author_name
stringclasses 26
values | year
int64 1.97k
2.02k
| label
int64 0
200
| category
stringclasses 5
values | case_name
stringlengths 9
127
| url
stringlengths 55
120
| text
stringlengths 1k
3.91k
|
|---|---|---|---|---|---|---|
Justice Sotomayor | 2,019 | 24 | dissenting | Manhattan Community Access Corp. v. Halleck | https://www.courtlistener.com/opinion/4630087/manhattan-community-access-corp-v-halleck/ | that appear as television channels. In other words, the ques- tion is how to understand the right to place content on those channels using those wires. The right to convey expressive content using someone else’s physical infrastructure is not new. To give another low-tech example, imagine that one company owns a billboard and another rents space on that billboard. The renter can have a property interest in placing content on the billboard for the lease term even though it does not own the billboard itself. See, e.g., Naegele Outdoor Adver- tising Co. of 253 ; see also Matter of XAR 429 N. Y. S. 2d 59, 60 (1980) (“Although invariably labeled ‘leases,’ agreements to erect advertising signs or to place signs on walls or fences are easements in gross”). The same principle should operate in this higher tech realm. Just as if the channels were a billboard, the City obtained rights for exclusive use of the channels by the public for the foreseeable future; no one is free to take the channels away, short of a contract renegotiation. Cf. 535 U.S., 83. The City also obtained the right to administer, or delegate the administration of, the chan- nels. The channels are more intangible than a billboard, but no one believes that a right must be tangible to qualify as a property interest. See, e.g., (treating destruction of valid liens as a taking); Adams Express (treating “privileges, Cite as: 587 U. S. (2019) 9 SOTOMAYOR, J., dissenting corporate franchises, contracts or obligations” as taxable property). And it is hardly unprecedented for a govern- ment to receive a right to transmit something over a pri- vate entity’s infrastructure in exchange for conferring something of value on that private entity; examples go back at least as far as the 1800s. 5 I do not suggest that the government always obtains a property interest in public-access channels created by franchise agreements. But the arrangement here is con- sistent with what the Court would treat as a governmen- tal property interest in other contexts. New York City gave Time Warner the right to lay wires and sell cable TV. In exchange, the City received an exclusive right to send its own signal over Time Warner’s infrastructure—no different than receiving a right to place ads on another’s billboards. Those rights amount to a governmental prop- erty interest in the channels, and that property interest is clearly “consistent with the communicative purpose of the forum,” Denver U.S., at (opinion of THOMAS, J.). Indeed, it is the right to transmit the very content to which New York law |
Justice Sotomayor | 2,019 | 24 | dissenting | Manhattan Community Access Corp. v. Halleck | https://www.courtlistener.com/opinion/4630087/manhattan-community-access-corp-v-halleck/ | to transmit the very content to which New York law grants the public open and equal access. 2 With the question of a governmental property interest resolved, it should become clear that the public-access channels are a public forum. 6 Outside of classic examples —————— 5 For example, during the railroad boom, governments obtained not only physical easements in favor of the public over tracks used, owned, and managed by private railroads, including rights to use the rails and all relevant “fixtures and appurtenances,” see, e.g., Lake Superior & Mississippi R. but also, in some situations, rights to transmit personnel and freight for free or at reduced rates, Ellis, Railroad Land Grant Rates, 1850–1945, 21 J. Land & P. U. Econ. 207, 209, 211–212 (1945). 6 Though the majority disagrees on the property question, I do not take it seriously to dispute that this point would follow. See ante, at 10 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting like sidewalks and parks, a public forum exists only where the government has deliberately opened up the setting for speech by at least a subset of the public. Cornelius, 473 U.S., 02. “Accordingly, the Court has looked to the policy and practice of the government,” as well as the nature of the property itself, “to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.” See For example, a state college might make its facilities open to student groups, or a municipality might open up an audi- torium for certain public meetings. See 02–803. The requisite governmental intent is manifest here. As noted above, New York State regulations require that the channels be made available to the public “on a first-come, first-served, nondiscriminatory basis.” 16 N. Y. Codes, Rules & Regs. see also The State, in other words, mandates that the doors be wide open for public expression. MNN’s contract with Time Warner follows suit. App. 23. And that is essentially how MNN itself describes things. See Tr. of Oral Arg. 9 (“We do not prescreen videos. We—they come into the door. We put them on the air”). 7 These regulations “evidenc[e] a clear intent to create a public forum.” Cornelius, 473 U.S., 02. B If New York’s public-access channels are a public forum, it follows that New York cannot evade the First Amend- ment by contracting out administration of that forum to a —————— 14–15. 7 New York may be uncommon (as it often is); public-access channels in other States may well have different policies and practices that make them |
Justice Sotomayor | 2,019 | 24 | dissenting | Manhattan Community Access Corp. v. Halleck | https://www.courtlistener.com/opinion/4630087/manhattan-community-access-corp-v-halleck/ | may well have different policies and practices that make them more like government speech than constitutional forums. See Brief for Respondents 30–31; Brief for American Civil Liberties Union et al. as Amici Curiae 13–15. New York’s scheme, however, is the only one before us. Cite as: 587 U. S. (2019) 11 SOTOMAYOR, J., dissenting private agent. When MNN took on the responsibility of administering the forum, it stood in the City’s shoes and became a state actor for purposes of 42 U.S. C. This conclusion follows from the Court’s decision in v. Atkins, The Court in unani- mously held that a doctor hired to provide medical care to state prisoners was a state actor for purposes of ; see also (Scalia, J., concurring in part and concurring in judgment). Each State must provide medical care to prisoners, the Court explained, and when a State hires a private doctor to do that job, the doctor becomes a state actor, “ ‘clothed with the authority of state law,’ ” If a doctor hired by the State abuses his role, the harm is “caused, in the sense relevant for state-action inquiry,” by the State’s having incarcer- ated the prisoner and put his medical care in that doctor’s hands. The fact that the doctor was a private contractor, the Court emphasized, made no difference. It was “the physician’s function within the state system,” not his private-contractor status, that determined whether his conduct could “fairly be attributed to the State.” at 55–56. Once the State imprisoned the plaintiff, it owed him duties under the Eighth Amendment; once the State delegated those duties to a private doctor, the doctor became a state actor. See ; see also at 56–57. If the rule were any different, a State would “ ‘be free to contract out all services which it is constitutionally obli- gated to provide and leave its citizens with no means for vindication of those rights, whose protection has been delegated to ‘private’ actors, when they have been denied.’ ” resolves this case. Although the settings are dif- ferent, the legal features are the same: When a govern- ment (1) makes a choice that triggers constitutional obli- gations, and then (2) contracts out those constitutional 12 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting responsibilities to a private entity, that entity—in agree- ing to take on the job—becomes a state actor for purposes of 8 Not all acts of governmental delegation necessarily trigger constitutional obligations, but this one did. New York State regulations required the City to secure public- access channels if it awarded a |
Justice Sotomayor | 2,019 | 24 | dissenting | Manhattan Community Access Corp. v. Halleck | https://www.courtlistener.com/opinion/4630087/manhattan-community-access-corp-v-halleck/ | City to secure public- access channels if it awarded a cable franchise. 16 N. Y. Codes, Rules & Regs. The City did award a cable franchise. The State’s regulations then required the City to make the channels it obtained available on a “first- come, first-served, nondiscriminatory basis.” 9 —————— 8 Governments are, of course, not constitutionally required to open prisons or public forums, but once they do either of these things, constitutional obligations attach. The rule that a government may not evade the Constitution by substituting a private administrator, mean- while, is not a prison-specific rule. More than 50 years ago, for exam- ple, this Court made clear in that the city of Macon, Georgia, could not evade the Fourteenth Amendment’s Equal Protection Clause by handing off control of a park to a group “of ‘private’ trustees.” Rather, “the public character of [the] park require[d] that it be treated as a public institu- tion subject to the command of the Fourteenth Amendment, regardless of who ha[d] title under state law.” 9 Accordingly, this is not a case in which a private entity has been asked to exercise standardless discretion. See, e.g., American Mfrs. Mut. Ins. Had New York law left MNN free to choose its favorite submissions, for example, a differ- ent result might well follow. MNN has suggested to this Court that its contract with Time Warner allows it “to curate content, to decide to put shows together on one of our channels or a different channel.” Tr. of Oral Arg. 6; see Reply Brief 9. But MNN’s contract cannot defeat New York law’s “first-come, first- served, nondiscriminatory” scheduling requirement, 16 N. Y. Codes, Rules & Regs. and the discretion MNN asserts seems to be at most some limited authority to coordinate the exact placement and timing of the content it is obliged to accept indiscriminately, see Tr. of Oral Arg. 25–26. That seems akin to the authority to make reasonable time, place, and manner provisions, which is consistent with adminis- tering any public forum. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). As for any factual assertions about how the channels Cite as: 587 U. S. (2019) 13 SOTOMAYOR, J., dissenting That made the channels a public forum. See at 9– 10. Opening a public forum, in turn, entailed First Amendment obligations. The City could have done the job itself, but it instead delegated that job to a private entity, MNN. MNN could have said no, but it said yes. (Indeed, it appears to exist entirely to do this job.) By accepting the job, MNN |
Justice Sotomayor | 2,019 | 24 | dissenting | Manhattan Community Access Corp. v. Halleck | https://www.courtlistener.com/opinion/4630087/manhattan-community-access-corp-v-halleck/ | entirely to do this job.) By accepting the job, MNN accepted the City’s responsibilities. See 487 U.S., The First Amendment does not fall silent simply because a government hands off the administration of its constitu- tional duties to a private actor. III The majority acknowledges that the First Amendment could apply when a local government either (1) has a property interest in public-access channels or (2) is more directly involved in administration of those channels than the City is here. Ante, at 15. And it emphasizes that it “decide[s] only the case before us in light of the record before us.” These case-specific qualifiers sharply limit the immediate effect of the majority’s decision, but that decision is still meaningfully wrong in two ways. First, the majority erroneously decides the property ques- tion against the plaintiffs as a matter of law. Second, and more fundamentally, the majority mistakes a case about the government choosing to hand off responsibility to an agent for a case about a private entity that simply enters a marketplace. A The majority’s explanation for why there is no govern- —————— are operated in practice, this case arises from MNN’s motion to dismiss, so the facts asserted against it must be accepted as true. Hernandez v. Mesa, 582 U. S. (2017) (per curiam) (slip op., at 1). And any uncertainty about the facts or New York law, in any event, would be a reason to vacate and remand, not reverse. 14 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting mental property interest here, ante, at 14–15, does not hold up. The majority focuses on the fact that “[b]oth Time Warner and MNN are private entities”; that Time Warner “owns its cable network, which contains the public access channels”; and that “MNN operates those public access channels with its own facilities and equipment.” Ante, at 14; see also ante, at 15. Those considerations cannot resolve this case. The issue is not who owns the cable network or that MNN uses its own property to oper- ate the channels. The key question, rather, is whether the channels themselves are purely private property. An advertiser may not own a billboard, but that does not mean that its long-term lease is not a property interest. See The majority also says that “[n]othing in the record here suggests that a government owns or leases either the cable system or the public access channels at issue here.” Ante, at 14. But the cable system itself is irrelevant, and, as explained above, the details of the exchange that yielded Time Warner’s cable franchise suggest |
Justice Sotomayor | 2,019 | 24 | dissenting | Manhattan Community Access Corp. v. Halleck | https://www.courtlistener.com/opinion/4630087/manhattan-community-access-corp-v-halleck/ | of the exchange that yielded Time Warner’s cable franchise suggest a governmental property interest in the channels. See at 6–9. The majority observes that “the franchise agreements expressly place the public access channels ‘under the jurisdiction’ of MNN,” ante, at 14, but that language sim- ply describes the City’s appointment of MNN to administer the channels. The majority also chides respondents for failing to “alleg[e] in their complaint that the City has a property interest in the channels,” ib but, fairly read, respondents’ complaint includes such an assertion. 10 In —————— 10 Respondents alleged that the City “created an electronic public forum” and “delegat[ed] control of that forum to” MNN. App. 17. They further alleged that “[a]lmost all cable franchise agreements require cable operators—as a condition for easements to use the public rights- of-way—to dedicate some channels for programming by the public,” 0, invoked the state regulations requiring the designation of a channel here, 1, and then alleged that the City’s franchise Cite as: 587 U. S. (2019) 15 SOTOMAYOR, J., dissenting any event, any ambiguity or imprecision does not justify resolving the case against respondents at the motion-to- dismiss stage. To the extent the majority has doubts about respondents’ complaint—or factual or state-law issues that may bear upon the existence of a property interest—the more prudent course would be to vacate and remand for the lower courts to consider those matters more fully. In any event, as I have explained, the best course of all would be to affirm. B More fundamentally, the majority’s opinion erroneously fixates on a type of case that is not before us: one in which a private entity simply enters the marketplace and is then subject to government regulation. The majority swings hard at the wrong pitch. The majority focuses on which is a paradigmatic example of a line of cases that reject liability for private actors that simply operate against a regulatory backdrop. emphasized that the “fact that a business is subject to state regulation does not by itself convert its action into that of the State.” ; accord, ante, at 12. Thus, the fact that a utility company entered the marketplace did not make it a state actor, even if it was highly regulated. See ; accord, —————— agreement “requires Time Warner to set aside” the channels, 2. While the complaint does not use the words “property interest,” those allegations can be read to include the idea that whatever was “set aside” or “dedicate[d],” 0, 22, qualified as a sufficient City property interest to support respondents’ assertion of a public forum. Cf. |
Justice Sotomayor | 2,019 | 24 | dissenting | Manhattan Community Access Corp. v. Halleck | https://www.courtlistener.com/opinion/4630087/manhattan-community-access-corp-v-halleck/ | interest to support respondents’ assertion of a public forum. Cf. 400–401, (discussing dedications of property to public use); cf. also Denver Ed. Telecommunications Consortium, Inc. v. FCC, (Kennedy, J., concurring in part, con- curring in judgment in part, and dissenting in part) (noting this theory). 16 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting ante, at 12–13. The same rule holds, of course, for private comedy clubs and grocery stores. See ante, at 9. 11 The line of cases is inapposite here. MNN is not a private entity that simply ventured into the market- place. It occupies its role because it was asked to do so by the City, which secured the public-access channels in exchange for giving up public rights of way, opened those channels up (as required by the State) as a public forum, and then deputized MNN to administer them. That dis- tinguishes MNN from a private entity that simply sets up shop against a regulatory backdrop. To say that MNN is nothing more than a private organization regulated by the government is like saying that a waiter at a restaurant is —————— 11 There was a time when this Court’s precedents may have portended the kind of First Amendment liability for purely private property owners that the majority spends so much time rejecting. See Marsh v. Alabama, (treating a company-owned town as subject to the First Amendment); Food (extend- ing Marsh to cover a private shopping center to the extent that it sought to restrict speech about its businesses). But the Court soon stanched that trend. See Lloyd 561–567 (cabining Marsh and refusing to extend Logan Valley); Hudgens v. NLRB, (making clear that “the rationale of Logan Valley did not survive” Lloyd). Ever since, this Court has been reluctant to find a “public function” when it comes to “private commer- cial transactions” (even if they occur against a legal or regulatory backdrop), see, e.g., Flagg Bros., 161–163 (1978), instead requiring a closer connection between the private entity and a government or its agents, see, e.g., Brentwood (nonprofit interscholastic athletic association “pervasive[ly] entwine[d]” with governmental institutions and officials); (state-created system “whereby state officials [would] attach property on the ex parte application of one party to a private dispute”); see also (restaurant in municipal parking garage partly maintained by municipal agency); accord, ante, at 6–7. exemplifies the line of cases that supplanted cases like Logan Valley— not cases like this one. Cite as: 587 U. S. (2019) 17 SOTOMAYOR, J., dissenting an independent food seller who just happens to be highly regulated by the restaurant’s owners. The |
Justice Sotomayor | 2,019 | 24 | dissenting | Manhattan Community Access Corp. v. Halleck | https://www.courtlistener.com/opinion/4630087/manhattan-community-access-corp-v-halleck/ | happens to be highly regulated by the restaurant’s owners. The majority also relies on the Court’s statements that its “public function” test requires that a function have been “traditionally and exclusively performed” by the government. Ante, at 6 (emphasis deleted); see 419 U.S., at 3. Properly understood, that rule cabins liability in cases, such as in which a private actor ventures of its own accord into territory shared (or regu- lated) by the government (e.g., by opening a power com- pany or a shopping center). The Court made clear in that the rule did not reach further, explaining that “the fact that a state employee’s role parallels one in the pri- vate sector” does not preclude a finding of state action. n. 15. When the government hires an agent, in other words, the question is not whether it hired the agent to do some- thing that can be done in the private marketplace too. If that were the key question, the doctor in would not have been a state actor. Nobody thinks that orthopedics is a function “traditionally exclusively reserved to the State,” 419 U.S., at 3. The majority consigns to a footnote, asserting that its “scenario is not present here because the government has no [constitutional] obligation to operate public access channels.” Ante, at 7, n. 1. The majority suggests that is different because “the State was constitutionally obligated to provide medical care to prison inmates.” Ante, at 7, n. 1. But what the majority ignores is that the State in had no constitutional obligation to open the prison or incarcerate the prisoner in the first place; the obligation to provide medical care arose when it made those prior choices. The City had a comparable constitutional obligation here—one brought about by its own choices, made against a state-law backdrop. The City, of course, had no constitu- 18 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting tional obligation to award a cable franchise or to operate public-access channels. But once the City did award a cable franchise, New York law required the City to obtain public-access channels, see and to open them up as a public forum, see at 9–10. That is when the City’s obligation to act in accordance with the First Amendment with respect to the channels arose. That is why, when the City handed the administration of that forum off to an agent, the Constitution followed. See at 10–13. 12 The majority is surely correct that “when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment.” |
Justice Sotomayor | 2,019 | 24 | dissenting | Manhattan Community Access Corp. v. Halleck | https://www.courtlistener.com/opinion/4630087/manhattan-community-access-corp-v-halleck/ | private entity is not ordinarily constrained by the First Amendment.” Ante, at 9. That is because the majority is not talking about constitutional forums—it is talking about spaces where private entities have simply invited others to come speak. A comedy club can decide to open its doors as wide as it wants, but it cannot appoint itself as a government agent. The difference is between providing a service of one’s own accord and being asked by the government to administer a constitutional responsibility (indeed, here, existing to do so) on the government’s behalf. 13 —————— 12 v. Metropolitan Edison Co., by con- trast, exemplifies a type of case in which a private actor provides a service that there is no governmental obligation to provide at all. See (no state requirement for government to provide utility service); see also, e.g., Hudgens, (shopping center). In by contrast, the prison was obli- gated to provide health care in accordance with the Eighth Amendment to its prisoners once it incarcerated them, and here, the City was required to provide a public forum to its residents in accordance with the First Amendment once it granted the cable franchise. See at 11–13. 13 Accordingly, the majority need not fear that “all private property owners and private lessees who open their property for speech [c]ould be subject to First Amendment constraints.” Ante, at 10. Those kinds of entities are not the government’s agents; MNN is. Whether such entities face “extensive regulation” or require “government licenses, government contracts, or government-granted monopolies,” ante, at 12, Cite as: 587 U. S. (2019) 19 SOTOMAYOR, J., dissenting To see more clearly the difference between the cases on which the majority fixates and the present case, leave aside the majority’s private comedy club. Imagine instead that a state college runs a comedy showcase each year, renting out a local theater and, pursuant to state regula- tions mandating open access to certain kinds of student activities, allowing students to sign up to perform on a first-come, first-served basis. Cf. After a few years, the college decides that it is tired of running the show, so it hires a performing-arts nonprofit to do the job. The nonprofit prefers humor that makes fun of a certain political party, so it allows only student acts that share its views to participate. Does the majority believe that the nonprofit is indistinguishable, for purposes of state action, from a private comedy club opened by local entrepreneurs? I hope not. But two dangers lurk here regardless. On the one hand, if the City’s decision to outsource the chan- nels |
Justice Sotomayor | 2,019 | 24 | dissenting | Manhattan Community Access Corp. v. Halleck | https://www.courtlistener.com/opinion/4630087/manhattan-community-access-corp-v-halleck/ | hand, if the City’s decision to outsource the chan- nels to a private entity did render the First Amendment irrelevant, there would be substantial cause to worry about the potential abuses that could follow. Can a state university evade the First Amendment by hiring a non- profit to apportion funding to student groups? Can a city do the same by appointing a corporation to run a munici- pal theater? What about its parks? On the other hand, the majority hastens to qualify its decision, see ante, at 7, n. 1, 15, and to cabin it to the specific facts of this case, ante, at 15. Those are prudent limitations. Even so, the majority’s focus on still risks sowing confusion among the lower courts about how and when government outsourcing will render any abuses that follow beyond the reach of the Constitution. In any event, there should be no confusion here. MNN —————— is immaterial, so long as they have not accepted the government’s request to fulfill the government’s duties on its behalf. 20 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting is not a private entity that ventured into the marketplace and found itself subject to government regulation. It was asked to do a job by the government and compensated accordingly. If it does not want to do that job anymore, it can stop (subject, like any other entity, to its contractual obligations). But as long as MNN continues to wield the power it was given by the government, it stands in the government’s shoes and must abide by the First Amend- ment like any other government actor. IV This is not a case about bigger governments and smaller individuals, ante, at 16; it is a case about principals and agents. New York City opened up a public forum on public- access channels in which it has a property interest. It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the First Amend- ment, just as if the City had decided to run the public forum itself. While the majority emphasizes that its decision is nar- row and factbound, ante, at 15, that does not make it any less misguided. It is crucial that the Court does not con- tinue to ignore the reality, fully recognized by our prece- dents, that private actors who have been delegated consti- tutional responsibilities like this one should be accountable to the Constitution’s demands. I respectfully dissent |
per_curiam | 1,974 | 200 | per_curiam | Vachon v. New Hampshire | https://www.courtlistener.com/opinion/108905/vachon-v-new-hampshire/ | A 14-year-old girl bought a button inscribed "Copulation Not Masturbation" at the Head Shop in Manchester, New Hampshire. In consequence, appellant, operator of the shop, was sentenced to 30 days in jail and fined $100 after conviction upon a charge of "wilfully" contributing to the delinquency of a minor in violation of New Hampshire's Rev. Stat. Ann. 169:32 (Supp. 1972).[1] In affirming the conviction, the New Hampshire Supreme Court held that the "wilfully" component of the offense required that the State prove that the accused acted " `voluntarily and intentionally and not *479 because of mistake or accident or other innocent reason.' " 113 N. H. 239, 242, Thus, the State was required to produce evidence that appellant, knowing the girl to be a minor,[2] personally sold her the button, or personally caused another to sell it to her. Appellant unsuccessfully sought dismissal of the charge at the close of the State's case on the ground that the State had produced no evidence to meet this requirement, and unsuccessfully urged the same ground as a reason for reversal in the State Supreme Court. We have reviewed the transcript of the trial on this issue, pursuant to Rule 40 (1) (d) (2) of the Rules of this Court.[3] Our independent examination of the trial record discloses that evidence is completely lacking that appellant personally sold the girl the button or even that he was aware of the sale or present in the store at the time. The girl was the State's only witness to the sale. She testified that she and a girl friend entered the store and looked around until they saw "a velvet display card on a counter" from which they "picked out [the] pin." She went to some person in the store with the button "cupped in [her] hand" and paid that person 25 cents for the button. She did not say that appellant was that person, *480 or even that she saw him in the store. Rather, she testified that she could not identify who the person was. We therefore agree with Justice Grimes, dissenting, that "there is no evidence whatever that the defendant sold the button, that he knew it had been sold to a minor, that he authorized such sales to minors or that he was even in the store at the time of the sale." 113 N. H., at This fatal void in the State's case was not filled by appellant's concession at trial that he "controlled the premises on July 26." That concession was evidence at most that he operated the shop; it |
Justice Powell | 1,975 | 17 | majority | United States v. Ortiz | https://www.courtlistener.com/opinion/109312/united-states-v-ortiz/ | Border Patrol officers stopped respondent's car for a routine immigration at the traffic checkpoint *892 on Interstate Highway 5 at San Clemente, Cal, on November 12, They found three aliens concealed in the trunk, and respondent was convicted on three counts of knowingly transporting aliens who were in the country illegally The Court of Appeals for the Ninth Circuit reversed the conviction in an unreported opinion, relying on dictum in its opinion in United aff'd, post, p 916, to the effect that our decision in required probable cause for all vehicle es in the border area, whether conducted by roving patrols or at traffic checkpoints We granted certiorari Nothing in this record suggests that the Border Patrol officers had any special reason to suspect that respondent's car was carrying concealed aliens Nor does the Government contend that the San Clemente checkpoint is a functional equivalent of the border Brief for United States 16 The only question for decision is whether vehicle es at traffic checkpoints, like the roving-patrol in Almeida-Sanchez, must be based on probable cause I In Almeida-Sanchez we rejected the Government's contention that the Nation's strong interest in controlling immigration and the practical difficulties of policing the Mexican border combined to justify dispensing with both warrant and probable cause for vehicle es by roving patrols near the border The facts did not require us to decide whether the same rule would apply to traffic checkpoints, which differ from roving patrols in several important ; A consolidated proceeding on motions to suppress in this and similar cases produced an extensive factual *893 record on the operation of traffic checkpoints in southern California United The San Clemente checkpoint is 62 air miles and 66 road miles north of the Mexican border It is on the principal highway between San Diego and Los Angeles, and over 10 million vehicles pass the checkpoint in a year United The District Court in Baca described the checkpoint as follows: "Approximately one mile south of the checkpoint is a large black on yellow sign with flashing yellow lights over the highway stating `ALL VEHICLES, STOP AHEAD, 1 MILE' Three-quarters of a mile further north are two black on yellow signs suspended over the highway with flashing lights stating `WATCH FOR BRAKE LIGHTS' At the checkpoint, which is also the location of a State of California weighing station, are two large signs with flashing red lights suspended over the highway These signs each state `STOP HEREU S OFFICERS' Placed on the highway are a number of orange traffic cones funneling traffic into two lanes where a |
