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Justice Stevens
| 2,003 | 16 |
concurring
|
Inyo County, California v. Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony
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https://www.courtlistener.com/opinion/127887/inyo-county-california-v-paiute-shoshone-indians-of-the-bishop-community/
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23 In my judgment a Native American tribe is a "person" who may sue under 42 U.S. C. The Tribe's complaint, however, does not state a cause of action under because the county's alleged infringement of the Tribe's sovereign prerogatives did not deprive the Tribe of "rights, privileges, or immunities secured by the Constitution and laws" within the meaning of At bottom, rather than relying on an Act of Congress or a provision of the Constitution, the Tribe's complaint rests on the judgemade doctrine of tribal immunity—a doctrine that "developed almost by accident." Kiowa Tribe of Because many applications of that doctrine are both anomalous and unjust, see I would not accord it the same status as the "laws" referenced in 24 It is demeaning to Native American tribes to deny them the same access to a remedy that is available to any other person whose constitutional rights are violated by persons acting under color of state law. The text of —which provides that defendants are "person[s] who, under color of [State law]" subject any "other person" to a deprivation of a federal right—adequately explains why a tribe is not a person subject to suit under For tribes generally do not act under color of state law. But that text sheds no light on the question whether the tribe is an "other person" who may bring a suit when the tribe is the victim of a constitutional violation. The ordinary meaning of the word "person" as used in federal statutes,1 as well as the specific remedial purpose of support the conclusion that a tribe should be able to invoke the protections of the statute if its constitutional rights are violated.2 25 In this case, however, the Tribe's allegations do not state a cause of action under The execution of the warrant challenged in this case would unquestionably have been lawful if the casino had been the property of an ordinary commercial corporation. See ante, at 9 ("There is in this case no allegation that the County lacked probable cause or that the warrant was otherwise defective"). Thus, the Tribe rests its case entirely on its claim that, as a sovereign, it should be accorded a special immunity that private casinos do not enjoy. See That sort of claim to special privileges, which is based entirely on the Tribe's sovereign status, is not one for which the remedy was enacted. 26 Accordingly, while I agree with the Court that the judgment should be set aside, I do not join the Court's opinion. Notes: 1 The Dictionary Act, which was passed just
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Justice Marshall
| 1,988 | 15 |
concurring
|
Satterwhite v. Texas
|
https://www.courtlistener.com/opinion/112080/satterwhite-v-texas/
|
I I agree with the Court that the psychiatric examination on which Dr. Grigson testified at the capital sentencing proceeding was in bald violation of and that petitioner's death sentence should be vacated. I write separately because I believe the Court errs in applying harmless-error analysis to this Sixth Amendment violation. It is my view that the unique nature of a capital sentencing determination should cause this Court to be especially hesitant ever to sanction harmless-error review of constitutional errors that taint capital sentencing proceedings, and even if certain constitutional errors might properly be subject to such harmless-error analysis, a violation of is not such an error. Until today's ruling, this Court never had applied harmless-error analysis to constitutional violations that taint the sentencing phase of a capital trial. In deciding to apply harmless-error analysis to the Sixth Amendment violation in this case, I believe the Court fails to adequately consider the unique nature of a capital sentencing proceeding and a sentencer's decision whether a defendant should live or die. The Court's analysis is also flawed in that it fails to accord any noticeable weight to the qualitative difference of death from all other punishments. Unlike the determination of guilt or innocence, which turns largely on an evaluation of objective facts, the question whether death is the appropriate sentence requires a profoundly moral evaluation of the defendant's character and crime. See (a death sentence should "reflect a reasoned moral response to the defendant's background, character, and crime"); Moreover, although much of the Court's capital jurisprudence since has been focused on guiding and channeling the decision whether death is the appropriate sentence in a specific case, the sentencer nonetheless is afforded substantial discretion. See, e. g., ; Even in the face of overwhelming aggravating evidence, the sentencer has discretion to act with leniency and refuse to impose the death sentence. See Because of the moral character of a capital sentencing determination and the substantial discretion placed in the hands of the sentencer, predicting the reaction of a sentencer to a proceeding untainted by constitutional error on the basis of a cold record is a dangerously speculative enterprise. As the Court recognized in "[w]hatever intangibles a jury might consider in its sentencing determination, few can be gleaned from an appellate record." In the same vein, an appellate court is ill equipped to evaluate the effect of a constitutional error on a sentencing determination. Such sentencing judgments, even when guided and channeled, are inherently subjective, and the weight a sentencer gives an instruction or a significant piece of evidence that is later determined
|
Justice Marshall
| 1,988 | 15 |
concurring
|
Satterwhite v. Texas
|
https://www.courtlistener.com/opinion/112080/satterwhite-v-texas/
|
or a significant piece of evidence that is later determined to violate a defendant's constitutional rights is nowhere apparent in the record. In the Court acknowledged that "[i]ndividual jurors bring to their deliberations `qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable,' " and their collective judgment of the appropriate sentence is marked by an "inherent lack of predictability." quoting The threat of an erroneous harmless-error determination thus looms much larger in the capital sentencing context than elsewhere. That threat is of particular concern because of the unique nature of the death sentence. The awesome severity of a sentence of death makes it qualitatively different from all other sanctions. See, e. g., For this reason, the Court has *263 emphasized the greater need for reliability in capital cases, and has required that "capital proceedings be policed at all stages by an especially vigilant concern for procedural fairness and for the accuracy of factfinding." ; see Because of this heightened concern for reliability, "[t]ime and again the Court has condemned procedures in capital cases that might be completely acceptable in an ordinary case." Harmless-error analysis impinges directly on the reliability of the capital sentencing decision by allowing a court to substitute its judgment of what the sentencer would have done in the absence of constitutional error for an actual judgment of the sentencer untainted by constitutional error. I therefore have serious doubts whether a constitutional error that infects the sentencing phase of a capital case ever may be considered harmless beyond a reasonable doubt. But even if I could agree that harmless-error analysis is appropriate for certain constitutional errors at the sentencing phase, such a situation is not presented when the error is a violation of the Sixth Amendment under II As an initial matter, the Court in gave no hint that harmless-error analysis ever could apply to the admission of psychiatric testimony in a capital sentencing proceeding which was based on an examination of the defendant conducted in violation of his Sixth Amendment right to counsel. After finding constitutional error, the Court simply vacated the death sentence. See The failure of the Court to engage in harmless-error analysis *264 in is understandable, because the factors on which this Court traditionally has focused to determine whether harmless-error review is appropriate make clear that an violation that taints a capital sentencing proceeding should lead to automatic reversal. First, the potential for actual prejudice resulting from such a violation of is so high that a "case-by-case inquiry into prejudice is not worth the cost."
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Justice Marshall
| 1,988 | 15 |
concurring
|
Satterwhite v. Texas
|
https://www.courtlistener.com/opinion/112080/satterwhite-v-texas/
|
a "case-by-case inquiry into prejudice is not worth the cost." As evidenced in this case, psychiatric testimony is generally of critical importance to the sentencing determination, covering issues of rehabilitative potential, future dangerousness, and individual culpability.[1] Moreover, psychiatric testimony on these issues is clothed with a scientific authority that often carries great weight with lay juries. Cf. Second, it is difficult, if not impossible, to accurately measure the degree of prejudice arising from the failure to notify defense counsel of an impending psychiatric examination and the subsequent admission at the sentencing phase of evidence acquired from the examination. Cf. ; As I discussed above, the decision whether a defendant should live or die is a discretionary, moral judgment involving a balancing of often intangible factors. Divining the effect of psychiatric testimony on a sentencer's determination whether death is an appropriate sentence is thus more in the province of soothsayers than appellate judges. In addition, contrary to the Court's claim, see ante, at 257, the prejudice arising from an violation is not limited to the illegal admission of psychiatric testimony. If defense counsel is properly notified under of the State's intention to perform a psychiatric examination, the course of subsequent proceedings may be altered significantly. For instance, defense counsel might extensively prepare his client for the examination, or perhaps advise his client to refuse to participate in the examination by the particular psychiatrist; defense counsel also might urge that a different psychiatrist perform the examination. Cf. (defendant "was denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist's findings could be employed"). I therefore believe that any attempt to predict the effect of such an violation would require the appellate court to engage in unguided speculation. The confluence of these factors the likelihood of prejudice and the difficulty in evaluating the degree of that prejudice together with the heightened concern for reliability in capital cases, convinces me that a psychiatric examination conducted in violation of and the later admission at a capital sentencing proceeding of psychiatric testimony based on this examination, may never be considered harmless error.[2] *266 I would have thought that this Court's decision in already had settled the question whether an violation in a capital case can ever be harmless error. In Holloway we stated: " `The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.'. Accordingly, when a defendant is
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Justice Marshall
| 1,988 | 15 |
concurring
|
Satterwhite v. Texas
|
https://www.courtlistener.com/opinion/112080/satterwhite-v-texas/
|
prejudice arising from its denial.'. Accordingly, when a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital offense, reversal is automatic." -489, quoting We stated in that a pretrial examination by a state psychiatrist of a capital defendant is a "critical stage" in a capital case. As the Court recognized in that case, "the decision to be made regarding the proposed psychiatric evaluation is `literally a life or death matter' and is `difficult even for an attorney' because it requires `a knowledge of what other evidence is available, of the particular psychiatrist's biases and predilections, [and] of possible alternative strategies at the sentencing hearing.' " quoting v. Estelle, (CA5 19). The Court attempts to distinguish Holloway by arguing that in that case the "deprivation of the right to counsel affected and contaminated the entire criminal proceeding." Ante, at 257. But Holloway anticipated automatic reversal not only when the deprivation affected the entire proceeding, but also when the deprivation occurred during a "critical stage in, at least, the prosecution of a capital offense." By focusing on whether the error occurred in a capital case, Holloway exhibited an appreciation *267 of the heightened concern for reliability in this context something I believe today's decision fails to recognize.[3] In the end, the Court principally relies on its belief "that a reviewing court can make an intelligent judgment about whether the erroneous admission of psychiatric testimony might have affected a capital sentencing jury." Ante, at 258. I do not possess the same confidence in an appellate court's ability to divine the prejudice arising from such a significant error in a capital sentencing proceeding. In my view, the speculation engendered by harmless-error review of a violation of in the context of a capital sentencing proceeding presents an intolerable danger that the death sentence will be administered erroneously. Accordingly, I do not join in that aspect of the Court's opinion sanctioning harmless-error analysis for violations of JUSTICE BLACKMUN, concurring in part and concurring in the judgment. I join Part II of JUSTICE MARSHALL's concurring opinion because I agree that harmless-error analysis is inappropriate where the error is a Sixth Amendment violation under which results in the erroneous admission of psychiatric testimony in a capital-sentencing proceeding. The situation is particularly acute where, under a system such as that of Texas, the jury must answer the very question that the psychiatrist purports to *268 answer. I am fortified in this conclusion by my continuing concern
|
Justice Douglas
| 1,972 | 10 |
majority
|
Ford Motor Co. v. United States
|
https://www.courtlistener.com/opinion/108494/ford-motor-co-v-united-states/
|
This is a direct appeal under 2 of the Expediting Act, as amended, 15 U.S. C. 29, from a judgment of the District Court (, ), holding that Ford Motor (Ford) violated 7 of the Celler-Kefauver Antimerger Act[1] by acquiring certain assets from Electric Autolite (Autolite). The assets included the Autolite trade name, Autolite's only *565 spark plug plant in this country (located at New Fostoria, Ohio), a battery plant, and extensive rights to its nationwide distribution organization for spark plugs and batteries. The present appeal[2] is limited to that portion of the judgment relating to spark plugs and ordering Ford to divest the Autolite name and the spark plug plant. The ancillary injunctive provisions are also here for review. I Ford, the second-leading producer of automobiles, General Motors, and Chrysler together account for 90% of the automobile production in this country. Though Ford makes a substantial portion of its parts, prior to its acquisition of the assets of Autolite it did not make spark plugs or batteries but purchased those parts from independent companies. The original equipment of new cars, insofar as spark plugs are concerned, is conveniently referred to as the OE tie. The replacement market is referred to as the aftermarket. The independents, including Autolite, furnished the auto manufacturers with OE plugs at cost or less, about six cents a plug, and they continued to sell at that price even when their costs increased threefold. The independents sought to recover their losses on OE sales by profitable sales in the aftermarket where the requirement of each vehicle during its lifetime is about five replacement plug sets. By custom and practice among mechanics, the aftermarket plug is usually the same brand as the OE plug. See generally Hansen & Smith, The Champion Case: What Is Competition?, 29 Harv. Bus. Rev. 89 (1951). Ford was anxious to participate in this aftermarket and, after various efforts not relevant to the present case, concluded that its effective participation in the aftermarket *566 required "an established distribution system with a recognized brand name, a full line of high volume service parts, engineering experience in replacement designs, low volume production facilities and experience, and the opportunity to capitalize on an established car population." Ford concluded it could develop such a division of its own but decided that course would take from five to eight years and be more costly than an acquisition. To make a long story short, it acquired certain assets of Autolite in 1961. General Motors had previously entered the spark plug manufacturing field, making the AC brand. The two other
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Justice Douglas
| 1,972 | 10 |
majority
|
Ford Motor Co. v. United States
|
https://www.courtlistener.com/opinion/108494/ford-motor-co-v-united-states/
|
plug manufacturing field, making the AC brand. The two other major domestic producers were independents Autolite and Champion. When Ford acquired Autolite, whose share of the domestic spark plug market was about 15%, only one major independent was left and that was Champion, whose share of the domestic market declined from just under 50% in 1960 to just under 40% in 1964 and to about 33% in 1966. At the time of the acquisition, General Motors' market share was about 30%. There were other small manufacturers of spark plugs but they had no important share of the market.[3] The District Court held that the acquisition of Autolite violated 7 of the Celler-Kefauver Antimerger Act *567 because its effect "may be substantially to lessen competition."[4] It gave two reasons for its decision. First, prior to 1961 when Ford acquired Autolite it had a "pervasive impact on the aftermarket," in that it was a moderating influence on Champion and on other companies derivatively. It explained that reason as follows: "An interested firm on the outside has a twofold significance. It may someday go in and set the stage for noticeable deconcentration. While it merely stays near the edge, it is a deterrent to current competitors. United This was Ford uniquely, as both a prime candidate to manufacture and the major customer of the dominant member of the oligopoly. Given the chance that Autolite would have been doomed to oblivion by defendant's grassroots entry, which also would have destroyed Ford's soothing influence over replacement prices, Ford may well have been more useful as a potential than it *568 would have been as a real producer, regardless how it began fabrication. Had Ford taken the internal-expansion route, there would have been no illegality; not, however, because the result necessarily would have been commendable, but simply because that course has not been proscribed." See also ; United Second, the District Court found that the acquisition marked "the foreclosure of Ford as a purchaser of about ten per cent of total industry output." The District Court added: "In short, Ford's entry into the spark plug market by means of the acquisition of the factory in Fostoria and the trade name `Autolite' had the effect of raising the barriers to entry into that market as well as removing one of the existing restraints upon the actions of those in the business of manufacturing spark plugs. "It will also be noted that the number of competitors in the spark plug manufacturing industry closely parallels the number of competitors in the automobile manufacturing industry and the barriers to entry
|
Justice Douglas
| 1,972 | 10 |
majority
|
Ford Motor Co. v. United States
|
https://www.courtlistener.com/opinion/108494/ford-motor-co-v-united-states/
|
in the automobile manufacturing industry and the barriers to entry into the auto industry are virtually insurmountable at present and will remain so for the foreseeable future. Ford's acquisition of the Autolite assets, particularly when viewed in the context of the original equipment (OE) tie and of GM's ownership of AC, has the result of transmitting the rigidity of the oligopolistic structure of the automobile industry to the spark plug industry, thus reducing the chances of future deconcentration of the spark plug market by forces at work within that market." *569 See also ; Brown Shoe ; United We see no answer to that conclusion if the letter and spirit of the Celler-Kefauver Antimerger Act[5] are to be honored. See United ; United -171; Brown Shoe -323. It is argued, however, that the acquisition had some beneficial effect in making Autolite a more vigorous and *570 effective competitor against Champion and General Motors than Autolite had been as an independent. But what we said in United disposes of that argument. A merger is not saved from illegality under 7, we said, "because, on some ultimate reckoning of social or economic debits and credits, it may be deemed beneficial. A value choice of such magnitude is beyond the ordinary limits of judicial competence, and in any event has been made for us already, by Congress when it enacted the amended 7. Congress determined to preserve our traditionally competitive economy. It therefore proscribed anticompetitive mergers, the benign and the malignant alike, fully aware, we must assume, that some price might have to be paid." Ford argues that the acquisition left the marketplace with a greater number of competitors. To be sure, after Autolite sold its New Fostoria plant to Ford, it constructed another in Decatur, Alabama, which by 1964 had 1.6% of the domestic business. Prior to the acquisition, however, there were only two major independent producers and only two significant purchasers of original equipment spark plugs. The acquisition thus aggravated an already oligopolistic market. As we indicated in Brown Shoe -324: "The primary vice of a vertical merger or other arrangement tying a customer to a supplier is that, by foreclosing the competitors of either party from a segment of the market otherwise open to them, the arrangement may act as a `clog on competition,' Standard Oil of California v. United which `deprive[s] rivals of a fair opportunity to compete.' H. R. Rep. No. 1191, *571 81st Cong., 1st Sess. 8. Every extended vertical arrangement by its very nature, for at least a time, denies to competitors of the supplier the
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Justice Douglas
| 1,972 | 10 |
majority
|
Ford Motor Co. v. United States
|
https://www.courtlistener.com/opinion/108494/ford-motor-co-v-united-states/
|
least a time, denies to competitors of the supplier the opportunity to compete for part or all of the trade of the customer-party to the vertical arrangement." Moreover, Ford made the acquisition in order to obtain a foothold in the aftermarket. Once established, it would have every incentive to perpetuate the OE tie and thus maintain the virtually insurmountable barriers to entry to the aftermarket. II The main controversy here has been over the nature and degree of the relief to be afforded. During the year following the District Court's finding of a 7 violation, the parties were unable to agree upon appropriate relief. The District Court then held nine days of hearings on the remedy and, after full consideration, concluded that divestiture and other relief were necessary. The OE tie, it held, was in many respects the key to the solution since the propensity of the mechanic in a service station or independent garage is to select as a replacement the spark plug brand that the manufacturer installed in the car. The oligopolistic structure of the spark plug manufacturing industry encourages the continuance of that system. Neither GM nor Autolite sells private-label plugs. It is obviously in the self-interest of OE plug manufacturers to discourage private-brand sales and to encourage the OE tie. There are findings that the private-brand sector of the spark plug market will grow substantially in the next decade because mass merchandisers are entering this market in force. They not only sell all brands over the counter but also have service bays where many carry only spark plugs of their own proprietary brand. It is anticipated that by 1980 *572 the total private brand portion of the spark plug market may then represent 17% of the total aftermarket. The District Court added: "To the extent that the spark [plug] manufacturers are not owned by the auto makers, it seems clear that they will be more favorably disposed toward private brand sales and will compete more vigorously for such sales. Also, the potential entrant continues to have the chance to sell not only the private brand customer but the auto maker as well." Accordingly the decree (1) enjoined Ford for 10 years from manufacturing spark plugs, (2) ordered Ford for five years to purchase one-half of its total annual requirement of spark plugs from the divested plant under the "Autolite" name, (3) prohibited Ford for the same period from using its own trade names on plugs, (4) protected New Fostoria, the town where the Autolite plant is located, by requiring Ford to continue for 10 years its
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Justice Douglas
| 1,972 | 10 |
majority
|
Ford Motor Co. v. United States
|
https://www.courtlistener.com/opinion/108494/ford-motor-co-v-united-states/
|
located, by requiring Ford to continue for 10 years its policy of selling spark plugs to its dealers at prices no less than its prevailing minimum suggested jobbers' selling price,[6] (5) protected employees of the New Fostoria plant by ordering Ford to condition its divestiture sale on the purchaser's assuming the existing wage and pension obligations and to offer employment to any employee displaced by a transfer of nonplug operations from the divested plant.[7] *573 The relief in an antitrust case must be "effective to redress the violations" and "to restore competition."[8]United The District Court is clothed with "large discretion" to fit the decree to the special needs of the individual case. International Salt ; United ; United v. Crescent Amusement Complete divestiture is particularly appropriate where asset or stock acquisitions violate the antitrust laws. United ; United v. Crescent Amusement ; Schine Chain Theatres v. United ; United v. El Paso Gas Divestiture is a start toward restoring the pre-acquisition situation. Ford once again will then stand as a large industry customer at the edge of the market with *574 a renewed interest in securing favorable terms for its substantial plug purchases. Since Ford will again be a purchaser, it is expected that the competitive pressures that existed among other spark plug producers to sell to Ford will be re-created. The divestiture should also eliminate the anticompetitive consequences in the aftermarket flowing from the second largest automobile manufacturer's entry through acquisition into the spark plug manufacturing business. The divested plant is given an incentive to provide Ford with terms which will not only satisfy the 50% requirement provided for five years by the decree but which even after that period may keep at least some of Ford's ongoing purchases. The divested plant is awarded at least a foothold in the lucrative aftermarket and is provided an incentive to compete aggressively for that market. As a result of the acquisition of Autolite, the structure of the spark plug industry changed drastically, as already noted. Ford, which before the acquisition was the largest purchaser of spark plugs from the independent manufacturers, became a major manufacturer. The result was to foreclose to the remaining independent spark plug manufacturers the substantial segment of the market previously open to competitive selling and to remove the significant procompetitive effects in the concentrated spark plug market that resulted from Ford's position on the edge of the market as a potential entrant. To permit Ford to retain the Autolite plant and name and to continue manufacturing spark plugs would perpetuate the anticompetitive effects of the acquisition.[9] *575
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Justice Douglas
| 1,972 | 10 |
majority
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Ford Motor Co. v. United States
|
https://www.courtlistener.com/opinion/108494/ford-motor-co-v-united-states/
|
plugs would perpetuate the anticompetitive effects of the acquisition.[9] *575 The District Court rightly concluded that only divestiture would correct the condition caused by the unlawful acquisition. A word should be said about the other injunctive provisions. They are designed to give the divested plant an opportunity to establish its competitive position. The divested company needs time so it can obtain a foothold in the industry. The relief ordered should "cure the ill effects of the illegal conduct, and assure the public freedom from its continuance," United v. United Gypsum and it necessarily must "fit the exigencies of the particular case." International Salt 332 U. S., at Moreover, "it is well settled that once the Government has successfully borne the considerable burden of establishing a violation of law, all doubts as to the remedy are to be resolved in its favor." United Ford concedes that "[i]f New Fostoria is to survive, it must for the foreseeable future become and remain the OE supplier to Ford and secure and retain the benefits of such OE status in sales of replacement plugs." The ancillary measures ordered by the District Court are designed to allow Autolite to re-establish itself in the OE and replacement markets and to maintain it as a viable competitor until such time as forces already at work within the marketplace weaken the OE tie. Thus Ford is prohibited for 10 years from manufacturing its own plugs.[10] But in five years it can buy its plugs from any source and use its name on OE plugs. *576 But prior to that time Ford cannot use or market plugs bearing the Ford trade name. In view of the importance of the OE tie, if Ford were permitted to use its own brand name during the initial five-year period, there would be a tendency to impose the oligopolistic structure of the automotive industry on the replacement parts market and the divested enterprise might well be unable to become a strong competitor. Ford argues that any prohibition against the use of its name is permissible only where the name deceives or confuses the public.[11] But this is not an unfair competition case. The temporary ban on the use of the Ford name is designed to restore the pre-acquisition competitive structure of the market. The requirement that, for five years, Ford purchase at *577 least half of its spark plug requirements from the divested company under the Autolite label is to give the divested enterprise an assured customer while it struggles to be re-established as an effective, independent competitor. It is suggested, however, that
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Justice Douglas
| 1,972 | 10 |
majority
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Ford Motor Co. v. United States
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https://www.courtlistener.com/opinion/108494/ford-motor-co-v-united-states/
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as an effective, independent competitor. It is suggested, however, that "the District Court's orders assured that Ford could not begin to have brand name success in the replacement market for at least 10 to 13 years." Post, at 591. This conclusion distorts the effect of the District Court decree and the nature of the spark plug industry. Ford's own studies indicate that it would take five to eight years for it to develop a spark plug division internally. A major portion of this period would be devoted to the development of a viable position in the aftermarket. The five-year prohibition on the use of its own name and the 10-year limitation on its own manufacturing mesh neatly to allow Ford to establish itself in the aftermarket prior to becoming a manufacturer while, at the same time, giving Autolite the opportunity to re-establish itself by providing a market for its production. Thus, the District Court's decree delays for only two to five years the date on which Ford may become a manufacturer with an established share of the aftermarket. Given the normal five-to-eight-year lead time on entry through internal expansion, the District Court's decree does not significantly lessen Ford's moderating influence as a potential entrant on the edge of the market. Moreover, in light of the interim benefits this ancillary relief will have on the re-establishment of Autolite as a viable competitor and of Ford as a major purchaser, we cannot agree with the characterization of the relief as "harshly restrictive," post, at 595, or the assertion that the decree, in any practical and significant sense, "prohibit[s] Ford from entering the market through internal expansion." Post, at 592. Antitrust relief should unfetter a market from anti-competitive conduct and "pry open to competition a *578 market that has been closed by defendants' illegal restraints." International Salt 332 U. S., at The temporary elimination of Ford as a manufacturer of spark plugs lowers a major barrier to entry to this industry. See C. Kaysen & D. Turner, Antitrust PolicyAn Economic and Legal Analysis 116 (1959). Forces now at work in the marketplace may bring about a deconcentrated market structure and may weaken the onerous OE tie. The District Court concluded that the forces of competition must be nurtured to correct for Ford's illegal acquisition. We view its decree as a means to that end.[12] The thorough and thoughtful way the District Court considered all aspects of this case, including the nature of the relief, is commendable. The drafting of such a decree involves predictions and assumptions concerning future economic and business events. Both
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Justice Douglas
| 1,972 | 10 |
majority
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Ford Motor Co. v. United States
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https://www.courtlistener.com/opinion/108494/ford-motor-co-v-united-states/
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predictions and assumptions concerning future economic and business events. Both public and private interests are involved; and we conclude that the District Court with a single eye to the requirements of 7 and the violation that was clearly established made a reasonable judgment on the means needed to restore and encourage the competition adversely affected by the acquisition. Affirmed. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. *579 MR. JUSTICE STEWART, concurring in the result. The spark plug industry as it stood prior to Ford's acquisition of Autolite was hardly characterized by vigorous competition. For 25 years, the industry had consisted of AC, owned by and supplying original equipment (OE) plugs to General Motors; Champion, independent and supplying Ford; Autolite, independent and supplying Chrysler; and a number of small producers who had no OE sales and only a minuscule share of the aftermarket.[1] The habit among mechanics of installing replacement plugs carrying the same brand as the automobile's original plugs, reinforced by the unwillingness of service stations to stock more than two or three brands,[2] made possible the "OE tie," which rendered any large-scale entry into the aftermarket virtually impossible without first obtaining a large OE customer. Moreover, price competition was minimal, both in the OE market (where any reduction in the six-cent price would immediately be matched by rivals), and in the aftermarket (where spark plugs accounted for such a small percentage of the normal tuneup charge that price differentials did not have a significant impact upon consumer choice). The District Court found that the acquisition of Autolite's spark plug assets by Ford further lessened competition in the industry in two ways: it foreclosed Ford as a potential purchaser of spark plugs from independent producers, and it eliminated what the District Court found to have been Ford's "moderating effect" upon Champion's pricing policies in the aftermarket. These *580 findings standing alone might provide a basis for concluding that the acquisition violated 7, but, as THE CHIEF JUSTICE demonstrates in his dissenting opinion, post, at 591-592, the remedy ordered will not restore the preacquisition market forces upon which the District Court focused. For, under the court's injunctions, Ford will be neither a potential market entrant, nor a potential purchaser of half its OE requirements from producers other than Autolite, for a substantial period of time after the divestiture takes place. In my judgment, both the finding of a 7 violation and the remedy ordered may be better rationalized in terms of probable future trends in the spark plug market, visible
