SUBSTANTIVE DUE PROCESS:
Nebraska court upholds grandparent-visitation statute as constitutional under Troxel
On June 2 the Nebraska Supreme Court issued a unanimous ruling in a family law case brought against Tanya Hamit, the mother of two young sons, by the parents of her deceased husband. They sued under Nebraska’s grandparent-visitation statute (here), which authorizes a court to order visitation where a parent is deceased and the grandparent proves by “clear and convincing” evidence that a “beneficial” grandparent-grandchild relationship exists or has existed; that it is “in the best interests of the child” for the relationship to continue; and that ordering visitation “will not adversely interfere with the parent-child relationship.”
Nebraska was the final State to bow to the “grandparents rights” movement and enact (in 1985) a statute authorizing grandparents, in certain circumstances, to seek court-ordered visitation over the objection of the custodial parent(s). At common law, grandparents had no legal right to visit or contact their grandchildren.
After the parents of her deceased husband (whom she had been in the process of divorcing when he died in plane crash) sued her for visitation rights, Ms. Hamit sought to dismiss the action on the basis that Nebraska’s statute, both on its face and as applied to her situation, violated her substantive due process right as a concededly fit parent to make her own family decisions as to the proper care, custody, and control of her children. In support of her argument, Ms. Hamit invoked Troxel v. Granville, 530 U.S. 57 (2000), in which the U.S. Supreme Court held that a court order granting visitation to grandparents under a Washington statute allowing “any person” to seek visitation at “any time,” with visitation granted if in “the best interest of the child,” violated the custodial mother’s substantive due process rights.
The trial court rejected this constitutional argument. It then held a hearing on the grandparents’ petition for visitation. It held that there was “overwhelming” evidence that, “beyond any doubt, and certainly by clear and convincing evidence,” that the requirements of the Nebraska statute were met. It granted the grandparents visitation on the first Saturday of each month, from 9 a.m. to 7 p.m., and for seven consecutive days each summer.
Ms. Hamit appealed. On appeal, in her opinion for a unanimous court, Justice Miller-Lerman analyzed the six opinions issued in Troxel and the criticism the Troxel Court had received for failing to lay down precise standards for a substantive due process challenge in this context. She articulated three principles which “emerge from the plurality opinion in Troxel” regarding “a parent’s due process rights in the context of a nonparent visitation statute”:
(1) There is a presumption that fit parents act in the best interests of their children.
(2) In light of this presumption, a fit parent’s decision concerning the denial of grandparent visitation must be accorded at least some special weight.
(3) Notwithstanding the special weight to be accorded a fit parent’s decision, the presumption in favor of fit parents is rebuttable under the appropriate circumstances.
As to the proper standard of review, a matter not resolved in Troxel and which has divided the lower courts since Troxel, Justice Miller-Lerman concluded “that given the fundamental nature of the parental rights that are claimed to have been intruded upon by the grandparent visitation statutes, a strict scrutiny level of analysis is appropriate.”
Applying this legal framework, Justice Miller-Lerman rejected Ms. Hamit’s constitutional challenge on the basis that “Nebraska’s statutes are more narrowly drawn than the Washington statute and explicitly protect parental rights while taking the child’s best interests into consideration” — in particular, by permitting only grandparents (not “any person”) to seek visitation, and then only in limited circumstances (such as the death of a parent, or the divorce of the parents). Further, she opined that the requirement that the grandparent seeking visitation prove by “clear and convincing” evidence a “beneficial” relationship between the grandparent and grandchild, and that visitation “will not adversely interfere with the parent-child relationship,” ensured satisfaction of “the Troxel principles that a fit parent is presumed to act in the best interests of his or her bhild, and although special weight is to be accorded a fit parent’s decision regarding visitation, the presumption in favor of a parent’s decision is rebuttable.”
SEARCH AND SEIZURE:
Massachusetts court rules “pat and frisk” unconstitutional
On June 2 the Appeals Court of Massachusetts, in a criminal case in which the defendant was convicted of illegal possession of a handgun, held that the police officers had violated the defendant’s Fourth Amendment right against unreasonable searches/seizures when they did a Terry “pat and frisk” without any “reasonable suspicion that the defendant might be engaged in criminal activity” — simply based on “a hunch that the defendant’s walk suggested he was carrying a firearm,” and related observations. In his majority opinion, Justice Grasso declined to uphold the “pat and frisk” based on the defendant’s efforts, after the police first made contact, “to avoid contact with” them, “and his other arguably evasive behavior,” concluding: “It was the defendant’s right to ignore the officers. To hold otherwise is to invite arbitrary and unequal treatment . . . or to allow the police to ‘turn a hunch into a reasonable suspicion by inducing the conduct justifying the suspicion.'”
