Tuesday, February 23, 2016

Scalia touted originalism when it was convenient for him, but he ignored it on a critical case that allowed cops to make traffic stops under false pretenses

Antonin Scalia
(From crooksandliars.com)
Conservatives tend to lionize the late U.S. Supreme Court Justice Antonin Scalia because he championed the notion of "originalism," as applied to the Constitution. Originalism holds that the Constitution's meaning is the same today as it was when it was adopted in 1788. Liberals tend to see the Constitution as a "living and breathing document" that should evolve with the society it governs, while Scalia and many conservatives see it as an "enduring document," one that should remain grounded in the nation's earliest days.

Bush v. Gore, probably the most controversial case in which Scalia participated, shows that the justice believed in originalism as a theory but did not practice it in real life. Scalia frequently cited Roe v. Wade, decided before he joined the court, as a case that violated the precepts of originalism. Here's what The Washington Post wrote about a 2012 Scalia speech:

“I’m not saying you shouldn’t have the right to an abortion,” said Scalia, who has previously spoken out against Roe v. Wade, the landmark 1973 Supreme Court case that established a woman’s right to an abortion. “But don’t tell me the American people demand that you have it and wrote it in the Constitution, because that’s not true.

In other words, if an issue was not addressed in the Constitution of 1788, federal courts should not deal with it now--leaving it to voters in individual states. "The Constitution does not say anything about (abortion) . . . ," Scalia told CNN's Piers Morgan in a 2012 interview. "Roe v. Wade said no state can prohibit it; that simply is not in the constitution." (See interview at the end of this post.)

Did Scalia consistently apply this principle? Not even close, and I'm not the only observer who holds that opinion.

But I do have first-hand experience with the repercussions of Scalia's phony originalism, and it involves a subject that almost all Americans are likely to experience at some point--traffic stops.

That's a sensitive subject in this space because my wife and I were victims of two unlawful traffic stops in the days leading to my unlawful arrest that led to a five-month incarceration in Shelby County, Alabama. In fact, my arrest--which really was a state-sanctioned kidnapping since no warrant ever has been presented, at the scene or in court--was the result of a bogus traffic stop.

You might say that Antonin Scalia was responsible for both incidents, the first by Shelby County Lt. Mike DeHart, the second by Officer Chris Blevins. Why? Scalia wrote the opinion in a SCOTUS case styled Whren v. United States, 517 U.S. 806 (1996), which essentially made it lawful for law-enforcement officers to conduct traffic stops under false pretenses--all in the name of the "war on drugs."

Specifically, Whren made pretext stops legal. What is a pretext stop? Here's how we describe it in a post from May 2015:

A "pretext" or "pretextual" stop is a stop in which the officer detains the citizen for a minor crime (i.e. traffic offense) because the officer actually suspects the person of involvement in another, more significant crime (i.e. drug possession).

Here was the situation in Whren:

Whren, which involved an officer who stopped a vehicle, on the surface, for a traffic violation--but the real reason for the stop was suspicion of illegal drug activity. In fact, a search subsequent to the traffic stop turned up crack cocaine, and SCOTUS found the pretext stop was legal because it's real purpose was to seek information about a suspected crime, the illegal distribution of drugs.

In other words, the officers initiated the stop under false pretenses, with ulterior motives. And Antonin Scalia ("The Originalist") said such actions, with cops acting in fraudulent and deceitful ways toward the public, was perfectly fine, Gee, can't imagine why we've had a string of cases where cops were caught lying and covering up evidence of misconduct.

The petitioners in Whren argued that they had been subjected to an unreasonable search that violated the Fourth Amendment. Many legal experts, I suspect, would agree with them. But the court--surprise, surprise--sided with the cops.

How did Scalia justify the court's finding. It's hard to tell because Whren is a poorly written mess, which doesn't even define a pretext stop. Those who call Scalia an "intellectual giant" and a "brilliant writer" likely have not read his work. Here is the gist of his opinion in Whren:

We think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.

Scalia's words even have left police officers confused. For example, in our first traffic-stop encounter, Lt. DeHart said in sheriff department's notes that he conducted a "pretext stop" in order to "serve" Carol and me with papers in Rob Riley's defamation lawsuit. DeHart, however, never said or did anything to indicate he suspected our vehicle had been involved with a "more significant crime." In fact, there was no suspicion that we had been involved with any crime. That means DeHart's actions did not constitute a pretext stop, and they were not legal--a violation of the Fourth Amendment.

Let's look at the Whren finding in the context of originalism. Are traffic stops mentioned in the U.S. Constitution of 1788? Of course not. Are drug busts and traffic stops mentioned in the Constitution? Not a word.

