A recent posting discussed a Sixth Circuit decision in which the majority gleefully asserted that it "happily" was able to throw the plaintiff's case out of court, a case brought by an American citizen who was taken to jail and locked up with not even a fig leaf of explanation being offered and the law enforcement officer acknowledging that all available information indicated the wrong man was being arrested. "Happily" The Sixth Circuit Rules That American Citizens Have No Constitutional Protection Against Arbitrary Arrest and Jailing. One of the criticisms, in addition to the disappointing tone of the majority opinion by Judge Jeffrey Sutton, was the Court's refusal to rule that the arrest did violate the citizen's constitutional rights, a ruling that might save other citizens from arbitrary arrests. I say might save, because I want to believe that once the courts tell law enforcement officers that doing something is wrong and they can be sued for it, they will stop doing it. Seems simple but it's not.
This scenario has again arisen in the recent case, T.S. v. Doe, No 12-5724 (6th Circuit, February 5, 2014). The issue in Doe was whether a juvenile had a clearly established constitutional right in 2009 preventing jail personnel from strip searching them when they'd been arrested and brought in on a nonviolent offense and there was no basis whatsoever to think that a full-body, naked search was necessary to protect or promote jail security.
The Sixth Circuit, a unanimous panel consisting of Circuit Judges Danny Boggs and Bernice Donald joined by District Judge Fred Stamp of West Virginia, ruled no such constitutional right was clearly established in 2009. In their opinion, the court discussed some of the vagaries that come up in the development of the law:
The law can have a good deal of arbitrariness in its temporal development. Courts may not resolve a legal question until it is presented in a real case or controversy. Thus, neither we nor public officials have any control over when a particular rule is clearly established or (in this case) clearly rejected.
This assertion is fair: courts do have very control or input over the cases and issues that are brought up before them. Having made this observation about the at times erratic development of the law one would expect the court to address the constitutional issue presented it. But instead of doing this and putting the issue to rest the court perpetuates the arbitrariness that it purports to lament: "We need not, and do not, opine on the constitutionality of the strip searches."
And so it goes.
Robert L. Abell
www.RobertAbellLaw.com
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