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May 23, 2005
People v. McKay
One thing the current battle over judicial nominations has got me doing is reading the actual written opinions of the nominees. I found this conclusion from Justice Janice Brown in People v. McKay particularly enlightening. The case involved a bicyclist who was stopped for riding against traffic. Upon failure to produce identification the defendant was subsequently arrested and searched, which produced a packet meth hidden in his sock.
The question before the court asked under what circumstances can officers take an individual into custody for failing to produce identification, and thus was the search legal? Of the seven justices on the California Supreme Court, Justice Brown was the lone voice of dissent.
CONCLUSION In the spring of 1963, civil rights protests in Birmingham united this country in a new way. Seeing peaceful protesters jabbed with cattle prods, held at bay by snarling police dogs, and flattened by powerful streams of water from fire hoses galvanized the nation. Without being constitutional scholars, we understood violence, coercion, and oppression. We understood what constitutional limits are designed to restrain. We reclaimed our constitutional aspirations. What is happening now is more subtle, more diffuse, and less visible, but it is only a difference in degree. If harm is still being done to people because they are black, or brown, or poor, the oppression is not lessened by the absence of television cameras.
I do not know Mr. McKay’s ethnic background. One thing I would bet on: he was not riding his bike a few doors down from his home in Bel Air, or Brentwood, or Rancho Palos Verdes—places where no resident would be arrested for riding the “wrong way” on a bicycle whether he had his driver’s license or not. Well . . . it would not get anyone arrested unless he looked like he did not belong in the neighborhood. That is the problem. And it matters. “The rule of law implies justice and equality in its application.” ( Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 171.) If we are committed to a rule of law that applies equally to “minorities as well as majorities, to the poor as well as the rich,” we cannot countenance standards that permit and encourage discriminatory enforcement. (Ibid.)
According to Atwater, a full custodial arrest for a trivial infraction is constitutionally permissible. Broad powers to search incident to an arrest have a long common law and constitutional history. (Taylor, Two Studies in Constitutional Interpretation, supra, at pp. 28-29.) However, if full custodial arrest is authorized for trivial offenses, the power to search should be constrained. If broad searches incident to arrest are permitted, the power to effect a full custodial arrest should be limited. To permit both full custodial arrest for minor offenses and virtually unlimited authority to search incident to such an arrest allows officers to push past the boundaries of the Fourth Amendment. When officers may arrest for minor offenses, conduct virtually unlimited searches, and are granted unbounded and unreviewable discretion to select the target of such enforcement activity, the resulting search cannot be constitutionally permissible.
It is certainly possible to argue that the rationale of Atwater can be extended to encompass what happened here. The question is why we should do so. It is clear the Legislature could not authorize the kind of standardless discretion the court confers in this case. Why should the court permit officers to do indirectly what the Constitution directly prohibits? How can such an action be deemed constitutionally reasonable? And if we insist it is, can we make any credible claim to a commitment to equal justice and equal treatment under law?
Well . . . . No. Not exactly.
BROWN, J.
Posted by Peter Mork at May 23, 2005 12:02 PM
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