Is the Fourth Amendment Reasonableness Standard Dead? Replaced with a football call of “Flagrant Misconduct?”

Is the Fourth Amendment Reasonableness Standard Dead? Replaced with a football call of “Flagrant Misconduct?”

On June 20, 2016, in a 5-3 opinion written by Thomas, J., the Supreme Court turned the fourth amendment inside out in a criminal case. Thomas found no “flagrant misconduct.”   Cops, without probable cause or reasonable suspicion, seized a guy and searched him. And prosecuted him on felony drug charges.

Thomas wrote, and four justices joined, and engaged in mental gymnastics that ignores long standing fourth amendment law to rule that because the guy had an outstanding warrant anyway, although for a minor traffic violation and wholly unknown to the officers that accosted the guy, the government did not engage in flagrant misconduct and the convicting evidence was held properly discovered.  Nevermind the illegal seizure and search.   After shaking the guy down, the government dug up an entry the government made into a database…the issuance of a warrant for a minor traffic violation   Thus, according to the majority, the shake down was not flagrant misconduct, and did not warrant exclusion of these ill gotten gains.  Because that entry  by the government   Into a database   Stripped this guy of all fourth amendment protections against officious transgression.

Nevermind that the databases that store warrant information are often out of date, warrants are stale. Nevermind that the standard warrant entry states “call xxx-xxx-xxxx to confirm” and no one bothers until after cuffing and stuffing the target. Nevermind that it has been the law of this nation that cops cannot accost an individual, either for a Terry investigative detention or a full blown seizure (an arrest), without articulable facts KNOWN to the officer that justify the seizure. Poof, all that law….gone with the flag of flagrant misconduct.

What happened to the fourth amendment analysis and standard of objective reasonableness? Is Terry v. Ohio, 392 U. S. 1, 21 (1968) now dead, too? Gone is the requirement that the government have articulable facts that justify trampling constitutional rights? Is flagrant misconduct more dubious than deliberate indifference?  Perhaps we need to ask a football referee…. flagrant misconduct.  Where did he come up with this?  Oh, football.  It is a penalty.  Great.   Football rules now apply to the government arena.

Utah v Strieff ushers in a new scary era   One in which it is the court’s job to justify illegal official conduct   In any manner possible.

Status, as determined by the government, not with a hearing, but with the mere issuance of a warrant for a minor infraction, even unknown to officers, now strips one of their constitutional rights. In that case a minor traffic violation. What next? A parking ticket? A zoning violation? An instigator? A critic? A malcontent?

The decision turns the long established fourth amendment standard of objectively reasonable, into “flagrant misconduct” a standard even more dubious than deliberate indifference, apposite to those CONVICTED and imprisoned for a crime.

Has this 5-3 decision created an even bigger problem? Rendering unstable the entire justice system? Maybe. Scalia’s legacy (one of) to civil rights was Heck v Humphrey (discussed here). If success in a civil rights action would impugn the integrity of a criminal conviction, no civil rights claim had yet accrued. No matter how vile the fourth amendment violation. This is because the fourth amendment standards were the same across criminal and civil lines.

This decision eliminates that similarity. There are now two standards. One for criminal. “Flagrant misconduct”. And one for civil. Objective reasonableness.

Can this guy now bring a civil rights action under the objective reasonableness standard and prevail….notwithstanding any conviction he may now suffer because success in his civil action would not undermine nor impugn the criminal conviction because the criminal conviction would stand because of the more dubious apposite standard of flagrant misconduct

Flagrant misconduct is a standard heretofore non existent in constitutional claims analysis. It sounds and appears more dubious than deliberate indifference, the standard apposite to those already convicted and imprisoned.

Now, the government. Can just issue a warrant. For a minor traffic violation. Just a warrant. No requirement it be served. Just entered into the database. No hearing. Nothing. Just a warrant.

With that on file, officers are now free to trample constitutional rights to effect a conviction, even if they don’t know of the warrant.

Facts become irrelevant.

Personhood is irrelevant

Our long standing guaranteed constitutional rights…gone.

Government classification becomes everything

This. Is. Horrifying.

what can I say; apparently, Thomas views cop activities as a football game. Throw the flag…flagrant misconduct.

Justice Sotomayor, in which Justice Ginsberg joined in Parts I, II, and III, wrote a smack down dissent (starts at page eleven of the published ruling) of epic proportions. Here’s to the dissent.

Kathryn S. Bloomfield

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