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Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | help make the crime succeed.” App. 19; 18 ROSEMOND v. UNITED STATES Opinion of the Court Brief for United States 9. That statement, the Govern- ment rightly notes, “mirrors” Judge Hand’s classic formu- lation. Tr. of Oral Arg. 33; see But the statement is also pitched at a high level of generality. Immediately afterward, the District Court provided the jury with the two-pronged test noted above—thus indicat- ing how the broad principle should apply to the specific charge of abetting a offense. We therefore do not see how the “umbrella” statement could have cured the court’s error. Indeed, a different contextual feature of the case would only have amplified that mistake. As earlier described, the prosecutor asserted in closing argument that the court’s test was easily satisfied because “a person cannot be present and active at a drug deal when shots are fired and not know their cohort is using a gun.” App. 1; see at 3–. The prosecutor thus invited the jury to convict Rosemond even if he first learned of the gun as it was discharged, and no matter what he did afterward. Once again, then, the message to the jury was that it need not find advance knowledge—exactly what we (and for that matter the Government) have said is required. We send this case back to the Tenth Circuit to consider the appropriate consequence, if any, of the District Court’s error. The Government makes two arguments relevant to that inquiry. First, it contends that Rosemond failed to object specifically to the part of the trial court’s instruc- tions we have found wanting; thus, the Government as- serts, a plain-error standard should apply to his claim. See Fed. Rule Crim. Proc. 52(b); 520 U.S. 1, 5–7 Second, the Government argues that any error in the court’s aiding and abetting instruction was harmless, because the jury must have found (based on another part of its verdict, not discussed here) that Rosemond himself fired the gun. Those claims were not raised or addressed below, and we see no special reason to decide them in the first instance. See Travelers Cite as: 572 U. S. (201) 19 Opinion of the Court Casualty & Surety Co. of 59 U.S. 3, 55 Accordingly, we vacate the judgment below and remand the case for further proceed- ings consistent with this opinion. It is so ordered. Cite as: 572 U. S. (201) 1 Opinion of ALITO, J. SUPREME COURT OF THE UNITED STATES No. –895 JUSTUS C. ROSEMOND, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT [March 5, 201] JUSTICE ALITO, with whom JUSTICE THOMAS joins, con- curring in part and dissenting in part. I largely agree with the analysis in the first pages of the opinion of the Court, but I strongly disagree with the discussion that comes after that point. Specifically, I reject the Court’s conclusion that a conviction for aiding and abetting a violation of 18 U.S. C. demands proof that the alleged aider and abettor had what the Court terms “a realistic opportunity” to refrain from en gaging in the conduct at issue.1 Ante, This rule represents an important and, as far as I am aware, un precedented alteration of the law of aiding and abetting and of the law of intentionality generally. To explain my disagreement with the Court’s analysis, I begin with our case law on the mens rea required to estab lish aiding and abetting. There is some tension in our —————— 1 I am also concerned that the Court’s use, without clarification, of the phrase “advance knowledge” will lead readers astray. E.g., ante, at 1. Viewed by itself, the phrase most naturally means knowledge acquired in advance of the commission of the drug trafficking offense, but this is not what the Court means. Rather, “advance knowledge,” as used by the Court, may include knowledge acquired while the drug trafficking offense is in progress. Specifically, a defendant has such knowledge, the Court says, if he or she first learns of the gun while the drug offense is in progress and at that time “realistically could have opted out of the crime.” Ante, at 15. 2 ROSEMOND v. UNITED STATES Opinion of ALITO, J. cases on this point. Specifically, some of our cases suggest that an aider and abettor must act purposefully or with intent. Prominent among these cases is Nye & v. United States, 33 U.S. 13 (199), which the Court quotes. See ante, at 1, n. In that case, the Court, quoting Judge Learned Hand’s formulation in United said that an aider and abettor must “ ‘participate in [the crime] as in something that he wishes to bring about, [and] seek by his action to make it succeed.’ ” 33 U.S., at 19. On the other hand, there are cases to which the Court also refers, ante, at that appear to hold that the requi site mens rea is simply knowledge. See ; 330 U.S. 1–15 (197). The Court refers interchange ably to both of these tests and thus leaves our case law in the same, |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | tests and thus leaves our case law in the same, somewhat conflicted state that previously ex- isted. But because the difference between acting purpose fully (when that concept is properly understood) and acting knowingly is slight, this is not a matter of great concern. Beginning on page 13, however, the Court veers off in a new and, to my mind, most unfortunate direction. The Court imagines the following situation: “[A]n accomplice agrees to participate in a drug sale on the express condition that no one brings a gun to the place of exchange. But just as the parties are making the trade, the accomplice notices that one of his confederates has a (poorly) concealed firearm in his jacket.” Ante, at 15. If the accomplice, despite spotting the gun, continues to assist in the completion of the drug sale, has the accom plice aided and abetted the commission of a violation of ? The Court’s answer is “it depends.” Walking away, the Court observes, “might increase the risk of gun violence— to the accomplice himself, other participants, or bystand Cite as: 572 U. S. (201) 3 Opinion of ALITO, J. ers; and conversely, finishing the sale might be the best or only way to avoid the danger.” Ante, at 1. Moreover— and this is where the seriously misguided step occurs—the Court says that if the risk of walking away exceeds (by some unspecified degree) the risk created by completing the sale and if the alleged aider and abettor chooses to continue for that reason, the alleged aider and abettor lacks the mens rea required for conviction. See ante, at 1, n. What the Court has done is to convert what has up to now been an affirmative defense into a part of the re quired mens rea, and this step has very important concep tual and practical consequences. It fundamentally alters the prior understanding of mental states that form the foundation of substantive criminal law, and it places a strange and difficult burden on the prosecution. That the Court has taken a radical step can be seen by comparing what the Court now holds with the traditional defense of necessity. That defense excuses a violation of law if “the harm which will result from compliance with the law is greater than that which will result from viola tion of it.” 2 W. LaFave, Substantive Criminal Law §.1, p. 11 (2003) (hereinafter LaFave).2 This is almost exactly the balance-of-risks calculus adopted by the Court, but under the traditional approach necessity is an affirmative defense. See, e.g., United U.S. 39, 1 Necessity and |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | affirmative defense. See, e.g., United U.S. 39, 1 Necessity and the closely related defense of duress are affirmative defenses because they almost invar —————— 2 Traditionally, the defense of necessity was employed when natural forces created the situation justifying non-compliance; when the situa tion was the product of human action, duress was the appropriate defense. 2 LaFave §.1(a), But “[m]odern cases have tended to blur the distinction between” these two defenses, United States v. Bailey, U.S. 39, and “it would doubtless be possible to treat [duress] as a branch of the law of necessity,” 2 LaFave §.1(b), at 1. ROSEMOND v. UNITED STATES Opinion of ALITO, J. iably do not negate the mens rea necessary to incur crimi nal liability. See 2 LaFave §.1(a), 8 (“The rationale of the necessity defense is not that a person, when faced with the pressure of circumstances of nature, lacks the mental element which the crime in question requires”); at 73 (same for duress). This Court has made clear that, except in narrow cir cumstances, necessity and duress do not negate the mens rea required for conviction. In v. United States, 58 U.S. 1 (200), the defendant was charged with “know- ingly” and “willfully” committing certain criminal acts, but she claimed that she committed the acts only because her boyfriend had threatened to kill her or hurt her daughters if she did not do so. at She contended that she could not “have formed the necessary mens rea for these crimes because she did not freely choose to commit the acts in question,” but we rejected that argument, explain ing that “[t]he duress defense, like the defense of necessity may excuse conduct that would otherwise be punish able, but the existence of duress normally does not contro vert any of the elements of the offense itself.” at In a footnote, we suggested one situation in which the prose cution might be required to disprove duress, namely, where a particular crime demands proof that the accused acted “maliciously,” which is to say “without justification or excuse.” n. (internal quotation marks omitted). The Court justifies its holding on the ground that the mens rea standard articulated in Nye & also falls within an exception to the general rule that proof of neces sity or duress does not negate mens rea. Ante, at 1, n. But the Court, having refrained on pages 11– of its opinion from deciding whether aiding and abetting re quires purposeful, as opposed to knowing, conduct, quickly and without explanation jettisons the “knowing” standard and concludes that purposeful conduct is needed. This is |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | standard and concludes that purposeful conduct is needed. This is a critical move because if it is enough for an alleged aider Cite as: 572 U. S. (201) 5 Opinion of ALITO, J. and abettor simply to know that his confederate is carry ing a gun, then the alleged aider and abettor in the Court’s hypothetical case (who spots the gun on the con federate’s person) unquestionably had the mens rea needed for conviction. But even accepting the Nye & standard as the exclusive means of proving the required mens rea, the Court’s analysis is still quite wrong. Under the Nye & standard, the Government must simply prove that a defendant had as his conscious object that the hypothet ical drug sale (which, as the defendant knew, included the carrying of a gun by one of the participants) go forward to completion. See Nye & 33 U.S., at 19. Such intent is perfectly consistent with facts supporting a ne cessity or duress defense. A person can certainly intend the success of a criminal enterprise that he aids on the belief that doing so will give rise to a lesser evil than his refusal to participate would bring about. The Court confuses two fundamentally distinct concepts: intent and motive. It seems to assume that, if a defend ant’s motive in aiding a criminal venture is to avoid some greater evil, he does not have the intent that the venture succeed. But the intent to undertake some act is of course perfectly consistent with the motive of avoiding adverse consequences which would otherwise occur. We can all testify to this from our daily experience. People wake up, go to work, balance their checkbooks, shop for groceries— and yes, commit crimes—because they believe something bad will happen if they do not do these things, not because the deepest desire of their heart is to do them. A person may only go to work in the morning to keep his or her family from destitution; that does not mean he or she does not intend to put in a full day’s work. In the same way, the fact that a defendant carries out a crime because he feels he must do so on pain of terrible consequences does not mean he does not intend to carry out the crime. When ROSEMOND v. UNITED STATES Opinion of ALITO, J. Jean Valjean stole a loaf of bread to feed his starving family, he certainly intended to commit theft; the fact that, had he been living in America today, he may have pleaded necessity as a defense |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | America today, he may have pleaded necessity as a defense does not change that fact. See V. Hugo, Les Misérables 5 Common-law commentators recognized this elementary distinction between intent and motive. As Sir James FitzJames Stephen explains, if “A puts a loaded pistol to B’s temple and shoots B through the head deliberately, [i]t is obvious that in every such case the intention of A must be to kill B.” 2 A History of the Criminal Law of England 1–111 (1883). This fact “throws no light what ever on A’s motives for killing B. They may have been infinitely various. The motive may have been a desire for revenge, or a desire for plunder, or a wish on A’s part to defend himself against an attack by B, or to put a man already mortally wounded out of his agony.” at 111. “In all these cases the intention is the same, but the motives are different, and in all the intention may remain unchanged from first to last whilst the motives may vary from moment to moment.” Unsurprisingly, our cases have recognized that a lawful motive (such as necessity, duress, or self-defense) is con sistent with the mens rea necessary to satisfy a require ment of intent. In 80 U.S. we considered whether due process permitted the State of Ohio to place the burden of proving self-defense on a de fendant charged with aggravated murder. Under the Ohio statute, aggravated murder consisted of “purposely, and with prior calculation and design, caus[ing] the death of another.” (alteration in original; internal quo tation marks omitted). Martin pleaded self-defense, which required her to prove that (1) she was “not at fault in creating the situation giving rise to the argument” with the victim, (2) she “had an honest belief that she was in Cite as: 572 U. S. (201) 7 Opinion of ALITO, J. imminent danger of death or great bodily harm, and that her only means of escape from such danger was in the use of force,” and (3) she “did not violate any duty to re treat or avoid danger.” Martin argued that due process did not permit the State to impose the burden of proving self-defense on her, because proving self-defense would necessarily negate the elements of aggravated murder, which the State was required to prove beyond a reasonable doubt. We disagreed, explaining that the elements which the State was required to prove to convict Martin were not the same as the elements which Martin was required to prove to prevail on her self-defense theory. By so holding, we recognized |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | prevail on her self-defense theory. By so holding, we recognized that a defend ant’s purpose to kill another is not incompatible with that defendant’s “honest belief that she was in imminent dan ger of death or great bodily harm” and that her use of force was necessary to preserve her life. In other words, the fact that a defendant intends to kill another only to avert mortal peril does not mean that the defend ant does not intend to kill. That principle plays out in a wide variety of cases. United 31 F.3d 7 provides a good example. There, the Ninth Circuit had to decide whether a defendant could constitutionally be required to bear the burden of proving duress as a defense to conviction under 8 U.S. C. § for attempted illegal reentry into the United States. Leal-Cruz pleaded duress, testifying that he entered the United States only to escape the deadly threat posed by abusive Mexican police officers who were chasing 31 F.3d, at 9. The Ninth Circuit had earlier held that the mens rea required for conviction for attempted illegal reentry was “purpose, i.e., conscious desire, to reenter the United States.” at 71. The Court of Appeals nevertheless found that the Constitution permitted imposition of the burden of proving duress on Leal-Cruz, because proving duress did not re 8 ROSEMOND v. UNITED STATES Opinion of ALITO, J. quire him to prove that he had not purposely entered the United States. As the Ninth Circuit explained, duress and the mens rea requirement of intent did not overlap be cause Leal-Cruz “had the ‘conscious desire’ to enter the country, even if the act of crossing the border was done to escape harm.” at 73. Thus, it seems inarguable to me that the existence of the purpose or intent to carry out a crime is perfectly compatible with facts giving rise to a necessity or duress defense. Once that proposition is established, the Court’s error is readily apparent. The Court requires the Gov ernment to prove that a defendant in Rosemond’s situa tion could have walked away without risking harm greater than he would cause by continuing with the crime— circumstances that traditionally would support a necessity or duress defense. It imposes this requirement on the Government despite the fact that such dangerous circum stances simply do not bear on whether the defendant intends the offense to succeed, as (on the Court’s reading) is required for aiding and abetting liability. The usual rule that a defendant bears the burden of proving affirmative defenses is justified by a compelling, commonsense intuition: “[W]here |
Justice Kagan | 2,014 | 3 | majority | Rosemond v. United States | https://www.courtlistener.com/opinion/2655590/rosemond-v-united-states/ | affirmative defenses is justified by a compelling, commonsense intuition: “[W]here the facts with regard to an issue lie peculiarly in the knowledge of a party, that party is best situated to bear the burden of proof.” Smith v. United States, 58 U. S. (slip op., at –7) (quoting 58 U.S., at 9; alteration in original and internal quotation marks omitted). By abandoning that rule in cases involving aiding and abetting of offenses, the Court creates a perverse arrangement whereby the prosecution must prove something that is peculiarly within the knowledge of the defendant. Imag ine that A aids B in committing a offense and claims that he only learned of the gun once the crime had begun. If A had the burden of proof, he might testify that B was a hothead who had previously shot others who had Cite as: 572 U. S. (201) 9 Opinion of ALITO, J. crossed But under the Court’s rule, the prosecution, in order to show the intent needed to convict A as an aider and abettor, presumably has the burden of proving that B was not such a person and that A did not believe him to be. How is the prosecution to do this? By offering testi mony by B’s friends and associates regarding his peaceful and easygoing nature? By introducing entries from A’s diary in which he reflects on the sense of safety he feels when carrying out criminal enterprises in B’s company? Furthermore, even if B were a hothead and A knew him to be such, A would presumably only be entitled to escape liability if he continued with the offense because of his fear of B’s reaction if he walked away. Under the Court’s rule, it is up to the Government to prove that A’s continued participation was not on account of his fear of B—but how? By introducing footage of a convenient security camera demonstrating that A’s eyes were not wide with fear, nor his breathing rapid? The Court’s rule breaks with the common-law tradition and our case law. It also makes no sense. I respectfully dissent from that portion of the Court’s opinion which places on the Government the burden of proving that the alleged aider and abettor of a offense had what the Court terms “a realistic opportunity” to refrain from en gaging in the conduct at issue |
Justice White | 1,976 | 6 | concurring | United States v. Gaddis | https://www.courtlistener.com/opinion/109391/united-states-v-gaddis/ | Because the Court deems this case distinguishable from it sees no occasion to consider the continuing validity of that decision; and I do not read the Court's opinion as reaffirming, in addition to describing, the Milanovich rule that a new trial is required when (1) a jury is erroneously permitted to convict a defendant both of bank robbery, 18 U.S. C. 2113 (a), (b), or (d), and of knowing possession of the proceeds of that robbery, 18 U.S. C. 2113 (c), and (2) there is evidence to support both convictions. As the Court states, a jury, having convicted on the robbery count, should stop there without going on to consider the possession count. If the jury is erroneously permitted, however, to consider and convict on the possession count as well, such a conviction casts absolutely no doubt on the validity of the robbery conviction. Under such circumstances it is not impossible to say upon which count, if either, a properly instructed jury would have convicted the defendant. It may be concluded with satisfactory certainty that the jury, having convicted for both offenses, would have convicted of robbery if it had been properly instructed. The verdict on the robbery count shows that the jury found each element of that *552 offense to have been established beyond a reasonable doubt. That the jury went on to find that the defendant also possessed the proceeds of the robberywhether on a different date and on different proof or notcasts no doubt on the trustworthiness of the findings on the robbery count. The problem of erroneously permitting the jury to consider and convict on two countson each of which, considered separately, the jury was properly instructedwhen they should have considered and convicted on only one bears no relation to that presented in in which the jury was permitted to convict on a single count on both a valid and an invalid theory. In Stromberg, it was impossible to know whether a properly instructed jury would have convicted the defendant of anything. In the class of cases governed by Milanovich, the robbery count is untainted by the fact that in addition to its finding of guilty on that count the jury also made findings on the possession count, for those findings are factually consistent with the findings on the robbery count. In all cases in which the court correctly instructs the jury on the elements of the crime of robbery, any resulting conviction and sentence should be sustained. In those cases in which the jury also convicts of possession, that conviction and any sentence on it |
Justice Scalia | 1,988 | 9 | majority | United States v. Owens | https://www.courtlistener.com/opinion/111992/united-states-v-owens/ | This case requires us to determine whether either the Confrontation Clause of the Sixth Amendment or Rule 802 of the Federal Rules of Evidence bars testimony concerning a prior, out-of-court identification when the identifying witness is *556 unable, because of memory loss, to explain the basis for the identification. I On April 12, John Foster, a correctional counselor at the federal prison in Lompoc, California, was attacked and brutally beaten with a metal pipe. His skull was fractured, and he remained hospitalized for almost a month. As a result of his injuries, Foster's memory was severely impaired. When Thomas Mansfield, an FBI agent investigating the assault, first attempted to interview Foster, on April 19, he found Foster lethargic and unable to remember his attacker's name. On May 5, Mansfield again spoke to Foster, who was much improved and able to describe the attack. Foster named respondent as his attacker and identified respondent from an array of photographs. Respondent was tried in Federal District Court for assault with intent to commit murder under 18 U.S. C. 113(a). At trial, Foster recounted his activities just before the attack, and described feeling the blows to his head and seeing blood on the floor. He testified that he clearly remembered identifying respondent as his assailant during his May 5th interview with Mansfield. On cross-examination, he admitted that he could not remember seeing his assailant. He also admitted that, although there was evidence that he had received numerous visitors in the hospital, he was unable to remember any of them except Mansfield, and could not remember whether any of these visitors had suggested that respondent was the assailant. Defense counsel unsuccessfully sought to refresh his recollection with hospital records, including one indicating that Foster had attributed the assault to someone other than respondent. Respondent was convicted and sentenced to 20 years' imprisonment to be served consecutively to a previous sentence. On appeal, the United States Court of Appeals for the Ninth Circuit considered challenges based on the Confrontation *557 Clause and Rule 802 of the Federal Rules of Evidence.[1] By divided vote it upheld both challenges (though finding the Rule 802 violation harmless error), and reversed the judgment of the District Court. We granted certiorari, to resolve the conflict with other Circuits on the significance of a hearsay declarant's memory loss both with respect to the Confrontation Clause, see, e. g., United States ex rel. and with respect to Rule 802, see, e. g., United cert. denied, II The Confrontation Clause of the Sixth Amendment gives the accused the right "to be confronted with the |
Justice Scalia | 1,988 | 9 | majority | United States v. Owens | https://www.courtlistener.com/opinion/111992/united-states-v-owens/ | gives the accused the right "to be confronted with the witnesses against him." This has long been read as securing an adequate opportunity to cross-examine adverse witnesses. See, e. g., ; This Court has never held that a Confrontation Clause violation can be founded upon a witness' loss of memory, but in two cases has expressly left that possibility open. In we found no constitutional violation in the admission of testimony that had been given at a preliminary hearing, relying on (as one of two independent grounds) the proposition that the opportunity to cross-examine the witness at trial satisfied the Sixth Amendment's requirements. We declined, however, to decide the admissibility of the same witness' out-of-court statement to a police officer concerning events that at trial he was unable to recall. In remanding on this point, we *558 noted that the state court had not considered, and the parties had not briefed, the possibility that the witness' memory loss so affected the petitioner's right to cross-examine as to violate the Confrontation Clause.[2] at 168-169. Justice Harlan, in a scholarly concurrence, stated that he would have reached the issue of the out-of-court statement, and would have held that a witness' inability to "recall either the underlying events that are the subject of an extra-judicial statement or previous testimony or recollect the circumstances under which the statement was given, does not have Sixth Amendment consequence." In we determined that there was no Confrontation Clause violation when an expert witness testified as to what opinion he had formed, but could not recollect the basis on which he had formed it. We said: "The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony." Our opinion noted that a defendant seeking to discredit a forgetful expert witness is not without ammunition, since the jury may be persuaded that "his opinion is as unreliable as his memory." We distinguished, however, the unresolved issue in on the basis that that involved the introduction of an out-of-court *559 JUSTICE STEVENS, concurring in the judgment, suggested that the question at hand was in fact quite close to the question left open in -24. Here that question is squarely presented, and we agree with the answer suggested 18 years ago |
Justice Scalia | 1,988 | 9 | majority | United States v. Owens | https://www.courtlistener.com/opinion/111992/united-states-v-owens/ | and we agree with the answer suggested 18 years ago by Justice Harlan. "[T]he Confrontation Clause guarantees only `an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' " quoting ; ; As demonstrates, that opportunity is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief. It is sufficient that the defendant has the opportunity to bring out such matters as the witness' bias, his lack of care and attentiveness, his poor eyesight, and even ) the very fact that he has a bad memory. If the ability to inquire into these matters suffices to establish the constitutionally requisite opportunity for cross-examination when a witness testifies as to his current belief, the basis for which he cannot recall, we see no reason why it should not suffice when the witness' past belief is introduced and he is unable to recollect the reason for that past belief. In both cases the foundation for the belief (current or past) cannot effectively be elicited, but other means of impugning the belief are available. Indeed, if there is any difference in persuasive impact between the statement "I believe this to be the man who assaulted me, but can't remember why" and the statement "I don't know whether this is the man who assaulted me, but I told the police I believed so earlier," the former would seem, if anything, more damaging and hence give rise to a greater need for memory-testing, if that is to be considered essential to an opportunity for effective cross-examination. *560 We conclude with respect to this latter example, as we did in with respect to the former, that it is not. The weapons available to impugn the witness' statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee. They are, however, realistic weapons, as is demonstrated by defense counsel's summation in this very case, which emphasized Foster's memory loss and argued that his identification of respondent was the result of the suggestions of people who visited him in the hospital. Our constitutional analysis is not altered by the fact that the testimony here involved an out-of-court identification that would traditionally be categorized as hearsay. See Advisory Committee's Notes on Fed. Rule Evid. 801(d)(1)(C), 28 U.S. C. App., p. 717. This Court has recognized a partial (and somewhat indeterminate) overlap between the requirements of the traditional hearsay rule and the Confrontation Clause. See -156; The dangers |
Justice Scalia | 1,988 | 9 | majority | United States v. Owens | https://www.courtlistener.com/opinion/111992/united-states-v-owens/ | hearsay rule and the Confrontation Clause. See -156; The dangers associated with hearsay inspired the Court of Appeals in the present case to believe that the Constitution required the testimony to be examined for "indicia of reliability," or "particularized guarantees of trustworthiness," We do not think such an inquiry is called for when a hearsay declarant is present at trial and subject to unrestricted cross-examination. In that situation, as the Court recognized in the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness' demeanor satisfy the constitutional requirements. -161. We do not think that a constitutional line drawn by the Confrontation Clause falls between a forgetful witness' live testimony that he once believed this defendant to be the perpetrator of the crime, and the introduction of the witness' earlier statement to that effect. *561 Respondent has argued that this Court's jurisprudence concerning suggestive identification procedures shows the special dangers of identification testimony, and the special importance of cross-examination when such hearsay is proffered. See, e. g., ; Respondent has not, however, argued that the identification procedure used here was in any way suggestive. There does not appear in our opinions, and we decline to adopt today, the principle that, because of the mere possibility of suggestive procedures, out-of-court statements of identification are inherently less reliable than other out-of-court statements. III Respondent urges as an alternative basis for affirmance a violation of Federal Rule of Evidence 802, which generally excludes hearsay. Rule 801(d)(1)(C) defines as not hearsay a prior statement "of identification of a person made after perceiving the person," if the declarant "testifies at the trial or hearing and is subject to cross-examination concerning the " The Court of Appeals found that Foster's identification statement did not come within this exclusion because his memory loss prevented his being "subject to cross-examination concerning the " Although the Court of Appeals concluded that the violation of the Rules of Evidence was harmless (applying for purposes of that determination a "more-probable-than-not" standard, rather than the "beyond-a-reasonable-doubt" standard applicable to the Confrontation Clause violation, see ), respondent argues to the contrary. It seems to us that the more natural reading of "subject to cross-examination concerning the statement" includes what was available here. Ordinarily a witness is regarded as "subject to cross-examination" when he is placed on the stand, under oath, and responds willingly to questions. Just as with the constitutional prohibition, limitations on the scope *562 of examination by the trial court or assertions of privilege by the witness may undermine the process to such a degree that |
