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Posts Tagged ‘4th Amendment’

Divided 5th Circuit Panel Finds No Constitutional Privacy Protection for Lesbian High School Student

Posted on: June 5th, 2013 by Art Leonard No Comments

A panel of the U.S. Court of Appeals for the 5th Circuit voted 2-1 that a lesbian high school student did not have a clearly established constitutional right of informational privacy in her sexual orientation.  Reversing a district court ruling, the panel held that two female high school softball coaches enjoy immunity from constitutional liability for “outing” the girl to her mother, in apparent retaliation for the girl having told another student that one of the coaches was dating a woman.  Both of the judges in the majority, E. Grady Jolly and Edith H. Jones, were appointed to the court by Ronald Reagan during the 1980s.  The dissenter, James E. Graves, Jr., was recently appointed to the court by Barack Obama.  Wyatt v. Fletcher, No. 11-41359 [2013 Westlaw 2371280], May 31, 2013.

The lawsuit was filed by Barbara Wyatt, the mother of the high school student, against the school district, the athletic director, and the two female coaches.  The athletic director was dismissed as a defendant by agreement of the parties, and the 5th Circuit panel’s decision concerns only the motion by the coaches to dismiss the constitutional claims against them on immunity grounds, which was denied by the district court and then appealed by the coaches.  

The doctrine of “qualified immunity” protects government employees from personal liability for actions they take within the scope of their employment unless the plaintiff can show that those actions violate a “clearly established” constitutional right.  In this case, plaintiff S.W. claims to have been interrogated by the coaches in a locked room in violation of her 4th Amendment right against unreasonable search or seizure, and that her informational privacy, protected by the 14th Amendment, was violated when the coaches told her mother that she was dating an older girl.  The district court found that due to contested facts it could not rule on the immunity issue, and denied the coaches’ motion, but also suggested that if certain factual disputes were resolved in favor of the plaintiff, she would have a valid constitutional claim.

The parties sharply contest some of the facts, but for purposes of ruling on a motion by the coaches to dismiss the claims against them on grounds of immunity, the plaintiff’s allegations are supposed to be taken as true, the issue for the court being whether the defendants enjoy immunity if the plaintiff’s factual assertions prove to be accurate.   Judge Graves criticized Judge Jolly’s majority opinion for failing to treat S.W.’s allegations as true and instead adopting a version of the facts more consistent with the coaches’ account of what happened.

More significantly, however, the majority and Graves part company on the question whether S.W. had a clearly protected constitutional right at stake.  Does an individual have a right not to be “outed” as gay by a government employee who comes into possession of that information as part of their job?  The majority insisted that for the constitutional right claimed by S.W. to be “clearly established,” there must be, in effect, a Supreme Court or 5th Circuit ruling holding that teachers questioning a student in a locked room violates the 4th Amendment or that a teacher telling a parent that her child is gay violates the 14th Amendment.  The majority also suggested that the 4th Amendment issue had faded from the case and that the main focus was on the coaches’ disclosure of information to Ms. Wyatt.  Sharply contesting this approach, Judge Graves argued that there is plenty of precedential authority for S.W.’s constitutional claims, including specific statements by appellate courts (including the 5th Circuit) that information about a person’s sexual orientation is the kind of “personal fact” that is entitled to constitutional protection against unauthorized disclosure by the government. 

Graves particularly criticized the majority’s contention that prior cases do not establish a privacy right since they did not involve minors or high school students, or disclosures to the student’s parents, and that students generally enjoy limited privacy rights in high school locker rooms.  On the contrary, wrote Graves, “school children do not shed their constitutional rights at the schoolhouse gate.  The majority fails to cite any authority to indicate that the Fourth Amendment right to be free from unreasonable seizure does not extend to high school students.”  As to the information privacy issue, he wrote, “Based on the applicable authority and the coaches’ own admissions that they recognized the private nature of the information, the district court is absolutely correct that sexual orientation would fall within the categories of highly personal information protected by the right to privacy.  The district court correctly held that, while the 5th Circuit has never explicitly held that a student has a right to privacy in keeping his or her sexual orientation confidential, an analysis of precedent compels the finding of such a right.”

The majority, by contrast, largely embracing the coaches’ account of what happened, suggested that Ms. Wyatt already knew that her daughter was gay when she was called into a meeting by the coaches, who intended to inform her about her daughter’s dangerous misbehavior for her own protection from the “older woman” – an 18-year-old who had been invited to attend a softball game by her former girlfriend, who was then allegedly dating one of the female coaches!  (This case sounds like a soap opera, doesn’t it?)  The court also suggested that school officials have a right, unimpeded by constitutional considerations, to inform parents about the sexual activities of their children, and that summoning a student into a locked room to interrogate her about her behavior raises no significant 4th Amendment issues. 

The court’s ruling does not totally end the case, because S.W. had also asserted state law claims against the coaches as well as various claims against the school district that were not subject to this pretrial motion.  But the 5th Circuit’s ruling ends S.W.’s constitutional claim against the two coaches.

