this planet. The sensible person takes measures to protect him/herself and prays to God, which is not a bad way to go through life.

But to expand the government police authority to fill in for a God who apparently doesn’t care to ‘prevent’ or ‘stop’ such crimes – now that does not strike me as good Constitutional thought. Crime has always been with us – it was there in the Founders’ era as much as it is with us now. Yet their concern was that the Citizenry be protected as much as possible from the invasive, coercive, and omnivorous tendency of governments in their police power.

(Of course, the Founders presumed that the Citizenry, as mature or maturing individuals, would be continually striving to improve their competence as decent human beings. But if you want to make the case that that is no longer what Americans see themselves as doing, then the solution must be to recover a nation-wide sense of maturity, because otherwise we are going to have a country where the Citizens become increasingly less morally and ethically competent and the government police power expands to fill the gap by forcing them to do under penalty of law what they no longer know how to do as an expression of personal moral and ethical maturing.)

The police are characterized in their role of “protecting the public” – but this is a hugely fraught comment. EVERYbody is a member of ‘the public’, are they not? Unless you are presuming that there is ‘the public’ and then there are ‘criminals’ – but that is an insidious separation of ‘sheep’ and ‘goats’ that undermines the Constitution and the national community. We are all, after all, members of the ‘public’, whether at some point we are on the committing or the receiving end of a crime (see the immediately previous Post about every American probably committing 3 Federal felonies a day).

And from May of 1980 when MADD first characterized only drunk-drivers as such non-members (or enemies) of ‘the public’, the list has now grown to include assorted drug-users or providers (a rather large fraction of the population), ‘batterers’ (as that term has been hugely expanded in domestic violence usage*), and ‘sex offenders’ (now about 1 in every 200 males).

Second, if the public are now to be empowered to get people stopped by police who themselves have observed no criminal behavior, then you are on the road to something that the SO community is now seeing: ‘volunteer’ organizations (and some for-profit businesses) who are seeking government funding and authorization to do their own ‘sex offender policing’. Which takes matters in a direction that, admittedly, MADD probably never imagined. But that’s how it is sometimes: a potentially dangerous idea gets traction because its deepr and darker implications are ignored because of the 'emergency' and the 'good intentions', and then other folks or groups come along and ‘improve’ upon it.

The police, MADD notes, “have sought the greatest flexibility to deter and intercept drunk drivers before they cause accidents”. And I can understand that. But we cannot forget the other side of the equation: flexibility in going after ‘certain crimes’ is always a dynamic thrust that seeks ever to expand itself; and a free People cannot remain free if they are living in a police state, no matter how benevolent. And in the American vision, there is no such thing as a ‘benevolent’ police state.

Of course, as I’ve said, the first foundation of the freedom of the Citizens is their own individual commitment to living their lives responsibly and maturely. THAT, naturally, is precisely not what the message has been for the past 40 years or so. Instead the message has been: do what you want because it’s your life and nobody can tell you how to live it.

Perhaps then all of this ‘preventive’ policing stuff – seen, as here with CJ Roberts, at the highest levels – was sparked by the everything-is-equal and I-can-do-whatever-I-want strains in much popular philosophy.

But as I’ve said, if you’re going to have the police-power increasingly substitute for the moral and ethical maturity of the Citizens, then you’re on the road to a police state.

And in that regard, the comment in the Brief that “the decision below undermines such programs by mandating that law enforcement officials personally observe narrowly-defined evidence of drunk-driving before they can act on an anonymous tip” must command attention. The programs referred to are those whereby drivers or ‘the public’ can call in what they think is a drunk driver and the police, merely on the basis of that ‘report’ can make a stop.

I don’t think it’s ever a good idea to get the government police power out of the habit of hewing to personally observing narrowly-defined evidence – and a) I think I am in agreement with the Framers on this point and b) the SO community knows full well what happens when narrow and careful defining goes out the window for the sake of ‘the emergency’.

Which is not to say that MADD is up to bad things here – I concur fully with their concerns. But it’s a dangerous thing – no matter how good your intentions – to loosen up the procedures and the laws and the principles that boundary the government authority so that it does not engorge and invade the civil space.

