Never tighten your sphincter–it’s the law!

I deal with the Fourth Amendment all the time. A reader of this blog, who shares my sense of humor, sent me a link about a search (but not seizure) that I found utterly astounding. The case begins at Walmart, finds its way to the hospital, and then ultimately to federal court. Read on.


23 responses

  1. We has a Fourth Amendment??? Not in THIS country, Keemosabe!

    In law, the true stories are the funniest ones. Even Grisham couldn’t make them up. And as this one makes Scalia look especially bad, it is likely to be indulged. But I have to lay down a proper foundation for the Fourth Amendment issue to become clear.

    Plaintiff files official capacity action challenging the constitutionality of discretionary certiorari review (a logical corollary of Anastasoff). Pt has cases in the appellate pipeline, thus meeting the threshold requirement of standing. Lower courts declare that they don’t have jurisdiction (thus begging the question of whether Judge Judy is available).

    As is ALWAYS the case with respect to ANY lawsuit involving the power and perquisites of the judiciary, “undue guild favoritism” goes into overdrive, “precedent” is reduced to kindling, and the decision is spectacularly irrational. “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff,” 28 U.S.C. § 1361, and yes, that does include judges. Ex parte Roe, 234 U.S. 70, 72 (1914). And this must be so, for if “no officer of the law may set that law at defiance with impunity,” United States v. Lee, 106 U.S. 196, 220 (1882), another officer must have power to compel that officer’s compliance with it. Justice Thomas emphatically declared that “a court should always turn first to one cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then this first canon is also the last: ‘judicial inquiry is complete’”? Connecticut Nat’l. Bank v. Germain, 503 U.S. 249, 253-54 (1992) (Opinion of Thomas, J., collecting 200 years’ worth of case law). And of course, the case must be “a strong one indeed, which would justify a court in departing from the plain meaning of words … in search of an intention which the words themselves did not suggest.” United States v. Wiltberger, 18 U.S. 76, 96 (1820). And if there was a strong case for saying that Congress really intended, even though they did not say it when they had an opportunity to do so, it cannot be discerned from the perfunctory unpublished opinions issued.

    Case goes to SCOTUS. And here’s the gobstopper: The Justices recuse en masse!

    You may recall that in a celebrated case, the Oracle of Originalism declared that it was his duty to hear all official capacity actions brought before the Court, even if he received a gratuity from one of the parties which was tantamount to a bribe. Cheney v. United States Ct. of App. for the District of Columbia, 541 U.S. 913, 914 (2004) (Scalia, J., memo) (catching a ride on Vice President Cheney’s private plane; the value of a bribe is its value to the recipient. E.g., United States v. Gorman, 807 F.2d 1299, 1305 (6th Cir. 1986); United States v. Williams, 705 F.2d 603 (2d Cir. 1983) (re: business loan to Senator). A quorum of sitting Justices signed on to the Rehnquist letter Scalia relied on, thereby acknowledging their duty to hear official capacity actions.

    Where rights begin, discretion ends. When a plaintiff with standing presents a justiciable question to a federal court, it is NOT a polite request. The plaintiff has an absolute right to have the question decided and that court, a concomitant duty to decide it. Marbury v. Madison, 5 U.S. 137, 163 (1803). The judge’s willful failure to discharge that duty has been called “treason to the Constitution,” Cohens v. Virginia, 16 U.S. 264, 404 (1821). Courts “are bound to proceed to judgment, and to afford redress to suitors before them, in every case to which their jurisdiction extends,” Hyde v. Stone, 61 U.S. 170, 176 (1857), as the existence of jurisdiction “creates an implication of duty to exercise it.” Mondou v. New York, N.H. & H. R. Co., 223 U. S. 1, 58 (1912). The refusal to discharge that duty is a self-evident violation of a judge’s good behavior tenure, constituting a de facto resignation.

