New Cert Petition on Emergency Entry: What Was the Common Law Rule?

A few thoughts on a pending cert petition.

A cert petition was recently filed at the Supreme Court in Case v. Montana on the Fourth Amendment standards for entry into a home to help people in an emergency.  The question presented:

Whether law enforcement may enter a home without a search warrant based on less than probable cause that an emergency is occurring, or whether the emergency-aid exception requires probable cause.

The petition does not address the original public meaning of the Fourth Amendment, or the common law rules on this issue. But this is one area where there are common law authorities on the question, and they seem pretty home-protective.  Given the Supreme Court's increased interest in originalism, I thought I might blog about what the established rule was for this issue at the time of the adoption of the Fourth Amendment, which presumably would inform what would have been understood as an unreasonable search and seizure.

Let's start with what was perhaps the best treatise on common law rules of criminal procedure, William Hawkins, Pleas of the Crown (1787 ed).  Here's how Hawkins summarizes the rule:

Here Hawkins states the rule as allowing entry when the "affray" (somewhat a term of art in the 18th century, but basically meaning a really big fight) is made in the constable's "view or hearing." It's not just that the constable has heard about the fight. He needs to see it or hear it.  If he sees it or hears it, he can enter the home to "suppress the affray," that is, break up the fight.

What makes Hawkins particularly helpful as a treatise writer is that he cites sources.  On the side note, he cites five sources.  Let's take a look at them.

The first source is "Sum. 134-35."  That refers to Matthew Hale's short volume, Pleas of the Crown: or, a Methodical summary of the principal matters relating to that subject, from 1678.  The pincite is to Hale's discussion on the law of affrays, and he states the rule about the power of constables as follows:

Hale's short volume is less clear on the standard of entry. The constable ought to break up a fight in his presence (somewhere outside, one assumes) but there's nothing specific about what if the fight is ongoing in a house; does the constable need to see or hear the fight, as Hawkins is saying later on?

Hawkins next cited "2 Hale 95." That's a cite to Volume 2 of Hale's more developed and influential treatise, Historia Placitorum Coronæ, the 1736 edition of which contains the following at page 95:

In this volume, Hale talks of two different situations.  First, if there's an affray in the house, and "there is likely to be manslaughter or bloodshed committed," the constable can demand entrance, and if no one lets him in but the fight is still ongoing, he can break in.   Second, if there's a lot of noise going on at night, he can basically do the same.

Hawkins also cites "Crompton 170," which I assume refers to George Crompton's Practice Common-placed Or, The Rules & Cases of Practice in the Courts of King's Bench & Common Pleas, although at least on a quick look I can't find the relevant discussion. It may be that, since Hawkins wrote his treatise in 1719, that the pagination of Crompton was different from the later editions I find on Google books. Or maybe that's the wrong Crompton treatise? Not sure.  I'll have to look into that more later.

The next Hawkins cite is to "Dalton c.78," which is to Chapter 78 of Michael Dalton's Country Justice, the chapter on jails, although it seems to be mostly about who pays for setting up a jail (a big deal in an era where there was no state-provided jail).  That's perhaps relevant to the second common law rule in that Hawkins paragraph, about hot pursuit searches, but it doesn't seem relevant to the rules about emergency entry.

Finally, there's a citation to "B.P. Imprison. 6." I'm not sure what that is, but I wonder if it's to a Parlimentiary writ of the era, "B.P." standing for ""Brevia Parliamentaria," or "Before Parliament." Perhaps a writ relating to imprisonment powers, akin to the citation to Dalton above?  I'm not sure.

Anyway, combining the Hawkins rule from his Pleas of the Crown with the rule from Hale's Historia Placitorum Coronæ, I take the common law authorities to suggest some significant certainty about whether the "affray" is happening inside the house before the constable can enter.  Hawkins says the constable has to hear or see the big fight.  Hale says it needs to be "likely" that there will be manslaughter or bloodshed, something that to me sounds more suggestive of a probable cause standard.  Hale's mention of noise coning from the house seems consistent with a high certainty, too. The constable would hear the noise himself, being sure of it.

I'd need to look in a lot more detail to be sure of this. But at least on a quick look, it appears that there's significant common law support for the idea that the government needs a significant likelihood of harm occurring before entering the home.

Anyway, I have no idea if the Supreme Court will be interested in this case. The Court has not been much interested in its Fourth Amendment docket recently.  The state waived its opportunity to file a brief in opposition. But there are some significant common law materials on this question if the Court ends up interested in the issue.

UPDATE: Professor Tomás Gómez-Arostegui writes in with some very helpful suggestions:

1. The Dalton book he cites is the 1655 edition, where chapter 78 is on forcible entries, not jails.

2. The Crompton cite is to L Office Et Auctority de Iustices de Peace (1606). This book was by Fitzherbert, but the 1606 edition was enlarged by Crompton.