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Justice Douglas
| 1,972 | 10 |
majority
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Ford Motor Co. v. United States
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https://www.courtlistener.com/opinion/108494/ford-motor-co-v-united-states/
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of probable future trends in the spark plug market, visible at the time of the acquisition. The District Court observed that "a court cannot shut its eyes to contemporary or predictable factors conducive to change in the competitive structure." This was a proper inquiry because we have held that 7 "requires not merely an appraisal of the immediate impact of the merger upon competition, but a prediction of its impact upon competitive conditions in the future." United[3] *581 The District Court found that the growth of service-centers operated by mass merchandisers carrying private label brands might eventually loosen the OE tie and the tight oligopoly in the spark plug market that it had fostered. Had Ford entered the market through internal expansion, either Champion or Autolite would have been left without an OE entry, but would nevertheless have owned an established brand name with an existing distribution system, together with a large production capacity. Even the threat of being so stranded, not to mention its realization, would have given both Champion and Autolite an incentive to compete as suppliers to private label sellers, as these sellers began to represent a significant share of the market, and to undermine the OE tie. Ford's acquisition of Autolite did more than foreclose it as a potential OE customer, or eliminate its "moderating effect" upon Champion's pricing policies: it eliminated one of the only two independent producers with a sufficient share of the aftermarket to give it a chance to compete effectively without an OE tie. Thus, the acquisition had the probable effect of indefinitely postponing the day when existing market forces could produce a measurable deconcentration in the market. While the District Court did not justify the divestiture in precisely these terms, I think its prediction of future trends in the spark plug industry is an adequate basis to support the remedy ordered. THE CHIEF JUSTICE'S opinion, post, at 591-592, is correct in its assertion that the ancillary injunctions are anticompetitive in the short run, and that the District Court took extraordinary measures to mother the divested producer for the next decade. But I cannot say that these injunctions are not reasonably calculated to establish the new Autolite producer as a viable firm and thus to restore the pre-acquisition market structure, insofar as it is now possible to do so. A divestiture decree *582 without ancillary injunctions would not automatically restore the status quo ante, as THE CHIEF JUSTICE'S opinion seems to assume. The Electric Autolite Company, from which Ford acquired the assets in question here, will not be recreated by the divestiture,
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Ford Motor Co. v. United States
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in question here, will not be recreated by the divestiture, and it is reasonable to assume that a new owner of the Autolite trade name and the New Fostoria plant will require a period of time to become as effective a competitor as was Electric Autolite prior to the acquisition. Though the economics of the market are such that the divestiture cannot be assured of success, it does at least have a chance of bringing increased competition to the spark plug industry. And while divestiture remedies in 7 cases have not enjoyed spectacular success in the past, remedies short of divestiture have been uniformly unsuccessful in meeting the goals of the Act. See Elzinga, The Antimerger Law: Pyrrhic Victories, 12 J. Law & Econ. 43 (1969). MR. CHIEF JUSTICE BURGER, concurring in part and dissenting in part. In addition to requiring divestiture of Autolite, the District Court made ancillary injunctive provisions that go far beyond any that have been cited to the Court. Ford is forbidden to manufacture spark plugs for 10 years; Ford is ordered to purchase one-half of its total annual requirement of spark plugs from the divested company under the "Autolite" name, and Ford is forbidden for the same period to use its own trade name on any spark plugs. These provisions are directed to prevent Ford from making an independent entry into the spark plug market and, in effect, to require it to subsidize Autolite for a period of time. Despite the Draconian quality of this restriction on Ford, I can find no justification in the District Court's findings for this *583 remedy. I dissent from the broad sweep of the District Court's remedial decree. I would remand for further consideration of the remedial aspects of this case. An understanding of the District Court's findings as to the spark plug market shows three reasons why it was in error in requiring Ford to support Autolite. First, the court did not find that the weakness of an independent Autolite's competitive position resulted from Ford's acquisition. Rather, a reading of its findings makes apparent that the precariousness of Autolite's expected post-divestment position results from pre-existing forces in the market. Therefore, the drastic measures employed to strengthen Autolite's position at Ford's expense cannot be justified as a remedy for any wrong done by Ford. Second, the remedy will perpetuate for a time the very evils upon which the District Court based a finding of an antitrust violation. Third, the court's own findings indicate that the remedy is not likely to secure Autolite's competitive position beyond the termination of the
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Justice Douglas
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Ford Motor Co. v. United States
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https://www.courtlistener.com/opinion/108494/ford-motor-co-v-united-states/
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to secure Autolite's competitive position beyond the termination of the restrictions. Therefore, there is no assurance that the judicial remedy will have the desired impact on long-run competition in the spark plug market. The Court makes two critical errors in order to avoid the effect of this reasoning. It rejects the factfinding by the District Court in order to uphold its remedial order; and it repeats that court's error by discussing the assistance necessary to restore Autolite to the status quo ante without ever delineating that prior state of affairs or indicating how Ford, by acquiring Autolite and holding it for a number of years, had undermined its ability to reassume its former independent competitive position. The District Court made extensive findings on the nature of the spark plug market. Some of these findings appear in the Court's opinion, but some factors that *584 seem crucial to me are either omitted or not adequately set forth. Therefore I will sketch these findings at some risk of repetition. Beyond doubt, the spark plug market has been overwhelmingly dominated by three manufacturers for a long period: AC, owned by General Motors, which had about 30% of the market in 1961; Champion, which had supplied Ford since 1910 and had approximately 50% of the market in 1961; and Autolite, which had supplied Chrysler since 1941 and had 15% of the market in 1961. Together these three companies had over 95% of the total market in 1961. The reason for the continued domination of the market by the three big plug manufacturers is the pervasive feature of the plug market known as the "OE (original equipment) tie." This denominates the phenomenon that mechanics who replace spark plugs in a car engine have tended, almost exclusively, to use the brand of plug installed by the auto builder as original equipment. Though not required by spark plug technology, mechanics have followed this practice because of a strong desire to avoid any chance of injuring an engine by putting a mismatched plug into it. Further, because plugs are low-profit items, those who install them tend to carry an inventory of a small number of brands. Most carry only two and some carry three brands, and they choose the brands installed by the big auto manufacturers as original equipment. Thus, it takes a position as supplier to a large auto maker to gain recognition in the spark plug replacement market. The Government conceded in the District Court, for instance, that American Motors, with 5% of the auto market, would not be able to create market acceptance for an
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Justice Douglas
| 1,972 | 10 |
majority
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Ford Motor Co. v. United States
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would not be able to create market acceptance for an independent brand of plug by installing it as original equipment in its cars. Because of the competitive importance of having their plugs installed as original equipment by one of the three *585 auto companies, plug manufacturers have over a long period been willing to sell OE plugs for initial installation by auto manufacturers at a price below their production cost. The longstanding price for OE plugs, about 6 cents, is now approximately one-third of the cost of producing these plugs. Such below-cost selling is profitable for the plug companies because of the foothold it gives them in competing for the normal five or six sets of replacement plugs necessary in the lifespan of an automobile. This pricing policy has been partially responsible for the semipermanent relations between the plug manufacturers and the auto manufacturers: it is only those plug companies that profit from the OE tie over the long run that can afford this below-cost sale to the auto companies. The strength of the OE tie is demonstrated by the inability of well-known auto supply manufacturers to gain a significant share of the spark plug market in the absence of an OE tie. As the District Court found, no company without the OE tie "ever surpassed the 2% level. Several have come and gone. Firestone Tire and Rubber Company merchandised `Firestone' replacements for 35 years before it gave up in 1964. Although it owned some 800 accessory stores and successfully wholesaled other items to more than 50,000 shops and filling stations, it could not surmount the patent discrimination against brands not blessed with Detroit's approbation. Goodyear Tire and Rubber Company quit in only three years. Globe Union, a fabricator which had barely 1% of the nation's shipments, withdrew in 1960." Two small manufacturers survive, producing plugs for private-label brands. Thus "Atlas" plugs, sponsored by *586 the Standard Oil companies, has 1.4% of the replacement market; "Prestolite" and Sears, Roebuck's "Allstate" each have 1.2%; and Montgomery Ward's "Riverside" label has 0.6% of the replacement market. An independent entry into the plug market by Ford, with the expected substitution of its own plugs as original equipment in its cars, would have necessarily deprived one of the two significant independent plug producers of its OE status. The District Court found that, because of the importance of the OE tie, the plug producer deprived of this support would most likely have lost any significant position in the market.[1] Autolite, with only 15% of the market before the acquisition, would certainly have lost any significant
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Justice Douglas
| 1,972 | 10 |
majority
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Ford Motor Co. v. United States
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https://www.courtlistener.com/opinion/108494/ford-motor-co-v-united-states/
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market before the acquisition, would certainly have lost any significant position in the market if an independent entry by Ford had led Chrysler to shift its patronage from Autolite to Champion. The District Court asserted that a Champion without OE status would have had some chance of maintaining a significant market position because of its size, although it gave no reason for thinking Champion's size immunized it from dependence on OE status. Before 1961, Champion had just under 50% of the market. As a result of Champion's move to Chrysler in 1961, its position in the market dropped to 33% by 1966. The District Court found no basis for predicting which of the two big independents would have won such a competition for continued OE status. Thus, an independent entry by Ford would not likely have increased the number of significant competitors in the spark plug market. Rather, it would simply have substituted Ford for one of the two significant independent manufacturers. The result of this expectation *587 is that the District Court did not base its finding of illegality on the ground typically present when a potential entrant enters an oligopolistic market by acquisition rather than internal expansion, i. e., that such a move has deprived the market of the pro-competitive effect of an increase in the number of competitors. Here an independent entry would not have increased the number of competitors but simply would have exchanged one competitor for another. In noting this paradoxical fact, the District Court concluded that "Ford may well have been more useful as a potential than it would have been as a real producer, regardless how it began fabrication."[2] Not finding that Ford's entry by acquisition had deprived the spark plug market of any pro-competitive effect of an independent entry, the District Court relied on two other grounds for finding a violation of the antitrust laws. First, it concluded that as a potential entrant on the edge of the market which was also a major purchaser in the market, Ford exercised a "moderating" influence on the market; the second basis for determining the acquisition illegal was the finding that the acquisition *5 "foreclosed" other companies from competing for the business of supplying Ford with spark plugs. With respect to Autolite itself, the District Court made several relevant findings. First, it found that Autolite is a fixed-production plant. In other words, it can be profitable only turning out approximately the number of plugs it now manufactures. It could not, for instance, reduce its production by half and sell that at a profit. Second, it
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Justice Douglas
| 1,972 | 10 |
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Ford Motor Co. v. United States
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https://www.courtlistener.com/opinion/108494/ford-motor-co-v-united-states/
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by half and sell that at a profit. Second, it made extensive findings with respect to Autolite's distribution system: "Ford received six regional offices, personnel and a list of Electric Autolite's warehousers and jobbers. All of these have been and still are at liberty to deal with anyone they wish. Each old direct account had to be visited individually and, if it consented, be re-signed by defendant [Ford]. Within a few months, 52 did enter into new ignition contracts. However, 50 of these for the previous year had also been [distributors of other Ford products]. By mid-1966, direct accounts totaled 156, of which 104 in 1960 had been pledged to neither Ford nor Autolite. The same bloc of 50 had been committed to both. The net increase traceable with any semblance of accuracy to the acquisition is two first-layer middlemen" As to difficulties that a divested Autolite might have in establishing an independent distribution system, the District Court mentioned only one:[3] if Ford were to offer its own plugs to its car dealers at a fairly low price, one which independent jobbers could not meet, Autolite *589 would have difficulty independently establishing its distribution system. The jobbers would be less interested in handling Autolite's line since the Ford dealers would not want Autolite at the jobbers' price and, with this demand cut out, the jobbers would be less interested in pushing Autolite generally. There is another set of relevant facts found by the District Court. The District Judge found that "there is a rising wind of new forces in the spark plug market which may profoundly change it." On the basis of the testimony of an executive of one of the producers of plugs for private labels, the court found that the private-brand sector would grow during the next 10 years. This highly speculative observation of the District Court was based on a finding that the mass merchandisers are beginning to enter the plug marketing field in force. Not only do the mass merchandisers market private-brand plugs over the counter, but they are also building service bays. And in these bays many carry only their own proprietary brand of spark plugs. This witness predicted that the mass merchandisers would increase their share of the aftermarket from 4.4% to 10% by 1980. He further predicted that oil companies would enter the replacement market, resulting in a total of 17% of the replacement market being supplied by private-label plugs by 1980. The court concluded that these forces "may well lead to [the market's] eventual deconcentration by increasing the number of potential customers
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Justice Douglas
| 1,972 | 10 |
majority
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Ford Motor Co. v. United States
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https://www.courtlistener.com/opinion/108494/ford-motor-co-v-united-states/
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market's] eventual deconcentration by increasing the number of potential customers for a new entrant into the plug manufacturing business and reducing the need for original equipment identification." In its separate opinion on remedies, the District Court correctly stated the relevant law; the purpose, and limit of antitrust remedies, is to "free these forces [within the market] from the unlawful restraint imposed upon them so that they *590 may run their natural course." 315 F. Supp., at The violators may not be required to do more than return the market to the status quo ante. See United v. Paramount Pictures, Inc., ; Reynolds Metals v. FTC, 114 U. S. App. D. C. 2, Applying this general provision to the instant situation, the District Court correctly stated: "The court wishes to note here that although it finds that divestiture is the only effective remedy, it does not agree with the Government that the remedy should be affirmatively designed to `break the OE tie.' The remedy is designed to correct the violations of Section 7 found by the court. The OE tie, as such, does not violate Section 7." The District Court then concluded that, in addition to divestiture of the Autolite plant and trade name, certain injunctive provisions were required "to give [Autolite] an opportunity to establish its competitive position." It therefore ordered that Ford be prohibited from manufacturing spark plugs for a period of 10 years. It further ordered that for a period of five years Ford would be required to purchase one-half of its total annual needs of spark plugs from Autolite, bearing the Autolite label. For this five-year period Ford was also ordered not to use or market a spark plug under a trade name owned by or licensed to it. The effect of these orders was twofold. They assured Autolite of a purchaser for a large part of its production for five years. And they prevented Ford from immediately entering the competition for a share of the aftermarket with a plug under its own name; it could not even label a plug under its own name for five years and could not manufacture its own plug for 10 years. *591 Given the findings of the court that even with the status of supplier of original equipment (with the company's own brand name on plugs) to a major auto manufacturer it would take a new entrant into the spark plug market five to eight years to establish a position for its brand in the replacement market, the District Court's orders assured that Ford could not begin to have brand-name
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Justice Douglas
| 1,972 | 10 |
majority
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Ford Motor Co. v. United States
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https://www.courtlistener.com/opinion/108494/ford-motor-co-v-united-states/
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orders assured that Ford could not begin to have brand-name success in the replacement market for at least 10 to 13 years.[4] In my view these drastic remedial provisions are not warranted by the court's findings as to the grounds on which Ford's acquisition violated the antitrust laws. Further, in light of the District Court's own factfindings, these remedies will have short run anticompetitive impact and they give no assurance that they will succeed in allowing Autolite to establish its competitive position. The remedial provisions are unrelated to restoring the status quo ante with respect to the two violations found by the District Court, the ending of Ford's status as a potential entrant with a moderating influence on the market and the foreclosure of a significant part of the plug market. Indeed, the remedies may well be anticompetitive in both respects. First, the District Court's order actually undercuts the moderating influence of Ford's position on the edge of the market. It is the *592 possibility that a company on the sidelines will enter a market through internal expansion that has a moderating influence on the market. By prohibiting Ford from entering the market through internal expansion, therefore, the remedy order wipes out, for the duration of the restriction, the pro-competitive influence Ford had on the market prior to its acquisition of Autolite. Second, the Court's order does not fully undo the foreclosure effect of the acquisition. Divestment alone would return the parties to the status quo ante. Ford would then be free to deal with Autolite or another plug producer or to enter the market through internal expansion. Yet the Court has ordered Ford to buy at least half its requirements from Autolite for five years. Thus, the order itself forecloses part of Ford's needs from the forces of competition. The above problems might be minor if the District Court's remedy were justifiable in terms of returning Autolite to the status quo ante by overcoming some harm to its ability to compete accomplished by Ford's acquisition. But on this issue the District Court opinion and the majority of this Court are confused. Although the District Court asserted that Autolite needed the aid of its injunctive remedies to establish its competitive position, the court made no findings in its remedy opinion as to the source of Autolite's competitive weakness. Therefore it never reached the issue whether the source of weakness had anything to do with the violations attributed to Ford. Instead, the court's opinion proceeded from the recognition of competitive problems immediately to the prescription of a remedy. In fact, a
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Justice Douglas
| 1,972 | 10 |
majority
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Ford Motor Co. v. United States
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https://www.courtlistener.com/opinion/108494/ford-motor-co-v-united-states/
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immediately to the prescription of a remedy. In fact, a fair reading of the findings of the District Court shows that the acquisition did not injure Autolite's competitive position. Autolite's OE status was continued and its share of the aftermarket was increased from 12.5% to 19%. Thus, its trademark is at least as strong now as when Ford acquired the company. Nor *593 did the acquisition and holding of Autolite injure its distribution system. The District Court found that Autolite did not own a distribution system. It merely had short-term contracts with jobbers who distributed its plugs to those who install them in cars or sell them to the public. Almost all of these jobbers had concurrent distribution relations with Ford. In fact, between 1961 and 1966 Ford tripled the number of jobbers handling Autolite plugs. From the opinion below, it appears that Ford has done nothing that will prevent an independent Autolite from seeking to maintain these distribution channels. The only possible finding of injury to be squeezed out of the acquisition relates to the fact that Autolite has been shorn of its status as OE supplier of Chrysler. But this is inconclusive. Autolite had nothing more in its position as OE supplier to Chrysler than it would if Ford voluntarily chose to use Autolite plugs after the divestment: a relationship based on short-term contracts the auto manufacturer could refuse to renew at any time. The findings of the District Court indicate that Autolite's precarious position did not result from its acquisition by Ford. Prior to the acquisition both Champion and Autolite were in a continually precarious position in that their continued large share of the market was totally dependent on their positions as OE suppliers to auto manufacturers. The very factor that assured that they faced no serious competition in the short run also assured that in the long run their own position was dependent on their relationship with a large auto manufacturer. Thus, the threat to Autolite posed by a simple divestiture is the same threat it had lived with between 1941 and 1961 as an independent entity: it might be left without any OE supply relationship with a major auto manufacturer, and therefore its market position based on this relationship might decline drastically. *594 Today's opinion errs when it states, ante, at 571, that the District Judge found the OE tie the "key to the solution" of this problem. Although the court indeed found this tie a pervasive factor in the market, it also found that the phenomenon was not created by Ford and that it
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Justice Douglas
| 1,972 | 10 |
majority
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Ford Motor Co. v. United States
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https://www.courtlistener.com/opinion/108494/ford-motor-co-v-united-states/
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the phenomenon was not created by Ford and that it did not constitute a 7 violation. Therefore the Court errs in justifying the ancillary remedies as necessary to overcome the OE tie. Even if such a remedy might overcome the OE tie, which I question, there is no justification for burdening Ford with the restrictive order. Further, the only conclusion to be drawn from the trial findings is that the remedy is unlikely to result in a secure market position for Autolite at the end of the restricted period. Once again it will be dependent for its survival on whether it can maintain an OE supply status. The District Court's suggestion that Autolite can find a niche supplying private-brand labels is unpersuasive. It cannot be predicted with any certainty that these sales outlets will grow to the extent predicted by one person in that line of the business. Further, even if they do, this is no assurance of Autolite's survival. There are already several companies in the business of producing plugs for private labels. Autolite will have to compete with them. The results will not be helpful. One possibility is that Autolite would completely monopolize the private-brand market to the extent of about 17% of the replacement market. This is as uncompetitive as it is unlikely. The more reasonable likelihood is that Autolite might be able to gain a position producing, for instance, 5% of the replacement market plugs. But this would be useless because the District Court's findings make clear that Autolite's fixed-production plant cannot supply such a small share of the market at a profit. In the final analysis it appears to me that the District Court, seeing the immediate precariousness of Autolite's *595 position as a divested entity, designed remedies to support Autolite without contemplating whether it was equitable to restrict Ford's freedom of action for these purposes or whether there was any real chance of Autolite's eventual survival. I fear that this is a situation where the form of preserving competition has taken precedence over an understanding of the realities of the particular market. Therefore I dissent from today's affirmance of the District Court's harshly restrictive remedial provisions.[5] MR. JUSTICE BLACKMUN, concurring in part and dissenting in part. I concur in Part I of the Court's opinion and in that portion of Part II that approves divestiture as part of the remedy. I cannot agree, however, that prohibiting Ford from using its own name or its trade name on any spark plugs for five years and enjoining it entirely from manufacturing plugs for 10 years is
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Justice O'Connor
| 1,983 | 14 |
majority
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United States v. Place
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https://www.courtlistener.com/opinion/110979/united-states-v-place/
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This case presents the issue whether the Fourth Amendment prohibits law enforcement authorities from temporarily * detaining personal luggage for exposure to a trained narcotics detection dog on the basis of reasonable suspicion that the luggage contains narcotics. Given the enforcement problems associated with the detection of narcotics trafficking and the minimal intrusion that a properly limited detention would entail, we conclude that the Fourth Amendment does not prohibit such a detention. On the facts of this case, however, we hold that the police conduct exceeded the bounds of a permissible investigative detention of the luggage. I Respondent Raymond J. Place's behavior aroused the suspicions of law enforcement officers as he waited in line at the Miami International Airport to purchase a ticket to New 's La Guardia Airport. As Place proceeded to the gate for his flight, the agents approached him and requested his airline ticket and some identification. Place complied with the request and consented to a search of the two suitcases he had checked. Because his flight was about to depart, however, the agents decided not to search the luggage. Prompted by Place's parting remark that he had recognized that they were police, the agents inspected the address tags on the checked luggage and discrepancies in the two street addresses. Further investigation revealed that neither address existed and that the telephone number Place had given the airline belonged to a third address on the same street. On the basis of their encounter with Place and this information, the Miami agents called Drug Enforcement Administration (DEA) authorities in New to relay their information about Place. Two DEA agents waited for Place at the arrival gate at La Guardia Airport in New There again, his behavior aroused the suspicion of the agents. After he had claimed his two bags and called a limousine, the agents decided to approach him. They identified themselves as federal narcotics agents, to which Place responded that he knew they were "cops" and had spotted them as soon as he had deplaned. *699 One of the agents informed Place that, based on their own observations and information obtained from the Miami authorities, they believed that he might be carrying narcotics. After identifying the bags as belonging to him, Place stated that a number of police at the Miami Airport had surrounded him and searched his baggage. The agents responded that their information was to the contrary. The agents requested and received identification from Place a New Jersey driver's license, on which the agents later ran a computer check that disclosed no offenses, and his
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Justice O'Connor
| 1,983 | 14 |
majority
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United States v. Place
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https://www.courtlistener.com/opinion/110979/united-states-v-place/
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ran a computer check that disclosed no offenses, and his airline ticket receipt. When Place refused to consent to a search of his luggage, one of the agents told him that they were going to take the luggage to a federal judge to try to obtain a search warrant and that Place was free to accompany them. Place declined, but obtained from one of the agents telephone numbers at which the agents could be reached. The agents then took the bags to Kennedy Airport, where they subjected the bags to a "sniff test" by a trained narcotics detection dog. The dog reacted positively to the smaller of the two bags but ambiguously to the larger bag. Approximately 90 minutes had elapsed since the seizure of respondent's luggage. Because it was late on a Friday afternoon, the agents retained the luggage until Monday morning, when they secured a search warrant from a Magistrate for the smaller bag. Upon opening that bag, the agents discovered 1,125 grams of cocaine. Place was indicted for possession of cocaine with intent to distribute in violation of 21 U.S. C. 841(a)(1). In the District Court, Place moved to suppress the contents of the luggage seized from him at La Guardia Airport, claiming that the warrantless seizure of the luggage violated his Fourth Amendment rights.[1] The District Court denied the motion. *700 Applying the standard of to the detention of personal property, it concluded that detention of the bags could be justified if based on reasonable suspicion to believe that the bags contained narcotics. Finding reasonable suspicion, the District Court held that Place's Fourth Amendment rights were not violated by seizure of the bags by the DEA agents. Place pleaded guilty to the possession charge, reserving the right to appeal the denial of his motion to suppress. On appeal of the conviction, the United States Court of Appeals for the Second Circuit reversed. The majority assumed both that Terry principles could be applied to justify a warrantless seizure of baggage on less than probable cause and that reasonable suspicion existed to justify the investigatory stop of Place. The majority concluded, however, that the prolonged seizure of Place's baggage exceeded the permissible limits of a Terry-type investigative stop and consequently amounted to a seizure without probable cause in violation of the Fourth Amendment. We granted certiorari, and now affirm. II The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (Emphasis added.) Although in the context of personal property, and particularly containers, the Fourth
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Justice O'Connor
