Zero tolerance: John G. Roberts' greatest hits

Supreme Court nominee John G. Roberts, Jr in Hedgepeth v. WMATA:

ROBERTS, Circuit Judge: No one is very happy about the events that led to this litigation. A twelve-year-old girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later — all for eating a single french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal. The district court described the policies that led to her arrest as ‘‘foolish,’’ and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm.

It was the start of another school year and the Washington Metropolitan Area Transit Authority (WMATA) was once again getting complaints about bad behavior by students using the Tenleytown/American University Metrorail station. In response WMATA embarked on a week-long undercover operation to enforce a ‘‘zero-tolerance’’ policy with respect to violations of certain ordinances, including one that makes it unlawful for any person to eat or drink in a Metrorail station. D.C. CODE § 35-251(b) (2001). ‘‘Zero tolerance’’ had more fateful consequences for children than for adults. Adults who violate § 35-251(b) typically receive a citation subjecting them to a fine of $10 to $50. Id. § 35-253. District of Columbia law, however, does not provide for the issuance of citations for non-traffic offenses to those under eighteen years of age. Instead, a minor who has committed what an officer has reasonable grounds to believe is a ‘‘delinquent act’’ ‘‘may be taken into custody.’’Id. § 16-2309(a)(2). Committing an offense under District of Columbia law, such as eating in a Metrorail station, constitutes a ‘‘delinquent act.’’ Id. § 16-2301(7). The upshot of all this is that zero-tolerance enforcement of § 35-251(b) entailed the arrest of every offending minor but not every offending adult.

Roberts concluded that the state sometimes has a legitimate interest in hauling children away for offenses that would net a grownup a ten dollar ticket.

Comments

[ol cranky]

I'd say the defense that Operation Rescue isn't conpiring against women, just against "pregnant people" and the whole host of arguments (not just limited to reporductive rights) that sets a bad precedent for is a stronger case against Roberts. Mind you, they only need 5 Democrats to confirm and Roberts is by far the most qualified and not one with an overt record of rendering decisions on ideology. He's a sharp one and, unlike most ideologues, he'll be able to defend his decisions with fact.

E. Barrett Prettyman Jr., a longtime Roberts fan and lifelong Democrat who worked with him for years at Hogan, says that if anyone can be both judicious and predictable, Roberts can.

"He respects the Court greatly, and would not ignore precedent," says Prettyman. "But if there's a loophole or a distinguishing factor, he'd find it.

[Eli]

I'm going to jump on the bandwagon and say that this was probably the only outcome we could expect from this case. Finding otherwise would've been considerable rerouting of doctrine that I just don't see a Circuit judge indulging in most of the time.

This passage from Lindsay struck me as interesting:

This decision basically says the state can treat minors in ways that would clearly constitute egregious violations of their rights if they were adults. I think that's a significant difference.

I'm not sure if treating an adult like this would be an egregious violation of their rights - but regardless, the state can and does treat children in ways that would be violations of the rights of adults all the time. It's the basis of our custody system - using state power to regulate the basic autonomy of minors.

[Liberal Chris]

Lindsay - i don't think this case proves that Roberts believes the state should have a virtually limitless right to discriminate by age. All it shows is that Roberts believes that under current law, the state does in fact have that limitless right to discriminate by age.

There is more to judging than one's own beliefs, and on the law here Roberts is absolutely correct. now maybe that law should change, but it would be a rare (and probably bad) thing for an appeals court to change such clear precedent. we really don't want judges just misreading the law when an unappealing fact patter comes along.

if you want special protections that make it more difficult for the government to discriminate based on minority (in the age sense), the legislature can do that. so can the supreme court, but even this decision doesn't tell us whether roberts would support such a change.

[Eli]

LC: I think you're mostly on-target, but there are a few minor points I'd question.