Justice Scalia | 1,988 | 9 | majority | United States v. Owens | https://www.courtlistener.com/opinion/111992/united-states-v-owens/ | witness may undermine the process to such a degree that meaningful cross-examination within the intent of the Rule no longer exists. But that effect is not produced by the witness' assertion of memory loss which, as discussed earlier, is often the very result sought to be produced by cross-examination, and can be effective in destroying the force of the prior Rule 801(d)(1)(C), which specifies that the cross-examination need only "concer[n] the statement," does not on its face require more. This reading seems even more compelling when the Rule is compared with Rule 804(a)(3), which defines "[u]navailability as a witness" to include situations in which a declarant "testifies to a lack of memory of the subject matter of the declarant's " Congress plainly was aware of the recurrent evidentiary problem at issue here witness forgetfulness of an underlying event but chose not to make it an exception to Rule 801(d)(1)(C). The reasons for that choice are apparent from the Advisory Committee's Notes on Rule 801 and its legislative history. The premise for Rule 801(d)(1)(C) was that, given adequate safeguards against suggestiveness, out-of-court identifications were generally preferable to courtroom identifications. Advisory Committee's Notes on Rule 801, 28 U.S. C. App., p. 717. Thus, despite the traditional view that such statements were hearsay, the Advisory Committee believed that their use was to be fostered rather than discouraged. Similarly, the House Report on the Rule noted that since, "[a]s time goes by, a witness' memory will fade and his identification will become less reliable," minimizing the barriers to admission of more contemporaneous identification is fairer to defendants and prevents "cases falling through because the witness can no longer recall the identity of the person he saw commit the crime." H. R. Rep. No. 94-355, p. 3 (1975). See also S. Rep. No. 94-199, p. 2 (1975). To judge from the House and Senate Reports, Rule 801(d)(1)(C) was in part directed *563 to the very problem here at issue: a memory loss that makes it impossible for the witness to provide an in-court identification or testify about details of the events underlying an earlier identification. Respondent argues that this reading is impermissible because it creates an internal inconsistency in the Rules, since the forgetful witness who is deemed "subject to cross-examination" under 801(d)(1)(C) is simultaneously deemed "unavailable" under 804(a)(3). This is the position espoused by a prominent commentary on the Rules, see 4 J. Weinstein & M. Berger, Weinstein's Evidence 801-120 to 801-121, 801-178 It seems to us, however, that this is not a substantive inconsistency, but only a semantic oddity resulting |
Justice Scalia | 1,988 | 9 | majority | United States v. Owens | https://www.courtlistener.com/opinion/111992/united-states-v-owens/ | not a substantive inconsistency, but only a semantic oddity resulting from the fact that Rule 804(a) has for convenience of reference in Rule 804(b) chosen to describe the circumstances necessary in order to admit certain categories of hearsay testimony under the rubric "Unavailability as a witness." These circumstances include not only absence from the hearing, but also claims of privilege, refusals to obey a court's order to testify, and inability to testify based on physical or mental illness or memory loss. Had the rubric instead been "unavailability as a witness, memory loss, and other special circumstances" there would be no apparent inconsistency with Rule 801, which is a definition section excluding certain statements entirely from the category of "hearsay." The semantic inconsistency exists not only with respect to Rule 801(d)(1)(C), but also with respect to the other subparagraphs of Rule 801(d)(1). It would seem strange, for example, to assert that a witness can avoid introduction of testimony from a prior proceeding that is inconsistent with his trial testimony, see Rule 801(d)(1)(A), by simply asserting lack of memory of the facts to which the prior testimony related. See United cert. denied, But that situation, like this one, presents the verbal curiosity that the witness is "subject to cross-examination" under Rule 801 *564 while at the same time "unavailable" under Rule 804(a)(3). Quite obviously, the two characterizations are made for two entirely different purposes and there is no requirement or expectation that they should coincide. For the reasons stated, we hold that neither the Confrontation Clause nor Federal Rule of Evidence 802 is violated by admission of an identification statement of a witness who is unable, because of a memory loss, to testify concerning the basis for the identification. The decision of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. So ordered. JUSTICE KENNEDY took no part in the consideration or decision of this case. |
Justice Rehnquist | 2,000 | 19 | dissenting | Indianapolis v. Edmond | https://www.courtlistener.com/opinion/118391/indianapolis-v-edmond/ | The State's use of a drug-sniffing dog, according to the Court's holding, annuls what is otherwise plainly constitutional under our Fourth Amendment jurisprudence: brief, standardized, discretionless, roadblock seizures of automobiles, seizures which effectively serve a weighty state interest with only minimal intrusion on the privacy of their occupants. Because these seizures serve the State's accepted and significant interests of preventing drunken driving and checking for driver's licenses and vehicle registrations, and because there is nothing in the record to indicate that the addition of the dog sniff lengthens these otherwise legitimate seizures, I dissent. *49 I As it is nowhere to be found in the Court's opinion, I begin with blackletter roadblock seizure law. "The principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop." United Roadblock seizures are consistent with the Fourth Amendment if they are "carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." Specifically, the constitutionality of a seizure turns upon "a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." at 50-. We first applied these principles in which approved highway checkpoints for detecting illegal aliens. In we balanced the United States' formidable interest in checking the flow of illegal immigrants against the limited "objective" and "subjective" intrusion on the motorists. The objective intrusionthe stop itself,[1] the brief questioning of the occupants, and the visual inspection of the carwas considered "limited" because "[n]either the vehicle nor its occupants [were] searched." Likewise, the subjective intrusion, or the fear and surprise engendered in law-abiding motorists by the nature of the stop, was found to be minimal because the "regularized manner in which [the] established checkpoints [were] operated [was] visible evidence, reassuring to law-abiding motorists, that the stops [were] duly authorized and believed to serve the public interest." Indeed, the standardized operation of the roadblocks was viewed as *50 markedly different from roving patrols, where the unbridled discretion of officers in the field could result in unlimited interference with motorists' use of the highways. Cf. United And although the decision in did not turn on the checkpoints' effectiveness, the record in one of the consolidated cases demonstrated that illegal aliens were found in 0.12 percent of the stopped vehicles. See In Michigan Dept. of State we upheld the State's use of a highway sobriety checkpoint after applying the framework set out in and There, we recognized the gravity of the State's interest |
Justice Rehnquist | 2,000 | 19 | dissenting | Indianapolis v. Edmond | https://www.courtlistener.com/opinion/118391/indianapolis-v-edmond/ | and There, we recognized the gravity of the State's interest in curbing drunken driving and found the objective intrusion of the approximately 25-second seizure to be "slight." 496 U.S., at 4. Turning to the subjective intrusion, we noted that the checkpoint was selected pursuant to guidelines and was operated by uniformed officers. See Finally, we concluded that the program effectively furthered the State's interest because the checkpoint resulted in the arrest of two drunk drivers, or 1.6 percent of the 126 drivers stopped. See This case follows naturally from and Sitz. Petitioners acknowledge that the "primary purpose" of these roadblocks is to interdict illegal drugs, but this fact should not be controlling. Even accepting the Court's conclusion that the checkpoints at issue in and Sitz were not primarily related to criminal law enforcement,[2] the * question whether a law enforcement purpose could support a roadblock seizure is not presented in this case. The District Court found that another "purpose of the checkpoints is to check driver's licenses and vehicle registrations," App. to Pet. for Cert. 44a, and the written directives state that the police officers are to "[l]ook for signs of impairment," at 53a. The use of roadblocks to look for signs of impairment was validated by Sitz, and the use of roadblocks to check for driver's licenses and vehicle registrations was expressly recognized in[3] That the roadblocks serve these legitimate state interests cannot be seriously disputed, as the 49 people arrested for offenses unrelated to drugs can attest. And it would be speculative to concludegiven the District Court's findings, the written directives, and the actual arreststhat petitioners would not have operated these roadblocks but for the State's interest in interdicting drugs. Because of the valid reasons for conducting these roadblock seizures, it is constitutionally irrelevant that petitioners also hoped to interdict drugs. In 7 U.S. 806 we held that an officer's subjective intent would not invalidate an otherwise objectively justifiable stop of an automobile. The reasonableness of an officer's discretionary decision to stop an automobile, at issue in Whren, turns on whether there is probable cause to believe that a traffic violation has occurred. The reasonableness of highway checkpoints, at issue here, turns on whether they effectively serve a significant state interest with minimal intrusion on motorists. The stop in Whren was objectively reasonable because the police officers had witnessed traffic violations; so too the roadblocks here are objectively *52 reasonable because they serve the substantial interests of preventing drunken driving and checking for driver's licenses and vehicle registrations with minimal intrusion on motorists. Once the constitutional requirements for |
Justice Rehnquist | 2,000 | 19 | dissenting | Indianapolis v. Edmond | https://www.courtlistener.com/opinion/118391/indianapolis-v-edmond/ | with minimal intrusion on motorists. Once the constitutional requirements for a particular seizure are satisfied, the subjective expectations of those responsible for it, be it police officers or members of a city council, are irrelevant. Cf. It is the objective effect of the State's actions on the privacy of the individual that animates the Fourth Amendment. See Because the objective intrusion of a valid seizure does not turn upon anyone's subjective thoughts, neither should our constitutional analysis.[4] With these checkpoints serving two important state interests, the remaining prongs of the balancing test are easily met. The seizure is objectively reasonable as it lasts, on average, two to three minutes and does not involve a search. App. to Pet. for Cert. 57a. The subjective intrusion is likewise limited as the checkpoints are clearly marked and operated by uniformed officers who are directed to stop every vehicle in the same manner. The only difference between this case and Sitz is the presence of the dog. We have already held, however, that a "sniff test" by a trained narcotics dog is not a "search" within the meaning of the Fourth Amendment because it does not require physical intrusion of the object being sniffed and it does not expose *53 anything other than the contraband items. United And there is nothing in the record to indicate that the dog sniff lengthens the stop. Finally, the checkpoints' success rate49 arrests for offenses unrelated to drugsonly confirms the State's legitimate interests in preventing drunken driving and ensuring the proper licensing of drivers and registration of their vehicles. 183 F.3d, at[5] These stops effectively serve the State's legitimate interests; they are executed in a regularized and neutral manner; and they only minimally intrude upon the privacy of the motorists. They should therefore be constitutional. II The Court, unwilling to adopt the straightforward analysis that these precedents dictate, adds a new non-lawenforcement primary purpose test lifted from a distinct area of Fourth Amendment jurisprudence relating to the searches of homes and businesses. As discussed above, the question that the Court answers is not even posed in this case given the accepted reasons for the seizures. But more fundamentally, whatever sense a non-law-enforcement primary purpose test may make in the search setting, it is ill suited to brief roadblock seizures, where we have consistently looked at "the scope of the stop" in assessing a program's constitutionality. We have already rejected an invitation to apply the nonlaw-enforcement primary purpose test that the Court now finds so indispensable. The respondents in Sitz argued that the balancing test was not the "proper |
Justice Rehnquist | 2,000 | 19 | dissenting | Indianapolis v. Edmond | https://www.courtlistener.com/opinion/118391/indianapolis-v-edmond/ | Sitz argued that the balancing test was not the "proper method of analysis" with regards to roadblock seizures: "Respondents argue that there must be a showing of some special governmental need `beyond the normal *54 need' for criminal law enforcement before a balancing analysis is appropriate, and that [the State] ha[s] demonstrated no such special need. "But it is perfectly plain from a reading of [Treasury Employees v.] Von Raab [, ], which cited and discussed with approval our earlier decision in United that it was in no way designed to repudiate our prior cases dealing with police stops of motorists on public highways. which utilized a balancing analysis in approving highway checkpoints for detecting illegal aliens, and are the relevant authorities here." 450. Considerations of stare decisis aside, the "perfectly plain" reason for not incorporating the "special needs" test in our roadblock seizure cases is that seizures of automobiles "deal neither with searches nor with the sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection." The "special needs" doctrine, which has been used to uphold certain suspicionless searches performed for reasons unrelated to law enforcement, is an exception to the general rule that a search must be based on individualized suspicion of wrongdoing. See, e. g., ; The doctrine permits intrusions into a person's body and home, areas afforded the greatest Fourth Amendment protection. But there were no such intrusions here. "[O]ne's expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one's residence." This is because "[a]utomobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls." South *55 ; see also New ; The lowered expectation of privacy in one's automobile is coupled with the limited nature of the intrusion: a brief, standardized, nonintrusive seizure.[6] The brief seizure of an automobile can hardly be compared to the intrusive search of the body or the home. Thus, just as the "special needs" inquiry serves to both define and limit the permissible scope of those searches, the balancing test serves to define and limit the permissible scope of automobile seizures. Because of these extrinsic limitations upon roadblock seizures, the Court's newfound non-law-enforcement primary purpose test is both unnecessary to secure Fourth Amendment rights and bound to produce wide-ranging litigation over the "purpose" of any given seizure. Police designing highway roadblocks can never be sure of their validity, since a jury might later determine that a forbidden purpose exists. Roadblock stops identical to the one that we upheld in Sitz 10 |
Justice Rehnquist | 2,000 | 19 | dissenting | Indianapolis v. Edmond | https://www.courtlistener.com/opinion/118391/indianapolis-v-edmond/ | identical to the one that we upheld in Sitz 10 years ago, or to the one that we upheld 24 years ago in may now be challenged on the grounds that they have some concealed forbidden purpose. Efforts to enforce the law on public highways used by millions of motorists are obviously necessary to our society. The Court's opinion today casts a shadow over what had been assumed, on the basis of stare decisis, to be a perfectly lawful activity. Conversely, if the Indianapolis police had assigned a different purpose to their activity here, but in no way changed what was done on the ground to individual *56 motorists, it might well be valid. See ante, at 47, n. 2. The Court's non-law-enforcement primary purpose test simply does not serve as a proxy for anything that the Fourth Amendment is, or should be, concerned about in the automobile seizure context. Petitioners' program complies with our decisions regarding roadblock seizures of automobiles, and the addition of a dog sniff does not add to the length or the intrusion of the stop. Because such stops are consistent with the Fourth Amendment, I would reverse the decision of the Court of Appeals. |
Justice Scalia | 1,992 | 9 | dissenting | Eastman Kodak Co. v. Image Technical Services, Inc. | https://www.courtlistener.com/opinion/112744/eastman-kodak-co-v-image-technical-services-inc/ | This is not, as the Court describes it, just "another case that concerns the standard for summary judgment in an antitrust controversy." Ante, at 454. Rather, the case presents a very narrowbut extremely importantquestion of substantive antitrust law: whether, for purposes of applying our per se rule condemning "ties," and for purposes of applying our exacting rules governing the behavior of would-be monopolists, a manufacturer's conceded lack of power in the interbrand market for its equipment is somehow consistent with its possession of "market," or even "monopoly," power in wholly derivative aftermarkets for that equipment. n my view, the Court supplies an erroneous answer to this question, and dissent. Per se rules of antitrust illegality are reserved for those situations where logic and experience show that the risk of injury to competition from the defendant's behavior is so pronounced that it is needless and wasteful to conduct the usual judicial inquiry into the balance between the behavior's procompetitive *487 benefits and its anticompetitive costs. See, e. g., "The character of the restraint produced by [behavior to which a per se rule applies] is considered a sufficient basis for presuming unreasonableness without the necessity of any analysis of the market context in which the [behavior] may be found." Jefferson Hospital Dist. No. The per se rule against tying is just such a rule: Where the conditions precedent to application of the rule are met, i. e., where the tying arrangement is backed up by the defendant's market power in the "tying" product, the arrangement is adjudged in violation of 1 of the Sherman Act, 15 U.S. C. 1 (188 ed., Supp. ), without any inquiry into the practice's actual effect on competition and consumer welfare. But see United (ED Pa. 160), aff'd, (161) (accepting affirmative defense to per se tying allegation). Despite intense criticism of the tying doctrine in academic circles, see, e. g., R. Bork, The Antitrust Paradox 365-381 (178), the stated rationale for our per se rule has varied little over the years. When the defendant has genuine "market power" in the tying productthe power to raise price by reducing outputthe tie potentially enables him to extend that power into a second distinct market, enhancing barriers to entry in each. n addition: "[T]ying arrangements may be used to evade price control in the tying product through clandestine transfer of the profit to the tied product; they may be used as a counting device to effect price discrimination; and they may be used to force a full line of products on the customer so as to extract more easily from |
Justice Scalia | 1,992 | 9 | dissenting | Eastman Kodak Co. v. Image Technical Services, Inc. | https://www.courtlistener.com/opinion/112744/eastman-kodak-co-v-image-technical-services-inc/ | on the customer so as to extract more easily from him a monopoly return on one unique product in the line." Fortner En- terprises, 34 U.S. 45, (16) (footnotes omitted). *488 For these reasons, as we explained in Jefferson "the law draws a distinction between the exploitation of market power by merely enhancing the price of the tying product, on the one hand, and by attempting to impose restraints on competition in the market for a tied product, on the other." Our 2 monopolization doctrines are similarly directed to discrete situations in which a defendant's possession of substantial market power, combined with his exclusionary or anticompetitive behavior, threatens to defeat or forestall the corrective forces of competition and thereby sustain or extend the defendant's agglomeration of power. See United (166). Where a defendant maintains substantial market power, his activities are examined through a special lens: Behavior that might otherwise not be of concern to the antitrust lawsor that might even be viewed as procompetitivecan take on exclusionary connotations when practiced by a monopolist. 3 P. Areeda & D. Turner, Antitrust Law pp. 300-302 (178) (hereinafter 3 Areeda & Turner). The concerns, however, that have led the courts to heightened scrutiny both of the "exclusionary conduct" practiced by a monopolist and of tying arrangements subject to per se prohibition, are completely without force when the participants lack market power. As to the former, "[t]he [very] definition of exclusionary conduct," as practiced by a monopolist, is "predicated on the existence of substantial market power." at 301; see, e. g., Walker Process Equipment, (165) ; Standard Oil Co. of New (111) ; 3 Areeda & Turner ¶ 724, at 15-17 (vertical integration). And with respect to tying, we have recognized that bundling arrangements not coerced by the heavy hand of market power can serve the procompetitive functions of facilitating new entry into certain *48 markets, see, e. g., Brown Shoe 370 U.S. 24, (162), permitting "clandestine price cutting in products which otherwise would have no price competition at all because of fear of retaliation from the few other producers dealing in the market," Fortner at 514, n. assuring quality control, see, e. g., Standard Oil Co. of 337 U.S. 23, (14), and, where "the tied and tying products are functionally related, reduc[ing] costs through economies of joint production and distribution." Fortner at 514, n. "Accordingly, we have [only] condemned tying arrangements [under the per se rule] when the seller has some special abilityusually called `market power'to force a purchaser to do something that he would not do in a competitive market." Jefferson The |
Justice Scalia | 1,992 | 9 | dissenting | Eastman Kodak Co. v. Image Technical Services, Inc. | https://www.courtlistener.com/opinion/112744/eastman-kodak-co-v-image-technical-services-inc/ | he would not do in a competitive market." Jefferson The Court today finds in the typical manufacturer's inherent power over its own brand of equipmentover the sale of distinctive repair parts for that equipment, for example the sort of "monopoly power" sufficient to bring the sledgehammer of 2 into play. And, not surprisingly in light of that insight, it readily labels single-brand power over aftermarket products "market power" sufficient to permit an antitrust plaintiff to invoke the per se rule against tying. n my opinion, this makes no economic sense. The holding that market power can be found on the present record causes these venerable rules of selective proscription to extend well beyond the point where the reasoning that supports them leaves off. Moreover, because the sort of power condemned by the Court today is possessed by every manufacturer of durable goods with distinctive parts, the Court's opinion threatens to release a torrent of litigation and a flood of commercial intimidation that will do much more harm than good to enforcement of the antitrust laws and to genuine competition. shall explain, in Parts and respectively, how neither logic nor experience suggests, let alone compels, application *40 of the per se tying prohibition and monopolization doctrine to a seller's behavior in its single-brand aftermarkets, when that seller is without power at the interbrand level. On appeal in the Ninth Circuit, respondents, having waived their "rule of reason" claim, were limited to arguing that the record, construed in the light most favorable to them, v. Liberty Lobby, nc., (186), supported application of the per se tying prohibition to Kodak's restrictive parts and service policy. See 03 F.2d 612, (10). As the Court observes, in order to survive Kodak's motion for summary judgment on this claim, respondents bore the burden of proffering evidence on which a reasonable trier of fact could conclude that Kodak possesses power in the market for the alleged "tying" product. See ante, at 464; Jefferson 466 U. S., A We must assume, for purposes of deciding this case, that petitioner is without market, much less monopoly, power in the interbrand markets for its micrographic and photocopying equipment. See ante, at 465-466, n. 10; Oklahoma (185). n the District Court, respondents did, in fact, include in their complaint an allegation which posited the interbrand equipment markets as the relevant markets; in particular, they alleged a 1 "tie" of micrographic and photocopying equipment to the parts and service for those machines. App. 22-23. Though this allegation was apparently abandoned in pursuit of 1 and 2 claims focused exclusively on the parts |
Justice Scalia | 1,992 | 9 | dissenting | Eastman Kodak Co. v. Image Technical Services, Inc. | https://www.courtlistener.com/opinion/112744/eastman-kodak-co-v-image-technical-services-inc/ | of 1 and 2 claims focused exclusively on the parts and service aftermarkets (about which more later), think it helpful to analyze how that claim would have fared under the per se rule. Had Kodakfrom the date of its entry into the micrographic and photocopying equipment marketsincluded a lifetime parts and service warranty with all original equipment, *41 or required consumers to purchase a lifetime parts and service contract with each machine, that bundling of equipment, parts, and service would no doubt constitute a tie under the tests enunciated in Jefferson Nevertheless, it would be immune from per se scrutiny under the antitrust laws because the tying product would be equipment, a market in which (we assume) Kodak has no power to influence price or quantity. See ; United States Steel v. Fortner Enterprises, nc., 42 U.S. 610, (177) (Fortner ); Northern Pacific R. (158). The same result would obtain, think, had Kodakfrom the date of its market entry consistently pursued an announced policy of limiting parts sales in the manner alleged in this case, so that customers bought with the knowledge that aftermarket support could be obtained only from Kodak. The foreclosure of respondents from the business of servicing Kodak's micrographic and photocopying machines in these illustrations would be undeniably completeas complete as the foreclosure described in respondents' complaint. Nonetheless, we would inquire no further than to ask whether Kodak's market power in the equipment market effectively forced consumers to purchase Kodak micrographic or photocopying machines subject to the company's restrictive aftermarket practices. f not, that would end the case insofar as the per se rule was concerned. See Jefferson ; P. Areeda, Antitrust Law ¶ 170c5, pp. 101-102 (11); Klein & Saft, The Law and Economics of Franchise Tying Contracts, 28 J. Law & Econ. 345, 356 (185). The evils against which the tying prohibition is directed would simply not be presented. nterbrand competition would render Kodak powerless to gain economic power over an additional class of consumers, to price discriminate by charging each customer a "system" price equal to the system's economic value to that customer, or to raise barriers to entry in the interbrand equipment markets. See 3 Areeda & Turner ¶ 82d, at 331-332. *42 have described these illustrations as hypothetical, but in fact they are not far removed from this case. The record below is consistentin large partwith just this sort of bundling of equipment on the one hand, with parts and service on the other. The restrictive parts policy, with respect to micrographic equipment at least, was not even alleged to be anything |
Justice Scalia | 1,992 | 9 | dissenting | Eastman Kodak Co. v. Image Technical Services, Inc. | https://www.courtlistener.com/opinion/112744/eastman-kodak-co-v-image-technical-services-inc/ | equipment at least, was not even alleged to be anything but prospective. See App. 17. As respondents summarized their factual proffer below: "Under this policy, Kodak cut off parts on new products to Kodak micrographics [independent service organizations] SOs. The effect of this, of course, was that as customers of Kodak micrographics SOs obtained new equipment, the SOs were unable to service the equipment for that customer, and, service for these customers was lost by the Kodak SOs. Additionally, as equipment became obsolete, and the equipment population became all "new equipment" (post April 185 models), Kodak micrographics SOs would be able to service no equipment at all." As to Kodak copiers, Kodak's restrictive parts policy had a broader foundation: Considered in the light most favorable to respondents, see at the record suggests that, from its inception, the policy was applied to new and existing copier customers alike. But at least all post185 purchasers of micrographic equipment, like all post185 purchasers of new Kodak copiers, could have been aware of Kodak's parts practices. The only thing lacking to bring all of these purchasers (accounting for the vast bulk of the commerce at issue here) squarely within the hypotheticals we have described is concrete evidence that the restrictive parts policy was announced or generally known. Thus, under the Court's approach the existence vel non of such evidence is determinative of the legal standard (the per se rule versus the rule of reason) under which the alleged tie is examined. n my judgment, this makes no sense. t is *43 quite simply anomalous that a manufacturer functioning in a competitive equipment market should be exempt from the per se rule when it bundles equipment with parts and service, but not when it bundles parts with service. This vast difference in the treatment of what will ordinarily be economically similar phenomena is alone enough to call today's decision into question. B n the Court of Appeals, respondents sought to sidestep the impediment posed by interbrand competition to their invocation of the per se tying rule by zeroing in on the parts and service "aftermarkets" for Kodak equipment. By alleging a tie of parts to service, rather than of equipment to parts and service, they identified a tying product in which Kodak unquestionably held a near-monopoly share: the parts uniquely associated with Kodak's brand of machines. See Jefferson The Court today holds that such a facial showing of market share in a single-brand aftermarket is sufficient to invoke the per se rule. The existence of even vibrant interbrand competition is no defense. See ante, at |
