Constitutional Law Prof Blog

United States Supreme Court Extends Strip Search Authority

In a much-anticipated opinion today, the United States Supreme Court in Florence v. Board of Chosen Freeholders of County of Burlington (NJ), upheld the authority of jail authorities to strip search a person accused of a minor crime.

The case involved a claim for damages by Albert Florence, an African-American man stopped for a traffic infraction who was then taken to jail because of a years-old failure to appear charge.  Upon his detention at two different jails, Mr. Florence was stripped searched at each. More explanation from Florence and his attorney is in the video below:

 

Writing for the 5-4 majority, Kennedy's relatively brief opinion could be summed up in a single word: deference. 

Two of the five justices in the majority - - - Alito and Roberts - - - wrote separate concurring opinions that stressed the limits of the Court's opinion.  Alito phrased it thusly:

    I join the opinion of the Court but emphasize the limits of today’s holding. The Court holds that jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by correctionsofficers. To perform the searches, officers may direct the arrestees to disrobe, shower, and submit to a visual inspection. As part of the inspection, the arrestees may be required to manipulate their bodies.
    Undergoing such an inspection is undoubtedly humiliating and deeply offensive to many, but there are reasonable grounds for strip searching arrestees before they are admitted to the general population of a jail.

He later added that:

It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.

Justice Breyer, dissenting and joined by Ginsburg, Sotomayor, and Kagan, provides numerous examples of problematical, humiliating, and unnecessary strip searches, noting that the majority failed to discuss specifics.  Instead, Breyer writes, the "majority is left with the word of prison officials in support of its contrary proposition. And though that word is important, it cannot be sufficient." 

But if the Court's single word is "deference," then of course the jail officials word is almost always sufficient.

RR

Reichle v. Howards: First Amendment Retaliatory Arrest, The Secret Service, and Oral Arguments in the United States Supreme Court

During oral arguments in the Supreme Court today, the First Amendment took a definite back seat. The case is Reichle v. Howards, on certiorari from the Tenth Circuit, and involved Howard's arrest by Secret Service agents at a mall in Colorado where then-VP Dick Cheney was appearing.  Howard was taking his son to a piano recital at the mall and on his cell phone.  Apparently, no fan of the VP, Howards stated into his cell phone, "I'm going to ask him [the Vice President] how many kids he's killed today."

This was overheard by the Secret Service agents and attracted their attention.  Moreover, Mr. Howards did make good on his stated intentions:  After dropping off his son at the recital,

Mr. Howards remained behind to visit with the Vice President. As Mr. Howards waited for his turn, he observed the Vice President interacting with the gathering crowd, greeting patrons, shaking hands, and posing for photographs with onlookers. He then approached the Vice President and informed him that his "policies in Iraq are disgusting." The Vice President responded, "Thank you." As he departed, Mr. Howards touched the Vice President's right shoulder . . .

Interestingly, Mr. Howards was not arrested then, but quite a while later when agent Reichele and Howards had an "interview" which escalated, with the agent becoming angry.  The agent arrested Howards for assault on the Vice-President, based on the touching of the shoulder, which Howards has "lied" about saying he hadn't touched the VP.

No charges against Howards were brought, but Howards filed a Bivens action against the agents for violating his First, as well as his Fourth, Amendment rights.  The agents claimed qualified immunity.  While the district judge had denied qualified immunity to all agents, the Tenth Circuit held that only two agents, including Reichele, were not entitled to qualified immunity.

During the oral argument, the Fourth and First Amendment arguments were understandably intertwined, but the First Amendment was most often deemed irrelevant.

As Sean Gallagher, arguing for the Secret Service agents stated:

Virtually everyone that a Secret Service  agent encounters when he is protecting the President or the Vice President can allege that they are engaged in free speech. So for Secret Service agents in particular, they -- they can legitimately evaluate what someone is saying in order to determine a particular threat level.

During the argument on behalf of Howards by David Lane, Justice Sotomayor stated:

You do understand that this case is inviting the questions the Chief Justice asked, which, and which has -- Justice Breyer and some of us are concerned about, which is what your adversary has described as First Amendment voicing is going to be a part of many, many arrests.

Near the end of his argument, Lane made a plea for the First Amendment to be recognized:

The issue simply is can we sacrifice the First Amendment. You know, does a litterbug lose their right to have First Amendment free speech?
Does a jaywalker lose their right to have First Amendment free speech because probable cause exists to believe they've committed some offense? And you'll have officers ostensibly enforcing litter laws and jaywalking laws and blocking the sidewalk laws, and the First Amendment is essentially evaded.
100 years of jurisprudence, courageous jurisprudence, many times by this Court, goes by the boards because somebody is a litterbug. I -- I just don't see that as the solution to this problem. And I also don't see that the Secret Service needs some enhanced protection from this Court when this has never been and is not now any kind of a serious problem.
The status quo is not healthy. It has worked for decades and it should continue to work. And if these agents get tagged in this case, maybe they deserved to get tagged in this case, because the First Amendment is extremely important. And I don't denigrate the -- the job of law enforcement or -- or these agents in any way. . . . .

The Justices, however, seemed more than willing to defer to the Secret Service agents, who have recently had the scope of their protective responsibilities widened by Congress.

RR
[image via]

The Constitutional Issues Facing Sheriff Joe Arpaio

Joe Arpaio, who styled himself as "America's toughest sheriff" in his 1997 book and the 2008 sequel is facing some tough constitutional times.  As elected sheriff of Maricopa County, Arizona, Arpaio has long been controversial for his immigration and prison "get tough" stances. 

The death yesterday of a Latino veteran who had been tased while in custody of the Maricopa County jails - - - informally called Arpaio's jails - - - might well result in a lawsuit.  

A complaint filed yesterday on behalf of a woman who was shackled while she giving birth also addresses problems at the jails.  In Mendiola-Martinez v. Arpaio, the plaintiff, a non-citizen, alleges she was imprisoned without bail for forgery when she was six months pregnant.  During her labor, she was transferred to the medical center, gave birth by Cesarean section, was shackled before and after the surgery, was discharged while bleeding, shackled hands and feet, and walking through the hospital only in her hospital gown, and was taken back to jail.  The complaint claims violations of the Eighth Amendment and Fourteenth Amendment regarding deliberate indifference to medical needs, cruel and unusual punishment, and a denial of Equal Protection under the Fifth, Fourteenth, and Fifteenth Amendments.  The last claim alleges liability under Monell v. New York City Dept. of Social Svcs., 436 U.S. 658 (1978), including a failure to train, supervise, and discipline employees. All these claims are buoyed by disapproval of the shackling of women in labor.  As a press release from Mendiola-Martinez's attorneys summarizes the law:

The American College of Obstetricians and Gynecologists and the American Medical Association oppose the shackling of women in labor or recuperating from delivery. In 2008, in Nelson v. Norris, the Eighth Circuit Court of Appeals found the shackling of women prisoners during labor to constitute cruel and unusual punishment, in violation of the Eighth Amendment. The Arizona Department of Corrections eliminated the practice of shackling women in labor or in postpartum recovery in 2003. In 2007, the United States Marshal’s Service eliminated the practice of shackling women in labor. In 2008, the Federal Bureau of Prisons eliminated the practice of shackling women in labor.

The immunity of Joe Arpaio will surely be raised by his attorneys.  The extent to which Arpaio is immune was also a question before the en banc Ninth Circuit last week in the unrelated case of Lacey v. Arpaio, in which reporters for the Phoenix New Times claim a violation of their First Amendment rights based in part on their midnight arrests.  The en banc hearing vacated the previous Ninth Circuit panel opinion, causing some consternation and confusion in the oral argument, available for viewing here.  Here's a synposis of the problem, via the Phoenix New Times, and verifiable by the video:

24:50 -- Sheriff Arpaio's lawyer Eileen GilBride gets her turn. At about 27 minutes, she begins to be hit with questions and hypothetical situations about the possibility of a conspiracy by the county officials. This stays interesting for several minutes.

38:30 -- GilBride's blunder: She doesn't realize that New Times has alleged a conspiracy because she apparently isn't familiar enough with the case. And she forgot the document that contains the part about the conspiracy allegation.

"You come to court without briefs?" Kozinski chides, waving some papers in the air.

GilBride plunges ahead on her bad recollection until called on it by Kozinski, who informs her that the conspiracy allegation is in the suit's opening brief.

40:15 -- The dress-down: "Coming to court without the briefs is poor lawyering in itself, but not knowing what's in the briefs is even worse," Kozinski says.

This could be a useful bit for ConLawProfs mentoring or judging moot court teams.

In addition to litigation woes, Sheriff Arpaio and the Maricopa County Sheriff's Office (MCSO) is again the subject of negative Department of Justice findings.  The December 15 letter concludes that the office has violated the First, Fourth, and Fourteenth Amendments to the United States Constitution, and has 60 days to take "clear steps" toward reaching an agreement with the Department of Civil Rights to remedy these violations, or there will be a civil suit seeking remedies.  This letter states it is unrelated to a previous investigation that it specifically references: an investigation concluding that unconstitutional conditions existed at the jails with respect to (1) the use of excessive force against inmates and (2) deliberate indifference to inmates' serious medical needs. An agreement between the United States and MCSO was reached in October 1997.  In this letter, police practices aimed at perceived immigrants are highlighted, with the letter concluding the practices " "are unconstitutional and are harming innocent Latinos."

The December 15 letter specifically focuses on Arpaio's role:

Sheriff Arpaio's own actions have helped nurture MCSO's culture of bias. For example, Sheriff Arpaio has frequently distributed racially charged constituent letters, annotating the letters with handwritten notes that appear to endorse the content of the letter, circulating the letters to others on the command staff, and/or saving the letters in his personal file. Many of these letters contain no meaningful descriptions of criminal activity-just crude, ethnically derogatory language about Latinos.

There is speculation that Arpaio will not run for relection as sheriff, as well as speculation he will run for the United States Senate.

RR
[Photo of Joe Arpaio of Maricopa County, Arizona speaking at the Tea Party Patriots American Policy Summit in Phoenix, Arizona, by Gage Skidmore, via]

Bill of Rights Day 2011

Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.

In his Presidential Proclamation last week, Obama stated:

On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.

Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.

Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.

Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."

The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights.  Instead, they concerned Congress itself:

Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The latter became the 27th Amendment, ratified more than two centuries later in 1992.

Still, it's a good day to reflect on the "Bll of Rights":

• Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
• Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
• Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
• Amendment 4.  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
• Amendment 5.  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
• Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
• Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
• Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
• Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
• Amendment 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 

RR
[image from National Archives via] 

Occupy: Wrongful Arrest and Police Brutality Lawsuits Begin

Given the widely circulated police activities to control protest, including the pepper spraying of students at UC-Davis, as well as other incidents, damage lawsuits against law enforcement will most likely increase.

The complaint in Carpenter v. City of New York, filed in the Southern District of New York today, alleges violations of the Fourth Amendment resulting from false arrest and excessive force. 

The specific incident was October 15, 2011: an occupy event of a CitiBank in New York City.  Heather Carpenter, a CitiBank account holder, and her fiance', Julio Jose Jimenez-Artunduaga, were caught up in the arrests.  The complaint does allege that Carpenter was there to withdraw her money in protest, but also that she left the bank building after doing so, and that Jimenez-Artunduaga was outside the building.  However, the complaint alleges that the pair were forced back into the bank, and then arrested for trespassing.  (The charges were dropped).

The events were captured on video and photographs, including the photograph of Jimenez-Artunduaga's bloody hand, attached to the complaint as an exhibit.

The complaint includes claims for relief against the city, both for policies and on a theory of supervisory liability.  For example, paragraph 87 alleges:

Upon information and belief, Defendant CITY OF NEW YORK planned and implemented a policy, practice, custom and usage of controlling the OWS protests and those who
attended the bank protests, that was designed to and did preempt lawful activities by ordering and effecting indiscriminate mass arrests, illegally arresting protestors, including bank customers, and needlessly detaining them for excessively long periods. Upon information and belief, the CITY OF NEW YORK consciously disregarded the illegality and unconstitutionality of said arrests and detentions in order to facilitate and promote the CITY OF NEW YORK's desired reputation as corporate friendly and pro-bank.

RR

Ninth Circuit: No Qualified Immunity in Excessive Force Case

The Ninth Circuit ruled today in Glenn v. Washington County that police officers did not enjoy qualified immunity from a civil rights suit for shooting and killing a suicidal youth.

Lukus Glenn, a recent high school graduate, returned to his parents' home late one night, drunk.  After a verbal altercation, Lukus pulled a pocketknife, held it to his neck, and threatened to kill himself.  Lukus's mom called 911.

Police arrived, knowing that Lukus was suicidal, and handled the situation as if Lukus posed a threat to others.  One officer shot six beanbag rounds at Lukus, and, when Lukus ran for cover, two other officers unloaded eleven rounds from their semiautomatics, killing Lukus.  Officers later claimed that they thought Lukus was running into the house and posed a threat to his parents.

