Tuesday, July 31, 2007

The Fourth Amendment Strikes Back

There is legal precedent for nature's unkind treatment of "the Chief":

Last year, in Hedgepeth v. Washington Metropolitan Area Transit Authority, Roberts wrote an opinion upholding the arrest of a 12-year-old girl for eating a single French fry in a Washington, D.C., Metrorail station while on her way home from junior high school. As the court described, the "girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later." Except for the time she was being fingerprinted, the girl remained handcuffed with her hands behind her back until she was released.

Roberts concluded that the arrest and detention under a mandatory arrest policy for minors was not an "unreasonable" seizure under the Fourth Amendment to the Constitution, even though adults found to have violated the same no-eating-in-the-Metro ordinance were simply given citations. For obvious reasons, this decision is likely to be a point of some contention in Roberts' confirmation hearing. But of more significance than the decision itself is a part of its reasoning.

Roberts wrote that the Metro's mandatory arrest policy was not unconstitutional in part because it would not have been "regarded as an unlawful search or seizure under the common law when the Amendment was framed," that is, under the law as it stood in 1791.

Under that standard, Roberts' seizure was quite reasonable. Hell, the State of Maine could even declare him possessed by demons and clap him in the stocks until the 2007 term was over.


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