Finally, the Brief urges that “the harm inherent in drunk or erratic [notice the expansion here] driving can best be prevented” if the police are allowed to follow up on an anonymous tip. But again, if you are going to set up a government whose primary responsibility is to “prevent harm”, then it will need the powers formerly ascribed to God and it will of necessity have to be even more intrusive than the Deity on all but His worst days.

The purpose of the government is to “preserve, protect, and defend” the Constitution – not to protect every citizen from every harm. And while I am not as certain about the oath taken by police personnel, I am going to imagine it’s about protecting the State’s constitution.

And if you say that it is only the uniquely dangerous ‘harm’ posed by the drunk-driver, I would respond that while that may have been so in 1980, yet now the list of such “uniquely” dangerous harms justifying the punching of a hole in the Constitutional firewall has now expanded exponentially. (And as I tried to demonstrate in my mini-series on the New Jersey Poritz case, with very little clear thinking.) And it’s still expanding; so much so that I think we’d have to consider it a trend.

Chief Justice Roberts had wanted the Court to review the Virginia Supreme Court’s overturn of the conviction. Although he couldn’t convince enough of the other Justices, he made his preferences clear in his 5-page Dissent.

He quotes the figures and statistics conveniently rendered simple but vivid (1 fatality every 40 minutes in the US) and that DD is a serious and potentially deadly crime; then he moves right in and says that the Court’s refusal to consider the case “will undermine such efforts to get drunk drivers off the road”.

He goes further: “The imminence of the dangers posed by drunk-drivers exceeds that at issue in other types of cases”. Perhaps it escaped his mind that there are all those SO laws that the Court has had to deal with. Once again, the ‘emergency’ that ‘justifies’ the expansion of government power – although I would like to know what he thinks constitutes the greater threat.

He concludes that “the conflict is clear and the stakes are high” – with which I am in complete agreement. But I don’t think he quite grasps the “stakes” the way I’ve discussed them above: the integrity of the Constitutional structure and the robustness of the Constitutional vision.

He grudgingly allows that “maybe the decision of the Virginia Supreme Court was correct” and “if so, then the dangerous consequences of this rule are unavoidable”. Again, he’s only talking about the consequences on one side of the equation, not on both: the health and vitality of the Constitution itself will apparently suffer no ill or dangerous consequences from having well-intentioned holes chopped here and there; he seems to imagine that there will be no damage to the Constitutional ethos. Does he think it is permanently invulnerable?

I wonder sometimes if these 'law and order' types aren't even more dangerous to the Constitution than the stereotypical liberal-elites who want what is basically a benevolent dictatorship run by themselves, the elites who 'get it'. The National Security State or the National Nanny State ... or the two of them fused together into some monstrous hydra-headed feedback-loop.

And then he finishes up his document with a blatantly rhetorical call to the gallery: “It will be difficult for an officer to explain to a family that the police had had a tip that the driver of the other car was drunk, but they were powerless to pull him over.”

Rather, he accuses the Court, every drunk driver will be allowed “one free swerve”. This is one of those cutesy PR-soundbites that smells strongly of the glue hastily lathered on to hold it together. Some drunk drivers will get many free swerves (can you say ‘Chappaquiddick’?) Some will kill others, some only themselves. And many will go through life driving drunk and never coming to the law’s attention (this is not a minimization or any sort of approval on my part that DD is somehow ‘OK’).

What’s amazing here is that this jurist – and Justice Scalia who concurs with him – are putatively ‘conservatives’. And yet they are willing to knock down the Constitution to get at ‘crime’ (although only that one reely reely uniquely baaaad crime; or those two; or those three; or those four; or …).**

Who can forget Robert Bolt’s character of Thomas More in “A Man for All Seasons”, saying that if we knocked down all the laws in England to get at the devil, and then the devil turned on us, what would protect us then – the laws being all flat?

This is a problem that the SO community knows from first-hand.


*In this regard, let's also recall that in current domestic-violence law one person, with no corroborating evidence, can have the police remove a person from house, home, access to children and other property. While a mandatory Hearing is usually scheduled within a period of a week or ten days (!) there exists no guarantee that the individual will be restored.

In both Soviet and Nazi law enforcement, the practice of 'delation' was considered perfectly valid: one citizen could turn in another citizen to the security police with no evidence. As ex-Gestapo and ex-Stasi officers later admitted, they could not keep up with the number of citizens eagerly turning in their neighbors, friends, rivals, community oddlings, and even in-laws and family members. Did you think it can't happen ... ummm ... anywhere else?