Lukus's mom filed suit under 42 U.S.C. Sec. 1983, arguing that the officers used excessive force in violation of the Fourth Amendment.  The district court ruled that the officers enjoyed qualified immunity and granted their motion for summary judgment.

The Ninth Circuit reversed.  The court ruled that under the totality of the circumstances the officers were not entitled to summary judgment on their qualified immunity defense.  The court said that officers could have used some reasonable force to prevent Lukus from taking his own life, but that the force here exceeded standards that apply even when a suspect is threatening others.

The court also remanded the plaintiff's Monell claim against Washington County (which the lower court dismissed based on its entry of summary judgment in favor of the officers) and a related state law claim. 

The ruling means that the case can move forward at the district court.

SDS

Court Rejects Claim Against Municipality for Failure to Meet Pleading Standards

Judge Amy Berman Jackson (D.D.C.) yesterday dismissed a plaintiff's civil rights suit against the District of Columbia for failure to meet the pleading standard under Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly.

The plaintiff in the case, Garabis v. Unknown Officers, Elena Garabis, alleged assault and battery, excessive force, and unreasonable seizure in violation of the Fourth Amendment after District officers arrested her.  As part of her claims, Garabis alleged that officers used Tasers excessively and unnecessarily.  Garabis sued the officers and the District, alleging, under Monell v. Department of Social Services, that the District had a policy of deliberate indifference to the widespread use of Tasers.  (Under Monell, a plaintiff may sue a municipality for civil rights violations, but only if the plaintiff can show that the municipality had an official policy that led to the violations.  A plaintiff may not sue a municipality in vicarious liability, for the acts of its officers.)

But Garabis neglected to include this allegation in her complaint.  Instead, Garabis only wrote that the District employed the officers and that it was responsible for the police department.  Garabis offered more particular facts in support of her theory of Monell liability only in response to the motion to dismiss--too late for a ruling on a 12(b)(6) motion on the complaint.

Garabis can amend her complaint to include more particular facts in support of her Monell theory, and, in any event, the ruling does not affect her on-going case against the officers.

We only just recently posted on another Monell case that failed to meet the heightened pleading standard in Iqbal and Twombly, McCauley v. Chicago, out of the Seventh Circuit.  That ruling includes a lengthy and scathing dissent that roundly criticizes the standard set in those cases. 

SDS

Florida's Mandatory Drug-Testing for "Welfare Recipients" Enjoined by Federal Judge

In an Order today, Federal District Judge Mary Scriven issued a preliminary injunction against the enforcement of Florida Statute §414.0652, a law championed by controversial governor Rick Scott requiring drug testing for each individual who applies for benefits under the federally funded TANF (Temporary Assistance for Needy Families) program to take a drug test, which must occur at an "approved laboratory" and be paid for by the applicant. 

In Lebron v. Wilkins, the challenger sought a preliminary injunction and argued that the statute violated the Fourth Amendment's protection against unreasonable searches.  The State argued the requirement for acquiescence to a drug test is not a search within the meaning of the Fourth Amendment; the statute is justified by the “special needs” of the State to conduct drug testing within the ambit of its administration of TANF funds; the plaintiff will suffer no irreparable harm in the absence of an injunction because he is free to refuse the drug test; and the public interest lies in ensuring that public funds are expended for their intended purposes and not in ways that will endanger the public.

Judge Scriven rejected each of these contentions. 

Certainly drug tests are within the ambit of the Fourth Amendment, Judge Scriven held, with a surfeit of citations to support her conclusion. 

Her most pointed analysis, however, concerned the State's argument of "special needs" for testing applicants for TANF.  The State's argument was undermined by the State's own evidence.  Florida's first drug-testing regime started in 1996 as a "Demonstration Project" to study and evaluate the “impact of the drug-screening and drug-testing program on employability, job placement, job retention, and salary levels of program participants” and to make “recommendations, based in part on a cost benefit analysis, as to the feasibility of expanding the program,” including specific recommendations for implementing such an expansion.   This program was allowed to expire by the Florida lesgilature under the statutory sunset provisions because the studies showed that TANF applicants rarely tested positive for substance abuse.  Indeed, they tested positive at a lower rate than the estimate for the Florida population at large.   Thus, the "exceptional circumstances" necessary to support "special needs" was contradicted by the State's own evidence.