| 1,983 | 14 |
majority
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United States v. Place
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https://www.courtlistener.com/opinion/110979/united-states-v-place/
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the context of personal property, and particularly containers, the Fourth Amendment challenge is *701 typically to the subsequent search of the container rather than to its initial seizure by the authorities, our cases reveal some general principles regarding seizures. In the ordinary case, the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.[2] See, e. g., Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present. See, e. g., ; United ;[] For example, "objects such as weapons or contraband found in a public place may be seized by the police without a warrant," because, under these circumstances, the risk of the item's disappearance or use for its intended purpose before a *702 warrant may be obtained outweighs the interest in possession. See also G. M. Leasing In this case, the Government asks us to recognize the reasonableness under the Fourth Amendment of warrantless seizures of personal luggage from the custody of the owner on the basis of less than probable cause, for the purpose of pursuing a limited course of investigation, short of opening the luggage, that would quickly confirm or dispel the authorities' Specifically, we are asked to apply the principles of to permit such seizures on the basis of reasonable, articulable suspicion, premised on objective facts, that the luggage contains contraband or evidence of a crime. In our view, such application is appropriate. In Terry the Court first recognized "the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual's personal security based on less than probable cause." In approving the limited search for weapons, or "frisk," of an individual the police reasonably believed to be armed and dangerous, the Court implicitly acknowledged the authority of the police to make a forcible stop of a person when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal[4] That implicit proposition was embraced openly in where the Court relied on Terry to hold that the police officer lawfully made a forcible stop of the suspect to
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Justice O'Connor
| 1,983 | 14 |
majority
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United States v. Place
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https://www.courtlistener.com/opinion/110979/united-states-v-place/
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officer lawfully made a forcible stop of the suspect to investigate an informant's tip that the suspect was carrying *70 narcotics and a concealed weapon. See also ; United ; United The exception to the probable-cause requirement for limited seizures of the person recognized in Terry and its progeny rests on a balancing of the competing interests to determine the reasonableness of the type of seizure involved within the meaning of "the Fourth Amendment's general proscription against unreasonable searches and seizures." We must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. When the nature and extent of the detention are minimally intrusive of the individual's Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause. We examine first the governmental interest offered as a justification for a brief seizure of luggage from the suspect's custody for the purpose of pursuing a limited course of investigation. The Government contends that, where the authorities possess specific and articulable facts warranting a reasonable belief that a traveler's luggage contains narcotics, the governmental interest in seizing the luggage briefly to pursue further investigation is substantial. We agree. As observed in United "[t]he public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit." Respondent suggests that, absent some special law enforcement interest such as officer safety, a generalized interest in law enforcement cannot justify an intrusion on an individual's Fourth Amendment interests in the absence of *704 probable cause. Our prior cases, however, do not support this proposition. In Terry, we described the governmental interests supporting the initial seizure of the person as "effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Similarly, in we identified three law enforcement interests that justified limited detention of the occupants of the premises during execution of a valid search warrant: "preventing flight in the event that incriminating evidence is found," "minimizing the risk of harm" both to the officers and the occupants, and "orderly completion of the search." -70. Cf. ("The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect"). The test is whether those interests are sufficiently "substantial," not whether
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Justice O'Connor
| 1,983 | 14 |
majority
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United States v. Place
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https://www.courtlistener.com/opinion/110979/united-states-v-place/
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test is whether those interests are sufficiently "substantial," not whether they are independent of the interest in investigating crimes effectively and apprehending suspects. The context of a particular law enforcement practice, of course, may affect the determination whether a brief intrusion on Fourth Amendment interests on less than probable cause is essential to effective criminal investigation. Because of the inherently transient nature of drug courier activity at airports, allowing police to make brief investigative stops of persons at airports on reasonable suspicion of drug-trafficking substantially enhances the likelihood that police will be able to prevent the flow of narcotics into distribution channels.[5] *705 Against this strong governmental interest, we must weigh the nature and extent of the intrusion upon the individual's Fourth Amendment rights when the police briefly detain luggage for limited investigative purposes. On this point, respondent Place urges that the rationale for a Terry stop of the person is wholly inapplicable to investigative detentions of personality. Specifically, the Terry exception to the probable-cause requirement is premised on the notion that a Terry-type stop of the person is substantially less intrusive of a person's liberty interests than a formal arrest. In the property context, however, Place urges, there are no degrees of intrusion. Once the owner's property is seized, the dispossession is absolute. We disagree. The intrusion on possessory interests occasioned by a seizure of one's personal effects can vary both in its nature and extent. The seizure may be made after the owner has relinquished control of the property to a third party or, as here, from the immediate custody and control of the owner.[6] Moreover, the police may confine their investigation * to an on-the-spot inquiry for example, immediate exposure of the luggage to a trained narcotics detection dog[7] or transport the property to another location. Given the fact that seizures of property can vary in intrusiveness, some brief detentions of personal effects may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a seizure based only on specific articulable facts that the property contains contraband or evidence of a crime. In sum, we conclude that when an officer's observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope. The purpose for which respondent's luggage was seized, of course, was to arrange its exposure to a narcotics detection dog. Obviously,
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Justice O'Connor
| 1,983 | 14 |
majority
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United States v. Place
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https://www.courtlistener.com/opinion/110979/united-states-v-place/
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to arrange its exposure to a narcotics detection dog. Obviously, if this investigative procedure is itself a search requiring probable cause, the initial seizure of respondent's luggage for the purpose of subjecting it to the sniff test no matter how brief could not be justified on less than probable cause. See ; United ; United -882; 407 U. S., at The Fourth Amendment "protects people from unreasonable government intrusions into their legitimate expectations *707 of privacy." United We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. A "canine sniff" by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods. In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here exposure of respondent's luggage, which was located in a public place, to a trained canine did not constitute a "search" within the meaning of the Fourth Amendment. III There is no doubt that the agents made a "seizure" of Place's luggage for purposes of the Fourth Amendment when, following his refusal to consent to a search, the agent told Place that he was going to take the luggage to a federal judge to secure issuance of a warrant. As we observed in Terry, "[t]he manner in which the seizure [was] conducted *708 is, of course, as vital a part of the inquiry as whether [it was] warranted at all." We therefore examine whether the agents' conduct in this case was such as to place the seizure within the general rule requiring probable cause for a seizure or within Terry's exception to
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Justice O'Connor
| 1,983 | 14 |
majority
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United States v. Place
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https://www.courtlistener.com/opinion/110979/united-states-v-place/
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probable cause for a seizure or within Terry's exception to that rule. At the outset, we must reject the Government's suggestion that the point at which probable cause for seizure of luggage from the person's presence becomes necessary is more distant than in the case of a Terry stop of the person himself. The premise of the Government's argument is that seizures of property are generally less intrusive than seizures of the person. While true in some circumstances, that premise is faulty on the facts we address in this case. The precise type of detention we confront here is seizure of personal luggage from the immediate possession of the suspect for the purpose of arranging exposure to a narcotics detection dog. Particularly in the case of detention of luggage within the traveler's immediate possession, the police conduct intrudes on both the suspect's possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary. The person whose luggage is detained is technically still free to continue his travels or carry out other personal activities pending release of the luggage. Moreover, he is not subjected to the coercive atmosphere of a custodial confinement or to the public indignity of being personally detained. Nevertheless, such a seizure can effectively restrain the person since he is subjected to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its return.[8] Therefore, when the police seize luggage from the *709 suspect's custody, we think the limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the person's luggage on less than probable cause. Under this standard, it is clear that the police conduct here exceeded the permissible limits of a Terry-type investigative stop. The length of the detention of respondent's luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause. Although we have recognized the reasonableness of seizures longer than the momentary ones involved in Terry, Adams, and see the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable Moreover, in assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation. We note that here the New agents knew the time of Place's scheduled arrival at La Guardia, had ample time to arrange for their additional investigation at that location, and thereby could have minimized the intrusion on
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Justice O'Connor
| 1,983 | 14 |
majority
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United States v. Place
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https://www.courtlistener.com/opinion/110979/united-states-v-place/
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that location, and thereby could have minimized the intrusion on respondent's Fourth Amendment interests.[9] Thus, although we decline to adopt any outside time limitation for a permissible Terry stop,[10] we have never *710 approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case. See Although the 90-minute detention of respondent's luggage is sufficient to render the seizure unreasonable, the violation was exacerbated by the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the In short, we hold that the detention of respondent's luggage in this case went beyond the narrow authority possessed by police to detain briefly luggage reasonably suspected to contain narcotics. IV We conclude that, under all of the circumstances of this case, the seizure of respondent's luggage was unreasonable under the Fourth Amendment. Consequently, the evidence obtained from the subsequent search of his luggage was inadmissible, and Place's conviction must be reversed. The judgment of the Court of Appeals, accordingly, is affirmed. It is so ordered. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in the result. In this case, the Court of Appeals assumed both that the officers had the "reasonable suspicion" necessary to justify an "investigative" stop of respondent under and its progeny, and that the principles of Terry apply to seizures of property. See ; ante, at 700. The court held simply that "the prolonged seizure of [respondent's] baggage went far beyond a mere investigative stop and amounted to a violation of his Fourth Amendment rights." 660 F.2d, at See also *711 at 52, 5. I would affirm the Court of Appeals' judgment on this ground. Instead of simply affirming on this ground and putting an end to the matter, the Court decides to reach, and purportedly to resolve, the constitutionality of the seizure of respondent's luggage on less than probable cause and the exposure of that luggage to a narcotics detection dog. See ante, at -707. Apparently, the Court finds itself unable to "resist the pull to decide the constitutional issues involved in this case on a broader basis than the record before [it] imperatively requires." (9). Because the Court reaches issues unnecessary to its judgment and because I cannot subscribe to the Court's analysis of those issues, I concur only in the result. I I have had occasion twice in recent months to
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Justice O'Connor
| 1,983 | 14 |
majority
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United States v. Place
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https://www.courtlistener.com/opinion/110979/united-states-v-place/
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I I have had occasion twice in recent months to discuss the limited scope of the exception to the Fourth Amendment's probable-cause requirement created by Terry and its progeny. See 9 ; Unfortunately, the unwarranted expansion of that exception which the Court endorses today forces me to elaborate on my previously expressed views. In Terry the Court expressly declined to address "the constitutional propriety of an investigative `seizure' upon less than probable cause for purposes of `detention' and/or interrogation." n. 16.[1] The Court was confronted *712 with "the quite narrow question" of "whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest." In addressing this question, the Court that it was dealing "with an entire rubric of police conduct necessarily swift action predicated upon the on-the-spot observations of the officer on the beat which historically has not been, and as a practical matter could not be, subjected to the warrant procedure." As a result, the conduct involved in the case has to be "tested by the Fourth Amendment's general proscription against unreasonable searches and seizures." The Court's inquiry into the "reasonableness" of the conduct at issue was based on a " `balancing [of] the need to search [or seize] against the invasion which the search [or seizure] entails.' " quoting (7). The Court concluded that the officer's conduct was reasonable and stated its holding as follows: "We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of *71 the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." In the Court relied on Terry to endorse "brief" investigative stops based on reasonable -. In this regard, the Court stated that "[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer
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Justice O'Connor
| 1,983 | 14 |
majority
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United States v. Place
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https://www.courtlistener.com/opinion/110979/united-states-v-place/
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reasonable in light of the facts known to the officer at the time." at The weapons search upheld in Adams was very limited and was based on Terry's safety 407 U.S., at The Court stated that the purpose of a "limited" weapons search "is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence." In United the Court relied on Terry and Adams in holding that "when an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke "[2] The Court based this relaxation of the traditional probable-cause requirement on the importance of the governmental interest in stemming the flow of illegal aliens, on the minimal intrusion of a brief stop, and on the absence of practical alternatives for policing the border. The Court the limited holdings of Terry and Adams and while authorizing the police to "question the driver and passengers about their citizenship and immigration status, and ask them to explain suspicious circumstances," the Court expressly stated that "any further detention or search must be based on consent or probable cause." -882. See also *7 ("The Terry case created an exception to the requirement of probable cause, an exception whose `narrow scope' this Court `has been careful to maintain' " );[] It is clear that Terry, and the cases that followed it, permit only brief investigative stops and extremely limited searches based on reasonable They do not provide the police with a commission to employ whatever investigative techniques they deem appropriate. As I stated in "[t]he scope of a Terry-type `investigative' stop and any attendant search must be extremely limited or the Terry exception would `swallow the general rule that Fourth Amendment seizures [and searches] are "reasonable" only if based on probable cause.' " quoting II In some respects the Court's opinion in this case can be seen as the logical successor of the plurality opinion in The plurality opinion in contained considerable language which was unnecessary to the judgment, at 9 regarding the permissible scope of Terry investigative stops. See 460 U.S., at 1-7, and n. 10. Even assuming, however, that the Court finds some support in for its discussion of the scope of Terry stops, the Court today goes *715 well beyond in endorsing the notion that the principles of Terry permit "warrantless seizures of personal luggage from the custody of the owner on the basis of less than probable cause, for the purpose of
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Justice O'Connor
| 1,983 | 14 |
majority
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United States v. Place
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https://www.courtlistener.com/opinion/110979/united-states-v-place/
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basis of less than probable cause, for the purpose of pursuing a limited course of investigation, short of opening the luggage, that would quickly confirm or dispel the authorities' " Ante, at 702. See also ante, at In addition to being unnecessary to the Court's judgment, see this suggestion finds no support in Terry or its progeny and significantly dilutes the Fourth Amendment's protections against government interference with personal property. In short, it represents a radical departure from settled Fourth Amendment principles. As -712, Terry and the cases that followed it authorize a brief "investigative" stop of an individual based on reasonable suspicion and a limited search for weapons if the officer reasonably suspects that the individual is armed and presently dangerous. The purpose of this brief stop is "to determine [the individual's] identity or to maintain the status quo momentarily while obtaining more information." 407 U. S., at Anything more than a brief stop "must be based on consent or probable cause." United During the course of this stop, "the suspect must not be moved or asked to move more than a short distance; physical searches are permitted only to the extent necessary to protect the police officers involved during the encounter; and, most importantly, the suspect must be free to leave after a short time and to decline to answer the questions put to him." It is true that Terry stops may involve seizures of personal effects incidental to the seizure of the person involved. Obviously, an officer cannot seize a person without also seizing the personal effects that the individual has in his possession at the time. But there is a difference between *716 incidental seizures of personal effects and seizures of property independent of the seizure of the person. The Fourth Amendment protects "effects" as well as people from unreasonable searches and seizures. In this regard, JUSTICE STEVENS pointed out in that "[t]he [Fourth] Amendment protects two different interests of the citizen the interest in retaining possession of property and the interest in maintaining personal privacy." "A seizure threatens the former, a search the latter." Even if an item is not searched, therefore, its seizure implicates a protected Fourth Amendment interest. For this reason, seizures of property must be based on probable cause. See ; ; G. M. Leasing 51 ; 99 U.S. 42, ; 87 U.S. 294, 09-10 (7). See also -748 Neither Terry nor its progeny changed this rule. In this case, the officers' seizure of respondent and their later independent seizure of his luggage implicated separate Fourth Amendment interests. First, respondent had
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Justice O'Connor
| 1,983 | 14 |
majority
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United States v. Place
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https://www.courtlistener.com/opinion/110979/united-states-v-place/
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his luggage implicated separate Fourth Amendment interests. First, respondent had a protected interest in maintaining his personal security and privacy. Terry allows this interest to be overcome, and authorizes a limited intrusion, if the officers have reason to suspect that criminal activity is afoot. Second, respondent had a protected interest in retaining possession of his personal effects. While Terry may authorize seizures of personal effects incident to a lawful seizure of the person, nothing in the Terry line of cases authorizes the police to seizure personal property, such as luggage, independent of the seizure of the person. Such seizures significantly expand the scope of a Terry stop and may not be effected on less than probable *717 cause.[4] Obviously, they also significantly expand the scope of the intrusion. The officers did not develop probable cause to arrest respondent during their encounter with him. See 660 F.2d, at Therefore, they had to let him go. But despite the absence of probable cause to arrest respondent, the officers seized his luggage and deprived him of possession. Respondent, therefore, was subjected not only to an invasion of his personal security and privacy, but also to an independent dispossession of his personal effects based simply on reasonable It is difficult to understand how this intrusion is not more severe than a brief stop for questioning or even a limited, on-the-spot patdown search for weapons. In my view, as soon as the officers seized respondent's luggage, independent of their seizure of him, they exceeded the scope of a permissible Terry stop and violated respondent's Fourth Amendment rights. In addition, the officers' seizure of respondent's luggage violated the established rule that seizures of personal effects must be based on probable cause. Their actions, therefore, should not be upheld. The Court acknowledges that seizures of personal property must be based on probable cause. See ante, at 700-702. Despite this recognition, the Court employs a balancing test drawn from Terry to conclude that personal effects may be seized based on reasonable See ante, at 70-.[5]*718 In the Court stated that "[t]he narrow intrusions involved in [Terry and its progeny] were judged by a balancing test rather than by the general principle that Fourth Amendment seizures must be supported by the `long-prevailing standards' of probable cause only because these intrusions fell far short of the kind of intrusion associated with an arrest." 2. As Dunaway suggests, the use of a balancing test in this case is inappropriate. First, the intrusion involved in this case is no longer the "narrow" one contemplated by the Terry line of cases. See In
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Justice O'Connor
| 1,983 | 14 |
majority
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United States v. Place
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https://www.courtlistener.com/opinion/110979/united-states-v-place/
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one contemplated by the Terry line of cases. See In addition, the intrusion involved in this case involves not only the seizure of a person, but also the seizure of property. As -712, Terry and its progeny did not address seizures of property. Those cases left unchanged the rule that seizures of property must be based on probable cause. See The Terry balancing test should not be wrenched from its factual and conceptual moorings. There are important reasons why balancing inquiries should not be conducted except in the most limited circumstances. Terry and the cases that followed it established "isolated exceptions to the general rule that the Fourth Amendment itself has already performed the constitutional balance between police objectives and personal privacy." "[T]he protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious circumstances presented by different cases, especially when that balancing may be done in the first instance by police officers engaged in the `often competitive enterprise of ferreting out crime.' " *719 quoting U.S. 10, The truth of this proposition is apparent when one considers that the Court today has employed a balancing test "to swallow the general rule that [seizures of property] are `reasonable' only if based on probable cause." 442 U.S., JUSTICE BLACKMUN's concern over "an emerging tendency on the part of the Court to convert the Terry decision into a general statement that the Fourth Amendment requires only that any seizure be reasonable," post, at 721 (BLACKMUN, J., concurring in judgment) is certainly justified. III The Court also suggests today, in a discussion unnecessary to the judgment, that exposure of respondent's luggage to a narcotics detection dog "did not constitute a `search' within the meaning of the Fourth Amendment." Ante, at 707. In the District Court, respondent did "not contest the validity of sniff searches per se." The Court of Appeals did not reach or discuss the issue. It was not briefed or argued in this Court. In short, I agree with JUSTICE BLACKMUN that the Court should not address the issue. See post, at 72-724 (BLACKMUN, J., concurring in judgment). I also agree with JUSTICE BLACKMUN's suggestion, ib that the issue is more complex than the Court's discussion would lead one to believe. As JUSTICE STEVENS suggested in objecting to "unnecessarily broad dicta" in United the use of electronic detection techniques that enhance human perception implicates "especially sensitive concerns." Obviously, a narcotics detection dog is not an electronic detection device. Unlike the electronic "beeper" in Knotts, however, a dog does more than merely allow the police
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Justice O'Connor
| 1,983 | 14 |
majority
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United States v. Place
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https://www.courtlistener.com/opinion/110979/united-states-v-place/
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however, a dog does more than merely allow the police to do more efficiently what they could do using only their own senses. A dog adds a new and previously unobtainable dimension to human perception. The use of dogs, therefore, represents a greater intrusion into an individual's *720 privacy. Such use implicates concerns that are at least as sensitive as those implicated by the use of certain electronic detection devices. Cf. 89 U.S. 47 (7). I have expressed the view that dog sniffs of people constitute searches. See In Doe, I suggested that sniffs of inanimate objects might present a different case. In any event, I would leave the determination of whether dog sniffs of luggage amount to searches, and the subsidiary question of what standards should govern such intrusions, to a future case providing an appropriate, and more informed, basis for deciding these questions. IV Justice Douglas was the only dissenter in Terry. He stated that "[t]here have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand." 92 U.S., at 9 Today, the Court uses Terry as a justification for submitting to these pressures. Their strength is apparent, for even when the Court finds that an individual's Fourth Amendment rights have been violated it cannot resist the temptation to weaken the protections the Amendment affords. JUSTICE BLACKMUN, with whom JUSTICE MARSHALL joins, concurring in the judgment.
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Justice Brennan
| 1,972 | 13 |
dissenting
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Lego v. Twomey
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https://www.courtlistener.com/opinion/108429/lego-v-twomey/
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When the prosecution, state or federal, seeks to put in evidence an allegedly involuntary confession, its admissibility is determined by the command of the Fifth Amendment that "[n]o person shall be compelled in any criminal case to be a witness against himself." ; ; This right against compulsory self-incrimination is the "essential mainstay" of our system of criminal prosecution, "a system in which the State must establish guilt by evidence independently *491 and freely secured and may not by coercion prove its charge against an accused out of his own mouth," What is thereby protected from governmental invasion is, quite simply, "the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will." Hence, a confession is involuntary and inadmissible unless it is "the product of a rational intellect and a free will." ; see Ideally, of course, a defendant's compelled utterance would never be admitted into evidence against him. As we said in it is "axiomatic" that a criminal conviction cannot stand if it "is founded, in whole or in part, upon an involuntary confession even though there is ample evidence aside from the confession to support the conviction." Yet I doubt that informed observers of the criminal process would deny that at least some compelled utterances slip through, even assuming scrupulous adherence to constitutional standards and the most rigorous procedural protections. was an attempt to move that reality somewhat closer to the ideal. We there rejected the New York rule because it "did not afford a reliable determination of the voluntariness of the confession offered in evidence at the trial" and consequently "did not adequately protect [a defendant's] right to be free of a conviction based upon a coerced confession." As the Court today points out, "[t]he procedure we established in was designed to safeguard the right of an individual, entirely apart from his guilt or innocence, not to be compelled to condemn himself by his own utterances." Ante, at 485. There is no need to dwell upon the importance our American concept of justice attaches to preserving the *492 integrity of the constitutional privilege. Both the rule that automatically reverses a conviction when an involuntary confession was admitted at trial and the procedure established in for determining whether a confession was voluntary are means to further the end that no utterance of a defendant not the product of his own free choice will be used against him. The Court today reaffirms what we held in : "[W]hen a confession challenged as involuntary is sought to be used against
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Justice Brennan
| 1,972 | 13 |
dissenting
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Lego v. Twomey
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https://www.courtlistener.com/opinion/108429/lego-v-twomey/
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confession challenged as involuntary is sought to be used against a criminal defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession was in fact voluntarily rendered." Ante, at 489. But the Court goes on to hold that it follows from that "the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary." I disagree. In my view, the rationale of requires the conclusion that the preponderance standard does not provide sufficient protection against the danger that involuntary confessions will be employed in criminal trials. A hearing normally presents the factfinder with conflicting testimony from the defendant and law enforcement officers about what occurred during the officers' interrogation of the defendant. The factfinder's resolution of this conflict is often, as a practical matter, the final resolution of the voluntariness issue. This case is a typical example. Petitioner testified that he confessed because the police had beaten him; the police testified that there was no beating. As the Court notes, "[t]he trial judge resolved this credibility problem in favor of the police and ruled the confession admissible." Ante, at 480. When the question before the factfinder is whether to believe one or the other of two self-serving accounts of what has happened, it is apparent that the standard of persuasion will in many instances be of controlling significance. *493 See Although the Court suggests "that federal rights have [not] suffered from determining admissibility by a preponderance of the evidence" and that there has been no showing "that admissibility rulings have been unreliable. because not based on some higher standard," ante, at 488, I do not think it can be denied, given the factual nature of the ordinary voluntariness determination, that permitting a lower standard of proof will necessarily result in the admission of more involuntary confessions than would be admitted were the prosecution required to meet a higher standard. The converse, of course, is also true. Requiring the higher standard means that some voluntary confessions will be excluded as involuntary even though they would have been found voluntary under the lower standard. The standard of proof required for a criminal conviction presents a similar situation, yet we have held that guilt must be established by proof beyond a reasonable doubt. In re Winship, ; see Permitting proof by a preponderance of the evidence would necessarily result in the conviction of more defendants who are in fact innocent. Conversely, imposing the burden of proof beyond a reasonable doubt means that more defendants who are in fact guilty are found innocent.