Justice Scalia | 1,992 | 9 | dissenting | Eastman Kodak Co. v. Image Technical Services, Inc. | https://www.courtlistener.com/opinion/112744/eastman-kodak-co-v-image-technical-services-inc/ | even vibrant interbrand competition is no defense. See ante, at 470-471. find this a curious form of market power on which to premise the application of a per se proscription. t is enjoyed by virtually every manufacturer of durable goods requiring aftermarket support with unique, or relatively unique, goods. See P. Areeda & H. Hovenkamp, Antitrust Law ¶ 525.1, p. 563 (Supp. 11). "[S]uch reasoning makes every maker of unique parts for its own product a holder of market power no matter how unimportant its product might be in the market. " bid.[1] Under *44 the Court's analysis, the per se rule may now be applied to single-brand ties effected by the most insignificant players in fully competitive interbrand markets, as long as the arrangement forecloses aftermarket competitors from more than a de minimis amount of business, Fortner 34 U. S., at 501. This seems to me quite wrong. A tying arrangement "forced" through the exercise of such power no more implicates the leveraging and price discrimination concerns behind the per se tying prohibition than does a tie of the foremarket brand to its aftermarket derivatives, whichas have explainedwould not be subject to per se condemnation.[2] As implemented, the Kodak arrangement challenged *45 in this case may have implicated truth-in-advertising or other consumer protection concerns, but those concerns do not alone suggest an antitrust prohibition. See, e. g., Town Sound and Custom Tops, nc. v. Chrysler Motors 5 F.2d 468 (CA3 12) n the absence of interbrand power, a seller's predominant or monopoly share of its single-brand derivative markets does not connote the power to raise derivative market prices generally by reducing quantity. As Kodak and its principal amicus, the United States, point out, a rational consumer considering the purchase of Kodak equipment will inevitably factor into his purchasing decision the expected cost of aftermarket support. "[B]oth the price of the equipment and the price of parts and service over the life of the equipment are expenditures that are necessary to obtain copying and micrographic services." Brief for United States as Amicus Curiae 13. f Kodak set generally supracompetitive prices for either spare parts or repair services without making an offsetting reduction in the price of its machines, rational consumers would simply turn to Kodak's competitors for photocopying and micrographic systems. See, e. g., Grappone, nc. v. Subaru of New England, nc., 858 F.2d 72, 78 (CA1 188). True, there areas the Court notes, see ante, at 474-4the occasional irrational consumers that consider only the hardware cost at the time of purchase (a category that regrettably includes the Federal Government, |
Justice Scalia | 1,992 | 9 | dissenting | Eastman Kodak Co. v. Image Technical Services, Inc. | https://www.courtlistener.com/opinion/112744/eastman-kodak-co-v-image-technical-services-inc/ | of purchase (a category that regrettably includes the Federal Government, whose "purchasing system," we are told, assigns foremarket purchases and aftermarket purchases to different entities). But *46 we have never before premised the application of antitrust doctrine on the lowest common denominator of consumer. The Court attempts to counter this theoretical point with a theory of its own. t says that there are "information costs"the costs and inconvenience to the consumer of acquiring and processing life-cycle pricing data for Kodak machinesthat "could create a less responsive connection between service and parts prices and equipment sales." Ante, at 473. But this truism about the functioning of markets for sophisticated equipment cannot create "market power" of concern to the antitrust laws where otherwise there is none. "nformation costs," or, more accurately, gaps in the availability and quality of consumer information, pervade real-world markets; and because consumers generally make do with "rough cut" judgments about price in such circumstances, in virtually any market there are zones within which otherwise competitive suppliers may overprice their products without losing appreciable market share. We have never suggested that the principal players in a market with such commonplace informational deficiencies (and, thus, bands of apparent consumer pricing indifference) exercise market power in any sense relevant to the antitrust laws. "While [such] factors may generate `market power' in some abstract sense, they do not generate the kind of market power that justifies condemnation of tying." Jefferson ; see, e. g., Town Sound and Custom Tops, nc. v. Chrysler Motors Respondents suggest that, even if the existence of interbrand competition prevents Kodak from raising prices generally in its single-brand aftermarkets, there remain certain consumers who are necessarily subject to abusive Kodak pricing behavior by reason of their being "locked in" to their investments in Kodak machines. The Court agrees; indeed, it goes further by suggesting that even a general policy of supracompetitive aftermarket prices might be profitable over the long run because of the "lock-in" phenomenon. "[A] *47 seller profitably could maintain supracompetitive prices in the aftermarket," the Court explains, "if the switching costs were high relative to the increase in service prices, and the number of locked-in customers were high relative to the number of new purchasers." Ante, at 476. n speculating about this latter possibility, the Court is essentially repudiating the assumption on which we are bound to decide this case, viz., Kodak's lack of any power whatsoever in the interbrand market. f Kodak's general increase in aftermarket prices were to bring the total "system" price above competitive levels in the interbrand market, Kodak would be wholly |
Justice Scalia | 1,992 | 9 | dissenting | Eastman Kodak Co. v. Image Technical Services, Inc. | https://www.courtlistener.com/opinion/112744/eastman-kodak-co-v-image-technical-services-inc/ | competitive levels in the interbrand market, Kodak would be wholly unable to make further foremarket salesand would find itself exploiting an ever-dwindling aftermarket, as those Kodak micrographic and photocopying machines already in circulation passed into disuse. The Court's narrower point, however, is undeniably true. There will be consumers who, because of their capital investment in Kodak equipment, "will tolerate some level of service-price increases before changing equipment brands," ibid.; this is necessarily true for "every maker of unique parts for its own product." Areeda & Hovenkamp, Antitrust Law ¶ 525.1b, at 563. But this "circumstantial" leverage created by consumer investment regularly crops up in smoothly functioning, even perfectly competitive, markets, and in mostif not allof its manifestations, it is of no concern to the antitrust laws. The leverage held by the manufacturer of a malfunctioning refrigerator (which is measured by the consumer's reluctance to walk away from his initial investment in that device) is no different in kind or degree from the leverage held by the swimming pool contractor when he discovers a 5-ton boulder in his customer's backyard and demands an additional sum of money to remove it; or the leverage held by an airplane manufacturer over an airline that has "standardized" its fleet around the manufacturer's models; or the leverage held by a drill press manufacturer whose customers have built their production lines around the *48 manufacturer's particular style of drill press; or the leverage held by an insurance company over its independent sales force that has invested in company-specific paraphernalia; or the leverage held by a mobile home park owner over his tenants, who are unable to transfer their homes to a different park except at great expense, see generally 503 U.S. 51 (12). Leverage, in the form of circumstantial power, plays a role in each of these relationships; but in none of them is the leverage attributable to the dominant party's market power in any relevant sense. Though that power can plainly work to the injury of certain consumers, it produces only "a brief perturbation in competitive conditionsnot the sort of thing the antitrust laws do or should worry about." Parts & Elec. Motors, nc. v. Sterling Elec., nc., (CA7 188) The Court correctly observes that the antitrust laws do not permit even a natural monopolist to project its monopoly power into another market, i. e., to "`exploi[t] his dominant position in one market to expand his empire into the next.' " Ante, at 480, n. 2 (quoting Times-Picayune Publishing 345 U.S. 54, (153)). However, when a manufacturer uses its control over single-branded parts to acquire |
Justice Scalia | 1,992 | 9 | dissenting | Eastman Kodak Co. v. Image Technical Services, Inc. | https://www.courtlistener.com/opinion/112744/eastman-kodak-co-v-image-technical-services-inc/ | a manufacturer uses its control over single-branded parts to acquire influence in single-branded service, the monopoly "leverage" is almost invariably of no practical consequence, because of perfect identity between the consumers in each of the subject aftermarkets (those who need replacement parts for Kodak equipment and those who need servicing of Kodak equipment). When that condition exists, the tie does not permit the manufacturer to project power over a class of consumers distinct from that which it is already able to exploit (and fully) without the inconvenience of the tie. Cf., e. g., Bowman, Tying Arrangements and the Leverage Problem, 67 Yale L. J. 1, 21-27 (157). We have never before accepted the thesis the Court today embraces: that a seller's inherent control over the unique *4 parts for its own brand amounts to "market power" of a character sufficient to permit invocation of the per se rule against tying. As the Court observes, ante, at 47-481, n. 2, we have applied the per se rule to manufacturer ties of foremarket equipment to aftermarket derivativesbut only when the manufacturer's monopoly power in the equipment, coupled with the use of derivative sales as "counting devices" to measure the intensity of customer equipment usage, enabled the manufacturer to engage in price discrimination, and thereby more fully exploit its interbrand power. See nternational Salt 332 U.S. 32 (147); nternational Business Machines v. United States, 28 U.S. 131 (136); United Shoe Machinery v. United States, (122). That sort of enduring opportunity to engage in price discrimination is unavailable to a manufacturerlike Kodakthat lacks power at the interbrand level. A tie between two aftermarket derivatives does next to nothing to improve a competitive manufacturer's ability to extract monopoly rents from its consumers.[3] *500 Nor has any court of appeals (save for the Ninth Circuit panel below) recognized single-branded aftermarket power as a basis for invoking the per se tying prohibition. See Virtual Maintenance, nc. v. Prime Computer, nc., 57 F.2d 1318, (CA6 12) ; Grappone, nc. v. Subaru of New England, nc., 858 F. 2d, at 78 ("[W]e do not see how such dealer investment [in facilities to sell Subaru products]. could easily translate into Subaru market power of a kind that, through tying, could ultimately lead to higher than competitive prices for consumers"); A. Root Co. v. Computer/Dynamics, nc., 6-677, (CA6 186) ; General Business Systems v. North American Philips 6 F.2d 65, 77 (CA 183) See also Parts & Elec. Motors, nc. v. Sterling Elec., nc., 866 F. 2d, at 233 (law-of-the-case doctrine compelled finding of market power in replacement parts for single-brand |
Justice Scalia | 1,992 | 9 | dissenting | Eastman Kodak Co. v. Image Technical Services, Inc. | https://www.courtlistener.com/opinion/112744/eastman-kodak-co-v-image-technical-services-inc/ | compelled finding of market power in replacement parts for single-brand engine). We have recognized in closely related contexts that the deterrent effect of inter brand competition on the exploitation of intra brand market power should make courts exceedingly reluctant to apply rules of per se illegality to intrabrand restraints. For instance, we have refused to apply a rule of per se illegality to vertical nonprice restraints "because of their potential for a simultaneous reduction of intrabrand competition and stimulation of interbrand competition," Continental T. V., nc. v. GTE Sylvania nc., (177), the latter of which we described as "the primary concern of antitrust law," at 52, n. 1. We noted, for instance, that "new manufacturers and manufacturers entering new markets can use the restrictions in order to induce competent and aggressive retailers to make the kind of investment of capital and labor that is often required in the distribution of products unknown to the consumer," and that "[e]stablished manufacturers can use them *502 to induce retailers to engage in promotional activities or to provide service and repair facilities necessary to the efficient marketing of their products." See also Business Electronics v. Sharp Electronics (188). The same assumptions, in my opinion, should govern our analysis of ties alleged to have been "forced" solely through intra brand market power. n the absence of interbrand power, a manufacturer's bundling of aftermarket products may serve a multitude of legitimate purposes: t may facilitate manufacturer efforts to ensure that the equipment remains operable and thus protect the seller's business reputation, see United 187 F. Supp., at ; it may create the conditions for implicit consumer financing of the acquisition cost of the tying equipment through supracompetitively-priced aftermarket purchases, see, e. g., A. Oxenfeldt, ndustrial Pricing and Market Practices 378 (151); and it may, through the resultant manufacturer control of aftermarket activity, "yield valuable information about component or design weaknesses that will materially contribute to product improvement," 3 Areeda & Turner ¶ 733c, at 258-25; see also ¶ 82d, at 331-332. Because the interbrand market will generally punish intrabrand restraints that consumers do not find in their interest, we should notunder the guise of a per se rulecondemn such potentially procompetitive arrangements simply because of the antitrust defendant's inherent power over the unique parts for its own brand. would instead evaluate the aftermarket tie alleged in this case under the rule of reason, where the tie's actual anticompetitive effect in the tied product market, together with its potential economic benefits, can be fully captured in the analysis, see, e. g., Jefferson Disposition of this case does |
Justice Scalia | 1,992 | 9 | dissenting | Eastman Kodak Co. v. Image Technical Services, Inc. | https://www.courtlistener.com/opinion/112744/eastman-kodak-co-v-image-technical-services-inc/ | analysis, see, e. g., Jefferson Disposition of this case does not require such an examination, however, as respondents apparently waived any rule-of-reason claim they *503 may have had in the District Court. would thus reverse the Ninth Circuit's judgment on the tying claim outright. These considerations apply equally to respondents' 2 claims. An antitrust defendant lacking relevant "market power" sufficient to permit invocation of the per se prohibition against tying a fortiori lacks the monopoly power that warrants heightened scrutiny of his allegedly exclusionary behavior. Without even so much as asking whether the purposes of 2 are implicated here, the Court points to Kodak's control of "100% of the parts market and 80% to 5% of the service market," markets with "no readily available substitutes," ante, at 481, and finds that the proffer of such statistics is sufficient to fend off summary judgment. But this showing could easily be made, as have explained, with respect to virtually any manufacturer of differentiated products requiring aftermarket support. By permitting antitrust plaintiffs to invoke 2 simply upon the unexceptional demonstration that a manufacturer controls the supplies of its single-branded merchandise, the Court transforms 2 from a specialized mechanism for responding to extraordinary agglomerations (or threatened agglomerations) of economic power to an all-purpose remedy against run-of-themill business torts. n my view, if the interbrand market is vibrant, it is simply not necessary to enlist 2's machinery to police a seller's intrabrand restraints. n such circumstances, the interbrand market functions as an infinitely more efficient and more precise corrective to such behavior, rewarding the seller whose intrabrand restraints enhance consumer welfare while punishing the seller whose control of the aftermarkets is viewed unfavorably by interbrand consumers. See Business Electronics ; Continental T. V., nc., at 52, n. 1, 54. Because this case comes to us on the assumption *504 that Kodak is without such interbrand power, believe we are compelled to reverse the judgment of the Court of Appeals. respectfully dissent. |
Justice Stevens | 1,984 | 16 | dissenting | Badaracco v. Commissioner | https://www.courtlistener.com/opinion/111060/badaracco-v-commissioner/ | The plain language of 6501(c)(1) of the Internal Revenue Code conveys a different message to me than it does to the *402 Court. That language is clear enough: "In the case of a false or fraudulent return with the intent to evade tax, the tax may be assessed, or a proceeding in court for collection of such tax may be begun without assessment, at any time." 26 U.S. C. 6501(c)(1). What is not clear to me is why this is a case of "a false or fraudulent return." In both cases before the Court, the Commissioner assessed deficiencies based on concededly nonfraudulent returns. The taxpayers' alleged prior fraud was not the basis for the Commissioner's action. Indeed, whether or not the Commissioner was obligated to accept petitioners' amended returns, he in fact elected to do so and to use them as the basis for his assessment.[1] When the Commissioner initiates a deficiency proceeding on the basis of a nonfraudulent return, I do not believe that the resulting case is one "of a false or fraudulent return." The purpose of the statute supports this reading. The original version of 6501(c) was enacted in 1921. It was true in 1921, as it is today, that the fraudulent concealment of the facts giving rise to a claim tolled the controlling statute of limitations until full disclosure was made. Fraud did not entirely repeal the bar of limitations; rather the period of limitations simply did not begin to run until the fraud was discovered, or at least discoverable. See, e. g., Exploration Moreover, this Court soon ruled that if a return constitutes an honest and genuine attempt to satisfy the law, it is sufficient to commence the running of the statute of limitations. Zellerbach Paper[2] The Court has subsequently adhered to this position. See ; Germantown Trust For example, the Court has construed another portion of the statute, dealing with underreporting of income, as inapplicable to returns which disclose the facts forming the basis for the deficiency. "We think that in enacting [the statute] Congress manifested no broader purpose than to give the Commissioner an additional two years to investigate tax returns in cases where, because of a taxpayer's omission to report some taxable item, the Commissioner is at a special disadvantage in detecting errors. In such instances the return on its face provides no clue as to the existence of the omitted item. On the other hand, when, as here, the understatement of a tax arises from an error in reporting an item disclosed on the face of the return the Commissioner is |
Justice Stevens | 1,984 | 16 | dissenting | Badaracco v. Commissioner | https://www.courtlistener.com/opinion/111060/badaracco-v-commissioner/ | disclosed on the face of the return the Commissioner is at no such disadvantage." Colony, In light of the purposes and common-law background of the statute, as well as this Court's previous treatment of what a "return" sufficient to commence the running of the limitations period is, it seems apparent that an assessment based on a nonfraudulent amended return does not fall within 6501(c)(1). Once the amended return is filed the rationale for disregarding the limitations period is absent. The period of concealment is over, and under general common-law principles the limitations period should begin to run.[3] The filing of the return means that the Commissioner is no longer under any disadvantage; full disclosure has been made and there is no reason why he cannot assess a deficiency within the statutory period. *404 The 1921 statute read as follows: "[I]n the case of a false or fraudulent return with intent to evade tax, or of a failure to file a required return, the amount of tax due may be determined, assessed, and collected, and a suit or proceeding for the collection of such amount may be begun, at any time after it becomes due." Revenue Act of 1921, 250(d), Under this statute, the filing of a fraudulent return had no greater effect on the limitations period than the filing of no return at all. In either case, since the relevant facts had not been disclosed to the Commissioner, the proper tax could be assessed "at any time." In 1954 the statute was bifurcated; the provisions relating to a failure to file were placed into 6501(c)(3).[4] The legislative history of this revision indicates that the division was not intended to change the statute's meaning.[5] This history supports petitioners' reading of the statute. Fraudulent returns were treated the same as no return at all since neither gives the Commissioner an adequate basis to attempt an assessment. Once that basis is provided, however, the statute is inapplicable; it is no longer a "case of a false or fraudulent return." The Commissioner practically concedes as much since he agrees with the ruling in acq., -2 Cum. Bull. 3, that if the taxpayer fraudulently fails to file a return, the limitations period nevertheless begins to run once a nonfraudulent return is filed. See also Rev. Rul. 79-178, 1979-1 Cum. Bull. 435. Yet there is nothing in the history of this statute indicating that Congress intended a bifurcated reading of a simple statutory command. There is certainly no logical reason supporting such a result; the Commissioner is if anything under *405 a greater disadvantage when the |
Justice Stevens | 1,984 | 16 | dissenting | Badaracco v. Commissioner | https://www.courtlistener.com/opinion/111060/badaracco-v-commissioner/ | is if anything under *405 a greater disadvantage when the taxpayer originally filed no return at all, since at least in the (c)(1) situation the Commissioner can compare the two returns. If the Commissioner can assess a deficiency within three years when no return was previously filed, he can do the same if the original return was fraudulent.[6] Whatever the correct standard for construing a statute of limitations when it operates against the Government, see ante, at 391-392, surely the presumption ought to be that some limitations period is applicable. "It probably would be all but intolerable, at least Congress has regarded it as ill-advised, to have an income tax system under which there never would come a day of final settlement and which required both the taxpayer and the Government to stand ready forever and a day to produce vouchers, prove events, establish values and recall details of all that goes into an income tax contest. Hence, a statute of limitation is an almost indispensable *406 element of fairness as well as of practical administration of an income tax policy." However, under the Commissioner's position, adopted by the Court today, no limitations period will ever apply to the Commissioner's actions, despite petitioners' attempts to provide him with all the information necessary to make a timely assessment. "Respondent would leave the statute open for that portion of eternity concurrent with the taxpayer's life, whether he lives 3 score and 10 or as long as Methuselah. In most religions, one can repent and be saved, but in the peculiar tax theology of respondent, no act of contrition will suffice to prevent the statute from running in perpetuity. Merely to state the proposition is to refute it, unless some very compelling reasons of policy require visiting this absurdity on the taxpayer."[7] If anything, considerations of tax policy argue against the result reached by the Court today. In a system based on voluntary compliance, it is crucial that some incentive be given to persons to reveal and correct past fraud. Yet the rule announced by the Court today creates no such incentive; a taxpayer gets no advantage at all by filing an honest return. Not only does the taxpayer fail to gain the benefit of a limitations period, but at the same time he gives the Commissioner additional information which can be used against him at any time. Since the amended return will not give the taxpayer a defense in a criminal or civil fraud action, see ante, at 394, *407 there is no reason at all for a taxpayer to correct a |
Justice Scalia | 1,997 | 9 | dissenting | Richardson v. McKnight | https://www.courtlistener.com/opinion/118137/richardson-v-mcknight/ | In we held that state prison officials, including both supervisory and subordinate officers, are entitled to qualified immunity in a suit brought under 4 U.S. C. 1983. Today the Court declares that this immunity is unavailable to employees of private prison management firms, who perform the same duties as state-employed correctional officials, who exercise the most palpable form of state police power, and who may be sued for acting "under color of state law." This holding is supported neither by common-law tradition nor public policy, and contradicts our settled practice of determining 1983 immunity on the basis of the public function being performed. I The doctrine of official immunity against damages actions under 1983 is rooted in the assumption that that statute did not abolish those immunities traditionally available at common law. See I agree with the Court, therefore, that we must look to history to resolve this case. I do not agree with the Court, however, that the petitioners' claim to immunity is defeated if they cannot provide an actual case, antedating or contemporaneous with the enactment of 1983, in which immunity was successfully asserted by a private prison *415 guard. It is only the absence of such a case, and not any explicit rejection of immunity by any common-law court, that the Court relies upon. The opinion observes that private jailers existed in the 19th century, and that they were successfully sued by prisoners. But one could just as easily show that government-employed jailers were successfully sued at common law, often with no mention of possible immunity, see Schellenger, Civil liability of sheriff or other officer charged with keeping jail or prison for death or injury of prisoner, 14 A. L. R. d 353 (1950) (annotating numerous cases where sheriffs were held liable). Indeed, as far as my research has disclosed, there may be more case-law support for immunity in the private-jailer context than in the government-jailer context. The only pre- 1983 jailerimmunity case of any sort that I am aware of is decided only 10 years before 1983 became law. And that case, which explicitly acknowledged that the issue of jailer immunity was "novel," appears to have conferred immunity upon an independent contractor.[1] The truth to tell, which established 1983 immunity for state prison guards, did not trouble itself with history, as our later 1983 immunity opinions *416 have done, see, e. g., ; but simply set forth a policy prescription. At this stage in our jurisprudence it is irrational, and productive of harmful policy consequences, to rely upon lack of case support to create an artificial |
Justice Scalia | 1,997 | 9 | dissenting | Richardson v. McKnight | https://www.courtlistener.com/opinion/118137/richardson-v-mcknight/ | rely upon lack of case support to create an artificial limitation upon the scope of a doctrine (prisonguard immunity) that was itself not based on case support. I say an artificial limitation, because the historical principles on which common-law immunity was based, and which are reflected in our jurisprudence, plainly cover the private prison guard if they cover the non private. Those principles are two: (1) immunity is determined by function, not status, and () even more specifically, private status is not disqualifying. "[O]ur cases clearly indicate that immunity analysis rests on functional categories, not on the status of the defendant." Immunity "flows not from rank or title or `location within the Government,' but from the nature of the responsibilities of the individual official." quoting "Running through our cases, with fair consistency, is a `functional' approach to immunity questions Under that approach, we examine the nature of the functions with which a particular official or class of officials has been lawfully entrusted, and we seek to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions." See also ; ; -343 ; ; The parties concede that petitioners perform a prototypically governmental function (enforcement of state-imposed deprivation of liberty), and one that gives rise to qualified immunity. *417 The point that function rather than status governs the immunity determination is demonstrated in a prison-guard case virtually contemporaneous with the enactment of 1983. Alamango v. Board of Supervisors of Albany Cty., 3 N. Y. Sup. Ct. 551 (1881), held that supervisors charged under state law with maintaining a penitentiary were immune from prisoner lawsuits. Although they were not formally state officers, the court emphasized the irrelevance of this fact: "The duty of punishing criminals is inherent in the Sovereign power. It may be committed to agencies selected for that purpose, but such agencies, while engaged in that duty, stand so far in the place of the State and exercise its political authority, and do not act in any private capacity."[] Private individuals have regularly been accorded immunity when they perform a governmental function that qualifies. We have long recognized the absolute immunity of grand jurors, noting that like prosecutors and judges they must "exercise a discretionary judgment on the basis of evidence presented to them." Imbler, n. 0. "It is the functional comparability of [grand jurors'] judgments to those of the judge that has resulted in [their] being referred to as `quasi-judicial' officers, and their immunities being termed `quasi-judicial' as well." Likewise, witnesses *418 who testify in court proceedings have enjoyed |
Justice Scalia | 1,997 | 9 | dissenting | Richardson v. McKnight | https://www.courtlistener.com/opinion/118137/richardson-v-mcknight/ | Likewise, witnesses *418 who testify in court proceedings have enjoyed immunity, regardless of whether they were government employees. "[T]he common law," we have observed, "provided absolute immunity from subsequent damages liability for all personsgovernmental or otherwise who were integral parts of the judicial process." I think it highly unlikely that we would deny prosecutorial immunity to those private attorneys increasingly employed by various jurisdictions in this country to conduct high-visibility criminal prosecutions. See, e. g., Kaplan, State Hires Private Lawyer for Bryant Family Trial, Los Angeles Times, Apr. 8, 1993, p. B4, col. ; Estrich, On Building the Strongest Possible Prosecution Team, Los Angeles Times, July 10, 1994, p. M1, col. 1. There is no more reason for treating private prison guards differently. II Later in its opinion, the Court seeks to establish that there are policy reasons for denying to private prison guards the immunity accorded to public ones. As I have indicated above, I believe that history and not judicially analyzed policy governs this matterbut even on its own terms the Court's attempted policy distinction is unconvincing. The Court suggests two differences between civil-service prison guards and those employed by private prison firms which preclude any "special" need to give the latter immunity. First, the Court says that "unwarranted timidity" on the part of private guards is less likely to be a concern, since their companies are subject to market pressures that encourage them to be effective in the performance of their duties. If a private firm does not maintain a proper level of order, the Court reasons, it will be replaced by another oneso there is no need for qualified immunity to facilitate the maintenance of order. This is wrong for several reasons. First of all, it is fanciful to speak of the consequences of "market" pressures in a *419 regime where public officials are the only purchaser, and other people's money the medium of payment. Ultimately, one prison-management firm will be selected to replace another prison-management firm only if a decision is made by some political official not to renew the contract. See Tenn. Code Ann. 41-4-103 to 105 This is a government decision, not a market choice. If state officers turn out to be more strict in reviewing the cost and performance of privately managed prisons than of publically managed ones, it will only be because they have chosen to be so. The process can come to resemble a market choice only to the extent that political actors will such resemblancethat is, to the extent that political actors (1) are willing to pay attention to |