The defendant was an African-American, an aspect of the case discussed in the concurrence of Justice Brown, a 1967 graduate of Harvard Law School with decades of distinguished service on the bench, and also an African-American. Justice Brown wrote “separately to articulate a few of the extraordinary, yet disturbing, instances of flagrant abuses of the constitutional rights of certain citizens by police officers” — and the possibility that the defendant in the case may well have been stopped and frisked simply for “walking while black.” He wrote:
After thirty years on the bench I think I have finally discerned an underlying rationale for “stops” of persons of color within the scope of Terry v. Ohio, 392 U.S. 1 (1968). It is motion. First, I observed a “stop” while running (Commonwealth v. Bodden, 11 Mass.App.Ct. 964, 964  ), then while driving, i.e., driving while black (Commonwealth v. Feyenord, 445 Mass. 72, 88  [Greaney, J., concurring], cert. denied, 126 S.Ct. 1369  ), and now I have witnessed a “stop” of a black person while walking. Also, I am always amazed at police officers’ extraordinary powers of perception. Cf. Commonwealth v. Benitez, 37 Mass.App.Ct. 722, 724 n. 2 (1994) (unenhanced nighttime visual acuity); Commonwealth v. Ciaramitaro, 51 Mass.App.Ct. 638, 647 (2001) (Brown, J., concurring) (exceptional visual acuity).
I can only hope that these practices will not degenerate into stops based upon “breathing while black.”
Justice Rapoza, in a narrowly crafted dissent, acknowledged that on the facts presented this was “a close case,” but would have upheld the search and seizure based on the totality of the circumstances. In particular, he concluded:
Unlike the majority, in these circumstances I conclude that prior to the announcement of the frisk, the officers had reason to suspect that the defendant illegally possessed a firearm. Although a number of the officers’ observations could, considered individually, admit of an entirely innocent explanation, in combination they were sufficient to justify a reasonable suspicion on the part of the officers. . . . The majority posits a number of other factors, absent here, that would support a determination of reasonable suspicion. Such indicia are of no moment so long as the facts actually present in the case at bar are sufficient to support a reasonable suspicion of criminal activity.
SEARCH AND SEIZURE:
Maryland court applies 1988 Chesternut decision on police-citizen “consensual” encounters; excluded evidence.
On June 2 the Court of Appeals of Maryland (its highest court) issued a unanimous decision applying the U.S. Supreme Court’s decision in Michigan v. Chesternut, 486 U.S. 567 (1988), for when a purportedly consensual police-citizen encounter becomes a “seizure” within the meaning of the Fourth Amendment because the police conduct would lead a reasonable person to feel not free to leave.
The defendant in the case was walking along a city street in a high-crime area with an open-air drug market at 3 a.m. when a police cruiser stopped 10 feet in front of him. The police officer got out, asked for and obtained the defendant’s i.d. card, and then using the information called in a “warrant check” see of the defendant had any outstanding warrants. The warrant check came back negative. The officer then asked if he could search the defendant, which led the defendant to put his hands on the hood. Then, as the officer went to put away his flashlight before doing the search, the defendant fled. He was apprehended, searched, and found with four small backs of crack cocaine in his pants leg.
The trial court denied the defendant’s motion to suppress the crack cocaine, ruling that the police officer never “seized” the defendant within the meaning of the Fourth Amendment, because under the facts of the case a reasonable person would have felt free to leave, and therefore the defendant’s interaction with the officer was consensual. The trial court then found the defendant guilty of handgun and drug violations and sentenced the defendant to a prison term.
The Court of Appeals unanimously reversed, finding that on the facts found by the trial court the defendant had indeed been “seized” within the meaning of the Fourth Amendment, and thus the trial court had erred in refusing to suppress the crack cocaine found on the defendant. In her opinion for the Court, Justice Raker focused on the warrant check run by the police officer, which carried an implied requirement that the defendant had to wait for the results before he could leave, considered in light of all the other circumstances:
We cannot conclude that a reasonable person would have felt free to walk away under all of the circumstances surrounding this encounter. Indeed, Deputy Dykes made clear that petitioner was not free to leave as evidenced by his testimony that when petitioner was leaning against the car and he pushed off the vehicle to leave, petitioner was not free to go because “I was not done, as I stated in the cross there that the wanted check had not come back yet and due to Officer Matt Brown advising me that he’s known for CDS and weapons, that I pursued after him.” The facts in this record indicate that the interaction between petitioner and Deputy Dykes was in the nature of constructive restraint rather than a consensual encounter. The time of night of the encounter, the officer’s conduct before he approached petitioner, the blocking of petitioner’s path with the police cruiser, headlights shining on petitioner, the officer’s testimony that he was conducting an investigatory field stop, and the warrants check, taken together, lead us to conclude that petitioner was seized.