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Justice Brennan
| 1,972 | 13 |
dissenting
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Lego v. Twomey
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https://www.courtlistener.com/opinion/108429/lego-v-twomey/
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more defendants who are in fact guilty are found innocent. It seems to me that the same considerations that demand the reasonable-doubt standard when guilt or innocence is at stake also demand that standard when the question is the admissibility of an allegedly involuntary confession. We permit proof by a preponderance of the evidence in civil litigation because "we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor." We do not take that view in criminal cases. *494 We said in Winship that the reasonable-doubt standard "is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence" As Mr. Justice Harlan put it in his concurring opinion, the requirement of proof beyond a reasonable doubt is "bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." If we permit the prosecution to prove by a preponderance of the evidence that a confession was voluntary, then, to paraphrase Mr. Justice Harlan, we must be prepared to justify the view that it is no more serious in general to admit involuntary confessions than it is to exclude voluntary confessions. I am not prepared to justify that view. Compelled self-incrimination is so alien to the American sense of justice that I see no way that such a view could ever be justified. If we are to provide "concrete substance" for the command of the Fifth Amendment that no person shall be compelled to condemn himself, we must insist, as we do at the trial of guilt or innocence, that the prosecution prove that the defendant's confession was voluntary beyond a reasonable doubt.[*] In my judgment, to paraphrase Mr. Justice *495 Harlan again, the command of the Fifth Amendment reflects the determination of our society that it is worse to permit involuntary self-condemnation than it is to deprive a jury of probative evidence. Just as we do not convict when there is a reasonable doubt of guilt, we should not permit the prosecution to introduce into evidence a defendant's confession when there is a reasonable doubt that it was the product of his free and rational choice. I add only that the absolute bar against the admission of a defendant's compelled utterance at his criminal trial is fundamentally an expression of the American commitment to the moral worth of the individual. What
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Justice O'Connor
| 2,003 | 14 |
majority
|
Lockyer v. Andrade
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https://www.courtlistener.com/opinion/127898/lockyer-v-andrade/
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This case raises the issue whether the United States Court of Appeals for the Ninth Circuit erred in ruling that the California Court of Appeal's decision affirming Leandro Andrade's two consecutive terms of 25 years to life in prison for a "third strike" conviction is contrary to, or an unreasonable application of, clearly established federal law as determined by this Court within the meaning of 28 U.S. C. 2254(d)(1). I A On November 4, 1995, Leandro Andrade stole five videotapes worth $84. from a Kmart store in Ontario, California. Security personnel detained Andrade as he was leaving the store. On November 18, 1995, Andrade entered a different Kmart store in Montclair, California, and placed four videotapes worth $68.84 in the rear waistband of his pants. Again, security guards apprehended Andrade as he was exiting the premises. Police subsequently arrested Andrade for these crimes. These two incidents were not Andrade's first or only encounters with law enforcement. According to the state probation officer's presentence report, Andrade has been in and out of state and federal prison since 1982. In January 1982, he was convicted of a misdemeanor theft offense and was sentenced to 6 days in jail with 12 months' probation. Andrade was arrested again in November 1982 for multiple counts of first-degree residential burglary. He pleaded guilty to at least three of those counts, and in April of the following year he was sentenced to 120 months in prison. In 1988, Andrade was convicted in federal court of "[t]ransportation of [m]arijuana," App. 24, and was sentenced to eight years in federal prison. In 1990, he was convicted in state court for a misdemeanor petty theft offense and was ordered to serve 180 days in jail. In September 1990, Andrade was convicted again in federal court for the same felony *67 of "[t]ransportation of [m]arijuana," ib and was sentenced to 2,191 days in federal prison. And in 1991, Andrade was arrested for a state parole violation escape from federal prison. He was paroled from the state penitentiary system in 1993. A state probation officer interviewed Andrade after his arrest in this case. The presentence report notes: "The defendant admitted committing the offense. The defendant further stated he went into the K-Mart Store to steal videos. He took four of them to sell so he could buy heroin. He has been a heroin addict since 1977. He says when he gets out of jail or prison he always does something stupid. He admits his addiction controls his life and he steals for his habit." Because of his 1990 misdemeanor conviction, the
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Justice O'Connor
| 2,003 | 14 |
majority
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Lockyer v. Andrade
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https://www.courtlistener.com/opinion/127898/lockyer-v-andrade/
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for his habit." Because of his 1990 misdemeanor conviction, the State charged Andrade in this case with two counts of petty theft with a prior conviction, in violation of Cal. Penal Code Ann. 666 Under California law, petty theft with a prior conviction is a so-called "wobbler" offense because it is punishable either as a misdemeanor or as a felony. Ibid.; cf. Ewing v. California, ante, at 16-17 (plurality opinion). The decision to prosecute petty theft with a prior conviction as a misdemeanor or as a felony is in the discretion of the prosecutor. See ante, at 17. The trial court also has discretion to reduce the charge to a misdemeanor at the time of sentencing. See ; see also Ewing v. California, ante, at 17. Under California's three strikes law, any felony can constitute the third strike, and thus can subject a defendant to a term of 25 years to life in prison. See Cal. Penal Code Ann. 667(e)(2)(A) ; see also Ewing v. California, ante, at 16. In this case, the prosecutor decided to charge the two counts of theft as felonies rather than misdemeanors. The trial court denied Andrade's motion to reduce the offenses *68 to misdemeanors, both before the jury verdict and again in state habeas proceedings. A jury found Andrade guilty of two counts of petty theft with a prior conviction. According to California law, a jury must also find that a defendant has been convicted of at least two serious or violent felonies that serve as qualifying offenses under the three strikes regime. In this case, the jury made a special finding that Andrade was convicted of three counts of first-degree residential burglary. A conviction for first-degree residential burglary qualifies as a serious or violent felony for the purposes of the three strikes law. Cal. Penal Code Ann. 667.5, 1192.7 ; see also Ewing v. California, ante, at 19. As a consequence, each of Andrade's convictions for theft under Cal. Penal Code Ann. 666 triggered a separate application of the three strikes law. Pursuant to California law, the judge sentenced Andrade to two consecutive terms of 25 years to life in prison. See 667(c)(6), 667(e)(2)(B). The State stated at oral argument that under the decision announced by the Supreme Court of California in a decision that postdates his conviction and sentence it remains "available" for Andrade to "file another State habeas corpus petition" arguing that he should serve only one term of 25 years to life in prison because "sentencing courts have a right to dismiss strikes on a count-by-count basis." Tr.
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| 2,003 | 14 |
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Lockyer v. Andrade
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https://www.courtlistener.com/opinion/127898/lockyer-v-andrade/
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a right to dismiss strikes on a count-by-count basis." Tr. of Oral Arg. 24. B On direct appeal in the California Court of Appeal affirmed Andrade's sentence of two consecutive terms of 25 years to life in prison. It rejected Andrade's claim that his sentence violates the constitutional prohibition against cruel and unusual punishment. The court stated that "the proportionality analysis" of "is questionable in light of" App. to Pet. for Cert. 76. The court then applied *69 our decision in where we rejected the defendant's claim that a life sentence was "`grossly disproportionate' to the three felonies that formed the predicate for his sentence." The California Court of Appeal then examined Andrade's claim in light of the facts in Rummel: "Comparing [Andrade's] crimes and criminal history with that of defendant Rummel, we cannot say the sentence of 50 years to life at issue in this case is disproportionate and constitutes cruel and unusual punishment under the United States Constitution." App. to Pet. for Cert. 76-77. After the Supreme Court of California denied discretionary review, Andrade filed a petition for a writ of habeas corpus in Federal District Court. The District Court denied his petition. The Ninth Circuit granted Andrade a certificate of appealability as to his claim that his sentence violated the Eighth Amendment, and subsequently reversed the judgment of the District Court. The Ninth Circuit first noted that it was reviewing Andrade's petition under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Applying its own precedent, the Ninth Circuit held that an unreasonable application of clearly established federal law occurs "when our independent review of the legal question `leaves us with a "firm conviction" that one answer, the one rejected by the [state] court, was correct and the other, the application of the federal law that the [state] court adopted, was erroneous in other words that clear error occurred.'" ). The court then reviewed our three most recent major precedents in this area and The Ninth Circuit "follow[ed] the test prescribed by Justice Kennedy in" concluding that "both Rummel and remain good law and are instructive in 's application." * It then noted that the California Court of Appeal compared the facts of Andrade's case to the facts of Rummel, but not The Ninth Circuit concluded that it should grant the writ of habeas corpus because the state court's "disregard for results in an unreasonable application of clearly established Supreme Court law," and "is irreconcilable with" thus constituting "clear error." Judge Sneed dissented in relevant part. He wrote that "[t]he sentence imposed in this
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| 2,003 | 14 |
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Lockyer v. Andrade
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https://www.courtlistener.com/opinion/127898/lockyer-v-andrade/
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relevant part. He wrote that "[t]he sentence imposed in this case is not one of the `exceedingly rare' terms of imprisonment prohibited by the Eighth Amendment's proscription against cruel and unusual punishment." (quoting ). Under his view, the state court decision upholding Andrade's sentence was thus "not an unreasonable application of clearly established federal law." 2 F.3d, at 772. We granted certiorari, and now reverse. II Andrade's argument in this Court is that two consecutive terms of 25 years to life for stealing approximately $150 in videotapes is grossly disproportionate in violation of the Eighth Amendment. Andrade similarly maintains that the state court decision affirming his sentence is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. 2254(d)(1). AEDPA circumscribes a federal habeas court's review of a state court decision. Section 2254 provides: "(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim *71 "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." The Ninth Circuit requires federal habeas courts to review the state court decision de novo before applying the AEDPA standard of review. See, e. g., Van ; We disagree with this approach. AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under 2254(d)(1) whether a state court decision is contrary to, or involved an unreasonable application of, clearly established federal law. See In this case, we do not reach the question whether the state court erred and instead focus solely on whether 2254(d) forecloses habeas relief on Andrade's Eighth Amendment claim. III A As a threshold matter here, we first decide what constitutes "clearly established Federal law, as determined by the Supreme Court of the United States." 2254(d)(1). Andrade relies upon a series of precedents from this Court and that he claims clearly establish a principle that his sentence is so grossly disproportionate that it violates the Eighth Amendment. Section 2254(d)(1)'s "clearly established" phrase "refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision." In other words, "clearly established Federal law" under 2254(d)(1) is the governing
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| 2,003 | 14 |
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Lockyer v. Andrade
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words, "clearly established Federal law" under 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state *72 court renders its decision. See ; In most situations, the task of determining what we have clearly established will be straightforward. The difficulty with Andrade's position, however, is that our precedents in this area have not been a model of clarity. See ; Indeed, in determining whether a particular sentence for a term of years can violate the Eighth Amendment, we have not established a clear or consistent path for courts to follow. See Ewing v. California, ante, at 20-23. B Through this thicket of Eighth Amendment jurisprudence, one governing legal principle emerges as "clearly established" under 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of years. Our cases exhibit a lack of clarity regarding what factors may indicate gross disproportionality. In (the case upon which Andrade relies most heavily), we stated: "It is clear that a 25-year sentence generally is more severe than a 15-year sentence, but in most cases it would be difficult to decide that the former violates the Eighth Amendment while the latter does not." And in both JUSTICE KENNEDY and JUSTICE SCALIA repeatedly emphasized this lack of clarity: that " was scarcely the expression of clear constitutional law," that in "adher[ing] to the narrow proportionality principle our proportionality decisions have not been clear or consistent in all respects," that "we lack clear objective standards to distinguish between sentences for different terms of years," and that the "precise contours" of the *73 proportionality principle "are unclear," Thus, in this case, the only relevant clearly established law amenable to the "contrary to" or "unreasonable application of" framework is the gross disproportionality principle, the precise contours of which are unclear, applicable only in the "exceedingly rare" and "extreme" case. (internal quotation marks omitted); see also ; IV The final question is whether the California Court of Appeal's decision affirming Andrade's sentence is "contrary to, or involved an unreasonable application of," this clearly established gross disproportionality principle. First, a state court decision is "contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." ; see also In terms of length of sentence and availability of parole, severity of the underlying offense, and the impact of recidivism, Andrade's
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Justice O'Connor
| 2,003 | 14 |
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Lockyer v. Andrade
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https://www.courtlistener.com/opinion/127898/lockyer-v-andrade/
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of the underlying offense, and the impact of recidivism, Andrade's sentence implicates factors relevant in both Rummel and Because and specifically stated that they did not overrule Rummel, it was not contrary to our clearly established law for the California Court of Appeal to turn to Rummel in deciding whether a sentence is grossly disproportionate. See ; Indeed, allows a state court to reasonably rely on Rummel in determining whether a sentence is grossly disproportionate. The California Court of Appeal's decision *74 was therefore not "contrary to" the governing legal principles set forth in our cases. Andrade's sentence also was not materially indistinguishable from the facts in The facts here fall in between the facts in Rummel and the facts in involved a sentence of life in prison without the possibility of The defendant in Rummel was sentenced to life in prison with the possibility of Here, Andrade retains the possibility of acknowledged that Rummel would apply in a "similar factual situation." n. 32. And while this case resembles to some degree both Rummel and it is not materially indistinguishable from either. Cf. Ewing v. California, ante, at 40 (BREYER, J., dissenting) (recognizing a "twilight zone between and Rummel"). Consequently, the state court did not "confron[t] a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arriv[e] at a result different from our precedent."[1] *75 Second, "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. The state court's application of clearly established law must be objectively unreasonable. The Ninth Circuit made an initial error in its "unreasonable application" analysis. In Van -1154, the Ninth Circuit defined "objectively unreasonable" to mean "clear error." These two standards, however, are not the same. The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness. See ; It is not enough that a federal habeas court, in its "independent review of the legal question," is left with a "`firm conviction'" that the state court was "`erroneous.'" (quoting Van at ). We have held precisely the opposite: "Under 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because that *76 court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously
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Justice O'Connor
| 2,003 | 14 |
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Lockyer v. Andrade
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https://www.courtlistener.com/opinion/127898/lockyer-v-andrade/
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the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Rather, that application must be objectively unreasonable. ; ; Section 2254(d)(1) permits a federal court to grant habeas relief based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced. See, e. g., Here, however, the governing legal principle gives legislatures broad discretion to fashion a sentence that fits within the scope of the proportionality principle the "precise contours" of which "are unclear." 501 U. S., And it was not objectively unreasonable for the California Court of Appeal to conclude that these "contours" permitted an affirmance of Andrade's sentence. Indeed, since several Members of this Court have expressed "uncertainty" regarding the application of the proportionality principle to the California three strikes law. ("[T]here is some uncertainty about how our cases dealing with the punishment of recidivists should apply"); see also ; cf. (arguing that the Court should hear the three strikes gross *77 disproportionality issue on direct review because of the "potential for disagreement over application of" AEDPA).[2] The gross disproportionality principle reserves a constitutional violation for only the extraordinary case. In applying this principle for 2254(d)(1) purposes, it was not an unreasonable application of our clearly established law for the California Court of Appeal to affirm Andrade's sentence of two consecutive terms of 25 years to life in prison. V The judgment of the United States Court of Appeals for the Ninth Circuit, accordingly, is reversed. It is so ordered.
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Justice Thomas
| 1,994 | 1 |
majority
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FDIC v. Meyer
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https://www.courtlistener.com/opinion/112931/fdic-v-meyer/
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In we implied a cause of action for damages against federal agents who allegedly violated the Constitution Today we are asked to imply a similar cause of action directly against an agency of the Federal Government Because the logic of itself does not support such an extension, we decline to take this step I On April 13, 1982, the California Savings and Loan Commissioner seized Fidelity Savings and Loan Association (Fidelity), a California-chartered thrift institution, and appointed the Federal Savings and Loan Insurance Corporation (FSLIC) to serve as Fidelity's receiver under state law That same day, the Federal Home Loan Bank appointed FSLIC to serve as Fidelity's receiver under federal law In its capacity as receiver, FSLIC had broad authority to "take such action as may be necessary to put [the thrift] in a sound solvent condition" as amended, 12 US C 1729(b)(1)(A)(ii) (repealed 1989) Pursuant to its general policy of terminating the employment of a failed thrift's senior management, FSLIC, through its special representative Robert L Pattullo, terminated respondent John H Meyer, a senior Fidelity officer Approximately one year later, Meyer filed this lawsuit against a number of defendants, including FSLIC and Pattullo, *474 in the United States District Court for the Northern District of California At the time of trial, Meyer's sole claim against FSLIC and Pattullo was that his summary discharge deprived him of a property right (his right to continued employment under California law) without due process of law in violation of the Fifth Amendment In making this claim, Meyer relied upon which implied a cause of action for damages against federal agents who allegedly violated the Fourth Amendment The jury returned a $130,000 verdict against FSLIC, but found in favor of Pattullo on qualified immunity grounds Petitioner Federal Deposit Insurance Corporation (FDIC), FSLIC's statutory successor,[1] appealed to the Court of Appeals for the Ninth Circuit, which affirmed First, the Court of Appeals determined that the Federal Tort Claims Act (FTCA or Act), 28 US C 1(b), 271-280, did not provide Meyer's exclusive -572 Although the FTCA remedy is "exclusive" for all "claims which are cognizable under section 1(b)," 28 US C 279(a), the Court of Appeals decided that Meyer's claim was not cognizable under 1(b) 572 The court then concluded that the "sue-and-be-sued" clause contained in FSLIC's organic statute, 12 US C 1725(c)(4) (repealed 1989), constituted a waiver of sovereign immunity for Meyer's claim and entitled him to maintain an action against the agency 944 F2d, at 5, 572 Finally, on the merits, the court affirmed the jury's conclusion that Meyer had been deprived of
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FDIC v. Meyer
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https://www.courtlistener.com/opinion/112931/fdic-v-meyer/
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affirmed the jury's conclusion that Meyer had been deprived of due process when he was summarily discharged without notice and a hearing Id, We granted certiorari to consider *475 the validity of the damages award against FSLIC 507 US 983 [2] II Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit v Frank, 48 US 549, ; Federal Housing Administration v 309 US 242, Sovereign immunity is jurisdictional in nature Indeed, the "terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit" United States v Sherwood, 312 US 584, See also United States v 43 US 20, Therefore, we must first decide whether FSLIC's immunity has been waived A When Congress created FSLIC in 19, it empowered the agency "[t]o sue and be sued, complain and defend, in any court of competent jurisdiction" 12 US C 1725(c)(4) (repealed 1989)[3] By permitting FSLIC to sue and be sued, Congress effected a "broad" waiver of FSLIC's immunity from suit United States v Nordic Village, Inc, 503 US 30, In 194, Congress passed the FTCA, which waived the sovereign immunity of the United States for certain torts committed by federal employees 28 US C *47 1(b)[4] In order to "place torts of `suable' agencies upon precisely the same footing as torts of `nonsuable' agencies," Congress, through the FTCA, limited the scope of sue-and-be-sued waivers such as that contained in FSLIC's organic statute The FTCA limitation provides: "The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1(b) of this title, and the remedies provided by this title in such cases shall be exclusive" 28 US C 279(a) Thus, if a suit is "cognizable" under 1(b) of the FTCA, the FTCA remedy is "exclusive" and the federal agency cannot be sued "in its own name," despite the existence of a sue-and-be-sued clause The first question, then, is whether Meyer's claim is "cognizable" under 1(b) The term "cognizable" is not defined in the Act In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning Smith v United States, 508 US 223, Cognizable ordinarily means "[c]apable of being tried or examined before a designated tribunal; within [the] jurisdiction of [a] court or power given to [a] court to adjudicate [a] controversy" Black's Law Dictionary 259 (th ed 1990) Under this definition, the inquiry focuses on the jurisdictional grant
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Justice Thomas
| 1,994 | 1 |
majority
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FDIC v. Meyer
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https://www.courtlistener.com/opinion/112931/fdic-v-meyer/
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Under this definition, the inquiry focuses on the jurisdictional grant provided by 1(b) *477 Section 1(b) grants the federal district courts jurisdiction over a certain category of claims for which the United States has waived its sovereign immunity and "render[ed]" itself liable v United States, 39 US 1, This category includes claims that are: "[1] against the United States, [2] for money damages, [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred" 28 US C 1(b) A claim comes within this jurisdictional grantand thus is "cognizable" under 1(b)if it is actionable under 1(b) And a claim is actionable under 1(b) if it alleges the six elements outlined above See ( 279(a) limits the scope of sue-and-be-sued waivers "in the context of suits for which [Congress] provided a cause of action under the FTCA" )[5] Applying these principles to this case, we conclude that Meyer's constitutional tort claim is not "cognizable" under 1(b) because it is not actionable under 1(b)that is, 1(b) does not provide a cause of action for such a claim As noted above, to be actionable under 1(b), a claim must allege, inter alia, that the United States "would be liable to the claimant" as "a private person" "in accordance with the law of the place where the act or omission occurred" A constitutional tort claim such as Meyer's could *478 not contain such an allegation Indeed, we have consistently held that 1(b)'s reference to the "law of the place" means law of the Statethe source of substantive liability under the FTCA See, e g, Miree v DeKalb County, 433 US 25, 29, n 4 ; United States v Muniz, 374 US 150, (193); at -7, 11; Rayonier Inc v United States, 352 US 315, By definition, federal law, not state law, provides the source of liability for a claim alleging the deprivation of a federal constitutional right To use the terminology of the United States simply has not rendered itself liable under 1(b) for constitutional tort claims Thus, because Meyer's constitutional tort claim is not cognizable under 1(b), the FTCA does not constitute his "exclusive" His claim was therefore properly brought against FSLIC "in its own name" 28 US C 279(a) FDIC argues that by exposing
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Justice Thomas
| 1,994 | 1 |
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FDIC v. Meyer
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https://www.courtlistener.com/opinion/112931/fdic-v-meyer/
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name" 28 US C 279(a) FDIC argues that by exposing a sue-and-be-sued agency to constitutional tort claims, our interpretation of "cognizability" runs afoul of Congress' understanding that 279(a) would place the torts of "suable" and "nonsuable" agencies on the same footing See 48 U S, FDIC would deem all claims "sounding in tort"including constitutional torts"cognizable" under 1(b) Under FDIC's reading of the statute, only the portion of 1(b) that describes a "tort"i e, "claims against the United States, for money damages, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government"would govern cognizability The remaining portion of 1(b) would simply describe a "limitation" on the waiver of sovereign immunity[] *479 We reject this reading of the statute As we have already noted, 1(b) describes the scope of jurisdiction by reference to claims for which the United States has waived its immunity and rendered itself liable FDIC seeks to uncouple the scope of jurisdiction under 1(b) from the scope of the waiver of sovereign immunity under 1(b) Under its interpretation, the jurisdictional grant would be broad (covering all claims sounding in tort), but the waiver of sovereign immunity would be narrow (covering only those claims for which a private person would be held liable under state law) There simply is no basis in the statutory language for the parsing FDIC suggests Section 279(a)'s reference to claims "cognizable" under 1(b) means cognizable under the whole of 1(b), not simply a portion of it[7] *480 B Because Meyer's claim is not cognizable under 1(b), we must determine whether FSLIC's sue-and-be-sued clause waives sovereign immunity for the claim FDIC argues that the scope of the sue-and-be-sued waiver should be limited to cases in which FSLIC would be subjected to liability as a private entity A constitutional tort claim such as Meyer's, FDIC argues, would fall outside the sue-and-be-sued waiver because the Constitution generally does not restrict the conduct of private entities In essence, FDIC asks us to engraft a portion of the sixth element of 1(b)liability "under circumstances where the United States, if a private person, would be liable to the claimant"onto the sue-and-be-sued clause On its face, the sue-and-be-sued clause contains no such limitation To the contrary, its terms are simple and broad: FSLIC "shall have power [t]o sue and be sued, complain and defend, in any court of competent jurisdiction in the United States" 12 US C 1725(c)(4) (repealed 1989) In the past, we have recognized that such sue-and-be-sued waivers are to be "liberally construed," Federal
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Justice Thomas
| 1,994 | 1 |
majority
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FDIC v. Meyer
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https://www.courtlistener.com/opinion/112931/fdic-v-meyer/