    At common law, good behavior tenure was originally enforced by the sovereign. But as this power concerned only the interests of his subjects, and the King exercised it only in parens patriae, he was bound by law to allow the use of it to any subject interested. Blackstone explains:

    WHERE the crown hath unadvisedly granted any thing by letters patent, which ought not to be granted, or where the patentee hath done an act that amounts to a forfeiture of the grant, the remedy to repeal the patent is by writ of scire facias in chancery. This may be brought either on the part of the king, in order to resume the thing granted; or, if the grant be injurious to a subject, the king is bound of right to permit him (upon his petition) to use his royal name for repealing the patent in a scire facias.

    3 William Blackstone, Commentaries on the Laws of England 260-61 (1765); see, United States v. American Bell Tel. Co., 28 U.S. 315, 360 (1888) (explaining the process)

    By making a public official subject to removal for violating it, the condition of good behavior defined the powers of a given office. Coke listed three grounds for forfeiture of good behavior tenure: abuse of office, nonuse of office, and a willful refusal to exercise an office. R. v. Bailiffs of Ipswich [1706] 91 Eng. Rep. 378 (K.B.) (corporate recorder forfeited his office for a failure to attend corporate meetings); Henry v. Barkley [1596] 79 Eng. Rep. 1223, 1224 (K.B.); see generally, Saikrishna Prakash & Steven D. Smith, How to Remove A Federal Judge, 116 Yale L.J. 72, 88-128 (2006). Blackstone adds that “oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office [could be prosecuted] either by impeachment in parliament, or by information in the court of king’s bench.” 4 Blackstone, Commentaries at 140-41. While an English judge could be removed by an address of both houses of Parliament, Act of Settlement, supra, Harvard’s legendary Raoul Berger noted that “the decided preponderance of authority, Lord Chancellor Erskine, Holdsworth, and others, consider that this provision did not exclude other means of [judicial] removal, that is, by impeachment, scire facias, or criminal conviction.” Raoul Berger, Impeachment: The Constitutional Problems 157 (Harvard U. Pr. 1974) (footnote omitted).

    Personal capacity lawsuit, served on the Justices at One First Street. Justices accept service. Amended complaint and jury demand (scire facias actions were heard by juries at common law) sent to last known address. Returned refused.

    Since the gnomes at SCOTUS refused to accept the paper, subsequent papers were sent to the Justices’ (and judges, who unprofessionally refused to waive service–one actually hid from the process server!) home addresses. And of course, you have to add the mailing addresses (no one from the DoJ entered an appearance at that time) to the Certificate of Service.

    Scalia and Thomas had kittens, and here’s where the Fourth Amendment comes in.

    DoJ attorney filed a motion, claiming that the Justices had a “considerable privacy interest” in their home addresses–information which has been a part of the public record since the first Domesday Book, and which is readily available on the Internet:–demanding that their addresses be redacted.

    This is the same Antonin Scalia who insists that there is no generalized right to privacy. You don’t have a right to privacy–in the contents of your car, your mind, your bowels–but your betters on the bench do.

    The federal bench is the equivalent of the Penn State football program, with 99% of judges being the Jerry Sanduskys abusing young children (defenseless litigants) in the shower, the Mike McQuearys who turn a blind eye to it and/or refuse to speak up (Judge Gertner didn’t turn state’s evidence until she left the bench), or the Joe Paternos who actively facilitate it. All you need to know to know how that motion turned out is that the judges asked for it.


    Our judiciary is hopelessly and predictably broken, because our judges are unaccountable.

  2. Judge Kopf – I know you have a very tolerant policy on comments, but I, for one, do not think you need to — or should — allow your comments area to become an open forum for anyone who feels like it to post what amounts to his own blog on any subject he chooses, even when it does not qualify, however broadly construed, as a comment on your principal post.

  3. “[Mr. Smith], what you’ve just said is one of the most insanely idiotic things I have ever [read]. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone [who reads your post] is now dumber for having [done so]. I award you no points, and may God have mercy on your soul.” -from a wise source

  4. I always knew there was a reason I always hung out with the Law students when I went through Nursing school. They always knew I was a very compassionate and sensitive Nursing student. I always knew I could turn to one of them to make it “right” and put a smile on my face, especially when they could see a “tear” falling from my “eyes”!!!

  5. pdgpa,

    I agree. I recently added a page on “Rules” to the masthead. I suggest that Ken Smith read it.

