Les Miserables

Kim Lane Schepple says that John Roberts is Inspector Javert!

Balkinization: Ansche Hedgepeth's French Fry: Kim Lane Scheppele: Now that John Roberts has been nominated... his few opinions written on the DC Circuit Court of Appeals will be scrutinized line by line. In the main, they seem, so far as I have been able to tell on a quick scan, to deal with fairly specific and technical questions whose answers seem hard to generalize into major constitutional controversies. But then there is the case of Ansche Hedgepeth. Ansche Hedgepeth was, at the time of her crime, 12 years old. She was waiting for a friend to buy a Metrocard at the Tenleytown/American University Metrorail station in Washington, DC when she committed the fateful act. She opened the fast food bag she was carrying and ate one French fry -- in plain view of an undercover police officer. The police officer placed her under arrest, handcuffed her and removed her shoelaces "pursuant to established procedure," as the opinion tells us. She was held at the local police station for three hours until her mother could come to collect her. Her offense? She violated a city ordinance against eating in Metro stations. The police had been instructed to adopt a "zero tolerance" policy in enforcing this ordinance, and Ansche Hedgepeth was one of 14 juveniles arrested for similar infractions during zero tolerance week.

The adults who ran afoul of the policy during zero tolerance week were merely given citations on the spot and were allowed to pay their fines later, as the local ordinance permitted. Minors were not eligible for such citations, however, and so were arrested because that was the only strategy available to police to enforce the ordinance. Given that police had been told that no infraction, however minor, was to be excused, any minor caught eating in the Metro was subject to mandatory arrest.

Her mother brought suit on Ansche's behalf against the Washington Area Metropolitan Transit Authority, asserting that Ansche's arrest violated her equal protection right under the Fifth Amendment and her right to be free from unreasonable seizures under the Fourth Amendment. Both claims failed. To the argument that age should be considered a suspect classification that would trigger heightened scrutiny in constitutional Fifth Amendment analysis, Judge Roberts wrote for a unanimous panel that it is not. As a result, the difference between the treatment of the adults and the treatment of children in the DC ordinance was subject only to a rational relation test, which Judge Roberts found it easily passed. To the Hedgepeth argument that Ansche's arrest burdened a fundamental right to be free from restraint, Judge Roberts wrote that no one has a right to be free from restraint when they have obviously violated a law under the very nose of the police:

The law of this land does not recognize a fundamental right to freedom of movement when there is probable cause for arrest.... That is true even with respect to minor offenses.

And to the argument that such a minor crime could not produce a "reasonable" arrest, Judge Roberts cited the Supreme Court's decision in Atwater v. City of Lago Vista which held that a police officer had not acted unreasonably in violation of the Fourth Amendment when he arrested a woman who had merely failed to fasten her seat belt. So too, Ansche Hedgepeth, could not rely on the Constitution to escape the consequences of her misdeeds. She clearly ate a French fry in clear violation of the city ordinance in the clear view of a police officer. No leniency for her. (Poor Ansche!) As a doctrinal matter, the Hedgepeth case might be of little interest. But it is one of the few decisions we have to go on to see how a future Justice Roberts would differ from the departing Justice O'Connor. As it happened, Atwater was a 5-4 decision in which Justice O'Connor penned the dissent.... Justice Roberts's opinion has a markedly different sensibility from that of Justice O'Connor, and given the similarity of the facts in the two cases, one can begin to get a sense of how Justice Roberts would alter doctrine.... Justice O'Connor in Atwater was clearly disturbed by the prospects of someone being subjected to a full-blown arrest merely for not wearing a seat belt. So she proposed a Fourth Amendment balancing test. As Justice O'Connor wrote:

There are significant qualitative differences between a traffic stop and a full custodial arrest. While both are seizures that fall within the ambit of the Fourth Amendment, the latter entails a much greater intrusion on an individual's liberty and privacy interests. . . . Justifying a full arrest by the same quantum of evidence that justifies a traffic stop--even though the offender cannot ultimately be imprisoned for her conduct--defies any sense of proportionality and is in serious tension with the Fourth Amendment's proscription of unreasonable seizures.