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that such sue-and-be-sued waivers are to be "liberally construed," Federal Housing Administration v 309 U S, at 245, notwithstanding the general rule that waivers of sovereign immunity are to be read narrowly in favor of the sovereign See United States v Nordic Village, Inc, 503 U S, at makes it clear that sue-and-be-sued clauses cannot be limited by implication unless there has been a "clea[r] show[ing] that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the `sue and be sued' clause in a narrow sense" 309 US, at 245 *481 See also 48 U S, at 51; Franchise Tax Bd of Cal v Postal Service, 47 US 512, Absent such a showing, agencies "authorized to `sue and be sued' are presumed to have fully waived immunity" International Primate Protection v Administrators of Tulane Ed Fund, 500 US 72, 8, n 8 (describing the holding in ) FDIC does not attempt to make the "clear" showing of congressional purpose necessary to overcome the presumption that immunity has been waived[8] Instead, it bases its argument solely on language in our cases suggesting that federal agencies should bear the burdens of suit borne by private entities Typical of these cases is which stated that "when Congress launche[s] a governmental agency into the commercial world and endow[s] it with authority to `sue or be sued,' that agency is not less amenable to judicial process than a private enterprise under like circumstances would be" 309 US, at 245 See also Franchise Tax Bd, ("[U]nder not only must we liberally construe the sue-and-be-sued clause, but also we must presume that the [Postal] Service's liability is the same as that of any other business") ; (through a sue-and-be-sued clause, "Congress waived [the Postal Service's] immunity from interest awards, authorizing recovery of interest from the Postal Service to the extent that interest is recoverable against a private party as a normal incident of suit" ) When read in context, however, it is clear that Franchise Tax and do not support the limitation FDIC proposes In these cases, the claimants sought to subject the agencies to a particular suit or incident of suit to which private businesses are amenable as a matter of course *482 In for example, the claimant, who had obtained a judgment against an employee of the Federal Housing Administration (FHA), served the FHA with a
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Justice Thomas
| 1,994 | 1 |
majority
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FDIC v. Meyer
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https://www.courtlistener.com/opinion/112931/fdic-v-meyer/
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the Federal Housing Administration (FHA), served the FHA with a writ to garnish the employee's wages 309 US, at 243, 248, n 11 Similarly, in Franchise Tax the claimant directed the United States Postal Service to withhold amounts of delinquent state income taxes from the wages of four Postal Service employees 47 US, at 513 And in the claimant, who was discharged from his employment as a rural letter carrier, sought prejudgment interest as an incident of his successful suit against the Postal Service under Title VII of the Civil Rights Act of 194, 42 US C 2000e et seq 48 U S, at 551-552 Because the claimant in each of these cases was seeking to hold the agency liable just like "any other business," Franchise Tax it was only natural for the Court to look to the liability of private businesses for guidance It stood to reason that the agency could not escape the liability a private enterprise would face in similar circumstances Here, by contrast, Meyer does not seek to hold FSLIC liable just like any other business Indeed, he seeks to impose on FSLIC a form of tort liabilitytort liability arising under the Constitutionthat generally does not apply to private entities Franchise Tax and simply do not speak to the issue of sovereign immunity in the context of such a constitutional tort claim Moreover, nothing in these decisions suggests that the liability of a private enterprise should serve as the outer boundary of the sue-and-be-sued waiver Rather, those cases "merely involve[d] a determination of whether or not [the particular suit or incident of suit] [came] within the scope of" the sue-and-be-sued waiver at When we determined that the particular suit or incident of suit fell within the sue-and-be-sued waiver, we looked to the liability of a private enterprise as a floor below which the agency's liability could not fall In the present case, by contrast, *483 FDIC argues that a sue-and-be-sued agency's liability should never be greater than that of a private entity; that is, it attempts to use the liability of a private entity as a ceiling Again, nothing in Franchise Tax or supports such a result Finally, we hesitate to engraft language from 1(b) onto the sue-and-be-sued clause when Congress, in 279(a), expressly set out how the former provision would limit the latter As provided in 279(a), 1(b) limits sue-and-be-sued waivers for claims that are "cognizable" under 1(b) Thus, 279(a) contemplates that a sue-and-be-sued waiver could encompass claims not cognizable under 1(b) and render an agency subject to suit unconstrained by the express limitations of
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Justice Thomas
| 1,994 | 1 |
majority
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FDIC v. Meyer
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https://www.courtlistener.com/opinion/112931/fdic-v-meyer/
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agency subject to suit unconstrained by the express limitations of the FTCA FDIC's constructiontaken to its logical conclusionwould not permit this result because it would render coextensive the scope of the waivers contained in 1(b) and sue-and-be-sued clauses generally Had Congress wished to achieve that outcome, it surely would not have employed the language it did in 279(a) See Connecticut Nat Bank v Germain, 503 US 249, Because "[n]o showing has been made to overcome [the] presumption" that the sue-and-be-sued clause "fully waived" FSLIC's immunity in this instance, Franchise Tax ; International Primate Protection 500 U S, at 8, n 8, we hold that FSLIC's sue-and-be-sued clause waives the agency's sovereign immunity for Meyer's constitutional tort claim III Although we have determined that Meyer's claim falls within the sue-and-be-sued waiver, our inquiry does not end at this point Here we part ways with the Ninth Circuit, which determined that Meyer had a cause of action for damages against FSLIC because there had been a waiver of sovereign *484 immunity 944 F2d, at 572 The Ninth Circuit's reasoning conflates two "analytically distinct" inquiries United States v 43 U S, at 8 The first inquiry is whether there has been a waiver of sovereign immunity If there has been such a waiver, as in this case, the second inquiry comes into playthat is, whether the source of substantive law upon which the claimant relies provides an avenue for relief Id, at -7 It is to this second inquiry that we now turn Meyer bases his due process claim on our decision in which held that an individual injured by a federal agent's alleged violation of the Fourth Amendment may bring an action for damages against the agent 403 US, In our most recent decisions, we have "responded cautiously to suggestions that remedies be extended into new contexts" Schweiker v Chilicky, 487 US 412, [9] In this case, Meyer seeks a significant extension of : He asks us to expand the category of defendants against whom -type actions may be brought to include not only federal agents, but federal agencies as well We know of no Court of Appeals decision, other than the Ninth Circuit's below, that has implied a -type cause of action directly against a federal agency Meyer recognizes the absence of authority supporting his position, but argues that the "logic" of would support such a We disagree In the petitioner sued the agents of the Federal Bureau of Narcotics who allegedly violated his rights, not the Bureau itself 403 US, at 389-390 *485 Here, Meyer brought precisely the claim that
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Justice Thomas
| 1,994 | 1 |
majority
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FDIC v. Meyer
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https://www.courtlistener.com/opinion/112931/fdic-v-meyer/
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at 389-390 *485 Here, Meyer brought precisely the claim that the logic of supportsa claim for damages against Pattullo, the FSLIC employee who terminated him[10] An additional problem with Meyer's "logic" argument is the fact that we implied a cause of action against federal officials in in part because a direct action against the Government was not available Id, (Harlan, J, concurring in judgment) In essence, Meyer asks us to imply a damages action based on a decision that presumed the absence of that very action Meyer's real complaint is that Pattullo, like many defendants, invoked the protection of qualified immunity But clearly contemplated that official immunity would be raised Id, (noting that "the District Court [had] ruled that respondents were immune from liability by virtue of their official position") More importantly, Meyer's proposed "solution"essentially the circumvention of qualified immunitywould mean the evisceration of the remedy, rather than its extension It must be remembered that the purpose of is to deter the officer See Carlson v Green, 44 US 14, If we were to imply a damages action directly against federal agencies, thereby permitting claimants to bypass qualified immunity, there would be no reason for aggrieved parties to bring damages actions against individual officers Under Meyer's regime, the deterrent effects of the remedy would be lost *48 Finally, a damages remedy against federal agencies would be inappropriate even if such a remedy were consistent with Here, unlike in there are "special factors counselling hesitation" in the creation of a damages 403 U S, at 39 If we were to recognize a direct action for damages against federal agencies, we would be creating a potentially enormous financial burden for the Federal Government Meyer disputes this reasoning and argues that the Federal Government already expends significant resources indemnifying its employees who are sued under Meyer's argument implicitly suggests that the funds used for indemnification could be shifted to cover the direct liability of federal agencies That may or may not be true, but decisions involving "`federal fiscal policy'" are not ours to make Ibid ) We leave it to Congress to weigh the implications of such a significant expansion of Government liability[11] IV An extension of to agencies of the Federal Government is not supported by the logic of itself We therefore hold that Meyer had no cause of action for damages against FSLIC Accordingly, the judgment below is reversed[12] So ordered
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Ohio v. American Express Co.
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https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/
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American Express Company and American Express Travel Related Services Company (collectively, Amex) provide credit-card services to both merchants and card- holders. When a cardholder buys something from a mer- chant who accepts Amex credit cards, Amex processes the transaction through its network, promptly pays the mer- chant, and subtracts a fee. If a merchant wants to accept Amex credit cards—and attract Amex cardholders to its business—Amex requires the merchant to agree to an antisteering contractual provision. The antisteering pro- vision prohibits merchants from discouraging customers from using their Amex card after they have already en- tered the store and are about to buy something, thereby avoiding Amex’s fee. In this case, we must decide whether Amex’s antisteering provisions violate federal antitrust law. We conclude they do not. I A Credit cards have become a primary way that consum- ers in the United States purchase goods and services. 2 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court When a cardholder uses a credit card to buy something from a merchant, the transaction is facilitated by a credit- card network. The network provides separate but inter- related services to both cardholders and merchants. For cardholders, the network extends them credit, which allows them to make purchases without cash and to defer payment until later. Cardholders also can receive rewards based on the amount of money they spend, such as airline miles, points for travel, or cash back. For merchants, the network allows them to avoid the cost of processing trans- actions and offers them quick, guaranteed payment. This saves merchants the trouble and risk of extending credit to customers, and it increases the number and value of sales that they can make. By providing these services to cardholders and mer- chants, credit-card companies bring these parties together, and therefore operate what economists call a “two-sided platform.” As the name implies, a two-sided platform offers different products or services to two different groups who both depend on the platform to intermediate between them. See Evans & Schmalensee, Markets With Two- Sided Platforms, 1 Issues in Competition L. & Pol’y 667 (2008) (Evans & Schmalensee); Evans & Noel, Defining Antitrust Markets When Firms Operate Two-Sided Plat- forms, ; Filistrucchi, Geradin, Van Damme, & Affeldt, Market Definition in Two-Sided Markets: Theory and Practice, J. Competition L. & Econ. 293, 296 (2014) (Filistrucchi). For credit cards, that interaction is a transac Thus, credit-card networks are a special type of two-sided plat- form known as a “transaction” platform. See 304, 307; Evans & Noel 676–678. The key feature of transaction platforms is that they cannot make
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Ohio v. American Express Co.
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key feature of transaction platforms is that they cannot make a sale to one side of the platform without simultaneously making a sale to the other. See Klein, Lerner, Murphy, & Plache, Competition in Two-Sided Markets: The Antitrust Eco- Cite as: 585 U. S. (2018) 3 Opinion of the Court nomics of Payment Card Interchange Fees, 73 Antitrust L. J. 1, 580, 583 (2006) (Klein). For example, no credit- card transaction can occur unless both the merchant and the cardholder simultaneously agree to use the same credit-card network. See Filistrucchi 301. Two-sided platforms differ from traditional markets in important ways. Most relevant here, two-sided platforms often exhibit what economists call “indirect network ef- fects.” Evans & Schmalensee 667. Indirect network ef- fects exist where the value of the two-sided platform to one group of participants depends on how many members of a different group participate. D. Evans & R. Schmalensee, Matchmakers: The New Economics of Multisided Plat- forms 25 (2016). In other words, the value of the services that a two-sided platform provides increases as the num- ber of participants on both sides of the platform increases. A credit card, for example, is more valuable to cardholders when more merchants accept it, and is more valuable to merchants when more cardholders use it. See Evans & Noel 686–687; Klein 580, 584. To ensure sufficient partic- ipation, two-sided platforms must be sensitive to the prices that they charge each side. See Evans & Schma- lensee 675; Evans & Noel 680; Muris, Payment Card Regulation and the (Mis)Application of the Economics of Two-Sided Markets, 532– 533 (Muris); Rochet & Tirole, Platform Competition in Two-Sided Markets, 1 J. Eur. Econ. Assn. 990, 13 (2003). Raising the price on side A risks losing participa- tion on that side, which decreases the value of the plat- form to side B. If participants on side B leave due to this loss in value, then the platform has even less value to side A—risking a feedback loop of declining demand. See Evans & Schmalensee 675; Evans & Noel 680–681. Two- sided platforms therefore must take these indirect net- work effects into account before making a change in price on either side. See Evans & Schmalensee 675; Evans & 4 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court Noel 680–681.1 Sometimes indirect network effects require two-sided platforms to charge one side much more than the other. See Evans & Schmalensee 667, 675, 681, 690–691; Evans & Noel 691; Klein 585; Filistrucchi 300. For two- sided platforms, “ ‘the [relative] price structure matters, and platforms must design it
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Ohio v. American Express Co.
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https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/
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‘the [relative] price structure matters, and platforms must design it so as to bring both sides on board.’ ” Evans & Schmalensee 669 (quoting Rochet & Tirole, Two-Sided Markets: A Progress Report, 37 RAND J. Econ. 645, 646 (2006)). The optimal price might require charging the side with more elastic demand a below-cost (or even negative) price. See Muris 519, 550; Klein 9; Evans & Schmalensee 675; Evans & Noel 681. With credit cards, for example, networks often charge cardholders a lower fee than merchants because cardholders are more price sensitive.2 See Muris 522; Klein 3–4, 585, 595. In fact, the network might well lose money on the card- holder side by offering rewards such as cash back, airline miles, or gift cards. See Klein 587; Evans & Schmalensee 672. The network can do this because increasing the number of cardholders increases the value of accepting the card to merchants and, thus, increases the number of —————— 1 Ina competitive market, indirect network effects also encourage companies to take increased profits from a price increase on side A and spend them on side B to ensure more robust participation on that side and to stem the impact of indirect network effects. See Evans & Schmalensee 688; Evans & Noel 670–671, 695. Indirect network effects thus limit the platform’s ability to raise overall prices and impose a check on its market power. See Evans & Schmalensee 688; Evans & Noel 695. 2 “Cardholders are more price-sensitive because many consumers have multiple payment methods, including alternative payment cards. Most merchants, by contrast, cannot accept just one major card because they are likely to lose profitable incremental sales if they do not take [all] the major payment cards. Because most consumers do not carry all of the major payment cards, refusing to accept a major card may cost the merchant substantial sales.” Muris 522. Cite as: 585 U. S. (2018) 5 Opinion of the Court merchants who accept it. Muris 522; Evans & Schma- lensee 692. Networks can then charge those merchants a fee for every transaction (typically a percentage of the purchase price). Striking the optimal balance of the prices charged on each side of the platform is essential for two- sided platforms to maximize the value of their services and to compete with their rivals. B Amex, Visa, MasterCard, and Discover are the four dominant participants in the credit-card market. Visa, which is by far the largest, has 45% of the market as measured by transaction volume.3 Amex and MasterCard trail with 26.4% and 23.3%, respectively, while Discover has just 5.3%
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Ohio v. American Express Co.
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with 26.4% and 23.3%, respectively, while Discover has just 5.3% of the market. Visa and MasterCard have significant structural ad- vantages over Amex. Visa and MasterCard began as bank cooperatives and thus almost every bank that offers credit cards is in the Visa or MasterCard network. This makes it very likely that the average consumer carries, and the average merchant accepts, Visa or MasterCard. As a result, the vast majority of Amex cardholders have a Visa or MasterCard, but only a small number of Visa and Master- Card cardholders have an Amex. Indeed, Visa and MasterCard account for more than 432 million cards in circulation in the United States, while Amex has only 53 million. And while 3.4 million merchants at 6.4 million locations accept Amex, nearly three million more locations accept Visa, MasterCard, and Discover.4 —————— 3 Allfigures are accurate as of 2013. 4 Discover entered the credit-card market several years after Amex, Visa, and MasterCard. It nonetheless managed to gain a foothold because Sears marketed Discover to its already significant base of private-label cardholders. Discover’s business model shares certain features with Amex, Visa, and MasterCard. Like Amex, Discover interacts directly with its cardholders. But like Visa and MasterCard, 6 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court Amex competes with Visa and MasterCard by using a different business model. While Visa and MasterCard earn half of their revenue by collecting interest from their cardholders, Amex does not. Amex instead earns most of its revenue from merchant fees. Amex’s business model thus focuses on cardholder spending rather than card- holder lending. To encourage cardholder spending, Amex provides better rewards than other networks. Due to its superior rewards, Amex tends to attract cardholders who are wealthier and spend more money. Merchants place a higher value on these cardholders, and Amex uses this advantage to recruit merchants. Amex’s business model has significantly influenced the credit-card market. To compete for the valuable cardhold- ers that Amex attracts, both Visa and MasterCard have introduced premium cards that, like Amex, charge mer- chants higher fees and offer cardholders better rewards. To maintain their lower merchant fees, Visa and Master- Card have created a sliding scale for their various cards— charging merchants less for low-reward cards and more for high-reward cards. This differs from Amex’s strategy, which is to charge merchants the same fee no matter the rewards that its card offers. Another way that Amex has influenced the credit-card market is by making banking and card-payment services available to low-income indi- viduals, who otherwise could not qualify for a credit card and could
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Ohio v. American Express Co.
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https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/
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otherwise could not qualify for a credit card and could not afford the fees that traditional banks charge. See 2 Record 3835–3837, 4527–4529. In sum, Amex’s business model has stimulated competitive inno- vations in the credit-card market, increasing the volume of transactions and improving the quality of the services. Despite these improvements, Amex’s business model sometimes causes friction with merchants. To maintain —————— Discover uses banks that cooperate with its network to interact with merchants. Cite as: 585 U. S. (2018) 7 Opinion of the Court the loyalty of its cardholders, Amex must continually invest in its rewards program. But, to fund those invest- ments, Amex must charge merchants higher fees than its rivals. Even though Amex’s investments benefit mer- chants by encouraging cardholders to spend more money, merchants would prefer not to pay the higher fees. One way that merchants try to avoid them, while still enticing Amex’s cardholders to shop at their stores, is by dissuad- ing cardholders from using Amex at the point of sale. This practice is known as “steering.” Amex has prohibited steering since the 1950s by placing antisteering provisions in its contracts with merchants. These antisteering provisions prohibit merchants from implying a preference for non-Amex cards; dissuading customers from using Amex cards; persuading customers to use other cards; imposing any special restrictions, conditions, disadvantages, or fees on Amex cards; or pro- moting other cards more than Amex. The antisteering provisions do not, however, prevent merchants from steer- ing customers toward debit cards, checks, or cash. C In October 20, the United States and several States (collectively, plaintiffs) sued Amex, claiming that its an- tisteering provisions violate of the Sherman Act, 26 Stat. 209, as amended, 15 U.S. C.5 After a 7-week trial, the District Court agreed that Amex’s antisteering provisions violate United It found that the credit-card market should be treated as two separate markets—one for merchants and one for card- holders. See at 171–175. Evaluating the effects on the —————— 5 Plaintiffs also sued Visa and MasterCard, claiming that their anti- steering provisions violated But Visa and MasterCard voluntarily revoked their antisteering provisions and are no longer parties to this case. 8 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court merchant side of the market, the District Court found that Amex’s antisteering provisions are anticompetitive because they result in higher merchant fees. See at 195–224. The Court of Appeals for the Second Circuit reversed. United (2016). It concluded that the credit-card market is one market, not two. 6–200. Evaluating the credit- card market as a whole, the Second Circuit concluded that Amex’s
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Ohio v. American Express Co.
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market as a whole, the Second Circuit concluded that Amex’s antisteering provisions were not anticompetitive and did not violate See at 200–206. We granted certiorari, 583 U. S. (2017), and now affirm. II Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspir- acy, in restraint of trade or commerce among the several States.” 15 U.S. C. This Court has long recognized that, “[i]n view of the common law and the law in this country” when the Sherman Act was passed, the phrase “restraint of trade” is best read to mean “undue restraint.” Standard Co. of N. 59– 60 (1911). This Court’s precedents have thus understood “to outlaw only unreasonable restraints.” State Co. v. Khan, Restraints can be unreasonable in one of two ways. A small group of restraints are unreasonable per se because they “ ‘ “always or almost always tend to restrict competi- tion and decrease output.” ’ ” Business Corp. v. Sharp Corp., Typi- cally only “horizontal” restraints—restraints “imposed by agreement between competitors”—qualify as unreasonable per se. Restraints that are not unreasonable per se are judged under the “rule of reason.” at The rule of reason requires courts to conduct a fact-specific Cite as: 585 U. S. (2018) 9 Opinion of the Court assessment of “market power and market structure to assess the [restraint]’s actual effect” on competi Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768 (1984). The goal is to “distinguis[h] between restraints with anticompetitive effect that are harmful to the consumer and restraints stimulating competition that are in the consumer’s best interest.” Creative Leather Products, In this case, both sides correctly acknowledge that Amex’s antisteering provisions are vertical restraints— i.e., restraints “imposed by agreement between firms at different levels of distribu” Business The parties also correctly acknowledge that, like nearly every other vertical restraint, the anti- steering provisions should be assessed under the rule of reason. See ; State ; Business ; Continental T. V., Inc. v. GTE Sylvania Inc., To determine whether a restraint violates the rule of reason, the parties agree that a three-step, burden- shifting framework applies. Under this framework, the plaintiff has the initial burden to prove that the chal- lenged restraint has a substantial anticompetitive effect that harms consumers in the relevant market. See 1 J. Kalinowski, Antitrust Laws and Trade Regulation 2.02[1] (2d ed. 2017) (Kalinowski); P. Areeda & H. Hovenkamp, Fundamentals of Antitrust Law 5.02[B] (4th ed. 2017) (Areeda & Hovenkamp); Capital Imaging P. If the plaintiff carries its burden, then the burden shifts to the defendant
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Ohio v. American Express Co.
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https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/
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carries its burden, then the burden shifts to the defendant to show a procompetitive rationale for the restraint. See 1 Kalinow- ski 2.02[1]; Areeda & Hovenkamp 5.02[B]; Capital Imaging at If the defendant makes this showing, then the burden shifts back to the plaintiff OHIO v. AMERICAN EXPRESS CO. Opinion of the Court to demonstrate that the procompetitive efficiencies could be reasonably achieved through less anticompetitive means. See 1 Kalinowski 2.02[1]; Capital Imaging at Here, the parties ask us to decide whether the plaintiffs have carried their initial burden of proving that Amex’s antisteering provisions have an anticompetitive effect. The plaintiffs can make this showing directly or indirectly. Direct evidence of anticompetitive effects would be “ ‘proof of actual detrimental effects [on competition],’ ” FTC v. Indiana Federation of such as reduced output, increased prices, or decreased quality in the relevant market, see 1 Kalinowski 2.02[2]; Craftsman Limousine, Inc. v. Ford Motor Co., 491 F.3d 381, 390 ; Virginia Atlantic Airways v. British Airways PLC, 2 F.3d 256, Indirect evidence would be proof of market power plus some evidence that the challenged restraint harms compe- ti See 1 Kalinowski 2.02[2]; Tops Markets, Inc. v. Quality Markets, Inc., ; Span- ish Broadcasting System of 376 F.3d 65, 73 Here, the plaintiffs rely exclusively on direct evidence to prove that Amex’s antisteering provisions have caused anticompetitive effects in the credit-card market.6 To assess this evidence, we must first define the relevant market. Once defined, it becomes clear that the plaintiffs’ evidence is insufficient to carry their burden. A Because “[l]egal presumptions that rest on formalistic distinctions rather than actual market realities are gener- ally disfavored in antitrust law,” Eastman Co. v. —————— 6 Although the plaintiffs relied on indirect evidence below, they have abandoned that argument in this Court. See Brief for United States 23, n. 4 (citing Pet. for Cert. i, 18–25). Cite as: 585 U. S. (2018) 11 Opinion of the Court Image Technical Services, Inc., 466–467 (1992), courts usually cannot properly apply the rule of reason without an accurate definition of the relevant market.7 “Without a definition of [the] market there is no way to measure [the defendant’s] ability to lessen or de- stroy competi” Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., (1965); accord, 2 Kalinowski Thus, the rele- vant market is defined as “the area of effective competi- ” Typically this is the “arena within which significant substitution in consumption or production occurs.” Areeda & Hovenkamp accord, 2 Kalinow- ski United States v. Grinnell Corp., 384 U. S. —————— 7 The plaintiffs argue that we
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Ohio v. American Express Co.
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384 U. S. —————— 7 The plaintiffs argue that we need not define the relevant market in this case because they have offered actual evidence of adverse effects on competition—namely, increased merchant fees. See Brief for United States 40–41 and (1980) (per curiam)). We disagree. The cases that the plaintiffs cite for this proposition evaluated whether horizontal restraints had an ad- verse effect on competi See Indiana Federation of at 450–451, 459 (agreement between competing dentists not to share X rays with insurance companies); at 644–645, 650 (agreement among competing wholesalers not to compete on extending credit to retailers). Given that horizontal restraints involve agree- ments between competitors not to compete in some way, this Court concluded that it did not need to precisely define the relevant market to conclude that these agreements were anticompetitive. See Indiana Federation of at –461; at 648–649. But vertical restraints are different. See 4 U.S. 332, ; Creative Leather Products, Vertical re- straints often pose no risk to competition unless the entity imposing them has market power, which cannot be evaluated unless the Court first defines the relevant market. See (noting that a vertical restraint “may not be a serious concern unless the relevant entity has market power”); Easterbrook, Vertical Arrangements and the Rule of Reason, 53 Antitrust L. J. 135, 160 (1984) (“[T]he possibly anticompeti- tive manifestations of vertical arrangements can occur only if there is market power”). 12 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court 563, 1 (1966). But courts should “combin[e]” different products or services into “a single market” when “that combination reflects commercial realities.” at 2; see also Brown Shoe 336– 337 (1962) (pointing out that “the definition of the relevant market” must “ ‘correspond to the commercial realities’ of the industry”). As explained, credit-card networks are two-sided plat- forms. Due to indirect network effects, two-sided plat- forms cannot raise prices on one side without risking a feedback loop of declining demand. See Evans & Schma- lensee 674–675; Evans & Noel 680–681. And the fact that two-sided platforms charge one side a price that is below or above cost reflects differences in the two sides’ demand elasticity, not market power or anticompetitive pricing. See Klein 4, 595, 598, 626. Price increases on one side of the platform likewise do not suggest anticompetitive effects without some evidence that they have increased the overall cost of the platform’s services. See at 5, 626. Thus, courts must include both sides of the plat- form—merchants and cardholders—when defining the credit-card market. To be sure, it is not always necessary to consider both
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Ohio v. American Express Co.