    All the best.


  6. Alternatively, Mr Eckert could have voluntarily consented to the…inspection…by crapping in the back seat of the squad car.

    Or not.

    On another subject, may I suggest DFTT.

    Eric Hines

  7. As much as it pains me, I’m afraid the officers are going to win under the good faith doctrine. They had a warrant and unless the warrant somehow limited the extent of the search and resulting intrusion, most federal courts would treat them like Gomer Pyle, pure heart, empty head.
    This case should make us all sick. A Supreme Court that OKs strip searches of people arrested for minor traffic offenses would have no problem with a search conducted pursuant to a warrant regardless of how deficient the warrant and its probable cause.
    Not too long ago, the Texas Court of Criminal Appeals affirmed a warrantless arrest of a person who was then taken by the cop to a fire station where the cop performed a visual body cavity search. McGee v. State, 105 S.W.3d 609 (Tex. Crim. App. 2003). Oh, yes, McGee was arrested because a cop smelled marijuana on him and had information from a snitch that he kept drugs in his, well, in that place where the sun doesn’t shine.

  8. Agree 100% on both counts. Although we’ve learned from Judge Kopf that certain Circuits are just as happy to opine about inappropriately placed… I can’t believe I’m about to type this… chunks of feces. I must therefore conclude that crapping is a Fourth Amendment obligation but not a First Amendment right. Some law student (or ten) is going to have a lot of fun with this for a law review article.

  9. Rich, I used to sometimes think that qualified immunity was a ridiculous test, as you’d read opinions discussing various twists in Supreme Court jurisprudence and whether a reasonable police officer would have known that there was a “clearly established” right of the now-plaintiff that was violated. I have to say that assuming that the plaintiff’s account is even 30% true,that somewhere — well before the end of the line — reasonable government officials would have understood that they were well on the unconstitutional side of the line. This might be a case to confess liability and limit the trial to damages — or better yet settle it. Best, Pat.

  10. Whereas I will comply with the aforementioned strictures heretofore, as I have been attacked viciously and personally and for no discernible reason, I will take the liberty of letting Justice Wilson (author of Article III), the late Judge Richard Arnold, and retired Judge Gertner respond to Mr. Borg:

    In a lecture on the nature of courts, Justice (Professor) James Wilson—the principal author of Article III—explains why a supreme court is an essential feature of any rational system of jurisprudence, and error-correction is an integral part of its duties:

    In every judicial department, well arranged and well organized, there should be a regular, progressive, gradation of jurisdiction; and one supreme tribunal should superintend and govern all the others.

    An arrangement in this manner is proper for two reasons. 1. The supreme tribunal produces and preserves a uniformity of decision through the whole judicial system. 2. It confines and supports every inferior court within the limits of its just jurisdiction.

    If no superintending tribunal of this nature were established, different courts might adopt different and even contradictory rules of decision; and the distractions, springing from these different and contradictory rules, would be without remedy and without end. Opposite determinations of the same question, in different courts, would be equally final and irreversible.

    2 The Works of James Wilson 149-50 (James D. Andrews ed., 1896) (emphasis added).

    Perhaps it is just me, Mr. Borg, but I have always presumed that the man who designed our legal system had some idea as to what he was doing, and the evils he was attempting to guard against (inconsistent decisions, inimical to the rule of law). And from this quote, it appears that Professor (Justice) Story and Judge Arnold saw it my way, as well:

    To summarize, in the late eighteenth century, the doctrine of precedent was well-established in legal practice (despite the absence of a reporting system), regarded as an immemorial custom, and valued for its role in past struggles for liberty. The duty of courts to follow their prior decisions was understood to derive from the nature of the judicial power itself and to separate it from a dangerous union with the legislative power. The statements of the Framers indicate an understanding and acceptance of these principles. We conclude therefore that, as the Framers intended, the doctrine of precedent limits the “judicial power” delegated to the courts in Article III. No less an authority than Justice (Professor) Joseph Story is in accord. See his Commentaries on the Constitution of the United States §§ 377-78 (1833):

    “The case is not alone considered as decided and settled; but the principles of the decision are held, as precedents and authority, to bind future cases of the same nature. This is the constant practice under our whole system of jurisprudence. Our ancestors brought it with them, when they first emigrated to this country; and it is, and always has been considered, as the great security of our rights, our liberties, and our property. It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice or will of judges. A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.