Justice Scalia | 1,997 | 9 | dissenting | Richardson v. McKnight | https://www.courtlistener.com/opinion/118137/richardson-v-mcknight/ | that political actors (1) are willing to pay attention to the issue of prison services, among the many issues vying for their attention, and () are willing to place considerations of cost and quality of service ahead of such political considerations as personal friendship, political alliances, instate ownership of the contractor, etc. Secondly and more importantly, however, if one assumes a political regime that is bent on emulating the market in its purchase of prison services, it is almost certainly the case that, short of mismanagement so severe as to provoke a prison riot, price (not discipline) will be the predominating factor in such a regime's selection of a contractor. A contractor's price must depend upon its costs; lawsuits increase costs;[3] and "fearless" maintenance of discipline increases lawsuits. The incentive to down-play discipline will exist, moreover, even in those States where the politicians' zeal for market emulation and budget cutting has waned, and where prison-management *40 contract renewal is virtually automatic: the more cautious the prison guards, the fewer the lawsuits, the higher the profits. In sum, it seems that "market-competitive" private prison managers have even greater need than civil-service prison managers for immunity as an incentive to discipline. The Court's second distinction between state and private prisons is that privatization "helps to meet the immunityrelated need to ensure that talented candidates are not deterred by the threat of damages suits from entering public service" as prison guards. Ante, at 411 (internal quotation marks omitted). This is so because privatization brings with it (or at least has brought with it in the case before us) (1) a statutory requirement for insurance coverage against civil-rights claims, which assertedly "increases the likelihood of employee indemnification," and () a liberation "from many civil service law restraints" which prevent increased employee risk from being "offset with higher pay or extra benefits," As for the former (civil-rights liability insurance): surely it is the availability of that protection, rather than its actual presence in the case at hand, which decreases (if it does decrease, which I doubt) the need for immunity protection. (Otherwise, the Court would have to say that a private prison-management firm that is not required to purchase insurance, and does not do so, is more entitled to immunity; and that a government-run prison system that does purchase insurance is less entitled to immunity.) And of course civil-rights liability insurance is no less available to public entities than to private employers. But the second factorliberation from civil-service limitations is the more interesting one. First of all, simply as a philosophical matter it is fascinating |
Justice Scalia | 1,997 | 9 | dissenting | Richardson v. McKnight | https://www.courtlistener.com/opinion/118137/richardson-v-mcknight/ | of all, simply as a philosophical matter it is fascinating to learn that one of the prime justifications for 1983 immunity should be a phenomenon (civil-service laws) that did not even exist when 1983 was enacted and the immunity created. Also as a philosophical matter, it is poetic justice (or poetic revenge) that the Court *41 should use one of the principal economic benefits of "prison out-sourcing"namely, the avoidance of civil-service salary and tenure encrustationsas the justification for a legal rule rendering out-sourcing more expensive. Of course the savings attributable to out-sourcing will not be wholly lost as a result of today's holding; they will be transferred in part from the public to prisoner-plaintiffs and to lawyers. It is a result that only the American Bar Association and the American Federation of Government Employees could love. But apart from philosophical fascination, this second factor is subject to the same objection as the first: governments need not have civil-service salary encrustations (or can exempt prisons from them); and hence governments, no more than private prison employers, have any need for 1983 immunity. There is one more possible rationale for denying immunity to private prison guards worth discussing, albeit briefly. It is a theory so implausible that the Court avoids mentioning it, even though it was the primary reason given in the Court of Appeals decision that the Court affirms. It is that officers of private prisons are more likely than officers of state prisons to violate prisoners' constitutional rights because they work for a profit motive, and hence an added degree of deterrence is needed to keep these officers in line. The Court of Appeals offered no evidence to support its bald assertion that private prison guards operate with different incentives than state prison guards, and gave no hint as to how prison guards might possibly increase their employers' profits by violating constitutional rights. One would think that private prison managers, whose 1983 damages come out of their own pockets, as compared with public prison managers, whose 1983 damages come out of the public purse, would, if anything, be more careful in training their employees to avoid constitutional infractions. And in fact, States having experimented with prison privatization commonly report *4 that the overall caliber of the services provided to prisoners has actually improved in scope and quality. Matters Relating To The Federal Bureau Of Prisons: Hearing before the Subcommittee on Crime of the House Committee on the Judiciary, 104th Cong., 1st Sess., 110 (1995). * * * In concluding, I must observe that since there is no apparent reason, neither |
Justice Scalia | 1,997 | 9 | dissenting | Richardson v. McKnight | https://www.courtlistener.com/opinion/118137/richardson-v-mcknight/ | must observe that since there is no apparent reason, neither in history nor in policy, for making immunity hinge upon the Court's distinction between public and private guards, the precise nature of that distinction must also remain obscure. Is it privity of contract that separates the two categoriesso that guards paid directly by the State are "public" prison guards and immune, but those paid by a prison-management company "private" prison guards and not immune? Or is it rather "employee" versus "independent contractor" statusso that even guards whose compensation is paid directly by the State are not immune if they are not also supervised by a state official? Or is perhaps state supervision alone (without direct payment) enough to confer immunity? Or is it (as the Court's characterization of Alamango, see n. suggests) the formal designation of the guards, or perhaps of the guards' employer, as a "state instrumentality" that makes the difference? Since, as I say, I see no sense in the public-private distinction, neither do I see what precisely it consists of. Today's decision says that two sets of prison guards who are indistinguishable in the ultimate source of their authority over prisoners, indistinguishable in the powers that they possess over prisoners, and indistinguishable in the duties that they owe toward prisoners, are to be treated quite differently in the matter of their financial liability. The only sure effect of today's decisionand the only purpose, as far as I can tellis that it will artificially raise the cost of privatizing prisons. Whether this will cause privatization to be prohibitively expensive, or instead simply divert state funds *43 that could have been saved or spent on additional prison services, it is likely that taxpayers and prisoners will suffer as a consequence. Neither our precedent, nor the historical foundations of 1983, nor the policies underlying 1983, support this result. I respectfully dissent. |
Justice Scalia | 2,010 | 9 | dissenting | Hamilton v. Lanning | https://www.courtlistener.com/opinion/147953/hamilton-v-lanning/ | The Bankruptcy Code requires a debtor seeking relief under Chapter 13, unless he will repay his unsecured creditors in full, to pay them all of his “projected dispos able income” over the life of his repayment plan. 11 U.S. C. The Code provides a formula for “project[ing]” what a debtor’s “disposable income” will be, which so far as his earnings are concerned turns only on his past income. The Court concludes that this formula should not apply in “exceptional cases” where “known or virtually certain” changes in the debtor’s circumstances make it a poor predictor. Ante, at 6. Because that conclu sion is contrary to the Code’s text, I respectfully dissent. I A A bankruptcy court cannot confirm a Chapter 13 plan over the objection of the trustee unless, as of the plan’s effective date, either (A) the property to be distributed on account of the unsecured claim at issue exceeds its amount or (B) the “the plan provides that all of the debtor’s pro jected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan will be applied to make 2 HAMILTON v. LANNING SCALIA, J., dissenting payments to unsecured creditors under the plan.” The Code does not define “projected dis posable income,” but it does define “disposable income.” The next paragraph of provides that “[f]or pur poses of this subsection, the term ‘disposable income’ means current monthly income received by the debtor,” excluding certain payments received for child support, “less amounts reasonably necessary to be expended” on three categories of expenses. (2). The Code in turn defines “current monthly income” as “the average monthly income from all sources that the debtor re ceives derived during the 6-month period ending on” one of two dates.1 Whichever date applies, a debtor’s “current monthly income,” and thus the income component of his “disposable income,” is a sum certain, a rate fixed once for all based on historical figures. This definition of “disposable income” applies to the use of that term in the longer phrase “projected disposable income” in (1)(B), since the definition says that it applies to subsection (b). Cf. (referring to “the projected disposable income of the debtor (as defined in section 1325(b)(2))”). The puzzle is what to make of the word “projected.” In the Court’s view, this modifier makes all the differ ence. Projections, it explains, ordinarily account for later developments, not just past data. Ante, at 6–7. Thus, the Court concludes, in determining “projected disposable income” a bankruptcy court may depart from (2)’s —————— 1 |
Justice Scalia | 2,010 | 9 | dissenting | Hamilton v. Lanning | https://www.courtlistener.com/opinion/147953/hamilton-v-lanning/ | income” a bankruptcy court may depart from (2)’s —————— 1 If the debtor files a schedule of current income, as ordinarily re quired by then the 6-month period ends on the last day of the month preceding the date the case is commenced, is, when the petition is filed, 302(a), 303(b). If the debtor does not file such a schedule on time—which the bankruptcy court apparently may excuse him from doing, 6-month period ends on the date the bankruptcy court determines the debtor’s current income. Cite as: 560 U. S. (2010) 3 SCALIA, J., dissenting inflexible formula, at least in “exceptional cases,” to ac count for “significant changes” in the debtor’s circum stances, either actual or anticipated. Ante, at 6. That interpretation runs aground because it either renders superfluous text Congress included or requires adding text Congress did not. It would be pointless to define disposable income in such detail, based on data during a specific 6-month period, if a court were free to set the resulting figure aside whenever it appears to be a poor predictor. And since “disposable income” appears nowhere else in then unless (2)’s definition ap plies to “projected disposable income” in (1)(B), it does not apply at all. The Court insists its interpretation does not render (2)’s incorporation of “current monthly income” a nullity: A bankruptcy court must still begin with that figure, but is simply free to fiddle with it if a “significant” change in the debtor’s circumstances is “known or virtu ally certain.” Ante, at 6, 12. That construction conven iently avoids superfluity, but only by utterly abandoning the text the Court purports to construe. Nothing in the text supports treating the definition of disposable income Congress supplied as a suggestion. And even if the word “projected” did allow (or direct) a court to disregard (2)’s fixed formula and to consider other data, there would be no basis in the text for the restrictions the Court reads in, regarding when and to what extent a court may (or must) do so. If the statute authorizes estimations, it authorizes them in every case, not just those where changes to the debtor’s income are both “significant” and either “known or virtually certain.” If the evidence indicates it is merely more likely than not that the debtor’s income will increase by some minimal amount, there is no reading of the word “projected” that permits (or requires) a court to ignore that change. The Court, in short, can arrive at its compromise construction only by 4 HAMILTON v. LANNING SCALIA, J., dissenting rewriting the statute. B The |
Justice Scalia | 2,010 | 9 | dissenting | Hamilton v. Lanning | https://www.courtlistener.com/opinion/147953/hamilton-v-lanning/ | v. LANNING SCALIA, J., dissenting rewriting the statute. B The only reasonable reading that avoids deleting words Congress enacted, or adding others it did not, is this: Setting aside expenses excludable under (2)(A) and (B), which are not at issue here, a court must calcu late the debtor’s “projected disposable income” by multi plying his current monthly income by the number of months in the “applicable commitment period.” The word “projected” in this context, I agree, most sensibly refers to a calculation, prediction, or estimation of future events, see Brief for United States as Amicus Curiae 12–13 (col lecting dictionary definitions); see also Webster’s New International Dictionary 1978 (2d ed. 1957). But one assuredly can calculate, predict, or estimate future figures based on the past. And here Congress has commanded that a specific historical figure shall be the basis for the projection. The Court rejects this reading as unrealistic. A projec tion, the Court explains, may be based in part on past data, but “adjustments are often made based on other factors that may affect the final outcome.” Ante, at 7. Past performance is no guarantee of future results. No gambler would bet the farm using “project[ions]” that are based only on a football team’s play before its star quar terback was injured. And no pundit would keep his post if he “projected” election results relying only on prior cycles, ignoring recent polls. So too, the Court appears to reason, it makes no sense to say a court “project[s]” a debtor’s “disposable income” when it considers only what he earned in a specific 6-month period in the past. Ante, at 6–7. Such analogies do not establish that carrying current monthly income forward to determine a debtor’s future ability to pay is not a “projection.” They show only that relying exclusively on past data for the projection may be a Cite as: 560 U. S. (2010) 5 SCALIA, J., dissenting bad idea. One who is asked to predict future results, but is armed with no other information than prior perform ance, can still make a projection; it may simply be off the mark. Congress, of course, could have tried to prevent that possibility by prescribing, as it has done in other contexts, that a debtor’s projected disposable income be determined based on the “best available evidence,” 8 U.S. C. or “any relevant information,” 25 U.S. C. But it included no such prescription here, and instead identified the data a court should con sider. Perhaps Congress concluded that other information a bankruptcy court might consider is too uncertain or too easily manipulated. |
Justice Scalia | 2,010 | 9 | dissenting | Hamilton v. Lanning | https://www.courtlistener.com/opinion/147953/hamilton-v-lanning/ | court might consider is too uncertain or too easily manipulated. Or perhaps it thought the cost of considering such information outweighed the benefits. Cf. 7 U.S. C. (requiring national and local “projected” yields of various crops to be adjusted only for abnormal weather, trends in yields, and production practices, apparently to the exclusion of other presumably relevant variables such as a sudden increase or decrease in the number of producers, farm subsidies, etc.). In all events, neither the reasons for nor the wisdom of the projection method Congress chose has any bearing on what the statute means. The Court contends that if Congress really meant courts to multiply a static figure by a set number of months, it would have used the word “multiplied,” as it has done elsewhere—indeed, elsewhere in the same subsection, see, e.g., 11 U.S. C. (3)—instead of the word “pro jected.”2 Ante, at 8. I do not dispute that, as a general matter, we should presume that Congress does not ordi narily use two words in the same context to denote the —————— 2 Of course, since the number of months in the commitment period may vary, Congress could not simply have substituted a single word, but would have had to write “disposable income multiplied by the number of months in the applicable commitment period” or some such phrase. 6 HAMILTON v. LANNING SCALIA, J., dissenting same thing. But if forced to choose between (A) assuming Congress enacted text that serves no purpose at all, (B) ascribing an unheard-of meaning to the word “projected” (loaded with made-to-order restrictions) simply to avoid undesirable results, or (C) assuming Congress employed synonyms to express a single idea, the last is obviously the least evil. In any event, we are not put to that choice here. While under my reading a court must determine the income half of the “projected disposable income” equation by multiply ing a fixed number, that is not necessarily true of the expenses excludable under (2)(A) and (B). Unlike the debtor’s current monthly income, none of the three types of expenses—payments for the support of the debtor and his dependents, charitable contributions, and ex penses to keep an existing business above water—is ex plicitly defined in terms of historical figures (at least for debtors with incomes below the state median). The first of those cannot possibly (in many cases) be determined based on the same 6-month period from which current monthly income is derived,3 and the texts of the other two are consistent with determining expenses based on expecta tions. See (2)(A)(ii) (charitable expenses to quali |
Justice Scalia | 2,010 | 9 | dissenting | Hamilton v. Lanning | https://www.courtlistener.com/opinion/147953/hamilton-v-lanning/ | based on expecta tions. See (2)(A)(ii) (charitable expenses to quali fied entities limited to “15 percent of gross income of the debtor for the year in which the contributions are made”); (2)(B) (“expenditures necessary for the continua tion, preservation, and operation” of a business in which the debtor is engaged). In short, a debtor’s projected disposable income consists of two parts: one (current monthly income) that is fixed —————— 3 For a debtor whose income is below the state median, excludable expenses include domestic-support obligations “that first becom[e] payable after the date the petition is filed,” (2)(A)(i)—that is, after the six-month window relevant to the debtor’s current monthly income has closed (unless the debtor does not file a current-income schedule), see Cite as: 560 U. S. (2010) 7 SCALIA, J., dissenting once for all based on historical data, and another (the enumerated expenses) that at least arguably depends on estimations of the debtor’s future circumstances. The statute thus requires the court to predict the difference between two figures, each of which depends on the dura tion of the commitment period, and one of which also turns partly on facts besides historical data. In light of all this, it seems to me not at all unusual to describe this process as projection, not merely multiplication. C The Court’s remaining arguments about the statute’s meaning are easily dispatched. A “mechanical” reading of projected disposable income, it contends, renders superflu ous the phrase “to be received in the applicable commit ment period” in Ante, at 11. Not at all. That phrase defines the period for which a debtor’s dis posable income must be calculated (i.e., the period over which the projection extends), and thus the amount the debtor must ultimately pay his unsecured creditors. Similarly insubstantial is the Court’s claim regarding the requirement that the plan provide that the debtor’s projected disposable income “will be applied to make payments” toward unsecured creditors’ claims, The Court says this requirement makes no sense unless the debtor is actually able to pay an amount equal to his projected disposable income. Ante, at 12. But it makes no sense only if one assumes that the debtor is entitled to confirmation in the first place; and that as sumption is wrong. The requirement that the debtor pay at least his projected disposable income is a prerequisite to confirmation. The “will be applied” proviso does not re quire a debtor to pay what he cannot; it simply withholds Chapter 13 relief when he cannot pay. The Court also argues that (1)’s directive to determine projected disposable income “as of |
Justice Scalia | 2,010 | 9 | dissenting | Hamilton v. Lanning | https://www.courtlistener.com/opinion/147953/hamilton-v-lanning/ | that (1)’s directive to determine projected disposable income “as of the effective 8 HAMILTON v. LANNING SCALIA, J., dissenting date of the plan” makes no sense if mere multiplication of existing numbers is required. Ante, at 11–12. As I have explained, however, “projected disposable income” may in some cases require more than multiplication (as to ex penses), and the estimations involved may vary from the date of the plan’s filing until the date it takes effect. Moreover, the provision also applies to the alternative avenue to confirmation in (1)(A), which requires that “the value of the property to be distributed under the plan” to an unsecured creditor equals or exceeds the credi tor’s claim. As to that requirement, the effective-date requirement makes perfect sense. Text aside, the Court also observes that Circuit practice prior to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), aligns with the atextual approach the Court adopts today. Ante, at 8–10. That is unsurprising, since the prior version of the relevant provisions was completely consistent with that approach. The Court is correct that BAPCPA “did not amend the term ‘projected disposable income,’ ” ante, at 10. But it did amend the definition of that term. Before 2005, (2) defined “disposable income” simply as “income which is received by the debtor and which is not reasona bly necessary to be expended” on the same basic types of expenses excluded by the current statute. (2) (2000 ed.). Nothing in that terse definition compelled a court to rely exclusively on past data, let alone a specific 6 month period. But in BAPCPA—the same Act in which Congress defined “current monthly income” in redefined “disposable income” in (2) to incorporate that backward-looking defini tion. See Pub. L. 109–8, (h), –34. Given these significant changes, the fact that the Court’s approach conforms with pre-BAPCPA practice not only does not recommend it, see e.g., Pennsylvania Dept. of Public 563–564 Cite as: 560 U. S. (2010) 9 SCALIA, J., dissenting (1990), but renders it suspect. II Unable to assemble a compelling case based on what the statute says, the Court falls back on the “senseless re sults” it would produce—results the Court “do[es] not think Congress intended.” Ante, at 14. Even if it were true that a “mechanical” reading resulted in undesirable outcomes, that would make no difference. Lewis v. Chi cago, 560 U. S. (2010) (slip op., at 11). For even assuming (though I do not believe it) that we could know which results Congress thought it was achieving (or avoid ing) apart from the only congressional expression of |
Justice Scalia | 2,010 | 9 | dissenting | Hamilton v. Lanning | https://www.courtlistener.com/opinion/147953/hamilton-v-lanning/ | (or avoid ing) apart from the only congressional expression of its thoughts, the text, those results would be entirely irrele vant to what the statute means. In any event, the effects the Court fears are neither as inevitable nor as “senseless” as the Court portrays. The Court’s first concern is that if actual or anticipated changes in the debtor’s earnings are ignored, then a debtor whose income increases after the critical 6-month window will not be required to pay all he can afford. Ante, at 14. But as Lanning points out, Brief for Respondent 22–23, Chapter 13 authorizes the Bankruptcy Court, at the re quest of unsecured creditors, to modify the plan “[a]t any time after confirmation” to “increase the amount of payments” on a class of claims or “reduce the time for such payments.” (2006 ed.). The Court offers no explanation of why modification would not be available in such instances, and sufficient to resolve the concern. The Court also cringes at the prospect that a debtor whose income suddenly declines after the 6-month window or who, as in this case, receives a one-off windfall during that window, will be barred from Chapter 13 relief be cause he will be unable to devote his “disposable income” (which turns on his prior earnings) to paying his unse cured creditors going forward. Ante, at 14–15. At least for 10 HAMILTON v. LANNING SCALIA, J., dissenting debtors whose circumstances deteriorate after confirma tion, however, the Code already provides an answer. Just as a creditor can request an upward modification in light of postconfirmation developments, so too can a debtor ask for a downward adjustment. Cf. (requiring that modifications meet requirements of 1323(c), and 1325(a), but not ). Moreover, even apart from the availability of modifica tion it requires little imagination to see why Congress might want to withhold relief from debtors whose situa tions have suddenly deteriorated (after or even toward the end of the 6-month window), or who in the midst of dire straits have been blessed (within the 6-month window) by an influx of unusually high income. Bankruptcy protec tion is not a birthright, and Congress could reasonably conclude that those who have just hit the skids do not yet need a reprieve from repaying their debts; perhaps they will recover. And perhaps the debtor who has received a one-time bonus will thereby be enabled to stay afloat. How long to wait before throwing the debtor a lifeline is inherently a policy choice. Congress confined the calcula tion of current monthly income to a 6-month period (ordi narily ending before |
Justice Scalia | 2,010 | 9 | dissenting | Hamilton v. Lanning | https://www.courtlistener.com/opinion/147953/hamilton-v-lanning/ | monthly income to a 6-month period (ordi narily ending before the case is commenced), but it could have picked 2 or 12 months (or a different end date) in stead. Whatever the wisdom of the window it chose, we should not assume it did not know what it was doing and accordingly refuse to give effect to its words. Even if one insists on making provision for such debtors, the Court is wrong to write off four alternative strategies the trustee suggests, Brief for Petitioner 50–54: ● Presumably some debtors whose income has only recently been reduced, or who have just received a jolt that causes a temporary uptick in their average income, can delay filing a Chapter 13 petition until their “current monthly income” catches up with their present circum stances. The Court speculates that delay might “giv[e] the Cite as: 560 U. S. (2010) 11 SCALIA, J., dissenting appearance of bad faith,” ante, at 15 (per curiam). Here it may have struck the very balance the Court thinks critical by creating a fixed formula but leaving leeway as to the time to which it applies.5 —————— 4 Neither of the two Court of Appeals cases the Court cites—In re Myers, and Neufeld v. Freeman, 794 F.2d 149, 153 (CA4 1986)—involved a debtor’s delaying his petition until his circumstances would permit the court to confirm a repayment plan. 5 The Court observes that not every debtor will benefit from this ex ception, ante, at 16, and n. 6, since provides that a bank ruptcy court may not grant a request (which may be made after the deadline for filing the current-income schedule) for an extension of more than 45 days to file such a schedule. But the statute appears to assume that a court may excuse the filing of such a schedule altogether: A debtor is required to file a schedule in the first instance “unless the court orders otherwise,” (emphasis added). And provision of a method for calculating current monthly income “if the debtor does not file the schedule of current income required by section 521(a)(1)(B)(ii)” makes little sense unless a court can excuse the failure to do so, since an unexcused failure to do so would be a basis for dismissing the case, see Allowing courts to excuse such schedules does not render superfluous ’s authori 12 HAMILTON v. LANNING SCALIA, J., dissenting ● A debtor who learns after filing that he will be unable to repay his full projected disposable income might also be able to dismiss his case and refile it later. The Court worries |
Justice Scalia | 2,010 | 9 | dissenting | Hamilton v. Lanning | https://www.courtlistener.com/opinion/147953/hamilton-v-lanning/ | dismiss his case and refile it later. The Court worries that this alternative also might be deemed abusive, again with no pertinent authority for the specula tion.6 Its concern is based primarily on its belief that this “circumvents the statutory limits on a court’s ability to shift the look-back period.” Ante, at 16–17. That belief is mistaken, both because the Court exaggerates the statu tory limitations on adjusting the look-back period, and because, just as it does not defeat the disposable-income formula’s rigidity to allow adjustments regarding the time of determining that figure, it would not undermine the limitations on adjustment applicable in a pending case to allow the debtor to dismiss and refile.7 —————— zation for limited extensions, since that applies to extensions sought up to 45 days after the filing deadline, whereas seems to apply only before the deadline. 6 The sole authority the Court supplies—a single Bankruptcy Court decision predating BAPCPA—provides no support. See In re Glenn, Although ac knowledging that “[m]ultiple filings by a debtor are not, in and of themselves, improper,” the court did note that “whether this is the first or subsequent filin[g]” by the debtor is one among the “totality of the circumstances” to be considered in a good-faith analysis. (internal quotation marks omitted). The debtor in the case at hand had filed three previous Chapter 13 petitions, “each on the eve of a sched uled foreclosure,” and according to the court “never had any intention of following through with any of the Chapter 13 cases,” but had used the bankruptcy process “to hold [his creditor] hostage, while remaining in his residence without paying for it.” –521. 7 The Court also notes that the Code precludes a debtor who has had a case pending in the last 180 days from refiling if his prior case was dismissed because he willfully failed to obey the court’s orders or to appear before the court, or if he voluntarily dismissed the prior suit “following the filing of a request for relief from the automatic stay” under Ante, at 17, n. 7. But the Court does not explain why these barriers have any bearing on whether refiling for bankruptcy would be abusive when the barriers do not apply. Cite as: 560 U. S. (2010) 13 SCALIA, J., dissenting ● A debtor unable to pursue any of these avenues to Chapter 13 might still seek relief under Chapter 7. The Court declares this cold comfort, noting that some debt ors—including Lanning—will have incomes too high to qualify for Chapter 7. Ante, at 17–18. Some such debtors, however, may |
Justice Scalia | 2,010 | 9 | dissenting | Hamilton v. Lanning | https://www.courtlistener.com/opinion/147953/hamilton-v-lanning/ | Chapter 7. Ante, at 17–18. Some such debtors, however, may be able to show “special circumstances,” and still take advantage of Chapter 7. Aside from noting the absence of authority on the issue, the Court’s answer is unsatisfyingly circular: It notes that the special-circumstances exception is available only if the debtor has “no reasonable alternative,” which will not be true after today given the Court’s hold ing that bankruptcy courts can consider changes in a debtor’s income. As for those who cannot establish special circumstances, it is hard to understand why there is cause for concern. Congress has evidently concluded that such debtors do not need the last-ditch relief of liquidation, and that they are not suitable candidates for repaying their debts (at least in part) under Chapter 13’s protective umbrella. We have neither reason nor warrant to second guess either determination. * * * Underlying the Court’s interpretation is an understand able urge: Sometimes the best reading of a text yields results that one thinks must be a mistake, and bending that reading just a little bit will allow all the pieces to fit together. But taking liberties with text in light of outcome makes sense only if we assume that we know better than Congress which outcomes are mistaken. And by refusing to hold that Congress meant what it said, but see Con necticut Nat. 253–254 (1992), we deprive it of the ability to say what it means in the future. It may be that no interpretation of (1)(B) is entirely satisfying. But it is in the hard cases, even more than the easy ones, that we should faith 14 HAMILTON v. LANNING SCALIA, J., dissenting fully apply our settled interpretive principles, and trust that Congress will correct the law if what it previously prescribed is wrong. I respectfully dissent |
