Doe v. Milward & Fourth Amendment Intent

There is a post over at the Volokh Conspiracy on a new 11th Circuit ruling raising an interesting fourth-amendment question in a rather delicate factual context. The dispute is, in essence, whether, for purposes of the fourth amendment, the government has to be looking for something before a given undertaking constitutes a search.

Judge Pryor, writing for the 11th Circuit, says "no." The case involves a fourth-amendment claim by state-school sonography students who claim they were coerced into undergoing transvaginal ultrasounds. Judge Pryor writes:

Inserting a probe into a woman’s vagina is plainly a search when performed by the government. Where the government physically intrudes on a subject enumerated within the Fourth Amendment, such as a person, a search “has undoubtedly occurred.” United States v. Jones, 132 S. Ct. 945, 950–51 & n.3 (2012). The Supreme Court has long recognized that compelled blood and urine tests implicate the Fourth Amendment. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989) (citing Winston v. Lee, 470 U.S. 753, 760 (1985); Schmerber v. California, 384 U.S. 757, 767–68 (1966)). Even under the broader test that a “search” is “any governmental act that violates a reasonable expectation of privacy,” O’Rourke v. Hayes, 378 F.3d 1201, 1207 (11th Cir. 2004), each ultrasound clearly constituted a search. “[I]t is obvious” that the “compelled intrusio[n] into the body . . . infringes an expectation of privacy that society is prepared to recognize as reasonable.” Skinner, 489 U.S. at 616 (internal quotation marks and citations omitted). 

Doe v. Milward, --- F.3d ---, No. 15-15240, slip op. at  10 (11th Cir., Oct. 4, 2016).

Professor Ker does not expressly disagree, but he is not convinced:

... I think there is a sort of Fourth Amendment intent requirement under Footnote 5 of United States v. Jones. Here’s the key language from Jones with my emphasis added:

The concurrence notes that post-Katz we have explained that “‘an actual trespass is neither necessary nor sufficient to establish a constitutional violation.’ ” Post, at 6 (quoting United States v. Karo, 468 U. S. 705, 713 (1984)). That is undoubtedly true, and undoubtedly irrelevant. Karo was considering whether a seizure occurred, and as the concurrence explains, a seizure of property occurs, not when there is a trespass, but “when there is some meaningful interference with an individual’s possessory interests in that property.” Post, at 2 (internal quotation marks omitted). Likewise with a search. 

Trespass alone does not qualify [to be a search], but there must be conjoined with that what was present here: an attempt to find something or to obtain information.

Related to this, and similarly irrelevant, is the concurrence’s point that, if analyzed separately, neither the installation of the device nor its use would constitute a Fourth Amendment search. See ibid. Of course not. A trespass on “houses” or “effects,” or a Katz invasion of privacy, is not alone a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy.

Is it possible to square Jones with Soldal['s statement that the reason an officer might enter a house is irrelevant]? I think so, because a government agent can have a purpose to obtain information without a broader investigative or administrative purpose. The question of investigative or administrative purpose is arguably more an issue of motive than intent. It asks, “Why did the officer want to obtain the information?” That is distinct from whether the officer intended to obtain information at all.

Respectfully, Professor Kerr has missed the distinction, although he may have done so because there is a missing term in Judge Pryor's opinion. "Inserting a probe into a woman's vagina," without more, is not plainly a search. It is plainly a trespass. In order for the act to be a search, the probe, or the circumstances of its use, must be such as naturally tend to reveal something that is otherwise unknown. On balance, the more useful opinion is probably Florida v. Jardines, rather than Jones. There, the Court held that information-gathering conducted during a trespass was an unreasonable search, while noting its opinions "holding that the subjective intent of the officer is irrelevant." Florida v. Jardines, 569 U.S. 1, __ (2013).

An ultrasound, by its nature, is inquisitive: it reveals something otherwise concealed from view. The fourth amendment does not protect persons from unreasonable intrusion, but from unreasonable searches. The mere fact that the government might not care what it finds in the search in no way alters the inherent character of the act. Officers who enter a dwelling and empty all the drawers simply to harass the homeowner have "searched" the premises, even if they never had any intention of locating or carrying away evidence.

The same principle applies under the Milward facts: a state agent who performs a transvaginal ultrasound conducts a search of the subject's abdominal cavity, even if the agent remains indifferent to its contents. The result would be different if the subject were merely imposed upon with a disconnected probe: that activity would not be revelatory either in nature or effect. It would simply be a trespass. Judge Pryor would have strengthened his opinion if he had captured the distinction in the excerpted language.