    This known course of proceeding, this settled habit of thinking, this conclusive effect of judicial adjudications, was in the full view of the framers of the constitution. It was required, and enforced in every state in the Union; and a departure from it would have been justly deemed an approach to tyranny and arbitrary power, to the exercise of mere discretion, and to the abandonment of all the just checks upon judicial authority.

    Anastasoff v. United States, 223 F.3d 898, 903-04 (8th Cir. 2000) (emphasis added).

    Go ahead and assimilate me, Mr. Borg. Demonstrate your superior hive intelligence. Explain precisely how, in the absence of mandatory certiorari review of irregular decisions (a right recognized everywhere else in the Commonwealth), in a regime where over 80% of all decisions do not have precedential effect, and where appellate court judges are not accountable for their actions, we can have any assurance whatever that when we walk into a courtroom, we will get the benefit of the same law that our neighbor did. [Hint: there isn’t any.]

    Now, let’s turn to Judge Gertner: ” Fact is that federal judges in my view are effecting a virtual repeal of Title VII, in a thousand decisions like Todd v. Freese.” Perhaps you would be so kind as to point out what constitutional authority, if any, you have for the proposition that judges have authority to veto any law they don’t like.

    The difference between you and I, Mr. Borg, is that I back up everything I say. Funny that you would take such umbrage at so many hidebound SCOTUS pronouncements….

    Richard Arnold was smart enough to see this. Please tell us Judge Arnold was a microencephalic idiot, who deserves “no points.”

    I can lead you to knowledge, Mr. Borg, but I can’t make you think.

  11. I submit that it is a 1st Amendment right: by selecting that particular means of consenting to the inspection, Mr Eckert also would be exercising his right to…petition…his government for redress.

    And a neatly placed steaming pile surely would survive the Strong smell test.

    Eric Hines

  12. Thanks for citing my hero, James Wilson. But your comments still do not bear on Judge Kopf’s original post, Ken, and thus appear to be abusive.

  13. …or better yet settle it.

    Were I in Eckert’s shoes, I’m not sure I’d agree to any settlement. Aside from the degree of integrity demonstrated by the now-defendants making the reliability of any settlement impossible to assume, I can’t envision any terms that now-defendants would agree that I would find acceptable.

    I’d roll the dice on a jury trial and the public humiliation of now-defendants.

    Eric Hines

  14. As a sexual assault forensic examiner, I have faced the wrath of police and prosecutor when I informed them (fortunately only in hypothetical during a policy working group) that I would not perform a forced vaginal examination on a restrained, nonconsentng suspect, even when presented with a warrant authorizing the same.

    I warrant may legally allow the search, but it does not excuse me from my ethical duties as a physician. Duties like nonmalfesence (i.e. not harming people by shoving your fingers into their genitals without permission) and Informed consent (the police were also upset that I would not participate in “conning” patients into being examined by lying that I might find evidence to establish their innocence.) I also have a duty of advocacy — to want my patients about risks they face (like the legal risks inherent in cooperating with the police who are trying to incarcerate you.)

    What I really don’t understand is “why are doctors involved at all?” Its not like rectal exams are that hard to do. You can buy enemas at the drug store that come with simple instructions on the box. Unless there is a real technical skill involved (which I admit does apply to radiography and colonoscopy) why is an intimate search any more palatable when the person searching happens to have graduated from medical school.

    In summary: If you want to know if there are drugs in his rectum — get your own finger dirty!

  15. To add insult to injury, the victim was charged by the hospital for its services in abusing him. The linked story includes the civil complaint and on page 27, it alleges the hospital billed him.
    What a crock.
    But, I guess it’s not unheard of. When the Chinese execute someone with a bullet in the back of the head, the family is billed for the bullet.

  16. Pingback: A New Low: Vaginal Probes At The Border | Simple Justice

%d bloggers like this: