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After a long wait -- the third longest in history -- Loretta Lynch's nomination to be the next Attorney General of the United States was confirmed by the Senate today by a 56-43 vote, Senate Confirms Loretta Lynch as Attorney General After a Long Delay.
Kentucky's senior Senator Mitch McConnell voted in favor of Lynch's nomination, Senator Rand Paul voted against it. See the roll call tally.
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Mark Joseph Stern on Slate, The Ferguson Effect, offers an interesting discussion of whether the Supreme Court's frankly unexpected 6-3 decision Tuesday in Rodriguez v. United States indicates that there is a "Ferguson Effect" on the Court. May be and a good point.
The Rodriguez decision was discussed in an earlier post: Traffic Stops and the Fourth Amendment; The Supreme Court Draws A Line.
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The Sixth Circuit has granted en banc review in Tyler v. Hillsdale County Sheriff's Department, a Second Amendment case in which the Court's original panel reversed a district court's Rule 12 dismissal.
Tyler raised a Second Amendment challenge to the prohibition in 18 USC 922(g)(4) barring a person once committed to a mental institution from possessing a firearm. Tyler was once involuntarily committed to a mental institution by his daughter when he experienced a very emotional and extended reaction to his marriage falling apart. However, by the time that he sought to possess a gun even the government admitted that he was in good shape and presented no type of threat.
The Sixth Circuit's panel opinion authored by Circuit Judge Danny Boggs, joined by Senior Circuit Judge Eugene Siler and concurred to by Circuit Judge Julia Gibbons not only reversed but remanded with instructions that judgment be entered for Tyler unless the government disputed that he was emotionally and mentally fit.
In all honesty, the grant of en banc review is puzzling. The Sixth Circuit is, it often appears, resolutely and reflexively divided between appointees of Republican presidents and appointees of Democratic presidents. The en banc panel, assuming that Judge Siler chooses to participate, would be weighted 10-6 in favor of Republican appointees and all of the panel members are in that large majority bloc. So one wonders what issue caused a majority of the circuit judges to favor en banc review, a step that usually can be interpreted as a measure to eliminate a panel decision, the recent decision in EEOC v Ford Motor Company being one example and an illustration of the Court's divide, or to, if not eliminate it, defang it to meaninglessness.
Robert L. Abell
www.RobertAbellLaw.com
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The Fourth Amendment does not permit police to extend a traffic stop after they have completed all the traffic and safety business related to the stop the Supreme Court ruled 6-3 yesterday in Rodriguez v. United States. The ruling appears to stem the slow disappearance of Fourth Amendment rights that the federal courts had created by their "de minimis" rule, a doctrine that sanctioned the continuing erosion of a basic constitutional right.
Rodriguez was driving a Mercury Mountaineer on a state highway in Nebraska shortly after midnight. A police officer Struble saw the Mountaineer veer briefly up onto the shoulder and stopped it. Struble questioned Rodriguez and his passenger, checked if either had any outstanding warrants and issued Rodriguez a written warning. At that point, as Struble later testified at a suppression hearing, "I got all the reasons for the stop out of the way." Nevertheless, Struble further detained Rodriguez and the vehicle for an additional 7-8 minutes while he walked a drug dog around the vehicle; the dog, of course, alerted and Rodriguez was charged with a drug crime.
A magistrate judge conducted the suppression hearing and found as fact that no reasonable suspicion of possible criminal activity by Rodriguez existed to extend the traffic stop beyond the time that Struble "got all the reasons for the stop out of the way." The lower courts rejected Rodriguez's suppression motion and ruled that the short violation of Rodriguez's Fourth Amendment rights was "de minimis" and unworthy of constitutional recognition.
The "de minimis" rule is much loathed in some quarters, as it sanctions the continuing erosion of the Fourth Amendment's prohibition on unreasonable seizures. After all, if an extra seven minutes of detention isn't worthy of constitutional concern, eight isn't either, and, if an extra eight minutes of detention isn't worthy of constitutional recognition, nine isn't either and so on and so on.
The Court's ruling draws a simple line:
A police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation.
Key to the ruling here is the absence of any reasonable suspicion of some criminal activity to justify extending the seizure to let the drug dog work. A contrast is presented by the Sixth Circuit's recent ruling in United States v Winters, where it held that reasonable suspicion existed to justify extending the seizure for the drug dog inspection.
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