Justice Stevens | 1,984 | 16 | concurring | INS v. Delgado | https://www.courtlistener.com/opinion/111148/ins-v-delgado/ | A trial has not yet been held in this case. The District Court entered summary judgment against respondents, and the Court of Appeals, in reversing, did not remand the case for trial but rather directed the District Court to enter summary judgment for respondents and a permanent injunction against petitioners. As the case comes to us, therefore, we must construe the record most favorably to petitioners, and resolve all issues of fact in their favor. Because I agree that this record is insufficient to establish that there is no genuine issue of fact on the question whether any of the respondents could have reasonably believed that he or she had been detained in some meaningful way, I join the opinion of the Court. JUSTICE POWELL, concurring in the result. While the Court's opinion is persuasive, I find the question of whether the factory surveys conducted in this case resulted in any Fourth Amendment "seizures" to be a close one. The question turns on a difficult characterization of fact and law: whether a reasonable person in respondents' position would have believed he was free to refuse to answer the questions put to him by INS officers and leave the factory. I believe that the Court need not decide the question, however, because it is clear that any "seizure" that may have taken place was permissible under the reasoning of our decision in United *222 In that case, we held that stopping automobiles for brief questioning at permanent traffic checkpoints away from the Mexican border is consistent with the Fourth Amendment and need not be authorized by a warrant.[1] We assumed that the stops constituted "seizures" within the meaning of the Fourth Amendment, see but upheld them as reasonable. As in prior cases involving the apprehension of aliens illegally in the United States, we weighed the public interest in the practice at issue against the Fourth Amendment interest of the individual. See Noting the importance of routine checkpoint stops to controlling the flow of illegal aliens into the interior of the country, we found that the Government had a substantial interest in the practice. On the other hand, the intrusion on individual motorists was minimal: the stops were brief, usually involving only a question or two and possibly the production of documents. Moreover, they were public and regularized law enforcement activities vesting limited discretion in officers in the field. Weighing these considerations, we held that the stops and questioning at issue, as well as referrals to a slightly longer secondary inspection, might be made "in the absence of any individualized suspicion" that |
Justice Stevens | 1,984 | 16 | concurring | INS v. Delgado | https://www.courtlistener.com/opinion/111148/ins-v-delgado/ | be made "in the absence of any individualized suspicion" that a particular car contained illegal aliens, This case is similar. The Government's interest in using factory surveys is as great if not greater. According to an affidavit by the INS's Assistant District Director in Los Angeles contained in the record in this case, the surveys account for one-half to three-quarters of the illegal aliens identified and arrested away from the border every day in the Los Angeles District. App. 47.[2] In that District alone, over *223 20,000 illegal aliens were arrested in the course of factory surveys in one year. The surveys in this case resulted in the arrest of between 20% and 50% of the employees at each of the factories.[3] We have noted before the dimensions of the immigration problem in this country. E. g., United ; Recent estimates of the number of illegal aliens in this country range between 2 and 12 million, although the consensus appears to be that the number at any one time is between 3 and 6 million.[4] One of the main reasons they come perhaps the main reason is to seek employment. See App. 43; ; Select Committee, at 25, 38. Factory surveys strike directly at this cause, enabling the INS with relatively few agents to diminish the incentive for the dangerous passage across the border and to apprehend large numbers of those who come. Clearly, the Government interest in this enforcement technique is enormous.[5] *224 The intrusion into the Fourth Amendment interests of the employees, on the other hand, is about the same as it was in The objective intrusion is actually less: there, cars often were stopped for up to five minutes, while here employees could continue their work as the survey progressed. They were diverted briefly to answer a few questions or to display their registration cards. It is true that the initial entry into the plant in a factory survey is a surprise to the workers, but the obviously authorized character of the operation, the clear purpose of seeking illegal aliens, and the systematic and public nature of the survey serve to minimize any concern or fright on the part of lawful employees. Moreover, the employees' expectation of privacy in the plant setting here, like that in an automobile, certainly is far less than the traditional expectation of privacy in one's residence. Therefore, for the same reasons that we upheld the checkpoint stops in without any individualized suspicion, I would find the factory surveys here to be reasonable.[6] *225 JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, |
Justice Stevens | 1,984 | 16 | concurring | INS v. Delgado | https://www.courtlistener.com/opinion/111148/ins-v-delgado/ | be reasonable.[6] *225 JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part and dissenting in part. As part of its ongoing efforts to enforce the immigration laws, the Immigration and Naturalization Service (INS) conducts "surveys" of those workplaces that it has reason to believe employ large numbers of undocumented aliens who may be subject to deportation. This case presents the question whether the INS's method of carrying out these "factory surveys"[1] violates the rights of the affected factory workers to be secure against unreasonable seizures of one's person as guaranteed by the Fourth Amendment. Answering that question, the Court today holds, first, that the INS surveys involved here did not result in the seizure of the entire factory work force for the complete duration of the surveys, ante, at 218-219, and, second, that the individual questioning of respondents by INS agents concerning their citizenship did not constitute seizures within the meaning of the Fourth Amendment, ante, at 219-221. Although I generally agree with the Court's first conclusion,[2] I am convinced that a fair application of our prior decisions to the facts of this case *226 compels the conclusion that respondents were unreasonably seized by INS agents in the course of these factory surveys. At first blush, the Court's opinion appears unremarkable. But what is striking about today's decision is its studied air of unreality. Indeed, it is only through a considerable feat of legerdemain that the Court is able to arrive at the conclusion that the respondents were not seized. The success of the Court's sleight of hand turns on the proposition that the interrogations of respondents by the INS were merely brief, "consensual encounters," ante, at 221, that posed no threat to respondents' personal security and freedom. The record, however, tells a far different story. I Contrary to the Court's suggestion, see ante, at 216, we have repeatedly considered whether and, if so, under what circumstances questioning of an individual by law enforcement officers may amount to a seizure within the meaning of the Fourth Amendment. See, e. g., ; ; ; ; United ; Of course, as these decisions recognize, the question does not admit of any simple answer. The difficulty springs from the inherent tension between our commitment to safeguarding the precious, and all too fragile, right to go about one's business free from unwarranted government interference, and our recognition that the police must be allowed some latitude in gathering information from those individuals who are willing to cooperate. Given these difficulties, it is perhaps understandable that our efforts to strike an appropriate balance have not |
Justice Stevens | 1,984 | 16 | concurring | INS v. Delgado | https://www.courtlistener.com/opinion/111148/ins-v-delgado/ | that our efforts to strike an appropriate balance have not produced uniform results. Nevertheless, the outline of what appears to be the appropriate inquiry has been traced over the years with some clarity. *227 The Court launched its examination of this issue in by explaining that "the Fourth Amendment governs `seizures' of the person which do not eventuate in a trip to the station house and prosecution for crime `arrests' in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person." Such a seizure, the Court noted, may be evidenced by either "physical force or show of authority" indicating that the individual's liberty has been restrained. The essential teaching of the Court's decision in Terry that an individual's right to personal security and freedom must be respected even in encounters with the police that fall short of full arrest has been consistently reaffirmed. In -727, for example, the Court confirmed that investigatory detentions implicate the protections of the Fourth Amendment and further explained that "while the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer." Similarly, in we overturned a conviction for refusing to stop and identify oneself to police, because, in making the stop, the police lacked any "reasonable suspicion, based on objective facts, that the individual [was] involved in criminal activity." The animating principle underlying this unanimous decision was that the Fourth Amendment protects an individual's personal security and privacy from unreasonable interference by the police, even when that interference amounts to no more than a brief stop and questioning concerning one's identity. Although it was joined at the time by only one other Member of this Court, Part II-A of Justice Stewart's opinion in United offered a helpful, preliminary distillation of the lessons of these cases. Noting *228 first that "as long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy," Justice Stewart explained that "a person has been `seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." The opinion also suggested that such circumstances might include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or |
Justice Stevens | 1,984 | 16 | concurring | INS v. Delgado | https://www.courtlistener.com/opinion/111148/ins-v-delgado/ | some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." A majority of the Court has since adopted that formula as the appropriate standard for determining when inquiries made by the police cross the boundary separating merely consensual encounters from forcible stops to investigate a suspected crime. See (plurality opinion); 1-512 ; 4 This rule properly looks not to the subjective impressions of the person questioned but rather to the objective characteristics of the encounter which may suggest whether or not a reasonable person would believe that he remained free during the course of the questioning to disregard the questions and walk away. See 3 W. LaFave, Search and Seizure 9.2, p. 52 (1978). The governing principles that should guide us in this difficult area were summarized in the plurality opinion: "[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert *229 the encounter into a seizure requiring some level of objective justification. The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds." -498 Applying these principles to the facts of this case, I have no difficulty concluding that respondents were seized within the meaning of the Fourth Amendment when they were accosted by the INS agents and questioned concerning their right to remain in the United States. Although none of the respondents was physically restrained by the INS agents during the questioning, it is nonetheless plain beyond cavil that the manner in which the INS conducted these surveys demonstrated a "show of authority" of sufficient size and force to overbear the will of any reasonable person. Faced with such tactics, a reasonable person could not help but feel compelled to stop and provide answers to the INS agents' questions. The Court's efforts to avoid this conclusion are rooted more in fantasy than in the record of this case. |
Justice Stevens | 1,984 | 16 | concurring | INS v. Delgado | https://www.courtlistener.com/opinion/111148/ins-v-delgado/ | more in fantasy than in the record of this case. The Court goes astray, in my view, chiefly because it insists upon considering each interrogation in isolation as if respondents had been questioned by the INS in a setting similar to an encounter between a single police officer and a lone passerby that might occur on a street corner. Obviously, once the Court begins with such an unrealistic view of the facts, it is only a short step to the equally fanciful conclusion that respondents acted voluntarily when they stopped and answered the agents' questions. The surrounding circumstances in this case are far different from an isolated encounter between the police and a passerby on the street. Each of the respondents testified at length about the widespread disturbance among the workers *230 that was sparked by the INS surveys and the intimidating atmosphere created by the INS's investigative tactics. First, as the respondents explained, the surveys were carried out by surprise by relatively large numbers of agents, generally from 15 to 25, who moved systematically through the rows of workers who were seated at their work stations. See App. 77-78, 81-85, 102-103, 122-123. Second, as the INS agents discovered persons whom they suspected of being illegal aliens, they would handcuff these persons and lead them away to waiting vans outside the factory. See Third, all of the factory exits were conspicuously guarded by INS agents, stationed there to prevent anyone from leaving while the survey was being conducted. See Finally, as the INS agents moved through the rows of workers, they would show their badges and direct pointed questions at the workers. In light of these circumstances, it is simply fantastic to conclude that a reasonable person could ignore all that was occurring throughout the factory and, when the INS agents reached him, have the temerity to believe that he was at liberty to refuse to answer their questions and walk away. Indeed, the experiences recounted by respondents clearly demonstrate that they did not feel free either to ignore the INS agents or to refuse to answer the questions posed to them. For example, respondent Delgado, a naturalized American citizen, explained that he was standing near his work station when two INS agents approached him, identified themselves as immigration officers, showed him their badges, and asked him to state where he was born. Delgado, of course, had seen all that was going on around him up to that point and naturally he responded. As a final reminder of who controlled the situation, one INS agent remarked as they were leaving |
Justice Stevens | 1,984 | 16 | concurring | INS v. Delgado | https://www.courtlistener.com/opinion/111148/ins-v-delgado/ | the situation, one INS agent remarked as they were leaving Delgado that they would be coming back to check him out again because he spoke English too well. Respondent Miramontes described her encounter with the INS in similar terms: "He *231 told me he was from Immigration, so when I showed him the [work permit] papers I saw his badge. If I hadn't [seen his badge], I wouldn't have shown them to him." She further testified that she was frightened during this interview because "normally you get nervous when you see everybody is scared, everybody is nervous." Respondent Labontes testified that while she was sitting at her machine an immigration officer came up to her from behind, tapped her on the left shoulder and asked "Where are your papers?" Explaining her response to this demand, she testified: "I turned, and at the same time I didn't wish to identify myself. When I saw [the INS agents], I said, `Yes, yes, I have my papers.' " In sum, it is clear from this testimony that respondents felt constrained to answer the questions posed by the INS agents, even though they did not wish to do so. That such a feeling of constraint was reasonable should be beyond question in light of the surrounding circumstances. Indeed, the respondents' testimony paints a frightening picture of people subjected to wholesale interrogation under conditions designed not to respect personal security and privacy, but rather to elicit prompt answers from completely intimidated workers. Nothing could be clearer than that these tactics amounted to seizures of respondents under the Fourth Amendment.[3] *232 II The Court's eagerness to conclude that these interrogations did not represent seizures is to some extent understandable, of course, because such a conclusion permits the Court to avoid the imposing task of justifying these seizures on the basis of reasonable, objective criteria as required by the Fourth Amendment. The reasonableness requirement of the Fourth Amendment applies to all seizures of the person, including those that involve only a brief detention short of traditional arrest. But because the intrusion upon an individual's personal security and privacy is limited in cases of this sort, we have explained that brief detentions may be justified on "facts that do not amount to the probable cause required for an arrest." United Nevertheless, our prior decisions also make clear that investigatory stops of the kind at issue here "must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United As the Court stated in Terry, the "demand for specificity |
Justice Stevens | 1,984 | 16 | concurring | INS v. Delgado | https://www.courtlistener.com/opinion/111148/ins-v-delgado/ | As the Court stated in Terry, the "demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence." n. 18. Repeatedly, we have insisted that police may not detain and interrogate an individual unless they have reasonable grounds for suspecting that the person is involved in some unlawful activity. In United for instance, the Court held that "[Border Patrol] officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country." See also ; ; 443 U. S., -52; Delaware ; -149; -728; 392 U. S., -19. This requirement of particularized suspicion provides the chief protection of lawful citizens against unwarranted governmental interference with their personal security and privacy. In this case, the individual seizures of respondents by the INS agents clearly were neither "based on specific, objective facts indicating that society's legitimate interests require[d] the seizure," nor "carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." It is undisputed that the vast majority of the undocumented aliens discovered in the surveyed factories had illegally immigrated from Mexico. Nevertheless, the INS agents involved in this case apparently were instructed, in the words of the INS Assistant District Director in charge of the operations, to interrogate "virtually all persons employed by a company." App. 49. See also Consequently, all workers, irrespective of whether they were American citizens, permanent resident aliens, or deportable aliens, were subjected to questioning by INS agents concerning their right to remain in the country. By their own admission, the INS agents did not selectively question persons in these surveys on the basis of any reasonable suspicion that the persons were illegal aliens. See That the INS policy is so indiscriminate should not be surprising, however, since many of the employees in the surveyed factories who are lawful residents of the United States may have been born in Mexico, have a Latin appearance, or speak Spanish while at work. See What this means, of course, is that the many lawful workers who constitute the clear majority at the surveyed workplaces are subjected to surprise questioning under intimidating circumstances by INS agents who have no reasonable basis for suspecting that they have *234 done anything wrong. To say that such an indiscriminate policy of mass interrogation is constitutional makes a mockery of the words of the Fourth Amendment. Furthermore, even if the INS agents |
Justice Stevens | 1,984 | 16 | concurring | INS v. Delgado | https://www.courtlistener.com/opinion/111148/ins-v-delgado/ | of the Fourth Amendment. Furthermore, even if the INS agents had pursued a firm policy of stopping and interrogating only those persons whom they reasonably suspected of being aliens, they would still have failed, given the particular circumstances of this case, to safeguard adequately the rights secured by the Fourth Amendment. The first and in my view insurmountable problem with such a policy is that, viewed realistically, it poses such grave problems of execution that in practice it affords virtually no protection to lawful American citizens working in these factories. This is so because, as the Court recognized in there is no reliable way to distinguish with a reasonable degree of accuracy between native-born and naturalized citizens of Mexican ancestry on the one hand, and aliens of Mexican ancestry on the other.[4] See also Immigration Policy and the Rights of Aliens, Indeed, the record in this case clearly demonstrates this danger, since respondents Correa and Delgado, although both American citizens, were subjected to questioning during the INS surveys. *235 Moreover, the mere fact that a person is believed to be an alien provides no immediate grounds for suspecting any illegal activity. Congress, of course, possesses broad power to regulate the admission and exclusion of aliens, see ; and resident aliens surely may be required to register with the INS and to carry proper identification, see 8 U.S. C. 1302, 1304(e). Nonetheless, as we held in -884, when the Executive Branch seeks to enforce such congressional policies, it may not employ enforcement techniques that threaten the constitutional rights of American citizens. In contexts such as these factory surveys, where it is virtually impossible to distinguish fairly between citizens and aliens, the threat to vital civil rights of American citizens would soon become intolerable if we simply permitted the INS to question persons solely on account of suspected alienage. Cf. -886. Therefore, in order to protect both American citizens and lawful resident aliens, who are also protected by the Fourth Amendment, see the INS must tailor its enforcement efforts to focus only on those workers who are reasonably suspected of being illegal aliens.[5] *236 Relying upon United however, JUSTICE POWELL would hold that the interrogation of respondents represented a "reasonable" seizure under the Fourth Amendment, even though the INS agents lacked any particularized suspicion of illegal alienage to support the questioning, ante, at 224. In my view, reliance on that decision is misplaced. In the Court held that when the intrusion upon protected privacy interests is extremely limited, the INS, in order to serve the pressing governmental interest in immigration enforcement, may |
Justice Stevens | 1,984 | 16 | concurring | INS v. Delgado | https://www.courtlistener.com/opinion/111148/ins-v-delgado/ | to serve the pressing governmental interest in immigration enforcement, may briefly detain travelers at fixed checkpoints for questioning solely on the basis of "apparent Mexican ancestry." In so holding, the Court was careful to distinguish its earlier decision in which held that Border Patrol agents conducting roving patrols may not stop and question motorists solely on the basis of apparent Mexican ancestry, and may instead make such stops only when their observations lead them "reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country." The "crucial distinction" between the roving patrols and the fixed checkpoints, as the Court later observed in Delaware v. was "the lesser intrusion upon the motorist's Fourth Amendment interests" caused by the checkpoint operations. Thus, as the Court explained in : "This objective intrusion the stop itself, the questioning, and the visual inspection also existed in roving-patrol stops. But we view checkpoint stops in a different light because the subjective intrusion the generating of concern or even fright on the part of lawful travelers is appreciably less in the case of a checkpoint stop."[6] *237 The limited departure from Terry's general requirement of particularized suspicion permitted in turned, therefore, largely on the fact that the intrusion upon motorists resulting from the checkpoint operations was extremely modest. In this case, by contrast, there are no equivalent guarantees that the privacy of lawful workers will not be substantially invaded by the factory surveys or that the workers will not be frightened by the INS tactics. Indeed, the opposite is true. First, unlike the fixed checkpoints that were upheld in in part because their location was known to motorists in advance, the INS factory surveys are sprung upon unsuspecting workers completely by surprise. Respondents testified that the sudden arrival of large numbers of INS agents created widespread fear and anxiety among most workers. See App. 89, 107, 116, 120-121, 129-130. Respondent Miramontes, for instance, explained that she was afraid during the surveys "[b]ecause if I leave and they think I don't have no papers and they shoot me or something. They see me leaving and they think I'm guilty."[7] In there was absolutely no evidence of widespread fear and anxiety similar to that adduced in this case. Second, the degree of unfettered discretionary judgment exercised by the individual INS agents during the factory surveys is considerably greater than in the fixed checkpoint operations. The power of individual INS agents to decide who they will stop and question and who they will pass over contributes significantly to the feeling of |
Justice Stevens | 1,984 | 16 | concurring | INS v. Delgado | https://www.courtlistener.com/opinion/111148/ins-v-delgado/ | they will pass over contributes significantly to the feeling of uncertainty and *238 anxiety of the workers. See App. 86, 90, 129-130. Unlike the fixed checkpoint operation, there can be no reliable sense among the affected workers that the survey will be conducted in an orderly and predictable manner. Third, although the workplace obviously is not as private as the home, it is at the same time not without an element of privacy that is greater than in an automobile. All motorists expect that while on the highway they are subject to general police surveillance as part of the regular and expectable enforcement of traffic laws. For the average employee, however, the workplace encloses a small, recognizable community that is a locus of friendships, gossip, common effort, and shared experience. While at work, therefore, the average employee will not have the same sense of anonymity that is felt when one is driving on the public highways; instead, an employee will be known by co-workers and will recognize other employees as his or her fellows. This experience, common enough among all who work, forms the basis for a legitimate, albeit modest, expectation of privacy that cannot be indiscriminately invaded by government agents. See The mere fact that the employer has consented to the entry of the INS onto his property does not mean that the workers' expectation of privacy evaporates. Finally, there is no historical precedent for these kinds of surveys that would make them expectable or predictable. As the Court noted in road checkpoints are supported to some extent by a long history of acceptance that diminishes substantially the concern and fear that such practices would elicit in the average motorist. But factory surveys of the kind conducted by the INS are wholly unprecedented, and their novelty can therefore be expected to engender a high degree of resentment and anxiety. In sum, although the governmental interest is obviously as substantial here as it was in *239 the degree of intrusion upon the privacy rights of lawful workers is significantly greater. Accordingly, the quantum of suspicion required to justify such an intrusion must be correspondingly greater. In my view, therefore, the only acceptable alternatives that would adequately safeguard Fourth Amendment values in this context are for the INS either (a) to adopt a firm policy of stopping and questioning only those workers who are reasonably suspected of being illegal aliens, or (b) to develop a factory survey program that is predictably and reliably less intrusive than the current scheme under review. The first alternative would satisfy the requirement of particularized suspicion |
Justice Stevens | 1,984 | 16 | concurring | INS v. Delgado | https://www.courtlistener.com/opinion/111148/ins-v-delgado/ | The first alternative would satisfy the requirement of particularized suspicion enunciated in Terry a principle that must control here because the specific conditions that permitted exception to that requirement in are simply not present. The second alternative would seek to redesign the factory survey techniques used by the INS in order to bring them more closely into line with the characteristics found in Such a scheme might require the INS, before conducting a survey of all workers in a particular plant, to secure an administrative warrant based upon a showing that reasonable grounds exist for believing that a substantial number of workers employed at the factory are undocumented aliens subject to deportation, and that there are no practical alternatives to conducting such a survey. Cf. In addition, the surveys could be further tailored in duration and manner so as to be substantially less intrusive. III No one doubts that the presence of large numbers of undocumented aliens in this country creates law enforcement problems of titanic proportions for the INS. Nor does anyone question that this agency must be afforded considerable latitude in meeting its delegated enforcement responsibilities. I am afraid, however, that the Court has become so *240 mesmerized by the magnitude of the problem that it has too easily allowed Fourth Amendment freedoms to be sacrificed. Before we discard all efforts to respect the commands of the Fourth Amendment in this troubling area, however, it is worth remembering that the difficulties faced by the INS today are partly of our own making. The INS methods under review in this case are, in my view, more the product of expedience than of prudent law enforcement policy. The Immigration and Nationality Act establishes a quota-based system for regulating the admission of immigrants to this country which is designed to operate primarily at our borders. See 8 U.S. C. 1151-1153, 1221-1225. See generally -1369. With respect to Mexican immigration, however, this system has almost completely broken down. This breakdown is due in part, of course, to the considerable practical problems of patroling a 2,000-mile border; it is, however, also the result of our failure to commit sufficient resources to the border patrol effort. See Administration's Proposals on Immigration and Refugee Policy: Joint Hearing before the Subcommittee on Immigration, Refugees, and International Law of the House Committee on the Judiciary, and the Subcommittee on Immigration and Refugee Policy of the Senate Committee on the Judiciary, 97th Cong., 1st Sess., 6 (statement of Attorney General Smith); see also Furthermore, the Act expressly exempts American business that employ undocumented aliens from all criminal |
Justice Stevens | 1,984 | 16 | concurring | INS v. Delgado | https://www.courtlistener.com/opinion/111148/ins-v-delgado/ | exempts American business that employ undocumented aliens from all criminal sanctions, 8 U.S. C. 1324(a), thereby adding to the already powerful incentives for aliens to cross our borders illegally in search of employment.[8] *241 In the face of these facts, it seems anomalous to insist that the INS must now be permitted virtually unconstrained discretion to conduct wide-ranging searches for undocumented aliens at otherwise lawful places of employment in the interior of the United States. What this position amounts to, I submit, is an admission that since we have allowed border enforcement to collapse and since we are unwilling to require American employers to share any of the blame, we must, as a matter of expediency, visit all of the burdens of this jury-rigged enforcement scheme on the privacy interests of completely lawful citizens and resident aliens who are subjected to these factory raids solely because they happen to work alongside some undocumented aliens.[9] The average American, as we have long recognized, see expects some interference with his or her liberty when seeking to cross the Nation's borders, but until today's decision no one would ever have expected the same treatment while lawfully at work in the country's interior. Because the conditions which spawned such expedient solutions are in no sense the fault of these *242 lawful workers, the Court, as the guardian of their constitutional rights, should attend to this problem with greater sensitivity before simply pronouncing the Fourth Amendment a dead letter in the context of immigration enforcement. The answer to these problems, I suggest, does not lie in abandoning our commitment to protecting the cherished rights secured by the Fourth Amendment, but rather may be found by reexamining our immigration policy. I dissent. |
