The Supreme Court on Wednesday holds the final two hearings in the opening sitting of its new term. Eight Justices will hear cases focusing on police use of force and on the threat of deportation for non-citizens. The Court will begin its second sitting with hearings on November 2.
First case, starting at 10 a.m.:
Torres v. Madrid
Background: It would take a library of many shelves to store all of the books necessary to record all of the decisions of the Supreme Court interpreting just one part of the Constitution: the Fourth Amendment. Partly that is due to the fact that the Amendment is the source of the strongest protection of the people’s privacy, which seems always to be at risk in a complex society. But another part of it is that the Amendment speaks in broad and undefined terms – such as the protection against “unreasonable searches and seizures.”
What is “unreasonable”? What does a “search” involve? When has a person been “seized”? The answers: it depends. Changing times, conditions and attitudes shape the meaning in any given era, and sometimes in any given kind of case. New inventions – such as GPS or cellphone tracking, or heat-seeking devices – lead to new interpretations.
In the new case scheduled to be heard first on Wednesday, the Court will confront the reality that, 229 years after the Fourth Amendment was added to the Constitution as part of the Bill of Rights, there is still uncertainty about when the police engage in a “seizure” of a person suspected of crime.
There is no doubt, of course, that a person has been “seized” by police when the suspect is taken to the police station and is held for questioning.
And, while it is generally understood that a “seizure” has occurred if the police do something that makes it clear to the suspect that he or she is not free to go their own way, even that can be unclear – as it was, in fact, in this new case.
Here are the basic facts: Several police officers in Albuquerque, N.Mex., were watching an apartment building, expecting to arrest a suspect they believed lived there. They saw Roxanne Torres and another person standing near a parked car. When the officers approached, the second person ran into the building, but Torres got into the car and started the engine. As one officer stood by, another tried to open the locked car door. Torres, who said later that she was high on drugs after using them for several days, testified that she feared she was being car-jacked and drove away quickly. As the car started to move, both officers fired their guns at it. Thirteen bullets hit the car, and Torres was struck twice in the back.
She drove to a parking lot, but lost control of her car. She then commandeered a car she found with its engine running, and drove that vehicle to a hospital about 75 miles away in the town of Grants, and checked herself in. She was taken back to a hospital in Albuquerque and was arrested. Torres later pleaded no contest to charges of fleeing from police, assaulting an officer, and stealing the other car. It is unclear what sentence she received. (Her conviction on those counts is not an issue before the Court.)
Her injuries left her disfigured and scarred, and she sued the two officers, claiming that they had used excessive force in violation of the Fourth Amendment. That claim was based on her argument that, by firing at her as she drove away, the two officers had used more force than was necessary, so “seized” her unconstitutionally.
A trial judge and a federal appeals court ruled that she had not been seized within the meaning of the Fourth Amendment. Seizure, those courts said, occurs only when police intentionally take physical control of a person. The shooting itself was not a seizure, they concluded, because it did not succeed in stopping Torres.
Disagreeing, other courts have ruled that a seizure under the Fourth Amendment occurs whenever police use force to try to control a suspect, even if they don’t succeed at it.
The Supreme Court granted review of Torres’s appeal to sort out the issue.
The question before the Court: If police attempt to detain a suspect by an act of force, is that a “seizure” under the Fourth Amendment if it fails to stop that person?
Significance: In recent times, America has been engaged in a tense debate over the use of force by police, and especially so in situations where the person against whom force is used is a minority individual. Those who side with police argue that the officers must act while under pressure and, perhaps, in the face of a threat to their own safety, and the public must trust their training to keep them from over-reacting violently. Those who take a different view tend to be suspicious that police training is often lacking, and that a culture of indifference to individual rights – especially the rights of minorities – poses a real threat of over-reaction.