Proportionality analysis.... [T]he reasonableness of arrests for minor offenses would have to be determined in light of the state interest to be achieved through such an arrest:

Because a full custodial arrest is such a severe intrusion on an individual's liberty, its reasonableness hinges on "the degree to which it is needed for the promotion of legitimate governmental interests." [citation omitted] In light of the availability of citations to promote a State's interests when a fine-only offense has been committed, I cannot concur in a rule which deems a full custodial arrest to be reasonable in every circumstance. Giving police officers constitutional carte blanche to effect an arrest whenever there is probable cause to believe a fine-only misdemeanor has been committed is irreconcilable with the Fourth Amendment's command that seizures be reasonable. Instead, I would require that when there is probable cause to believe that a fine-only offense has been committed, the police officer should issue a citation unless the officer is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the additional] intrusion" of a full custodial arrest. [citation omitted]....

Police departments are no doubt grateful for the five votes on the other side. But those of us in the general public who are now subject to discretionary arrests for fine-only misdemeanors might feel differently.... [T]here was wiggle room to distinguish Ansche Hedgepath's case from Gail Atwater's -- wiggle room purposively left by the Atwater majority. Justice Souter's opinion for the Court positively invites a future distinguishing case when he notes that the police officer in Atwater was "authorized (not required, but authorized)" to arrest Atwater and that police needed to be able to exercise this discretion in the heat of the moment.... Had the police officer in Atwater been required to arrest the offender no matter how trivial the infraction, as the police officer was in Ansche Hedgepath's case, a reasonable judge might have concluded the arrest itself was not reasonable. Eating one French fry does not endanger others as failing to buckle in one;s children would....

Even though his statement of facts in Hedgepeth begins with a lament that "No one is very happy about the events that led to this litigation," he did not let his unhappiness divert him from what, in his view, the law required. And the law allows of no exceptions, no room for common sense to modify the strict operation of a strict rule....

Comments

[Snacktime]

Roberts was an appeals court judge deciding a case where the law was perfectly clear. He had no authority to adopt O'Connor's line of reasoning from the seatbelt case because she was in the dissent. To draw conclusions about his judicial style in comparison to O'Connor on that basis is just specious.

[Ah. But the law was not clear. Souter's opinion stressed that we give police officers on the spot discretion to use their judgment, and don't like to second guess them. Here the problem was that the officer on the spot had *no* discretion.]

[Barbara]

As I understand there were two lines of attack:

1. Impermissible distinction based on age. Agreeing with this would have upended law on prevailing and longstanding treatment of juveniles (not that it shouldn't be changed, but expecting the judge to do it was, well, ambitious).

2. Unreasonable search and seizure -- this is a bit of a stretch too, though arguably it shouldn't be -- it does seem incongruous that you can be searched and seized for minor crimes to the same extent you could be for major ones. However, try to formulate the opposite tenet: that major crimes would be held to a lower standard. I don't like that. In this case, as in the case of most minor offenses, common sense tells us that we should focus on that which truly imperils us rather than waste time on insignificant infractions.

But to call it a violation of constitutional magnitude? No, I don't see it.

[Tom Cecere]

It was also a unanimous decision. It's hard to paint someone as judicially unfit by citing a unanimous opinion that he/she wrote. The author's problem should have been with the local governing body, not the judge. Or, dare I say, with the people who were in the habit of eating on the metro in the first place? (I'm sure it's not the eaters; it's the "drop it on the floor/seat/fellow rider when I'm done with it" minority that makes a city council pass such a law).

[Jennifer]

Zathras

Your comment is wrongly racially charged and offensive.

[alkali]

The bit of Zathras' comment Jennifer is objecting to is a shout-out to an Eddie Murphy sketch on Saturday Night Live. He's trying to pointing out white condescension/paternalism, not to engage in it. (Whether you agree with Zathras is another matter, of course.)

http://snltranscripts.jt.org/84/84iwhitelikeeddie.phtml

[PaulC]

Not exactly on topic, but...

In the early 90s, I once sat in a metro car wearing a suit (unusual for me at the time and now as well) eating a large chocolate brownie purchased at Union Station. I got the coldest stares, and figured something was wrong, but no one said a word to me.

It wasn't until I heard some reference to the zero tolerance policy months later on the Diane Rehm show that it all fit together. I don't know what it's like now, but I didn't see any conspicious signs prohibiting food and as an out of towner didn't think there was anything abnormal about having a quick snack during a subway ride just as I might on a MARC or Amtrak train.

