chops_
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- Sep 13, 2018
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Judge Kavanaugh on the Fourth Amendment - SCOTUSblog
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1. The balancing cases: Askew and Vilsack
The first two cases to consider involve balancing of government and privacy interests. In both cases, the majority held that the government practice violated the Fourth Amendment. Kavanaugh dissented, largely on the ground that he would have balanced the interests differently and therefore would have ruled for the government. In a close case that requires balancing of interests, the cases suggest, Kavanaugh is more likely to approach the case from the government’s perspective than from the individual’s perspective.
The first case is United States v. Askew, a stop-and-frisk case. The police stopped the suspect based on suspicion that he had just committed an armed robbery. After an initial frisk for weapons came up empty, an officer unzipped the suspect’s outer jacket to see if his clothing matched eyewitness descriptions of what the robber was wearing. It turned out the initial frisk had been poorly done: Unzipping the jacket revealed a gun in Askew’s waist pouch. Remarkably, the D.C. Circuit went en banc and divided sharply over whether the outer-jacket unzipping was allowed. As I joked at the time, the D.C. Circuit’s 85 pages of serious constitutional analysis, spread over three opinions, was “the latest in zipper jurisprudence.”
Askew is factually messy and a bit hard to summarize, but the most significant legal issue was whether the Fourth Amendment permits the police to move a suspect’s clothing to facilitate an eyewitness identification during a stop that is otherwise valid under the Supreme Court’s 1968 decision in Terry v. Ohio.
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2. The flagging-for-SCOTUS cases: Wesby and Maynard
The next two cases show Kavanaugh writing on the Fourth Amendment in dissents from denial of rehearing en banc. In both cases, the original panel reached a surprising holding that the government had violated the Fourth Amendment. In both cases, Kavanaugh dissented from the full circuit’s refusal to review the outlier panel opinion. And in both cases, the Supreme Court subsequently granted certiorari and handed down a majority opinion that largely echoed Kavanaugh’s reasoning. I think of these cases as the “flagging for SCOTUS” cases because it’s possible that Kavanaugh’s dissents were written to flag the cases for the justices. And whether or not Kavanaugh intended it, his dissents appear to have done just that.
The first case is along these lines is Wesby v. District of Columbia, which involved trespass arrests at a loud party held in a vacant house. When the police arrived, and the people in the house had trouble identifying whose house it was, the police arrested everyone for trespass. The group sued the officers under the Fourth Amendment. In an opinion by Judge Cornelia Pillard, the D.C. Circuit somewhat remarkably held that the arrests violated the Fourth Amendment and that qualified immunity did not apply. Kavanaugh penned a dissent from denial of rehearing en banc that was joined by Henderson, Brown and Griffith.
Although Kavanaugh’s dissent mentioned the Fourth Amendment merits in passing, it focused primarily on qualified immunity. In Kavanaugh’s view, qualified immunity plainly barred the suit. Both the facts and the law created lots of room for a reasonable officer to believe the arrests were based on probable cause. “To be sure,” he added, “I do not dismiss the irritation and anguish, as well as the reputational and economic harm, that can come from being arrested. Police officers should never lightly take that step, and the courts should not hesitate to impose liability when officers act unreasonably in light of clearly established law. But that is not what happened here, not by a long shot.” The Supreme Court granted cert and reversed unanimously, ruling that probable cause existed (a view held by seven justices) and holding that in any event qualified immunity applied much as Kavanaugh had argued (a position taken by all nine justices).
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3. The Section 215 opinion in Klayman
The last Kavanaugh opinion to consider is the one that has drawn the most attention. In Klayman v. Obama, Judge Richard Leon had ruled for the district court that the National Security Agency’s Section 215 call-records program violated the Fourth Amendment. Under the program, the NSA was getting the numbers dialed (but not the contents) for millions of Americans’ phone calls. Leon ruled that the program was unconstitutional but then stayed any remedy while the appeal was pending. The D.C. Circuit sent the case back to the district court on procedural grounds. With the Section 215 program about to expire, Leon quickly handed down a new decision that the program was unlawful and refused to grant a stay. The next day, the D.C. Circuit issued an administrative stay; plaintiff Larry Klayman then sought an emergency petition for rehearing en banc, which the full court denied.
Kavanaugh filed a two-page solo concurrence in the denial of rehearing. In his view, the Section 215 program was “entirely consistent with the Fourth Amendment.” That was true for two reasons. First, the Supreme Court had held that collecting telephony metadata was not a search in Smith v. Maryland. Smith settled the Section 215 question, in Kavanaugh’s view: “That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.” Second, even if a future court adopted a different a view of what is a search, the Section 215 program was still reasonable under the balancing of interests of the “special needs” exception (see the discussion of Vilsack above). “[T]elephony metadata serves a critically important special need – preventing terrorist attacks on the United States,” Kavanaugh wrote, citing the 2004 9/11 Commission Report. “[T]hat critical national security need outweighs the impact on privacy occasioned by this program.”
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One takeaway from Kavanaugh’s speech is that his Fourth Amendment views probably aren’t too far from Rehnquist’s. Rehnquist was a pretty reliable voice for law enforcement interests in Fourth Amendment cases. The affinity may be revealing.
With that said, it’s also worth noting that Rehnquist’s views in Fourth Amendment cases also weren’t too far from that of Kennedy, the justice for whom Kavanaugh clerked and whose place Kavanaugh has been nominated to fill. Like Rehnquist, Kennedy tended to take a law-enforcement-oriented view in Fourth Amendment cases. You might say that Kennedy’s views of the Fourth Amendment were Rehnquist-like but without the broader agenda of “rebalancing” the rules after the Warren court.
If so, perhaps Kavanaugh’s views are better described as Kennedy-esque than Rehnquist-like. Like Kennedy, Kavanaugh seems to take government interests very seriously. At the same time, Kavanaugh’s opinions don’t seem to reflect a broader agenda. Recall Kavanaugh’s Maynardconcurrence in particular. Although Kavanaugh was unpersuaded by the panel opinion’s novel theory, he wrote separately to provide an alternative basis for concluding that the GPS installation was a search.
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