Justice Powell | 1,975 | 17 | majority | United States v. Ortiz | https://www.courtlistener.com/opinion/109312/united-states-v-ortiz/ | orange traffic cones funneling traffic into two lanes where a Border Patrol agent in full dress uniform, standing behind a white on red `STOP' sign checks traffic Blocking traffic in the unused lanes are official U S Border Patrol vehicles with flashing red lights In addition, there is a permanent building which houses the Border Patrol office and temporary detention facilities There are also floodlights for nighttime operation" -411 The Border Patrol would prefer to keep this checkpoint in operation continuously, but bad weather, heavy traffic, and personnel shortages keep it closed about one-third of the time When it is open, officers screen all northbound traffic If anything about a vehicle or its *894 occupants leads an officer to suspect that it may be carrying aliens, he will stop the car and ask the occupants about their citizenship If the officer's suspicion persists, or if the questioning enhances it, he will "inspect" portions of the car in which an alien might hide[1] Operations at other checkpoints are similar, although the traffic at some is light enough that officers can stop all vehicles for questioning and routinely inspect more of them The Government maintains that these characteristics justify dispensing with probable cause at traffic checkpoints despite the Court's holding in Almeida-Sanchez It gives essentially two reasons for distinguishing that case First, a checkpoint officer's discretion in deciding which cars to is limited by the location of the checkpoint That location is determined by high-level Border Patrol officials, using criteria that include the degree of inconvenience to the public and the potential for safe operation, as well as the potential for detecting and deterring the illegal movement of aliens By contrast, officers on roving patrol were theoretically free before Almeida-Sanchez to stop and any car within 100 miles of the border Second, the circumstances surrounding a checkpoint stop and are far less intrusive than those attending a roving-patrol stop Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists At *895 traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion These differences are relevant to the constitutional issue, since the central concern of the Fourth Amendment is to protect liberty and privacy from arbitrary and oppressive interference by government officials ; The Fourth Amendment's requirement that es and seizures be reasonable also may limit police use of unnecessarily frightening or offensive methods of surveillance and investigation See, e g, ; ; |
Justice Powell | 1,975 | 17 | majority | United States v. Ortiz | https://www.courtlistener.com/opinion/109312/united-states-v-ortiz/ | methods of surveillance and investigation See, e g, ; ; While the differences between a roving patrol and checkpoint would be significant in determining the propriety of the stop, which is considerably less intrusive than a they do not appear to make any difference in the itself The greater regularity attending the stop does not mitigate the invasion of privacy that a entails Nor do checkpoint procedures significantly reduce the likelihood of embarrassment Motorists whose cars are ed, unlike those who are only questioned, may not be reassured by seeing that the Border Patrol es other cars as well Where only a few are singled out for a as at San Clemente, motorists may find the es especially offensive See Note, Border Searches and the Fourth Amendment, 77 Yale L J 1007, 1012-1013 Moreover, we are not persuaded that the checkpoint limits to any meaningful extent the officer's discretion to select cars for The record in the consolidated proceeding indicates that only about 3% of the cars that *896 pass the San Clemente checkpoint are stopped for either questioning or a Throughout the system, fewer than 3% of the vehicles that passed through checkpoints in were ed, Brief for United States 29, and no checkpoint involved in Baca reported a rate of more than 10% or 15% -415 It is apparent from these figures that checkpoint officers exercise a substantial degree of discretion in deciding which cars to The Government maintains that they voluntarily exercise that discretion with restraint and only vehicles that arouse their suspicion, and it insists the officers should be free of judicial oversight of any kind Viewed realistically, this position would authorize the Border Patrol to vehicles at random, for no officer ever would have to justify his decision to a particular car This degree of discretion to private automobiles is not consistent with the Fourth Amendment A even of an automobile, is a substantial invasion of privacy[2] To protect that privacy from official arbitrariness, the Court always has regarded probable cause as the minimum requirement for a lawful Almeida-Sanchez, 413 U S, at 269-270; Chambers v Maroney, 399 US 42, We are not persuaded that the differences between roving patrols and traffic checkpoints justify dispensing in this case with the safeguards we required in Almeida-Sanchez We therefore follow that decision and hold that at traffic checkpoints removed from the border and its functional equivalents, *897 officers may not private vehicles without consent or probable cause[3] The Government lists in its reply brief some of the factors on which officers have relied in deciding which cars |
Justice Powell | 1,975 | 17 | majority | United States v. Ortiz | https://www.courtlistener.com/opinion/109312/united-states-v-ortiz/ | factors on which officers have relied in deciding which cars to They include the number of persons in a vehicle, the appearance and behavior of the driver and passengers, their inability to speak English, the responses they give to officers' questions, the nature of the vehicle, and indications that it may be heavily loaded All of these factors properly may be taken into account in deciding whether there is probable cause to a particular vehicle In addition, as we note today in United States v Brignoni-Ponce, ante, at 884-885, the officers are entitled to draw reasonable inferences from these facts in light of their knowledge of the area and their prior experience with aliens and smugglers In this case, however, the officers advanced no special reasons for believing respondent's vehicle contained *898 aliens The absence of probable cause makes the invalid II The Government also contends that even if Almeida-Sanchez applies to checkpoint es, the Court of Appeals erred in voiding this because it occurred after the date of decision in Almeida-Sanchez but before the Court of Appeals stated in United that it would require probable cause for checkpoint es Examination of the Government's brief in the Ninth Circuit indicates that it did not raise this question below On the contrary, it represented to the court that the decision in would be "determinative of the issues in this case" We therefore decline to consider this issue, which was raised for the first time in the petition for certiorari Affirmed MR |
Justice Rehnquist | 1,983 | 19 | majority | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | Respondents Lance and Susan Gates were indicted for violation of state drug laws after police officers, executing a search warrant, discovered marihuana and other contraband in their automobile and home. Prior to trial the Gateses moved to suppress evidence seized during this search. The Illinois Supreme Court affirmed the decisions of lower state courts granting the moti It held that the affidavit submitted in support of the State's application for a warrant to search the Gateses' property *217 was inadequate under this Court's decisions in and We granted certiorari to consider the application of the Fourth Amendment to a magistrate's issuance of a search warrant on the basis of a partially corroborated anonymous informant's tip. After receiving briefs and hearing oral argument on this question, however, we requested the parties to address an additional question: "[W]hether the rule requiring the exclusion at a criminal trial of evidence obtained in violation of the Fourth Amendment, ; should to any extent be modified, so as, for example, not to require the exclusion of evidence obtained in the reasonable belief that the search and seizure at issue was consistent with the Fourth Amendment." We decide today, with apologies to all, that the issue we framed for the parties was not presented to the Illinois courts and, accordingly, do not address it. Rather, we consider the question originally presented in the petition for certiorari, and conclude that the Illinois Supreme Court read the requirements of our Fourth Amendment decisions too restrictively. Initially, however, we set forth our reasons for not addressing the question regarding modification of the exclusionary rule framed in our order of November 2, 182. I Our certiorari jurisdiction over decisions from state courts derives from 28 U.S. C. 127, which provides that "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows: (3) By writ of certiorari,. where any title, right, privilege or immunity is specially set up or claimed under the constitution, treaties or statutes *218 of the United" The provision derives, albeit with important alterations, see, e. g., Act of Dec. 23, 11, ch. 2, ; Act of June 2, 18, 127, from the Judiciary Act of 178, 2, Although we have spoken frequently on the meaning of 127 and its predecessors, our decisions are in some respects not entirely clear. We held early on that 2 of the Judiciary Act of 178 furnished us with no jurisdiction unless a federal question had been both raised and decided in the state |
Justice Rehnquist | 1,983 | 19 | majority | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | question had been both raised and decided in the state court below. As Justice Story wrote in ; "If both of these requirements do not appear on the record, the appellate jurisdiction fails." See also[1] More recently, in the Court observed: "But it is also the settled practice of this Court, in the exercise of its appellate jurisdiction, that it is only in exceptional cases, and then only in cases coming from the federal courts, that it considers questions urged by a petitioner or appellant not pressed or passed upon in the courts below. In cases coming here from state courts in which a state statute is assailed as unconstitutional, there are reasons of peculiar force which should lead us to refrain from deciding questions not presented or decided in the highest court of the state whose judicial action we are called upon to review. Apart from the *21 reluctance with which every court should proceed to set aside legislation as unconstitutional on grounds not presented, due regard for the appropriate relationship of this Court to state courts requires us to decline to consider and decide questions affecting the validity of state statutes not urged or considered there. It is for these reasons that this Court, where the constitutionality of a statute has been upheld in the state court, consistently refuses to consider any grounds of attack not raised or decided in that court." Finally, the Court seemed to reaffirm the jurisdictional character of the rule against our deciding claims "not pressed nor passed upon" in state court in State Farm Mutual Automobile Ins. where we explained that "[s]ince the [State] Supreme Court did not pass on the question, we may not do so." See also Notwithstanding these decisions, however, several of our more recent cases have treated the so-called "not pressed or passed upon below" rule as merely a prudential restricti In the Court reversed a state criminal conviction on a ground not urged in state court, nor even in this Court. Likewise, in the Court summarily reversed a state criminal conviction on the ground, not raised in state court, or here, that it had been obtained in violation of the Due Process Clause of the Fourteenth Amendment. The Court indicated in a footnote, that it possessed discretion to ignore the failure to raise in state court the question on which it decided the case. In addition to this lack of clarity as to the character of the "not pressed or passed upon below" rule, we have recognized that it often may be unclear whether the particular federal question |
Justice Rehnquist | 1,983 | 19 | majority | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | it often may be unclear whether the particular federal question presented in this Court was raised or passed upon below. In the fullest treatment of the subject, the Court said *220 that "[i]f the question were only an enlargement of the one mentioned in the assignment of errors, or if it were so connected with it in substance as to form but another ground or reason for alleging the invalidity of the [lower court's] judgment, we should have no hesitation in holding the assignment sufficient to permit the question to be now raised and argued. Parties are not confined here to the same arguments which were advanced in the courts below upon a Federal question there discussed."[2] We have not attempted, and likely would not have been able, to draw a clear-cut line between cases involving only an "enlargement" of questions presented below and those involving entirely new questions. The application of these principles in the instant case is not entirely straightforward. It is clear in this case that respondents expressly raised, at every level of the Illinois judicial system, the claim that the Fourth Amendment had been violated by the actions of the Illinois police and that the evidence seized by the officers should be excluded from their trial. It also is clear that the State challenged, at every level of the Illinois court system, respondents' claim that the substantive requirements of the Fourth Amendment had been violated. The State never, however, raised or addressed the question whether the federal exclusionary rule should be modified in any respect, and none of the opinions of the *221 Illinois courts give any indication that the question was considered. The case, of course, is before us on the State's petition for a writ of certiorari. Since the Act of Dec. 23, 11, ch. 2, jurisdiction has been vested in this Court to review state-court decisions even when a claimed federal right has been upheld. Our prior decisions interpreting the "not pressed or passed on below" rule have not, however, involved a State's failure to raise a defense to a federal right or remedy asserted below. As explained below, however, we can see no reason to treat the State's failure to have challenged an asserted federal claim differently from the failure of the proponent of a federal claim to have raised that claim. We have identified several purposes underlying the "not pressed or passed upon" rule: for the most part, these are as applicable to the State's failure to have opposed the assertion of a particular federal right, as to a party's failure |
Justice Rehnquist | 1,983 | 19 | majority | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | of a particular federal right, as to a party's failure to have asserted the claim. First, "[q]uestions not raised below are those on which the record is very likely to be inadequate since it certainly was not complied with those questions in mind." Exactly the same difficulty exists when the State urges modification of an existing constitutional right or accompanying remedy. Here, for example, the record contains little, if anything, regarding the subjective good faith of the police officers that searched the Gateses' property which might well be an important consideration in determining whether to fashion a good-faith exception to the exclusionary rule. Our consideration of whether to modify the exclusionary rule plainly would benefit from a record containing such facts. Likewise, "due regard for the appropriate relationship of this court to state courts," 30 U. S., at demands that those courts be given an opportunity to consider the constitutionality of the actions of state officials, and, equally important, proposed changes in existing remedies for unconstitutional *222 actions. Finally, by requiring that the State first argue to the state courts that the federal exclusionary rule should be modified, we permit a state court, even if it agrees with the State as a matter of federal law, to rest its decision on an adequate and independent state ground. See at Illinois, for example, adopted an exclusionary rule as early as see and might adhere to its view even if it thought we would conclude that the federal rule should be modified. In short, the reasons supporting our refusal to hear federal claims not raised in state court apply with equal force to the State's failure to challenge the availability of a well-settled federal remedy. Whether the "not pressed or passed upon below" rule is jurisdictional, as our earlier decisions indicate, see or prudential, as several of our later decisions assume, or whether its character might be different in cases like this from its character elsewhere, we need not decide. Whatever the character of the rule may be, consideration of the question presented in our order of November 2, 182, would be contrary to the sound justifications for the "not pressed or passed upon below" rule, and we thus decide not to pass on the issue. The fact that the Illinois courts affirmatively applied the federal exclusionary rule suppressing evidence against respondents does not affect our conclusi In the Court was asked to consider whether a state statute impaired the plaintiff in error's contract with the defendant in error. It declined to hear the case because the question presented |
Justice Rehnquist | 1,983 | 19 | majority | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | It declined to hear the case because the question presented here had not been pressed or passed on below. The Court acknowledged that the lower court's opinion had restated the conclusion, set forth in an earlier decision of that court, that the state statute did not impermissibly impair contractual obligations. Nonetheless, it held that there was no showing that "there was any real contest at any stage of this case upon the point," and that without such a contest, the routine restatement *223 and application of settled law by an appellate court did not satisfy the "not pressed or passed upon below" rule. Similarly, in the present case, although the Illinois courts applied the federal exclusionary rule, there was never "any real contest" upon the point. The application of the exclusionary rule was merely a routine act, once a violation of the Fourth Amendment had been found, and not the considered judgment of the Illinois courts on the question whether application of a modified rule would be warranted on the facts of this case. In such circumstances, absent the adversarial dispute necessary to apprise the state court of the arguments for not applying the exclusionary rule, we will not consider the question whether the exclusionary rule should be modified. Likewise, we do not believe that the State's repeated opposition to respondents' substantive Fourth Amendment claims suffices to have raised the question whether the exclusionary rule should be modified. The exclusionary rule is "a judicially created remedy designed to safeguard Fourth Amendment rights generally" and not "a personal constitutional right of the party aggrieved." United The question whether the exclusionary rule's remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct. See, e. g., United ; United ; United Because of this distinction, we cannot say that modification or abolition of the exclusionary rule is "so connected with [the substantive Fourth Amendment right at issue] as to form but another ground or reason for alleging the invalidity" of the judgment. 173 U. S., at Rather, the rule's modification was, for purposes of the "not pressed or passed upon below" rule, a separate claim that had to be specifically presented to the state courts. *22 Finally, weighty prudential considerations militate against our considering the question presented in our order of November 2, 182. The extent of the continued vitality of the rules that have developed from our decisions in and is an issue of unusual significance. |
Justice Rehnquist | 1,983 | 19 | majority | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | our decisions in and is an issue of unusual significance. Sufficient evidence of this lies just in the comments on the issue that Members of this Court recently have made, e. g., ; ; ; ; ; Where difficult issues of great public importance are involved, there are strong reasons to adhere scrupulously to the customary limitations on our discreti By doing so we "promote respect for the Court's adjudicatory process [and] the stability of [our] decisions." Moreover, fidelity to the rule guarantees that a factual record will be available to us, thereby discouraging the framing of broad rules, seemingly sensible on one set of facts, which may prove ill-considered in other circumstances. In Justice Harlan's words, adherence to the rule lessens the threat of "untoward practical ramifications," not foreseen at the time of decisi The public importance of our decisions in Weeks and Mapp and the emotions engendered by the debate surrounding these decisions counsel that we meticulously observe our customary procedural rules. By following this course, we promote respect for the procedures by which our decisions are rendered, as well as confidence in the stability of prior decisions. A wise exercise of the powers confided in this Court dictates that we reserve for another day the question whether the exclusionary rule should be modified. *22 II We now turn to the question presented in the State's original petition for certiorari, which requires us to decide whether respondents' rights under the Fourth and Fourteenth Amendments were violated by the search of their car and house. A chronological statement of events usefully introduces the issues at stake. Bloomingdale, Ill., is a suburb of Chicago located in Du Page County. On May 3, 178, the Bloomingdale Police Department received by mail an anonymous handwritten letter which read as follows: "This letter is to inform you that you have a couple in your town who strictly make their living on selling drugs. They are Sue and Lance Gates, they live on Greenway, off Bloomingdale Rd. in the condominiums. Most of their buys are done in Florida. Sue his wife drives their car to Florida, where she leaves it to be loaded up with drugs, then Lance flys down and drives it back. Sue flys back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over $100,000.00 in drugs. Presently they have over $100,000.00 worth of drugs in |
Justice Rehnquist | 1,983 | 19 | majority | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | drugs. Presently they have over $100,000.00 worth of drugs in their basement. "They brag about the fact they never have to work, and make their entire living on pushers. "I guarantee if you watch them carefully you will make a big catch. They are friends with some big drugs dealers, who visit their house often. "Lance & Susan Gates "Greenway "in Condominiums" The letter was referred by the Chief of Police of the Bloomingdale Police Department to Detective Mader, who decided to pursue the tip. Mader learned, from the office of the Illinois Secretary of State, that an Illinois driver's license had *226 been issued to one Lance Gates, residing at a stated address in Bloomingdale. He contacted a confidential informant, whose examination of certain financial records revealed a more recent address for the Gateses, and he also learned from a police officer assigned to O'Hare Airport that "L. Gates" had made a reservation on Eastern Airlines Flight 2 to West Palm Beach, Fla., scheduled to depart from Chicago on May at :1 p. m. Mader then made arrangements with an agent of the Drug Enforcement Administration for surveillance of the May Eastern Airlines flight. The agent later reported to Mader that Gates had boarded the flight, and that federal agents in Florida had observed him arrive in West Palm Beach and take a taxi to the nearby Holiday Inn. They also reported that Gates went to a room registered to one Susan Gates and that, at 7 o'clock the next morning, Gates and an unidentified woman left the motel in a Mercury bearing Illinois license plates and drove northbound on an interstate highway frequently used by travelers to the Chicago area. In addition, the DEA agent informed Mader that the license plate number on the Mercury was registered to a Hornet station wagon owned by Gates. The agent also advised Mader that the driving time between West Palm Beach and Bloomingdale was approximately 22 to 2 hours. Mader signed an affidavit setting forth the foregoing facts, and submitted it to a judge of the Circuit Court of Du Page County, together with a copy of the anonymous letter. The judge of that court thereupon issued a search warrant for the Gateses' residence and for their automobile. The judge, in deciding to issue the warrant, could have determined that the modus operandi of the Gateses had been substantially corroborated. As the anonymous letter predicted, Lance Gates had flown from Chicago to West Palm Beach late in the afternoon of May th, had checked into a hotel room registered in the |
Justice Rehnquist | 1,983 | 19 | majority | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | th, had checked into a hotel room registered in the name of his wife, and, at 7 o'clock the following morning, had headed north, accompanied by an unidentified woman, *227 out of West Palm Beach on an interstate highway used by travelers from South Florida to Chicago in an automobile bearing a license plate issued to him. At :1 a. m. on March 7, only 36 hours after he had flown out of Chicago, Lance Gates, and his wife, returned to their home in Bloomingdale, driving the car in which they had left West Palm Beach some 22 hours earlier. The Bloomingdale police were awaiting them, searched the truck of the Mercury, and uncovered approximately 30 pounds of marihuana. A search of the Gateses' home revealed marihuana, weapons, and other contraband. The Illinois Circuit court ordered suppression of all these items, on the ground that the affidavit submitted to the Circuit Judge failed to support the necessary determination of probable cause to believe that the Gateses' automobile and home contained the contraband in questi This decision was affirmed in turn by the Illinois Appellate Court, and by a divided vote of the Supreme court of Illinois. The Illinois Supreme Court concluded and we are inclined to agree that, standing alone, the anonymous letter sent to the Bloomingdale Police Department would not provide the basis for a magistrate's determination that there was probable cause to believe contraband would be found in the Gateses' car and home. The letter provides virtually nothing from which one might conclude that its author is either honest or his information reliable; likewise, the letter gives absolutely no indication of the basis for the writer's predictions regarding the Gateses' criminal activities. Something more was required, then, before a magistrate could conclude that there was probable cause to believe that contraband would be found in the Gateses' home and car. See n. 1; The Illinois Supreme Court also recognized that Detective Mader's affidavit might be capable of supplementing *228 the anonymous letter with information sufficient to permit a determination of probable cause. See In holding that the affidavit in fact did not contain sufficient additional information to sustain a determination of probable cause, the Illinois court applied a "two-pronged test," derived from our decision in[3] The Illinois Supreme Court, like some others, apparently understood as requiring that the anonymous letter satisfy each of two independent requirements before it could be relied According to this view, the letter, as supplemented by Mader's affidavit, first had to adequately reveal the "basis of knowledge" of the letterwriter the |
Justice Rehnquist | 1,983 | 19 | majority | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | reveal the "basis of knowledge" of the letterwriter the particular means by which he came by the information given in his report. Second, it had to provide *22 facts sufficiently establishing either the "veracity" of the affiant's informant, or, alternatively, the "reliability" of the informant's report in this particular case. The Illinois court, alluding to an elaborate set of legal rules that have developed among various lower courts to enforce the "two-pronged test,"[] found that the test had not been satisfied. First, the "veracity" prong was not satisfied because, "[t]here was simply no basis [for] conclud[ing] that the anonymous person [who wrote the letter to the Bloomingdale Police Department] was credible." The court indicated that corroboration by police of details contained in the letter might never satisfy the "veracity" prong, and in any event, could not do so if, as in the present case, only "innocent" details are corroborated. In addition, the letter gave no indication of the basis of its writer's knowledge of the *230 Gateses' activities. The Illinois court understood as permitting the detail contained in a tip to be used to infer that the informant had a reliable basis for his statements, but it thought that the anonymous letter failed to provide sufficient detail to permit such an inference. Thus, it concluded that no showing of probable cause had been made. We agree with the Illinois Supreme Court that an informant's "veracity," "reliability," and "basis of knowledge" are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case,[] which the opinion of the Supreme Court of Illinois would imply. Rather, as detailed below, they should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is "probable cause" to believe that contraband or evidence is located in a particular place. III This totality-of-the-circumstances approach is far more consistent with our prior treatment of probable cause[6] than *231 is any rigid demand that specific "tests" be satisfied by every informant's tip. Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a "practical, nontechnical concepti" 338 U.S. "In dealing with probable cause, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Our observation in United regarding "particularized suspicion," is also applicable to the probable-cause standard: "The |