The Supreme Court, most of the time, tends to defer to police discretion, especially when the scene the officers encountered has been dangerous, and rapidly escalating. The theory behind this deference is that, when a case gets to court, the record of the incident is a cold one, and may not reflect the actual atmosphere at the scene. The Court is strongly inclined not to get into the officers’ state of mind, but prefers to view the facts as objectively as possible, to see what a “reasonable” observer would have done in the situation at the time.
The actual facts can be critical but often are in serious dispute. In the Albuquerque case, Torres’ story was that she did not recognize those who approached her car as police, did not hear the orders they say they gave, regarded them as a personal threat, and decided to take the only action open to her to avoid that threat. Countering her story, the two officers said they clearly gave her orders to open the car door, that they were close to the car when Torres pulled away, and that they felt threatened in the path of a moving vehicle.
The Supreme Court’s task is not to sort out the facts, to determine who was right or wrong. Even though the facts, as here, can be contradictory, the Court must take each version into account in deciding the legal issues of when force becomes excessive and what end force must achieve in order to be judged under the Fourth Amendment as a seizure. The fact that lower courts have judged those issues differently suggests that they do have obvious answers.
In the appeal by lawyers for Torres, the emphasis is on the firing of police weapons, as a clear manifestation of force that inevitably threatens more than merely stopping a fleeing car. If the merest physical touch by an officer at a scene can be considered a “seizure,” as the appeal argues, firing multiple rounds and wounding a suspect surely meets the constitutional test.
The two officers’ lawyers, however, counter that it was Torres’ obligation to show that the officers gained custody of her, and she clearly was unable to prove that in the face of her choice to drive away. But they also directly defend the police gesture as fully justified by the unfolding scene at the time. And, as a third argument, they contend that the officers would not have known at the time that the attempt to stop the fleeing car could, itself, be understood as a “seizure” in the legal sense of the Fourth Amendment.
Second case, starting at about 11 a.m.:
Pereida v. U.S. Attorney General William Barr
Background: Congress has chosen to give the federal government wide authority to give a non-citizen who is living in the country illegally a chance to avoid deportation and remain in the country even after being convicted of a crime. Federal officials also can use that authority to let a non-citizen who is living in the U.S. legally – a permanent legal resident – stay in the U.S. even after a conviction. (Technically, this power is assigned to the U.S. Attorney General, but it is usually delegated to immigration officials.)
The wide scope of that authority is plain from the specific immigration law at issue before the Court: it says that an individual who is not a citizen can be deported, or denied an exemption from being deported, if that person has been convicted of a “crime involving moral turpitude.” Both undocumented immigrants and “green card” holders (permanent legal residents) can avoid deportation, even though convicted, if they can prove their crime did not fit into that federal category.
There is no such federal crime as one of “moral turpitude”; that is a legal standard, not a specific crime. But immigration officials do not have complete discretion to apply their personal moral codes to define what constitutes such a crime. Immigration courts and regular federal courts have said that, to fit within that category, a conviction must be for doing something that “shocks the conscience,” is “vile” or “depraved,” as examples, and misconduct that is done intentionally or recklessly.
Crimes that have been found to fit into that broad category range widely, encompassing murder and spousal or child abuse, but also include the staging as a sport of fighting between dogs or chickens. A crime can fit into the category if it was a violation of federal law, or of a state law.
How does a conviction fitting into that category affect a chance to remain in the country? Immigration law makes the connection: if any individual is subject to deportation but seeks to remain in the country, he or she must always prove that they are actually eligible for that relief. If eligibility involves whether a person is deportable for having committed a crime of “moral turpitude,” the individual must prove the crime did not fit into that category.
How did that play out in the new case? It involves a Nebraska resident, a native of Mexico named Clemente Avelino Pereida. He is undocumented – that is, he lives in the U.S. illegally. In fact, he has done so for nearly 25 years, and now has a wife and three children. One of his children is a U.S. citizen, and another is living legally in this country under the so-called “DACA” program – the Obama-era program that delays deportation of nearly 700,000 youths who were brought to this country as children and have become integrated into life in America. Pereida has argued that it would be a severe hardship for his family, for whom he is the main provider, if he were sent to Mexico.