A 4th Amendment Outrage: Supreme Court Approves DNA Testing for Arrestees, 5-4

Posted on: June 3rd, 2013 by Art Leonard No Comments

The Supreme Court ruled 5-4 today [Maryland v. King, No. 12-207, June 3, 2013] that when the police have probable cause to arrest somebody, they can take a cheek swab and send the results to a national DNA database, and then ask that the results be used to determine whether the arrestee can be associated with any unsolved crimes for which there is DNA evidence.  Blazing a new trail in the relentless invasion of privacy in our high tech society, the Court rejected Justice Antonin Scalia’s dissenting argument that this result is totally out of line with the founders’ intent in the 4th Amendment, and also that the state of Maryland’s purported justification for such DNA testing is inconsistent with how the DNA sample was handled in this case.

Writing for the Court, Justice Anthony M. Kennedy, Jr. (joined by Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer, and Samuel Alito), said that taking a DNA sample from a newly-arrested person is essentially no different from photographing and fingerprinting him or her.  He said that the government has a significant interest in identifying arrestees, and taking a DNA sample is just another way of identifying the individual and minimally intrusive. 

Justice Scalia (joined by Justices Ruth Bader Ginsburg, Sonya Sotomayor and Elena Kagan) argues that DNA is different.  “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence,” he wrote.  “The prohibition is categorical and without exception; it lies at the heart of the Fourth Amendment.  Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.  It is obvious that no such noninvestigative motive exists in this case.  The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.  And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.”

An example of a search of an arrestee that is allowed without any basis for suspicion would be the routine patdown by police to determine if somebody they are arresting has a weapon.  This is allowed for protection of the police officers and others who may come into contact with the arrestee while he or she is detained.

In this case, police arrested Alonzo King for “menacing a group of people with a shotgun.”  As part of the “routine booking procedure,” he was photographed and fingerprinted and, pursuant to a Maryland statute, police took a cheek swab for a DNA sample which, Scalia points out, was not immediately tested to confirm King’s identity, but instead sat in a police lab for weeks before being sent for analysis and then for comparison to a national DNA database of unsolved crimes, where it checked positive for a 6-year-old unsolved rape case.  King was successfully prosecuted for the rape, but the highest appellate court in Maryland reversed his conviction, finding the DNA evidence was  inadmissible under the 4th Amendment, because there was no probable cause for a search of King’s DNA.  As Scalia would point out in his dissent, King’s DNA was not needed to identify him — police knew who he was without that confirmatory evidence — and the DNA evidence was not relevant to the crime for which he was arrested. 

The practice authorized by the majority of the Court today says, in effect, that whenever the police have a reason to arrest somebody, they can take a DNA sample and run it through the unsolved crimes database, trying to pin a crime other than the one for which he was arrested on the arrestee.  It matters not whether the individual was guilty of the crime for which they were arrested.  A totally innocent person who is arrested due to mistaken identity, for example, could be subjected to such a DNA search.  And if the DNA evidence can be used to search the unsolved crime DNA database, why not use it for other reasons? 

Scalia points out that as much as a third of the population is arrested at one time or another (and he might have, but did not, point out that members of racial and ethnic minorities are arrested in much greater proportions due to racial profiling by police), with the result that routine DNA testing of arrestees upon booking will lead to a huge national DNA database in the custody of law enforcement agencies, disproportionately made up of DNA information of minorities, that might be put to many different uses investigating not just criminal activity.  One might imagine it being put to political use, and various regulatory uses as well.  Such a database, for example, could end up with the DNA records of political demonstrators caught up in unconstitutional “sweeps”, such as the mass arrests of political demonstrators during the Republican National Convention held in New York City in 2004.  Down this road lies “Big Brotherism” of the worst sort, at least potentially.

Justice Scalia is accustomed to uttering apocalyptic predictions when writing his dissents, but for once I think he is not far wrong.  His peroration:  “Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”  He also pointed out that taking King’s DNA at the time of his arrest was really unnecessary.  He was arrested while engaged in criminal activity, so he was likely to either plead guilty or be convicted, and he actually was convicted on the menacing offense.  Scalia has no objection to taking DNA samples from people after they are convicted. This means that the police would eventually have gotten King’s DNA, would have then been able to run the database search, and would then have uncovered the evidence leading to his subsequent rape conviction.  All kosher, since upon being adjudicated a felon, an individual’s liberty interests are circumscribed and there is reason to search.   Scalia’s concern is for the innocent person who is arrested and subjected to this kind of search in the absence of any determination by a tribunal that they have actually engaged in criminal activity.  Scalia points out that the Maryland statute that authorizes these DNA searches “manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.” 

Scalia concludes with the hope that “today’s incursion upon the Fourth Amendment. . . will some day be repudiated.”  Amen.

But, in the meantime, civil libertarians should get to work seeking repeal of statutes like the Maryland DNA testing statute involved in this case, and seeking laws banning such DNA testing in jurisdictions where they don’t now exist.  We already have a federal law banning discrimination based on genetic information, which was enacted during the Bush Administration but has yet to be subjected to any extensive interpretation in the courts.  Perhaps Congress should amend this law to address directly the use of DNA testing by law enforcement officials.