**But when you get right down to it, it has to be admitted that both of MADD’s and thus the Chief Justice’s main images are inapposite, and in a way so favorable to their cause that both images become highly suspect.

The idea that DD is a “violent crime” is not really accurate. It may indeed be a potentially violent crime, and in and of itself driving while intoxicated is a crime. But the damage that it can cause and upon which the ‘emergency’ is based is only a possible outcome, not a guaranteed outcome (say, for example, like firing an automatic weapon at pointblank range into a crowd in a full move theatre).

This of course brings matters to the stage of reasonable difference among prudent and reasonable persons as to just how much of the Constitution should be jeopardized in a tradeoff enlargement of police power in order to arrest the perpetrator. And let’s not be deceived: the intent in all this is not to prevent the crime (DD) but to prevent the possible consequence of the drunk-driver killing somebody else (causing his/ her own death solely … that doesn’t appear to be of such concern).

So you are into the matter of preventative policing (sort of similar to preventative war, when you come to think of it) as well as police-arresting without have observed any criminal behavior.
Just where there should be a whole lotta discussion, there was very little: ‘emergencies’ make great politics and great ‘stories’ for the media … and that’s pretty much what it’s all about now.

Second, a drunk driver in a vehicle is not like a ‘ticking bomb’ (the old horror image from the age of anarchist agitation in the late 1800s). A bomb is a thing which, once activated, is made to and guaranteed to explode – presumably with great loss of life. And yet again, a drunk behind the wheel is not made to nor guaranteed to cause a lethal or fatal MVA.

(Please let there be no doubts here: drunken driving is, in my view, a monstrous legal and moral failing and persons prone to doing it must be shown the error of their ways – but we can’t be shunting all this off on the police just because we’re a culture that doesn’t want to think of itself as ‘directive’ or ‘setting boundaries’; at the rate we don’t want to be ‘directive’ or ‘set boundaries’ but still want at least some amount of ‘law and order’, then we are riding right into the Valley of the Police State, which is a process that the government of itself will probably do nothing to prevent. Indeed, to look at the Roberts-Scalia Dissent, and a whole lotta judicial ‘reasoning’ in SO matters, it looks like the government will be happy to grade and pave that particular road to hell. )


I recently watched a dvd of John Ford's 1930s classic "Abe Lincoln in Illinois" with Henry Fonda.
You may recall the story: Lincoln the youngish small-town lawyer defends two brothers who are accused of killing a local - but popular - roughneck; the witness against them is another local -but popular - roughneck. Eager to get a conviction while minimizing costs and time, the State's Attorney urges the mother of the two to name one of her sons the murderer and then the other will be set free. It was a stunningly awful choice to impose upon any mother and you can feel Ford's own outrage at his accumulated knowledge and experience of prosecutorial ways.

Lincoln, famously, saves the day when he gets both brothers off by pulling out an almanac that proves there was no moonlight the night that the accusant roughneck claimed to see the brothers kill the first roughneck; and, indeed, the accuser was the killer after all.

Prosecutors have always had this hydra-headed problem: they need to get convictions quickly and efficiently, they don't get a lot of money for investigations, and since there's such a caseload then a certain amount of 'business haggling' has to be deployed in the game just in order to keep the system's head above water.

Which is cold but clear.

But it doesn't get them off a second hook: folks like to think that when it comes to 'crime', the 'law' is on the level and the 'perp' is the only bad guy onstage - and when folks start realizing just how dark a path a prosecutor might be willing to travel (you don't think Cheney thought that idea up himself, do you?) then they remember that traditionally in American law and politics, the heart of the public mostly went out to the underdog, which was whomever the government was trying to put in the can.

But then came 'the victim' - and while this was a movement and concept emanating from the ostensibly liberal Left, it quickly became clear to the government itself just how useful 'a victim' could be: 'the victim' could solve the government's Abe-Lincoln-in-Illinois problem: now the government would have a heart-rending face to put up against the defendant's 'Ma'.

I don't think this was the original intent of the early victim-advocacy folks. But the government, I think, made an offer they couldn't refuse: go in front of the cameras for us, and we will give you role and stature and clout, and even funding.

And then came 'the children'.

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