Justice Rehnquist | 1,983 | 19 | majority | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | "particularized suspicion," is also applicable to the probable-cause standard: "The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same and *232 so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." As these comments illustrate, probable cause is a fluid concept turning on the assessment of probabilities in particular factual contexts not readily, or even usefully, reduced to a neat set of legal rules. Informants' tips doubtless come in many shapes and sizes from many different types of persons. As we said in : "Informants' tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability." Rigid legal rules are ill-suited to an area of such diversity. "One simple rule will not cover every situati" [7] *233 Moreover, the "two-pronged test" directs analysis into two largely independent channels the informant's "veracity' or "reliability" and his "basis of knowledge." See nn. and There are persuasive arguments against according these two elements such independent status. Instead, they are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. See, e. g., at 16-; United 03 U.S. 73 If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip. See United[8] Likewise, if an unquestionably honest citizen comes forward with a report of criminal activity which if fabricated would subject him to criminal liability we have found *23 rigorous scrutiny of the basis of his knowledge unnecessary. Conversely, even if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case. Unlike a totality-of-the-circumstances analysis, which permits a balanced assessment of the |
Justice Rehnquist | 1,983 | 19 | majority | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | a totality-of-the-circumstances analysis, which permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip, the "two-pronged test" has encouraged an excessively technical dissection of informants' tips,[] with undue attention *23 being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate. As early as Chief Justice Marshall observed, in a closely related context: "[T]he term `probable cause,' according to its usual acceptation, means less than evidence which would justify condemnation It imports a seizure made under circumstances which warrant suspici" More recently, we said that "the quanta of proof" appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant. Brinegar, Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate's decisi While an effort to fix some general, numerically precise degree of certainty corresponding to "probable cause" may not be helpful, it is clear that "only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause." See Model Code of Pre-Arraignment Procedure 210.1(7) ; 1 W. LaFave, Search and Seizure 3.2(e) We also have recognized that affidavits "are normally drafted by nonlawyers in the midst and haste of a criminal investigati Technical requirements of elaborate specificity once enacted under common law pleadings have no proper place in this area." United (16). Likewise, search and arrest warrants long have been issued by persons who are neither lawyers nor judges, and who certainly do not remain abreast of each judicial refinement of the nature of "probable cause." See 07 U.S. 3, -30 The rigorous inquiry into the prongs and the complex superstructure of evidentiary and analytical rules that some have seen implicit in our decision, cannot be reconciled with the fact that many warrants are quite 07 U.S., at -30 issued on the basis of nontechnical, *236 common-sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings. Likewise, given the informal, often hurried context in which it must be applied, the "built-in subtleties," 1 Md. App. 07, 28, of the "two-pronged test" are particularly unlikely to assist magistrates in determining probable cause. Similarly, we have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's "determination of probable cause should be paid great deference by reviewing courts." "A grudging or negative attitude by |
Justice Rehnquist | 1,983 | 19 | majority | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | deference by reviewing courts." "A grudging or negative attitude by reviewing courts toward warrants," 380 U. S., at is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; "courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner." If the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the Warrant Clause that might develop at the time of the search. In addition, the possession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct, by assuring "the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." United Reflecting this preference for the warrant process, the traditional standard for review of an issuing magistrate's probable-cause determination has been that so long as the magistrate had a "substantial basis for conclud[ing]" that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. 362 U.S. 27, (160). See United v. *237 03 U. S., at 77-83.[10] We think reaffirmation of this standard better serves the purpose of encouraging recourse to the warrant procedure and is more consistent with our traditional deference to the probable-cause determinations of magistrates than is the "two-pronged test." Finally, the direction taken by decisions following poorly serves "[t]he most basic function of any government": "to provide for the security of the individual and of his property." 3 (166) The strictures that inevitably accompany the "two-pronged test" cannot avoid seriously impeding the task of law enforcement, see, e. g., n. If, as the Illinois Supreme Court apparently thought, that test must be rigorously applied in every case, anonymous tips would be of greatly diminished value in police work. Ordinary citizens, like ordinary witnesses, see Advisory Committee's Notes on Fed. Rule Evid. 701, 28 U.S. C. App., p. 70, generally do not provide extensive recitations of the basis of their everyday observations. Likewise, as the Illinois Supreme Court observed in this case, the veracity of persons supplying anonymous tips is by hypothesis largely unknown, and unknowable. As a result, anonymous tips seldom could survive a rigorous application of either of the prongs. Yet, such tips, particularly when supplemented by *238 independent police investigation, frequently contribute to the solution of otherwise "perfect crimes." While a conscientious assessment of the basis for crediting |
Justice Rehnquist | 1,983 | 19 | majority | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | crimes." While a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not. For all these reasons, we conclude that it is wiser to abandon the "two-pronged test" established by our decisions in Aguilar and[11] In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations. See United (16); 338 U.S. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for conclud[ing]" that probable cause *23 existed. 362 U. S., at We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Our earlier cases illustrate the limits beyond which a magistrate may not venture in issuing a warrant. A sworn statement of an affiant that "he has cause to suspect and does believe" that liquor illegally brought into the United is located on certain premises will not do. An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause, and the wholly conclusory statement at issue in Nathanson failed to meet this requirement. An officer's statement that "[a]ffiants have received reliable information from a credible person and do believe" that heroin is stored in a home, is likewise inadequate. As in Nathanson, this is a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause. Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. In order to ensure that such an abdication of the magistrate's duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued. But when we move beyond the "bare bones" affidavits present in cases such as Nathanson and Aguilar, this area simply does not lend itself to a prescribed set of rules, like that which had developed from Instead, the flexible, common-sense standard articulated in Jones, and Brinegar better serves the purposes |
Justice Rehnquist | 1,983 | 19 | majority | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | standard articulated in Jones, and Brinegar better serves the purposes of the Fourth Amendment's probable-cause requirement. JUSTICE BRENNAN'S dissent suggests in several places that the approach we take today somehow downgrades the *20 role of the neutral magistrate, because Aguilar and "preserve the role of magistrates as independent arbiters of probable cause" Post, at 287. Quite the contrary, we believe, is the case. The essential protection of the warrant requirement of the Fourth Amendment, as stated in Johnson v. United (18), is in "requiring that [the usual inferences which reasonable men draw from evidence] be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Nothing in our opinion in any way lessens the authority of the magistrate to draw such reasonable inferences as he will from the material supplied to him by applicants for a warrant; indeed, he is freer than under the regime of Aguilar and to draw such inferences, or to refuse to draw them if he is so minded. The real gist of JUSTICE BRENNAN'S criticism seems to be a second argument, somewhat at odds with the first, that magistrates should be restricted in their authority to make probable-cause determinations by the standards laid down in Aguilar and and that such findings "should not be authorized unless there is some assurance that the information on which they are based has been obtained in a reliable way by an honest or credible pers" Post, at 283. However, under our opinion magistrates remain perfectly free to exact such assurances as they deem necessary, as well as those required by this opinion, in making probable-cause determinations. JUSTICE BRENNAN would apparently prefer that magistrates be restricted in their findings of probable cause by the development of an elaborate body of case law dealing with the "veracity" prong of the test, which in turn is broken down into two "spurs" the informant's "credibility" and the "reliability" of his information, together with the "basis of knowledge" prong of the test. See n. That such a labyrinthine body of judicial refinement bears any relationship to familiar definitions of *21 probable cause is hard to imagine. As previously noted, probable cause deals "with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act," 338 U. S., JUSTICE BRENNAN'S dissent also suggests that "[w]ords such as `practical,' `nontechnical,' and `common sense,' as used in the Court's opinion, are but code words for an overly permissive |
Justice Rehnquist | 1,983 | 19 | majority | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | Court's opinion, are but code words for an overly permissive attitude towards police practices in derogation of the rights secured by the Fourth Amendment." Post, at 20. An easy, but not a complete, answer to this rather florid statement would be that nothing we know about Justice Rutledge suggests that he would have used the words he chose in Brinegar in such a manner. More fundamentally, no one doubts that "under our Constitution only measures consistent with the Fourth Amendment may be employed by government to cure [the horrors of drug trafficking]," post, at 20; but this agreement does not advance the inquiry as to which measures are, and which measures are not, consistent with the Fourth Amendment. "Fidelity" to the commands of the Constitution suggests balanced judgment rather than exhortati The highest "fidelity" is not achieved by the judge who instinctively goes furthest in upholding even the most bizarre claim of individual constitutional rights, any more than it is achieved by a judge who instinctively goes furthest in accepting the most restrictive claims of governmental authorities. The task of this Court, as of other courts, is to "hold the balance true," and we think we have done that in this case. IV Our decisions applying the totality-of-the-circumstances analysis outlined above have consistently recognized the value of corroboration of details of an informant's tip by independent police work. In 362 U. S., at 26, we held that an affidavit relying on hearsay "is not to *22 be deemed insufficient on that score, so long as a substantial basis for crediting the hearsay is presented." We went on to say that even in making a warrantless arrest an officer "may rely upon information received through an informant, rather than upon his direct observations, so long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge." Likewise, we recognized the probative value of corroborative efforts of police officials in Aguilar the source of the "two-pronged test" by observing that if the police had made some effort to corroborate the informant's report at issue, "an entirely different case" would have been presented. Aguilar, n. 1. Our decision in Draper v. United 38 U.S. 307 (1), however, is the classic case on the value of corroborative efforts of police officials. There, an informant named Hereford reported that Draper would arrive in Denver on a train from Chicago on one of two days, and that he would be carrying a quantity of heroin. The informant also supplied a fairly detailed physical description of Draper, and predicted that he would |
Justice Rehnquist | 1,983 | 19 | majority | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | detailed physical description of Draper, and predicted that he would be wearing a light colored raincoat, brown slacks, and black shoes, and would be walking "real fast." at 30. Hereford gave no indication of the basis for his informati[12] On one of the stated dates police officers observed a man matching this description exit a train arriving from Chicago; his attire and luggage matched Hereford's report and he was *23 walking rapidly. We explained in Draper that, by this point in his investigation, the arresting officer "had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford's information being thus personally verified, [the officer] had `reasonable grounds' to believe that the remaining unverified bit of Hereford's information that Draper would have the heroin with him was likewise true," The showing of probable cause in the present case was fully as compelling as that in Draper. Even standing alone, the facts obtained through the independent investigation of Mader and the DEA at least suggested that the Gateses were involved in drug trafficking. In addition to being a popular vacation site, Florida is well known as a source of narcotics and other illegal drugs. See United v. Mendenhall, 6 U.S. 62 ; DEA, Narcotics Intelligence Estimate, The Supply of Drugs to the U. S. Illicit Market From Foreign and Domestic Sources in pp. 8-. Lance Gates' flight to West Palm Beach, his brief, overnight stay in a motel, and apparent immediate return north to Chicago in the family car, conveniently awaiting him in West Palm Beach, is as suggestive of a prearranged drug run, as it is of an ordinary vacation trip. In addition, the judge could rely on the anonymous letter, which had been corroborated in major part by Mader's efforts just as had occurred in Draper.[13] The Supreme Court *2 of Illinois reasoned that Draper involved an informant who had given reliable information on previous occasions, while the honesty and reliability of the anonymous informant in this case were unknown to the Bloomingdale police. While this distinction might be an apt one at the time the Police Department received the anonymous letter, it became far less significant after Mader's independent investigative work occurred. The corroboration of the letter's predictions that the Gateses' car would be in Florida, that Lance Gates would fly to Florida in the next day or so, and that he would drive the car |
Justice Rehnquist | 1,983 | 19 | majority | Illinois v. Gates | https://www.courtlistener.com/opinion/110959/illinois-v-gates/ | day or so, and that he would drive the car north toward Bloomingdale all indicated, albeit not with certainty, that the informant's other assertions also were true. "[B]ecause an informant is right about some things, he is more probably right about other facts," 33 U. S., at 27 including the claim regarding the Gateses' illegal activity. This may well not be the type of "reliability" or "veracity" necessary to satisfy some views of the "veracity prong" of but we think it suffices for the practical, common-sense judgment called for in making a probable-cause determinati It is enough, for purposes of assessing probable cause, that "[c]orroboration through other sources of information reduced the *2 chances of a reckless or prevaricating tale," thus providing "a substantial basis for crediting the hearsay." 362 U. S., at 26, Finally, the anonymous letter contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted. The letterwriter's accurate information as to the travel plans of each of the Gateses was of a character likely obtained only from the Gateses themselves, or from someone familiar with their not entirely ordinary travel plans. If the informant had access to accurate information of this type a magistrate could conclude that it was not unlikely that he also had access to reliable information of the Gateses' alleged illegal activities.[1] Of *26A course, the Gateses' travel plans might have been learned from a talkative neighbor or travel agent; under the "two-pronged test" developed from the character of the details in the anonymous letter might well not permit a sufficiently clear inference regarding the letterwriter's "basis of knowledge." But, as discussed previously, at 23, probable cause does not demand the certainty we associate with formal trials. It is enough that there was a fair probability that the writer of the anonymous letter had obtained his entire story either from the Gateses or someone they trusted. And corroboration of major portions of the letter's predictions provides just this probability. It is apparent, therefore, that the judge issuing the warrant had a "substantial basis for conclud[ing]" that probable cause to search the Gateses' home and car existed. The judgment of the Supreme Court of Illinois therefore must be Reversed. *26B JUSTICE WHITE, concurring in the judgment. |
Justice Burger | 1,978 | 12 | majority | Burks v. United States | https://www.courtlistener.com/opinion/109891/burks-v-united-states/ | We granted certiorari to resolve the question of whether an accused may be subjected to a second trial when conviction in a prior trial was reversed by an appellate court solely for lack of sufficient evidence to sustain the jury's verdict I Petitioner Burks was tried in the United District Court for the crime of robbing a federally insured bank by use of a dangerous weapon, a violation of 18 US C 2113 (d) ( ed) Burks' principal defense was insanity To prove this *3 claim petitioner produced three expert witnesses who testified, albeit with differing diagnoses of his mental condition, that he suffered from a mental illness at the time of the robbery, which rendered him substantially incapable of conforming his conduct to the requirements of the law In rebuttal the Government offered the testimony of two experts, one of whom testified that although petitioner possessed a character disorder, he was not mentally ill The other prosecution witness acknowledged a character disorder in petitioner, but gave a rather ambiguous answer to the question of whether Burks had been capable of conforming his conduct to the law Lay witnesses also testified for the Government, expressing their opinion that petitioner appeared to be capable of normal functioning and was sane at the time of the alleged offense Before the case was submitted to the jury, the court denied a motion for a judgment of acquittal The jury found Burks guilty as charged Thereafter, he filed a timely motion for a new trial, maintaining, among other things, that "[t]he evidence was insufficient to support the verdict" The motion was denied by the District Court, which concluded that petitioner's challenge to the sufficiency of the evidence was "utterly without merit"[1] On appeal petitioner narrowed the issues by admitting the affirmative factual elements of the charge against him, leaving only his claim concerning criminal responsibility to be resolved With respect to this point, the Court of Appeals agreed with petitioner's claim that the evidence was insufficient to support the verdict and reversed his conviction The court began by noting that "the government has the burden of proving sanity [beyond a reasonable doubt] once a prima facie defense of insanity has been raised"[2] *4 at 969 Petitioner had met his obligation, the court indicated, by presenting "the specific testimony of three experts with unchallenged credentials" But the reviewing court went on to hold that the United had not fulfilled its burden since the prosecution's evidence with respect to Burks' mental condition, even when viewed in the light most favorable to the Government, did not "effectively |
Justice Burger | 1,978 | 12 | majority | Burks v. United States | https://www.courtlistener.com/opinion/109891/burks-v-united-states/ | the light most favorable to the Government, did not "effectively rebu[t]" petitioner's proof with respect to insanity and criminal responsibility In particular, the witnesses presented by the prosecution failed to "express definite opinions on the precise questions which this Court has identified as critical in involving the issue of sanity" At this point, the Court of Appeals, rather than terminating the case against petitioner, remanded to the District Court "for a determination of whether a directed verdict of acquittal should be entered or a new trial ordered" Indicating that the District Court should choose the appropriate course "from a balancing of the equities," ibid, the court explicitly adopted the procedures utilized by the Fifth Circuit in United "as a guide" to be used on remand: "[W]e reverse and remand the case to the district court where the defendant will be entitled to a directed verdict of acquittal unless the government presents sufficient additional evidence to carry its burden on the issue of defendant's sanity As we noted earlier, the question of sufficiency of the evidence to make an issue for the jury on the defense of insanity is a question of law to be decided by the trial judge If the district court, sitting without the presence of the jury, is satisfied by the government's presentation, it may order a new trial Even if the government presents additional evidence, the district judge may refuse to order a new trial if he finds from the record that the prosecution had the opportunity fully to develop its case or in fact did so at the first trial" *5 The Court of Appeals assumed it had the power to order this "balancing" remedy by virtue of the fact that Burks had explicitly requested a new trial As authority for this holding the court cited, inter alia, 28 US C 2106,[3] and 547 F2d, The United has not cross-petitioned for certiorari on the question of whether the Court of Appeals was correct in holding that the Government had failed to meet its burden of proof with respect to the claim of insanity Accordingly, that issue is not open for review here Given this posture, we are squarely presented with the question of whether a defendant may be tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury[4] Petitioner's argument is straightforward He contends that the Court of Appeals' holding was nothing more or less than a decision that the District Court had erred by not granting his motion |
Justice Burger | 1,978 | 12 | majority | Burks v. United States | https://www.courtlistener.com/opinion/109891/burks-v-united-states/ | the District Court had erred by not granting his motion for a judgment of acquittal By implication, he argues, the appellate reversal was the operative equivalent of a district court's judgment of acquittal, entered either before or after verdict Petitioner points out, however, that had the District Court found the evidence at the first trial inadequate, as the Court of Appeals said it should have done, a second trial would violate the Double Jeopardy Clause of the *6 Fifth Amendment Therefore, he maintains, it makes no difference that the determination of evidentiary insufficiency was made by a reviewing court since the double jeopardy considerations are the same, regardless of which court decides that a judgment of acquittal is in order The position advanced by petitioner has not been embraced by our prior holdings Indeed, as the Court of Appeals here recognized, would appear to be contrary In Bryan the defendant was convicted in the District Court for evasion of federal income tax laws Bryan had moved for a judgment of acquittal both at the close of the Government's case and when all of the evidence had been presented After the verdict was returned he renewed these motions, but askedin the alternativefor a new trial These motions were all denied The Court of Appeals reversed the conviction on the specific ground that the evidence was insufficient to sustain the verdict and remanded the case for a new trial Certiorari was then granted to determine whether the Court of Appeals had properly ordered a new trial, or whether it should have entered a judgment of acquittal In affirming the Court of Appeals, this Court decided, first, that the Court of Appeals had statutory authority, under 28 US C 2106, to direct a new trial But Bryan had also maintained that notwithstanding 2106 a retrial was prohibited by the Double Jeopardy Clause, a contention which was dismissed in one paragraph: "Petitioner's contention that to require him to stand trial again would be to place him twice in jeopardy is not persuasive He sought and obtained the reversal of his conviction, assigning a number of alleged errors on appeal, including denial of his motion for judgment of acquittal ` [W]here the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial' Francis v Resweber, 329 US 459, See Trono v United 199 US 521, " 338 US, at 560 *7 Five years after Bryan was decided, a similar claim of double jeopardy was presented to the Court in Sapir v United 348 US 373 Sapir had been convicted |
Justice Burger | 1,978 | 12 | majority | Burks v. United States | https://www.courtlistener.com/opinion/109891/burks-v-united-states/ | Sapir v United 348 US 373 Sapir had been convicted of conspiracy by a jury in the District Court After the trial court denied a motion for acquittal, he obtained a reversal in the Court of Appeals, which held that the motion should have been granted since the evidence was insufficient to sustain a conviction In a brief per curiam opinion, this Court, without explanation, reversed the Court of Appeals' decision to remand the petitioner's case for a new trial Concurring in the Sapir judgment, which directed the dismissal of the indictment, Mr Justice Douglas indicated his basis for reversal: "The correct rule was stated in Kepner v United 195 US 100, `It is, then, the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered ' If the jury had acquitted, there plainly would be double jeopardy to give the Government another go at this citizen If, as in the Kepner case, the trial judge had rendered a verdict of acquittal, the guarantee against double jeopardy would prevent a new trial of the old offense I see no difference when the appellate court orders a judgment of acquittal for lack of evidence" Up to this point, Mr Justice Douglas' explication is, of course, precisely that urged on us by petitioner, and presumably would have been applicable to Bryan as well But the concurrence in Sapir then undertook to distinguish Bryan: "If petitioner [Sapir] had asked for a new trial, different considerations would come into play, for then the defendant opens the whole record for such disposition as might be just See " 348 U S, (Emphasis added) *8 Shortly after Sapir, in Yates v United 354 US 298 the Court adopted much the same reasoning as that employed by the Sapir concurrence In Yates, this Court without citing Sapirordered acquittals for some defendants in the case, but new trials for others, when one of the main contentions of the petitioners concerned the insufficiency of the evidence As an explanation for the differing remedies, the Court stated: "We think we may do this by drawing on our power under 28 US C 2106, because under that statute we would no doubt be justified in refusing to order acquittal even where the evidence might be deemed palpably insufficient, particularly since petitioners have asked in the alternative for a new trial as well as for acquittal See " 354 U S, at 328 The Yates decision thus paralleled Sapir's concurrence in the sense that both would allow a new trial to correct evidentiary |
Justice Burger | 1,978 | 12 | majority | Burks v. United States | https://www.courtlistener.com/opinion/109891/burks-v-united-states/ | that both would allow a new trial to correct evidentiary insufficiency if the defendant had requested such reliefeven as an alternative to a motion for acquittal But the language in Yates was also susceptible of a broader reading, namely, that appellate courts have full authority to order a new trial as a remedy for evidentiary insufficiency, even when the defendant has moved only for a judgment of acquittal Three years later in v United 361 US 416 the Court again treated these questions There a conviction was reversed by the Court of Appeals due to an improper instruction to the jury, i e, trial error, as opposed to evidentiary insufficiency Although the petitioner in had moved both for a new trial and judgment of acquittal, he argued that a new trial would not be appropriate relief since he had requested a judgment of acquittal with respect to the specific trial error on which this Court agreed with the Court of Appeals Without distinguishing between a reversal due to trial error and reversal resulting solely from evidentiary *9 insufficiency, this Court held that a new trial did not involve double jeopardy: "It is elementary in our law that a person can be tried a second time for an offense when his prior conviction for that same offense has been set aside by his appeal United v Ball, 163 US 662, Even though petitioner be right in his claim that he did not request a new trial with respect to the portion of the charge dealing with the statute of limitations, still his plea of double jeopardy must fail Under 28 US C 2106, the Court of Appeals has full power to go beyond the particular relief sought See Ball, and other supra" Until this stage in the opinion the Court seemed to adopt the more expansive implication of Yates, i e, that an appellate court's choice of remedies for an unfair conviction whether reversal be compelled by failure of proof or trial errorwould not turn on the relief requested by the defendant The decision, however, was not entirely free from ambiguity In the course of meeting the petitioner's argument that Sapir demanded a judgment of acquittal, the Court noted two differences between those In the first place, "the order to dismiss in Sapir was based on the insufficiency of the evidence, which could be cured only by the introduction of new evidence"; in however, "`[t]he jury was simply not properly instructed'" 361 US, at 426 In addition, "Sapir made no motion for a new trial in the District Court, while here |