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be sure, it is not always necessary to consider both sides of a two-sided platform. A market should be treated as one sided when the impacts of indirect network effects and relative pricing in that market are minor. See Fil- istrucchi 321–322. Newspapers that sell advertisements, for example, arguably operate a two-sided platform be- cause the value of an advertisement increases as more people read the newspaper. at 2, 315; Klein 9. But in the newspaper-advertisement market, the indirect networks effects operate in only one direction; newspaper readers are largely indifferent to the amount of advertis- ing that a newspaper contains. See Filistrucchi 321, 323, and n. 99; Klein 583. Because of these weak indirect network effects, the market for newspaper advertising Cite as: 585 U. S. (2018) 13 Opinion of the Court behaves much like a one-sided market and should be analyzed as such. See Filistrucchi 321; Times-Picayune Publishing 6 But two-sided transaction platforms, like the credit-card market, are different. These platforms facilitate a single, simultaneous transaction between participants. For credit cards, the network can sell its services only if a mer- chant and cardholder both simultaneously choose to use the network. Thus, whenever a credit-card network sells one transaction’s worth of card-acceptance services to a merchant it also must sell one transaction’s worth of card- payment services to a cardholder. It cannot sell transac- tion services to either cardholders or merchants individu- ally. See Klein 583 (“Because cardholders and merchants jointly consume a single product, payment card transac- tions, their consumption of payment card transactions must be directly proportional”). To optimize sales, the network must find the balance of pricing that encourages the greatest number of matches between cardholders and merchants. Because they cannot make a sale unless both sides of the platform simultaneously agree to use their services, two-sided transaction platforms exhibit more pronounced indirect network effects and interconnected pricing and demand. Transaction platforms are thus better under- stood as “suppl[ying] only one product”—transactions. Klein 580. In the credit-card market, these transactions “are jointly consumed by a cardholder, who uses the pay- ment card to make a transaction, and a merchant, who accepts the payment card as a method of payment.” Tellingly, credit cards determine their market share by measuring the volume of transactions they have sold.8 —————— 8 Contrary to the dissent’s assertion, post, at 11–12, merchant ser- vices and cardholder services are not complements. See Filistrucchi 2 (“[A] two-sided market [is] different from markets for complemen- 14 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court Evaluating both sides of a two-sided transaction plat- form
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Ohio v. American Express Co.
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Court Evaluating both sides of a two-sided transaction plat- form is also necessary to accurately assess competi Only other two-sided platforms can compete with a two- sided platform for transactions. See Filistrucchi 301. A credit-card company that processed transactions for mer- chants, but that had no cardholders willing to use its card, could not compete with Amex. See Only a company that had both cardholders and merchants willing to use its network could sell transactions and compete in the credit- card market. Similarly, if a merchant accepts the four major credit cards, but a cardholder only uses Visa or Amex, only those two cards can compete for the particular transac Thus, competition cannot be accurately assessed by looking at only one side of the platform in isola9 For all these reasons, “[i]n two-sided transaction mar- kets, only one market should be defined.” ; see also Evans & Noel 671 (“[F]ocusing on one dimension of competition tends to distort the competition that actu- ally exists among [two-sided platforms]”). Any other analysis would lead to “ ‘ “mistaken inferences” ’ ” of the kind that could “ ‘ “chill the very conduct the antitrust laws are designed to protect.” ’ ” Brooke Group ; see also Matsushita Elec. Industrial Co. v. Zenith Radio Corp., —————— tary products, in which both products are bought by the same buyers, who, in their buying decisions, can therefore be expected to take into account both prices”). As already explained, credit-card companies are best understood as supplying only one product—transactions—which is jointly consumed by a cardholder and a merchant. See Klein 580. Merchant services and cardholder services are both inputs to this single product. See 9 Nontransaction platforms, by contrast, often do compete with com- panies that do not operate on both sides of their platform. A newspaper that sells advertising, for example, might have to compete with a television network, even though the two do not meaningfully compete for viewers. See Filistrucchi 301. Cite as: 585 U. S. (2018) 15 Opinion of the Court 475 U.S. 4, (“ ‘[W]e must be concerned lest a rule or precedent that authorizes a search for a particular type of undesirable pricing behavior end up by discourag- ing legitimate price competition’ ”); 551 U.S., at 895 (noting that courts should avoid “increas[ing] the total cost of the antitrust system by prohibiting procompetitive conduct the antitrust laws should encourage”). Accordingly, we will analyze the two-sided market for credit-card transactions as a whole to determine whether the plain- tiffs have shown that Amex’s antisteering provisions have anticompetitive effects. B The plaintiffs have
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Ohio v. American Express Co.
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Amex’s antisteering provisions have anticompetitive effects. B The plaintiffs have not carried their burden to prove anticompetitive effects in the relevant market. The plain- tiffs stake their entire case on proving that Amex’s agree- ments increase merchant fees. We find this argument unpersuasive. As an initial matter, the plaintiffs’ argument about merchant fees wrongly focuses on only one side of the two- sided credit-card market. As explained, the credit-card market must be defined to include both merchants and cardholders. Focusing on merchant fees alone misses the mark because the product that credit-card companies sell is transactions, not services to merchants, and the compet- itive effects of a restraint on transactions cannot be judged by looking at merchants alone. Evidence of a price in- crease on one side of a two-sided transaction platform cannot by itself demonstrate an anticompetitive exercise of market power. To demonstrate anticompetitive effects on the two-sided credit-card market as a whole, the plaintiffs must prove that Amex’s antisteering provisions increased the cost of credit-card transactions above a competitive level, reduced the number of credit-card transactions, or otherwise stifled competition in the credit-card market. See 1 Kalinowski 2.02[2]; Craftsman Limousine, Inc., 16 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court ; Virginia Atlantic Airways 2 F.3d, at They failed to do so. 1 The plaintiffs did not offer any evidence that the price of credit-card transactions was higher than the price one would expect to find in a competitive market. As the District Court found, the plaintiffs failed to offer any reliable measure of Amex’s transaction price or profit 88 F. Supp. 3d, 8, 215. And the evidence about whether Amex charges more than its competitors was ultimately inconclusive. 9, 202, 215. Amex’s increased merchant fees reflect increases in the value of its services and the cost of its transactions, not an ability to charge above a competitive price. Amex began raising its merchant fees in 2005 after Visa and Master- Card raised their fees in the early 2000s. 5, 199– 200. As explained, Amex has historically charged higher merchant fees than these competitors because it delivers wealthier cardholders who spend more money. at 200–201. Amex’s higher merchant fees are based on a careful study of how much additional value its cardholders offer merchants. See 2–193. On the other side of the market, Amex uses its higher merchant fees to offer its cardholders a more robust rewards program, which is necessary to maintain cardholder loyalty and encourage the level of spending that makes Amex valuable to mer- chants. 191–195. That Amex allocates prices between merchants and cardholders
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Ohio v. American Express Co.
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https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/
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chants. 191–195. That Amex allocates prices between merchants and cardholders differently from Visa and MasterCard is simply not evidence that it wields market power to achieve anticompetitive ends. See Evans & Noel 670–671; Klein 4–5, –595, 598, 626. In addition, the evidence that does exist cuts against the plaintiffs’ view that Amex’s antisteering provisions are the cause of any increases in merchant fees. Visa and Master- Card’s merchant fees have continued to increase, even Cite as: 585 U. S. (2018) 17 Opinion of the Court at merchant locations where Amex is not accepted and, thus, Amex’s antisteering provisions do not apply. See 88 F. Supp. 3d, at 222. This suggests that the cause of in- creased merchant fees is not Amex’s antisteering provi- sions, but rather increased competition for cardholders and a corresponding marketwide adjustment in the rela- tive price charged to merchants. See Klein 5, 609. 2 The plaintiffs did offer evidence that Amex increased the percentage of the purchase price that it charges mer- chants by an average of 0.09% between 2005 and 20 and that this increase was not entirely spent on cardholder rewards. See 88 F. Supp. 3d, 5–1, 215. The plain- tiffs believe that this evidence shows that the price of Amex’s transactions increased. Even assuming the plaintiffs are correct, this evidence does not prove that Amex’s antisteering provisions gave it the power to charge anticompetitive prices. “Market power is the ability to raise price profitably by restricting output.” Areeda & Hovenkamp ; accord, ; Business 485 U.S., at This Court will “not infer competitive injury from price and output data absent some evidence that tends to prove that output was restricted or prices were above a competitive level.” Brooke Group 509 U.S., There is no such evidence in this case. The output of credit-card transactions grew dramatically from 2008 to 2013, increasing 30%. See “Where output is expanding at the same time prices are increas- ing, rising prices are equally consistent with growing product demand.” Brooke Group And, as previously explained, the plaintiffs did not show that Amex charged more than its competitors. 18 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court 3 The plaintiffs also failed to prove that Amex’s antisteer- ing provisions have stifled competition among credit-card companies. To the contrary, while these agreements have been in place, the credit-card market experienced expand- ing output and improved quality. Amex’s business model spurred Visa and MasterCard to offer new premium card categories with higher rewards. And it has increased the availability of card services, including free banking and card-payment services for low-income
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Justice Thomas
| 2,018 | 1 |
majority
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Ohio v. American Express Co.
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https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/
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card services, including free banking and card-payment services for low-income customers who otherwise would not be served. Indeed, between 10 and the percentage of households with credit cards more than quadrupled, and the proportion of households in the bottom-income quintile with credit cards grew from just 2% to over 38%. See D. Evans & R. Schmalensee, Paying With Plastic: The Digital Revolution in Buying and Bor- rowing 88–89 (2d ed. 2005) (Paying With Plastic). Nor have Amex’s antisteering provisions ended competi- tion between credit-card networks with respect to mer- chant fees. Instead, fierce competition between networks has constrained Amex’s ability to raise these fees and has, at times, forced Amex to lower them. For instance, when Amex raised its merchant prices between 2005 and 20, some merchants chose to leave its network. 88 F. Supp. 3d, 7. And when its remaining merchants com- plained, Amex stopped raising its merchant prices. at 198. In another instance in the late 1980s and early 1990s, competition forced Amex to offer lower merchant fees to “everyday spend” merchants—supermarkets, gas stations, pharmacies, and the like—to persuade them to accept Amex. See –161, 202. In addition, Amex’s competitors have exploited its higher merchant fees to their advantage. By charging lower merchant fees, Visa, MasterCard, and Discover have achieved broader merchant acceptance—approximately 3 million more locations than Amex. This Cite as: 585 U. S. (2018) 19 Opinion of the Court broader merchant acceptance is a major advantage for these networks and a significant challenge for Amex, since consumers prefer cards that will be accepted everywhere. And to compete even further with Amex, Visa and MasterCard charge different merchant fees for different types of cards to maintain their comparatively lower mer- chant fees and broader acceptance. Over the long run, this competition has created a trend of declining merchant fees in the credit-card market. In fact, since the first credit card was introduced in the 1950s, merchant fees— including Amex’s merchant fees—have decreased by more than half. See at 202–203; Paying With Plastic 54, 126, 152. Lastly, there is nothing inherently anticompetitive about Amex’s antisteering provisions. These agreements actually stem negative externalities in the credit-card market and promote interbrand competi When mer- chants steer cardholders away from Amex at the point of sale, it undermines the cardholder’s expectation of “wel- come acceptance”—the promise of a frictionless transac- A lack of welcome acceptance at one merchant makes a cardholder less likely to use Amex at all other merchants. This externality endangers the viability of the entire Amex network. And it under- mines the investments that Amex has made to
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Justice Thomas
| 2,018 | 1 |
majority
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Ohio v. American Express Co.
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https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/
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it under- mines the investments that Amex has made to encourage increased cardholder spending, which discourages invest- ments in rewards and ultimately harms both cardholders and merchants. Cf. –891 (recog- nizing that vertical restraints can prevent retailers from free riding and thus increase the availability of “tangible or intangible services or promotional efforts” that enhance competition and consumer welfare). Perhaps most im- portantly, antisteering provisions do not prevent Visa, MasterCard, or Discover from competing against Amex by offering lower merchant fees or promoting their broader 20 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court merchant acceptance. In sum, the plaintiffs have not satisfied the first step of the rule of reason. They have not carried their burden of proving that Amex’s antisteering provisions have anti- competitive effects. Amex’s business model has spurred robust interbrand competition and has increased the quality and quantity of credit-card transactions. And it is “[t]he promotion of interbrand competition,” after all, that “is ‘the primary purpose of the antitrust laws.’” at 890. * * * Because Amex’s antisteering provisions do not unrea- sonably restrain trade, we affirm the judgment of the Court of Appeals. It is so ordered. —————— The plaintiffs argue that United 6 (12), forbids any restraint that would restrict competition in part of the market—here, for example, merchant steer- ing. See Brief for Petitioners and Respondents Nebraska, Tennessee, and Texas 30, 42. Topco does not stand for such a broad proposi Topco concluded that a horizontal agreement between competitors was unreasonable per se, even though the agreement did not extend to every competitor in the market. See 608. A horizontal agreement between competitors is markedly different from a vertical agreement that incidentally affects one particular method of competi- See 551 U.S., at ; Maricopa County Medical Soc., 4 U.S., at Cite as: 585 U. S. (2018) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 16–1454 OHIO, ET AL., PETITIONERS v. AMERICAN EXPRESS COMPANY, ET AL.
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Justice Scalia
| 2,010 | 9 |
concurring
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Black v. United States
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https://www.courtlistener.com/opinion/149285/black-v-united-states/
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I join the Court’s opinion with two exceptions. First, I do not join in its reliance, ante, at 7, on the Notes of the Advisory Committee in determining the meaning of Fed eral Rule of Criminal Procedure 30(d). The Committee’s view is not authoritative. See Krupski v. Costa Crociere S. p. A., 560 U. S. (2010) (SCALIA, J., concurring in part and concurring in judgment) (slip op., at 1). The Court accurately quotes the text of the Rule, see ante, at 7, the meaning of which is obvious. No more should be said. Second, I agree with the Court, ante, at 5, 8, that the District Court’s honest-services-fraud instructions to the jury were erroneous, but for a quite different reason. In my view, the error lay not in instructing inconsistently with the theory of honest-services fraud set forth in Skill ing v. United States, ante, p. but in instructing the jury on honest-services fraud at all. For the reasons set forth in my opinion in that case, 18 U.S. C. is un constitutionally vague. Skilling, ante, p. (SCALIA, J., concurring in part and concurring in judgment). Cite as: 561 U. S. (2010) 1 Opinion of KENNEDY, J. SUPREME COURT OF THE UNITED STATES No. 08–876 CONRAD M. BLACK, JOHN A. BOULTBEE, AND MARK S. KIPNIS, PETITIONERS v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT [June 24, 2010] JUSTICE KENNEDY, concurring in part and concurring in the judgment. I join the Court’s opinion except for those parts stating that 18 U.S. C. “criminalizes only schemes to de fraud that involve bribes or kickbacks.” Ante, at 5. For the reasons set forth in JUSTICE SCALIA’s separate opinion in Skilling v. United States, ante, p. (opinion concur ring in part and concurring in judgment), is uncon stitutionally vague. To convict a defendant based on an honest-services-fraud theory, even one limited to bribes or kickbacks, would violate his or her rights under the Due Process Clause of the Fifth Amendment
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Justice Marshall
| 1,986 | 15 |
dissenting
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United States v. Loud Hawk
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https://www.courtlistener.com/opinion/111554/united-states-v-loud-hawk/
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The Court holds today that the Speedy Trial Clause of the Sixth Amendment does not apply to a Government appeal from a district court's dismissal of an indictment, unless the defendant is incarcerated or otherwise under restraint during that appeal. The majority supports this result by equating the present case to United That analysis, however, both ignores the considerable differences between this case and and gives short shrift to the interests protected by the Speedy Trial Clause. I further disagree with the majority's application *318 of to the remaining appellate delays in this case. I The majority concludes that when an appeal arises out of the district court's dismissal of an indictment, the lack of an outstanding indictment absolves the Government of its responsibility to provide a speedy trial. However, we have never conditioned Sixth Amendment rights solely on the presence of an outstanding indictment. Those rights attach to anyone who is "accused,"[1] and we have until now recognized that one may stand publicly accused without being under indictment. The majority offers two reasons for concluding that respondents did not enjoy the right to a speedy trial during the Government's appeals. First, respondents were suffering only "[p]ublic suspicion," ante, at 311, and not a formal accusation. Second, they were not subject to "actual restraints" on their liberty. Both of these rationales are seriously flawed. A In United we held that the Speedy Trial Clause does not apply until the Government, either through arrest or indictment, asserts probable cause to believe that a suspect has committed a crime. Before that time the individual, while possibly aware of the Government's suspicion, is not "the subject of public accusation," and his only protection against delay comes from the Due Process Clause and the applicable statute of limitations. The Court applied the same rationale in In that case, military charges of murder against an Army officer, were dropped after an investigation. was then given an honorable discharge, only to be indicted by a civilian grand jury nearly *319 four years later for the same murders. The Court held that this delay did not implicate the speedy trial right because "the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges." The Court reasoned that after the termination of the first formal prosecution, was "in the same position as any other subject of a criminal investigation," and thus was no more an "accused" than was the defendant in before his arrest. The same cannot be said of respondents in the present case.[2] Unlike one who has not been arrested,
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Justice Marshall
| 1,986 | 15 |
dissenting
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United States v. Loud Hawk
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https://www.courtlistener.com/opinion/111554/united-states-v-loud-hawk/
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the present case.[2] Unlike one who has not been arrested, or one who has had the charges against him dropped, respondents did not enjoy the protection of the statute of limitations while the Government prosecuted its appeals. That protection was an important aspect of our holding in that prearrest delay is not cognizable under the Speedy Trial Clause. See -323. More importantly, in contrast to the Government has not "dropped" anything in *320 this case.[3] There has been at all relevant times a case on a court docket captioned United v. Loud Hawk I can think of no more formal indication that respondents stand accused by the Government. The majority argues that while "the Government's desire to prosecute [respondents] was a matter of public record," that desire constituted only "[p]ublic suspicion" that is insufficient to call Sixth Amendment rights into play, citing and Ante, at 311. The reason that the Government's desire to prosecute in both of those cases did not constitute an "accusation," however, is that the Government had not yet formalized its commitment. Indeed, in the Government dismissed the murder charges because it "concluded that they were untrue," n. 12, thus acknowledging that the first formal accusation had been a mistake and extinguishing the prior probable-cause determination. In the present case, the Government has made no such confession of error and continues to align its full resources against respondents in judicial proceedings. The most telling difference between this case and however, is the fact that respondents' liberty could have been taken from them at any time during the Government's *321 appeal. One of the primary purposes of the speedy trial right, of course, is to prevent prolonged restraints on liberty, ; and the absence of any possibility of such restraints was a vital part of our holding. See In contrast, Congress has declared explicitly, in 18 U.S. C. 3731, that a person in respondents' position shall be subject to the same restraints as an arrested defendant awaiting trial.[4] Thus the District Court had the undoubted authority to condition respondents' release on the posting of bail, or indeed to keep them in jail throughout the appeal, see 18 U.S. C. 3142(e) (1982 ed., Supp. III). Respondents' release could have been accompanied by restrictions on travel, association, employment, abode, and firearms possession, or conditioned on their reporting regularly to law enforcement officers and/or keeping a curfew. See 3142(c). Considering all the circumstances, therefore, I believe that respondents' position is most closely analogous to that of a defendant who has been arrested but not yet indicted. B As if acknowledging
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Justice Marshall
| 1,986 | 15 |
dissenting
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United States v. Loud Hawk
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https://www.courtlistener.com/opinion/111554/united-states-v-loud-hawk/
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been arrested but not yet indicted. B As if acknowledging that the delay in this case is more analogous to postarrest, preindictment delay than to prearrest delay, the majority concedes that had respondents been incarcerated or forced to post bond during the Government's appeals, the automatic exclusion rule of would not apply. Ante, at 311, n. 13. Yet, inexplicably, the majority then suggests that the Speedy Trial Clause applies to postarrest, preindictment delay only when the defendant has been subjected to " `actual restraints,' " ante, at 310, *322 quoting The majority completely misreads while creating a rule that is flatly inconsistent with our prior holdings. We held in that prearrest delay is not cognizable under the Speedy Trial Clause, but we certainly did not disturb the settled rule that the Government's formal institution of criminal charges, whether through arrest or indictment, always calls the speedy trial right into play. See ; see also United Although it specified detention and bail as possible deleterious effects of a formal criminal charge, nowhere suggested that it is the restraints themselves, rather than the assertion of probable cause, that constitute an accusation. Nor did we hold that a criminal charge has less constitutional significance when a defendant is released on recognizance rather than on bail. See 404 U.S., n. 12. The majority identifies no logic or precedent supporting its novel conclusion that a defendant who is arrested and released on bail is "accused," while a defendant who is arrested and released without bail, on the same evidence, is not "accused."[5] Indeed, we have rejected precisely the interpretation of that the majority now adopts. In we held that *323 does not require "actual prejudice" to invoke the speedy trial right for postarrest, preindictment delay. Such "actual prejudice" included the "actual restraints" that the majority now requires. The Court of Appeals in that case noted that the defendant was released on bond, but without any other restrictions, pending trial. After citing it held that "any increased strain on this man's life which followed his arrest does not rise to the level of substantial actual prejudice." United rev'd sub nom. We summarily rejected the "actual prejudice" rationale, and the majority gives no reason whatsoever for resurrecting it today.[6] There can be no question that one who had been arrested and released under 18 U.S. C. 3141(a) (1982 ed., Supp. III) would be entitled, under to the protections of the Speedy Trial Clause. Because respondents were by statute subject to the same restraints as that hypothetical defendant, I am at a loss to understand why they should
|
Justice Marshall
| 1,986 | 15 |
dissenting
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United States v. Loud Hawk
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https://www.courtlistener.com/opinion/111554/united-states-v-loud-hawk/
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I am at a loss to understand why they should enjoy less protection. II The majority also declines to hold the Government accountable for delay attributable to appeals during which respondents *324 were under indictment. In doing so the majority emphasizes the second Barker factor the reason for the delay, see Because it concludes that "[t]here is no showing of bad faith or dilatory purpose on the Government's part," the majority declines to accord any "effective weight" to this factor in the speedy trial balance. Ante, at 316. In reaching this conclusion, it virtually ignores the most obvious "reason for the delay" in this case the fact that the Court of Appeals was unable to decide these appeals in a reasonably prompt manner. In Barker, we explained the application of the "reason for the delay" factor as follows: "[D]ifferent weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." The majority's application of this factor to the appellate delays in this case makes Government misconduct or bad faith a virtual prerequisite to a finding of a speedy trial violation. Seizing upon the approach of some of the Courts of Appeals,[7] the majority analyzes the reason behind the appellate delay solely in terms of the reasonableness of the Government's behavior in taking and prosecuting the appeal. This approach is inconsistent with the policies behind the speedy trial right. We recognized in Barker that the right protects both the defendant's interest in fairness and society's interest in providing *325 swift justice. Courts as well as prosecutors must necessarily work to promote those interests if they are to have any vitality. Because it is the Government as a whole including the courts that bears the responsibility to provide a speedy trial, the prosecutor's good faith cannot suffice to discharge that responsibility.[8] The Court of Appeals frankly admitted that "most of the delay must be attributed to the processes of this court," a conclusion that is difficult to escape. This case involves appeals from pretrial rulings. The Court of Appeals had every reason to know that these appeals should have been ruled upon as expeditiously as possible. See that court's Rule 20. Yet it took over five years for the Court of Appeals to decide two
|
Justice Marshall
| 1,986 | 15 |
dissenting
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United States v. Loud Hawk
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https://www.courtlistener.com/opinion/111554/united-states-v-loud-hawk/
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five years for the Court of Appeals to decide two appeals, one of them "expedited." No complicated analysis is needed to identify the reason for the delay in this case. I would hold, simply, that a nonfrivolous appeal by any party permits a reasonable delay in the proceedings. The number and complexity of the issues on appeal, or the number of parties, might permit a greater or lesser delay in a given case. The government, not the defendant, must suffer the ultimate consequences of delays attributable to "over-crowded courts," ib even at the appellate level.[9] In the *326 present case, the amount of time that the appeals consumed is patently unreasonable. I would therefore weigh the second Barker factor against the Government in this case. III The majority has seriously misapplied our precedents in concluding that delay resulting when the government appeals the dismissal of an indictment is excludable for speedy trial purposes unless the defendant is subjected to actual restraints during that appeal. Its application of to this case also undercuts the very purpose of the speedy trial right. I respectfully dissent.