Justice Thomas | 2,005 | 1 | dissenting | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | Carman Deck was convicted of murdering and robbing an elderly couple. He stood before the sentencing jury not as an innocent man, but as a convicted double murderer and robber. Today this Court holds that Deck's due process rights were violated when he appeared at sentencing in leg irons, handcuffs, and a belly chain. The Court holds that such restraints may only be used where the use is "`justified by an essential state interest'" that is "specific to the defendant *636 on trial," ante, at 624, and that is supported by specific findings by the trial court. Tradition either at English common law or among the States does not support this conclusion. To reach its result, the Court resurrects an old rule the basis for which no longer exists. It then needlessly extends the rule from trials to sentencing. In doing so, the Court pays only superficial heed to the practice of States and gives conclusive force to errant dicta sprinkled in a trio of this Court's cases. The Court's holding defies common sense and all but ignores the serious security issues facing our courts. I therefore respectfully dissent. I Carman Deck and his sister went to the home of Zelma and James Long on a summer evening in After waiting for nightfall, Deck and his sister knocked on the door of the Longs' home, and when Mrs. Long answered, they asked for directions. Mrs. Long invited them in, and she and Mr. Long assisted them with directions. When Deck moved toward the door to leave, he drew a pistol, pointed it at the Longs, and ordered them to lie face down on their bed. The Longs did so, offering up money and valuables throughout the house and all the while begging that he not harm them. After Deck finished robbing their house, he stood at the edge of their bed, deliberating for 10 minutes over whether to spare them. He ignored their pleas and shot them each twice in the head. Deck later told police that he shot the Longs because he thought that they would be able to recognize him. Deck was convicted of the murders and robbery of the Longs and sentenced to death. The death sentence was overturned on appeal. Deck then had another sentencing hearing, at which he appeared in leg irons, a belly chain, and handcuffs. At the hearing, the jury heard evidence of Deck's numerous burglary and theft convictions and his assistance in a jailbreak by two prisoners. *637 On resentencing, the jury unanimously found six aggravating factors: Deck committed the |
Justice Thomas | 2,005 | 1 | dissenting | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | the jury unanimously found six aggravating factors: Deck committed the murders while engaged in the commission of another unlawful homicide; Deck murdered each victim for the purpose of pecuniary gain; each murder involved depravity of mind; each murder was committed for the purpose of avoiding a lawful arrest; each murder was committed while Deck was engaged in a burglary; and each murder was committed while Deck was engaged in a robbery. The jury recommended, and the trial court imposed, two death sentences. Deck sought postconviction relief from his sentence, asserting, among other things, that his due process and equal protection rights were violated by the trial court's requirement that he appear in shackles. The Missouri Supreme Court rejected that claim. The court reasoned that "there was a risk that [Deck] might flee in that he was a repeat offender and evidence from the guilt phase of his trial indicated that he killed his two victims to avoid being returned to custody," and thus it could not conclude that the trial court had abused its discretion. II My legal obligation is not to determine the wisdom or the desirability of shackling defendants, but to decide a purely legal question: Does the Due Process Clause of the Fourteenth Amendment preclude the visible shackling of a defendant? Therefore, I examine whether there is a deeply rooted legal principle that bars that practice. ; ; see also As I explain below, although the English common law had a rule against trying a defendant in irons, the basis for the rule makes clear that it should not be extended by rote to modern restraints, which are dissimilar in certain essential respects to the irons that gave rise to *638 the rule. Despite the existence of a rule at common law, state courts did not even begin to address the use of physical restraints until the 1870's, and the vast majority of state courts would not take up this issue until the 20th century, well after the ratification of the Fourteenth Amendment. Neither the earliest case nor the more modern cases reflect a consensus that would inform our understanding of the requirements of due process. I therefore find this evidence inconclusive. A English common law in the 17th and 18th centuries recognized a rule against bringing the defendant in irons to the bar for trial. See, e. g., 4 W. Blackstone, Commentaries on the Laws of England 317 (1769); 3 Coke, Institutes of the Laws of England *34 (hereinafter Coke). This rule stemmed from none of the concerns to which the Court points, ante, at 630-633the |
Justice Thomas | 2,005 | 1 | dissenting | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | the concerns to which the Court points, ante, at 630-633the presumption of innocence, the right to counsel, concerns about decorum, or accuracy in decisionmaking. Instead, the rule ensured that a defendant was not so distracted by physical pain during his trial that he could not defend himself. As one source states, the rule prevented prisoners from "any Torture while they ma[de] their defence, be their Crime never so great." J. Kelyng, A Report of Divers Cases in Pleas of the Crown 10 (1708).[1] This concern was understandable, for the irons of that period were heavy and painful. In fact, leather strips often lined the irons to prevent them from rubbing away a defendant's *639 skin. T. Gross, Manacles of the World: A Collector's Guide to International Handcuffs, Leg Irons and other Miscellaneous Shackles and Restraints 25 (1997). Despite Coke's admonition that "[i]t [was] an abuse that prisoners be chained with irons, or put to any pain before they be attained," Coke *34, suspected criminals often wore irons during pretrial confinement. J. Langbein, The Origins of Adversary Criminal Trial 50, and n. 197 (2003) (hereinafter Langbein). For example, prior to his trial in 1722 for treason, Christopher Layer spent his confinement in irons. Layer's counsel urged that his irons be struck off, for they allowed him to "sleep but in one posture." Trial of Christopher Layer, 16 How. St. Tr. 94, 98 (K. B. 1722). The concern that felony defendants not be in severe pain at trial was acute because, before the 1730's, defendants were not permitted to have the assistance of counsel at trial, with an early exception made for those charged with treason. Langbein 170-172. Instead, the trial was an "`accused speaks'" trial, at which the accused defended himself. The accused was compelled to respond to the witnesses, making him the primary source of information at trial. ; see also As the Court acknowledges, ante, at 626, the rule against shackling did not extend to arraignment.[2] A defendant remained in irons at arraignment because "he [was] only called upon to plead by advice of his counsel;" he was not on trial, *640 where he would play the main role in defending himself. Trial of Christopher Layer, A modern-day defendant does not spend his pretrial confinement wearing restraints. The belly chain and handcuffs are of modest, if not insignificant, weight. Neither they nor the leg irons cause pain or suffering, let alone pain or suffering that would interfere with a defendant's ability to assist in his defense at trial. And they need not interfere with a defendant's ability to assist |
Justice Thomas | 2,005 | 1 | dissenting | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | they need not interfere with a defendant's ability to assist his counsel a defendant remains free to talk with counsel during trial, and restraints can be employed so as to ensure that a defendant can write to his counsel during the trial. Restraints can also easily be removed when a defendant testifies, so that any concerns about testifying can be ameliorated. Modern restraints are therefore unlike those that gave rise to the traditional rule. The Court concedes that modern restraints are nothing like the restraints of long ago, ante, at 630, and even that the rule at common law did not rest on any of the "three fundamental legal principles" the Court posits to support its new rule, Yet the Court treats old and modern restraints as similar for constitutional purposes merely because they are both types of physical restraints. This logical leap ignores that modern restraints do not violate the principle animating the common-law rule. In making this leap, the Court strays from the appropriate legal inquiry of examining common-law traditions to inform our understanding of the Due Process Clause. B In the absence of a common-law rule that applies to modern-day restraints, state practice is also relevant to determining whether a deeply rooted tradition supports the conclusion that the Fourteenth Amendment's Due Process Clause limits shackling. See 527 U. S., at The practice among the States, however, does not support, let alone require, the conclusion *641 that shackling can be done only where "particular concerns related to the defendant on trial" are articulated as findings in the record. Ante, at 633. First, state practice is of modern, not longstanding, vintage. The vast majority of States did not address the issue of physical restraints on defendants during trial until the 20th century. Second, the state cases both the earliest to address shackling and even the later cases reflect substantial differences that undermine the contention that the Due Process Clause so limits the use of physical restraints. Third, state- and lower federal-court cases decided after and are not evidence of a current consensus about the use of physical restraints. Such cases are but a reflection of the dicta contained in and 1 State practice against shackling defendants was established in the 20th century. In 35 States, no recorded state-court decision on the issue appears until the 20th century.[3]*642 Of those 35 States, 21 States have no recorded decision on the question until the 1950's or later.[4] The 14 state (including then-territorial) courts that addressed the matter before the 20th century only began to do so in the |
Justice Thomas | 2,005 | 1 | dissenting | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | the 20th century only began to do so in the 1870's.[5] The *643 Supreme Court's decision in "seems to have been the first case in this country where this ancient rule of the common law was considered and enforced." The practice in the United States is thus of contemporary vintage. State practice that was only nascent in the late 19th century is not evidence of a consistent unbroken tradition dating to the common law, as the Court suggests. Ante, at 626-627. The Court does not even attempt to account for the century of virtual silence between the practice established at English common law and the emergence of the rule in the United States. Moreover, the belated and varied state practice is insufficient to warrant the conclusion that shackling of a defendant violates his due process rights. See 2 The earliest state cases reveal courts' divergent views of visible shackling, undermining the notion that due process cabins shackling to cases in which "particular concerns related to the defendant on trial" are supported by findings on the record. Ante, at 633. The Supreme Court of the New Mexico Territory held that great deference was to be accorded the trial court's decision to put the defendant in shackles, permitting a reviewing court to presume that there had been a basis for doing so if the record lay silent. Territory v. Kelly, 2 N. M. 292, 304-306 (18). Only if the record "affirmatively" showed "no *644 reason whatever" for shackling was the decision to shackle a defendant erroneous. ; see overruled in relevant part, The Alabama Supreme Court also left the issue to the trial court's discretion and went so far as to bar any appeal from the trial court's decision to restrain the defendant. ; see (18) Mississippi concluded that the decision to shackle a defendant "may be safely committed to courts and sheriffs, whose acts are alike open to review in the courts and at the ballot overruled on other grounds, By contrast, Missouri, Washington, and Oregon adopted more restrictive approaches. In the Supreme Court held that shackling a defendant "without evident necessity" of any kind violated the common-law rule as well as state law and was prejudicial to the defendant. A few years later, the Missouri courts took an even more restrictive view, concluding that the use of shackles or other such restraints was permitted only if warranted by the defendant's conduct "at the time of the trial." ; see at 207-, (following Kring and without discussion); 581-5 *645 Texas took an intermediate position. The Texas Court of Appeals relied on |
Justice Thomas | 2,005 | 1 | dissenting | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | an intermediate position. The Texas Court of Appeals relied on Kring, and at the same time deferred to the decision made by the sheriff to bring the defendant into the courtroom in shackles. See ; see also (following but permitting the shackling of a defendant at arraignment based on the crime for which he had been arrested as well as the reward that had been offered for his recapture). Thus, in the late 19th century States agreed that generally defendants ought to come to trial unfettered, but they disagreed over the breadth of discretion to be afforded trial courts. A bare majority of States required that trial courts and even jailers be given great leeway in determining when a defendant should be restrained; a minority of States severely constrained such discretion, in some instances by limiting the information that could be considered; and an even smaller set of States took an intermediate position. While the most restrictive view adopted by States is perhaps consistent with the rule Deck seeks, the majority view is flatly inconsistent with requiring a State to show, and for a trial court to set forth, findings of an "`essential state interest'" "specific to the defendant on trial" before shackling a defendant. Ante, at 624. In short, there was no consensus that supports elevating the rule against shackling to a federal constitutional command. 3 The modern cases provide no more warrant for the Court's approach than do the earliest cases. The practice in the 20th century did not resolve the divisions among States that emerged in the 19th century. As more States addressed the issue, they continued to express a general preference that defendants be brought to trial without shackles. They continued, however, to disagree about the latitude to be given trial courts. Many deferred to the judgment of the trial *646 court,[7] and some to the views of those responsible for guarding the defendant.[8] States also continued to disagree over whether the use of shackles was inherently prejudicial.[9] Moreover, States differed over the information that could *647 be considered in deciding to shackle the defendant and the certainty of the risk that had to be established, with a small minority limiting the use of shackles to instances arising from conduct specific to the particular trial or otherwise requiring an imminent threat.[10] The remaining States permitted courts to consider a range of information outside the trial, including past escape,[] prior convictions,[12] the nature of the crime for which the defendant was on trial,[13] conduct prior to trial while in prison,[14] any prior disposition toward *648 violence,[15] and |
Justice Thomas | 2,005 | 1 | dissenting | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | while in prison,[14] any prior disposition toward *648 violence,[15] and physical attributes of the defendant, such as his size, physical strength, and age.[16] The majority permits courts to continue to rely on these factors, which are undeniably probative of the need for shackling, as a basis for shackling a defendant both at trial and at sentencing. Ante, at 629. In accepting these traditional factors, the Court rejects what has been adopted by few States that courts may consider only a defendant's conduct at the trial itself or other information demonstrating that it is a relative certainty that the defendant will engage in disruptive or threatening conduct at his trial. See 97 N.W.2d ; ; ; ; but see 136 S.W.3d, (appearing to have abandoned this test). A number of those traditional factors were present in this case. Here, Deck killed two people to avoid arrest, a fact to which he had confessed. Evidence was presented that Deck had aided prisoners in an escape attempt. Moreover, a jury *649 had found Deck guilty of two murders, the facts of which not only make this crime heinous but also demonstrate a propensity for violence. On this record, and with facts found by a jury, the Court says that it needs more. Since the Court embraces reliance on the traditional factors supporting the use of visible restraints, its only basis for reversing is the requirement of specific on-the-record findings by the trial judge. This requirement is, however, inconsistent with the traditional discretion afforded to trial courts and is unsupported by state practice. This additional requirement of on-the-record findings about that which is obvious from the record makes little sense to me. 4 In recent years, more of a consensus regarding the use of shackling has developed, with many courts concluding that shackling is inherently prejudicial. But rather than being firmly grounded in deeply rooted principles, that consensus stems from a series of ill-considered dicta in and In the trial court had removed the defendant from the courtroom until the court felt he could conform his conduct to basic standards befitting a court -341. This Court held that removing the defendant did not violate his due process right to be present for his trial. In dicta, the Court suggested alternatives to removal, such as citing the defendant for contempt or binding and gagging him. The Court, however, did express some revulsion at the notion of binding and gagging a defendant. and repeated 's dicta. ; The Court in went one step further than it had in describing shackling as well as binding and |
Justice Thomas | 2,005 | 1 | dissenting | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | it had in describing shackling as well as binding and gagging in dicta as "inherently prejudicial." 475 U.S., *650 The current consensus that the Court describes is one of its own making. Ante, at 628. It depends almost exclusively on the dicta in this Court's opinions in and Every lower court opinion the Court cites as evidence of this consensus traces its reasoning back to one or more of these decisions.[17] These lower courts were interpreting *651 this Court's dicta, not reaching their own independent consensus about the content of the Due Process Clause. More important, these decisions represent recent practice, which does not determine whether the Fourteenth Amendment, as properly and traditionally interpreted, i. e., as a statement of law, not policy preferences, embodies a right to be free from visible, painless physical restraints at trial. III Wholly apart from the propriety of shackling a defendant at trial, due process does not require that a defendant remain free from visible restraints at the penalty phase of a capital trial. Such a requirement has no basis in tradition or even modern state practice. Treating shackling at sentencing as inherently prejudicial ignores the commonsense distinction between a defendant who stands accused and a defendant who stands convicted. A There is no tradition barring the use of shackles or other restraints at sentencing. Even many modern courts have concluded that the rule against visible shackling does not apply to sentencing. See, e. g., ; ; ; but see These courts have rejected the suggestion that due process imposes such limits because they have understood the difference between a man *652 accused and a man convicted. See, e. g., at ; at 752 P.2d, at This same understanding is reflected even in the guilt-innocence phase. In instances in which the jury knows that the defendant is an inmate, though not yet convicted of the crime for which he is on trial, courts have frequently held that the defendant's status as inmate ameliorates any prejudice that might have flowed from the jury seeing him in handcuffs.[18] The Court's decision shuns such common sense. B In the absence of a consensus with regard to the use of visible physical restraints even in modern practice, we should not forsake common sense in determining what due process requires. Capital sentencing jurors know that the defendant has been convicted of a dangerous crime. It *653 strains credulity to think that they are surprised at the sight of restraints. Here, the jury had already concluded that there was a need to separate Deck from the community at large by |
Justice Thomas | 2,005 | 1 | dissenting | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | need to separate Deck from the community at large by convicting him of double murder and robbery. Deck's jury was surely aware that Deck was jailed; jurors know that convicted capital murderers are not left to roam the streets. It blinks reality to think that seeing a convicted capital murderer in shackles in the courtroom could import any prejudice beyond that inevitable knowledge. Jurors no doubt also understand that it makes sense for a capital defendant to be restrained at sentencing. By sentencing, a defendant's situation is at its most dire. He no longer may prove himself innocent, and he faces either life without liberty or death. Confronted with this reality, a defendant no longer has much to lose should he attempt escape and fail, it is still lengthy imprisonment or death that awaits him. For any person in these circumstances, the reasons to attempt escape are at their apex. A defendant's best opportunity to do so is in the courtroom, for he is otherwise in jail or restraints. See Westman, Handling the Problem Criminal Defendant in the Courtroom: The Use of Physical Restraints and Expulsion in the Modern Era, 2 San Diego Justice J. 507, 526-527 (1994) (hereinafter Westman). In addition, having been convicted, a defendant may be angry. He could turn that ire on his own counsel, who has failed in defending his innocence. See, e. g., Or, for that matter, he could turn on a witness testifying at his hearing or the court reporter. See, e. g., ; 847 P.2d 91, 97 Such thoughts could well enter the mind of any defendant in these circumstances, from the most dangerous to the most docile. That a defendant now *654 convicted of his crimes appears before the jury in shackles thus would be unremarkable to the jury. To presume that such a defendant suffers prejudice by appearing in handcuffs at sentencing does not comport with reality. IV The modern rationales proffered by the Court for its newly minted rule likewise fail to warrant the conclusion that due process precludes shackling at sentencing. Moreover, though the Court purports to be mindful of the tragedy that can take place in a courtroom, the stringent rule it adopts leaves no real room for ensuring the safety of the courtroom. A Although the Court offers the presumption of innocence as a rationale for the modern rule against shackling at trial, it concedes the presumption has no application at sentencing. Ante, at 632. The Court is forced to turn to the far more amorphous need for "accuracy" in sentencing. It is true that |
Justice Thomas | 2,005 | 1 | dissenting | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | amorphous need for "accuracy" in sentencing. It is true that this Court's cases demand reliability in the factfinding that precedes the imposition of a sentence of death. But shackles may undermine the factfinding process only if seeing a convicted murderer in them is prejudicial. As I have explained, this farfetched conjecture defies the reality of sentencing. The Court baldly asserts that visible physical restraints could interfere with a defendant's ability to participate in his defense. Ante, at 631. I certainly agree that shackles would be impermissible if they were to seriously impair a defendant's ability to assist in his defense, but there is no evidence that shackles do so. Deck does not argue that the shackles caused him pain or impaired his mental faculties. Nor does he argue that the shackles prevented him from communicating with his counsel during trial. *655 Counsel sat next to him; he remained fully capable of speaking with counsel. Likewise, Deck does not claim that he was unable to write down any information he wished to convey to counsel during the course of the trial. Had the shackles impaired him in that way, Deck could have sought to have at least one of his hands free to make it easier for him to write. Courts have permitted such arrangements. See, e. g., ; 0 S.W.2d The Court further expresses concern that physical restraints might keep a defendant from taking the stand on his own behalf in seeking the jury's mercy. Ante, at 631. But this concern is, again, entirely hypothetical. Deck makes no claim that, but for the physical restraints, he would have taken the witness stand to plead for his life. And under the rule the Court adopts, Deck and others like him need make no such assertion, for prejudice is presumed absent a showing by the government to the contrary. Even assuming this concern is real rather than imagined, it could be ameliorated by removing the restraints if the defendant wishes to take the stand. See, e. g., De 96 Okla. Crim. 3, 256 P.2d Instead, the Court says, the concern requires a categorical rule that the use of visible physical restraints violates the Due Process Clause absent a demanding showing. The Court's solution is overinclusive. The Court also asserts the rule it adopts is necessary to protect courtroom decorum, which the use of shackles would offend. Ante, at 631-632. This courtroom decorum rationale misunderstands this Court's precedent. No decision of this Court has ever intimated, let alone held, that the protection of the "courtroom's formal dignity," ante, at 631, is an individual |
Justice Thomas | 2,005 | 1 | dissenting | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | the "courtroom's formal dignity," ante, at 631, is an individual right enforceable by criminal defendants. Certainly, courts have always had the inherent power to ensure that both those who appear before them and those who observe *656 their proceedings conduct themselves appropriately. See, e. g., The power of the courts to maintain order, however, is not a right personal to the defendant, much less one of constitutional proportions. Far from viewing the need for decorum as a right the defendant can invoke, this Court has relied on it to limit the conduct of defendants, even when their constitutional rights are implicated. This is why a defendant who proves himself incapable of abiding by the most basic rules of the court is not entitled to defend himself, -835, n. 46, or to remain in the courtroom, see The concern for courtroom decorum is not a concern about defendants, let alone their right to due process. It is a concern about society's need for courts to operate effectively. Wholly apart from the unwarranted status the Court accords "courtroom decorum," the Court fails to explain the affront to the dignity of the courts that the sight of physical restraints poses. I cannot understand the indignity in having a convicted double murderer and robber appear before the court in visible physical restraints. Our Nation's judges and juries are exposed to accounts of heinous acts daily, like the brutal murders Deck committed in this case. Even outside the courtroom, prisoners walk through courthouse halls wearing visible restraints. Courthouses are thus places in which members of the judiciary and the public come into frequent contact with defendants in restraints. Yet, the Court says, the appearance of a convicted criminal in a belly chain and handcuffs at a sentencing hearing offends the sensibilities of our courts. The courts of this Nation do not have such delicate constitutions. Finally, the Court claims that "[t]he appearance of the offender during the penalty phase in shackles almost inevitably implies to a jury, as a matter of common sense, that court authorities consider the offender a danger to the community often a statutory aggravator and nearly always a *657 relevant factor in jury decisionmaking." Ante, at 633. This argument is flawed. It ignores the fact that only relatively recently have the penalty and guilt phases been conducted separately. That the historical evidence reveals no consensus prohibiting visible modern-day shackles during capital trials suggests that there is similarly no consensus prohibiting shackling during capital sentencing. Moreover, concerns about a defendant's dangerousness exist at the guilt phase just as they exist at |
Justice Thomas | 2,005 | 1 | dissenting | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | exist at the guilt phase just as they exist at the penalty phase jurors will surely be more likely to convict a seemingly violent defendant of murder than a seemingly placid one. If neither common law nor modern state cases support the Court's position with respect to the guilt phase, I see no reason why the fact that a defendant may be perceived as a future danger would support the Court's position with respect to the penalty phase. B The Court expresses concern for courtroom security, but its concern rings hollow in light of the rule it adopts. The need for security is real. Judges face the possibility that a defendant or his confederates might smuggle a weapon into court and harm those present, or attack with his bare hands. For example, in in Berks County, Pennsylvania, a "defendant forced his way to the bench and beat the judge unconscious." Calhoun, Violence Toward Judicial Officials, 576 Annals of the American Academy of Political and Social Science 54, 61 (2001). One study of Pennsylvania judges projected that over a 20-year career, district justices had a 31 percent probability of being physically assaulted one or more times. See Kirschner, Rozek, & Weiner, Violence in the Judicial Workplace: One State's Experience, 576 Annals of the American Academy of Political and Social Science 38, 42 (2001). Judges are not the only ones who face the risk of violence. Sheriffs and courtroom bailiffs face the second highest rate of homicide in the workplace, a rate which is 15 times higher than the national average. Faust & Raffo, *658 Local Trial Court Response to Courthouse Safety, 576 Annals of the American Academy of Political and Social Science 91, 93-94 (2001); Weiner et al., Safe and Secure: Protecting Judicial Officials, 36 Court Review 26, 27 The problem of security may only be worsening. According to the General Accounting Office (GAO), the nature of the prisoners in the federal system has changed: "[T]here are more `hard-core tough guys' and more multiple-defendant cases," making the work of the federal marshals increasingly difficult. GAO, Federal Judicial Security: Comprehensive Risk-Based Program Should Be Fully Implemented 21 (July 1994). Security issues are particularly acute in state systems, in which limited manpower and resources often leave judges to act as their own security. See Those resources further vary between rural and urban areas, with many rural areas able to supply only minimal security. Security may even be at its weakest in the courtroom itself, for there the defendant is the least restrained. Westman 526. In the face of this real danger to |
