Fault Lines
11 December 2017

Founder of Fascism Forever a Pretty Good Pick

February 3, 2017 (Fault Lines) —  It really didn’t matter who Trump appointed. There was going to be some sort of knee-jerk opposition. And that opposition was going to be based more on how unfair it felt that Merrick Garland wasn’t appointed than how good or bad the appointee turned out to be. Now, the best opposition the minority can offer to the appoint of Gorsuch is that he allegedly founded a “Fascism Forever” club at his prep school. (A joke entry in his high school yearbook)

But let me say this. In the criminal defense community, we should regret losing out on Merrick Garland the same way a man might regret the painless passing of his bladder stones. In case after case, he ruled for the government, even when supposedly “conservative” justices pushed for more process.

United States v. Williams is a pretty classic example—one that Garland joined in full but did not author. The big issue on appeal was whether the defendant had a firearm when he fled from police after a traffic stop. The only evidence of this was that an officer thought he saw the defendant reach for something at his belt and then run. The officer heard something metallic clank as the defendant ran into a guardrail along of a footbridge while escaping, and from this, he suspected that the defendant had discarded the weapon.

When Williams was caught, he told the officer that he had gotten rid of his “stash.” But police couldn’t find any drugs or paraphernalia in the area below the footbridge. All they could find was a broken handgun and some ammunition. There were no finger prints.

This was some pretty weak sauce, so the first trial ended in a hung jury. Pretty tough to convict, after all, when no one had actually ever seen the defendant holding a gun.

But thankfully, “training and expertise” came to the rescue. On redirect examination of the officer, the officer was asked whether “people who use… drugs … carry weapons for protection.” Of course the officer said yes, and the trial court then prevented the defense attorney from a second chance at cross-examination. This would have been helpful, because the “expert” in question had fewer than a dozen firearms arrests under his belt.

So the Court found what it almost always finds in these cases—harmless error. Even though a jury had previously deadlocked on the exact same facts and the only salient issue that differed was this unconfronted testimony about how drug users carry guns. It made this finding because police officers are just so much more credible than the people they police.

There was a dissent pointing out that it’s tough to claim harmless error with a previous mistrial. But harmless error was the path of least resistance, and Garland went along with it even when it didn’t make much sense.

This was a consistent theme of Garland’s jurisprudence. He tended to find that most errors were harmless—like the case of a prosecutor who falsely told a jury that the owner of a car packed with narcotics was the defendant’s girlfriend. This was, he said, just an innocent misstatement of facts that didn’t affect the verdict.

By contrast, Neil Gorsuch may end up being a diamond in the rough. As already noted, he has made some excellent rulings: attempting to hold the government to its burden in a felon firearm case and disapproving of a police officer who arrested a rowdy seventh grader. In one notable 4th Amendment case, he called out his colleagues for making arguments for the government that the government was itself disavowing, namely, that homeowners have to put up physical barriers to revoke the implied license for officers to come knock on their door:

Not only did the government fail to present this theory anywhere in this appeal, it expressly disavowed it, telling us repeatedly that walls and fences (yes, even moats) cannot keep its agents from entering the curtilage to conduct a knock and talk. And it’s a pretty rare day when we pursue an argument for a party that the party has so avidly disowned.

In United States v. Carlos, the only issue was whether placing a heap of no trespassing signs meant that you didn’t want trespassers. Somehow, a majority of the Tenth Circuit panel felt that the no trespassing signs wouldn’t mean anything to a passing newspaper purveyor or Girl Scout troupe. As a result, a group of officers should have felt absolutely free to knock and engage in a casual conversation with the homeowners.

The real worry, as Gorsuch pointed out, is that knock and talks have become an essential way for police to gain consent when they don’t have enough information to get a warrant. And if a no trespassing sign is enough to avoid and unpleasant and coercive encounter with police, then people everywhere will put those signs up to avoid exactly that sort of situation. But what police are really seeking with knock and talks is an irrevocable invitation to come bother you while you sit down at dinner, what Gorsuch calls an “easement.”

Gorsuch sarcastically suggests that the Court wouldn’t give a no trespassing sign any effect unless it said this:

THE IMPLIED LICENSE DISCUSSED BY THE UNITED STATES SUPREME COURT IN BREARD v. ALEXANDRIA, 341 U.S. 622 (1951) AND FLORIDA v. JARDINES, 133 S. CT. 1409 (2013) IS HEREBY REVOKED

Where the mark of Garland’s work has always been deference to executive authority and believe in law enforcement, Gorsuch wrote a dissent in Carlos that suggests something different: that our rights to be free from government interference in our homes are more important than whatever minor law enforcement benefit there might be to come bother us.

This may be the sort of person we need. The sort who can show an unflinching dedication to constitutional principles even when they aren’t terribly popular in his circuit. Buried in the midst of a slew of bad presidential decisions, Gorsuch likely is, and will remain, my favorite fascist.

2 Comments on this post.

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  • Jim
    3 February 2017 at 12:12 pm - Reply

    “THE IMPLIED LICENSE DISCUSSED BY THE UNITED STATES SUPREME COURT IN BREARD v. ALEXANDRIA, 341 U.S. 622 (1951) AND FLORIDA v. JARDINES, 133 S. CT. 1409 (2013) IS HEREBY REVOKED”

    Ima get that in bronze and mount on my entry doors.

  • Crime and punishment roundup – Overlawyered
    7 February 2017 at 6:45 am - Reply

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