Well that was not bright

The Apostolic Commissioner, who has never exactly smelled of roses, claims that recent reporting on the status of a lawsuit between himself and the Manelli family contained material misstatements. When one reports on a defamation case, it might behoove one to get the facts straight.

Now, I don't read Italian, so while I can click through the links from Rorate's original post on the topic back to the source at "Don Camillo's" blog, I cannot verify whether the translation of Fr. Volpi's most recent letter on the topic is an accurate summary of the original article. Notably, it does not track what Rorate itself originally posted: the new letter by Fr. Volpi quotes the original writer as claiming he "was sentenced." I do not see this phrase in Rorate's original piece (at least, it's not there now: I'm not digging through caches and the wayback machine to see what was originally there; apparently the original source has admitted that "sentenced" was a mistake, assuming Google Translate gives an accurate sense).

A few thoughts:

1. In the United States, the truth is an absolute defense to a defamation action.¹
2. Also in the United States, a public figure can prevail in a defamation action only by showing "'actual malice'---that is, [that the statement was made] with knowledge that it was false or with reckless disregard of whether it was false or not."²
3. European law is less protective of speech in general; the truth has not traditionally been an absolute defense and apparently remains not-a-defense in Italy.³
4. Thus, one can see why, perhaps, Fr. Volpi might have negotiated a settlement while still maintaining that his statement regarding the Manelli family "was no lie, and could easily be verified."⁴ In Italy, the truth of the statement is not a guaranty of victory at trial.
5. At the same time, it would be very unusual for one to enter into a settlement agreement that contained an actual admission of wrongdoing. Most settlement agreements expressly disclaim any such admission.
6. That the settlement was confirmed by a court order is not implausible, though: even in the U.S. a settlement may be incorporated into a final consent judgment. Since the settlement in the Volpi case was purportedly negotiated in court-ordered mediation, it would not be outside the realm of reasonableness for that to have occurred.
7. The defamation knife cuts both ways, of course: regarding Fr. Volpi's claim to be preparing a lawsuit of his own and rescission of the settlement agreement, one can say (a) that Rorate, to the extent its writers are situated in the U.S., is probably immune from any liability for its February 16, 2015, post, as Fr. Volpi is almost certainly a public or limited-public figure and Rorate's publication is unlikely to qualify as actually malicious; (b) that Don Camillo's potential liability would be governed by Italian law, which may be less forgiving; and (c) that while mileage may vary in Italy, Fr. Volpi would be unlikely to have grounds to rescind the settlement agreement under American legal principles unless the Don Camillo figure were under the Manelli family's control or he wrote what he did as a result of some conduct by them prohibited under the agreement.

P.S. (Feb. 23, 2015): It might go without saying, but in case it does not, my thoughts here are not on the merits of the Manelli suit against Fr. Volpi, nor of Fr. Volpi's claims against the Manelli family or anyone else. Opining on the merits would require knowledge of the true facts, which I lack. As for the matter in general, Fr. Volpi is the principal agent in what is, from all appearances, the profoundly unjust oppression of the F.F.I., a role for which he deserves opprobrium. That is true regardless of what legal claims he or anyone else might have.

---

1  See New York Times Co. v. Sullivan, 376 U.S. 254, 271 (1964).^↩
2  Id. at 279--80.^↩
3  International Press Institute, Key Findings: Defences in Defamation Cases, http://www.freemedia.at/ecpm/key-findings/defences-in-defamation-cases.html (last accessed February 19, 2015).^↩
4  Was the statement true? Who knows; I have no way of knowing and it is beyond my purposes here to consider the question.^↩

Estop

One sees "estopped to" and "estopped from." Which is right?

Well, both get you the maximum 10,000 hits that Westlaw can process on all-states/all-feds. The oldest result for "from" is McDonald v. King, 1 N.J.L. 432 (N.J. 1791). For "to," you have Holmes v. Kennedy, 1 Root 77 (Conn. 1775).

Bad Tennessee Decisions: State v. Marcum

The idea has been advanced recently that it is an attack on the independence of the judiciary to suggest that members of the appellate courts should be dismissed via retention election. I submit that most Tennessee appellate judges should be so dismissed, on the basis that our appellate courts routinely demonstrate legal reasoning so poor as to shock the conscience.