Pereida was arrested in 2009 in the small Nebraska town of Crete, on a charge that he used a fraudulent Social Security card when he applied for a job there. A state law makes it a misdemeanor to attempt to impersonate another person – a kind of identify theft. He pleaded no contest to the charge, and was fined $100.
His case came to the attention of immigration officials, and they moved to deport him, based on the fact that he was in the U.S. illegally. He conceded that he could be deported for that reason, but applied for an exemption. His eligibility to be spared from deportation depended on whether his conviction was for a “crime involving moral turpitude.” His lawyers believe it was not that depraved kind of crime; they note it was only a misdemeanor, and he was given no jail time.
The Nebraska law he broke has several parts, and everyone agrees that some of those parts would amount to such a crime, but at least one part would not. When his case was reviewed by immigration officials, it was Pereida’s legal duty to prove that his own conviction did not fit the federal category. The officials ruled that he had not proved that his conviction was based upon the part of the law that did not involve that kind of wrongdoing.
When a federal appeals court reviewed the case, it agreed that Pereida could legally be deported. The record he presented in the case, the appeals court concluded, was “inconclusive” and thus it was “not possible to ascertain which subsection formed the basis” for his conviction. It was his burden of proof, and having failed in that, he “bears the adverse consequences,” it declared.
Pereida’s lawyers took the case to the Supreme Court, arguing that the federal appeals courts are divided on what proof a person in Pereida’s situation must offer in order to qualify to stay in the U.S.
Some courts, as in Pereida’s case, have ruled that even if the crime that was committed is not precisely defined, and thus the law at issue is “inconclusive,” it may be that the crime still involved an act of “moral turpitude” and the individual must prove that it was not. Others have said that, if the underlying crime is ambiguous or ill-defined, then courts are to assume that the crime involved only the least serious misconduct that would constitute guilt under such a law.
The question before the Court: If a non-citizen commits a crime, but it is not clear just what kind of acts were the basis for guilt because the criminal law is unclear, does the conviction alone justify deportation if not explained away by the individual?
Significance: The outcome of this case potentially affects many thousands of individuals living in the U.S. who were foreign-born. The respected Pew Research Center estimates that there are about 10.5 million non-citizens who do not have legal permission to live in the country, but still remain. It estimates that there are also about 12.3 million “green card” holders – non-citizens who live in the country legally.
Most of them are law-abiding, so there is no reliable way to determine just how many might commit crimes, and thus be at risk of being deported. But the issue in the Pereida case has produced a significant number of lower court rulings, differing in their approaches, so it is reasonable to assume that the potential impact is at least sizeable, if not vast in numbers.
The case presents the Court with a clear choice. Pereida’s lawyers argue that the Justices should embrace the view that, if the law at issue is unclear, the legal standard cannot be met so the conviction is not enough to justify deportation. The federal government’s lawyers urge the Justices to focus just on the specific terms of a multiple-clause law at issue, and determine whether the individual has proved the conviction was under the less serious of those clauses.
This particular case is of special interest because of the kind of crime that led to the conviction. Aside from the fact that it was non-violent, it was the kind of lesser offense for which state courts often do not keep complete records. Thus, the proof that a non-citizen facing deportation after a conviction will have to come up with in order to be eligible to remain may not be available, making it hard if not out of reach to prove eligibility to stay.
And, although the Supreme Court will be focused on this case on the complex interaction of two quite technical provisions of federal immigration law, and thus will not be judging whether Clemente Pereida is an upstanding individual for whom it should have sympathy, the fact that the crime was relatively minor could affect at least some of the Justices as they contemplate how to decide.
At the same time, however, the conservative majority of the Court has demonstrated repeatedly in recent years that it is strongly committed to the idea the Congress is the primary judge of how strict the immigration laws should be, and the task of the courts – including the Supreme Court — is mainly to try to determine just what Congress intended when those laws are interpreted in conflicting ways by lower courts.
