MARY REICHARD, HOST: It’s Monday morning and here we are for another week of The World and Everything in It. It’s March 15th, 2021 and we’re so glad to have you along today. Good morning. I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher.
Last week the U.S. Supreme Court handed victory to a young man whose college violated his right to free speech.
Chike Uzuegbunum had to obtain a permit to speak in Georgia Gwinnett College’s free speech zone. Still, some people complained about him sharing his Christian faith even in that zone. So the college again shut him down.
It wasn’t until Uzuegbunam sued that the college changed its policy to comport with the First Amendment.
By the time his case reached the Supreme Court, the question was whether that late change in policy made his case moot. The offending policy was gone, and all Uzuegbunum asked for now were nominal damages.
REICHARD: By a vote of 8-1, the justices decided the case is not moot.
Here’s what his lawyer Kristen Waggoner said after the ruling came in:
WAGGONER: It would have been nice if that had been the policy all the way along and he hadn’t had to go to the court. But the court affirmed, that the government officials should be accountable when they violate someone’s rights because those violations cause real harm, even if you can’t put a dollar amount on that harm.
EICHER: Uzuegbunum may now continue his quest for justice in lower court.
Interestingly, this is the first time Chief Justice John Roberts is the lone dissenter in any case since he took the high court bench. His main concern was this could open up the courts to a flood of litigation.
REICHARD: Or maybe not. If First Freedoms have the support of Clarence Thomas on one hand and Sonia Sotomayor on the other? Maybe first amendment violators will think twice.
Now onto coverage of an oral argument the court heard in February. A major search-and-seizure case.
The Fourth Amendment gives we the people the right to be secure against unreasonable searches and seizures. It guarantees that right shall not be violated except upon probable cause with a warrant.
Carve-outs to this include “exigent circumstances.” And that’s a key term. For example, an exigent circumstance might be when an officer pursues an armed robber who runs into a home. In a case like that, police need not obtain a warrant when in hot pursuit of a fleeing suspect.
The question is what do “exigent circumstances” include?
EICHER: Here are the facts. In 2016, Arthur Lange was driving home. He had the music up loud and was honking his horn. Eventually, he’d pass by a California highway patrolman.
Turns out, excessive noise is a misdemeanor in California, for which the punishment is a fine.
So the officer followed Lange for a while, before deciding to flash his lights to signal Lange to pull over.
Lange would later say he didn’t see the lights and was nearly home anyway, so he turned into his driveway, drove into his garage, and pressed the button to close the garage door.
The officer got out of his car, hurried up to the garage door, and placed his foot under the door to trigger the sensor and make it reopen.
That’s when he encountered Lange and noticed tell-tale signs of intoxication: bloodshot eyes, slurred speech, and alcohol on the breath.
REICHARD: A blood test showed Lange’s blood alcohol content to be three times the legal limit. A court convicted him of driving under the influence, but that’s still only a misdemeanor in that jurisdiction.
Lange seeks to overturn that conviction. He says the sobriety test evidence obtained by the officer violated his Fourth Amendment right against unreasonable search and seizure. He’d only committed a misdemeanor and nobody was in immediate danger. So he says, this was no “exigent circumstance” to justify warrantless entry into his home.
But the officer argues this is a case of hot pursuit, and that makes it an exigent circumstance.
Lange’s lawyer argued against making every single case of “hot pursuit” count as an exigent circumstance. There are lots of reasons why people might continue into their garages when pursued by police. Here’s Jeffrey Fisher:
LANGE: Teenagers are sometimes frightened or confused and wish their parents to be present for any questioning. Women driving alone are sometimes afraid to stop on dark roads and occasionally are not even sure those following them are police officers. And residents of certain communities often wish to avoid having others see them interacting with the police, particularly when they’re likely to be asked to identify perpetrators of other more serious offenses.
Here, the officer could have taken some time to get a warrant or just knocked on the door.
Chief Justice John Roberts saw problems with that.
ROBERTS: I would expect that would be a terribly dangerous situation. The one thing you know is that the person inside is trying to get away from you, and, you know, if you go right up to the door and knock, there’s no reason you shouldn’t be concerned that he might swing the door open and have a gun. And the alternative you suggest about, well, just, you can go get a warrant, but you still don’t have any idea how long that’s going to take, and during that time, you know, the person in the house can also destroy evidence or, again, arm himself.