I'm still kind of mystified by the whole thing. Are food leavings really a bigger issue in DC than other cities? I have no problem in principle with the policy; I just hope it's a little more obvious now than it was at the time.

[Barbara]

I am not sure where the signs are but food and drink on DC metrorail system are verboten. There are a lot of practices that were specifically adopted by WMATA to avoid problems faced by other rail systems, no eating and drinking being one, not permitting panhandlers being another, and other more subtle features like not linking it to access to other subterranean systems.

Also, what a lot of people don't realize is that D.C. metro is the public school transit system as well as the commuter system. It is used by a lot more unaccompanied minors than systems in most other jurisdictions. I am fairly sure that's why they adopted a different policy tailored specifically to minors.

[Ottnott]

So, if we combine Roberts' view that arrest for eating a french fry in the subway is not unreasonable seizure with Scalia's and Thomas' view that "the Eighth Amendment's prohibition of 'cruel and unusual punishments' was aimed at excluding only certain modes of punishment, and was not a 'guarantee against disproportionate sentences'" (Ewing v. California), we are close to having a majority on the Supreme Court that would find no Constitutional objection to a life sentence for eating a french fry in the subway.

If Roberts concurs with Scalia and Thomas in Ewing v. California, as I suspect he would, I would be interested in knowing why the hell he hasn't been advocating for Constitutional changes to amend this lack of protection from government power.

[The Fool]

They just mentioned this blog on CNN

[Michael Carroll]

Not sure how I turned in to Mr. Law-and-Order all the sudden but there is no blood in this turnip.

The girl getting arrested sucks but the outcome doesn't seem very inappropriate.

I'd also like to say suing the city because your kid gets arrested for getting caught red handed seems a bit 1990's somehow. What the hell is happening to me...

[S.Anderson]

I can't believe that people in DC, adults or children, tolerate ANY law that forbids eating and drinking in the subway. If I can eat and drink while driving a car, why can't I eat and drink while riding a subway?

The public's submissiveness in the face of this controlling attitude is what amazes me. Are we a bunch of pre-school children? If the problem is littering, then hit the people who litter, not the people who eat on the subway.

Sit up straight! Get a haircut! Tie your shoelaces! Wipe that smirk off your face, young lady! This is your DC metro system speaking.

Have we all forgotten what it means to be an American?

[Zathras]

Good catch, alkali. I was wondering if someone would get that reference.

Two things, for what they are worth: I lived in Washington for over ten years, used Metro all the time, and was well aware of the no food/drink policy. The way this system was designed, the policy makes sense. Metro is supposed to be a clean, safe, fast way to get around DC and suburbs without a car. It is not your living room or kitchen.

Second, I have no problem with the right of Congress to overrule legislation and/or regulations enacted by the District government when necessary; that's the system we've had for a while, and changing it is no priority of mine. That doesn't mean I think coming down on the District whenever one of its officials does something we don't agree with isn't an abuse. Home Rule is supposed to mean something, and this kind of petty incident is not worth trampling it for.

[PaulC]

> I lived in Washington for over ten years, used Metro all the time, and was well aware of the no food/drink policy.

I don't doubt that regular metro riders are aware of the policy, but as someone who lived in Baltimore and used it rarely, the policy did not seem at all obvious to me. I tend to be pretty careful about such things and I'm sure I would have hidden my brownie (probably to the point of putting it in a suit pocket) if there was any "no food or drink" sign in the car itself. I was in a hurry and might have overlooked a posted warning in the station. Given the extensive food court at Union Station, I just cannot believe I am the only out of towner to bring food into the metro inadvertently.

Anyway, this was over a decade ago and it might be indicated more clearly. I'm happy I wasn't caught. I got a sense from the other passengers that my behavior was unacceptable, but I didn't imagine in my wildest dreams that I would have been subject to a fine.

[Bernard Yomtov]

I am mystified as to why this was not an unreasonable seizure. Arrest and detention, even for few hours, for an offense that is punishable only by a fine seems blatantly unreasonable to me. How much was the fine?

[sd]

O'Connor's "reasonableness" here is exactly the sort of thing that has earned her a reputation for being fair-minded by most lay observers and a a reputation for being a terrible justice by many dedicated students of the law (of which I am not one, by the way - though cf Mark Tushnet's thoughts on Ms. O'Connor).