Cautioning against too broad a reading of the court’s holding, In the concluding section of her opinion, Justice Raker emphasized that the court’s decision was an application of the requirement of Michigan v. Chesternut, 486 U.S. 567 (1988), all the circumstances surrounding the incident in question must be considered, and she made clear: “The Fourth Amendment does not prevent an officer from approaching an individual and seeking permission to ask a few questions. An officer may ask a person for identification. And simply conducting a warrants check does not create a seizure.”
Court declines to resolve constitutionality of Pennsylvania’s Hunter Harassment Statute
On June 2 the Commonwealth Court of Pennsylvania declined to resolve a constitutional challenge, backed by the ACLU (see here), to Pennsylvania’s Hunter Harassment Statute. Apparently enacted for the purpose of protecting recreational hunters from protests by animal rights activists (see here), the statute quite sweepingly makes it a crime to knowingly or intentionally “harass” a hunter who is lawfully hunting, or to enter on to public or private lands with the intent to “harass” a hunter, but it provides no definition of the term “harass.”
The case originated in Enon Valley, Pennsylvania, about 40 miles northwest of Pittsburgh. There, defendant Janice Haagensen had lived for decades on a 60-acre farm. For many years she has worked to keep hunters off her property, without success. The signs and fences meant to keep hunters out are frequently knocked down, and Haagensen has often observed armed hunters on her property. Despite frequent complaints to law enforcement about hunters’ trespass on her property, no one has been cited, permitting the trespasses to continue.
In December, 2001,Haagensen was cited by law enforcement for five violations of the Hunter Harassment Statute. Haagensen’s five “victims” (as Judge Friedman cheekily termed them) were all subjects of her complaints “about people trespassing on her property”; of her confronting them and “yelling that they were on her property”; of her screaming, “you’re on private property,” and the like. Displeased, the hunters responding by firing a shot close to Haagensen and screaming, “you bitch, we’ll kill you.” Such death threats led Haagensen to call the police, who “told her to shut up because the hunters were doing nothing wrong,” and who then cited her for violations of the statute. The trial court rejected a constitutional challenge to the statute on its face, and as applied to Haagensen, and Haagensen was convicted and ordered to pay more than $2,600 in fines and court fees.
In her opinion for the court, citing the well-established rule that “a court should not address the constitutional question if a case can properly be decided on non-constitutional grounds,” Judge Friedman declined to address the trial court’s constitutional ruling. Instead, she held that the Commonwealth had failed to prove that the statute could apply to Haagensen, as there was no evidence Haagensen had any intent to interfere with the “lawful” taking of wildlife. Instead, the evidence showed “that Haagensen believed, either rightly or wrongly, that the ‘victims’ here were engaging in the unlawful taking of wildlife, and Haagensen merely sought to warn the hunters not to trespass on her property or hunt illegally near her farm.” On that basis, the court reversed Haagensen’s convictions.
No violation in denial of 30-day trial continuance in $50 million civil case
On May 31 the Texas Court of Appeals, in a civil tort suit seeking $50 million for injuries due to alleged design defects in a Toyota vehicle, denied Toyota’s request for a writ of mandamus to force a 30-day trial continuance. Judge Reyna’s majority opinion, in a brief analysis, found no abuse of discretion in the denial of a continuance. Judge Gray issued a forceful dissent. A snippet:
Wrong on the facts. Wrong on the law. Wrong on the result. . . . I . . . have come in, in the middle of the night, to prepare something to stress the extent to which I disagree with what the majority has done. . . . [G]enerally, anybody getting sued for $50,000,000 needs more than the final thirty days before trial to discover and work into their overall defense the plaintiffs’ new theories, the substance of which was disclosed after the discovery deadline. . . . [C]hanging theories is not the problem. Toyota should, however, at least be able to test the new theories with its own experts in a manner that allows reasonable and rational trial preparation. Maybe the majority has forgotten, if they ever knew, what it is like going to trial with $50,000,000 on the line. . . . I would reject the majority’s effort to slant this proceeding by their paper machete opinion which hides the issues . . . . Because the majority denies the mandamus without a full and proper treatment of the issues and refuses to request a response, I dissent.