3. B.F. is Bro. Faux. Imprisonment, meaning Brooke's Abridgment under False Imprisonment. So he's citing to Brooke's Abridgment, tit. Faux Imprisonment, pl. 6. There are a few editions of Brooke: 1573, 1576, and 1586. Either one probably works.

Ooh, very excellent. I see an early copy of Dalton with the forcible entry section at Chapter 78 here, and it has the following:

As with Hale's short volume, there's nothing specific about the likelihood of the affray occurring.  Although if the discussion is of keeping the peace, maybe the idea is that the affray will be pretty obvious: If there's a big fight occurring, the constable will be aware of it.

I see a nice copy of Brooke's Abridgement (1576) for sale, but I think I'll pass on that, in part because it's so early it (as with the Crompton) is in Law French instead of English.

Anyway, thanks very much to Professor Gómez-Arostegui for the help.

 

Comments

[John F. Carr]

The underlying case is one of many where police responded to a report of a suicidal man by shooting the man. This man survived.

[John F. Carr]

Hawkins wrote about people hurting each other, not a single person arguably in need of help. What, if anything, did the law say about what we now call "community caretaking" interventions?

[Orin S. Kerr]

I haven't found anything specific on that, but note that the Hale treatise includes constables breaking in when there is "disorderly drinking or noise" at night. I take that this doesn't involve people hurting each other; how far the principle extended isn't clear.

[John F. Carr]

After I posted I remember the "breach of the peace" rule from my state's common law. I assume it was inherited from England. An officer can make a warrantless arrest if there is a breach of the peace. Present tense only, an ongoing incident. This could cover fighting noise from inside a house. A breach of the peace is supposed to be obvious to all. It should be uncommon to have only a reasonable suspicion of a breach of the peace. If the noise isn't a murder in progress it could still be disorderly conduct.

[Stephen Lathrop]

Professor Kerr, trouble is those are British sources. Of course I get that British common law was foundational throughout the first American colonies, and that the 7A mentions that, and ambiguously defers to it. With the ambiguity notably thick on the question whether anything regarding criminal law is even touched upon.

America's originalists seem at best haphazard in their approaches. They refer, for instance, to, "history and tradition," while seeming to mean no more than interpretation of antique legal texts using modern context to do the analysis.

Mostly, among the would-be originalists, the question of legal outcomes here in North America, in various places, and at various times, gets passed by. Wisely, maybe, given the historical work required to take account of a historical record so massive, culturally variable, and geographically extensive.

Or worse, the legal texts get analyzed with an eye to gerrymandering the history. That opens opportunity to exclude from consideration whatever periods or places produced texts which inconvenience arrival at pre-selected outcomes desired by the analyst.

Stuff like that troubles academic historians, for whom it is a fundamental rule of historical inference that legal texts are not typically reliable evidence of historical practice. Academic historians insist that what happened is likely to be at variance with what the legal texts prescribe.

Academic historians can show the question how closely magistrates followed textual law varied markedly. The identity of the magistrate, the time, the place, and even the intent of relevant law givers from one law to the next, can all be recognized in the historical record of legal outcomes as almost capriciously variable.

Add to that a notion of multiple common law traditions practiced among various colonies, with somewhat different legal-history backgrounds playing out under influence of diverse colonial and state histories, and a daunting question properly opens: How can a history like that give rise, from its disparate and mutually contradictory parts, to a common law applicable to everyone, everywhere, in the present, under unifying principles of a national constitution?

Only, I think, by negligent treatment of history and tradition, followed by capricious choices about which legal texts to regard, which to discard, and at any rate, with systematic disregard of what actually happened after the laws were written.

[Orin S. Kerr]

You should look ay my Aaron Burr article, in which Chief Justice Marshall and the leading lawyers of the day are trying to figure out the privilege against self-incrimination. We have hours' worth of oral argument transcript, in which they certainly believe that pre-1776 English cases are binding and that these treatises are the leading authorities to follow.

[Stephen Lathrop]

Professor Kerr, Marshall has long been my favorite source to justify originalist analysis. His custom to minutely dissect and define in his own day's context the elements of whatever legal question he encountered put him in a class apart. If many more Marshall-like judges had been doing likewise, the notion of originalist analysis would enjoy increased historical plausibility.

That said, how can even Marshall's record get you past the plain fact that there were not more Marshalls? And the various non-Marshalls lived in different states and colonies with conflicting legal traditions. Among magistrates in this state or that one, Marshall's opinions might go habitually unread. Or different states might even give the same Marshall opinion opposite readings. Also, note that source of variance is related to the supposedly unifying constitutional tradition, more than it is related to the inherently diversifying common law tradition.

I will use a fraught example to illustrate. I have not checked to see if there is any Marshall opinion touching on gun rights for self-defense. But I know the history of that issue well enough to be certain that whatever Marshall might have written on that topic, the common law of Pennsylvania—in harmony with a state Constitutional provision guaranteeing a personal right of self defense with a firearm—would come out opposite that of the common law of Marshall's own state of Virginia.