Namely, O'Connor's judicial philosophy seems to able to be boiled down to "what Sandy feels like today." So Justice O'Connor thinks a given law, or the strict enforcement thereof, is a bad idea. Bully for her. I think a lot of laws are bad ideas too. The difference between her and I though is that she can, by virtue of sitting at the ideological crossroads of a perenially 5-4 split Supreme Court, make any law she doesn't like go away. The problem is, the Constitution gives Justice O'Connor and myself equal rights to affect the outcome of democracy through the ballot box. Where the Constitution gives her more power than me, and the only place that it gives her more power than me, is in the voiding of laws that are unconstitutional. The Constitution, whether or not you are a strict originalist, is surely more than the sum of Sandra Day O'Connor's whims.

[anne]

Sandra Day O'Connor indeed had a most respected reputation at a Justice, and was indeed as gounded in the essence of the Constitution as you would hope for any Justice. The idea that she was lacking in analytical rigor or was whimsical is nonsense.

[masaccio]

SD, we grant all kinds of people vast amounts of discretion in carrying out official duties, just as we do in business and private life. The Supreme Court is no exception. No one can offer a complete and consistent judicial philosophy. We don't even really want that. We want people to explain their votes in clear language. O'Connor's opinion explains what she thought and why.

Her view of this case seems right to me:
"In light of the availability of citations to promote a State's interests when a fine-only offense has been committed, I cannot concur in a rule which deems a full custodial arrest to be reasonable in every circumstance." What part of this seems unreasonable? Arresting children and hauling them off to the clinker for eating a french fry is silly and a bad way to run a government. It was an inappropriate exercise of discretion.

Just to put the case clearly, if PaulC had been busted and hauled off to jail for eating a brownie, would you think that was a good result? Suppose they decided he looked dangerous, so they used that as a pretext for holding him, getting a search warrant, and searching him and his car and his apartment. Roberts would think that was just fine. Do you?

[rea]

"Ah. But the law was not clear."

Ah, but it was. You should note that the Atwater majority opinion contains a footnote explicilty mentioning the DC french fry case as an example of something that would not lead to a different result:

"The upshot of all these influences, combined with the good sense (and, failing that, the political accountability) of most local lawmakers and law-enforcement officials, is a dearth of horribles demanding redress. Indeed, when Atwater's counsel was asked at oral argument for any indications of comparably foolish, warrantless misdemeanor arrests, he could offer only one.23 We are sure that there are others, but just as surely the country is not confronting anything like an epidemic of unnecessary minor-offense arrests. That fact caps the reasons for rejecting Atwater's request for the development of a new and distinct body of constitutional law.
___________________________
Footnote 23

He referred to a newspaper account of a girl taken into custody for eating french fries in a Washington, D. C., subway station. Tr. of Oral Arg. 20-21; see also Washington Post, Nov. 16, 2000, p. A1 (describing incident). Not surprisingly, given the practical and political considerations discussed in text, the Washington Metro Transit Police recently revised their "zero-tolerance" policy to provide for citation in lieu of custodial arrest of subway snackers. Washington Post, Feb. 27, 2001, at B1."

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=99-1408

[Bernard Yomtov]

rea,

It strikes me you have it backwards. The footnote seems to suggest that the french fry case is exactly the sort of thing the Court would find unreasonable. The opinion, so far as you quote it at least, seems to say that it is only because this sort of thing is very uncommon that there no need to start a whole new "body of Constitutional law."

In other words, "Yes it's unreasonable, but it virtually never happens, and is effectively dealt with politically, so we're not going to worry about it."

[Brad DeLong]

Not necessarily--it seems that a sort of meta-balancing test is being applied here. Since the bright-line rule of total deference to the police isn't generating many idiocies, we'll sit with the bright-line rule. If the police start acting like idiots more often, however, we would move to an explicit balancing test...

[agm]

Perhaps I am missing some nuance?

In light of the availability of citations to promote a State's interests when a fine-only offense has been committed, I cannot concur in a rule which deems a full custodial arrest to be reasonable in every circumstance. Giving police officers constitutional carte blanche to effect an arrest whenever there is probable cause to believe a fine-only misdemeanor has been committed is irreconcilable with the Fourth Amendment's command that seizures be reasonable.