Here is an example: State v. Marcum, 109 S.W.3d 300 (Tenn. 2003). This is a criminal appeal involving the proper interpretation of a statute that is not exactly fit for mixed company, Tennessee Code Annotated § 39–13–501(7). That statute provides:

(7) “[Defined Term]” means [A], [B], [C], [D], or any other intrusion, however slight . . . .

In the statute, the terms that have replaced by letters are assorted acts. The Supreme Court holds, in Marcum, that act [C] can be committed without an "intrusion": "The phrase, 'or any other intrusion,' has no modifying effect upon the defined . . . acts. The word 'or,' as used in the statute, is a coordinating conjunction that functions merely to introduce a generic non-specific alternative."

This is nonsense. The word "or" is certainly disjunctive, but the court has read the word "other" out of the statute. The word "other" is certainly descriptive of the preceding list. Conversation would become impossible otherwise:

Q: Do you have any pets?
A: A dog, a cat, and a fish.
Q: Do you have any other animals?
A: A dog, a cat, and a fish.

Rinse, lather, repeat. The word "other" means that A, B, C, and D are all acts that involve "intrusion," but if the legislature left any off, they count too. Ejusdem generis and Noscitur a sociis both suggest this result: you do not read words in a statute in isolation. (Those principles also reinforce the conclusion that "intrusion" should be an element of each act, given the Defined Term, which, let us say, suggests such an element.) And each word in the statute should have a meaning. Deleting the word "other" yields precisely the result that the court reached: reaching the definition of each item without reference to the "intrusion" element. What we have here instead is sloppy, results-driven adjudication. If the court wants to adopt a "the sonofabitch had it coming" rule for criminal cases, let them do that and then take the consequences. 

A pox upon Thomson West

The publishing standards of the legal-book industry are a shambles. First of all, what sort of title is "Prosser, Wade and Schwartz's Torts"? And is it Prosser, Wade and Schwartz's Torts: Cases and Materials (as the cover suggests) or Cases and Materials: Prosser, Wade and Schwartz's Torts (as the title page suggests)? Or is it merely Torts: Cases and Materials (or perhaps Cases and Materials: Torts), with the names being merely decoration? And why is there no bastard title page?

You publish only a very few types of books. Do better. (We won't even mention the absurdities perpetrated in multi-volume updated works like Wright & Miller.)

Intiative Proponent Standing

One of the biggest consequences of the Hollingsworth opinion is that it provides a road map to short-circuiting initiative measures. All the state executive need do is decline to defend the measure in federal court, and the challenger will win by default. That poses a substantial challenge to those who regard the initiative as a valuable bulwark against government officials beholden to interests other than the public's.

I think the answer to those inquiries is on page 14 and 15 of the Hollingsworth opinion: if you want proponents to be able to defend initiative measures in federal lawsuits despite the governor's preference to the contrary, you need a statute deputizing the proponent for that purpose, akin to the statutes authorizing private attorneys general in qui tam actions, complete with some modicum of control and a fee-indemnification provision.

Look at what the Court says:

We recognized [in Arizonans for Official English] that a legislator authorized by state law to represent the State’s interest may satisfy standing requirements . . ., but noted that the Arizona committee and its members were “not elected representatives, and we [we]re aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” 

 [The California Supreme] Court never described petitioners as “agents of the people,” or of anyone else. . . . All that the California Supreme Court decision stands for is that, so far as California is concerned, petitioners may argue in defense of Proposition 8. This “does not mean that the proponents become de factopublic officials”; the authority they enjoy is “simply the authority to participate as parties in a court action and toassert legal arguments in defense of the state’s interest in the validity of the initiative measure.” That interest is by definition a generalized one, and it is precisely because proponents assert such interest that they lack standing under our precedents.

And petitioners are plainly not agents of the State—“formal” or otherwise. [Petitioners claimed below that i]t was their “unique legal status” as officialproponents---not an agency relationship with the people of California---that [provided them with standing].

More to the point, the most basic features of an agency relationship are missing here. Agency requires more than mere authorization to assert a particular interest. . . .

If the relationship between two persons is one of agency . . . , the agent owes a fiduciary obligation to the principal.” But petitioners owe nothing of the sort to the people of California.

Finally, the California Supreme Court stated that “[t]he question of who should bear responsibility for any attorney fee award . . . is entirely distinct from the question” before it. But it is hornbook law that “a principal has a duty to indemnify the agent against expenses and other losses incurred by the agent . . ." If the issue of fees is entirely distinct from the authority question, then authority cannot be based on agency.

Hollingsworth v. Perry, __ U.S. __, No. 12–144, slip op. at 14--16 (2013) (citations omitted).