Today in Supreme Court History: June 10, 1916

6/10/1916: Justice Charles Evans Hughes resigns.

Chief Justice Charles Evans Hughes

 

Comments

[Dan Schiavetta]

Terry v. Ohio, 392 U.S. 1 (decided June 10, 1968): allowed "stop and frisk" without warrant if suspicion of armed and involved in a crime

Whren v. United States, 517 U.S. 806 (decided June 10, 1996): any traffic offense (here, speeding when approached by police) is pretext for stopping car (after which police saw two bags of cocaine in front seat)

Borden v. United States, 593 U.S. --- (decided June 10, 2021): enhanced sentence under Armed Career Criminal Act provision as to three previous armed felonies upheld even though one of the earlier convictions was based on reckless (not intentional) conduct

City of Chicago v. Morales, 527 U.S. 41 (decided June 10, 1999): Chicago ordinance prohibiting "criminal street gang members" from loitering struck down on due process grounds as too vague and an arbitrary restriction on personal liberties

McKune v. Lile, 536 U.S. 24 (decided June 10, 2002): no violation of Fifth Amendment where convicted rapist was threatened with transfer to maximum security prison if he refused therapy, even though counseling was not confidential and statements could be used against him

Jenkins v. Anderson, 447 U.S. 231 (decided June 10, 1980): defendant's silence can be used against him if the silence was pre-arrest, i.e., before Miranda warnings had to be given (here, his defense to murder was self-defense but odd that he never told police that)

Standard Stock Food Co. v. Wright, 225 U.S. 540 (decided June 10, 1912): Iowa law requiring listing of certain ingredients on containers of animal feed did not violate Dormant Commerce Clause; this was an inspection law and effect on interstate commerce was "incidental" even though the feed was shipped to Nebraska

Chicago, R.I. & P.R. Co. v. Brown, 229 U.S. 317 (decided June 10, 1913): upholding verdict for switchman whose leg was cut off by colliding railroad cars due to defective safety hook (in violation of federal statute); it was not contributory negligence for him to go in between the cars because he had to move quickly to prevent collision (this principle was played for laughs in a much less serious case, Cordas v. Peerless Transp. Co., the most garishly written opinion in history)

[John F. Carr]

Whren is one of my least favorite cases. I would say due process prohibits arbitrary enforcement of traffic laws. Provide public verifiable standards (which once upon a time might have been a speed limit sign, but not these past 50 years) or you can't enforce the law at all.

The Supreme Judicial Court of Massachusetts voted to uphold the principle recently. Is it per se illegal to touch the white edge line, the second favorite pretext after speeding? Yes, by a 4-3 margin, despite the court knowing that nobody really cared about the white line and it was only an excuse to pull people over.

[Dan Schiavetta]

In Whren, defendant's car was stopped in the middle of the street, then when the police car approached he did a U-turn and tried to escape by driving fast (maybe not technically speeding). The police were surely correct to suspect criminal activity, but the reason for the stop has to be "articulable". This was clearly "suspicious" behavior but that word alone won't cut it.

[John F. Carr]

If you look at police you are guilty. If you look away from police you are guilty. The Fifth Circuit once upheld a traffic stop when the driver slowed down for a school zone outside of school hours, knowing law enforcement had been tailing him for the last 50 miles or so looking for any excuse. Suspicious articulable nonsense.

[DaivdBehar]

This is where full tort liability would improve the practice. Make all immune parties comply with professional standards of due care.

[Dilan Esper]

Right. I'm very skeptical of the police reasoning that anyone who doesn't want to talk to a cop is guilty of something, and certainly don't think courts should accept it.

As for Whren, he should have gotten a traffic ticket.

[Dan Schiavetta]

So you agree that Whren should have been stopped? That's what police have to do if they're going to give a traffic ticket. Stopping was the whole point, because the cocaine bags were then in "full view" and admissible despite lack of a warrant.

[Bob from Ohio]

"public verifiable standards"

We call those things "laws" and "ordinances" and "statutes" and they already exist.

You are calling for zero enforcement of traffic laws so a few criminals avoid getting stopped.

[John F. Carr]

No, they don't exist. That "SPEED LIMIT 55" sign on the highway near me has nothing to do with any standard used by police to stop people or any law the government actually wants enforced. Under these circumstances, when police assigned special duty to enforce only the law in question let well over 99% of the violators go and make arbitrary decisions about who to arrest, they should be absolutely forbidden from enforcing the speed limit under any circumstances. The government has failed to provide fair notice to the people of what is actually prohibited and has given too much discretion to police. Have a (radar) gun, go to jail.

In constitutional law terms, I would greatly extend the narrow exception of _Nieves v. Bartlett_ allowing an action for an arrest based on probable cause "when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been."

[Bob from Ohio]

"absolutely forbidden from enforcing the speed limit under any circumstances."

Interesting anarchist view. I don't think the S/C will fall for it anytime soon.

What does "protected speech " have to do with breaking traffic laws?

[David Nieporent]

Speed limits are public verifiable standards. Most other traffic laws are not. They are subjective, and it is literally impossible to drive in such a way that one cannot be accused of violating them. (Remember that the driver doesn't even have to have violated them! The cop just has to be able to articulate a basis for thinking that he did, to justify a stop.)

[Michael D]

I can tell you that Terry has turned from being a stop and frisk for suspicion of being armed and involved in a crime to suspicion of possessing drugs and/or drug paraphernalia, in practice.

The misuse of Terry stops and other activities by law enforcement in the prosecution of the drug war has convinced me of one thing with total certitude, that the war on drugs must come to an end.

It has also made me question, but with far less certitude, the wording of the 4th amendment allowing reasonable searches. I once questioned whether the word “unwarranted” should have been used in place of “unreasonable”. But this is mere speculation on my part and the repercussions of such a change might reach further than I can immediately contemplate.

[Dilan Esper]

Any power that you give the cops will be used to fight the war on drugs. People think "we need to do X to fight terrorism", but whatever X is, it will be then be used to fight the war on drugs.

[Michael D]

That is exactly right!