So according to Scalia's own words, he should have found for the petitioners and stated this was a decision for each individual state to address--just as in the issue of abortion, which also is not mentioned in the Constitution.

Whren shows, with simple clarity, that Scalia was, in the words of Salon's Paul Campos, an "intellectual phony."

Here is Scalia's real world view: If an issue (the right to an abortion) is not mentioned in the Constitution, but it might be of help to a minority group (women), Scalia was against it. If an issue (traffic stops) is not mentioned in the Constitution, but it might help an establishment group (police officers), Scalia was for it.

That pretty much sums up his "brilliance."


Anonymous said...

Spot-on analysis, LS. Scalia had a negative impact on our society in many ways.

Anonymous said...

If we allow cops to stop vehicles under false pretenses, then we shouldn't be surprised when cops lie in other scenarios. One thing leads to another.

Anonymous said...

Whren was a 7-0 decision, so Scalia wasn't alone in his views.

Anonymous said...

@ 11:35 - Officers don't have to lie about it, it's called a pretext stop. An officer is free to say "You look out of place in this neighborhood, I stopped you because you have a tag light out so that I can ask you questions regarding you presence in the area." If you're looking for a Supreme Court case about lying, I believe there is one that says officers don't have to tell you the truth when conducting interviews. So it's OK to tell a co-defendant that the other person already confessed, even if they haven't.
As long as they have probable cause for a traffic violation or knowledge that you have a warrant, they can stop your vehicle. If you don't want to be stopped, don't break the motor vehicle code and they can't stop you. That's all that the Supreme Court said.

Anonymous said...

If officers are free to say, "I stopped you because you look out of place in this neighborhood," then we are getting into "driving while black" territory. And that's dangerous, for all of us.

Anonymous said...

You reworded the sentence. The officer didn't stop them for looking out of place, that doesn't rise to probable cause. He stopped them for the traffic violation with probable cause and investigated the other incident concurrent with the traffic stop as long as it doesn't unnecessarily prolong the stop. It was a 7-0 decision that suggests they saw it as a good thing for all of us.

legalschnauzer said...

Your comment says the mythical cop stopped the mythical perp because of the perp's presence in the area. Again, that goes to "driving while black." Also, a cop who stopped someone and made such comments probably would be looking at a major Fourth Amendment lawsuit. A person's presence in a neighborhood does not constitute probable cause of a crime. Your scenario gives the officer no reason to suspect a crime has occurred.

This is sort of a George Zimmerman mindset at play here.

Anonymous said...

With probable cause that a traffic violation occurred is plenty of reason to stop someone. Everything else doesn't matter. You are adding race to the issue. I believe any person can be out of place and stopped with probable cause they committed a traffic violation.

Remind me, if you will, what was the outcome of Zimmerman's case. Oh wait, he was acquitted.

legalschnauzer said...

No one disputes that an officer can pull someone over with probable cause that a traffic violation has occurred. The problem with Whren is that it allows cops to stop a motorist on false pretenses--claiming the motorist has committed a traffic violation when the real reason for the stop is "reasonable suspicion" of some more serious crime. This encourages officers to deal with the public in a deceptive way. And it encourages officers to concoct bogus traffic stops in the hopes cops can come upon a big drug stash.

I've had this sort of thing happen to me, and I've never touched illegal drugs in my life. An Alabama officer alleged I "rolled through a stop sign" when I didn't. And he made the stop, not because he suspected me or my vehicle of being involved in a crime, but because he wanted to "serve" me with court papers in Rob Riley's lawsuit. That is unconstitutional and unlawful on multiple grounds. Under Whren, every driver in the country is at risk of being pulled over for rolling a stop sign because some antsy officer smells a possible drug bust (and promotion?) in his future. It's extremely bad law, and there is zero about it in the constitution, so Scalia should have been the first to rule for the petitioners, not the cops.

A drive who actually rolls a stop sign should be stopped, of course. But this is an offense that cops can pull out of their fannies when it hasn't been committed.

e.a.f. said...

Judges who argue "originalism" are too funny. Its like a comedy act. The Constitution was written in the 1700s so cars and planes, most drugs on the market, legal and illegal, and all sorts of stuff weren't even invented or thought of. That would then follow that the Supreme court shouldn't have ruled on all sorts of stuff, including stuff Scalia ruled on.

It is hard to believe that some one could be so stupid as to argue something like "originalism". With judges like Scalia and some of those Republicans wanting to be President, it is going to be very difficult for the U.S.A. to be taken seriously in the world. Gee come to think of it, some of those guys make Putin look reasonable.