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06/19/2022

Judge David Stras on Unconstitutional Seizures
Michael Ramsey

Judge David Stras (8th Circuit) has a strong originalist concurrence on unconstitutional seizures in Davis v. Dawson (decided last month but just pointed out to me).  The majority holds:

Des Moines Police officers, lacking probable cause, took relatives of a stabbing victim to the station, holding them for over three hours despite their repeated requests to leave. Meanwhile, the victim died. The family sued. The district court denied qualified immunity, ruling for the family on their claims of illegal seizure and false arrest. The officers appeal. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

The majority applies modern Supreme Court and lower court caselaw to find the rights clearly established for qualified immunity purposes.  From Judge Stras, concurring:

Rarely do rights come more clearly established. The Des Moines Police Department apparently thinks it is constitutional to seize, transport, and interrogate innocent witnesses based on “societal needs.” Appellants’ Br. 30. This type of “forcible and compulsory extortion of a [person’s] own testimony”—frequently a feature of writs of assistance and general warrants—was repudiated by the Fourth Amendment. Boyd v. United States, 116 U.S. 616, 630 (1886); see also Entick v. Carrington, 19 How. St. Tr. 1029 (C.P. 1765). Like the court, I would reject the call to revive them, and I write separately to explain just how clearly established this right really is.

...

"Writs of assistance" were the historical equivalent of a “blank check.” Starting out as a way of enforcing English smuggling laws, they initially allowed so-called “customs men” to search homes for stolen or smuggled imports. See Carpenter, 138 S. Ct. at 2239 n.6 (Thomas, J., dissenting) ...; see also M.H. Smith, The Writs Of Assistance Case 17–19 (1978) (describing the origins of the writ of assistance). But they soon expanded to other situations and conferred breathtaking powers on the government officials who held them. Among their features were the authority to conduct indiscriminate searches of people and property, and in certain cases, conscript individuals to “‘aid[] and assist[]’ the Sheriff.” Smith, supra, at 95 n.1 (quoting Commissions Issued by the Province of Pennsylvania 36 ...; see also James Otis, Against Writs of Assistance (Feb. 24, 1761) (observing that “a person with this writ . . . may enter all houses, shops, etc., at will, and command all to assist him”). They were premised on the notion that the Crown’s interests stood above all others. See Smith, supra, at 426 (“[A]ll his Majesty’s good Subjects are required to be aiding and assisting in the due Execution of said Writ or Warrant of Assistance.” ...

It is unsurprising that opposition to them became one of the organizing principles of the Revolution. See 6 Encyclopaedia of the Laws of England, General Warrant, 63 (A. Renton ed., 1898) (“The use of the writ of assistance was one of the causes of the revolt of the American colonies.”). ...

Meanwhile, across the Atlantic, English courts issued a series of decisions that only sharpened colonial opposition. There were a number that had an impact, see, e.g., Wilkes v. Wood, 19 How. St. Tr. 1153 (C.P. 1763); Huckle v. Money, 95 Eng. Rep. 768 (K.B. 1763); Leach v. Money, 19 How. St. Tr. 1001 (K.B. 1765), but perhaps none more so than Lord Camden’s opinion in Entick v. Carrington, 19 How. St. Tr. 1029 (C.P. 1765).

The warrant in Entick “act[ed] against every man, who [was] so described in the warrant, [even] though he be  innocent.” 19 How. St. Tr. at 1064 (emphasis added). The officers, who broke into Entick’s home and seized his papers, defended their actions by arguing that this warrant, and others like them, were critical for “detecting offenders [and] discovering evidence.” Id. at 1030, 1073. This argument, echoed today by the Des Moines Police Department, was no more successful then. Lord Camden pointed out that general warrants arose “from a decree of the Star-Chamber,” giving them less-than-noble origins, and then “crept into the law by imperceptible practice.” Id. at 1067, 1069. No “authority in [the] book[s],” including the “written law,” supported them. Id. at 1066, 1072. Nor could “such a power be justified by the common law.” Id. at 1072. The warrant was, in Lord Camden’s words, “illegal and void,” and Entick had an action for trespass against the officers, who had invaded his right to be “secure [in his] property.” Id. at 1066, 1074. Entick was “welcomed and applauded by the lovers of liberty in the colonies.” Boyd, 116 U.S. at 626 (chronicling its support). Many regarded Lord Camden’s decision “as one of the permanent monuments of the British constitution.” Id. ...

I think this is an great way for originalist-oriented lower court judges to bring originalism into their cases.  Originalism isn't just about challenging nonoriginalist doctrines.  It should also be (as here) about confirming and celebrating the originalist foundations of longstanding doctrines we take for granted. And it reminds us that our rights come from the Constitution, not just from what the Court has said about it.