Justice Burger | 1,978 | 12 | majority | Burks v. United States | https://www.courtlistener.com/opinion/109891/burks-v-united-states/ | for a new trial in the District Court, while here petitioner [] filed such a motion That was a decisive factor in Sapir's case" (Emphasis added) The Court's holdings in this area, beginning with Bryan, can hardly be characterized as models of consistency and clarity Bryan seemingly stood for the proposition that an appellate court could order whatever relief was "appropriate" *10 or "equitable," regardless of what considerations prompted reversal A somewhat different course was taken by the concurrence in Sapir, where it was suggested that a reversal for evidentiary insufficiency would require a judgment of acquittal unless the defendant had requested a new trial Yates, on the contrary, implied that new trials could be ordered to cure prior inadequacies of proof even when the defendant had not so moved While not completely resolving these ambiguities, suggested that a reviewing court could go beyond the relief requested by a defendant and order a new trial under some circumstances In discussing Sapir, however, the Court intimated that a different result might follow if the conviction was reversed for evidentiary insufficiency and the defendant had not requested a new trial After the Bryan- line of decisions at least one proposition emerged: A defendant who requests a new trial as one avenue of relief may be required to stand trial again, even when his conviction was reversed due to failure of proof at the first trial Given that petitioner here appealed from a denial of a motion for a new trialalthough he had moved for acquittal during trialour prior would seem to indicate that the Court of Appeals had power to remand on the terms it ordered To reach a different result will require a departure from those holdings I It is unquestionably true that the Court of Appeals' decision "represente[d] a resolution, correct or not, of some or all of the factual elements of the offense charged" United v Martin Linen Supply Co, 430 US 564, By deciding that the Government had failed to come forward with sufficient proof of petitioner's capacity to be responsible for criminal acts, that court was clearly saying that Burks' criminal culpability had not been established If the District Court had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have *11 been entered[5] and, of course, petitioner could not be retried for the same offense See Fong Foo v United 369 US 141 ; Kepner v United 195 US 100 Consequently, as Mr Justice Douglas correctly perceived in Sapir, it should make no difference that |
Justice Burger | 1,978 | 12 | majority | Burks v. United States | https://www.courtlistener.com/opinion/109891/burks-v-united-states/ | correctly perceived in Sapir, it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient, see 348 US, The appellate decision unmistakably meant that the District Court had erred in failing to grant a judgment of acquittal To hold otherwise would create a purely arbitrary distinction between those in petitioner's position and others who would enjoy the benefit of a correct decision by the District Court See Sumpter v DeGroote, 552 F2d 1206, The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding[6] This is central to the objective of the prohibition against successive trials The Clause does not allow "the State to make repeated attempts to convict an individual for an alleged offense," since "[t]he constitutional prohibition against `double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense" Green v United 355 US 184, ; see Serfass v United 420 US 377, ; United v Jorn, 400 US 470, *12 Nonetheless, as the discussion in Part indicates, our past holdings do not appear consistent with what we believe the Double Jeopardy Clause commands A close reexamination of those precedents, however, persuades us that they have not properly construed the Clause, and accordingly should no longer be followed Reconsideration must begin with The brief and somewhat cursory examination of the double jeopardy issue there was limited to stating that "`where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial,'" 338 US, at 560, citing Louisiana ex rel Francis v Resweber, 329 US 459, and Trono v United 199 US 521, These two cited authorities, which represent the totality of the Court's analysis, add little, if anything, toward resolving the double jeopardy problem presented by Bryan Resweber involved facts completely unrelated to evidentiary insufficiency There, in what were admittedly "unusual circumstances," 329 US, at 461, the Court decided that a State would be allowed another chance to carry out the execution of one properly convicted and under sentence of death after an initial attempted electrocution failed due to some mechanical difficulty In passing, the opinion stated: "But where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial United v Ball, 163 US 662, " at Trono made a similar comment, citing Ball for the proposition that "if the judgment of conviction |
Justice Burger | 1,978 | 12 | majority | Burks v. United States | https://www.courtlistener.com/opinion/109891/burks-v-united-states/ | Ball for the proposition that "if the judgment of conviction be reversed on [the defendant's] own appeal, he cannot avail himself of the once-in-jeopardy provision as a bar to a new trial of the offense for which he was convicted" 199 US, at [7] *13 The common ancestor of these statements in Resweber and Trono, then, is United v Ball, which provides a logical starting point for unraveling the conceptual confusion arising from Bryan and the which have followed in its wake This is especially true since Ball appears to represent the first instance in which this Court considered in any detail the double jeopardy implications of an appellate reversal North Carolina v Pearce, 395 US 711, Ball came before the Court twice, the first occasion being on writ of error from federal convictions for murder On this initial review, those defendants who had been found guilty obtained a reversal of their convictions due to a fatally defective indictment On remand after appeal, the trial court dismissed the flawed indictment and proceeded to retry the defendants on a new indictment They were again convicted and the defendants came once more to this Court, arguing that their second trial was barred because of former jeopardy The Court rejected this plea in a brief statement: "[A] defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offense of which he had been convicted Hopt v Utah, 104 US 631; 110 US 574; 114 US 488; 120 US 430; Regina v Drury, 3 Cox Crim Cas 544; S C 3 Car & Kirw 193; Commonwealth v Gould, " 163 US, at *14 The reversal in Ball was therefore based not on insufficiency of evidence but rather on trial error, i e, failure to dismiss a faulty indictment Moreover, the cited as authority by Ball were ones involving trial errors[8] We have no doubt that Ball was correct in allowing a new trial to rectify trial error: "The principle that [the Double Jeopardy Clause] does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence" United v 377 US 463, See United v 420 US 332, 341 n 9 ; 361 U S, As we have seen in Part the which have arisen since Ball generally do not distinguish *15 between reversals due to trial error and those resulting from evidentiary insufficiency We believe, however, |
Justice Burger | 1,978 | 12 | majority | Burks v. United States | https://www.courtlistener.com/opinion/109891/burks-v-united-states/ | error and those resulting from evidentiary insufficiency We believe, however, that the failure to make this distinction has contributed substantially to the present state of conceptual confusion existing in this area of the law Consequently, it is important to consider carefully the respective roles of these two types of reversals in double jeopardy analysis Various rationales have been advanced to support the policy of allowing retrial to correct trial error,[9] but in our view the most reasonable justification is that advanced by at 466: "It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction" See at 343-344, n 11; Wade v Hunter, 336 US 684, In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case As such, it implies nothing with respect to the guilt or innocence of the defendant Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e g, incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished See Note, Double Jeopardy: A New Trial After *16 Appellate Reversal for Insufficient Evidence, 31 U Chi L Rev 365, The same cannot be said when a defendant's conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble[10] Moreover, such an appellate reversal means that the government's case was so lacking that it should not have even been submitted to the jury Since we necessarily afford absolute finality to a jury's verdict of acquittalno matter how erroneous its decisionit is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty The importance of a reversal on grounds of evidentiary insufficiency for purposes of inquiry under the Double Jeopardy Clause is underscored by the fact that a federal court's role in deciding whether a case should be considered by the jury is quite limited Even the trial court, which |
Justice Burger | 1,978 | 12 | majority | Burks v. United States | https://www.courtlistener.com/opinion/109891/burks-v-united-states/ | the jury is quite limited Even the trial court, which has heard the testimony of witnesses firsthand, is not to weigh the evidence or assess the credibility of witnesses when it judges the merits of a motion for acquittal See United v Wolfenbarger, 426 F2d 992, ; United v Nelson, 419 F2d 1237, ; McClard v United 386 F2d 495, ; Curley v United 81 U S App D C 389, 392, 160 F2d 229, cert denied, 331 US 837 The prevailing rule has long been that a district judge is to submit a case to the jury if the evidence and inferences therefrom most favorable to the prosecution would warrant the jury's finding the defendant guilty beyond a reasonable doubt See C Wright, Federal Practice and *17 Procedure 467, pp 259-260 ; e g, Powell v United 135 U S App D C 254, 257, 418 F2d 470, ; Crawford v United 126 U S App D C 156, 158, 375 F2d 332, Obviously a federal appellate court applies no higher a standard; rather, it must sustain the verdict if there is substantial evidence, viewed in the light most favorable to the Government, to uphold the jury's decision See Glasser v United 315 US 60, While this is not the appropriate occasion to re-examine in detail the standards for appellate reversal on grounds of insufficient evidence, it is apparent that such a decision will be confined to where the prosecution's failure is clear[11] Given the requirements for entry of a judgment of acquittal the purposes of the Clause would be negated were we to afford the government an opportunity for the proverbial "second bite at the apple" In our view it makes no difference that a defendant has sought a new trial as one of his remedies, or even as the sole remedy It cannot be meaningfully said that a person "waives" his right to a judgment of acquittal by moving for a new trial See Green v United 355 U S, at 191-198 Moreover, as 361 U S, has indicated, an appellate court is authorized by 2106 to "go beyond the particular relief sought" in order to provide that relief which *18 would be "just under the circumstances" Since we hold today that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only "just" remedy available for that court is the direction of a judgment of acquittal To the extent that our prior decisions suggest that by moving for a new trial, a defendant waives his right to |
Justice Marshall | 1,974 | 15 | second_dissenting | Gooding v. United States | https://www.courtlistener.com/opinion/109017/gooding-v-united-states/ | I agree with my Brother DOUGLAS that the provisions of the District of Columbia Code requiring a showing of need for execution of a search warrant at night govern the search involved in this case, and, accordingly, I join in his dissenting opinion. A majority of the Court, however, rejects this argument and goes on to discuss the standards imposed by 21 U.S. C. 879 (a) upon issuance of search warrants for nighttime execution in federal narcotics cases. Obviously, the Court's interpretation of 879 (a) is of far greater significance, of national rather than purely local concern. I cannot let the Court's construction of 879 (a) pass without registering my dissent on this issue as well. The opinion of the Court, it seems to me, analyzes the 879 (a) issue in a vacuum, without any discussion of some of the important policy considerations which underlie this question of statutory interpretation. Perhaps a partial vacuum would be a more appropriate description, since the Court is obviously fully cognizant of the substantial governmental interest in enforcement of the narcotics laws, an interest which its interpretation of 879 (a) so well serves. But plainly there are other concerns implicated in our interpretation of this congressional *462 enactment restricting the issuance of search warrantsthe protection of individual privacy which is the very purpose of the statute's search warrant requirement and which of course is given constitutional recognition in the Fourth Amendment. The Court seems totally oblivious to these constitutional considerations. Taking them into account, I find that the only acceptable interpretation of the statute is one which requires some additional justification for authorizing a nighttime search over and above the ordinary showing of probable cause to believe that a crime has been committed and that evidence of the crime will be found upon the search. Fundamentally at issue in this case is the extent of the protection which we will all enjoy from police intrusion into the privacy of our homes during the middle of the night. The Fourth Amendment was intended to protect our reasonable expectations of privacy from unjustified governmental intrusion. In my view, there is no expectation of privacy more reasonable and more demanding of constitutional protection than our right to expect that we will be let alone in the privacy of our homes during the night. The idea of the police unnecessarily forcing their way into the home in the middle of the nightfrequently, in narcotics cases, without knocking and announcing their purposerousing the residents out of their beds, and forcing them to stand by in indignity in their night |
Justice Marshall | 1,974 | 15 | second_dissenting | Gooding v. United States | https://www.courtlistener.com/opinion/109017/gooding-v-united-states/ | forcing them to stand by in indignity in their night clothes while the police rummage through their belongings does indeed smack of a " `police state' lacking in the respect for the right of privacy dictated by the U. S. Constitution." S. Rep. No. 91-538, p. 12 (19). The public outrage at the series of mistaken nighttime raids by narcotics agents in Collinsville, Illinois, last *463 April, see N. Y. Times, Apr. 29, p. 1, col. 5; N. Y. Times, Apr. 30, p. 30, col. 1, serves to emphasize just how inconsistent with our constitutional guarantees such nighttime searches are. This Court has consistently recognized that the intrusion upon privacy engendered by a search of a residence at night is of an order of magnitude greater than that produced by an ordinary search. Mr. Justice Harlan observed in holding a nighttime search unconstitutional in : "[I]t is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home." In the Court again recognized that a midnight entry into a home was an "extremely serious intrusion." And our decision in was in large part based upon our revulsion at the thought of nighttime searches of the marital bedroom to discover evidence of illegal contraceptive use. See It is small wonder, then, that Congress has consistently required more stringent justification for nighttime searches than that needed to authorize a search during the day. The first congressional enactment setting out comprehensive search warrant procedures, 10 of Tit. XI of the Espionage Act of 1917, 229, 18 U.S. C. 620 (1940 ed.), required that the affiant must be "positive" that the property to be seized was on the premises to justify a nighttime search. When the provisions of the Espionage Act were replaced by the Federal Rules of Criminal Procedure in 1946, this requirement of positivity was carried forward in Rule 41. Despite the stringency of this requirement, it remained with us until very recently, until the 1972 amendments to Rule 41. And although the Rule was then modified to require *464 "reasonable cause" for nighttime execution of a warrant, significantly the amended Rule retained the principle that nighttime searches require an additional showing of justification over and above probable cause. Congress has also manifested its concern for protection of individual privacy against nighttime searches in its legislation for the District of Columbia, as MR. JUSTICE DOUGLAS' opinion amply demonstrates with respect to enactment of the D. C. Court Reform and Criminal Procedure Act in 1970. Ante, at 460.[1] The strong policy underlying these congressional enactments is clear. |
Justice Marshall | 1,974 | 15 | second_dissenting | Gooding v. United States | https://www.courtlistener.com/opinion/109017/gooding-v-united-states/ | 460.[1] The strong policy underlying these congressional enactments is clear. As even the Government in this case concedes, "searches conducted in the middle of the night involve a greater intrusion than ordinary searches and therefore require a greater justification." Brief for United States 14. In my view, this principle may well be a constitutional imperative. It is by now established Fourth Amendment doctrine that increasingly severe standards of probable cause are necessary to justify increasingly intrusive searches. In after holding that search warrants were required to authorize administrative inspections, we held that the quantum of probable cause required for issuance of an inspection warrant must be determined in part by the reasonableness of the proposed search. As MR. JUSTICE WHITE stated, "there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails." The Court in Camara thus approved the issuance *465 of area inspection warrants in part because such searches "involve a relatively limited invasion of the urban citizen's privacy." See also ; I do not regard this principle as a one-way street, to be used only to water down the requirement of probable cause when necessary to authorize governmental intrusions. In some situationsand the search of a private home during nighttime would seem to be a paradigm this principle requires a showing of additional justification for a search over and above, the ordinary showing of probable cause. Cf. Of course, this constitutional question is not presented in this case and need not be resolved here. But the long history of congressional authorization of nighttime searches only upon a showing of additional justification, the strong constitutionally based policy which these statutes implement, and the substantial constitutional question posed by the majority's interpretation of 879 (a) are surely relevant to the question of statutory interpretation with which we are faced. Viewed against this background, I think it is plain that the majority's interpretation of the statute should be rejected. Section 879 (a) provides that search warrants may be executed at night only if "there is probable cause to believe that grounds exist for the warrant and for its service at such time." It seems to me quite clear that the statute, on its face, imposes two distinct requirements: that there be probable cause for the issuance of the warrant, and that there be cause "for its service at such time." While the Court relies on legislative history which suggests that 879 (a) merely "incorporates" the provisions of its predecessor, 18 U.S. C. 1405 (1964 ed.), the plain *466 |
Justice Marshall | 1,974 | 15 | second_dissenting | Gooding v. United States | https://www.courtlistener.com/opinion/109017/gooding-v-united-states/ | predecessor, 18 U.S. C. 1405 (1964 ed.), the plain *466 fact is that 879 (a) does far more than this: it also adds to the language of 1405 the final clause"and for its service at such time"which is at the heart of the dispute in this case. I can see no plausible interpretation of this final clause other than that it imposes an additional requirement of justification for a search at night over and above a showing of probable cause. The Court, while conceding this to be a "possible" meaning of the statute's final clause, argues that "it is by no means the only possible meaning attributable to the words." Ante, at 455. Unfortunately, the Court then fails to come forward with any alternative interpretation of these final words of 879 (a). Instead, the Court simply reads the disputed language out of the statute entirely, and decrees that the statute shall be interpreted as if it were not there. The Court holds that the statute requires only "a showing that the contraband is likely to be on the property or person to be searched at that time" to justify nighttime execution of a search warrant. Ante, at 458. But the showing of probable cause required for issuance of any warrant necessarily includes a showing that the objects to be seized will probably be found on the premises at the time of the search. See ; ; This requirement is clearly imposed by the Fourth Amendment itself. It is also clearly mandated by the first part of the statutory language, which merely incorporates the constitutional requirement of probable cause for issuance of the warrant. The majority's interpretation of the statute thus leaves the final clause of 879 (a)the language in controversy heretotally without meaning. See United (DC Ct. App.) *467 (Kelly, J., dissenting), cert. denied, ; United F.2d 428, I cannot subscribe to such an evisceration of the statute.[2] *468 The Court bases its holding upon the meager recorded legislative history of 879 (a). But when the language of a statute is as clear and unambiguous as it is here, it is neither helpful nor appropriate to look to its legislative history. Ex parte Collett, ; United (19). While committee reports in particular are often a helpful guide to the meaning of ambiguous statutory language, even they must be disregarded if inconsistent with the plain language of the statute. ; George Van Camp & Sons It is the language of the statute, as enacted by the Congress, that is the law of the land, not the language of a committee report |
Justice Marshall | 1,974 | 15 | second_dissenting | Gooding v. United States | https://www.courtlistener.com/opinion/109017/gooding-v-united-states/ | of the land, not the language of a committee report which may or may not represent accurately the views of the hundreds of other legislators who voted for the bill. In any event, even if resort to examination of the legislative history were appropriate here, I do not find it nearly so conclusive as does the majority of the Court. The Court relies on a single brief statement on 879 (a) in the committee report stating that the statute merely incorporated the provisions of 1405, which had been construed not to impose any requirement for a nighttime search warrant over and above probable cause. Yet this statement fails to provide any explanation for the language which Congress added to 1405, the language *4 in controversy here. As to the meaningor, as the Court would have it, the lack of meaningof this language, the Court relies basically upon the law enforcement goals of the Department of Justice and the silence of Congress. But, as we have frequently warned, "[i]t is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law." 328 U.S. ; see H. M. Hart & A. Sacks, The Legal Process:Basic Problems in the Making and Application of Law 1395-1398 and cases there cited. The Court in effect presumes from Congress' failure to explain the meaning of the final clause of 879 (a) its acquiescence in the Justice Department's apparent view that this language in fact serves no purpose. I would presume the contrary. Congress' consistent protection of nighttime privacy by imposing restrictions upon the availability of warrants for nighttime searches reinforces the unambiguous statutory language. Both lead me to the conclusion that the final clause of 879 (a) must be viewed as another congressional manifestation of its strong policy against nighttime intrusions into the home. I do not think that this interpretation is at all inconsistent with the narcotics law-enforcement objectives which were the principal focus of this legislation. The requirement that cause be shown for the necessity of a nighttime search is still a substantial easing of the requirement of positivity which was then embodied in Rule 41, and which would otherwise have applied to many of the searches now covered by 879 (a). I respectfully dissent. |
Justice Brennan | 1,985 | 13 | concurring | Massachusetts Mut. Life Ins. Co. v. Russell | https://www.courtlistener.com/opinion/111499/massachusetts-mut-life-ins-co-v-russell/ | Section 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S. C. 1132(a), provides a wide array of measures to employee-benefit plan participants and beneficiaries by which they may enforce their rights under ERISA and under the terms of their plans. A participant *149 or beneficiary may file a civil action, for example, (1) "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan," 502(a)(1)(B); (2) "for appropriate relief under section 409," 502(a)(2); and (3) "to enjoin any act or practice which violates any provision of this title or the terms of the plan, or. to obtain other appropriate equitable relief to redress such violations," 502(a)(3) (emphasis added).[1] This case presents a single, narrow question: whether the 409 "appropriate relief" referred to in 502(a)(2) includes individual recovery by a participant or beneficiary of extracontractual damages for breach of fiduciary duty. The Court of Appeals for the Ninth Circuit held that, because 409 broadly authorizes "such other equitable or remedial relief as the court may deem appropriate,"[2] participants and beneficiaries *150 may recover such damages under that section. I agree with the Court's decision today that 409 is more fairly read in context as providing "remedies that would protect the entire plan" rather than individuals, ante, at 142, and that participants and beneficiaries accordingly must look elsewhere in ERISA for personal relief. Indeed, since 502(a)(3) already provides participants and beneficiaries with "other appropriate equitable relief to redress [ERISA] violations," there is no reason to construe 409 expansively in order to bring these individuals under the penumbra of "equitable or remedial relief." This does not resolve, of course, whether and to what extent extracontractual damages are available under 502(a)(3). This question was not addressed by the courts below and was not briefed by the parties and amici. Thus the Court properly emphasizes that "we have no occasion to consider whether any other provision of ERISA authorizes recovery of extracontractual damages." Ante, at 139, n. 5. Accordingly, we save for another day the questions (1) to what extent a fiduciary's mishandling of a claim might constitute an actionable breach of the fiduciary duties set forth in 404(a), and (2) the nature and extent of the "appropriate equitable relief to redress" such violations under 502(a)(3). There is dicta in the Court's opinion, however, that could be construed as sweeping more broadly than the narrow ground of resolution set forth above. Although the Court *151 takes |
Justice Brennan | 1,985 | 13 | concurring | Massachusetts Mut. Life Ins. Co. v. Russell | https://www.courtlistener.com/opinion/111499/massachusetts-mut-life-ins-co-v-russell/ | of resolution set forth above. Although the Court *151 takes care to limit the binding effect of its decision to the terms of 409,[3] its opinion at some points seems to speak generally of whether fiduciaries ever may be held personally liable to beneficiaries for extracontractual damages.[4] Moreover, some of the Court's remarks are simply incompatible with the structure, legislative history, and purposes of ERISA. The Court's ambiguous discussion is certainly subject to different readings, and in any event is without controlling significance beyond the question of relief under 409. I write separately to outline what I believe is the proper approach for courts to take in construing ERISA's provisions and to emphasize the issues left open under today's decision. Fiduciary Duties in Claims Administration There is language in the Court's opinion that might be read as suggesting that the fiduciary duties imposed by ERISA on plan administrators for the most part run only to the plan itself, as opposed to individual beneficiaries. See ante, at 142-144. The Court apparently thinks there might be some significance in the fact that an administrator's fiduciary duties "are described in Part 4 of Title 1 of the Act whereas the statutory provisions relating to claim procedures are found in Part 5." Ante, at 143. Accordingly, the Court seems to believe that the duties and remedies associated with claims processing might be restricted to those explicitly spelled out in 502(a)(1)(B) and 503. Ante, at 142-144. To the extent the Court suggests that administrators might not be fully subject to strict fiduciary duties to participants and beneficiaries in the processing of their claims and *152 to traditional trust-law remedies for breaches of those duties, I could not more strongly disagree. As the Court acknowledges in a footnote, ante, at 142, n. 9, 404(a) sets forth the governing standard that "a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries."[5] That section also provides that, in carrying out these duties, a fiduciary shall exercise "the care, skill, prudence, and diligence" of a "prudent man acting in like capacity." The legislative history demonstrates that Congress intended by 404(a) to incorporate the fiduciary standards of trust law into ERISA,[] and it is black-letter trust law that fiduciaries *153 owe strict duties running directly to beneficiaries in the administration and payment of trust benefits.[7] The legislative history also shows that Congress intended these fiduciary standards to govern the ERISA claims-administration process.[8] Moreover, the |
Justice Brennan | 1,985 | 13 | concurring | Massachusetts Mut. Life Ins. Co. v. Russell | https://www.courtlistener.com/opinion/111499/massachusetts-mut-life-ins-co-v-russell/ | fiduciary standards to govern the ERISA claims-administration process.[8] Moreover, the Court's suggestion concerning the distinction between Parts 4 and 5 of Title I is thoroughly unconvincing. Section 502(a)(3) authorizes the award of "appropriate equitable relief" directly to a participant or beneficiary to "redress" "any act or practice which violates any provision of this title or the terms of the plan."[9] This section and *154 404(a)'s fiduciary-duty standards both appear in Title I, which is entitled "PROTECTION OF EMPLOYEE BENEFIT RIGHTS." A beneficiary therefore may obtain "appropriate equitable relief" whenever an administrator breaches the fiduciary duties set forth in 404(a).[10] Accordingly, an administrator's claims-processing duties and a beneficiary's corresponding remedies are not at all necessarily limited to the terms of 502(a)(1)(B) and 503. In light of the Court's narrow holding, see ante, at 139, n. 5, further consideration of these important issues remains open for another day when the disposition of a controversy might really turn on them. Judicial Construction of ERISA Russell argues that a private right of action for beneficiaries and participants should be read into 409. Because the Court has concluded that Congress' intent and ERISA's overall structure restrict the scope of 409 to recovery on behalf of a plan, ante, at 139-142, such a private right is squarely barred under the standards set forth in[11] *155 In disposing of this relatively straightforward issue, the Court makes some observations about the role of courts generally in construing and enforcing ERISA. The Court suggests, for example, that Congress "crafted" ERISA with "carefully integrated" remedies so as to create an "interlocking, interrelated, and interdependent remedial scheme" that courts should not "tamper with." Ante, at 14, 147. The Court's discussion, I say respectfully, is both unnecessary and to some extent completely erroneous. The Court may or may not be correct as a general matter with respect to implying private rights of action under ERISA; as the respondent has sought such an implied right only under 409,[12] we of course cannot purport to resolve this question in the many other contexts in which it might arise under the statute. Moreover, the Court's remarks about the constrictive judicial role in enforcing ERISA's remedial scheme are inaccurate insofar as Congress provided in 502(a)(3) that beneficiaries could recover, in addition to the remedies explicitly set forth in that section, "other appropriate equitable relief to redress" ERISA violations. Congress already had instructed that beneficiaries could recover benefits, obtain broad injunctive and declaratory relief for their own personal benefit or for the benefit of their plans, and secure attorney's fees, so this additional provision can only be |