Virginia had at the time of the founding a common law tradition dating to the early 1600s to deny firearms even to white English free men if they had not achieved the status of independent planters. As historian Edmund Morgan has shown (everything which follows is from Morgan), during a long portion of that interval those white free men comprised a large portion of the colonial population. Many had gained their free status contractually, by improbably outliving a term of years under the status of the English term, "servant." That term implied subordination as much as it defined a particular kind of task. In England at that time, almost everyone who worked for wages was counted a, "servant"—which thus legally subordinated the majority of England's population.

Virginia's governing class of major planters distrusted servants, and at times distrusted former servants more. The governing class exploited both types economically, punished them brutally, and defied even a royal proclamation that not only the current free men, but also every white servant currently in that status be provided with arms.

That from the King was not a suggestion. It was an order to do it, adorned with the royal seal, and borne back to Virginia by Lord Culpeper, a former governor of the colony, and thus still a member of Virginia's ruling elite.

Following Bacon's Rebellion, the King had become concerned about potential expense to defend Virginia, and perhaps even more concerned about how rebellions might disrupt a steady inflow of tobacco import duties. Those comprised a notable percentage of the royal income, more than from any other colonial source in the empire.

To arm the populace generally seemed a way to put the defense burden on the Virginians, deflect persistent calls from Virginia's leaders for more military support from England, and perhaps to cow the Virginia ruling class itself into treating their social subordinates better, and calm things down. Virginia's ruling class rejected that royal directive out of hand.

There would be no arming of servants. And there never was. Thus, Virginia's common law became the opposite of Pennsylvania's.

Prior to Bacon's Rebellion, black slavery in Virginia was a thing, but not a particularly notable one. For nearly a century, white servants far outnumbered black slaves in Virginia's work force. It was not until after 1700 that the full force of slave importation began to transform Virginia society, with an effect that the already-established common law tradition against arming servants morphed seamlessly into yet-more-tyrannical suppression of blacks.

Of course with that tradition, when the time to ratify the Bill of Rights came round, there was zero chance that Virginia would back any constitutional notion of self-defense with a firearm for just anyone, not even among whites. And everyone knew it. So the Bill of Rights and the Constitution were ratified with tacit understanding (and a textual prod) that everything to do with guns had to do with a militia purpose—the only purpose with regard to arms all the states could agree upon. It was a purpose readily adapted to interpretation in the North as an economy measure, and in the South as a means to suppress servile rebellion.

See, given diversity among states and colonies, if you start into questions of common law, and mix in the notion of history and tradition, contradictions accumulate. You deliver mostly nonsense.

Thus, Scalia, the prototypical originalist, who built with Heller the gateway into respect for originalism, did it more than 3 decades after Morgan published a magisterial history which already made nonsense out of Scalia's decision. Presumably no one in the legal community was reading Morgan.

With respect, I suppose your example of Marshall as an endorser of pre-1776 common law for use in post-Constitutional America might even sound persuasive, in Marshall's words. He was notoriously persuasive, Jefferson thought wickedly so. But I do not see how it can do much to overcome inherent contradictions inherent in an, "originalist," method which insists on bypassing actual history.

Nor do I think actual history, practiced rigorously, will often turn up nuggets to enrich the legal system. More the opposite. The historian seems a one-sided assayer, with capacity to identify fools' gold mined from the historian's own province in the past, but lacking tools to enrich present-day legal procedures. You would never have got Morgan to opine on any question of present-day law, but if you caught him in a tolerant mood, and he thought you were asking in good faith, he would have held forth at length to debunk orginalism.

[Orin S. Kerr]

If you had read the article, you'd know that it's not just Marshall who looked at it this way: There were several lawyers on each side, including the leading lights of the bar, and they all looked at that way, too. Everyone did. No one from any side offered a different view.

[Absaroka]

It might help to give a link; Mr. Lathrop seems to have a hard time looking things up.

I think this is the article?

[SRG2]

Theſe Kinds of Articles are faſcinating. Thanks, Profeſſor!

[Ridgeway]

Forsooth!

[Noscitur a sociis]

This material is fascinating, but I’m not sure I draw the same conclusion from it that you do: rather, it seems to me like these authorities just don’t speak to the question before the court. Certainly they talk about situations where the constable has determined that the triggering circumstances have occurred, but it seems to me like they simply don’t engage with what level of certainty is needed, but rather the consequences once the determination has been made. Even the Hale passage, in context, I think is better read at looking at the likelihood of the affray that the constable believes is occurring resulting in those serious outcomes, not the likelihood of there being an affray at all. (Also seems notable that (Hale seems to acknowledge that the constable is entitled to act on information received from others, not just personal knowledge or observation as in most of the other illustrations.)

I welcome notes from anyone who reads this differently!