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Justice Kennedy
| 2,009 | 4 |
majority
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Bartlett v. Strickland
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https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/
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This case requires us to interpret 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973 ( ed.). The question is whether the statute can be invoked to require state officials to draw election-district lines to allow a racial minority to join with other voters to elect the minority's candidate of choice, even where the racial minority is less than 50 percent of the voting-age population in the district to be drawn. To use election-law terminology: In a district that is not a majority-minority district, if a racial minority could elect its candidate of choice with support from crossover majority voters, can 2 require the district to be drawn to accommodate this potential? *39 I The case arises in a somewhat unusual posture. State authorities who created a district now invoke the Voting Rights Act as a defense. They argue that 2 required them to draw the district in question in a particular way, despite state laws to the contrary. The state laws are provisions of the North Carolina Constitution that prohibit the General Assembly from dividing counties when drawing legislative districts for the State House and Senate. Art. II, 3, 5. We will adopt the term used by the state courts and refer to both sections of the state constitution as the Whole County Provision. See Pender It is common ground that state election-law requirements like the Whole County Provision may be superseded by federal lawfor instance, the one-person, one-vote principle of the Equal Protection Clause of the United States Constitution. See Here the question is whether 2 of the Voting Rights Act requires district lines to be drawn that otherwise would violate the Whole County Provision. That, in turn, depends on how the statute is interpreted. We begin with the election district. The North Carolina House of Representatives is the larger of the two chambers in the State's General Assembly. District 18 of that body lies in the southeastern part of North Carolina. Starting in 1991, the General Assembly drew District 18 to include portions of four counties, including Pender County, in order to create a district with a majority African-American voting-age population and to satisfy the Voting Rights Act. Following the census, the North Carolina Supreme Court, to comply with the Whole County Provision, rejected the General Assembly's first two statewide redistricting plans. See ; District 18 in its present form emerged from the General Assembly's third redistricting attempt, in By that time the African-American voting-age population had fallen below 50 percent in the district as then drawn, and the General Assembly no longer
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Justice Kennedy
| 2,009 | 4 |
majority
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Bartlett v. Strickland
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https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/
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district as then drawn, and the General Assembly no longer could draw a geographically compact majority-minority district. Rather than draw District 18 to keep Pender County whole, however, the General Assembly drew it by splitting portions of Pender and New Hanover counties. District 18 has an African-American voting-age population of 39.36 percent. App. 139. Had it left Pender County whole, the General Assembly could have drawn District 18 with an African-American voting-age population of 35.33 percent. The General Assembly's reason for splitting Pender County was to give African-American voters the potential to join with majority voters to elect the minority group's candidate of its choice. Failure to do so, state officials now submit, would have diluted the minority group's voting strength in violation of 2. In May Pender County and the five members of its Board of Commissioners filed the instant suit in North Carolina state court against the Governor of North Carolina, the Director of the State Board of Elections, and other state officials. The plaintiffs alleged that the plan violated the Whole County Provision by splitting Pender County into two House districts. App. 5-14. The state-official defendants answered that dividing Pender County was required by 2. As the trial court recognized, the procedural posture of *40 this case differs from most 2 cases. Here the defendants raise 2 as a defense. As a result, the trial court stated, they are "in the unusual position" of bearing the burden of proving that a 2 violation would have occurred absent splitting Pender County to draw District 18. App. to Pet. for Cert. 90a. The trial court first considered whether the defendant state officials had established the three threshold requirements for 2 liability under namely, (1) that the minority group "is sufficiently large and geographically compact to constitute a majority in a single-member district," (2) that the minority group is "politically cohesive," and (3) "that the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred " As to the first requirement, the trial court concluded that, although African-Americans were not a majority of the voting-age population in District 18, the district was a "de facto" majority-minority district because African-Americans could get enough support from crossover majority voters to elect the African-Americans' preferred The court ruled that African-Americans in District 18 were politically cohesive, thus satisfying the second requirement. And later, the plaintiffs stipulated that the third requirement was met. App. to Pet. for Cert. at 102a-103a, 130a. The court then determined, based on the totality of the circumstances, that 2 required the General Assembly
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Justice Kennedy
| 2,009 | 4 |
majority
|
Bartlett v. Strickland
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https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/
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totality of the circumstances, that 2 required the General Assembly to split Pender County. The court sustained the lines for District 18 on that rationale. at 116a-118a. Three of the Pender County Commissioners appealed the trial court's ruling that the defendants had established the first requirement. The Supreme Court of North Carolina reversed. It held that a "minority group must constitute a numerical majority of the voting population in the area under consideration before Section 2 requires the creation of a legislative district to prevent dilution of the votes of that minority group." On that premise the State Supreme Court determined District 18 was not mandated by 2 because African-Americans do not "constitute a numerical majority of citizens of voting age." It ordered the General Assembly to redraw District 18. We granted certiorari, 552 U.S. and now affirm. II Passage of the Voting Rights Act of 1965 was an important step in the struggle to end discriminatory treatment of minorities who seek to exercise one of the most fundamental rights of our citizens: the right to vote. Though the Act as a whole was the subject of debate and controversy, 2 prompted little criticism. The likely explanation for its general acceptance is that, as first enacted, 2 tracked, in part, the text of the Fifteenth Amendment. It prohibited practices "imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color." ; cf. U.S. Const., Amdt. 15 ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude"); see also S.Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 19-20 (1965). In this Court held that 2, as it *41 then read, "no more than elaborates upon. the Fifteenth Amendment" and was "intended to have an effect no different from that of the Fifteenth Amendment itself." In 1982, after the Mobile ruling, Congress amended 2, giving the statute its current form. The original Act had employed an intent requirement, prohibiting only those practices "imposed or applied. to deny or abridge" the right to vote. The amended version of 2 requires consideration of effects, as it prohibits practices "imposed or applied in a manner which results in a denial or abridgment" of the right to vote. 42 U.S.C. 1973(a) ( ed.). The 1982 amendments also added a subsection, 2(b), providing a test for determining whether a 2 violation has
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Justice Kennedy
| 2,009 | 4 |
majority
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Bartlett v. Strickland
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https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/
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providing a test for determining whether a 2 violation has occurred. The relevant text of the statute now states: "(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color [or membership in a language minority group], as provided in subsection (b) of this section. "(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. 1973. This Court first construed the amended version of 2 in In the plaintiffs were African-American residents of North Carolina who alleged that multimember districts diluted minority voting strength by submerging black voters into the white majority, denying them an opportunity to elect a candidate of their choice. The Court identified three "necessary preconditions" for a claim that the use of multimember districts constituted actionable vote dilution under 2:(1) The minority group must be "sufficiently large and geographically compact to constitute a majority in a single-member district," (2) the minority group must be "politically cohesive," and (3) the majority must vote "sufficiently as a bloc to enable it usually to defeat the minority's preferred " at The Court later held that the three requirements apply equally in 2 cases involving single-member districts, such as a claim alleging vote dilution because a geographically compact minority group has been split between two or more single-member districts. U.S. 25, In a 2 case, only when a party has established the requirements does a court proceed to analyze whether a violation has occurred based on the totality of the circumstances. III A This case turns on whether the first requirement can be satisfied when the minority group makes up less than 50 percent of the voting-age population in the potential election district. The parties *42 agree on all other parts of the analysis, so the dispositive question is: What size minority group is sufficient to satisfy the first requirement? At the outset the answer might not appear difficult to reach, for the Court said
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Justice Kennedy
| 2,009 | 4 |
majority
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Bartlett v. Strickland
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https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/
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might not appear difficult to reach, for the Court said the minority group must "demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district." This would seem to end the matter, as it indicates the minority group must demonstrate it can constitute "a majority." But in and again in the Court reserved what it considered to be a separate questionwhether, "when a plaintiff alleges that a voting practice or procedure impairs a minority's ability to influence, rather than alter, election results, a showing of geographical compactness of a minority group not sufficiently large to constitute a majority will suffice." ; see also The Court has since applied the requirements in 2 cases but has declined to decide the minimum size minority group necessary to satisfy the first requirement. See U.S. 146, ; De (). We must consider the minimum-size question in this case. It is appropriate to review the terminology often used to describe various features of election districts in relation to the requirements of the Voting Rights Act. In majority-minority districts, a minority group composes a numerical, working majority of the voting-age population. Under present doctrine, 2 can require the creation of these districts. See, e.g., at ("Placing black voters in a district in which they constitute a sizeable and therefore `safe' majority ensures that they are able to elect their candidate of choice"); but see At the other end of the spectrum are influence districts, in which a minority group can influence the outcome of an election even if its preferred candidate cannot be elected. This Court has held that 2 does not require the creation of influence districts. The present case involves an intermediate type of districta so-called crossover district. Like an influence district, a crossover district is one in which minority voters make up less than a majority of the voting-age population. But in a crossover district, the minority population, at least potentially, is large enough to elect the candidate of its choice with help from voters who are members of the majority and who cross over to support the minority's preferred This Court has referred sometimes to crossover districts as "coalitional" districts, in recognition of the necessary coalition between minority and crossover majority voters. See ; see also Pildes, Is Voting Rights Law Now at War with Itself? Social Science and Voting Rights in the s, 80 N.C.L.Rev. 1517, 1539 (hereinafter Pildes). But that term risks confusion with coalition-district claims in which two minority groups form a coalition to elect the candidate of the coalition's choice. See, e.g.,
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Justice Kennedy
| 2,009 | 4 |
majority
|
Bartlett v. Strickland
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https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/
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to elect the candidate of the coalition's choice. See, e.g., We do not address *43 that type of coalition district here. The petitioners in the present case (the state officials who were the defendants in the trial court) argue that 2 requires a crossover district, in which minority voters might be able to persuade some members of the majority to cross over and join with them. Petitioners argue that although crossover districts do not include a numerical majority of minority voters, they still satisfy the first requirement because they are "effective minority districts." Under petitioners' theory keeping Pender County whole would have violated 2 by cracking the potential crossover district that they drew as District 18. See n. 11, (vote dilution "may be caused by the dispersal of blacks into districts in which they constitute an ineffective minority of voters"). So, petitioners contend, 2 required them to override state law and split Pender County, drawing District 18 with an African-American voting-age population of 39.36 percent rather than keeping Pender County whole and leaving District 18 with an African-American voting-age population of 35.33 percent. We reject that claim. First, we conclude, the petitioners' theory is contrary to the mandate of 2. The statute requires a showing that minorities "have less opportunity than other members of the electorate to elect representatives of their choice." 42 U.S.C. 1973(b) ( ed.). But because they form only 39 percent of the voting-age population in District 18, African-Americans standing alone have no better or worse opportunity to elect a candidate than does any other group of voters with the same relative voting strength. That is, African-Americans in District 18 have the opportunity to join other votersincluding other racial minorities, or whites, or bothto reach a majority and elect their preferred They cannot, however, elect that candidate based on their own votes and without assistance from others. Recognizing a 2 claim in this circumstance would grant minority voters "a right to preserve their strength for the purposes of forging an advantageous political alliance." ; see also at (minorities in crossover districts "could not dictate electoral outcomes independently"). Nothing in 2 grants special protection to a minority group's right to form political coalitions. "[M]inority voters are not immune from the obligation to pull, haul, and trade to find common political ground." De Although the Court has reserved the question we confront today and has cautioned that the requirements "cannot be applied mechanically," the reasoning of our cases does not support petitioners' Section 2 does not impose on those who draw election districts a duty to give minority voters
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| 2,009 | 4 |
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Bartlett v. Strickland
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who draw election districts a duty to give minority voters the most potential, or the best potential, to elect a candidate by attracting crossover voters. In setting out the first requirement for 2 claims, the Court explained that "[u]nless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice." n. 17, The Court stated that the first requirement is "needed to establish that the minority has the potential to elect a representative of its own choice in some single-member district." U.S., at 40, Without such a showing, "there neither has been a wrong nor can be a remedy." *44 There is a difference between a racial minority group's "own choice" and the choice made by a coalition. In the Court stated that the first requirement "would have to be modified or eliminated" to allow cross-over-district U.S., Only once, in dicta, has this Court framed the first requirement as anything other than a majority-minority rule. See De (requiring "a sufficiently large minority population to elect candidates of its choice"). And in the same case, the Court rejected the proposition, inherent in petitioners' claim here, that 2 entitles minority groups to the maximum possible voting strength: "[R]eading 2 to define dilution as any failure to maximize tends to obscure the very object of the statute and to run counter to its textually stated purpose. One may suspect vote dilution from political famine, but one is not entitled to suspect (much less infer) dilution from mere failure to guarantee a political feast." Allowing crossover-district claims would require us to revise and reformulate the threshold inquiry that has been the baseline of our 2 jurisprudence. Mandatory recognition of claims in which success for a minority depends upon crossover majority voters would create serious tension with the third requirement that the majority votes as a bloc to defeat minority-preferred candidates. It is difficult to see how the majority-bloc-voting requirement could be met in a district where, by definition, white voters join in sufficient numbers with minority voters to elect the minority's preferred (We are skeptical that the bloc-voting test could be satisfied here, for example, where minority voters in District 18 cannot elect their candidate of choice without support from almost 20 percent of white voters. We do not confront that issue, however, because for some reason respondents conceded the third requirement in state court.) As the Court explained, "in the absence of significant white bloc voting it cannot be said that the ability of minority
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| 2,009 | 4 |
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Bartlett v. Strickland
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voting it cannot be said that the ability of minority voters to elect their chosen representatives is inferior to that of white voters." n. 15, Were the Court to adopt petitioners' theory and dispense with the majority-minority requirement, the ruling would call in question the framework the Court has applied under 2. See n. 8, (SOUTER, J., concurring in part and dissenting in part) ("All aspects of our established analysis for majority-minority districts in and its progeny may have to be rethought in analyzing ostensible coalition districts"); cf. (per curiam) (allowing influence-district claim to survive motion to dismiss but noting "there is tension in this case for plaintiffs in any effort to satisfy both the first and third prong of "). We find support for the majority-minority requirement in the need for workable standards and sound judicial and legislative administration. The rule draws clear lines for courts and legislatures alike. The same cannot be said of a less exacting standard that would mandate crossover districts under 2. Determining whether a 2 claim would liei.e., determining whether potential districts could function as crossover districtswould place courts in the untenable position of predicting many political variables and tying them to race-based assumptions. The judiciary would be directed to make predictions or adopt premises that even experienced polling *45 analysts and political experts could not assess with certainty, particularly over the long term. For example, courts would be required to pursue these inquiries: What percentage of white voters supported minority-preferred candidates in the past? How reliable would the crossover votes be in future elections? What types of candidates have white and minority voters supported together in the past and will those trends continue? Were past crossover votes based on incumbency and did that depend on race? What are the historical turnout rates among white and minority voters and will they stay the same? Those questions are speculative, and the answers (if they could be supposed) would prove elusive. A requirement to draw election districts on answers to these and like inquiries ought not to be inferred from the text or purpose of 2. Though courts are capable of making refined and exacting factual inquiries, they "are inherently ill-equipped" to "make decisions based on highly political judgments" of the sort that crossover-district claims would require. 5 U.S., at 894, There is an underlying principle of fundamental importance: We must be most cautious before interpreting a statute to require courts to make inquiries based on racial classifications and race-based predictions. The statutory mandate petitioners urge us to find in 2 raises serious constitutional questions. See
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| 2,009 | 4 |
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Bartlett v. Strickland
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https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/
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us to find in 2 raises serious constitutional questions. See infra, at 46-48. Heightening these concerns even further is the fact that 2 applies nationwide to every jurisdiction that must draw lines for election districts required by state or local law. Crossover-district claims would require courts to make predictive political judgments not only about familiar, two-party contests in large districts but also about regional and local jurisdictions that often feature more than two parties or candidates. Under petitioners' view courts would face the difficult task of discerning crossover patterns in nonpartisan contests for a city commission, a school board, or a local water authority. The political data necessary to make such determinations are nonexistent for elections in most of those jurisdictions. And predictions would be speculative at best given that, especially in the context of local elections, voters' personal affiliations with candidates and views on particular issues can play a large role. Unlike any of the standards proposed to allow crossover-district claims, the majority-minority rule relies on an objective, numerical test: Do minorities make up more than 50 percent of the voting-age population in the relevant geographic area? That rule provides straightforward guidance to courts and to those officials charged with drawing district lines to comply with 2. See (opinion of SOUTER, J.) (recognizing need for "clear-edged rule"). Where an election district could be drawn in which minority voters form a majority but such a district is not drawn, or where a majority-minority district is cracked by assigning some voters elsewhere, thenassuming the other factors are also satisfieddenial of the opportunity to elect a candidate of choice is a present and discernible wrong that is not subject to the high degree of speculation and prediction attendant upon the analysis of crossover Not an arbitrary invention, the majority-minority rule has its foundation in principles of democratic governance. The special significance, in the democratic process, of a majority means it is a special wrong when a minority group has 50 percent or more of the voting population and could constitute a compact voting majority but, despite racially polarized bloc voting, that group is not put into a district. *46 Given the text of 2, our cases interpreting that provision, and the many difficulties in assessing 2 claims without the restraint and guidance provided by the majority-minority rule, no federal court of appeals has held that 2 requires creation of coalition districts. Instead, all to consider the question have interpreted the first factor to require a majority-minority standard. See -430 cert. denied, 5 S. Ct. 1725, ; cert. denied, 0 S. Ct. 931,
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| 2,009 | 4 |
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Bartlett v. Strickland
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S. Ct. 1725, ; cert. denied, 0 S. Ct. 931, ; cert. denied, ; 1311-13 cert. denied, 520 U.S. 29, ; overruled on other grounds, ; cert. denied, Cf. We decline to depart from the uniform interpretation of 2 that has guided federal courts and state and local officials for more than 20 years. To be sure, the requirements "cannot be applied mechanically and without regard to the nature of the claim." U.S., It remains the rule, however, that a party asserting 2 liability must show by a preponderance of the evidence that the minority population in the potential election district is greater than 50 percent. No one contends that the African-American voting-age population in District 18 exceeds that thresh-old. Nor does this case involve allegations of intentional and wrongful conduct. We therefore need not consider whether intentional discrimination affects the analysis. Cf. Brief for United States as Amicus Curiae 14 (evidence of discriminatory intent "tends to suggest that the jurisdiction is not providing an equal opportunity to minority voters to elect the representative of their choice, and it is therefore unnecessary to consider the majority-minority requirement before proceeding to the ultimate totality-of-the-circumstances analysis"); see also Our holding does not apply to cases in which there is intentional discrimination against a racial minority. B In arguing for a less restrictive interpretation of the first requirement petitioners point to the text of 2 and its guarantee that political processes be "equally open to participation" to protect minority voters' "opportunity to elect representatives of their choice." 42 U.S.C. 1973(b) ( ed.). An "opportunity," petitioners argue, occurs in crossover districts as well as majority-minority districts; and these extended opportunities, they say, require 2 protection. But petitioners put emphasis on the word "opportunity" at the expense of the word "equally." The statute does not protect any possible opportunity or mechanism through which minority voters could work with other constituencies to elect their candidate of choice. Section 2 does not guarantee minority voters an electoral advantage. Minority groups in crossover districts cannot form a voting majority without crossover voters. In those districts minority voters have the same opportunity to elect their candidate as any *47 other political group with the same relative voting strength. The majority-minority rule, furthermore, is not at odds with 2's totality-of-the-circumstances test. The Court in De confirmed "the error of treating the three conditions as exhausting the enquiry required by 2." 5 U.S., at Instead the requirements are preconditions, consistent with the text and purpose of 2, to help courts determine which claims could meet the totality-of-the-circumstances standard for a 2
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Justice Kennedy
| 2,009 | 4 |
majority
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Bartlett v. Strickland
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https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/
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which claims could meet the totality-of-the-circumstances standard for a 2 violation. See U.S., at 40, (describing the " threshold factors"). To the extent there is any doubt whether 2 calls for the majority-minority rule, we resolve that doubt by avoiding serious constitutional concerns under the Equal Protection Clause. See 5 S. Ct. 716, Of course, the "moral imperative of racial neutrality is the driving force of the Equal Protection Clause," and racial classifications are permitted only "as a last resort." "Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer mattersa goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire." 5 L. Ed. 2d 511 If 2 were interpreted to require crossover districts throughout the Nation, "it would unnecessarily infuse race into virtually every redistricting, raising serious constitutional questions." ; see also (KENNEDY, J., concurring). That interpretation would result in a substantial increase in the number of mandatory districts drawn with race as "the predominant factor motivating the legislature's decision." On petitioners' view of the case courts and legislatures would need to scrutinize every factor that enters into districting to gauge its effect on crossover voting. Injecting this racial measure into the nationwide districting process would be of particular concern with respect to consideration of party registration or party influence. The easiest and most likely alliance for a group of minority voters is one with a political party, and some have suggested using minority voters' strength within a particular party as the proper yardstick under the first requirement. See, e.g., -486, (opinion of SOUTER, J.) (requiring only "that minority voters constitute a majority of those voting in the primary of. the party tending to win in the general election"). That approach would replace an objective, administrable rule with a difficult "judicial inquiry into party rules and local politics" to determine whether a minority group truly "controls" the dominant party's primary process. McLoughlin, in Limbo: Coalitional Districts, Party Primaries and Manageable Vote Dilution Claims, 80 N.Y.U.L.Rev. 3, 349 More troubling still is the inquiry's *48 fusion of race and party affiliation as a determinant when partisan considerations themselves may be suspect in the drawing of district lines. See 4 S. Ct. 1769, ; 4 S. Ct. 1769 (KENNEDY, J., concurring in judgment); see also Pildes 1565 (crossover-district requirement would essentially result in political party "entitlement to a certain number of seats"). Disregarding the majority-minority
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| 2,009 | 4 |
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Bartlett v. Strickland
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"entitlement to a certain number of seats"). Disregarding the majority-minority rule and relying on a combination of race and party to presume an effective majority would involve the law and courts in a perilous enterprise. It would rest on judicial predictions, as a matter of law, that race and party would hold together as an effective majority over timeat least for the decennial apportionment cycles and likely beyond. And thus would the relationship between race and party further distort and frustrate the search for neutral factors and principled rationales for districting. Petitioners' approach would reverse the canon of avoidance. It invites the divisive constitutional questions that are both unnecessary and contrary to the purposes of our precedents under the Voting Rights Act. Given the consequences of extending racial considerations even further into the districting process, we must not interpret 2 to require crossover districts. C Our holding that 2 does not require crossover districts does not consider the permissibility of such districts as a matter of legislative choice or discretion. Assuming a majority-minority district with a substantial minority population, a legislative determination, based on proper factors, to create two crossover districts may serve to diminish the significance and influence of race by encouraging minority and majority voters to work together toward a common goal. The option to draw such districts gives legislatures a choice that can lead to less racial isolation, not more. And as the Court has noted in the context of 5 of the Voting Rights Act, "various studies have suggested that the most effective way to maximize minority voting strength may be to create more influence or [crossover] districts." Much like 5, 2 allows States to choose their own method of complying with the Voting Rights Act, and we have said that may include drawing crossover districts. See at 480-, When we address the mandate of 2, however, we must note it is not concerned with maximizing minority voting strength, De 5 U.S., at 1022, ; and, as a statutory matter, 2 does not mandate creating or preserving crossover districts. Our holding also should not be interpreted to entrench majority-minority districts by statutory command, for that, too, could pose constitutional concerns. See States that wish to draw crossover districts are free to do so where no other prohibition exists. Majority-minority districts are only required if all three factors are met and if 2 applies based on a totality of the circumstances. In areas with substantial crossover voting it is unlikely that the plaintiffs would be able to establish the third preconditionbloc voting by majority voters. See at
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| 2,009 | 4 |
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Bartlett v. Strickland