Justice Brennan | 1,985 | 13 | concurring | Massachusetts Mut. Life Ins. Co. v. Russell | https://www.courtlistener.com/opinion/111499/massachusetts-mut-life-ins-co-v-russell/ | secure attorney's fees, so this additional provision can only be read precisely as authorizing federal courts to "fine-tune" ERISA's remedial scheme. Thus while it may well be that courts generally may not find implied private remedies in ERISA, the Court's remarks have little bearing on how courts are to go about construing the private remedy that Congress explicitly provided in 502(a)(3). *15 The legislative history demonstrates that Congress intended federal courts to develop federal common law in fashioning the additional "appropriate equitable relief." In presenting the Conference Report to the full Senate, for example, Senator Javits, ranking minority member of the Senate Committee on Labor and Public Welfare and one of the two principal Senate sponsors of ERISA, stated that "[i]t is also intended that a body of Federal substantive law will be developed by the courts to deal with issues involving rights and obligations under private welfare and pension plans."[13] Senator Williams, the Committee's Chairman and the Act's other principal Senate sponsor, similarly emphasized that suits involving beneficiaries' rights "will be regarded as arising under the laws of the United States, in similar fashion to those brought under section 301 of the Labor Management Relations Act."[14] Section 301, of course, "authorizes federal courts to fashion a body of federal law" in the context of collective-bargaining agreements, to be derived by "looking at the policy of the legislation and fashioning a remedy that will effectuate that policy." Textile[15] ERISA's legislative history also demonstrates beyond question that Congress intended to engraft trust-law principles onto the enforcement *157 scheme, see n. and a fundamental concept of trust law is that courts "will give to the beneficiaries of a trust such remedies as are necessary for the protection of their interests."[1] Thus ERISA was not so "carefully integrated" and "crafted" as to preclude further judicial delineation of appropriate rights and remedies; far from barring such a process, the statute explicitly directs that courts shall undertake it. The Court today expressly reserves the question whether extracontractual damages might be one form of "other appropriate relief" under 502(a)(3). Ante, at 139, n. 5. I believe that, in resolving this and other questions concerning appropriate relief under ERISA, courts should begin by ascertaining the extent to which trust and pension law as developed by state and federal courts provide for recovery by the beneficiary above and beyond the benefits that have been withheld;[17] this is the logical first step, given that Congress intended to incorporate trust law into ERISA's equitable remedies.[18] If a requested form of additional relief is *158 available under state trust law, courts |
Justice Douglas | 1,971 | 10 | dissenting | Dyson v. Stein | https://www.courtlistener.com/opinion/108270/dyson-v-stein/ | I The two raids in this case were search-and-destroy missions in the Vietnamese sense of the phrase. In each case the police came at night. The first search warrant authorized a search and seizure of "obscene articles and materials, to-wit: pictures, photographs, drawings and obscene literature" concealed at a given *205 address. The seizures included: two tons of a newspaper (Dallas Notes), one photograph enlarger, two portable typewriters, two electric typewriters, one camera, "numerous obscene photographs," and $5.43 in money.[1] The second warrant was issued 16 days later, in response to a claim that marihuana was concealed on the premises. It authorized the officers "to search for and seize the said narcotic drug and dangerous drug in accordance with the law in such cases provided." Not finding any marihuana on the premises, the sergeant asked instructions from his lieutenant. He was told to seize pornographic literature and any equipment used to make it. He "didn't know what to seize and what not to seize so [he] just took everything." "Everything" included a Polaroid camera, a Kodak Brownie, a Flocon camera, a Kodak lamp, a floating fixture lamp, a three-drawer desk containing printers' supplies, a drafting square, a drafting table, two drawing boards, a mailing tube, two telephones, a stapler, five cardboard boxes containing documents, one electric typewriter, and one typewriter desk. A poster of Mao Tse-tung, credit cards, costume jewelry, cans of spices, a brown sweater, and *206 a statue of a man and woman in an embrace were also seized. Thus the newspaper Dallas Notes, a bi-monthly, was effectively put out of business.[2] It would be difficult to find in our books a more lawless search-and-destroy raid, unless it be the one in If this search-and-destroy technique can be employed against this Dallas newspaper, then it can be done to the New York Times, the Washington Post, the Seattle Post Intelligencer, the Yakima Herald-Republic, the Sacramento Bee, and all the rest of our newspapers. For, as I shall point out, the Texas statute governing "obscenity"[3] is plainly unconstitutional. *207 Government certainly has no power to close down newspapers. Even censorshipwhether for obscenity, for irresponsible reporting or editorials, or otherwise is taboo. As Chief Justice Hughes said in decided in 1931: "[T]he administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous |
Justice Douglas | 1,971 | 10 | dissenting | Dyson v. Stein | https://www.courtlistener.com/opinion/108270/dyson-v-stein/ | neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege." I agree with that view. It is said, however, that these issues are not before us as the case has been remanded to a single judge to pass on them. But we deal with plain error, as the state statute is unconstitutional on its face and we should put an end to lawless raids under it.[4] *208 II The constitutional mandate that government[5] "shall make no law abridging the freedom of speech, or of the press" precludes in my view any form of censorship. Vicious, irresponsible, and depraved as the press often is, the constitutional remedy is not censorship.[6] The antidote is education, pinning our faith to the Jeffersonian creed that by education we may in time become a mature people.[7] *209 I have set forth my views over and over again as to why the First Amendment should be strictly construed; and they need not be repeated here. It is difficult indeed impossibleto read the constitutional mandate that government "shall make no law" abridging freedom of the press to mean that government "may make some laws" abridging that freedom. Certainly a strict constructionist cannot so read it. "The Court says it has been trying to balance the interests of society in protecting itself from the supposed evils of obscene material with the real interest in freedom of expression. There is ample evidence that the clear and definite language of the first amendment was intended to preclude the very problem of balancing assumed by the Court. The first amendment holds that the interest of society in freedom of expression[8] is more important than the harm that might flow from obscene material. The very interest in protection from injury from obscene material would be better served by allowing each individual to make a free appraisal of pornographic material. A hallmark of an immature and insecure society is the censorship of ideas. Censorship, which insulates all from what some suppose to be evil, merely magnifies that insecurity. If society does such a poor job of educating itself so that four letter words and explicit pictures are dangerous, the remedy is to improve the educational process, not *210 to outlaw certain publications. While the first amendment |
Justice Douglas | 1,971 | 10 | dissenting | Dyson v. Stein | https://www.courtlistener.com/opinion/108270/dyson-v-stein/ | not *210 to outlaw certain publications. While the first amendment does not mandate better education it does prohibit the censorship of ideas. This use of a balancing test evidences a misconception of the constitutional nature of society. There is nothing to balance. Society's security flows directly and solely from the freedom and security of each individual." 31 Albany L. Rev. 143, (1967). If I am correct in concluding that a State can make "no law" censoring the press because of obscenity, then a publisher threatened by such a law can go into a federal court to enjoin state officials from enforcing the law, as I made clear in my dissent in Younger v. Harris, ante, at 59. The special circumstances where such federal intervention is permissible are not restricted to bad faith on the part of state officials or the threat of multiple prosecutions. As Mr. Justice Butler, writing for the Court, said in U.S. 197, 214: "Equity jurisdiction will be exercised to enjoin the threatened enforcement of a state law which contravenes the Federal Constitution wherever it is essential in order effectually to protect property rights and the rights of persons against injuries otherwise irremediable; and in such a case a person, who as an officer of the State is clothed with the duty of enforcing its laws and who threatens and is about to commence proceedings, either civil or criminal, to enforce such a law against parties affected, may be enjoined from such action by a federal court of equity." And see No possible construction of this state law can save it. This is not a situation where mere overbreadth of a state statute may have chilling or crippling effects on First Amendment rights. This is a case where Texas has *211 entered a field which the Constitution bars all the States and the Federal Government from entering. The Texas obscenity statute, as I view it, meets precisely the hypothetical statute we discussed in : "It is of course conceivable that a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it." No clearer case justifying federal intervention to prevent a state criminal trial can be imagined. No pending prosecutions are sought to be enjoined, only future ones.[9] Such an injunction is not impermissible under 28 U.S. C. 2283. See 484 n. 2, and my dissent in Younger v. Harris, ante, at 65. Appellee also asked for declaratory relief. If means anything, it means that such |
Justice Douglas | 1,971 | 10 | dissenting | Dyson v. Stein | https://www.courtlistener.com/opinion/108270/dyson-v-stein/ | for declaratory relief. If means anything, it means that such relief can also be granted. III If a publication deemed "obscene" is not under the umbrella of the First Amendment, then I do not see how it enjoys many constitutional safeguards. That which is out from under the First Amendment would normally be subject to the police power of the States. Yet the Constitution contains no standards or suggestions of standards respecting the vast array of subjects that various vocal groups would like to have suppressed obscenity, sacrilege, un-Americanism, anti-clerical ideas, atheistic or anti-ecclesiastical ideas, Communism, racism, *212 and so on. Under the Constitution as written there are no standards of "good" or "bad" for the press. Since there is no constitutional definition of obscenity, the definition must be largely, if not exclusively, for legislative determination. Absent a controlling constitutional standard, I would think that a legislature could treat literature as it treats sewage effluent or infectious disease. That is not a happy prospect, for some would put even the Song of Solomon under the ban. It is, I fear, where we end once we lose our First Amendment moorings. Administrative censorship, however, is one thing. Criminal punishment is quite another. Publishing "obscene" literature cannot, as I view it, be made a crime under our constitutional standards. "Whatever `obscenity' is, it is immeasurable as a crime and delineable only as a sin. As a sin, it is present only in the minds of some and not in the minds of others. It is entirely too subjective for legal sanction. There are as many different definitions of obscenity as there are men; and they are as unique to the individual as are his dreams." Note, The Substantive Law of Obscenity: An Adventure in Quicksand, 13 N.Y. L. F. 81, 131 (1967). What appeals to "prurient interests" describes sin to some but not to others and seems to me to be far too vague to pass muster as a criminal, as distinguished from an administrative, statute.[10] *213 I see no help on the vagueness problem even if the test "utterly without redeeming social importance" were added to the criminal standard, as it was in[11] That is a measurement which again is wholly subjective. It cannot be related to anything but the judge's or jurors' sophistication or stage of cultural development. Nor do I think the problem is helped by introducing the concept of "contemporary community standards" whether that refers to the public at large or a local county or town standard. The two teststhis Court's and that of Texasseem to me to |
Justice Douglas | 1,971 | 10 | dissenting | Dyson v. Stein | https://www.courtlistener.com/opinion/108270/dyson-v-stein/ | two teststhis Court's and that of Texasseem to me to be substantially identical. I do not see how either can be held to be constitutional. The standard of guilt is wholly subjective. The jurors can convict or acquit according to their own personal tastes, their cultural standard, their literacy, and their tolerance for opposed ideas. And the same would be true of judges. It means that a book that is hailed as wholesome in one county may be the cause of punishment in another county of the same State. The evidence in obscenity prosecutions is usually expert testimony. Analysts, English literature scholars, and others often have helpful and informed views, one way or the other. It seems impossible, if we continue to sanction the use of these vague standards in criminal prosecutions, that verdicts will be rendered which are based on the record and not on the emotional factors reflecting the prejudices of the judge or jurors. Uncertainty, rather than certainty, is the standard. The book, play, poem, or movie is approved or condemned on the basis of the personal beliefs of the judge or jurors, not on the ban of a statute containing clear and objective standards. *214 The concept of "utterly without redeeming social importance" will divide even the experts. It is risky and perilous business to send men to prison on such provocative issues, which confuse people and create irreconcilable differences even among the judges who sentence them or approve their convictions. In these criminal cases dealing with obscenity, we leave people confused and in the dark as to whether they are or are not criminals. Criminal laws must give fair warning; and a person receives no real warning when he crosses the line between the lawful and the unlawful, under the Texas statute[12] or under the standard approved by the Court. Where constitutional rights may be infringed, should be our guide. There an "obscene" magazine was defined to include those which "massed" stories of bloodshed and lust to incite crimes. We held that standard to be too vague to satisfy constitutional standards.[13] "The standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement. The crime `must be defined with appropriate definiteness.'. There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. *215 The vagueness may be from uncertainty in regard to persons within the scope of the act, or in regard to the applicable tests to ascertain guilt." And see ; ; United ; |
Justice White | 1,993 | 6 | majority | Helling v. McKinney | https://www.courtlistener.com/opinion/112888/helling-v-mckinney/ | This case requires us to decide whether the health risk posed by involuntary exposure of a prison inmate to environmental *28 tobacco smoke (ETS) can form the basis of a claim for relief under the Eighth Amendment. I Respondent is serving a sentence of imprisonment in the Nevada prison system. At the time that this case arose, respondent was an inmate in the Nevada State Prison in Carson City, Nevada. Respondent filed a pro se civil rights complaint in United States District Court under Rev. Stat. 1979, 42 U.S. C. 1983, naming as defendants the director of the prison, the warden, the associate warden, a unit counselor, and the manager of the prison store. The complaint, dated December 18, 1986, alleged that respondent was assigned to a cell with another inmate who smoked five packs of cigarettes a day. App. 6. The complaint also stated that cigarettes were sold to inmates without properly informing of the health hazards a nonsmoking inmate would encounter by sharing a room with an inmate who smoked, and that certain cigarettes burned continuously, releasing some type of chemical, Respondent complained of certain health problems allegedly caused by exposure to cigarette smoke. Respondent sought injunctive relief and damages for, inter alia, subjecting him to cruel and unusual punishment by jeopardizing his health. The parties consented to a jury trial before a Magistrate. The Magistrate viewed respondent's suit as presenting two issues of law: (1) whether respondent had a constitutional right to be housed in a smoke-free environment, and (2) whether defendants were deliberately indifferent to respondent's serious medical needs. App. to Pet. for Cert. D2D3. The Magistrate, after citing applicable authority, concluded that respondent had no constitutional right to be free from cigarette smoke: While "society may be moving toward an opinion as to the propriety of non-smoking and a smoke-free environment," society cannot yet completely agree on the resolution of these issues. at D3, D6. The Magistrate *29 found that respondent nonetheless could state a claim for deliberate indifference to serious medical needs if he could prove the underlying facts, but held that respondent had failed to present evidence showing either medical problems that were traceable to cigarette smoke or deliberate indifference to them. at D6D10. The Magistrate therefore granted petitioners' motion for a directed verdict and granted judgment for the defendants. at D10. The Court of Appeals affirmed the Magistrate's grant of a directed verdict on the issue of deliberate indifference to respondent's immediate medical symptoms. The Court of Appeals also held that the defendants were immune from liability for damages since there was |
Justice White | 1,993 | 6 | majority | Helling v. McKinney | https://www.courtlistener.com/opinion/112888/helling-v-mckinney/ | defendants were immune from liability for damages since there was at the time no clearly established law imposing liability for exposing prisoners to ETS.[*] Although it agreed that respondent did not have a constitutional right to a smoke-free prison environment, the court held that respondent had stated a valid cause of action under the Eighth Amendment by alleging that he had been involuntarily exposed to levels of ETS that posed an unreasonable risk of harm to his future health. In support of this judgment, the court noticed scientific opinion supporting respondent's claim that sufficient exposure to ETS could endanger one's health. The court also concluded that society's attitude had evolved to the point that involuntary exposure to unreasonably dangerous levels of ETS violated current standards of decency. The court therefore held that the Magistrate erred by directing a verdict without permitting respondent to prove that his exposure to ETS was sufficient to constitute an unreasonable danger to his future health. Petitioners sought review in this Court. In the meantime, this Court had decided which held that, while the Eighth Amendment applies *30 to conditions of confinement that are not formally imposed as a sentence for a crime, such claims require proof of a subjective component, and that where the claim alleges inhumane conditions of confinement or failure to attend to a prisoner's medical needs, the standard for that state of mind is the "deliberate indifference" standard of We granted certiorari in this case, vacated the judgment below, and remanded the case to the Court of Appeals for further consideration in light of Seiter. On remand, the Court of Appeals noted that Seiter added an additional subjective element that respondent had to prove to make out an Eighth Amendment claim, but did not vitiate its determination that it would be cruel and unusual punishment to house a prisoner in an environment exposing him to levels of ETS that pose an unreasonable risk of harming his healththe objective component of respondent's Eighth Amendment claim. The Court of Appeals therefore reinstated its previous judgment and remanded for proceedings consistent with its prior opinion and with Seiter. 959 F. 2d, at Petitioners again sought review in this Court, contending that the decision below was in conflict with the en banc decision of the Court of Appeals for the Tenth Circuit in We granted certiorari. We affirm. II The petition for certiorari which we granted not only challenged the Court of Appeals' holding that respondent had stated a valid Eighth Amendment claim, but also asserted, as did its previous petition, that it was improper for |
Justice White | 1,993 | 6 | majority | Helling v. McKinney | https://www.courtlistener.com/opinion/112888/helling-v-mckinney/ | as did its previous petition, that it was improper for the Court of Appeals to decide the question at all. Pet. for Cert. 25-29. Petitioners claim that respondent's complaint rested only on the alleged current effects of exposure to cigarette *31 smoke, not on the possible future effects; that the issues framed for trial were likewise devoid of such an issue; and that such a claim was not presented, briefed, or argued on appeal and that the Court of Appeals erred in sua sponte deciding it. Brief for Petitioners 46-49. The Court of Appeals was apparently of the view that the claimed entitlement to a smoke-free environment subsumed the claim that exposure to ETS could endanger one's future health. From its examination of the record, the court stated that "[b]oth before and during trial, McKinney sought to litigate the degree of his exposure to ETS and the actual and potential effects of such exposure on his health," ; stated that the Magistrate had excluded evidence relating to the potential health effects of exposure to ETS; and noted that two of the issues on appeal addressed whether the Magistrate erred in holding as a matter of law that compelled exposure to ETS does not violate a prisoner's rights and whether it was error to refuse to appoint an expert witness to testify about the health effects of such exposure. While the record is ambiguous and the Court of Appeals might well have affirmed the Magistrate, we hesitate to dispose of this case on the basis that the court misread the record before it. We passed over the same claim when we vacated the judgment below and remanded when the case was first before us, Pet. for Cert., O. T. No. 91-269, pp. 23-26, and the primary question on which certiorari was granted, and the question to which petitioners have devoted the bulk of their briefing and argument, is whether the court below erred in holding that McKinney had stated an Eighth Amendment claim on which relief could be granted by alleging that his compelled exposure to ETS poses an unreasonable risk to his health. III It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. As we said *32 in : "[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being. The rationale for this principle is simple enough: |
Justice White | 1,993 | 6 | majority | Helling v. McKinney | https://www.courtlistener.com/opinion/112888/helling-v-mckinney/ | well being. The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needse. g., food, clothing, shelter, medical care, and reasonable safetyit transgresses the substantive limits on state action set by the Eighth Amendment" Contemporary standards of decency require no less. -104. In Estelle, we concluded that although accidental or inadvertent failure to provide adequate medical care to a prisoner would not violate the Eighth Amendment, "deliberate indifference to serious medical needs of prisoners" violates the Amendment because it constitutes the unnecessary and wanton infliction of pain contrary to contemporary standards of decency. later held that a claim that the conditions of a prisoner's confinement violate the Eighth Amendment requires an inquiry into the prison officials' state of mind. "`Whether one characterizes the treatment received by [the prisoner] as inhuman conditions of confinement, failure to attend to his medical needs, or a combination of both, it is appropriate to apply the "deliberate indifference" standard articulated in Estelle.'" Petitioners are well aware of these decisions, but they earnestly submit that unless McKinney can prove that he is currently suffering serious medical problems caused by exposure to ETS, there can be no violation of the Eighth Amendment. That Amendment, it is urged, does not protect *33 against prison conditions that merely threaten to cause health problems in the future, no matter how grave and imminent the threat. We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year. In we noted that inmates in punitive isolation were crowded into cells and that some of them had infectious maladies such as hepatitis and venereal disease. This was one of the prison conditions for which the Eighth Amendment required a remedy, even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed. We would think that a prison inmate also could successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery. Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms. That the |
Justice White | 1,993 | 6 | majority | Helling v. McKinney | https://www.courtlistener.com/opinion/112888/helling-v-mckinney/ | the complaining inmate shows no serious current symptoms. That the Eighth Amendment protects against future harm to inmates is not a novel proposition. The Amendment, as we have said, requires that inmates be furnished with the basic human needs, one of which is "reasonable safety." It is "cruel and unusual punishment to hold convicted criminals in unsafe conditions." It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them. The Courts of Appeals have plainly recognized that a remedy for unsafe conditions need not await a tragic event. Two of them were cited with approval in held that inmates were entitled to relief under the Eighth Amendment when they proved threats to personal safety from exposed electrical wiring, deficient firefighting measures, and the mingling of inmates with serious contagious diseases with other prison inmates. stated that a prisoner need not wait until he is actually assaulted before obtaining relief. As respondent points out, the Court of Appeals cases to the effect that the Eighth Amendment protects against sufficiently imminent dangers as well as current unnecessary and wanton infliction of pain and suffering are legion. See Brief for Respondent 24-27. We thus reject petitioners' central thesis that only deliberate indifference to current serious health problems of inmates is actionable under the Eighth Amendment. The United States as amicus curiae supporting petitioners does not contend that the Amendment permits "even those conditions of confinement that truly pose a significant risk of proximate and substantial harm to an inmate, so long as the injury has not yet occurred and the inmate does not yet suffer from its effects." Brief for United States as Amicus Curiae 19. the United States observes, teaches as much. The Government recognizes that there may be situations in which exposure to toxic or similar substances would "present a risk of sufficient likelihood or magnitudeand in which there is a sufficiently broad consensus that exposure of anyone to the substance should therefore be preventedthat" the Amendment's protection would be available even though the effects of exposure might not be manifested for some time. Brief for United States as Amicus Curiae 19. But the United States submits that the harm to any particular individual from exposure to ETS is speculative, that the risk is not sufficiently grave to implicate a "`serious medical nee[d],'" and that exposure to ETS is not contrary to current standards of decency. It would be premature for us, however, as a matter of law to *35 reverse the |
Justice White | 1,993 | 6 | majority | Helling v. McKinney | https://www.courtlistener.com/opinion/112888/helling-v-mckinney/ | however, as a matter of law to *35 reverse the Court of Appeals on the basis suggested by the United States. The Court of Appeals has ruled that McKinney's claim is that the level of ETS to which he has been involuntarily exposed is such that his future health is unreasonably endangered and has remanded to permit McKinney to attempt to prove his case. In the course of such proof, he must also establish that it is contrary to current standards of decency for anyone to be so exposed against his will and that prison officials are deliberately indifferent to his plight. We cannot rule at this juncture that it will be impossible for McKinney, on remand, to prove an Eighth Amendment violation based on exposure to ETS. IV We affirm the holding of the Court of Appeals that McKinney states a cause of action under the Eighth Amendment by alleging that petitioners have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health. We also affirm the remand to the District Court to provide an opportunity for McKinney to prove his allegations, which will require him to prove both the subjective and objective elements necessary to prove an Eighth Amendment violation. The District Court will have the usual authority to control the order of proof, and if there is a failure of proof on the first element that it chooses to consider, it would not be an abuse of discretion to give judgment for petitioners without taking further evidence. McKinney must also prove that he is entitled to the remedy of an injunction. With respect to the objective factor, McKinney must show that he himself is being exposed to unreasonably high levels of ETS. Plainly relevant to this determination is the fact that McKinney has been moved from Carson City to Ely State Prison and is no longer the cellmate of a five-pack-aday smoker. While he is subject to being moved back to Carson City and to being placed again in a cell with a heavy *36 smoker, the fact is that at present he is not so exposed. Moreover, the director of the Nevada State Prisons adopted a formal smoking policy on January 10, This policy restricts smoking in "program, food preparation/serving, recreational and medical areas" to specifically designated areas. It further provides that wardens may, contingent on space availability, designate nonsmoking areas in dormitory settings, and that institutional classification committees may make reasonable efforts to respect the wishes of nonsmokers where double bunking obtains. See App. |
