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Steve Russell on Bright Line Laws and Executive Discretion

August 16th, 2013 Leave a comment Go to comments

I got the passage below by Steve Russell from a listserv we’re both on,and I liked it so much that I asked his permission to post it here. In Terry v. Ohio, 392 U.S. 1 (1968), a policeman saw two men near a store “proceed alternately back and forth along an identical route, pausing to stare in the same store window. Each completion of the route was followed by a conference between the two on a corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. After one of these trips, they were joined by a third man (Katz) who left swiftly after a brief conversation. Suspecting the two men of “casing a job, a stick-up”, detective McFadden followed them and saw them rejoin the third man a couple of blocks away in front of a store.” He patted one man down without his permission and found an illegal gun, and then found an illegal gun on one other man too. The question was whether the court would accept the guns in evidence for the charge of possession of illegal weapons, or whether the policeman had made an illegal search. The Court ruled that it was not an illegal search.

In Terry, I would have conducted myself exactly as the officer did.

That admitted, I would still suppress the pistol if the SCOTUS allowed it.

I’m prepared to recognize all kinds of exceptions to the warrant requirement but handing a police officer more power than a magistrate is somewhere I would rather not go.

It’s like torture. It should absolutely be illegal under all circumstances, but in a real “ticking bomb” or “dying victim” scenario, torture is absolutely the right thing to do.

Is the law that much of an ass?

In my view, that does not make the law an ass. It simply shifts the risk of being wrong from the citizen to the person acting with the force of the government.

In Terry, what is the would-be robber going to do about having his pistol seized? If he has the brass to sue for return of the pistol, maybe he should have it back if the carrying was lawful, but lots of luck with a damage action.

When the ticking bomb is found, what is going to happen to the law enforcement officer who removed fingernails to find the bomb? No grand jury would indict and no petit jury would convict. And in the case of the petit jury, that would not be nullification. It would be “choice of evils.”

As a judge, I like bright lines.

As a realist, I understand that bright lines are always over inclusive and under inclusive. So I would use the lines to apportion the risk of being wrong.

As long as I recognize I’m an outlier and I do not rule according to what I really think, but rather I hew to precedent as the law requires, I do not think I’m “biased against our constitutional form of government.” And when professors who want to criticize judges are accused of being against the Constitution, it will be fair to ask whether there is any role for a law professor that could not be filled by an exceptionally bright parrot?

Just $.02 from the cheap seats.

Update: Prof. Rosenkranz wrote an excellent WSJ op-ed on another example of the general question. Obama Suspends the Law. What Would Lincoln Say?
The current president’s hero tried to abide by the Constitution and enlist Congress’s support.

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