The Volokh Conspiracy

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Volokh Conspiracy

Who will prevail in the sexual-orientation discrimination and parking stop cases?


I spent yesterday morning attending the en banc oral arguments at the U.S. Court of Appeals for the 7th Circuit, which are always a treat. You can already listen to them online (here and here) because the 7th Circuit is very good about these things. In any event, a few thoughts:

Hively—the Title VII/sexual orientation case (previewed here): The courtroom was packed for this argument (and I was shunted to an overflow room), but there were very few surprises. Both parties made more or less the arguments you would expect them to make, although the defendant's lawyer made them without much enthusiasm, and while stressing that, in fact, the defendant is opposed to discrimination on the basis of sexual orientation despite its position on federal law.

Interesting moments included:

  • Judge Easterbrook's aggressive questioning of the defendant's lawyer on the basis of Loving v. Virginia.
  • Judge Posner asking "Why do you think there are lesbians?" followed by a bad joke by Judge Bauer followed by Judge Posner's suggestion that lesbians in fact have a different "sex" from heterosexual women(!).
  • Judge Posner's complaint about Justice Scalia's hypocrisy in joining the flag-burning opinion in Texas v. Johnson, which (Posner thought) obviously could not be justified on originalist grounds. (Posner has apparently not encountered co-blogger Eugene's excellent article on the history of symbolic speech and burning effigies.)

But really, the only interesting questions left at the end were 1) on which theory exactly Ms. Hively would prevail, and 2) whether the decision would be unanimous.

Johnson—the "parking while black" case (previewed here): Although the courtroom half-cleared out after this first argument, I think this one turned out to be the interesting one. I was pleased to see that some common ground (correctly, I think) was established pretty early on—on the one hand, there seemed to be general agreement that this was a seizure under the Fourth Amendment, and so required justification; on the other hand, there seemed to be general agreement that given sufficient evidence of a parking violation, police officers can write a ticket and make a seizure while doing so.

That left one major question, though along the way we got entertaining digressions on snow control in Midwestern cities; the ability of hardy Midwesterners to endure cold temperatures; the time it takes to get a latte at Starbucks (30 minutes, apparently, near the courthouse); and the best time of night to go liquor-shopping.

The major substantive question was: Was there sufficient evidence to support the stop? This turns out partly to come down to a dispute about Wisconsin law—does the privilege of "receiving or discharging passengers" mean that as soon as the passenger gets out of the car, you have to keep moving and park or circle around the block? Or does it mean you can sit there for a few minutes while the passenger runs a short errand? I confess I wondered whether nine 7th Circuit judges had really gathered in the en banc courtroom to resolve this question of Wisconsin traffic law—interesting though it is—but it does seem to me that the case may be impossible to resolve without it.

And this question is partly a substantive Fourth Amendment question about how to think about probable cause for multi-part legal requirements. If a law makes something illegal in situation X, but not in situation Y, is it always/sometimes/never necessary for the police to have probable cause to believe that X, and not Y, is the case? Or does it depend on how the law is formulated—for instance, as a complete offense with an affirmative defense, as a single sentence with an "unless" clause," as a single sentence without an "unless" clause, or something else? For instance, off the top of my head, I wondered about:

  • A person carrying a firearm who might or might not have a concealed-weapons permit.
  • A person carrying a firearm who might or might not be a felon.
  • A person exceeding the speed limit who might or might not be a government official, in an unmarked car, entitled to the "public authority" defense.
  • A person on private property who might or might not be a trespasser.
  • A person using a smartphone with one hand while driving who might or might not be texting.

My intuitions about each of these "might or might not" clauses is not exactly the same, and I wonder whether it is possible to come up with a categorical rule for dealing with them. If it is, perhaps the best solution is an intermediate one. Surely a police officer is not required to affirmatively rule out every innocent explanation for possibly criminal conduct. At the same time, a police officer is not allowed to assume that every uncertain situation is a criminal one. So perhaps a police officer must at least have probable cause to doubt that the innocent explanation is true.

Or perhaps there's a more satisfying solution to this problem that I haven't encountered yet.

Finally, there did seem to be a lingering question about whether the entire legal apparatus of the law of "traffic stops" can really be fairly applied to parking violations and other non-moving violations. This approach might do a better job of capturing what really troubled some of the judges about this kind of police encounter. But it may require some technical line drawing about the difference between traffic and parking, which at oral argument devolved into a discussion of the "leading treatise on Wisconsin traffic law" and whether a crosswalk violation was a moving violation under Wisconsin law.

From what I know so far, the lawfulness of this stop strikes me as a very close case. But I emerged from the argument more interested in Wisconsin traffic law than I had ever been before.