Fisher acknowledged some danger exists. But a categorical rule saying every fact situation gets swept into the “hot-pursuit” exception is just too broad. Better to slow down and put the intent of the Fourth Amendment first. That is, to keep us safe and secure from government intrusion into our own homes.
On the other side in support of the officer’s warrantless entry into Lange’s home was lawyer Amanda Rice. She argued the best way forward is for the court to make a bright-line rule for officers to follow. Note that I’ve edited the audio for flow.
RICE: In this case, Office Weikert’s split-second decision to stop the garage door from closing was a reasonable minimal intrusion that almost certainly prevented Petitioner from getting away with drunk driving by refusing to heed the officer’s lawful order to stop. In the end, the categorical hot-pursuit rule does nothing more and nothing less than prevent suspects from grafting the protections of the home onto lawful public encounters by engaging in wrongful conduct.
But Justice Samuel Alito saw the video of what lawyer Rice was calling hot pursuit. He wasn’t persuaded.
ALITO: Well, I will tell you, looking at this video, I see no attempts to avoid arrest. I see somebody who may well have not have even noticed these lights and simply proceeded into his own garage.
Again, Fisher, lawyer for the aggrieved driver, wants the Supreme Court to draw a different bright line: when the underlying conduct is only a misdemeanor, police should not be allowed to get around the warrant requirement simply by chasing the suspect into his home.
He points to Supreme Court precedent that allows for that only when in pursuit of a suspected felon.
Listen to Justice Stephen Breyer address Rice regarding his worries about silly laws and overreaching prosecutors.
BREYER: Well, I mean, this is a tough case. If we take your view, then it seems like the home isn’t the castle at all for the most trivial of things. I mean, many examples — I like the rabbit example. I don’t know why California has made it a crime to give a rabbit as a lottery prize or something. But, I mean, it seems ridiculous and your home isn’t your castle for terribly minor things.
RICE: I agree that that sounds like a pretty silly law…
BREYER: Yeah, but I mean we can think of about fifty of those when we start getting into misdemeanors.
Justice Breyer also pointed out the problem of different states having different rules about what counts as a misdemeanor or a felony. Listen to this exchange with Deputy Solicitor General of California, Samuel Harbourt:
BREYER: So, in Massachusetts, if, in fact, he’s beaten up into a bloody pulp four people, you cannot just automatically hotly pursue him into the house, but, in California, you can because it’s a felony, or what? I mean, they’ll be all over the place. We’ll have — I mean, that’s what I don’t see how to draw this line, misdemeanor, felony. And you don’t in California. What you, in fact, have been saying is the hot-pursuit rule also allows pursuit into the home if it’s jailable, which, by the way, picks up auctioning off a rabbit as a prize, which carries a jail term.
HARBOURT: Your Honor, I think the Court could avoid those — those consequences …
Harbourt answered that a lot of states define misdemeanor as an offense authorizing up to a year of incarceration, so why not use that?
But one of the former prosecutors on the Supreme Court saw potential nonsense in that. Justice Elena Kagan wondered whether level of violence might be the better way to analyze the hot-pursuit exception to obtaining a warrant.
KAGAN: Most domestic violence laws continue to be misdemeanors. And then on the other hand, most white-collar fraud offenses are felonies. That doesn’t seem to make a whole lot of sense with respect to when you’d allow intrusions into the home and when not.
Clarity on this matter is sorely needed. The circuits disagree on whether hot pursuit includes misdemeanors.
Indeed, one amicus brief made the point misdemeanors make up three of every four criminal charges. Nonviolent offenses that range from defacing currency to the example Justice Breyer gave: auctioning rabbits in California.
It seems appropriate to end by quoting from Justice Robert Jackson’s dissent in a 1949 case called Brinegar v United States. Justice Jackson had once been a chief prosecutor of Nazi war criminals at Nuremberg, and so he’d thought a lot about the power of the government over the individual.
“Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. Fourth Amendment freedoms … are not mere second-class rights but belong in the catalog of indispensable freedoms.”
The importance of what the Supreme Court decides here affects us all. And sometimes the facts of a particular case make it very difficult to draw bright lines.
And that’s this week’s Legal Docket.