First: The state doesn't have the limitless right to discriminate by age under current law. First, its power to discriminate in employment is limited by statute. Second, I'd regard it as an as-yet-unsettled question how the court might react constitutionally to egregiously arbitrary age differences in legislation. Presumably, at the very least, age discrimination would have to pass rational basis scrutiny.

Second: there is room in our system for Circuit Courts to posit some potential new doctrines, if only to get them on the record and force the SC to respond. But that's best done in baby steps, not the multiple leaps and bounds that would be necessary here, so as far as this case goes, we agree.

[Mnemosyne]

Posts of the format "Long quote, then a couple sentences of incredulity and or snark" should be reserved for cases where the content of the quote is prima facia bonkers, where there is absolutely no way it merits a substantive response.

Wait, you think that arresting a 12-year-old girl for eating one french fry was eminently reasonable and not "prima facia bonkers"?

Wow. I'd hate to live in your head.

[Barbara]

The power to discriminate on age is definitely not limitless. To simplify, if a minor faces the same penalties as an adult (and I don't mean temporary detention, which was what happened in the Metro case) but "true" (as in punitive) incarceration, etc., then the minor must usually be accorded comparable rights. That's usually what is meant by treating a minor as an adult -- while we typically focus on the type of punishment that might be meted out in this circumstance, it also affects the level of civil rights that are accorded to the minor defendant.

There are both benefits and burdens associated with being treated as a minor -- on the plus side, your record is expunged and you are never adjudicated in such a way that you carry any criminal conviction with you. On the down side, the burden of proof for adjudicating you "delinquent" as in, guilty of what you were accused of, is lower, and the sentencing is "indeterminate." On the other hand, you have to get out by the time you're 21 (typically). Some states do set some limits -- for instance, you can't be "detained" for longer than you could have been incarcerated for the same offense, but this is not the norm. Many of the same issues come up in the treatment of those who have been adjudicated not guilty by reason of mental illness, and there are definitely limits that were established by the Supreme Court in the Matthews v. Eldredge era. Some of these cases also involved the involuntary commitment of juveniles, and very definitely, the states' rights are not unlimited.

[Barbara]

Mnemosyne, how many French fries should it take, or would there never be enough? Missing from this discussion, to some extent, is how rabid Metro is about keeping food and drink out of the system, and also, perhaps to a lesser extent, how our Metro rail and bus system functions as the school bus system in Washington D.C., which has few true school bus routes. There are not many other places where so many unaccompanied minors use true public transportation on an every day basis, and the system has to grapple with issues related to this phenomenon every day. I am certain that's why it adopted policies that are specific to minors. So try to imagine this as a school bus incident. Even so, it was an overreaction, but was it such a gross overreaction with such adverse consequences that it was actually unconstitutional? I have a hard time getting there but maybe I've seen too many other cases that would make the intervention here look positively gentle in comparison.

[Glenn Bridgman]

"Wait, you think that arresting a 12-year-old girl for eating one french fry was eminently reasonable and not "prima facia bonkers"?

Wow. I'd hate to live in your head."

Erm, no. That is nuts, and Roberts, in his opinion, notes that it is nuts. But the question under his consideration was whether the law violated the fourth or fifth amendments, and being nuts is not the same as being unconstitutional.

[whit]

Hey barb--What do you mean--it seems 'reasonable' to you to subject a child to the horror of police handling for eating french fries on a train? I want you to explain what exactly it is that is reasonable about traumatizing a child for a petty infraction such as this! I am in fact one of those people who gets uptight when he sees a kid with his feet on the seat on the train--but to have the cops involved is 'uncivilized' in the extreme.

[whit]

Shit! I meant to reply to Glenn and not Barbara. One vodka tonic too many. Thinking about the supreme court has done it to me.

[Craig Shergold]

The appeals court system is not about retrying the case. It is about addressing the procedural problems in how the case was tried. An appeals court judge is supposed to be an umpire's umpire. It's only at the Supreme Court level that you are supposed to get into kibbitzing on the legislation itself.