As a constitutional attorney, nothing annoys me more than when a federal court makes cooing noises about its respect for individual rights while still ruling against those rights. Supreme Court Justice Brett Kavanaugh does this frequently — like when he effusively praised the “extraordinary vision, tenacity, and grit” of the LGBTQ+ members’ movement while still ruling against their protection under the Civil Rights Act.
Judges will often pull this move — rubbing noses with the constitution before abandoning it like a disappointing cocktail — when they feel their orders might bring some spectacle or embarrassment, or when they feel the unthinking dregs of society (read: normal folks like you and me) won’t understand the sheer brilliance of their authoritarian logic.
But this time, I am not talking about the Supreme Court’s bad behavior. This time, in Caniglia v. Strom, the Supreme Court got it right. It feels like a big win for constitutional rights.
Briefly, here are the facts as acknowledged by the court for purposes of appeal**: a married couple was in an argument during which the husband produced an unloaded gun and told the wife [paraphrased], “You might as well shoot me and get this all over with.” He indicated later to police that he was being dramatic and was tired of constantly arguing with his spouse. The following morning, police took the husband for an involuntary mental health examination and, after he was gone, went into his home and confiscated two firearms without a warrant and without permission. The husband sued, alleging (among other things) a violation of his Fourth Amendment rights.
The Supreme Court held that the search and seizure were improper and that there’s no “community caretaking” exception to the Fourth Amendment’s warrant requirement. In other words, cops need to get a warrant (or consent) before entering a person’s home to perform a search or seizure, or else their actions must fall under one of the long-recognized warrant exceptions (such “exigent circumstances,” where police reasonably believe that someone in the home is in need of emergency aid).
But wait — isn’t that how it’s always been? How can this be a ‘big win’ for the Fourth Amendment when the ruling simply maintains the jurisprudential status quo as we all understood it?
That’s because the bad behavior in this case came from the First Circuit Court of Appeal — the federal appellate court from which Caniglia v. Strom was eventually appealed to SCOTUS. The First Circuit opinion, authored by Judge Bruce Selya, attempted to drastically expand the scope of ‘reasonable’ police searches by holding that there is a broad “community caretaking” exception to the Fourth Amendment. This is an exception that has been recognized outside the home, like when cops have to do a warrantless search of an impounded vehicle. But it has not been broadly applied to warrantless searches inside the home, for an obvious reason: one linchpin of the Fourth Amendment is that a person’s home merits the most constitutional protection from unreasonable search and seizure. (The inviolability of a person’s home is where concepts like the Castle Doctrine come from, and the venue where a search is performed has always been a critical distinction in Fourth Amendment analysis.)
Judge Selya noted that this was a matter of first impression for the court and that the opinion represented a modification of existing common law doctrines regarding the Fourth Amendment. He noted that this was a grant of previously-unrecognized powers to police. He recognized this new framework would allow police to search a home without a warrant if they were worried that the occupant poses some generalized threat to community safety. And that, to me, would be a terrifying scheme.
Selya’s opinion was a momentous ruling that could’ve invited a host of abusive police actions within private citizens’ homes (and beyond). Perhaps sensing a potential backlash, he concluded the opinion with a classic “No really, I love the constitution!” tap dance:
“In upholding the defendants’ actions under the community caretaking doctrine, we in no way trivialize the constitutional significance of warrantless entries into a person’s residence, disruption of the right of law-abiding citizens to keep firearms in their homes, or involuntary seizures of handguns. By the same token, though, we also remain mindful that police officers have a difficult job — a job that frequently must be carried out amidst the push and pull of competing centrifugal and centripetal forces.”
Did you catch that? The First Circuit respects the Fourth Amendment, but y’all. Come on. Being a cop is hard. (I’m not rolling my eyes, YOU are rolling your eyes.)
So, that’s the story. The Supreme Court granted cert and reversed the First Circuit. Procedurally, this means the case goes back down to the lower court to be tried, since the original ruling was to dismiss the case altogether. And while that is a good and important outcome, it is also bothersome. It bothers me that merely retaining existing protections against police abuses feels like a win. It bothers me that the assortment of concurring conservatives (like Kavanaugh and Gorsuch) seem open to a ‘backdoor’ community caretaking exception implemented through sundry state laws. But considering the composition of the court, I suppose we should take what we can get.
So for now, three cheers for the Fourth Amendment! Hip hip, DO NOT CONSENT TO SEARCHES OF YOUR HOME OR TALK TO POLICE WITHOUT A LAWYER PRESENT hooray!
**NOTE: While there are disputes about some of the details, those disputes are irrelevant based on the procedural posture of the case. The lower court never had a chance to pin down the facts because the case was dismissed on summary judgment. When that happens, the appellate courts are required by law to make certain assumptions about the facts (by taking them in the light most favorable to the plaintiff in this case).