This opinion hinges on an officer having the option to give a citation, the "carte blanche" refered to. As I understand the description of the regulations before WAMTA revised them, there was NO discretion for a citation -- the rule in question required the officer to arrest Hedgepth because she was a minor. Thus, O'Connor's opinion does not apply to the Hedgepeth case in the way that people are giving Mr. Roberts a hard time for: the two cases are not comparable with respect to what discretion is given a law enforcement agent.

It's desirable to harmonize the rules we have to live by, and use a modicum of common sense while doing go (the sort of revisions WAMTA made), but the question of harmonizing the two laws should not arise in the Court, because that is the purview of the body empowered to make those laws/regulations.

[rea]

"it seems that a sort of meta-balancing test is being applied here. Since the bright-line rule of total deference to the police isn't generating many idiocies, we'll sit with the bright-line rule. If the police start acting like idiots more often, however, we would move to an explicit balancing test..."

You're pretty close to right, Brad, although a constitutional lawyer would cloak that statement in the jargon appropriate to our profession. My point, of course, is that since the DC french fry case wasn't a NEW example of idiocy, it was not the occasion for the Court of Appeals to start reworking constitutional law. Indeed, no single instance of idiocy would suffice-it would take an epidemic.

Underlying all this is the notion that government actions can be stupid or foolish without necessarily being unconstitutional.

[sd]

masaccio:

No, I don't consider the french fry incident nor a putative hauling off to jail of JohnC to be a good outcome. I think they are both terrible outcomes. But it seems to me that they are terrible outcomes because:

1) A legislature and/or administrative body was either too draconian or too vague in the creation of a policy or

2) A police officer was inhumane in his exercise of his duty.

Neither of these explanations implies that anyone's constitutional rights have been violated. And that's what John Roberts said. Read his full opinion. He goes to great lengths to assert that what has happened here is a terrible outcome. But he feels, rightly I think, that its not his place as a judge to remedy every ill in the world. If people find this case shocking, then they should put pressure on their legislatures to steer clear of moronic zero tolerance policies, and to reign in foolish cops.

[Brad DeLong]

But don't we have an institutional mechanism to reign in foolish cops, and put pressure on legislatures to steer clear of moronic zero-tolerance policies? And isn't that institutional mechanism made up of judges and of the injunction to judges that "The right of the people to be secure... against unreasonable... seizures, shall not be violated"?

Isn't this one ill where it is pretty clear that Jemmy Madison thought it was the job of judges to remedy?

[anne]

Nicely argued, Brad :) Therein is the point of judicial review. "But don't we have an institutional mechanism to reign in foolish cops, and put pressure on legislatures to steer clear of moronic zero-tolerance policies?" So we have judicial review.

[Bernard Yomtov]

Brad,

I'm not sure if you're disagreeing with my 8:33 comment. If so, perhaps I was unclear. Your 10:15 and 7:32 comments express my view exactly.

[rea]

"Isn't this one ill where it is pretty clear that Jemmy Madison thought it was the job of judges to remedy?"

Well, I think you're right, Brad. But you're not really arguing with Judge Roberts' decision--you're arguing with the Supreme Court decision in Atwater.

[anne]

Then lack of frequency in such an arrest could be a deciding factor on judicial review. Interesting.

[Brad DeLong]

And let me point out that the argument that "we won't do anything because only a very few people are being unreasonably seized, and this was embarrassing enough for the DC police that public humiliation will keep it from happening again" is the very antithesis of "strict construction."

[matt]

anne: I agree with rude pundit -- O'Connor's vote with the other coup perpetrators in Bush v Gore negates every single other decision she ever rendered on the court. If she cared so much about the constitution she would have retired while there was a chance someone other than a right wing ideologue would get to replace her. Now that she sees who the choices are, if she really cared for this country or the constitution, she'd pull her papers and stay on the court.

This is ridiculous what's going on in this country. Roberts???? With that GOP stalwart Fred Thompson shepherding him around Washington. What's the matter? Are the rest of the GOP senators too tainted to sponsor this guy? I won't even watch Law and Order anymore now that he's on it. One of the engineers of the disgrace against our political system is supposed to be eminent enough to move this guy's nomination?

Orwell and Sinclair Lewis must be having a good chuckle at what's going on down here.