Justice White | 1,993 | 6 | majority | Helling v. McKinney | https://www.courtlistener.com/opinion/112888/helling-v-mckinney/ | the wishes of nonsmokers where double bunking obtains. See App. to Brief for United States as Amicus Curiae A1A2. It is possible that the new policy will be administered in a way that will minimize the risk to McKinney and make it impossible for him to prove that he will be exposed to unreasonable risk with respect to his future health or that he is now entitled to an injunction. Also with respect to the objective factor, determining whether McKinney's conditions of confinement violate the Eighth Amendment requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually be caused by exposure to ETS. It also requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate. On remand, the subjective factor, deliberate indifference, should be determined in light of the prison authorities' current attitudes and conduct, which may have changed considerably since the judgment of the Court of Appeals. Indeed, the adoption of the smoking policy mentioned above will bear heavily on the inquiry into deliberate indifference. In this respect we note that at oral argument McKinney's counsel was of the view that depending on how the new policy was administered, it could be very difficult to demonstrate that *37 prison authorities are ignoring the possible dangers posed by exposure to ETS. Tr. of Oral Arg. 33. The inquiry into this factor also would be an appropriate vehicle to consider arguments regarding the realities of prison administration. V The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion. So ordered. |
Justice Powell | 1,979 | 17 | majority | PC Pfeiffer Co. v. Ford | https://www.courtlistener.com/opinion/110157/pc-pfeiffer-co-v-ford/ | The question in this case is whether two workers were engaged in "maritime employment," as defined by 2 (3) of the Longshoremen's and Harbor Workers' Compensation Act, as amended, 33 US C 902 (3), when they sustained injuries for which they seek compensation I On April 12, 1973, Diverson Ford accidentally struck the middle finger of his left hand with a hammer while working on a public dock in the Port of Beaumont, Tex On the day of his injury, Ford was employed by the P C Pfeiffer Co to fasten military vehicles onto railroad flatcars The vehicles had been delivered to the port by ship a number of days before the accident, stored, and then loaded onto flatcars the day before The flatcars would take the vehicles to their inland destination Ford was working out of the warehousemen's local on the day of the accident Agreements between employers, the warehousemen's union, and the longshoremen's union limit the tasks that warehousemen may perform in the Port of Beaumont Warehousemen may not move cargo directly from a vessel either to a point of rest in storage or to a railroad car Nor may they move cargo from a shoreside point of rest directly onto a vessel These jobs are reserved for longshoremen App 10-11 On May 2, 1973, Will Bryant was injured while unloading a bale of cotton from a dray wagon into a pier warehouse Bryant was working as a cotton header for the Ayers Steamship Co in the Port of Galveston, Tex Cotton arrives at the port from inland shippers and enters storage in cotton *72 compress-warehouses The cotton then goes by dray wagon to pier warehouses where a driver and two cotton headers unload and store it Longshoremen later move the cotton from the pier warehouses onto ships Contractual agreements between employers, the cotton headers' union, and the longshoremen's union distinguish the work that cotton headers may perform from the tasks assignable to longshoremen Cotton headers may only load cotton off dray wagons into the pier warehouses or move cotton within a pier warehouse Cargo moved directly from the ship to shoreside transportation, or directly from shoreside transportation to the ship, is handled solely by longshoremen II Before 1972, neither Ford nor Bryant could have received compensation under the Longshoremen's and Harbor Workers' Compensation Act because his injury occurred on land The pre-1972 Act was simply an effort to fill the gap in workmen's compensation coverage created by this Court's decision in Southern Pacific which held that state compensation systems could not reach longshoremen injured seaward of the |
Justice Powell | 1,979 | 17 | majority | PC Pfeiffer Co. v. Ford | https://www.courtlistener.com/opinion/110157/pc-pfeiffer-co-v-ford/ | compensation systems could not reach longshoremen injured seaward of the water's edge[1] A single situs requirement in 3 (a) of the Act governed the scope of its coverage That requirement limited coverage to workers whose "disability or death result[ed] from an injury occurring upon the navigable waters of the United States (including any dry dock) " In light of Jensen and the limited purpose of the Act, the situs test was understood to draw a sharp line between injuries sustained over water and those suffered on land Thus, in *73 Nacirema Operating this Court held that the Act did not extend to injuries occurring on a pier attached to the land Although the Court recognized that inequities might result from rigid adherence to the Jensen line, the Court concluded that "[t]he invitation to move that line landward must be addressed to Congress, not to this Court" [2] Congress responded with the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972 (1972 Act)[3] The Act now extends coverage to more workers by replacing the single-situs requirement with a two-part situs and status standard The newly broadened situs test provides compensation for an "employee" whose disability or death "results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel)" 3 (a), 33 US C 903 (a) The status test defines an employee as "any person *74 engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker " 2 (3), 33 US C 902 (3) To be eligible for compensation, a person must be an employee as defined by 2 (3) who sustains injury on the situs defined by 3 (a) III This Court first considered the scope of 2 (3)'s status requirement in Northeast Marine Terminal That case concerned the claims of two workers, Blundo and Blundo was on a pier checking cargo as it was removed from a container when he suffered a fall[4] sustained injury while rolling a loaded dolly into a consignee's truck[5] We recognized that neither the 1972 Act nor its legislative history states explicitly whether workers like Blundo and who handle cargo between sea and land transportation, are employees within the meaning of 2 (3) The Court found, however, that consideration of the legislative history in light of the remedial purposes behind the expansion of coverage reveals a clear intent to cover |
Justice Powell | 1,979 | 17 | majority | PC Pfeiffer Co. v. Ford | https://www.courtlistener.com/opinion/110157/pc-pfeiffer-co-v-ford/ | the expansion of coverage reveals a clear intent to cover such -278 One of the reasons Congress expanded coverage in 1972 was that containerization permits loading and unloading tasks traditionally conducted aboard ship to be performed on the land Such tasks are "longshoring operations" Blundo's job of checking and marking goods as they *75 were removed from a container was an integral part of the unloading process even though the container had been removed from a ship and trucked to a different pier before being emptied Therefore, Blundo was an employee within the meaning of 2 (3) working as part of the traditional process of moving goods from ship to land transportation, was unaffected by the advent of containerization But the Court recognized another congressional purpose relevant to the resolution of 's claim Congress wanted to ensure that a worker who could have been covered part of the time by the pre-1972 Act would be completely covered by the 1972 Act By enlarging the covered situs and enacting the status requirement, Congress intended that a worker's eligibility for federal benefits would not depend on whether he was injured while walking down a gangway or while taking his first step onto the land Congress therefore counted as "longshoremen" persons who spend "at least some of their time in indisputably longshoring operations" who could have been assigned to loading containers and barges as well as trucks, was such a person Ibid Accordingly, the Court did not have to decide whether 's work was "maritime employment" simply because he "engaged in the final steps of moving cargo from maritime to land transportation: putting it in the consignee's truck" In holding that Blundo and were covered by the Act, Northeast Marine Terminal explicitly rejected the "point of rest" theory Under that test, maritime employment would include only the portion of the unloading process that takes place before the stevedoring gang places cargo onto the dock For example, a worker who carried cargo directly from a ship to a warehouse or a truck would be engaged in maritime employment, but one who carried cargo from a warehouse to a truck would not In loading operations, only workers employed to the seaside of the last point of rest would be covered *76 We explained that application of the point-of-rest test would be inconsistent with congressional intent First, the concept, although well known in the maritime industry, was not mentioned in the Act or its legislative history Second, the standard excludes from coverage employees like Blundo whose work was shifted landward by the use of containers Third, |
Justice Powell | 1,979 | 17 | majority | PC Pfeiffer Co. v. Ford | https://www.courtlistener.com/opinion/110157/pc-pfeiffer-co-v-ford/ | work was shifted landward by the use of containers Third, the test conflicts with the express purpose of the Act because it allows workers to walk in and out of coverage as their work moves to different sides of a point of rest In sum, "[a] theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts the coverage of a remedial Act designed to extend coverage [was] incapable of defeating our conclusion that Blundo and [were] `employees'" Most of the litigation in the present case took place before our decision in Northeast Marine Terminal At the initial administrative level, both Ford's and Bryant's claims for coverage were denied by Administrative Law Judges applying the point-of-rest doctrine The Benefits Review Board reversed both decisions The Court of Appeals for the Fifth Circuit affirmed Jacksonville Shipyards, Inc v Perdue, 539 F2d 533 The court rejected the point-of-rest theory, holding instead that the 1972 Act covers all workers directly involved in the work of loading, unloading, repairing, building, or breaking a vessel The court found that "Ford's work of fastening the vehicles to the flat cars was the last step in transferring this cargo from sea to land transportation," id, and that Bryant's work "was an integral part of the ongoing process of moving cargo between land transportation and a ship," id, Accordingly, the Court of Appeals concluded that both men were covered by the 1972 Act We granted certiorari, vacated, and remanded for reconsideration in light of Northeast Marine Terminal 433 US 904 On remand, the Fifth Circuit reaffirmed the reasoning of its earlier opinion 575 F2d 79, We again granted certiorari, 439 US 978 and we now affirm IV Petitioners urge that Ford and Bryant are not covered by the 1972 Act because they were not engaged in "maritime employment"[6] Petitioners suggest that a person is engaged in maritime employment only if, on the day of his injury, he could have been assigned to perform work upon the navigable waters of the United States By navigable waters, the petitioners do not mean the broad situs defined in 3 (a), as amended by the 1972 Act; rather they refer to places seaward of the Jensen line In other words, petitioners argue that the 1972 Act covers only workers who are working or who may be assigned to work over the water itself They say that this formulation follows congressional intent to cover all workers who, before 1972, could have walked in and out of coverage |
Justice Powell | 1,979 | 17 | majority | PC Pfeiffer Co. v. Ford | https://www.courtlistener.com/opinion/110157/pc-pfeiffer-co-v-ford/ | before 1972, could have walked in and out of coverage during any given day[7] *78 Petitioners' position is plainly inconsistent with the language and structure of the 1972 Act The Act, as noted above, contains distinct situs and status requirements The situs test of 3 (a) allows recovery for an injury suffered on navigable waters or certain adjoining areas landward of the Jensen line This test defines the broad geographic coverage of the Act Section 2 (3) restricts the scope of coverage by further requiring that the injured worker must have been engaged in "maritime employment" This section defines the Act's occupational requirements The term "maritime employment" refers to the nature of a worker's activities Thus, 2 (3) uses the phrase "longshorem[e]n or other person[s] engaged in longshoring operations" as one example of workers who engage in maritime employment no matter where they do their job Since 3 (a) already limits the geographic coverage of the Act, 2 (3) need not provide that longshoremen are covered only if they work in certain places The use of the term "maritime employment" in 2 (3), therefore, provides no support for the proposition that the statutory definition of an employee imports a geographic limitation narrower than the one defined in 3 (a)[8] The difficulty with petitioners' position becomes even plainer when their interpretation is applied to a single statutory provision that contains both the status and the situs requirement Section 2 (4), 33 US C 902 (4), defines an "employer" as one "any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States" as broadly defined by 3 (a) *79 If the term "maritime employment" referred only to work that might take employees seaward of the Jensen line, then the broader situs test in the final clause of this section would become virtually superfluous We decline the invitation to construe "maritime employment" so as to create two differing situs requirements in a single sentence By understanding the term "maritime employment" to embody an occupational rather than a geographic concept, we give the two phases in 2 (4) distinct and consistent meanings The discussion of coverage in the legislative history[9] also shows that Congress intended the term "maritime employment" to refer to status rather than situs Committees in both Houses of Congress recognized: "[T]o take a typical example, cargo, whether in break bulk or containerized form, is typically unloaded from the ship and immediately transported to a storage or holding area on the pier, wharf, or terminal adjoining navigable waters The employees who |
Justice Powell | 1,979 | 17 | majority | PC Pfeiffer Co. v. Ford | https://www.courtlistener.com/opinion/110157/pc-pfeiffer-co-v-ford/ | pier, wharf, or terminal adjoining navigable waters The employees who perform this work would be covered under the bill for injuries sustained by them over the navigable waters or on the adjoining land area The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity Thus, employees whose responsibility is only * to pick up stored cargo for further trans-shipment would not be covered, nor would purely clerical employees whose jobs do not require them to participate in the loading or unloading of cargo"[10] This legislative history discusses workers solely in terms of what they are doing and never in terms of where they are working[11] In adopting an occupational test that focuses on loading and unloading, Congress anticipated that some persons who work only on land would receive benefits under the 1972 Act An obvious example of such a worker is Blundo He was checking and marking cargo from a container that had been removed from a ship and moved overland to another pier before it was opened Without any indication that he ever would be required to set foot on a ship, this Court held that he was covered by the 1972 Act because this type of work was maritime employment Northeast Marine Terminal Co, 432 U S, at 271 Land-based workers who do not handle containerized cargo also may be engaged in loading, unloading, repairing, or building a vessel The Senate Subcommittee on Labor heard testimony that 30%-35% of ship repair work is done on land[12]*81 Furthermore, the usual longshoring crew includes some men whose duties may be carried out solely on the land A typical loading gang consists of persons who move cargo from a warehouse to the side of a ship, frontmen who attach the load to the ship's gear for lifting aboard the vessel, and a hold gang which stores cargo inside the ship[13] Although the workers who carry the cargo to shipside and the frontmen who attach the cargo to the lifting devices need not board a ship to carry out their duties, they are incontestably longshoremen directly engaged in the loading process Even the petitioners concede that some land-based workers are covered by the 1972 Act[14] V The issue in this case thus becomes whether Ford and Bryant are the kind of land-based employees that Congress intended to encompass within the term "maritime employment" Both men engaged in the type of duties that longshoremen perform in transferring goods |
Justice Powell | 1,979 | 17 | majority | PC Pfeiffer Co. v. Ford | https://www.courtlistener.com/opinion/110157/pc-pfeiffer-co-v-ford/ | the type of duties that longshoremen perform in transferring goods between ship and land transportation If the cotton that Bryant was unloading had been brought directly from the compress-warehouse to a *82 ship, his task of moving cotton off a dray wagon would have been performed by a longshoreman[15] Similarly, longshoremen not warehousemen like Fordwould fasten military vehicles onto railroad flatcars if those vehicles went directly from a ship to the railroad cars[16] The only basis for distinguishing Bryant or Ford from longshoremen who otherwise would perform the same work is the point-of-rest theory That is, longshoremen in the Ports of Beaumont and Galveston would have performed the work done by Bryant and Ford had the cargo moved without interruption between land and sea transportation Our unanimous opinion in Northeast Marine Terminal expressly decided that application of the point-of-rest test to define the scope of maritime employment would be contrary to congressional intent Thus, there is no principled basis for distinguishing Ford and Bryant from longshoremen who have been injured while performing the same tasks We believe that 2 (3)'s explicit use of the terms "longshoreman" and "other person engaged in longshoring operations" to describe persons engaged in maritime employment demonstrates that workers doing tasks traditionally performed by longshoremen are within the purview of the 1972 Act We do not suggest that the scope of maritime employment depends upon the vagaries of union jurisdiction 432 US, at 268, n 30 Instead, the crucial factor is the nature of the activity to which a worker may be assigned Persons moving cargo directly from ship to land transportation are engaged in maritime employment at 267, n 28[17] A worker responsible *83 for some portion of that activity is as much an integral part of the process of loading or unloading a ship as a person who participates in the entire process We therefore hold that Ford and Bryant were engaged in maritime employment because they were engaged in intermediate steps of moving cargo between ship and land transportation[18] Our decision serves the intent of Congress in creating the status requirement First, it focuses upon the nature, not the location, of employment Second, it does not extend coverage to all workers in the situs area There is no doubt for example, that neither the driver of the truck carrying cotton to Galveston nor the locomotive engineer transporting military vehicles from Beaumont was engaged in maritime employment even though he was working on the marine situs Such a person's "responsibility is only to pick up stored cargo for further trans-shipment" S Rep No 92-1125, |
Justice Powell | 1,979 | 17 | majority | PC Pfeiffer Co. v. Ford | https://www.courtlistener.com/opinion/110157/pc-pfeiffer-co-v-ford/ | up stored cargo for further trans-shipment" S Rep No 92-1125, p 13 (1972); H R Rep No 92-1441, p 11 (1972); see Northeast Marine Terminal 432 U S, at 267, 275, n 37 Our decision today also serves the broader congressional purpose of expanding coverage Congress intended to apply a simple, uniform standard of coverage Adoption of the petitioners' test would conflict with that goal, because any individual worker's coverage would depend upon the assignment policies of his employer For example, a land-based worker would be covered if his employer allowed him to alternate assignments with co-workers who work on the water, but he would not be covered if the employer never allowed him to board a ship Congress did not intend the Act's coverage to shift with the employer's whim See id, at 276, n 38 In contrast, a definition *84 of maritime employment that reaches any worker who moves cargo between ship and land transportation will enable both workers and employers to predict with reasonable assurance who on the situs is protected by the 1972 Act Because the Court of Appeals correctly determined that Ford and Bryant were engaged in maritime employment at the time of their injuries, its judgment is Affirmed |
Justice Kennedy | 2,010 | 4 | majority | Abbott v. Abbott | https://www.courtlistener.com/opinion/146554/abbott-v-abbott/ | This case presents, as it has from its inception in the United States District Court, a question of interpretation under the Hague Convention on the Civil Aspects of In ternational Child Abduction (Convention), Oct. 24, 1980, T. I. A. S. No. 11670, S. Treaty Doc. No. 99–11. The United States is a contracting state to the Convention; and Congress has implemented its provisions through the International Child Abduction Remedies Act (ICARA), 102 Stat. 437, 42 U.S. C. et seq. The Convention provides that a child abducted in violation of “rights of custody” must be returned to the child’s country of habit ual residence, unless certain exceptions apply. Art. 1, S. Treaty Doc. No. 99–11, (Treaty Doc.). The question is whether a parent has a “righ[t] of custody” by reason of that parent’s ne exeat right: the authority to consent before the other parent may take the child to another country. I Timothy Abbott and Jacquelyn Vaye Abbott married in England in 1992. He is a British citizen, and she is a citizen of the United States. Mr. Abbott’s astronomy 2 ABBOTT v. ABBOTT Opinion of the Court profession took the couple to Hawaii, where their son A. J. A. was born in 1995. The Abbotts moved to La Serena, Chile, in There was marital discord, and the parents separated in March The Chilean courts granted the mother daily care and control of the child, while awarding the father “direct and regular” visitation rights, including visitation every other weekend and for the whole month of February each year. App. 9. Chilean law conferred upon Mr. Abbott what is com monly known as a ne exeat right: a right to consent before Ms. Abbott could take A. J. A. out of Chile. See Minors Law 16,618, art. 49 (Chile), App. to Pet. for Cert. 61a (granting a ne exeat right to any parent with visitation rights). In effect a ne exeat right imposes a duty on one parent that is a right in the other. After Mr. Abbott ob tained a British passport for A. J. A., Ms. Abbott grew concerned that Mr. Abbott would take the boy to Britain. She sought and obtained a “ne exeat of the minor” order from the Chilean family court, prohibiting the boy from being taken out of Chile. In August 2005, while proceedings before the Chilean court were pending, the mother removed the boy from Chile without permission from either the father or the court. A private investigator located the mother and the child in Texas. In February 2006, the mother filed for divorce in |
Justice Kennedy | 2,010 | 4 | majority | Abbott v. Abbott | https://www.courtlistener.com/opinion/146554/abbott-v-abbott/ | Texas. In February 2006, the mother filed for divorce in Texas state court. Part of the relief she sought was a modification of the father’s rights, including full power in her to determine the boy’s place of residence and an order limiting the father to supervised visitation in Texas. This litigation remains pending. Mr. Abbott brought an action in Texas state court, asking for visitation rights and an order requiring Ms. Abbott to show cause why the court should not allow Mr. Abbott to return to Chile with A. J. A. In February 2006, the court denied Mr. Abbott’s requested relief but granted him “liberal periods of possession” of A. J. A. throughout Cite as: 560 U. S. (2010) 3 Opinion of the Court February 2006, provided Mr. Abbott remained in Texas. App. 42. In May 2006, Mr. Abbott filed the instant action in the United States District Court for the Western District of Texas. He sought an order requiring his son’s return to Chile pursuant to the Convention and enforcement provi sions of the ICARA. In July 2007, after holding a bench trial during which only Mr. Abbott testified, the District Court denied relief. The court held that the father’s ne exeat right did not constitute a right of custody under the Convention and, as a result, that the return remedy was not authorized. The United States Court of Appeals for the Fifth Circuit affirmed on the same rationale. The court held the father possessed no rights of custody under the Convention be cause his ne exeat right was only “a veto right over his son’s departure from Chile.” The court expressed substantial agreement with the Court of Appeals for the Second Circuit in Croll v. Croll, 229 F.3d 133 (2000). Relying on American dictionary defini tions of “custody” and noting that ne exeat rights cannot be “ ‘actually exercised’ ” within the meaning of the Conven tion, Croll held that ne exeat rights are not rights of cus tody. at 138–141 (quoting Art. 3(b), Treaty Doc., ). A dissenting opinion in Croll was filed by then-Judge Sotomayor. The dissent maintained that a ne exeat right is a right of custody because it “provides a parent with decisionmaking authority regarding a child’s international relocation.” The Courts of Appeals for the Fourth and Ninth Circuits adopted the conclusion of the Croll majority. See Fawcett v. McRoberts, ; Gonzalez v. Gutierrez, The Court of Appeals for the Eleventh Circuit has followed the reason ing of the Croll dissent. 720, n. 15 (2004). Certiorari was granted to resolve the 4 ABBOTT v. |
Justice Kennedy | 2,010 | 4 | majority | Abbott v. Abbott | https://www.courtlistener.com/opinion/146554/abbott-v-abbott/ | (2004). Certiorari was granted to resolve the 4 ABBOTT v. ABBOTT Opinion of the Court conflict. 557 U. S. (2009). II The Convention was adopted in 1980 in response to the problem of international child abductions during domestic disputes. The Convention seeks “to secure the prompt return of children wrongfully removed to or retained in any Contracting State,” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Art. 1, Treaty Doc., The provisions of the Convention of most relevance at the outset of this discussion are as follows: “Article 3: The removal or the retention of the child is to be considered wrongful where— “a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the re moval or retention; and “b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. “Article 5: For the purposes of this Convention— “a ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence; “b ‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence. “Article 12: Where a child has been wrongfully re Cite as: 560 U. S. (2010) 5 Opinion of the Court moved or retained in terms of Article 3 the author ity concerned shall order the return of the child forthwith.” The Convention’s central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must “order the return of the child forthwith,” unless certain exceptions apply. See, e.g., Arts. 4, 12, A removal is “wrongful” where the child was removed in violation of “rights of custody.” The Conven tion defines “rights of custody” to “include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Art. 5(a), A return remedy does not alter the pre-ab duction allocation of custody rights but leaves custodial decisions to the courts of the country of habitual residence. Art. 19, The Convention also recognizes “rights of access,” |
Justice Kennedy | 2,010 | 4 | majority | Abbott v. Abbott | https://www.courtlistener.com/opinion/146554/abbott-v-abbott/ | residence. Art. 19, The Convention also recognizes “rights of access,” but offers no return remedy for a breach of those rights. Arts. 5(b), 21, 11. The United States has implemented the Convention through the ICARA. The statute authorizes a person who seeks a child’s return to file a petition in state or federal court and instructs that the court “shall decide the case in accordance with the Convention.” 42 U.S. C. (b), (d). If the child in question has been “wrongfully removed or retained within the meaning of the Conven tion,” the child shall be “promptly returned,” unless an exception is applicable. (a)(4). III As the parties agree, the Convention applies to this dispute. A. J. A. is under 16 years old; he was a habitual resident of Chile; and both Chile and the United States are contracting states. The question is whether A. J. A. was “wrongfully removed” from Chile, in other words, whether he was removed in violation of a right of custody. 6 ABBOTT v. ABBOTT Opinion of the Court This Court’s inquiry is shaped by the text of the Conven tion; the views of the United States Department of State; decisions addressing the meaning of “rights of custody” in courts of other contracting states; and the purposes of the Convention. After considering these sources, the Court determines that Mr. Abbott’s ne exeat right is a right of custody under the Convention. A “The interpretation of a treaty, like the interpretation of a statute, begins with its text.” Medellín v. Texas, 552 U.S. 491, 506 This Court consults Chilean law to determine the content of Mr. Abbott’s right, while follow ing the Convention’s text and structure to decide whether the right at issue is a “righ[t] of custody.” Chilean law granted Mr. Abbott a joint right to decide his child’s country of residence, otherwise known as a ne exeat right. Minors Law 16,618, art. 49 (Chile), App. to Pet. for Cert. 61a, 62a, provides that “[o]nce the court has decreed” that one of the parents has visitation rights, that parent’s “authorization shall also be required” before the child may be taken out of the country, subject to court override only where authorization “cannot be granted or is denied without good reason.” Mr. Abbott has “direct and regular” visitation rights and it follows from Chilean law, that he has a shared right to determine his son’s country of residence under this provision. App. 9. To support the conclusion that Mr. Abbott’s right under Chilean law gives him a joint right to decide his son’s country of residence, it |