Justice Thomas | 2,005 | 1 | dissenting | Deck v. Missouri | https://www.courtlistener.com/opinion/142897/deck-v-missouri/ | Westman 526. In the face of this real danger to courtroom officials and bystanders, the Court limits the use of visible physical restraints to circumstances "specific to a particular trial," ante, at 629, i.e., "particular concerns related to the defendant on trial," ante, at 633. Confining the analysis to trial-specific circumstances precludes consideration of limits on the security resources of courts. Under that test, the particulars of a given courthouse (being nonspecific to any particular defendant) are irrelevant, even if the judge himself is the only security, or if a courthouse has few on-duty officers standing guard at any given time, or multiple exits. Forbidding courts from considering such circumstances fails to accommodate the unfortunately dire security situation faced by this Nation's courts. * * * *659 The Court's decision risks the lives of courtroom personnel, with little corresponding benefit to defendants. This is a risk that due process does not require. I respectfully dissent. |
Justice Thomas | 2,019 | 1 | majority | Cochise Consultancy, Inc. v. United States ex rel. Hunt | https://www.courtlistener.com/opinion/4618957/cochise-consultancy-inc-v-united-states-ex-rel-hunt/ | The False Claims Act contains two limitations periods that apply to a “civil action under section 3730”—that is, an action asserting that a person presented false claims to the United States Government. 31 U.S. C. The first period requires that the action be brought within 6 years after the statutory violation occurred. The second period requires that the action be brought within 3 years after the United States official charged with the responsi- bility to act knew or should have known the relevant facts, but not more than 10 years after the violation. Whichever period provides the later date serves as the limitations period. This case requires us to decide how to calculate the limitations period for qui tam suits in which the United States does not intervene. The Court of Appeals held that these suits are “civil action[s] under section 3730” and that the limitations periods in apply in accordance with their terms, regardless of whether the United States intervenes. It further held that, for purposes of the second period, the private person who initiates the qui tam suit 2 COCHISE CONSULTANCY, INC. v. UNITED STATES EX REL. HUNT Opinion of the Court cannot be deemed the official of the United States. We agree, and therefore affirm. I As relevant, the False Claims Act imposes civil liability on “any person” who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval” to the Government or to certain third parties acting on the Government’s behalf. 31 U.S. C. (b)(2). Section 3730 authorizes two types of actions: First, the Attorney General, who “diligently shall investigate a violation under section 3729,” may bring a civil action against the alleged false claimant. Second, a private person, known as a relator, may bring a qui tam civil action “for the person and for the United States Gov- ernment” against the alleged false claimant, “in the name of the Government.” If a relator initiates the action, he must deliver a copy of the complaint and supporting evidence to the Government, which then has 60 days to intervene in the action. (4). During this time, the complaint remains sealed. If the Government intervenes, it assumes primary responsibility for prosecuting the action, though the relator may continue to participate. Otherwise, the relator has the right to pursue the action. (c)(3). Even if it does not intervene, the Government is entitled to be served with all pleadings upon request and may intervene at any time with good cause. The relator receives a share of any proceeds from the action—generally 15 to 25 |
Justice Thomas | 2,019 | 1 | majority | Cochise Consultancy, Inc. v. United States ex rel. Hunt | https://www.courtlistener.com/opinion/4618957/cochise-consultancy-inc-v-united-states-ex-rel-hunt/ | share of any proceeds from the action—generally 15 to 25 percent if the Government intervenes, and 25 to 30 percent if it does not—plus attorney’s fees and costs. See Vermont Agency of Natural At issue here is the Act’s statute of limitations, which provides: Cite as: 587 U. S. (2019) 3 Opinion of the Court “(b) A civil action under section 3730 may not be brought— “(1) more than 6 years after the date on which the violation of section 3729 is committed, or “(2) more than 3 years after the date when facts ma- terial to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the cir- cumstances, but in no event more than 10 years after the date on which the violation is committed, “whichever occurs last.” On November 27, 2013, respondent Billy Joe Hunt filed a complaint alleging that petitioners—two defense con- tractors (collectively, Cochise)—defrauded the Govern- ment by submitting false claims for payment under a subcontract to provide security services in Iraq “from some time prior to January until early 2007.” App. 43a. A little less than three years before bringing his complaint, Hunt was interviewed by federal agents about his role in an unrelated contracting fraud in Iraq. Hunt claims to have revealed Cochise’s allegedly fraudulent scheme during this November 30, 2010, interview. The United States declined to intervene in Hunt’s ac- tion, and Cochise moved to dismiss the complaint as barred by the statute of limitations. Hunt conceded that the 6-year limitations period in (1) had elapsed before he filed suit on November 27, 2013. But Hunt argued that his complaint was timely under (2) because it was filed within 3 years of the interview in which he informed federal agents about the alleged fraud (and within 10 years after the violation occurred). The District Court dismissed the action. It considered three potential interpretations of Under the first interpretation, (2) does not apply to a relator- initiated action in which the Government elects not to 4 COCHISE CONSULTANCY, INC. v. UNITED STATES EX REL. HUNT Opinion of the Court intervene, so any such action must be filed within six years after the violation. Under the second interpretation, (2) applies in nonintervened actions, and the limitations period begins when the relator knew or should have known the relevant facts. Under the third interpre- tation, (2) applies in nonintervened actions, and the limitations period begins when “the official of the United States charged with responsibility to act in the circumstances” |
Justice Thomas | 2,019 | 1 | majority | Cochise Consultancy, Inc. v. United States ex rel. Hunt | https://www.courtlistener.com/opinion/4618957/cochise-consultancy-inc-v-united-states-ex-rel-hunt/ | United States charged with responsibility to act in the circumstances” knew or should have known the relevant facts. The District Court rejected the third interpretation and declined to choose between the first two because it found that Hunt’s complaint would be untimely under either. The Court of Appeals reversed and remanded, adopting the third interpretation. Given a conflict between the Courts of Appeals,* we granted certiorari. 586 U. S. II The first question before us is whether the limitations period in (2) is available in a relator-initiated suit in which the Government has declined to intervene. If so, the second question is whether the relator in such a case should be considered “the official of the United States” whose knowledge triggers (2)’s 3-year limitations period. A Section 3731(b) sets forth two limitations periods that apply to “civil action[s] under section 3730.” Both —————— *Compare (adopting the third interpretation), with United States ex rel. (adopting the second interpreta- tion); United States ex rel. ; and United States ex rel. Cite as: 587 U. S. (2019) 5 Opinion of the Court Government-initiated suits under and relator- initiated suits under are “civil action[s] under section 3730.” Thus, the plain text of the statute makes the two limitations periods applicable in both types of suits. Cochise agrees with that view as to the limitations period in (1), but argues that the period in (2) is available in a relator-initiated suit only if the Government intervenes. According to Cochise, start- ing a limitations period when the party entitled to bring a claim learns the relevant facts is a default rule of tolling provisions, so subsection (b)(2) should be read to apply only when the Government is a party. In short, under Cochise’s reading, a relator-initiated, nonintervened suit is a “civil action under section 3730” for purposes of sub- section (b)(1) but not subsection (b)(2). This reading is at odds with fundamental rules of statu- tory interpretation. In all but the most unusual situa- tions, a single use of a statutory phrase must have a fixed meaning. See (1994). We therefore avoid interpretations that would “attribute different meanings to the same phrase.” Reno v. Bossier Parish School Bd., Here, either a relator-initiated, nonintervened suit is a “civil action under section 3730”—and thus subject to the limitations periods in subsections (b)(1) and (b)(2)—or it is not. It is such an action. Whatever the default tolling rule might be, the clear text of the statute controls this case. Under Cochise’s reading, a relator-initiated civil action would convert to “[a] civil action under section 3730” for purposes of subsection |
Justice Thomas | 2,019 | 1 | majority | Cochise Consultancy, Inc. v. United States ex rel. Hunt | https://www.courtlistener.com/opinion/4618957/cochise-consultancy-inc-v-united-states-ex-rel-hunt/ | “[a] civil action under section 3730” for purposes of subsection (b)(2) if and when the Government intervenes. That reading cannot be correct. If the Gov- ernment intervenes, the civil action remains the same—it simply has one additional party. There is no textual basis to base the meaning of “[a] civil action under section 3730” on whether the Government has intervened. 6 COCHISE CONSULTANCY, INC. v. UNITED STATES EX REL. HUNT Opinion of the Court Cochise relies on our decision in Graham County Soil & Water Conservation which addressed the question whether (1) or federal common law provided the limitations period for retaliation actions. Section 3730(h) creates a cause of action for an employee who suffers retaliation for, among other things, assisting with the prosecution of a False Claims Act action. At the time, did not specify a time limit for bringing a retalia- tion action, so the question before us was whether the phrase “civil action under section 3730” in en- compassed actions under We considered the statute “ambiguous because its text, literally read, admits of two plausible interpretations.” One reading was that a “civil action under section 3730” in- cludes actions because such actions arise under “Another reasonable reading” was that a “civil action under section 3730” “applies only to actions arising under § and (b)” because “(1) t[ies] the start of the time limit to ‘the date on which the violation of section 3729 is committed.’ ” That read- ing had force because retaliation claims need not involve an actual violation of Looking to statutory context, we explained that the phrase “ ‘civil action under section 3730’ means only those civil actions under that have as an element a ‘violation of section 3729,’ that is, § and (b) actions”—not retaliation actions. at 421–422. A relator-initiated, nonintervened suit arises under and has as an element a violation of Graham County supports our reading. Nonetheless, Co- chise points out that in considering the statutory context, we discussed a similar phrase contained in (now which stated: “In any action brought under section 3730, the United States shall be required to prove all essential elements of the cause of action, including Cite as: 587 U. S. (2019) 7 Opinion of the Court damages, by a preponderance of the evidence.” (Emphasis added.) We explained that “use[d] the similarly unqualified phrase ‘action brought under section 3730’ to refer only to § and (b) actions.” at 417–418. We then stated: “As [respondent] and the United States concede, the context of this provision implies that the phrase ‘any action brought under section 3730’ is limited to |
Justice Thomas | 2,019 | 1 | majority | Cochise Consultancy, Inc. v. United States ex rel. Hunt | https://www.courtlistener.com/opinion/4618957/cochise-consultancy-inc-v-united-states-ex-rel-hunt/ | phrase ‘any action brought under section 3730’ is limited to actions brought by the United States and actions in which the United States intervenes as a party, as those are the types of actions in which the United States necessarily participates.” Cochise contends that we should adopt a similar con- struction of the phrase “civil action under section 3730” in We disagree. Our discussion of was focused on “the context of th[at] provision” and on whether it could be read to impose the burden of proof on the Gov- ernment even in cases where the Government did not participate. Those considerations do not apply here; there is nothing illogical about reading to apply in accordance with its plain terms. Moreover, if a “civil action under section 3730” included only an action in which the Government participates for purposes of (2), then we would be obligated to give it a like meaning for purposes of (1). This would mean that a relator-initiated, nonintervened suit would be sub- ject to neither (1) nor (2)—a reading Cochise expressly disclaims. See Brief for Petitioners 20, n. 3. Nothing in Graham County supports giving the same phrase in two different meanings depending on whether the Government intervenes. Again pointing to Graham County, Cochise next con- tends that our reading would lead to “ ‘counterintuitive results.’ ” Brief for Petitioners 26. For instance, if the Government discovers the fraud on the day it occurred, it would have 6 years to bring suit, but if a relator instead discovers the fraud on the day it occurred and the Gov- 8 COCHISE CONSULTANCY, INC. v. UNITED STATES EX REL. HUNT Opinion of the Court ernment does not discover it, the relator could have as many as 10 years to bring suit. That discrepancy arises because (2) begins its limitations period on the date that “the official of the United States charged with responsibility to act” obtained knowledge of the relevant facts. But we see nothing unusual about extending the limitations period when the Government official did not know and should not reasonably have known the relevant facts, given that the Government is the party harmed by the false claim and will receive the bulk of any recovery. See (d). In any event, a result that “may seem odd is not absurd.” Exxon Mobil Although in Graham County we sought “a construction that avoids counter- intuitive results,” there the text “admit[ted] of two plausi- ble interpretations.” 419, n. 2. Here, Cochise points to no other plausible interpretation of the text, so the “ ‘judicial inquiry is complete.’ ” Barnhart |
Justice Thomas | 2,019 | 1 | majority | Cochise Consultancy, Inc. v. United States ex rel. Hunt | https://www.courtlistener.com/opinion/4618957/cochise-consultancy-inc-v-united-states-ex-rel-hunt/ | text, so the “ ‘judicial inquiry is complete.’ ” Barnhart v. Sigmon Coal Co., B Cochise’s fallback argument is that the relator in a nonintervened suit should be considered “the official of the United States charged with responsibility to act in the circumstances,” meaning that (2)’s 3-year limita- tions period would start when the relator knew or should have known about the fraud. But the statute provides no support for reading “the official of the United States” to encompass a private relator. First, a private relator is not an “official of the United States” in the ordinary sense of that phrase. A relator is neither appointed as an officer of the United States, see U. S. Const., Art. II, cl. 2, nor employed by the United States. Indeed, the provision that authorizes qui tam suits is entitled “Actions by Private Persons.” Although that provision explains that the action is Cite as: 587 U. S. (2019) 9 Opinion of the Court brought “for the person and for the United States Gov- ernment” and “in the name of the Government,” ibid., it does not make the relator anything other than a private person, much less “the official of the United States” refer- enced by the statute. Cf. n. 4 (“[A] qui tam relator is, in effect, suing as a partial as- signee of the United States” (emphasis deleted)). Second, the statute refers to “the” official “charged with responsibility to act in the circumstances.” The Govern- ment argues that, in context, “the” official refers to the Attorney General (or his delegate), who by statute “shall investigate a violation under section 3729.” Regardless of precisely which official or officials the stat- ute is referring to, (2)’s use of the definite article “the” suggests that Congress did not intend for any and all private relators to be considered “the official of the United States.” See (2004) (explaining that the “use of the definite article indicates that there is generally only one” person covered). More fundamentally, private relators are not “charged with responsibility to act” in the sense contemplated by as they are not required to investigate or prose- cute a False Claims Act action. * * * For the foregoing reasons, the judgment of the Court of Appeals is Affirmed |
Justice Kennedy | 1,999 | 4 | majority | West Covina v. Perkins | https://www.courtlistener.com/opinion/118255/west-covina-v-perkins/ | We granted certiorari, to consider in this case whether the Constitution requires a State or its local entities to give detailed and specific instructions or advice to owners who seek return of property lawfully seized but no longer needed for police investigation or criminal prosecution Interpreting the Due Process Clause of the Fourteenth Amendment, the Court of Appeals for the Ninth Circuit imposed a series of specific notice requirements on the city responsible for the We conclude these requirements are not mandated by the Due Process Clause, and we reverse I The case began when police officers of petitioner, the city of West Covina, California (City), acting in accordance with law and pursuant to a valid search warrant, seized personal property The property belonged to the owner of the searched home, respondent Lawrence Perkins, and to his family The suspect in the crime was neither Perkins nor anyone in his family, but one Marcus Marsh Marsh had been a boarder in the Perkins' home After leaving their home, and unknown to them, he became the subject of a homicide investigation During the search of respondents' home for evidence incriminating Marsh, the police seized a number of items, including photos of Marsh, an address book, a 12-gauge shotgun, a starter pistol, ammunition, and $2,629 in cash At the conclusion of the search, the officers left respondents a form entitled "Search Warrant: Notice of Service," which stated: "TO WHOM IT MAY CONCERN: "1 THESE PREMISES HAVE BEEN SEARCHED BY PEACE OFFICERS OF THE (name of searching agency) West Covina Police DEPARTMENT PURSUANT TO A SEARCH WARRANT ISSUED ON (date) *237 5-20-93, BY THE HONORABLE (name of magistrate) Dan Oki, JUDGE OF THE SUPERIOR/MUNICIPAL COURT, Citrus JUDICIAL DISTRICT "2 THE SEARCH WAS CONDUCTED ON (date) 5-21-93 A LIST OF THE PROPERTY SEIZED PURSUANT TO THE SEARCH WARRANT IS ATTACHED "3 IF YOU WISH FURTHER INFORMATION, YOU MAY CONTACT: (name of investigator) Det Ferrari or Det Melnyk AT [telephone number] "LT SCHIMANSKI [telephone number]" App 76-77 (italicized characters represent those portions of the original document which were handwritten on the form) In accordance with the notice, the officers also left respondents an itemized list of the property -1012 The officers did not leave the search warrant number because the warrant was under seal to avoid compromising the ongoing investigation In a public index maintained by the court clerk, however, the issuance of the warrant was recorded by the address of the home searched and the search warrant number Not long after the search, Perkins called Ferrari, one of the detectives listed on the notice, |
Justice Kennedy | 1,999 | 4 | majority | West Covina v. Perkins | https://www.courtlistener.com/opinion/118255/west-covina-v-perkins/ | called Ferrari, one of the detectives listed on the notice, and inquired about return of the seized property No CV 93-7084 (CD Cal, July 8, 1996), App to Pet for Cert E3 One of the detectives told Perkins he needed to obtain a court order authorizing the property's return About a month after the search, Perkins went to the Citrus Municipal Court to see Judge Oki, who had issued the warrant He learned Judge Oki was on vacation He tried to have another judge release his property but was told the court had nothing under Perkins' name Rather than continuing to pursue a court order releasing the property by filing a written motion with the court, making *238 other inquiries, or returning to the courthouse at some later date, respondents filed suit in United States District Court against the City and the officers who conducted the search They alleged the officers had violated their Fourth Amendment rights by conducting a search without probable cause and exceeding the scope of the warrant App 7-9 They further alleged that the City had a policy of permitting unlawful searches The District Court granted summary judgment for the City and its officers App to Pet for Cert B1B11 The court, however, invited supplemental briefing on an issue respondents had not raised: whether available remedies for the return of seized property were adequate to satisfy due process at B7 The parties submitted briefs on the issue, but the court did not rule on it Respondents appealed the District Court's holding on their Fourth Amendment claims, but the Court of Appeals remanded the case to the District Court for resolution of the due process question No 94-56365 (CA9, Apr 30, 1996), App to Pet for Cert D1D3 The District Court held on remand that the remedies provided by California law for return of the seized property satisfied due process, and it granted summary judgment for the No CV 93-7084 App to Pet for Cert E2 In particular, the court rejected respondents' claim that the procedure for return of their property was unavailable to them because the City did not give them adequate notice of the remedy and the information needed to invoke it at E6 On appeal, the Court of Appeals reversed the grant of summary judgment for the 113 F3d, at As an initial matter, the court noted that, under respondents were entitled only to an adequate post deprivation remedy, and not to a predeprivation hearing prior to the 113 F3d, 10 The Court *239 of Appeals also agreed with the District Court that the |
Justice Kennedy | 1,999 | 4 | majority | West Covina v. Perkins | https://www.courtlistener.com/opinion/118255/west-covina-v-perkins/ | of Appeals also agreed with the District Court that the postdeprivation remedies for return of property established by California statute and case law satisfied the requirements of due process 11 Nevertheless, the court held, by analogy to this Court's decision in Memphis Light, Gas & Water that the City was required to give respondents notice of the state procedures for return of seized property and the information necessary to invoke those procedures (including the search warrant number or a method for obtaining the number) 113 F3d, 12 While acknowledging that it was not the court's place "to specify the exact phrasing of an adequate notice," the court proceeded to explicate, in some detail, the content of the required notice: "In cases where property is taken under California law the notice should include the following: as on the present notice, the fact of the search, its date, and the searching agency; the date of the warrant, the issuing judge, and the court in which he or she serves; and the persons to be contacted for further information In addition, the notice must inform the recipient of the procedure for contesting the seizure or retention of the property taken, along with any additional information required for initiating that procedure in the appropriate court In circumstances such as those presented by this record, the notice must include the search warrant number or, if it is not available or the record is sealed, the means of identifying the court file It also must explain the need for a written motion or request to the court stating why the property should be returned" 13 This expansive requirement lacks support in our case law and mandates notice not now prescribed by the Federal Government or by any one of the 50 States *240 II At this stage, no one contests the right of the State to have seized the property in the first instance or its ultimate obligation to return it So rules restricting the substantive power of the State to take property are not implicated by this case What is at issue is the obligation of the State to provide fair procedures to ensure return of the property when the State no longer has a lawful right to retain it Respondents acknowledge, as they must, that the City notified them of the initial seizure and gave them an inventory of the property taken Accordingly, we need not decide how detailed the notice of the seizure must be or when the notice must be given They also raise no independent challenge to the Court of Appeals' |
Justice Kennedy | 1,999 | 4 | majority | West Covina v. Perkins | https://www.courtlistener.com/opinion/118255/west-covina-v-perkins/ | also raise no independent challenge to the Court of Appeals' conclusion that California law provides adequate remedies for return of their property, including a motion under Cal Penal Code Ann 1536 (West 1982) or a motion under 1540 See Rather, they contend the City deprived them of due process by failing to provide them notice of their remedies and the factual information necessary to invoke the remedies under California law When the police seize property for a criminal investigation, however, due process does not require them to provide the owner with notice of state-law remedies A primary purpose of the notice required by the Due Process Clause is to ensure that the opportunity for a hearing is meaningful See Mullane v Central Hanover Bank & Trust Co, 339 US 306, It follows that when law enforcement agents seize property pursuant to warrant, due process requires them to take reasonable steps to give notice that the property has been taken so the owner can pursue available remedies for its return Cf Schroeder v City of New York, 371 US 208, Individualized notice that the officers have taken the property is necessary in a case such as the one before us because the property owner would have no other reasonable means of ascertaining who was responsible for his loss No similar rationale justifies requiring individualized notice of state-law remedies which, like those at issue here, are established by published, generally available state statutes and case law Once the property owner is informed that his property has been seized, he can turn to these public sources to learn about the remedial procedures available to him The City need not take other steps to inform him of his options Cf Reetz v Michigan, 188 US 505, (holding that a statute fixing the time and place of meetings of a medical licensing board provided license applicants adequate notice of the procedure for obtaining a hearing on their applications because: "When a statute fixes the time and place of meeting of any board or tribunal, no special notice to parties interested is required The statute is itself sufficient notice"); Atkins v Parker, 472 US 115, In prior cases in which we have held that postdeprivation state-law remedies were sufficient to satisfy the demands of due process and the laws were public and available, we have not concluded that the State must provide further information about those procedures See, e g, Hudson v Palmer, 468 US 517 Memphis Light, the case on which the Court of Appeals relied, is not to the contrary In Memphis Light, the |
Justice Kennedy | 1,999 | 4 | majority | West Covina v. Perkins | https://www.courtlistener.com/opinion/118255/west-covina-v-perkins/ | relied, is not to the contrary In Memphis Light, the Court held that a public utility must make available to its customers the opportunity to discuss a billing dispute with a utility *242 employee who has authority to resolve the matter before terminating utility service for nonpayment 436 US, at 16-17 The Court also held that due process required the utility to inform the customer not only of the planned termination, but also of the availability and general contours of the internal administrative procedure for resolving the accounting dispute In requiring notice of the administrative procedures, however, we relied not on any general principle that the government must provide notice of the procedures for protecting one's property interests but on the fact that the administrative procedures at issue were not described in any publicly available document A customer who was informed that the utility planned to terminate his service could not reasonably be expected to educate himself about the procedures available to protect his interests: "[T]here is no indication in the record that a written account of [the utility's dispute resolution] procedure was accessible to customers who had complaints about their bills [The plaintiff's] case reveals that the opportunity to invoke that procedure, if it existed at all, depended on the vagaries of `word of mouth referral' " at 14, n 14 While Memphis Light demonstrates that notice of the procedures for protecting one's property interests may be required when those procedures are arcane and are not set forth in documents accessible to the public, it does not support a general rule that notice of remedies and procedures is required The Court of Appeals' far-reaching notice requirement not only lacks support in our precedent but also conflicts with the well-established practice of the States and the Federal Government The notice required by the Court of Appeals far exceeds that which the States and the Federal Government have traditionally required their law enforcement agencies to provide Indeed, neither the Federal Government *243 nor any State requires officers to provide individualized notice of the procedures for seeking return of seized property See Appendix, infra, p 244 Federal Rule of Criminal Procedure 41(d), for example, requires federal agents seizing property pursuant to a warrant to "give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or [to] leave the copy and receipt at the place from which the property was taken" The Rule makes no provision for notifying property owners of the procedures for seeking return of |
Justice Kennedy | 1,999 | 4 | majority | West Covina v. Perkins | https://www.courtlistener.com/opinion/118255/west-covina-v-perkins/ | notifying property owners of the procedures for seeking return of their property The Court of Appeals' analysis would render the notice required by this Federal Ruleand by every analogous state statuteinadequate as a constitutional matter In the shadow of this unwavering state and federal tradition, the Court of Appeals' holding is all the more untenable; to sustain it, we would be required to find that due process requires notice that not one State or the Federal Government has seen fit to require, in the context of law enforcement practices that have existed for centuries Respondents urge that if we cannot uphold the Court of Appeals' broad notice requirement, we should, at least, affirm the Court of Appeals' judgment on the narrower ground that the notice provided respondents was inadequate because it did not provide them with the factual informationspecifically, the search warrant numberthey needed to invoke their judicial remedies The District Court, however, made an explicit factual finding that respondents failed to establish that they needed the search warrant number to file a court motion seeking return of their property: "Perkins argues that this [court] procedure was not available to him because he did not know the number of the warrant pursuant to which his property was Unfortunately for Perkins, there is no evidence either way about whether one must have the warrant number in order to obtain a court order releasing seized property *244 Defendants assert that it is not necessary, that as long as the claimant can sufficiently identify the property he seeks (i e, by providing the date of the warrant, the name of the seizing agency and officer, and the identity of the issuing court and judge, all of which information was in Perkins' possession), the court will release it Plaintiffs want the Court simply to assume that if Perkins had filed a request with the court, it would have been denied because he did not have the warrant number But there is no evidence to support that speculation" No CV 93-7084 App to Pet for Cert E6 This finding undermines the factual predicate for respondents' alternative argument, and we need not discuss it further 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 APPENDIX TO OPINION OF THE COURT Federal and State Laws Governing Execution of Search Warrants and Procedures for Return of Seized Property Fed Rule Crim Proc 41(d); Ala Code 15-511 (1995); Ala Rule Crim Proc 311 (1996); Alaska Stat Ann 1235025 (1996); Alaska Rule Crim Proc |