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establish the third preconditionbloc voting by majority voters. See at 44. In those areas majority-minority districts would not be required in the first place; and in the exercise of lawful discretion States could draw crossover districts as they deemed appropriate. See Pildes 1567 ("Districts could still be designed in such places that encouraged coalitions across racial lines, *49 but these districts would result from legislative choice, not obligation"). States canand in proper cases shoulddefend against alleged 2 violations by pointing to crossover voting patterns and to effective crossover districts. Those can be evidence, for example, of diminished bloc voting under the third factor or of equal political opportunity under the 2 totality-of-the-circumstances analysis. And if there were a showing that a State intentionally drew district lines in order to destroy otherwise effective crossover districts, that would raise serious questions under both the Fourteenth and Fifteenth Amendments. See v. Bossier School Bd., ; Brief for United States as Amicus Curiae 13-14. There is no evidence of discriminatory intent in this case, however. Our holding recognizes only that there is no support for the claim that 2 can require the creation of crossover districts in the first instance. Petitioners claim the majority-minority rule is inconsistent with 5, but we rejected a similar argument in The inquiries under 2 and 5 are different. Section 2 concerns minority groups' opportunity "to elect representatives of their choice," 42 U.S.C. 1973(b) ( ed.), while the more stringent 5 asks whether a change has the purpose or effect of "denying or abridging the right to vote," 1973c. See ; Bossier In we held that although the presence of influence districts is relevant for the 5 retrogression analysis, "the lack of such districts cannot establish a 2 violation." ; see also -, The same analysis applies for crossover districts: Section 5 "leaves room" for States to employ crossover districts, at but 2 does not require them. IV Some commentators suggest that racially polarized voting is waningas evidenced by, for example, the election of minority candidates where a majority of voters are white. See Note, The Future of Majority-Minority Districts in Light of Declining Racially Polarized Voting, 116 Harv. L.Rev. 2208, 2209 ; see also ; Pildes 1529-1539; Bullock & Dunn, The Demise of Racial Districting and the Future of Black Representation, 48 Emory L.J. 09 Still, racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions; and 2 must be interpreted to ensure
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Justice White
| 1,970 | 6 |
majority
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Parker v. North Carolina
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https://www.courtlistener.com/opinion/108139/parker-v-north-carolina/
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At about 11 p. m. on July 16, 1964, petitioner was arrested after entering the yard of a home where a burglary and rape had been committed four days earlier. Petitioner, a Negro boy then 15 years old, was taken to the police station and was questioned for one or two hours. After the questioning, petitioner was placed alone in a dimly lit cell for the remainder of the night. Although petitioner refused to give even his name during the questioning, the police eventually determined his identity and notified petitioner's mother the next day between 3:30 and 4:30 a. m. That morning, petitioner was given drinking water and was then questioned by the police; petitioner almost immediately confessed to the burglary and rape committed several days earlier at the house where he had been arrested. Shortly thereafter, *792 an attorney retained by petitioner's mother came to the police station and talked with petitioner. Petitioner told the attorney that the confession had not been prompted by threats or promises and that he had not been frightened when he made the statement to the police. Petitioner was indicted for first-degree burglary, an offense punishable by death under North Carolina law.[1] Petitioner's retained attorney discussed with petitioner and his mother the nature and seriousness of the charge. In due course, petitioner and his mother signed written statements authorizing the entry of a plea of guilty. Both petitioner and his mother were aware at the time they signed the authorization for the guilty plea that, if the plea was accepted, petitioner would receive the mandatory sentence of life imprisonment.[2] The prosecutor *793 and the trial judge accepted the plea. In accepting the plea on August 18, 1964, the trial court asked the petitioner if the plea was made in response to any promise or threat and petitioner answered in the negative; petitioner affirmed that he tendered the plea "freely without any fear or compulsion."[3] Upon acceptance of the plea, petitioner was sentenced to life imprisonment. In 1967, petitioner, assisted by counsel, filed a petition under the North Carolina Post-Conviction Hearing Act[4] to obtain relief from his conviction. In his petition, Parker urged that his plea of guilty was the product of a coerced confession and that the indictment to which *794 he pleaded was invalid because members of his race had been systematically excluded from the grand jury which returned the indictment. After a hearing, the Superior Court of Halifax County found that there was no deliberate exclusion of Negroes from the grand jury that indicted petitioner and that petitioner had freely admitted his
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Justice White
| 1,970 | 6 |
majority
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Parker v. North Carolina
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https://www.courtlistener.com/opinion/108139/parker-v-north-carolina/
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that indicted petitioner and that petitioner had freely admitted his guilt and had pleaded guilty "freely, voluntarily, without threat, coercion or duress" The Court of Appeals of North Carolina, the highest state court in which petitioner could seek review,[5] affirmed the conviction after reviewing not only the claims presented to the lower court but also the additional assertion by petitioner that his guilty plea was involuntary because North Carolina statutes at that time allowed a defendant to escape the possibility of a death penalty on a capital charge by pleading guilty to that charge. 2 N. C. App. 27, We granted certiorari, to consider petitioner's federal constitutional claims. For the reasons presented below, we affirm. I Parker would have us hold his guilty plea involuntary and therefore invalid for two reasons: first, because it was induced by a North Carolina statute providing a maximum penalty in the event of a plea of guilty lower than the penalty authorized after a verdict of guilty by a jury; and, second, because the plea was the product of a coerced confession given to the police shortly after petitioner was arrested. Neither reason is sufficient to warrant setting aside Parker's plea. It may be that under United it was unconstitutional to impose the death penalty under the statutory framework which existed *795 in North Carolina at the time of Parker's plea.[6] Even so, we determined in Brady v. United States, ante, p. 742, that an otherwise valid plea is not involuntary because induced by the defendant's desire to limit the possible maximum penalty to less than that authorized if there is a jury trial. In this respect we see nothing to distinguish Parker's case from Brady's. Nor can we accept the claim that the plea was infirm because it was the product of a coerced confession. According to Parker's testimony at the post-conviction hearing, he was denied food and water, promised unspecified help if he confessed, and denied counsel's advice when he requested it. In the record, however, was an abundance of evidence contradicting Parker's claim of coercion: Parker's statements to his attorney soon after his interrogation that there had been no threats or promises and that he had not been afraid, his similar declarations in his sworn statement authorizing his plea,[7] his answers to the trial judge at the time the plea was accepted,[8] and his failure to complain of any mistreatment by the police until many months after he began serving his sentence. The North Carolina courts accordingly refused to credit his testimony and concluded that his confession was a free and
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Justice White
| 1,970 | 6 |
majority
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Parker v. North Carolina
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https://www.courtlistener.com/opinion/108139/parker-v-north-carolina/
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testimony and concluded that his confession was a free and voluntary act. *796 We would in any event be reluctant to question the judgment of the state courts in this respect; but we need not evaluate the voluntariness of petitioner's confession since even if the confession should have been found involuntary, we cannot believe that the alleged conduct of the police during the interrogation period was of such a nature or had such enduring effect as to make involuntary a plea of guilty entered over a month later. Parker soon had food and water, the lack of counsel was immediately remedied, and there was ample opportunity to consider the significance of the alleged promises. After the allegedly coercive interrogation, there were no threats, misrepresentations, promises, or other improper acts by the State. Parker had the advice of retained counsel and of his family for the month before he pleaded. The connection, if any, between Parker's confession and his plea of guilty had "become so attenuated as to dissipate the taint." ; Wong As far as this record reveals, the guilty plea was Parker's free and voluntary act, the product of his own choice, just as he affirmed it was when the plea was entered in open court. II On the assumption that Parker's confession was inadmissible, there remains the question whether his plea, even if voluntary, was unintelligently made because his counsel mistakenly thought his confession was admissible. As we understand it, Parker's position necessarily implies that his decision to plead rested on the strength of the case against him: absent the confession, his chances of acquittal were good and he would have chosen to stand trial; but given the confession, the evidence was too strong and it was to his advantage to plead guilty and *797 limit the possible penalty to life imprisonment.[9] On this assumption, had Parker and his counsel thought the confession inadmissible, there would have been a plea of not guilty and a trial to a jury. But counsel apparently deemed the confession admissible and his advice to plead guilty was followed by his client. Parker now considers his confession involuntary and inadmissible. The import of this claim is that he suffered from bad advice and that had he been correctly counseled he would have gone to trial rather than enter a guilty plea. He suggests that he is entitled to plead again, a suggestion that we reject. For the reasons set out in McMann v. Richardson, ante, p. 759, even if Parker's counsel was wrong in his assessment of Parker's confession, it does not follow
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Justice White
| 1,970 | 6 |
majority
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Parker v. North Carolina
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https://www.courtlistener.com/opinion/108139/parker-v-north-carolina/
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in his assessment of Parker's confession, it does not follow that his error was sufficient to render the plea unintelligent and entitle Parker to disavow his admission in open court that he committed the offense with which he was charged.[10] Based on the facts of record relating to Parker's confession and guilty plea, which we have previously detailed, we think the advice he received was well within the range of competence required of attorneys *798 representing defendants in criminal cases. Parker's plea of guilty was an intelligent plea not open to attack on the grounds that counsel misjudged the admissibility of Parker's confession. III We also have before us the question whether the indictment to which Parker pleaded is invalid because members of his race were allegedly systematically excluded from the grand jury that returned the indictment. The North Carolina Court of Appeals refused to consider the claim since under North Carolina law an objection to the composition of the grand jury must be raised by motion to quash the indictment prior to the entry of the guilty plea.[11] Because Parker had failed to raise his objection in timely fashion, relief was unavailable. This state rule of practice would constitute an adequate state ground precluding our reaching the grand jury issue if this case were here on direct review. See We are under similar constraint when asked to review a state court decision holding that the same rule of practice requires denial of collateral relief. Whether the question of racial exclusion in the selection of the grand jury is open in a federal habeas corpus action we need not decide. Compare United States ex rel. (C. A. 5th Cir.), cert. denied, with cert. denied, See also The North Carolina Court of Appeals correctly concluded that petitioner's plea of guilty was intelligent and voluntary, and there was an adequate basis in North Carolina procedural law for the North Carolina Court of Appeals' refusal to consider the claim of racial exclusion in the composition of the grand jury that indicted petitioner. Affirmed. MR.
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Justice Thomas
| 2,015 | 1 |
second_dissenting
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Rodriguez v. United States
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https://www.courtlistener.com/opinion/2795278/rodriguez-v-united-states/
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Ten years ago, we explained that “conducting a dog sniff [does] not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reason- able manner.” (2005). The only question here is whether an officer exe- cuted a stop in a reasonable manner when he waited to conduct a dog sniff until after he had given the driver a written warning and a backup unit had arrived, bringing the overall duration of the stop to 29 minutes. Because the stop was reasonably executed, no Fourth Amendment violation occurred. The Court’s holding to the contrary cannot be reconciled with our decision in or a number of common police practices. It was also unneces- sary, as the officer possessed reasonable suspicion to continue to hold the driver to conduct the dog sniff. I respectfully dissent. I The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U. S. Const., Amdt. 4. As the text indicates, and as we 2 RODRIGUEZ v. UNITED STATES THOMAS, J., dissenting have repeatedly confirmed, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” Brigham v. Stuart, We have defined rea- sonableness “in objective terms by examining the totality of the circumstances,” and by considering “the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing,” v. Lago Vista, (internal quotation marks omitted). When traditional protections have not provided a definitive answer, our precedents have “ana- lyzed a search or seizure in light of traditional standards of reasonableness by assessing, on the one hand, the de- gree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the pro- motion of legitimate governmental interests.” Virginia v. (internal quotation marks omitted). Although a traffic stop “constitutes a ‘seizure’ of ‘per- sons’ within the meaning of [the Fourth Amendment],” such a seizure is constitutionally “reasonable where the police have probable cause to believe that a traffic viola- tion has occurred.” 809–810 But “a seizure that is lawful at its incep- tion can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution.” Because Rodriguez does not dispute that Officer Struble had probable cause to stop him, the only question is whether the stop was otherwise executed in a reasonable manner. See Brief for Appellant in No. 13–1176 (CA8), p. 4, n. 2. I easily conclude that it was. Approximately 29 minutes passed from the
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Justice Thomas
| 2,015 | 1 |
second_dissenting
|
Rodriguez v. United States
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https://www.courtlistener.com/opinion/2795278/rodriguez-v-united-states/
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conclude that it was. Approximately 29 minutes passed from the time Officer Struble stopped Rodriguez until his narcotics-detection dog alerted to the presence of drugs. That amount of time is hardly out of the ordinary for a traffic stop by a single officer of a vehi- Cite as: 575 U. S. (2015) 3 THOMAS, J., dissenting cle containing multiple occupants even when no dog sniff is involved. See, e.g., United (CA6 2007) (22 minutes); United States v. Barragan, 379 F.3d 524 (approximately 30 minutes). During that time, Officer Struble conducted the ordinary activities of a traffic stop—he approached the vehicle, questioned Rodriguez about the observed violation, asked Pollman about their travel plans, ran serial warrant checks on Rodriguez and Pollman, and issued a written warning to Rodriguez. And when he decided to conduct a dog sniff, he took the precaution of calling for backup out of concern for his safety. See ; see also (per curiam) (officer safety is a “legitimate and weighty” con- cern relevant to reasonableness). As makes clear, the fact that Officer Struble waited until after he gave Rodriguez the warning to con- duct the dog sniff does not alter this analysis. Because “the use of a well-trained narcotics-detection dog gen- erally does not implicate legitimate privacy interests,” 543 U.S., at 409, “conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner,” at The stop here was “lawful at its inception and other- wise executed in a reasonable manner.” As in Ca- balles, “conducting a dog sniff [did] not change the charac- ter of [the] traffic stop,” ib and thus no Fourth Amendment violation occurred. II Rather than adhere to the reasonableness requirement that we have repeatedly characterized as the “touchstone of the Fourth Amendment,” Brigham at the majority constructed a test of its own that is incon- sistent with our precedents. 4 RODRIGUEZ v. UNITED STATES THOMAS, J., dissenting A The majority’s rule requires a traffic stop to “en[d] when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Ante, at 5. “If an officer can complete traffic-based inquiries expeditiously, then that is the amount of time reasonably required to complete the stop’s mission” and he may hold the individual no longer. Ante, at 8 (internal quotation marks and altera- tions omitted). The majority’s rule thus imposes a one- way ratchet for constitutional protection linked to the characteristics of the individual officer conducting the stop: If a driver is stopped by a particularly efficient of- ficer, then he
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second_dissenting
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Rodriguez v. United States
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is stopped by a particularly efficient of- ficer, then he will be entitled to be released from the traf- fic stop after a shorter period of time than a driver stopped by a less efficient officer. Similarly, if a driver is stopped by an officer with access to technology that can shorten a records check, then he will be entitled to be released from the stop after a shorter period of time than an individual stopped by an officer without access to such technology. I “cannot accept that the search and seizure protections of the Fourth Amendment are so variable and can be made to turn upon such trivialities.” (citations omitted). We have repeatedly explained that the reasonableness inquiry must not hinge on the characteris- tics of the individual officer conducting the seizure. We have held, for example, that an officer’s state of mind “does not invalidate [an] action taken as long as the cir- cumstances, viewed objectively, justify that action.” at 813 (internal quotation marks omitted). We have spurned theories that would make the Fourth Amendment “change with local law enforcement practices.” at 172. And we have rejected a rule that would require the offense establishing probable cause to be “closely related to” the offense identified by the arresting officer, as such a rule would make “the constitutionality of an arrest vary from place to place and from time to time, depending Cite as: 575 U. S. (2015) 5 THOMAS, J., dissenting on whether the arresting officer states the reason for the detention and, if so, whether he correctly identifies a general class of offense for which probable cause exists.” (internal quotation marks and citation omitted). In Devenpeck, a unanimous Court explained: “An arrest made by a knowl- edgeable, veteran officer would be valid, whereas an arrest made by a rookie in precisely the same circumstances would not. We see no reason to ascribe to the Fourth Amendment such arbitrarily variable protection.” The majority’s logic would produce similarly arbitrary results. Under its reasoning, a traffic stop made by a rookie could be executed in a reasonable manner, whereas the same traffic stop made by a knowledgeable, veteran officer in precisely the same circumstances might not, if in fact his knowledge and experience made him capable of completing the stop faster. We have long rejected inter- pretations of the Fourth Amendment that would produce such haphazard results, and I see no reason to depart from our consistent practice today. B As if that were not enough, the majority also limits the duration of the stop to the time it takes
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second_dissenting
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Rodriguez v. United States
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the duration of the stop to the time it takes the officer to complete a narrow category of “traffic-based inquiries.” Ante, at 8. According to the majority, these inquiries include those that “serve the same objective as enforce- ment of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.” Ante, at 6. Inquiries directed to “detecting evidence of ordinary criminal wrongdoing” are not traffic-related inquiries and thus cannot count toward the overall duration of the stop. (internal quotation marks and alteration omitted). The combination of that definition of traffic-related inquiries with the majority’s officer-specific durational limit produces a result demonstrably at odds with our 6 RODRIGUEZ v. UNITED STATES THOMAS, J., dissenting decision in expressly anticipated that a traffic stop could be reasonably prolonged for officers to engage in a dog sniff. We explained that no Fourth Amendment violation had occurred in where the “duration of the stop was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop,” but suggested a different result might attend a case “involving a dog sniff that occurred during an unrea- sonably prolonged traffic stop.” 543 U.S., – (emphasis added). The dividing line was whether the overall duration of the stop exceeded “the time reasonably required to complete th[e] mission,” not, as the majority suggests, whether the duration of the stop “in fact” exceeded the time necessary to complete the traffic- related inquiries, ante, at 8. The majority’s approach draws an artificial line between dog sniffs and other common police practices. The lower courts have routinely confirmed that warrant checks are a constitutionally permissible part of a traffic stop, see, e.g., United (CA11 1999); United ; United (CA5 1993), and the majority confirms that it finds no fault in these measures, ante, at 6. Yet its reasoning suggests the opposite. Such warrant checks look more like they are directed to “detecting evidence of ordinary crimi- nal wrongdoing” than to “ensuring that vehicles on the road are operated safely and responsibly.” Ante, at 6 (internal quotation marks and alteration omitted). Per- haps one could argue that the existence of an outstanding warrant might make a driver less likely to operate his vehicle safely and responsibly on the road, but the same could be said about a driver in possession of contraband. A driver confronted by the police in either case might try to flee or become violent toward the officer. But under the majority’s analysis, a dog sniff, which is directed at uncov- Cite as: 575 U. S. (2015) 7 THOMAS, J., dissenting ering that
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Justice Thomas
| 2,015 | 1 |
second_dissenting
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Rodriguez v. United States
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https://www.courtlistener.com/opinion/2795278/rodriguez-v-united-states/
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575 U. S. (2015) 7 THOMAS, J., dissenting ering that problem, is not treated as a traffic-based in- quiry. Warrant checks, arguably, should fare no better. The majority suggests that a warrant check is an ordinary inquiry incident to a traffic stop because it can be used “ ‘to determine whether the apparent traffic violator is wanted for one or more previous traffic offenses.’ ” Ante, at 6 (quoting 4 W. LaFave, Search and Seizure p. 516 (5th ed. 2012)). But as the very treatise on which the majority relies notes, such checks are a “manifest[ation of] the ‘war on drugs’ motivation so often underlying [routine traffic] stops,” and thus are very much like the dog sniff in this case. at 507–508. Investigative questioning rests on the same basis as the dog sniff. “Asking questions is an essential part of police investigations.” And the lower courts have routinely upheld such questioning dur- ing routine traffic stops. See, e.g., United ; United The majority’s rea- soning appears to allow officers to engage in some ques- tioning aimed at detecting evidence of ordinary criminal wrongdoing. Ante, at 5. But it is hard to see how such inquiries fall within the “seizure’s ‘mission’ [of ] ad- dress[ing] the traffic violation that warranted the stop,” or “attend[ing] to related safety concerns.” Its reason- ing appears to come down to the principle that dogs are different. C On a more fundamental level, the majority’s inquiry elides the distinction between traffic stops based on prob- able cause and those based on reasonable suspicion. Probable cause is the “traditional justification” for the seizure of a person. (emphasis deleted); see also 8 RODRIGUEZ v. UNITED STATES THOMAS, J., dissenting 207–208 (1979). This Court created an exception to that rule in 2 U.S. 1 permitting “police officers who suspect criminal activity to make limited intrusions on an individual’s personal security based on less than probable cause,” Michigan v. Summers, 452 U.S. 692, 698 (1981). Reasonable suspicion is the justification for such seizures. Prado Navarette v. California, 572 U. S. (slip op., at 3). Traffic stops can be initiated based on probable cause or reasonable suspicion. Although the Court has commented that a routine traffic stop is “more analogous to a so-called ‘Terry stop’ than to a formal arrest,” it has rejected the notion “that a traffic stop supported by probable cause may not exceed the bounds set by the Fourth Amendment on the scope of a Terry stop.” Berkemer v. McCarty, 468 U.S. 420, 4, and n. 29 (1984) (citation omitted). Although all traffic stops must be executed reasonably,
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second_dissenting
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Rodriguez v. United States
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https://www.courtlistener.com/opinion/2795278/rodriguez-v-united-states/
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(citation omitted). Although all traffic stops must be executed reasonably, our precedents make clear that traffic stops justified by reasonable suspicion are subject to additional limitations that those justified by probable cause are not. A traffic stop based on reasonable suspicion, like all Terry stops, must be “justified at its inception” and “reasonably related in scope to the circumstances which justified the interfer- ence in the first place.” 542 U.S., at (internal quotation marks omitted). It also “cannot continue for an excessive period of time or resemble a traditional arrest.” at –186 (citation omitted). By contrast, a stop based on probable cause affords an officer considerably more leeway. In such seizures, an officer may engage in a warrantless arrest of the driver, 532 U.S., at 354, a warrantless search incident to arrest of the driver, Riley v. California, 573 U. S. (slip op., at 5), and a warrantless search incident to arrest of the vehicle if it is reasonable to believe evidence relevant to the crime of arrest might be found there, Arizona v. Gant, 556 U.S. 332, 335 Cite as: 575 U. S. (2015) 9 THOMAS, J., dissenting The majority casually tosses this distinction aside. It asserts that the traffic stop in this case, which was undis- putedly initiated on the basis of probable cause, can last no longer than is in fact necessary to effectuate the mis- sion of the stop. Ante, at 8. And, it assumes that the mission of the stop was merely to write a traffic ticket, rather than to consider making a custodial arrest. Ante, at 5. In support of that durational requirement, it relies primarily on cases involving Terry stops. See ante, at 5–7 (analyzing “stop and frisk” of passenger in a vehicle temporarily seized for a traffic violation); United States v. Sharpe, 470 U.S. 675 (1985) (analyzing seizure of individuals based on suspicion of marijuana trafficking); Florida v. Royer, 460 U.S. 491 (1983) (plurality opinion) (analyzing seizure of man walking through airport on suspicion of narcotics activity)). The only case involving a traffic stop based on probable cause that the majority cites for its rule is But, that decision provides no support for today’s restructuring of our Fourth Amendment jurisprudence. In the Court made clear that, in the context of a traffic stop supported by probable cause, “a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner.” 543 U.S., at To be sure, the dissent in would have “appl[ied] Terry’s reasonable-relation test to determine whether the canine
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second_dissenting
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Rodriguez v. United States
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have “appl[ied] Terry’s reasonable-relation test to determine whether the canine sniff impermissibly ex- panded the scope of the initially valid seizure of” But even it conceded that the majority had “implicitly [rejected] the application of Terry to a traffic stop converted, by calling in a dog, to a drug search.” By strictly limiting the tasks that define the durational scope of the traffic stop, the majority accomplishes today what the dissent could not: strictly limiting the 10 RODRIGUEZ v. UNITED STATES THOMAS, J., dissenting scope of an officer’s activities during a traffic stop justified by probable cause. In doing so, it renders the difference between probable cause and reasonable suspicion virtually meaningless in this context. That shift is supported nei- ther by the Fourth Amendment nor by our precedents interpreting it. And, it results in a constitutional frame- work that lacks predictability. Had Officer Struble ar- rested, handcuffed, and taken Rodriguez to the police station for his traffic violation, he would have complied with the Fourth Amendment. See at 354– 355. But because he made Rodriguez wait for seven or eight extra minutes until a dog arrived, he evidently committed a constitutional violation. Such a view of the Fourth Amendment makes little sense. III Today’s revision of our Fourth Amendment jurispru- dence was also entirely unnecessary. Rodriguez suffered no Fourth Amendment violation here for an entirely inde- pendent reason: Officer Struble had reasonable suspicion to continue to hold him for investigative purposes. Our precedents make clear that the Fourth Amendment per- mits an officer to conduct an investigative traffic stop when that officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Prado Navarette, 572 U. S., at (slip op., at 3) (internal quotation marks omitted). Reasonable suspicion is determined by looking at “the whole picture,” ib taking into account “the factual and practical considera- tions of everyday life on which reasonable and prudent men, not legal technicians, act,” (internal quotation marks omitted). Officer Struble testified that he first became suspicious that Rodriguez was engaged in criminal activity for a number of reasons. When he approached the vehicle, he Cite as: 575 U. S. (2015) 11 THOMAS, J., dissenting smelled an “overwhelming odor of air freshener coming from the vehicle,” which is, in his experience, “a common attempt to conceal an odor that [people] don’t want to be smelled by the police.” App. 20–21. He also observed, upon approaching the front window on the passenger side of the vehicle, that Rodriguez’s passenger, Scott Pollman, appeared nervous. Pollman pulled his hat down low, puffed nervously
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second_dissenting
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Rodriguez v. United States
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appeared nervous. Pollman pulled his hat down low, puffed nervously on a cigarette, and refused to make eye contact with him. The officer thought he was “more nerv- ous than your typical passenger” who “do[esn’t] have anything to worry about because [t]hey didn’t commit a [traffic] violation.” Officer Struble’s interactions with the vehicle’s occu- pants only increased his suspicions. When he asked Rod- riguez why he had driven onto the shoulder, Rodriguez claimed that he swerved to avoid a pothole. But that story could not be squared with Officer Struble’s observation of the vehicle slowly driving off the road before being jerked back onto it. And when Officer Struble asked Pollman where they were coming from and where they were going, Pollman told him they were traveling from Omaha, Ne- braska, back to Norfolk, Nebraska, after looking at a vehicle they were considering purchasing. Pollman told the officer that he had neither seen pictures of the vehicle nor confirmed title before the trip. As Officer Struble explained, it “seemed suspicious” to him “to drive approximately two hours late at night to see a vehicle sight unseen to possibly buy it,” and to go from Norfolk to Omaha to look at it because “[u]sually people leave Omaha to go get vehicles, not the other way around” due to higher Omaha taxes, These facts, taken together, easily meet our standard for reasonable suspicion. “[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion,” and both vehicle occupants were engaged in such conduct. The 12 RODRIGUEZ v. UNITED STATES THOMAS, J., dissenting officer also recognized heavy use of air freshener, which, in his experience, indicated the presence of contraband in the vehicle. “[C]ommonsense judgments and inferences about human behavior” further support the officer’s conclusion that Pollman’s story about their trip was likely a cover story for illegal activity. Taking into account all the relevant facts, Officer Struble possessed reasonable suspicion of criminal activity to conduct the dog sniff. Rodriguez contends that reasonable suspicion cannot exist because each of the actions giving rise to the officer’s suspicions could be entirely innocent, but our cases easily dispose of that argument. Acts that, by themselves, might be innocent can, when taken together, give rise to reason- able suspicion. United 274–275 Terry is a classic example, as it involved two individuals repeatedly walking back and forth, looking into a store window, and conferring with one another as well as with a third 2 U.S., at 6. The Court reasoned that this “series of acts, each of them perhaps innocent in itself, together warranted further investi- gation,”
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