Justice Kennedy | 2,010 | 4 | majority | Abbott v. Abbott | https://www.courtlistener.com/opinion/146554/abbott-v-abbott/ | joint right to decide his son’s country of residence, it is notable that a Chilean agency has explained that Mi nors Law 16,618 is a “right to authorize the minors’ exit” from Chile and that this provision means that neither parent can “unilaterally” “establish the [child’s] place of residence.” Letter from Paula Strap Camus, Director General, Corporation of Judicial Assistance of the Region Metropolitana, to National Center for Missing and Ex Cite as: 560 U. S. (2010) 7 Opinion of the Court ploited Children (Jan. 17, 2006), App. to Pet. for Cert. in Villegas Duran v. Arribada Beaumont, No. 08–775, pp. 35a–37a, cert. pending. The Convention recognizes that custody rights can be decreed jointly or alone, see Art. 3(a), Treaty Doc., ; and Mr. Abbott’s joint right to determine his son’s country of residence is best classified as a joint right of custody, as the Convention defines that term. The Convention defines “rights of custody” to “include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Art. 5(a), Mr. Abbott’s ne exeat right gives him both the joint “right to determine the child’s place of residence” and joint “rights relating to the care of the person of the child.” Mr. Abbott’s joint right to decide A. J. A.’s country of residence allows him to “determine the child’s place of residence.” The phrase “place of residence” encompasses the child’s country of residence, especially in light of the Convention’s explicit purpose to prevent wrongful removal across international borders. See Convention Preamble, Treaty Doc., And even if “place of residence” refers only to the child’s street address within a country, a ne exeat right still entitles Mr. Abbott to “determine” that place. “[D]etermine” can mean “[t]o fix conclusively or authoritatively,” Webster’s New International Dictionary 711 (2d ed. 1954) (2d definition), but it can also mean “[t]o set bounds or limits to,” which is what Mr. Abbott’s ne exeat right allows by ensuring that A. J. A. cannot live at any street addresses outside of Chile. It follows that the Convention’s protection of a parent’s custodial “right to determine the child’s place of residence” includes a ne exeat right. Mr. Abbott’s joint right to determine A. J. A.’s country of residence also gives him “rights relating to the care of the person of the child.” Art. 5(a), Treaty Doc., Few decisions are as significant as the language the child 8 ABBOTT v. ABBOTT Opinion of the Court speaks, the identity he finds, or the culture and traditions she will come |
Justice Kennedy | 2,010 | 4 | majority | Abbott v. Abbott | https://www.courtlistener.com/opinion/146554/abbott-v-abbott/ | he finds, or the culture and traditions she will come to absorb. These factors, so essential to self definition, are linked in an inextricable way to the child’s country of residence. One need only consider the different childhoods an adolescent will experience if he or she grows up in the United States, Chile, Germany, or North Korea, to understand how choosing a child’s country of residence is a right “relating to the care of the person of the child.” The Court of Appeals described Mr. Abbott’s right to take part in making this decision as a mere “veto,” 542 F.3d, at ; but even by that truncated description, the father has an essential role in deciding the boy’s country of resi dence. For example, Mr. Abbott could condition his con sent to a change in country on A. J. A.’s moving to a city outside Chile where Mr. Abbott could obtain an astronomy position, thus allowing the father to have continued con tact with the boy. That a ne exeat right does not fit within traditional notions of physical custody is beside the point. The Con vention defines “rights of custody,” and it is that definition that a court must consult. This uniform, text-based ap proach ensures international consistency in interpreting the Convention. It forecloses courts from relying on defi nitions of custody confined by local law usage, definitions that may undermine recognition of custodial arrange ments in other countries or in different legal traditions, including the civil-law tradition. And, in any case, our own legal system has adopted conceptions of custody that accord with the Convention’s broad definition. Joint legal custody, in which one parent cares for the child while the other has joint decisionmaking authority concerning the child’s welfare, has become increasingly common. See Singer, Dispute Resolution and the Postdivorce Family: Implications of a Paradigm Shift, 47 Family Ct. Rev. 363, 366 (2009) (“[A] recent study of child custody outcomes in North Carolina indicated that almost 70% of all custody Cite as: 560 U. S. (2010) 9 Opinion of the Court resolutions included joint legal custody, as did over 90% of all mediated custody agreements”); E. Maccoby & R. Mnookin, Dividing the Child: Social and Legal Dilemmas of Custody 107 (1992) (“[F]or 79% of our entire sample, the [California] divorce decree provided for joint legal cus tody”); see generally Elrod, Reforming the System to Pro tect Children in High Conflict Custody Cases, 28 Wm. Mitchell L. Rev. 495, 505–508 (2001). Ms. Abbott gets the analysis backwards in claiming that a ne exeat right is not a right of |
Justice Kennedy | 2,010 | 4 | majority | Abbott v. Abbott | https://www.courtlistener.com/opinion/146554/abbott-v-abbott/ | that a ne exeat right is not a right of custody because the Con vention requires that any right of custody must be capable of exercise. The Convention protects rights of custody when “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” Art. 3(b), Treaty Doc., In cases like this one, a ne exeat right is by its nature inchoate and so has no operative force except when the other parent seeks to remove the child from the country. If that occurs, the parent can exercise the ne exeat right by declining consent to the exit or placing conditions to ensure the move will be in the child’s best interests. When one parent removes the child without seeking the ne exeat holder’s consent, it is an instance where the right would have been “exercised but for the removal or retention.” The Court of Appeals’ conclusion that a breach of a ne exeat right does not give rise to a return remedy would render the Convention meaningless in many cases where it is most needed. The Convention provides a return remedy when a parent takes a child across international borders in violation of a right of custody. The Convention provides no return remedy when a parent removes a child in violation of a right of access but requires contracting states “to promote the peaceful enjoyment of access rights.” Art. 21, For example, a court may force the custodial parent to pay the travel costs of visitation, 10 ABBOTT v. ABBOTT Opinion of the Court see, e.g., 109–111, 612 N.E.2d 241, 249–250 (1993), or make other provisions for the noncustodial parent to visit his or her child, see (authorizing petitions to “secur[e] the effective exercise of rights of access to a child”). But unlike rights of access, ne exeat rights can only be honored with a return remedy because these rights depend on the child’s location being the country of habitual residence. Any suggestion that a ne exeat right is a “righ[t] of access” is illogical and atextual. The Convention defines “rights of access” as “includ[ing] the right to take a child for a limited period of time to a place other than the child’s habitual residence,” Art. 5(b), Treaty Doc., and ICARA defines that same term as “visitation rights,” The joint right to decide a child’s country of residence is not even arguably a “right to take a child for a limited period of time” or a “visitation righ[t].” Reaching the commonsense |
Justice Kennedy | 2,010 | 4 | majority | Abbott v. Abbott | https://www.courtlistener.com/opinion/146554/abbott-v-abbott/ | period of time” or a “visitation righ[t].” Reaching the commonsense conclusion that a ne exeat right does not fit these definitions of “rights of access” honors the Con vention’s distinction between rights of access and rights of custody. Ms. Abbott argues that the ne exeat order in this case cannot create a right of custody because it merely protects a court’s jurisdiction over the child. Even if this argument were correct, it would not be dispositive. Ms. Abbott contends the Chilean court’s ne exeat order contains no parental consent provision and so awards the father no rights, custodial or otherwise. See Brief for Respondent 22; but see n. 3 (the District Court treating the order as containing a consent provision); 542 F.3d, at 1084 (same for the Court of Appeals). Even a ne exeat order issued to protect a court’s jurisdiction pend ing issuance of further decrees is consistent with allowing a parent to object to the child’s removal from the country. This Court need not decide the status of ne exeat orders lacking parental consent provisions, however; for here the Cite as: 560 U. S. (2010) 11 Opinion of the Court father relies on his rights under Minors Law 16,618. Mr. Abbott’s rights derive not from the order but from Minors Law 16,618. That law requires the father’s consent before the mother can remove the boy from Chile, subject only to the equitable power family courts retain to override any joint custodial arrangements in times of disagreement. Minors Law 16,618; see 1 J. Atkinson, Modern Child Custody Practice (2d ed. 2009) (“[T]he court remains the final arbiter and may resolve the [dispute between joint custodians] itself or designate one parent as having final authority on certain issues affecting the child”); N.W.2d 788, 792 (1993) (“[W]here the parents as joint custodians cannot agree on important matters such as education, it is the court’s duty to determine the issue in the best interests of the child”). The consent provision in Minors Law 16,618 confers upon the father the joint right to determine his child’s country of residence. This is a right of custody under the Convention. B This Court’s conclusion that Mr. Abbott possesses a right of custody under the Convention is supported and informed by the State Department’s view on the issue. The United States has endorsed the view that ne exeat rights are rights of custody. In its brief before this Court the United States advises that “the Department of State, whose Office of Children’s Issues serves as the Central Authority for the United States under the Convention, has |
Justice Kennedy | 2,010 | 4 | majority | Abbott v. Abbott | https://www.courtlistener.com/opinion/146554/abbott-v-abbott/ | Central Authority for the United States under the Convention, has long understood the Convention as including ne exeat rights among the protected ‘rights of custody.’ ” Brief for United States as Amicus Curiae 21; see Sumitomo Shoji America, 184–185, n. 10 (1982) (deferring to the Executive’s interpretation of a treaty as memorialized in a brief before this Court). It is well settled that the Executive Branch’s interpretation of 12 ABBOTT v. ABBOTT Opinion of the Court a treaty “is entitled to great weight.” There is no reason to doubt that this well-established canon of deference is appropriate here. The Executive is well in formed concerning the diplomatic consequences resulting from this Court’s interpretation of “rights of custody,” including the likely reaction of other contracting states and the impact on the State Department’s ability to re claim children abducted from this country. C This Court’s conclusion that ne exeat rights are rights of custody is further informed by the views of other contract ing states. In interpreting any treaty, “[t]he ‘opinions of our sister signatories’ are ‘entitled to considerable weight.’ ” El Al Israel Airlines, (quoting Air France v. Saks, 470 U.S. 392, 404 (1985)). The principle applies with special force here, for Congress has directed that “uniform inter national interpretation of the Convention” is part of the Convention’s framework. See (b)(3)(B). A review of the international case law confirms broad acceptance of the rule that ne exeat rights are rights of custody. In an early decision, the English High Court of Justice explained that a father’s “right to ensure that the child remain[ed] in Australia or live[d] anywhere outside Australia only with his approval” is a right of custody requiring return of the child to Australia. C. v. C., [1989] 1 W. L. R. 654, 658 (C. A.). Lords of the House of Lords have agreed, noting that C. v. C.’s conclusion is “settled, so far as the United Kingdom is concerned” and “appears to be the majority [view] of the common law world.” See In re D (A Child), [2007] 1 A. C. 619, 628, 633, 635 (2006). The Supreme Court of Israel follows the same rule, concluding that “the term ‘custody’ should be interpreted in an expansive way, so that it will apply [i]n every case in which there is a need for the consent of one of the parents Cite as: 560 U. S. (2010) 13 Opinion of the Court to remove the children from one country to another.” CA 5271/92 Foxman v. Foxman, [1992], 4 (K. Chagall transl.). The High Courts of Austria, South Africa, and |
Justice Kennedy | 2,010 | 4 | majority | Abbott v. Abbott | https://www.courtlistener.com/opinion/146554/abbott-v-abbott/ | Chagall transl.). The High Courts of Austria, South Africa, and Germany are in accord. See Oberster Gerichtshof [O. G. H.] [Supreme Court] Feb. 5, 1992, 2 Ob 596/91 (Austria) (“Since the English Custody Court had ordered that the children must not be removed from England and Wales without the father’s written consent, both parents had, in effect, been granted joint custody concerning the children’s place of residence”); Sonderup v. Tondelli, 2001(1) SA 1171, 1183 (Constitutional Ct. of South Africa 2000) (“[The mother’s] failure to return to British Colum bia with the child was a breach of the conditions upon which she was entitled to exercise her rights of custody and therefore constituted a wrongful retention as contemplated by [Article 3] of the Convention”); Bundes verfassungsgericht [BVerfG] [Federal Constitutional Court of Germany] July 18, 1997, 2 BvR 1126/97, ¶15 (the Convention requires a return remedy for a violation of the “right to have a say in the child’s place of residence”). Appellate courts in Australia and Scotland agree. See In the Marriage of Resina [1991] FamCA 33 (Austl., May 22, 1991), ¶¶18–27; A. J. v. F. J., [2005] CSIH 36, 2005 1 S. C. 428, 435–436. It is true that some courts have stated a contrary view, or at least a more restrictive one. The Canadian Supreme Court has said ne exeat orders are “usually intended” to protect access rights. Thomson v. Thomson, [1994] 3 S. C. R. 551, 589–590, 119 Dall. L. R. (4th) 253, 281; see D. S. v. V. W., [1996] 2 S. C. R. 108, 134 Dall. L. R. (4th) 481. But the Canadian cases are not precisely on point here. Thomson ordered a return remedy based on an interim ne exeat order, and only noted in dicta that it may not order such a remedy pursuant to a permanent ne exeat order. See [1994] 3 S. C. R., 89–590, 119 Dall. L. R. (4th), at 281. D. S. involved a parent’s claim based on an im 14 ABBOTT v. ABBOTT Opinion of the Court plicit ne exeat right and, in any event, the court ordered a return remedy on a different basis. See [1996] 2 S. C. R., at 140–141, 142, 134 Dall. L. R. (4th), 03–504, 505. French courts are divided. A French Court of Appeals held that “the right to accept or refuse the removal of the children’s residence” outside of a region was “a joint exer cise of rights of custody.” Public Ministry v. M. B., [CA] Aix-en-Provence, 6e ch., Mar. 23, 1989, Rev. crit. dr. inter nat. Privé 79(3), July–Sept. 1990, 529, |
Justice Kennedy | 2,010 | 4 | majority | Abbott v. Abbott | https://www.courtlistener.com/opinion/146554/abbott-v-abbott/ | Rev. crit. dr. inter nat. Privé 79(3), July–Sept. 1990, 529, 533–535. A trial court in a different region of France rejected this view, relying on the mother’s “fundamental liberty” to establish her domicil. See Attorney for the Republic at Périgueux v. Mrs. S., [T. G. I.] Périgueux, Mar. 17, 1992, Rev. cr. dr. internat. Privé 82(4) Oct.–Dec. 1993, 650, 651–653, note Bertrand Ancel, D. 1992, note G. C. Scholars agree that there is an emerging international consensus that ne exeat rights are rights of custody, even if that view was not generally formulated when the Conven tion was drafted in 1980. At that time, joint custodial arrangements were unknown in many of the contracting states, and the status of ne exeat rights was not yet well understood. See 1980 Conférence de La Haye de droit international privé, Enlèvement d’enfants, morning meet ing of Wed., Oct. 8, 1980 (discussion by Messrs. Leal & van Boeschoten), in 3 Actes et Documents de la Quatorzième session, pp. 263–266 (1982) (Canadian and Dutch dele gates disagreeing whether the Convention protected ne exeat rights, while agreeing that it should protect such rights). Since 1980, however, joint custodial arrange ments have become more common. See at 8–9. And, within this framework, most contracting states and scholars now recognize that ne exeat rights are rights of custody. See, e.g., Hague Conference on Private Interna tional Law: Transfrontier Contact Concerning Children: General Principles and Guide to Good Practice p. 43 (“[P]reponderance of the case law supports the Cite as: 560 U. S. (2010) 15 Opinion of the Court view” that ne exeat rights are “rights of custody” (footnote omitted)); Hague Conference on Private International Law: Overall Conclusions of the Special Commission of Oct. 1989 on the Operation of the Hague Convention of 25 Oct. 1980 on the Civil Aspects of International Child Abduction, reprinted in 29 I. L. M. 219, 222, ¶9 (1990); Hague Conference on Private International Law: Report of the Second Special Commission Meeting to Review the Operation of the Hague Convention on the Civil Aspects of International Child Abduction 11 (1993), reprinted in 33 I. L. M. 225 (1994); Silberman, The Hague Child Abduc tion Convention Turns Twenty: Gender Politics and Other Issues, 33 N. Y. U. J. Int’l L. & Pol. 221, 226–232, and n. 13 (2000); Whitman, Croll v. Croll: The Second Circuit Limits “Custody Rights” Under the Hague Convention on the Civil Aspects of International Child Abduction, 9 Tulane J. Int’l & Comp. L. 605, 611–616 (2001). A history of the Convention, known as the Pérez-Vera Report, has been cited both by |
Justice Kennedy | 2,010 | 4 | majority | Abbott v. Abbott | https://www.courtlistener.com/opinion/146554/abbott-v-abbott/ | known as the Pérez-Vera Report, has been cited both by the parties and by Courts of Appeals that have considered this issue. See 1980 Con férence de La Haye de droit international privé, Enlève ment d’enfants, E. Pérez-Vera, Explanatory Report (Pérez- Vera Report or Report), in 3 Actes et Documents de la Quatorzième session, pp. 425–473 (1982). We need not decide whether this Report should be given greater weight than a scholarly commentary. Compare Hague Interna tional Child Abduction Convention; Text and Legal Analy sis, –10506 (1986) (identifying the Report as the “official history” of the Convention and “a source of background on the meaning of the provisions of the Convention”), with Pérez-Vera Report ¶8, at 427–428 (“[the Report] has not been approved by the Conference, and it is possible that, despite the Rapporter’s [sic] efforts to remain objective, certain passages reflect a viewpoint which is in part subjective”). It suffices to note that the Report supports the conclusion that ne exeat rights are 16 ABBOTT v. ABBOTT Opinion of the Court rights of custody. The Report explains that rather than defining custody in precise terms or referring to the laws of different nations pertaining to parental rights, the Convention uses the unadorned term “rights of custody” to recognize “all the ways in which custody of children can be exercised” through “a flexible interpretation of the terms used, which allows the greatest possible number of cases to be brought into consideration.” at 446, 447–448. Thus the Report rejects the notion that because ne exeat rights do not encompass the right to make medi cal or some other important decisions about a child’s life they cannot be rights of custody. Indeed, the Report is fully consistent with the conclusion that ne exeat rights are just one of the many “ways in which custody of chil dren can be exercised.” at 447. D Adopting the view that the Convention provides a re turn remedy for violations of ne exeat rights accords with its objects and purposes. The Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence. See Convention Preamble, Treaty Doc., Ordering a return remedy does not alter the existing allocation of custody rights, Art. 19, but does allow the courts of the home coun try to decide what is in the child’s best interests. It is the Convention’s premise that courts in contracting states will make this determination in a responsible manner. Custody decisions are often difficult. Judges must strive always |
Justice Kennedy | 2,010 | 4 | majority | Abbott v. Abbott | https://www.courtlistener.com/opinion/146554/abbott-v-abbott/ | manner. Custody decisions are often difficult. Judges must strive always to avoid a common tendency to prefer their own society and culture, a tendency that ought not interfere with objective consideration of all the factors that should be weighed in determining the best interests of the child. This judicial neutrality is presumed from the mandate of the Convention, which affirms that the contracting states Cite as: 560 U. S. (2010) 17 Opinion of the Court are “[f]irmly convinced that the interests of children are of paramount importance in matters relating to their cus tody.” Convention Preamble, Treaty Doc., Interna tional law serves a high purpose when it underwrites the determination by nations to rely upon their domes tic courts to enforce just laws by legitimate and fair proceedings. To interpret the Convention to permit an abducting parent to avoid a return remedy, even when the other parent holds a ne exeat right, would run counter to the Convention’s purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes. Ms. Abbott removed A. J. A. from Chile while Mr. Abbott’s request to enhance his relation ship with his son was still pending before Chilean courts. After she landed in Texas, the mother asked the state court to diminish or eliminate the father’s custodial and visitation rights. The Convention should not be inter preted to permit a parent to select which country will adjudicate these questions by bringing the child to a dif ferent country, in violation of a ne exeat right. Denying a return remedy for the violation of such rights would “le gitimize the very action—removal of the child—that the home country, through its custody order [or other provi sion of law], sought to prevent” and would allow “parents to undermine the very purpose of the Convention.” Croll, This Court should be most reluctant to adopt an interpretation that gives an abducting parent an advantage by coming here to avoid a return remedy that is granted, for instance, in the United Kingdom, Israel, Germany, and South Africa. See at 12–13. Requiring a return remedy in cases like this one helps deter child abductions and respects the Convention’s purpose to prevent harms resulting from abductions. An abduction can have devastating consequences for a child. 18 ABBOTT v. ABBOTT Opinion of the Court “Some child psychologists believe that the trauma children suffer from these abductions is one of the worst forms of child abuse.” H. R. Rep. No. 103–390, p. 2 (1993). A child abducted by one parent is separated from the second parent |
Justice Kennedy | 2,010 | 4 | majority | Abbott v. Abbott | https://www.courtlistener.com/opinion/146554/abbott-v-abbott/ | abducted by one parent is separated from the second parent and the child’s support system. Studies have shown that separation by abduction can cause psychologi cal problems ranging from depression and acute stress disorder to posttraumatic stress disorder and identity formation issues. See N. Parental Child Abduc tion is Child Abuse http://www.prevent-abuse now.com/unreport.htm (as visited May 13, 2010, and available in Clerk of Court’s case file). A child abducted at an early age can experience loss of community and stabil ity, leading to loneliness, anger, and fear of abandonment. See Huntington, Parental Kidnapping: A New Form of Child Abuse (1982), in American Prosecutors Research Institute’s National Center for Prosecution of Child Abuse, Parental Abduction Project, Investigation and Prosecution of Parental Abduction (1995) (App. A). Abductions may prevent the child from forming a relationship with the left behind parent, impairing the child’s ability to mature. See IV While a parent possessing a ne exeat right has a right of custody and may seek a return remedy, a return order is not automatic. Return is not required if the abducting parent can establish that a Convention exception applies. One exception states return of the child is not required when “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Art. 13(b), Treaty Doc., at 10. If, for example, Ms. Abbott could demonstrate that returning to Chile would put her own safety at grave risk, the court could consider whether this is sufficient to show that the child too would suffer “psy Cite as: 560 U. S. (2010) 19 Opinion of the Court chological harm” or be placed “in an intolerable situation.” See, e.g., 1352–1353 ; 220–221 (CA1 2000). The Convention also allows courts to decline to order removal if the child objects, if the child has reached a sufficient “age and degree of maturity at which it is appropriate to take account of its views.” Art. 13(b), Treaty Doc., at 10. The proper interpretation and applica tion of these and other exceptions are not before this Court. These matters may be addressed on remand. * * * The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 560 U. S. (2010) 1 STEVENS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 08–645 TIMOTHY MARK CAMERON ABBOTT, PETITIONER v. |
Justice Stevens | 1,993 | 16 | majority | Cincinnati v. Discovery Network, Inc. | https://www.courtlistener.com/opinion/112836/cincinnati-v-discovery-network-inc/ | Motivated by its iterest i the safety ad attractive appearace of its streets ad sidewalks, the city of Ciciati has refused to allow respodets to distribute their commercial publicatios through freestadig ewsracks located o public property. The questio preseted is whether this refusal is cosistet with the First Amedmet.[1] I agreemet with the District Court ad the Court of Appeals, we hold that it is ot. I Respodet Discovery Network, Ic., is egaged i the busiess of providig adult educatioal, recreatioal, ad social programs to idividuals i the Ciciati area. It advertises those programs i a free magazie that it publishes ie times a year. Although these magazies cosist primarily of promotioal material pertaiig to Discovery's courses, they also iclude some iformatio about curret evets of geeral iterest. Approximately oe-third of these magazies are distributed through the 38 ewsracks that the city authorized Discovery to place o public property i 1989. Respodet Harmo Publishig Compay, Ic., publishes ad distributes a free magazie that advertises real estate for sale at various locatios throughout the Uited States. The magazie cotais listigs ad photographs of available *413 residetial properties i the greater Ciciati area, ad also icludes some iformatio about iterest rates, market treds, ad other real estate matters. I 1989, Harmo received the city's permissio to istall 24 ewsracks at approved locatios. About 15% of its distributio i the Ciciati area is through those devices. I March 1990, the city's Director of Public Works otified each of the respodets that its permit to use dispesig devices o public property was revoked, ad ordered the ewsracks removed withi 30 days. Each otice explaied that respodet's publicatio was a "commercial hadbill" withi the meaig of 714-1C of the Muicipal Code[2] ad therefore 714-23 of the code[3] prohibited its distributio o public property. Respodets were grated admiistrative hearigs ad review by the Sidewalk Appeals Committee. Although the Committee did ot modify the city's positio, *414 it agreed to allow the dispesig devices to remai i place pedig a judicial determiatio of the costitutioality of its prohibitio. Respodets the commeced this litigatio i the Uited States District Court for the Souther District of Ohio. After a evidetiary hearig the District Court cocluded that "the regulatory scheme advaced by the City of Ciciati completely prohibitig the distributio of commercial hadbills o the public right of way violates the First Amedmet."[4] The court foud that both publicatios were "commercial speech" etitled to First Amedmet protectio because they cocered lawful activity ad were ot misleadig. While it recogized that a city "may regulate publicatio dispesig devices pursuat to its |
Justice Stevens | 1,993 | 16 | majority | Cincinnati v. Discovery Network, Inc. | https://www.courtlistener.com/opinion/112836/cincinnati-v-discovery-network-inc/ | a city "may regulate publicatio dispesig devices pursuat to its substatial iterest i promotig safety ad esthetics o or about the public right of way,"[5] the District Court held, relyig o Board of Trustees of State Uiversity of N. that the city had the burde of establishig "a reasoable `fit' betwee the legislature's eds ad the meas chose to accomplish those eds." App. to Pet. for Cert. 23a. (quotig ). It explaied that the "fit" i this case was ureasoable because the umber of ewsracks dispesig commercial hadbills was "miute" compared with the total umber (1,500-2,000) o the public right of way, ad because they affected public safety i oly a miimal way. Moreover, the practices i other commuities idicated that the city's safety ad esthetic iterests could be adequately protected "by regulatig the size, shape, umber or placemet of such devices." App. to Pet. for Cert. 24a.[6] *415 O appeal, the city argued that sice a umber of courts had held that a complete ba o the use of ewsracks dispesig traditioal ewspapers would be ucostitutioal,[7] ad that the "Costitutio accords a lesser protectio to commercial speech tha to other costitutioally guarateed expressio," Cetral Hudso Gas & Electric its preferetial treatmet of ewspapers over commercial publicatios was a permissible method of servig its legitimate iterest i esurig safe streets ad regulatig visual blight.[8] The Court of Appeals disagreed, holdig that the lesser status of commercial speech is relevat oly whe its regulatio was desiged either to prevet false or misleadig advertisig, or to alleviate distictive adverse effects of the specific speech at issue. Because Ciciati sought to regulate oly the "maer" i which respodets' publicatios were distributed, as opposed to their cotet or ay harm caused by their cotet, the court reasoed that respodets' publicatios had "high value" for purposes of the "reasoable fit" test. Applyig that test, the Court of Appeals agreed with the District Court that the burde placed o speech "caot be justified by the paltry gais i safety ad beauty achieved by the ordiace." Ibid.[9] The importace of the Court of *416 Appeals decisio, together with the dramatic growth i the use of ewsracks throughout the coutry,[10] prompted our grat of certiorari. II There is o claim i this case that there is aythig ulawful or misleadig about the cotets of respodets' publicatios. Moreover, respodets do ot challege their characterizatio as "commercial speech." Nor do respodets questio the substatiality of the city's iterest i safety ad esthetics. It was, therefore, proper for the District Court ad the Court of Appeals to judge the validity of |
