Fourth Amendment Protection
Disappears if Police Have Probable Cause

The Supreme Court of the United States (“SCOTUS”) decided Virginia v. Moore on April 23, 2008.

The Ruling: If law enforcement sees you commit a crime – any crime – even if it only calls for a citation or summons under state law, you may no longer be protected from search and seizure under the Fourth Amendment[1] to the U.S. Constitution. You can be summarily arrested and searched. Hello, loiterers and other mundane miscreants:  THIS IS ABOUT YOU !

The Facts:    Moore was stopped in the City of Portsmouth, Virginia in 2003 for driving on a suspended license.  Under Virginia state law, he was supposed to receive a summons, but the police made a mistake and arrested him. Then, the police took him to his hotel room and he gave consent for them to search it.  At that point, the police realized they had not searched him because each of them thought the other had done it; so they searched him and found 16 grams of crack and $516.00. Moore was convicted of possession of cocaine with intent to distribute, and sentenced to 5 years with 3½ to serve.

The Issue: Do police violate the Fourth Amendment to the U.S. Constitution when they see a crime (meaning they have probable cause) and arrest and search the person, but the arrest is illegal under state law?

Discussion: This was a 9-0 ruling, with Justice Scalia delivering the opinion for eight Justices, and Justice Ginsburg concurring. 

Their formula is simple enough -- if probable cause exists under the Federal standard, then law enforcement can ignore state law and immediately arrest an individual and search them.

Why?  Because ruling otherwise would constrain Federal law applying the Fourth Amendment, making enforcement different in each state (and maybe even from county to county). It would be too complicated to untangle a varying the impact of Federal and state rights upon each other in every situation.

So, look around next time you are thinking of pitching a cigarette butt or jaywalking. If the police see the smallest offense, you may have just lost your Fourth Amendment rights.

The Ledbetter and Holowecki Employment Discrimination Decisions
Deal with a Procedural Deadline and with Form, Respectively

             Two recent Supreme Court decisions, Ledbetter v. Goodyear Tire and Rubber Company[1] and Federal Express Corporation v. Holowecki[2] are not inconsistent. The former addresses the timeliness of a discrimination charge and the latter deals with the charge’s content.

            In Ledbetter, a 5-to-4 opinion by Justice Samuel Alito held that a claim of pay discrimination must be filed within 180 days of an employer’s adverse pay decision. Ledbetter had not filed her charge of pay discrimination within that window of opportunity; however, she argued the discrimination was continuing with every paycheck she received containing less money for her than for male co-workers similarly situated. In other words, the Supreme Court determined that Ledbetter had filed too late to challenge conduct by her employer occurring more than six months earlier.

            On the other hand, Holowecki’s paperwork was filed before the deadline. The questions in his case were what the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., considers a “charge” of discrimination; and whether his filing complied with the definition. The definition in the regulations, 29 CFR § 1626.3 (2007), and elsewhere was not clear; so the Supreme Court did some extrapolating in order to conclude that Holowecki stated a valid claim.

            The 7-to-2 majority (with Justices Thomas and Scalia dissenting) applied a four-step rationale in finding that Holowecki’s intake form and 6-paged affidavit were a valid EEOC charge. (1) The form and affidavit met all the substantive criteria of the regulations; (2) the employee clearly asked in his affidavit for EEOC to end the discrimination; (3) EEOC itself considered the paperwork sufficient to constitute a charge; and (4) Holowecki was pro se, entitling him to more latitude that might be accorded an attorney.

            In other words, even though their Supreme Court majorities are different, the opinions in Ledbetter and Holowecki are neither at odds with each other nor particularly surprising: The message to charging parties is that EEOC claims must be filed on time; and the sufficiency of an ADEA charge depends on content; counsel; and more than anything else, condonation by EEOC.

The Supreme Court’s Decision in Ali v. Federal Bureau of Prisons

Portends an Individual Right to Keep and Bear Arms

The U.S. Supreme Court’s 5-to-4 opinion on January 22, 2008, in Ali v. Federal Bureau of Prisons, No. 06-9130, (“Ali”) strongly suggests that the Court’s upcoming ruling on gun ownership will favor individuals over militias. I will explain the reasoning in the Ali opinion, and then seek to demonstrate how an identical thought process may foretell the Court’s interpretation of the Sixth Amendment to the U.S. Constitution.

In Ali, the Supreme Court interpreted a portion of the Federal Tort Claims Act enacted in 1946. The relevant portion of the Act states:

“[A]ny officer of customs or excise or any other law enforcement officer” cannot be sued for “any claim rising in respect of the assessment or collection of any tax or customs duty or the detention of any … property.”

A Federal inmate being transferred between prisons lost some religious articles being shipped for him by the Federal Government, and brought suit for damages. The question on appeal was whether or not prison employees were liable for his a loss since they were not customs or excise officers. (Six Federal appeals courts had found the statute offered broad immunity including prison employees, while another five had ruled it did not.)

Applying statutory construction, the Court declared that the phrase “any other law enforcement officer” included prison workers. Therefore, it followed that those Federal employees could not be sued for losing prisoners’ property. The legal principle is that an interpretation according meaning to all the words of a statute is preferable to only providing meaning to some of the words.

The alternative meanings in this case were:

1. “[A]ny officer of customs or excise or any other law enforcement officer” cannot be sued;

Or;

2. “[A]ny officer of customs or excise” cannot be sued.

In the majority opinion by Justice Clarence Thomas, the first option – including law enforcement officers other than customs or excise officers -- was deemed correct; otherwise, the phrase “any other law enforcement officer” added nothing to the already-established meaning of the sentence.

+++

This is where we receive a fascinating indication of how the Supreme Court may confirm an individual right to keep firearms.

The Sixth Amendment to the U.S. Constitution provides:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In a decision –already much debated --expected later this year, the question before the Supreme Court is whether District of Columbia law prohibiting individual gun ownership violates the Sixth Amendment to the U.S. Constitution.

Here, our alternative constructions are:

1. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Or;

2. “A well regulated Militia, being necessary to the security of a free State, the right of the people serving in the militia to keep and bear Arms, shall not be infringed.”

[Emphasis supplied.]

In Ali, Justice Thomas said Congress could have provided “any other law enforcement officer acting in a customs or excise capacity;” but chose not to. He added “We are not at liberty to re-write the statute to reflect a meaning we deem more desirable:”

In the case involving personal ownership of firearms, I predict a Supreme Court majority will rule that the framers of the Constitution could have written “[T]he right of the people serving in the militia to keep and bear arms shall not be infringed,” but chose not to. Applying the same rule of statutory construction utilized in Ali, the Supreme Court must necessarily conclude that the right to keep and bear arms belongs to individuals and not to militias alone.

Olivier Denier Long, Esquire

Wednesday, January 23, 2008

Captiva Island, Florida