Justice Kennedy | 1,999 | 4 | majority | West Covina v. Perkins | https://www.courtlistener.com/opinion/118255/west-covina-v-perkins/ | (1996); Alaska Stat Ann 1235025 (1996); Alaska Rule Crim Proc 37 ; Ariz Rev Stat Ann 13-3919 to 13-3922 (1989); Ark Rule Crim Proc 133 ; Cal Penal Code Ann 1535 (West 1982); Colo Rev Stat 16-3305 ; Colo Rule Crim Proc 41 ; Conn Gen Stat Ann 54-33c, 54-36f ; Del Ct Common Pleas Rule Crim Proc 41 ; Del Super Ct Rule Crim Proc 41 ; D C Code Ann 23-524 (1996); D C Super Ct Rule Crim Proc 41 ; Fla Stat Ann 93311 ; Ga Code Ann 17-525, 17-529 (1990); Haw Rule Penal Proc *245 41 ; Idaho Code 19-4413, 19-4415, 19-4416 ; Idaho Rule Crim Proc 41 ; Ill Comp Stat Ann, ch 725, 5/108-6, 5/108-10 (West 1992); Ind Code Ann 35 33-52 to 35-33-57 ; Iowa Code Ann 8088 (West 1994); Kan Stat Ann 22-2506, 22-2512 ; Ky Rule Crim Proc 0 (1993); La Code Crim Proc Ann, Art 166 (West 1991); Me Rule Crim Proc 41 ; Md Rule Crim Proc 4-601 ; Mass Ann Laws, ch 276, 1 to 4 ; Mich Comp Laws Ann 780655 ; Minn Stat Ann 62616, 62617 ; Miss Code Ann 41-29-157(a)(3) (1981), 99-27-15 (1994); Mo Ann Stat 542291 ; Mont Code Ann 46-5227, 46-5301 ; Neb Rev Stat 29-815 (1995); Nev Rev Stat Ann 179075 ; N H Rev Stat Ann 595A:5 (1986); N J Stat Ann 33:1-61 (West 1994); N J Rule Crim Prac 3:5-5 ; N M Dist Ct Rule Crim Proc 5-211 (1996); N M Magis Ct Rule Crim Proc 6208 (1996); N Y Crim Proc Law 69050 (McKinney 1995); N C Gen Stat 15A-252, 15A-254 ; N D Rule Crim Proc 41 (Supp 1987); Ohio Rev Code Ann 2933241 ; Ohio Rule Crim Proc 41 (1994); Okla Stat Ann, Tit 22, 1232 to 1234 ; Ore Rev Stat 133575, 133595 (1991); Pa Rules Crim Proc 2008, 2009 ; R I Super Ct Rule Crim Proc 41 ; S C Code Ann 17-13-150 ; S D Codified Laws 23A-35-10 (Rule 41(d)) ; Tenn Rule Crim Proc 41 ; Tex Code Crim Proc Ann 1806 ; Utah Code Ann 77-23-206 (1995); Vt Rule Crim Proc 41 ; Va Code Ann 192-57 (Michie 1995); Wash Super Ct Rule Crim Proc 23 (1996); W Va Code 62-1A-4 ; W Va Rule Crim Proc 41 ; Wis Stat Ann 96817 ; Wyo Stat Ann 7-7102 ; Wyo Rule Crim Proc 41 *246 Justice Thomas, with whom Justice Scalia joins, concurring in the judgment |
Justice Brennan | 1,989 | 13 | majority | Reed v. Transportation Union | https://www.courtlistener.com/opinion/112170/reed-v-transportation-union/ | We are called upon in this case to decide what statute of limitations governs a claim by a union member under 101 (a)(2) of Title I of the Labor-Management Reporting and Disclosure Act of 15 (LMRDA), Stat. 522, 2 U.S. C. 411(a)(2), alleging that the union violated its member's right to free speech as to union matters.[1] Congress enacted no statute of limitations expressly applicable to 101 actions. Petitioner Reed, the Secretary and Treasurer of Local 1715 (Local) of respondent United Transportation Union (Union), received reimbursement from the Local for "time *322 lost" carrying out his union duties. After an audit the Union's president, respondent Hardin, disallowed these payments. Hardin ruled that petitioner was not entitled to the payments because he had failed to obtain approval for them prior to doing the tasks that caused him to lose time, and because his salary as an officer of the Local was intended to cover all his official duties. When petitioner subsequently attempted to enforce a policy that reimbursements required prior approval denying unapproved claims by the president and other officers of the Local Hardin overruled these decisions. Petitioner thereupon unsuccessfully sought reinstatement of his disallowed payment. In a series of letters to Hardin, the last dated August 2, 13, petitioner alleged that more stringent standards had been applied to his reimbursement claims because he had been critical of the Local's president. Threatening suit, he asserted that the disallowance amounted to harassment for expressing his views on union matters and violated LMRDA 101. Petitioner did not file this action in the Western District of North Carolina against the Union and various of its officers, however, until August 2, 15. Respondents moved for summary judgment, arguing that petitioner had filed his suit out of time. Respondents maintained that on the reasoning of petitioner's 101 claim should be governed by the statute of limitations that applies to the filing of charges with the National Labor Relations Board alleging unfair labor practices defined in of the National Labor Relations Act (NLRA), 2 U.S. C. 15. Section 10(b) of the NLRA, 2 U.S. C. 160(b), provides that such charges must be filed within six months.[2] The District Court denied summary judgment, holding that petitioner's action was more akin to a civil rights claim than an unfair labor practice *323 charge, and hence was governed by North Carolina's 3-year statute of limitations for personal injury actions in accordance with the rule this Court established in The Court of Appeals for the Fourth Circuit reversed, construing to require that petitioner's 101(a)(2) claim be governed by NLRA |
Justice Brennan | 1,989 | 13 | majority | Reed v. Transportation Union | https://www.courtlistener.com/opinion/112170/reed-v-transportation-union/ | to require that petitioner's 101(a)(2) claim be governed by NLRA 10(b). We granted certiorari, to settle a conflict among Courts of Appeals as to the statute of limitations applicable to 101(a)(2) actions.[3] We now reverse the Fourth Circuit's decision, and hold that 101(a)(2) claims are governed by state general or residual personal injury statutes, which are to be identified in conformity with our decision this Term in Owens v. Okure, ante, p. 235. I Congress not infrequently fails to supply an express statute of limitations when it creates a federal cause of action. When that occurs, "[w]e have generally concluded that Congress intended that the courts apply the most closely analogous statute of limitations under state law." See, e. g., Agency Holding (noting that the Rules of Decision Act usually requires that a state statute be borrowed, and also that "[g]iven our longstanding practice of borrowing state law, and the congressional awareness *324 of this practice, we can generally assume that Congress intends by its silence that we borrow state law"); Auto ; "State legislatures do not devise their limitations periods with national interests in mind," however, "and it is the duty of the federal courts to assure that the importation of state law will not frustrate or interfere with the implementation of national policies." Occidental Life Ins. of Thus, on the assumption that Congress would not choose "to adopt state [limitations] rules at odds with the purpose or operation of federal substantive law," we have recognized a closely circumscribed exception to the general rule that statutes of limitation are to be borrowed from state law. We decline to borrow a state statute of limitations only "when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking." See Agency Holding ; Occidental Life Ins. ; McAllister v. Magnolia Petroleum ; This is a narrow exception to the general rule. As we made clear in "in labor law or elsewhere," application of a federal statute will be unusual, and "resort to state law remains the norm for borrowing of limitations periods." Respondents urge in this case that petitioner's 101(a)(2) claim that he was penalized for exercising his right as a union member to speak freely as to union matters falls within the narrow exception requiring *325 application of a federal statute of limitations, rather than within the general rule that we borrow an analogous state statute. We cannot agree. A We have |
Justice Brennan | 1,989 | 13 | majority | Reed v. Transportation Union | https://www.courtlistener.com/opinion/112170/reed-v-transportation-union/ | an analogous state statute. We cannot agree. A We have upon previous occasions considered the history of Title I of the LMRDA, and have concluded that "Congress modeled Title I after the Bill of Rights, and that the legislators intended 101(a)(2) to restate a principal First Amendment value the right to speak one's mind without fear of reprisal." Indeed, the amendments that eventually were enacted as Title I were introduced under the heading of "Bill of Rights of Members of Labor Organizations." See Congress considered the protection afforded by Title I to free speech and assembly in the union context necessary to bring an end to abuses by union leadership that had curtailed union democracy. It "adopted the freedom of speech and assembly provision in order to promote union democracy [and] recognized that democracy would be assured only if union members are free to discuss union policies and criticize the leadership without fear of reprisal." See also Thus the core purpose of 101(a)(2) is to protect free speech and assembly rights because these are considered "vital to the independence of the membership and the effective and fair operation of the union as the representative." As a preliminary matter, consideration of this core purpose suggests that "all claims arising out of [ 101(a)(2)] `should be characterized in the same way.' " Agency Holding at quoting 26 Though 101(a)(2) creates personal rights, a union *326 member vindicating those rights also serves public goals, in that he "necessarily render[s] a substantial service to his union as an institution and to all of its members," contributing to the improvement or preservation of democracy within the Hall, at Time-consuming litigation as to the collateral question of the appropriate statute of limitations for a 101 claim would likely interfere with Congress' aim that actions to enforce free speech and association rights should in fact enhance union democracy. Such litigation creates uncertainty as to the time available for filing, and it would not be surprising if the prospect of perhaps prolonged litigation against the union before ever the merits are reached were to have a deterrent effect on would-be 101(a)(2) plaintiffs. The diversion of resources to collateral statute-of-limitations litigation would be foreign to the central purposes of 101(a)(2), and thus we are persuaded that all claims under that provision should be characterized in the same way. Determining exactly how they should be characterized does not appear to us to be a difficult task, given a proper understanding of the narrow scope of the exception to our standard borrowing rule, and of the nature and purpose of |
Justice Brennan | 1,989 | 13 | majority | Reed v. Transportation Union | https://www.courtlistener.com/opinion/112170/reed-v-transportation-union/ | standard borrowing rule, and of the nature and purpose of 101(a)(2). Because 101(a)(2) protects rights of free speech and assembly, and was patterned after the First Amendment, it is readily analogized for the purpose of borrowing a statute of limitations to state personal injury actions. We find it unnecessary to detail here the elements of this analogy. We have previously considered possible analogies between federal civil rights actions under 42 U.S. C. 13 (which lacks an express statute of limitations) and various state-law claims, and have held that 13 actions are governed by state general or residual personal injury statutes of limitations. Owens v. Okure, ante, p. 235; See also Goodman v. Lukens Steel 42 U.S. 656 (applying state personal injury statute to federal civil rights action against a private party brought under 42 *327 U. S. C. 11). Since 101(a)(2) has evident similarities to 13, which prohibits the infringement of First Amendment rights by persons acting under color of state law, it is apparent that 101(a)(2) actions also are analogous to state personal injury claims, and under our usual borrowing rule would take their statutes of limitations. Moreover, these state personal injury statutes are of sufficient length, see Owens, ante, at 24, nn. and 10, to accommodate the practical difficulties faced by 101(a)(2) plaintiffs, which include identifying the injury, deciding in the first place to bring suit against and thereby antagonize union leadership, and finding an attorney. See 74 F.2d 1, As a result, no practicalities of litigation compel us to search beyond state law for a more analogous statute of limitations. Cf. Agency Holding 43 U. S., at -14; -166, 167-16 (and see n. 4, infra); 46 U.S. 42, (14). In light of the analogy between 101(a)(2) and personal injury actions, and of the lack of any conflict between the practicalities of 101(a)(2) litigation and state personal injury limitations periods, we are bound to borrow state personal injury statutes absent some compelling demonstration that "the federal policies at stake" in 101(a)(2) actions make a federal limitations period "a significantly more appropriate vehicle for interstitial lawmaking." B Respondents argue that the same federal labor policies that led us in to borrow the NLRA 10(b) statute of limitations for hybrid 301/fair representation claims likewise require that we borrow 10(b) for LMRDA 101 (a)(2) actions. This argument lacks merit. It fails to take seriously our admonition that analogous state statutes of limitations are to be used unless they frustrate or significantly interfere with federal policies. More importantly, it entirely ignores the core federal interest furthered by 101(a)(2) the *32 interest |
Justice Brennan | 1,989 | 13 | majority | Reed v. Transportation Union | https://www.courtlistener.com/opinion/112170/reed-v-transportation-union/ | core federal interest furthered by 101(a)(2) the *32 interest in union democracy promoted by free speech and assembly rights of union members instead urging that we select a statute of limitations to serve federal policies that might merely be implicated by tangential and contingent effects of some 101(a)(2) litigation. We declined in to apply state statutes of limitations for vacation of an arbitration award or for legal malpractice to an employee's hybrid 301/fair representation action. Such hybrid suits formally comprise two causes of action. First, the employee alleges that the employer violated 301 of the Labor Management Relations Act, 147 (LMRA), 2 U.S. C. 15, by breaching the collective-bargaining agreement. Second, the employee claims that the union breached its duty of fair representation, which this Court has implied from the scheme of the NLRA, by mishandling the ensuing grievance-and-arbitration proceedings. See and n. 14. We held in that, having regard to "the policies of federal labor law and the practicalities of hybrid 301/fair representation litigation," 10(b) of the NLRA, with its 6-month limitations period for unfair labor practice charges, provided the closest analogy for hybrid 301/fair representation actions.[4] *32 Respondents argue, and the Court of Appeals held, that the 10(b) 6-month limitations period must be applied to 101(a)(2) actions in order to further the federal policy that calls for " `rapid resolution of internal union disputes' " in order " `to maintain stable bargaining relationships.' " 2 F.2d, at 106, quoting Local Union 137, United Steelworkers of America, 74 F.2d 10, 14 (CA3 14). It is true that in we held that use of a long malpractice statute of limitations for hybrid 301/fair representation actions would conflict with the federal policy favoring "the relatively rapid final resolution of labor disputes." 462 U.S., at 16. The specific focus of our comparison between unfair labor practice charges governed by 10(b) and hybrid 301/fair representation claims was their effects upon the formation and operation of the collective-bargaining agreement between the employer and the bargaining representative, and upon the private settlement of disputes under that agreement through grievance-and-arbitration procedures.[5]*330 We noted that the 10(b) period was " `attuned to the proper balance between the national interests in stable bargaining relationships and finality of private settlements, and an employee's interest in setting aside what he views as an unjust settlement under the collective-bargaining system.' " quoting United Parcel Service, (11) Those same interests, we held, are implicated by hybrid 301/fair representation claims against union and employer, because such claims constitute a direct challenge to private dispute settlement under the collective-bargaining agreement. Insofar as |
Justice Brennan | 1,989 | 13 | majority | Reed v. Transportation Union | https://www.courtlistener.com/opinion/112170/reed-v-transportation-union/ | to private dispute settlement under the collective-bargaining agreement. Insofar as interests in stable bargaining relationships and in private dispute resolution under collective-bargaining agreements are implicated by 101(a)(2) claims, however, the relationship will generally be tangential and remote as in the present case, which involves an internal union dispute not directly related in any way to collective bargaining or dispute settlement under a collective-bargaining agreement. To be sure, the Court of Appeals stated: "Internal union disputes, if allowed to fester, may erode the confidence of union members in their leaders and possibly cause a disaffection with the union, thus weakening the union and its ability to bargain for its members. Such prolonged disputes may also distract union officials from their sole purpose representation of union members in their relations with their employer. These probable effects of protracted disputes may be destabilizing to labor-management relations." 2 F.2d, at 10. See also Local Union 137, at 14 These observations have some plausibility. But they are not enough to persuade us that federal policy requires that 10(b) govern claims under 101(a)(2) of the LMRDA, for they establish no more than that 101(a)(2) actions may sometimes have "some impact on economic relations between union and employer and on labor peace." Brief for Respondents 22. This is substantially less immediate and less significant an impact on bargaining and private dispute settlement than that which led us to apply the 10(b) statute to hybrid 301/fair representation claims, which directly challenge both the employer's adherence to the collective-bargaining agreement and the union's representation of the employee in grievance-and-arbitration procedures. As the Court of Appeals for the First Circuit noted in 74 F. 2d, at 7, a Title I suit does not directly "challeng[e] the `stable relationship' between the employer and the It does not affect any interpretation or effect any reinterpretation of the collective bargaining agreement and so, unlike the hybrid actions, a Title I claim does not attack a compromise between labor and management. There is no erosion of the finality of private settlements, for in the free standing LMRDA cases the union member is not attempting to attack any such settlement." See also Thus the federal interests in collective bargaining and in the resolution of disputes under collective-bargaining agreements, which require application of a 6-month statute of limitations to unfair labor practice charges and hybrid 301/fair representation claims, simply are not directly involved in 101(a)(2) actions.[6] *332 There is another and more important reason why we cannot conclude in this case, as we did in that 10(b) provides "a federal statute of limitations actually |
Justice Brennan | 1,989 | 13 | majority | Reed v. Transportation Union | https://www.courtlistener.com/opinion/112170/reed-v-transportation-union/ | in that 10(b) provides "a federal statute of limitations actually designed to accommodate a balance of interests very similar to that at stake here." 462 U.S., at 16. Section 101(a)(2) implements a federal policy to guarantee free speech and association rights in order to further union democracy that simply had no part in the design of a statute of limitations for unfair labor practice charges. Indeed, Title I of the LMRDA was a response to a perception that the NLRA, including the (b) provisions defining unfair labor practices by labor organizations, had failed to provide the necessary protection for the free speech and other rights of union members that Congress considered essential to the democratic operation of unions. See, e. g., 10-110. Hence while 10(b) was " `attuned to the balance between national interests in stable bargaining relationships and finality of private settlements' " on the one hand, and " `an employee's interest in setting aside [a] settlement under the collective-bargaining system' " on the other, quoting at the relevant balance in the case of *333 101(a)(2) actions is quite different. The second element in the 10(b) balance is replaced in 101(a)(2) cases by "a union member's interest in protection against the infringement of his rights of free speech[, which] rises to a national interest, as embodied in section 101(a)(2) of the LMRDA, and thus seems of greater importance than an employee's interest in setting aside an individual settlement under a collective bargaining agreement." Davis, at The 6-month 10(b) statute of limitations was crafted to accommodate federal interests in stable bargaining relationships and in private dispute resolution that are not squarely implicated in LMRDA 101(a)(2) actions; and it was not adopted with the distinct federal interest in the free speech of union members in mind. Hence it is not the case that "the federal policies at stake" in 101(a)(2) actions make the 10(b) statute of limitations "a significantly more appropriate vehicle for interstitial lawmaking" than the analogous state statute of limitations that our established borrowing rule favors.[7] *334 II Because 101(a)(2) of the LMRDA is modeled on the First Amendment to our Constitution, there is an analogy between 101(a)(2) claims, 13 claims, and state personal injury actions. Indeed, we have already held that 42 U.S. C. 13, which like 101(a)(2) protects the exercise of First Amendment rights, is governed by state general or residual personal injury statutes of limitations. Owens v. Okure, ante, p. 235. The well-established rule that statutes of limitations for federal causes of action not supplied with their own limitations periods will be borrowed from |
Justice Gorsuch | 2,017 | 7 | majority | Henson v. Santander Consumer USA Inc. | https://www.courtlistener.com/opinion/4403814/henson-v-santander-consumer-usa-inc/ | Disruptive dinnertime calls, downright deceit, and more besides drew Congress’s eye to the debt collection indus- try. From that scrutiny emerged the Fair Debt Collection Practices Act, a statute that authorizes private lawsuits and weighty fines designed to deter wayward collection practices. So perhaps it comes as little surprise that we now face a question about who exactly qualifies as a “debt collector” subject to the Act’s rigors. Everyone agrees that the term embraces the repo man—someone hired by a creditor to collect an outstanding debt. But what if you purchase a debt and then try to collect it for yourself— does that make you a “debt collector” too? That’s the nub of the dispute now before us. The parties approach the question from common ground. The complaint alleges that CitiFinancial Auto loaned money to petitioners seeking to buy cars; that petitioners defaulted on those loans; that respondent Santander then purchased the defaulted loans from CitiFinancial; and that Santander sought to collect in ways petitioners be- lieve troublesome under the Act. The parties agree, too, 2 HENSON v. SANTANDER CONSUMER USA INC. Opinion of the Court that in deciding whether Santander’s conduct falls within the Act’s ambit we should look to statutory language defining the term “debt collector” to embrace anyone who “regularly collects or attempts to collect debts owed or due another.” 15 U.S. C. Even when it comes to that question, the parties agree on at least part of an answer. Both sides accept that third party debt collection agents generally qualify as “debt collectors” under the relevant statutory language, while those who seek only to collect for themselves loans they originated generally do not. These results follow, the parties tell us, because debt collection agents seek to collect debts “owed another,” while loan originators acting on their own account aim only to collect debts owed to themselves. All that remains in dispute is how to clas- sify individuals and entities who regularly purchase debts originated by someone else and then seek to collect those debts for their own account. Does the Act treat the debt purchaser in that scenario more like the repo man or the loan originator? For their part, the district court and Fourth Circuit sided with Santander. They held that the company didn’t qualify as a debt collector because it didn’t regularly seek to collect debts “owed another” but sought instead only to collect debts that it purchased and owned. At the same time, the Fourth Circuit acknowledged that some circuits faced with the same question have ruled otherwise—and it is to resolve this |
Justice Gorsuch | 2,017 | 7 | majority | Henson v. Santander Consumer USA Inc. | https://www.courtlistener.com/opinion/4403814/henson-v-santander-consumer-usa-inc/ | same question have ruled otherwise—and it is to resolve this conflict that we took the case. Compare ; Davidson v. Capital One Bank (USA), N. A., 797 F.3d 1309, 1315–1316 (CA11 2015), with ; 173–174 (CA3 2007). Before attending to that job, though, we pause to note two related questions we do not attempt to answer today. Cite as: 582 U. S. (2017) 3 Opinion of the Court First, petitioners suggest that Santander can qualify as a debt collector not only because it regularly seeks to collect for its own account debts that it has purchased, but also because it regularly acts as a third party collection agent for debts owed to others. Petitioners did not, however, raise the latter theory in their petition for certiorari and neither did we agree to review it. Second, the parties briefly allude to another statutory definition of the term “debt collector”—one that encompasses those engaged “in any business the principal purpose of which is the collec- tion of any debts.” But the parties haven’t much litigated that alternative definition and in granting certiorari we didn’t agree to address it either. With these preliminaries by the board, we can turn to the much narrowed question properly before us. In doing so, we begin, as we must, with a careful examination of the statutory text. And there we find it hard to disagree with the Fourth Circuit’s interpretive handiwork. After all, the Act defines debt collectors to include those who regularly seek to collect debts “owed another.” And by its plain terms this language seems to focus our attention on third party collection agents working for a debt owner— not on a debt owner seeking to collect debts for itself. Neither does this language appear to suggest that we should care how a debt owner came to be a debt owner— whether the owner originated the debt or came by it only through a later purchase. All that matters is whether the target of the lawsuit regularly seeks to collect debts for its own account or does so for “another.” And given that, it would seem a debt purchaser like Santander may indeed collect debts for its own account without triggering the statutory definition in dispute, just as the Fourth Circuit explained. Petitioners reply that this seemingly straightforward reading overlooks an important question of tense. They observe that the word “owed” is the past participle of the 4 HENSON v. SANTANDER CONSUMER USA INC. Opinion of the Court verb “to owe.” And this, they suggest, means the statute’s definition of debt collector captures anyone who |
Justice Gorsuch | 2,017 | 7 | majority | Henson v. Santander Consumer USA Inc. | https://www.courtlistener.com/opinion/4403814/henson-v-santander-consumer-usa-inc/ | means the statute’s definition of debt collector captures anyone who regularly seeks to collect debts previously “owed another.” So it is that, on petitioners’ account, the statute excludes from its compass loan originators (for they never seek to collect debts previously owed someone else) but embraces many debt purchasers like Santander (for in collecting pur- chased debts they necessarily seek to collect debts previ- ously owed another). If Congress wanted to exempt all present debt owners from its debt collector definition, petitioners submit, it would have used the present partici- ple “owing.” That would have better sufficed to do the job—to make clear that you must collect debts currently “owing another” before implicating the Act. But this much doesn’t follow even as a matter of good grammar, let alone ordinary meaning. Past participles like “owed” are routinely used as adjectives to describe the present state of a thing—so, for example, burnt toast is inedible, a fallen branch blocks the path, and (equally) a debt owed to a current owner may be collected by him or her. See P. Peters, The Cambridge Guide to English Usage 409 (2004) (explaining that the term “past partici- ple” is a “misnomer[ ], since” it “can occur in what is tech- nically a present tense”). Just imagine if you told a friend that you were seeking to “collect a debt owed to Steve.” Doesn’t it seem likely your friend would under- stand you as speaking about a debt currently owed to Steve, not a debt Steve used to own and that’s now actually yours? In the end, even petitioners find themselves forced to admit that past participles can and regularly do work just this way, as adjectives to describe the present state of the nouns they modify. See Brief for Petitioners 28; see also B. Garner, Modern English Usage 666 (while “owing is an old and established usage the more logical course is simply to write owed”). Widening our view to take in the statutory phrase in Cite as: 582 U. S. (2017) 5 Opinion of the Court which the word “owed” appears—“owed or due another”— serves to underscore the point. Petitioners acknowledge that the word “due” describes a debt currently due at the time of collection and not a debt that was due only in some previous period. Brief for Petitioners 26–28. So to rule for them we would have to suppose Congress set two words cheek by jowl in the same phrase but meant them to speak to entirely different periods of time. All without leaving any clue. We would have to read |
Justice Gorsuch | 2,017 | 7 | majority | Henson v. Santander Consumer USA Inc. | https://www.courtlistener.com/opinion/4403814/henson-v-santander-consumer-usa-inc/ | All without leaving any clue. We would have to read the phrase not as refer- ring to “debts that are owed or due another” but as de- scribing “debts that were owed or are due another.” And supposing such a surreptitious subphrasal shift in time seems to us a bit much. Neither are we alone in that assessment, for even petitioners acknowledge that theirs “may not be the most natural interpretation of the phrase standing in isolation.” at 26–27. Given that, you might wonder whether extending our gaze from the narrow statutory provision at issue to take in the larger statutory landscape might offer petitioners a better perspective. But it does not. Looking to other neighboring provisions in the Act, it quickly comes clear that Congress routinely used the word “owed” to refer to present (not past) debt relationships. For example, in one nearby subsection, Congress defined a creditor as someone “to whom a debt is owed.” 15 U.S. C. In an- other subsection, too, Congress required a debt collector to identify “the creditor to whom the debt is owed.” Yet petitioners offer us no persuasive reason why the word “owed” should bear a different meaning here, in the subsection before us, or why we should aban- don our usual presumption that “identical words used in different parts of the same statute” carry “the same mean- ing.” IBP, Still other contextual clues add to petitioners’ problems. While they suggest that the statutory definition before us implicitly distinguishes between loan originators and debt 6 HENSON v. SANTANDER CONSUMER USA INC. Opinion of the Court purchasers, a pass through the statute shows that when Congress wished to distinguish between originators and purchasers it left little doubt in the matter. In the very definitional section where we now find ourselves working, Congress expressly differentiated between a person “who offers” credit (the originator) and a person “to whom a debt is owed” (the present debt owner). Elsewhere, Congress recognized the distinction between a debt “origi- nated by” the collector and a debt “owed or due” another. And elsewhere still, Congress drew a line between the “original” and “current” creditor. Yet no similar distinction can be found in the language now before us. To the contrary, the statutory text at issue speaks not at all about originators and cur- rent debt owners but only about whether the defendant seeks to collect on behalf of itself or “another.” And, usually at least, when we’re engaged in the business of interpret- ing statutes we presume differences in language like this convey differences in meaning. See, e.g., Loughrin |
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