Justice Stevens | 1,993 | 16 | majority | Cincinnati v. Discovery Network, Inc. | https://www.courtlistener.com/opinion/112836/cincinnati-v-discovery-network-inc/ | ad the Court of Appeals to judge the validity of the city's prohibitio uder the stadards we set forth i Cetral Hudso ad[11] It was the city's burde to establish a "reasoable fit" betwee its legitimate iterests i safety ad esthetics ad its choice of a limited ad selective prohibitio of ewsracks as the meas chose to serve those iterests.[12] *417 There is ample support i the record for the coclusio that the city did ot "establish the reasoable fit we require." The ordiace o which it relied was a outdated prohibitio agaist the distributio of ay commercial hadbills o public property. It was eacted log before ay cocer about ewsracks developed. Its apparet purpose was to prevet the kid of visual blight caused by litterig, rather tha ay harm associated with permaet, freestadig dispesig devices. The fact that the city failed to address its recetly developed cocer about ewsracks by regulatig their size, shape, appearace, or umber idicates that it has ot "carefully calculated" the costs ad beefits associated with the burde o speech imposed by its prohibitio.[13] The beefit to be derived *418 from the removal of 62 ewsracks while about 1,500 2,000 remai i place was cosidered "miute" by the District Court ad "paltry" by the Court of Appeals. We share their evaluatio of the "fit" betwee the city's goal ad its method of achievig it. I seekig reversal, the city argues that it is wrog to focus attetio o the relatively small umber of ewsracks affected by its prohibitio, because the city's cetral cocer is with the overall umber of ewsracks o its sidewalks, rather tha with the uattractive appearace of a hadful of dispesig devices. It coteds, first, that a categorical prohibitio o the use of ewsracks to dissemiate commercial messages burdes o more speech tha is ecessary to further its iterest i limitig the umber of ewsracks; ad, secod, that the prohibitio is a valid "time, place, ad maer" regulatio because it is cotet eutral ad leaves ope ample alterative chaels of commuicatio. We cosider these argumets i tur. The city argues that there is a close fit betwee its ba o ewsracks dispesig "commercial hadbills" ad its iterests i safety ad esthetics because every decrease i the umber of such dispesig devices ecessarily effects a icrease i safety ad a improvemet i the attractiveess of the cityscape. I the city's view, the prohibitio is thus etirely related to its legitimate iterests i safety ad esthetics. We accept the validity of the city's propositio, but cosider it a isufficiet justificatio for the discrimiatio agaist |
Justice Stevens | 1,993 | 16 | majority | Cincinnati v. Discovery Network, Inc. | https://www.courtlistener.com/opinion/112836/cincinnati-v-discovery-network-inc/ | but cosider it a isufficiet justificatio for the discrimiatio agaist respodets' use of ewsracks that are o more harmful tha the permitted ewsracks, ad have oly a miimal impact o the overall umber of ewsracks o the city's sidewalks. The major premise supportig the city's argumet is the propositio that commercial speech has oly a *419 low value. Based o that premise, the city coteds that the fact that assertedly more valuable publicatios are allowed to use ewsracks does ot udermie its judgmet that its esthetic ad safety iterests are stroger tha the iterest i allowig commercial speakers to have similar access to the readig public. We caot agree. I our view, the city's argumet attaches more importace to the distictio betwee commercial ad ocommercial speech tha our cases warrat ad seriously uderestimates the value of commercial speech. This very case illustrates the difficulty of drawig bright lies that will clearly cabi commercial speech i a distict category. For respodets' publicatios share importat characteristics with the publicatios that the city classifies as "ewspapers." Particularly, they are "commercial hadbills" withi the meaig of 714-1C of the city's code because they cotai advertisig, a feature that apparetly also places ordiary ewspapers withi the same category.[14] Separate provisios i the code specifically authorize the distributio of "ewspapers" o the public right of way, but that term is ot defied.[15] Presumably, respodets' publicatios do ot qualify as ewspapers because a examiatio of their cotet discloses a higher ratio of advertisig to other text, such as ews ad feature stories, tha is foud i the exempted publicatios.[16] Ideed, Ciciati's City *420 Maager has determied that publicatios that qualify as ewspapers ad therefore ca be distributed by ewsrack are those that are published daily ad/or weekly ad "primarily prese[t] coverage of, ad commetary o, curret evets." App. 230 The absece of a categorical defiitio of the differece betwee "ewspapers" ad "commercial hadbills" i the city's code is also a characteristic of our opiios cosiderig the costitutioality of regulatios of commercial speech. Fifty years ago, we cocluded that the distributio of a commercial hadbill was uprotected by the First Amedmet, eve though half of its cotet cosisted of political protest. A few years later, over Justice Black's disset, we held that the "commercial feature" of door-to-door solicitatio of magazie subscriptios was a sufficiet reaso for deyig First Amedmet protectio to that activity. Subsequet opiios, however, recogized that importat commercial attributes of various forms of commuicatio do ot qualify their etitlemet to costitutioal protectio. Thus, i Virgiia State of we explaied: "We begi with several propositios that already |
Justice Stevens | 1,993 | 16 | majority | Cincinnati v. Discovery Network, Inc. | https://www.courtlistener.com/opinion/112836/cincinnati-v-discovery-network-inc/ | of we explaied: "We begi with several propositios that already are settled or beyod serious dispute. It is clear, for example, that speech does ot lose its First Amedmet protectio because moey is spet to project it, as i a paid advertisemet of oe form or aother. ; Pittsburgh Press Co. v. Huma Relatios Comm', ; New Times Co. v. Sulliva, Speech likewise is protected eve though it is carried i a form that is `sold' for profit, Smith v. Califoria, ; Joseph Bursty, Ic. v. Wilso, (motio pictures); Murdock v. *421 Pesylvaia, ad eve though it may ivolve a solicitatio to purchase or otherwise pay or cotribute moey. New Times Co. v. Sulliva, NAACP v. Butto, ; Jamiso v. ; Catwell v. Coecticut, "If there is a kid of commercial speech that lacks all First Amedmet protectio, therefore it must be distiguished by its cotet. Yet the speech whose cotet deprives it of protectio caot simply be speech o a commercial subject. No oe would coted that our pharmacist may be preveted from beig heard o the subject of whether, i geeral, pharmaceutical prices should be regulated, or their advertisemet forbidde. Nor ca it be dispositive that a commercial advertisemet is oeditorial, ad merely reports a fact. Purely factual matter of public iterest may claim protectio. Bigelow v. Virgiia, ; Thorhill v. Alabama," We the held that eve speech that does o more tha propose a commercial trasactio is protected by the First Amedmet.[17] *422 I later opiios we have stated that speech proposig a commercial trasactio is etitled to lesser protectio tha other costitutioally guarateed expressio. See Ohralik v. Ohio State Bar Ass., We have also suggested that such lesser protectio was appropriate for a somewhat larger category of commercial speech"that is, expressio related solely to the ecoomic iterests of the speaker ad its audiece." Cetral Hudso Gas & Electric Corp. v. Public Service Comm' of New We did ot, however, use that defiitio i either v. Yougs Drug Products Corp., or i Board of Trustees of State Uiversity of N. I the case we held that a federal statute prohibitig the mailig of usolicited advertisemets for cotraceptives could ot be applied to the appellee's promotioal materials. Most of the appellee's mailigs cosisted primarily of price ad quatity iformatio, ad thus fell "withi the core otio of commercial speech'speech which does "o more tha propose a commercial trasactio."` " ). Relyig i part o the appellee's ecoomic motivatio, the Court also aswered the "closer questio" about the proper *423 label for iformatioal pamphlets that were cocededly advertisemets referrig |
Justice Stevens | 1,993 | 16 | majority | Cincinnati v. Discovery Network, Inc. | https://www.courtlistener.com/opinion/112836/cincinnati-v-discovery-network-inc/ | *423 label for iformatioal pamphlets that were cocededly advertisemets referrig to a specific product, ad cocluded that they also were "commercial speech." -67. It is oteworthy that i reachig that coclusio we did ot simply apply the broader defiitio of commercial speech advaced i Cetral Hudso a defiitio that obviously would have ecompassed the mailigsbut rather "examied [them] carefully to esure that speech deservig of greater costitutioal protectio is ot iadvertetly suppressed."[18] I we described the category eve more arrowly, by characterizig the proposal of a commercial trasactio as "the test for idetifyig commercial speech." -474 Uder the test it is clear that much of the material i ordiary ewspapers is commercial speech ad, coversely, that the editorial cotet i respodets' promotioal publicatios is ot what we have described as "core" commercial speech. There is o doubt a "commosese" basis for distiguishig betwee the two, but uder both the city's code ad our cases the differece is a matter of degree.[19] *424 Nevertheless, for the purpose of decidig this case, we assume that all of the speech barred from Ciciati's sidewalks is what we have labeled "core" commercial speech ad that o such speech is foud i publicatios that are allowed to use ewsracks. We oetheless agree with the Court of Appeals that Ciciati's actios i this case ru afoul of the First Amedmet. Not oly does Ciciati's categorical ba o commercial ewsracks place too much importace o the distictio betwee commercial ad ocommercial speech, but i this case, the distictio bears o relatioship whatsoever to the particular iterests that the city has asserted. It is therefore a impermissible meas of respodig to the city's admittedly legitimate iterests. Cf. Simo & Schuster, Ic. v. Members of N. Y. State Crime Victims (distictio draw by So of Sam law betwee icome derived from crimial's descriptios of his crime ad other sources "has othig to do with" State's iterest i trasferrig proceeds of crime from crimials to victims); Carey v. Brow, (State's iterest i residetial privacy caot sustai statute permittig labor picketig, but prohibitig olabor picketig *425 whe "othig i the cotet-based labor-olabor distictio has ay bearig whatsoever o privacy").[20] The city has asserted a iterest i esthetics, but respodet publishers' ewsracks are o greater a eyesore tha the ewsracks permitted to remai o Ciciati's sidewalks. Each ewsrack, whether cotaiig "ewspapers" or "commercial hadbills," is equally uattractive. While there was some testimoy i the District Court that commercial publicatios are distict from ocommercial publicatios i their capacity to proliferate, the evidece of such was exceedigly weak, the Court of Appeals discouted it, |
Justice Stevens | 1,993 | 16 | majority | Cincinnati v. Discovery Network, Inc. | https://www.courtlistener.com/opinion/112836/cincinnati-v-discovery-network-inc/ | such was exceedigly weak, the Court of Appeals discouted it, -467, ad 3, ad Ciciati does ot reassert that particular argumet i this Court. As we *426 have explaied, the city's primary cocer, as argued to us, is with the aggregate umber of ewsracks o its streets. O that score, however, all ewsracks, regardless of whether they cotai commercial or ocommercial publicatios, are equally at fault. I fact, the ewspapers are arguably the greater culprit because of their superior umber. Ciciati has ot asserted a iterest i prevetig commercial harms by regulatig the iformatio distributed by respodet publishers' ewsracks, which is, of course, the typical reaso why commercial speech ca be subject to greater govermetal regulatio tha ocommercial speech. See, e. g., (Steves, J., cocurrig i judgmet) ("[T]he commercial of a message may provide a justificatio for regulatio that is ot preset whe the commuicatio has o commercial aspects character"); Ohralik v. Ohio State Bar Ass., 436 U. S., at (commercial speech, ulike other varieties of speech, "occurs i a area traditioally subject to govermet regulatio").[21] A closer examiatio of oe of the cases we have metioed, v. Yougs Drug Products, demostrates the fallacy of the city's argumet that a reasoable fit is established by the mere fact that the etire burde imposed o commercial speech by its ewsrack policy may i some small way limit the total umber of ewsracks o Ciciati's sidewalks. Here, the city coteds that safety cocers ad visual blight may be addressed by a prohibitio that distiguishes *427 betwee commercial ad ocommercial publicatios that are equally resposible for those problems. I however, i rejectig the Govermet's reliace o its iterest i protectig the public from "offesive" speech, "[we] specifically declied to recogize a distictio betwee commercial ad ocommercial speech that would reder this iterest a sufficiet justificatio for a prohibitio of commercial speech." -72 ). Moreover, the fact that the regulatio "provide[d] oly the most limited icremetal support for the iterest asserted," that it achieved oly a "margial degree of protectio," ibid., for that iterestsupported our holdig that the prohibitio was ivalid. Fially, i as i this case, the burde o commercial speech was imposed by deyig the speaker access to oe method of distributio there the Uited States mails, ad here the placemet of ewsracks o public propertywithout iterferig with alterative meas of access to the audiece. As the-Justice Rehquist explaied i his separate opiio, that fact did ot miimize the sigificace of the burde: "[T]he Postal Service argues that Yougs ca commuicate with the public otherwise tha through the mail. [This argumet falls] |
Justice Stevens | 1,993 | 16 | majority | Cincinnati v. Discovery Network, Inc. | https://www.courtlistener.com/opinion/112836/cincinnati-v-discovery-network-inc/ | the public otherwise tha through the mail. [This argumet falls] wide of the mark. A prohibitio o the use of the mails is a sigificat restrictio of First Amedmet rights. We have oted that ` "[t]he Uited States may give up the Post Office whe it sees fit, but while it carries it o the use of the mails is as much a part of free speech as the right to use our togues."` Blout v. quotig Milwaukee Social Democratic Publishig Co. v. Burle- so, (Holmes, J., dissetig)." (footote omitted). I a similar vei, eve if we assume, arguedo, that the city might etirely prohibit the use of ewsracks o public *428 property, as log as this aveue of commuicatio remais ope, these devices cotiue to play a sigificat role i the dissemiatio of protected speech. I the absece of some basis for distiguishig betwee "ewspapers" ad "commercial hadbills" that is relevat to a iterest asserted by the city, we are uwillig to recogize Ciciati's bare assertio that the "low value" of commercial speech is a sufficiet justificatio for its selective ad categorical ba o ewsracks dispesig "commercial hadbills." Our holdig, however, is arrow. As should be clear from the above discussio, we do ot reach the questio whether, give certai facts ad uder certai circumstaces, a commuity might be able to justify differetial treatmet of commercial ad ocommercial ewsracks. We simply hold that o this record Ciciati has failed to make such a showig. Because the distictio Ciciati has draw has absolutely o bearig o the iterests it has asserted, we have o difficulty cocludig, as did the two courts below, that the city has ot established the "fit" betwee its goals ad its chose meas that is required by our opiio i It remais to cosider the city's argumet that its prohibitio is a permissible time, place, ad maer regulatio. IV The Court has held that govermet may impose reasoable restrictios o the time, place, or maer of egagig i protected speech provided that they are adequately justified "`without referece to the cotet of the regulated speech.' " v. Rock Agaist Racism, quotig v. Commuity for Creative NoViolece, Thus, a prohibitio agaist the use of soud trucks emittig "loud ad raucous" oise i residetial eighborhoods is permissible if it applies equally to music, political speech, ad advertisig. See geerally * The city coteds that its regulatio of ewsracks qualifies as such a restrictio because the iterests i safety ad esthetics that it serves are etirely urelated to the cotet of respodets' publicatios. Thus, the argumet goes, the justificatio |
Justice Stevens | 1,993 | 16 | majority | Cincinnati v. Discovery Network, Inc. | https://www.courtlistener.com/opinion/112836/cincinnati-v-discovery-network-inc/ | cotet of respodets' publicatios. Thus, the argumet goes, the justificatio for the regulatio is cotet eutral. The argumet is upersuasive because the very basis for the regulatio is the differece i cotet betwee ordiary ewspapers ad commercial speech. True, there is o evidece that the city has acted with aimus toward the ideas cotaied withi respodets' publicatios, but just last Term we expressly rejected the argumet that "discrimiatory treatmet is suspect uder the First Amedmet oly whe the legislature iteds to suppress certai ideas." Simo & Schuster, Ic. v. Members of N. Y. State Crime Victims Regardless of the mes rea of the city, it has eacted a sweepig ba o the use of ewsracks that distribute "commercial hadbills," but ot "ewspapers." Uder the city's ewsrack policy, whether ay particular ewsrack falls withi the ba is determied by the cotet of the publicatio restig iside that ewsrack. Thus, by ay commosese uderstadig of the term, the ba i this case is "cotet based." Nor are we persuaded that our statemets that the test for whether a regulatio is cotet based turs o the "justificatio" for the regulatio, see, e. g., 491 U. S., at ; 468 U. S., at compel a differet coclusio. We agree with the city that its desire to limit the total umber of ewsracks is "justified" by its iterests i safety ad esthetics. The city has ot, however, limited the umber of ewsracks; it has limited (to zero) the umber of ewsracks distributig commercial publicatios. As we have explaied, there is o justificatio for that particular regulatio other tha the city's aked assertio that commercial speech has "low value." It is the absece of a eutral *430 justificatio for its selective ba o ewsracks that prevets the city from defedig its ewsrack policy as cotet eutral. By the same reasoig, the city's heavy reliace o Reto v. Playtime Theatres, Ic., is misplaced. I Reto, a city ordiace imposed particular zoig regulatios o movie theaters showig adult films. The Court recogized that the ordiace did ot fall eatly ito the "cotet-based" or "cotet-eutral" category i that "the ordiace treats theaters that specialize i adult films differetly from other kids of theaters." We upheld the regulatio, however, largely because it was justified ot by a iterest i suppressig adult films, but by the city's cocer for the "secodary effects" of such theaters o the surroudig eighborhoods. -49. I cotrast to the speech at issue i Reto, there are o secodary effects attributable to respodet publishers' ewsracks that distiguish them from the ewsracks Ciciati permits to remai o its |
Justice Stevens | 1,993 | 16 | majority | Cincinnati v. Discovery Network, Inc. | https://www.courtlistener.com/opinion/112836/cincinnati-v-discovery-network-inc/ | them from the ewsracks Ciciati permits to remai o its sidewalks. I sum, the city's ewsrack policy is either cotet eutral or, as demostrated i Part "arrowly tailored." Thus, regardless of whether or ot it leaves ope ample alterative chaels of commuicatio, it caot be justified as a legitimate time, place, or maer restrictio o protected speech. Ciciati has eacted a sweepig ba that bars from its sidewalks a whole class of costitutioally protected speech. As did the District Court ad the Court of Appeals, we coclude that Ciciati has failed to justify that policy. The regulatio is ot a permissible regulatio of commercial speech, for o this record it is clear that the iterests that Ciciati has asserted are urelated to ay distictio betwee "commercial hadbills" ad "ewspapers." Moreover, because the ba is predicated o the cotet of the publicatios distributed by the subject ewsracks, it is ot a valid time, place, or maer restrictio o protected speech. *431 For these reasos, Ciciati's categorical ba o the distributio, via ewsrack, of "commercial hadbills" caot be squared with the dictates of the First Amedmet. The judgmet of the Court of Appeals is Affirmed. |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | It is the proud boast of our democracy that we have "a government of laws and not of men." Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows: "In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men." The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that "[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty." The Federalist No. 47, p. 301 (C. Rossiter ed. 1961) (hereinafter Federalist). Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours. The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles. Article I, 1, provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United *698 States, which shall consist of a Senate and House of Representatives." Article III, 1, provides that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." And the provision at issue here, Art. II, 1, cl. 1, provides that "[t]he executive Power shall be vested in a President of the United States of America." But just as the mere words of a Bill of Rights are not self-effectuating, the Framers recognized "[t]he insufficiency of a mere parchment delineation of the boundaries" to achieve the separation of powers. Federalist No. 73, p. 442 (A. Hamilton). "[T]he great security," wrote Madison, "against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | in all other cases, be made commensurate to the danger of attack." Federalist No. 51, pp. 1-2. Madison continued: "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified." The major "fortification" provided, of course, was the veto power. But in addition to providing fortification, the Founders conspicuously and very consciously declined to sap the Executive's strength in the same way they had weakened *699 the Legislature: by dividing the executive power. Proposals to have multiple executives, or a council of advisers with separate authority were rejected. See 1 M. Farrand, Records of the Federal Convention of 1787, pp. 66, 71-74, 88, 91-92 (rev. ed. 1966); 2 Thus, while "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives," U. S. Const., Art. I, 1 "[t]he executive Power shall be vested in a President of the United States," Art. II, 1, cl. 1 That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish so that "a gradual concentration of the several powers in the same department," Federalist No. 51, p. 1 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf. I The present case began when the Legislative and Executive Branches became "embroiled in a dispute concerning the scope of the congressional investigatory power," United which as is often the case with such interbranch conflicts became quite acrimonious. In the course of oversight hearings into the administration of the Superfund by the Environmental Protection Agency (EPA), two Subcommittees of the House of Representatives requested and then subpoenaed |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | Subcommittees of the House of Representatives requested and then subpoenaed numerous internal EPA documents. The President responded by personally directing the EPA Administrator not to turn over certain of the documents, *700 see Memorandum of November 30, 1982, from President Reagan for the Administrator, Environmental Protection Agency, reprinted in H. R. Rep. No. 99-435, pp. 1166-1167 and by having the Attorney General notify the congressional Subcommittees of this assertion of executive privilege, see Letters of November 30, 1982, from Attorney General William French Smith to Hon. John D. Dingell and Hon. Elliott H. Levitas, reprinted, In his decision to assert executive privilege, the President was counseled by appellee Olson, who was then Assistant Attorney General of the Department of Justice for the Office of Legal Counsel, a post that has traditionally had responsibility for providing legal advice to the President (subject to approval of the Attorney General). The House's response was to pass a resolution citing the EPA Administrator, who had possession of the documents, for contempt. Contempt of Congress is a criminal offense. See 2 U.S. C. 192. The United States Attorney, however, a member of the Executive Branch, initially took no steps to prosecute the contempt citation. Instead, the Executive Branch sought the immediate assistance of the Third Branch by filing a civil action asking the District Court to declare that the EPA Administrator had acted lawfully in withholding the documents under a claim of executive privilege. See The District Court declined (in my view correctly) to get involved in the controversy, and urged the other two branches to try "[c]ompromise and cooperation, rather than confrontation." After further haggling, the two branches eventually reached an agreement giving the House Subcommittees limited access to the contested documents. Congress did not, however, leave things there. Certain Members of the House remained angered by the confrontation, particularly by the role played by the Department of Justice. Specifically, the Judiciary Committee remained disturbed by the possibility that the Department had persuaded the President to assert executive privilege despite reservations by the *701 EPA; that the Department had "deliberately and unnecessarily precipitated a constitutional confrontation with Congress"; that the Department had not properly reviewed and selected the documents as to which executive privilege was asserted; that the Department had directed the United States Attorney not to present the contempt certification involving the EPA Administrator to a grand jury for prosecution; that the Department had made the decision to sue the House of Representatives; and that the Department had not adequately advised and represented the President, the EPA, and the EPA Administrator. H. R. |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | the President, the EPA, and the EPA Administrator. H. R. Rep. No. 99-435, p. 3 (describing unresolved "questions" that were the basis of the Judiciary Committee's investigation). Accordingly, staff counsel of the House Judiciary Committee were commissioned (apparently without the knowledge of many of the Committee's members, see ) to investigate the Justice Department's role in the controversy. That investigation lasted 2 1/2 years, and produced a 3,000-page report issued by the Committee over the vigorous dissent of all but one of its minority-party members. That report, which among other charges questioned the truthfulness of certain statements made by Assistant Attorney General Olson during testimony in front of the Committee during the early stages of its investigation, was sent to the Attorney General along with a formal request that he appoint an independent counsel to investigate Mr. Olson and others. As a general matter, the Act before us here requires the Attorney General to apply for the appointment of an independent counsel within 90 days after receiving a request to do so, unless he determines within that period that "there are no reasonable grounds to believe that further investigation or prosecution is warranted." 28 U.S. C. 592(b)(1). As a practical matter, it would be surprising if the Attorney General had any choice (assuming this statute is constitutional) but to seek appointment of an independent counsel to pursue the charges against the principal object of the congressional *702 request, Mr. Olson. Merely the political consequences (to him and the President) of seeming to break the law by refusing to do so would have been substantial. How could it not be, the public would ask, that a 3,000-page indictment drawn by our representatives over 2 1/2 years does not even establish "reasonable grounds to believe" that further investigation or prosecution is warranted with respect to at least the principal alleged culprit? But the Act establishes more than just practical compulsion. Although the Court's opinion asserts that the Attorney General had "no duty to comply with the [congressional] request," ante, that is not entirely accurate. He had a duty to comply unless he could conclude that there were "no reasonable grounds to believe," not that prosecution was warranted, but merely that "further investigation" was warranted, 28 U.S. C. 592(b)(1) (1982 ed., Supp. V) after a 90-day investigation in which he was prohibited from using such routine investigative techniques as grand juries, plea bargaining, grants of immunity, or even subpoenas, see 592(a)(2). The Court also makes much of the fact that "the courts are specifically prevented from reviewing the Attorney General's decision not to |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | specifically prevented from reviewing the Attorney General's decision not to seek appointment, 592(f)." Ante, at 695. Yes,[1] but Congress is not prevented from reviewing it. The context of this statute is acrid with the smell of threatened impeachment. Where, as here, a request for appointment of an independent *703 counsel has come from the Judiciary Committee of either House of Congress, the Attorney General must, if he decides not to seek appointment, explain to that Committee why. See also 28 U.S. C. 595(c) (1982 ed., Supp. V) (independent counsel must report to the House of Representatives information "that may constitute grounds for an impeachment"). Thus, by the application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch. Mr. Olson may or may not be guilty of a crime; we do not know. But we do know that the investigation of him has been commenced, not necessarily because the President or his authorized subordinates believe it is in the interest of the United States, in the sense that it warrants the diversion of resources from other efforts, and is worth the cost in money and in possible damage to other governmental interests; and not even, leaving aside those normally considered factors, because the President or his authorized subordinates necessarily believe that an investigation is likely to unearth a violation worth prosecuting; but only because the Attorney General cannot affirm, as Congress demands, that there are no reasonable grounds to believe that further investigation is warranted. The decisions regarding the scope of that further investigation, its duration, and, finally, whether or not prosecution should ensue, are likewise beyond the control of the President and his subordinates. II If to describe this case is not to decide it, the concept of a government of separate and coordinate powers no longer has meaning. The Court devotes most of its attention to such relatively technical details as the Appointments Clause and the removal power, addressing briefly and only at the end of its opinion the separation of powers. As my prologue suggests, *704 I think that has it backwards. Our opinions are full of the recognition that it is the principle of separation of powers, and the inseparable corollary that each department's "defense must be made commensurate to the danger of attack," Federalist No. 51, p. 2 (J. Madison), which gives comprehensible content to the Appointments Clause, and determines the appropriate scope of the |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.