As Judge Scriven wrote:

the State invokes the government’s general interest in fighting the “war on drugs” and the associated ills of drug abuse generally to contend that TANF funds should not be used to fund the drug trade. The Court agrees. But, if invoking an interest in preventing public funds from potentially being used to fund drug use were the only requirement to establish a special need, the State could impose drug testing as an eligibility requirement for every beneficiary of every government program. Such blanket intrusions cannot be countenanced under the Fourth Amendment.

What the Fourth Amendment requires is that such incursions by the Government must be reserved for demonstrated special needs of government or be based on some showing of reasonable suspicion or probable cause. The State has made no showing that it would be “impracticable” to meet these prerequisites in the context of TANF recipients. Any suggestion that it would be impracticable should be based on some evidentiary showing, and any such showing would likely be belied by the fact that other states competently administer TANF funds without drug tests or with suspicion-based drug testing and no other state employs blanket suspicionless drug testing.

The judge entered a preliminary injunction as to the individual plaintiff Lebron and noted the State's stipulation to apply the court's ruling to all persons similarly situated.

RR
[image: William Harper, Florida Landscape via]

Taser-Wielding Law Enforcement Officers Granted Immunity by Ninth Circuit

In an opinion today in the companion cases of Mattos v. Knight & Maui County and Brooks v. City of Seattle, the Ninth Circuit sitting en banc reversed two district judges who denied summary judgment motions by law enforcement officers that they were entitled to qualified immunity as a matter of law. 

In both situations, law enforcement officers wielded tasers against a woman who was arguably not threatening. Brooks entered a school zone, dropping her child off at school, and was charged with not adequately reducing her speed.  Mattos was the victim of a domestic assault.  Both women were tasered: Brooks because she refused to sign the citation and was placed under arrest, Mattos while she was asking why her partner was being arrested and attempting to defuse the situation.  Brooks, 7 months pregnant was tasered three times;  Mattos was subject without warning to a dart-taser. 

The Ninth Circuit held that in each case the law enforcement officers used excessive force.  For example, the court summarized its conclusions regarding Brooks:

In sum, Brooks’s alleged offenses were minor. She did not pose an immediate threat to the safety of the officers or others. She actively resisted arrest insofar as she refused to get out of her car when instructed to do so and stiffened her body and clutched her steering wheel to frustrate the officers’ efforts to remove her from her car. Brooks did not evade arrest by flight, and no other exigent circumstances existed at the time. She was seven months pregnant, which the officers knew, and they tased her three times within less than one minute,
inflicting extreme pain on Brooks.

As Judge Schroeder, concurring, noted, both women's conduct was nonthreatening:

I write separately only to emphasize the non-threatening nature of the plaintiffs’ conduct. Both were women, with children nearby, who were tased after engaging in no threatening conduct. In Mattos, a domestic violence victim wanted the officers outside her home so they would not awaken her children. In Brooks, the police stopped the pregnant plaintiff for speeding in front of her child’s school — when she refused to sign the traffic ticket and exit the vehicle, the police tased her. Her behavior may be difficult to understand, but it certainly posed no immediate threat to the officers.

Yet applying the increasingly stringent requirement after last term's decision in Ashcroft v. al-Kidd that there was a clearly established right at the time of the occurrence, the court found the officers were entitled to qualified immunity.  The test, as the court distilled it was that "every reasonable officer at the time of the respective incidents would have known—beyond debate—that such conduct violates the Fourth Amendment."  (Emphasis added).  The court rehearsed several taser cases and concluded that the actions the court found were excessive force were not - - - beyond debate - - - excessive force.  

The dissenting and concurring opinion of Kozinski, joined by Bea, is less sympathetic to the women.  For Kozinski, 

Brooks and Mattos breached the covenant of cooperation by refusing to comply with police orders. When citizens do that, police must bring the situation under control, and they have a number of tools at their disposal.

The "traditional tools" such as choke-holds can be "distasteful" according to Kozinski; "The Taser is a safe alternative."  It is certainly to be preferred to "pepper-spray," which Kozinski maligns in two separate instances, including rhetorically rejecting "pepper spray or some other noxious chemical, which would be absorbed into her bloodstream and go straight to the fetus" as an alternative to control Brooks.

Kozinski rejects any concern for the women's status as women: 

I thought we were long past the point where special pleading on the basis of sex was an acceptable form of argument. Women can, of course, be just as uncooperative and dangerous as men, and I would be most reluctant to adopt a constitutional rule that police must treat people differently because of their sex.

The opinion as a whole, and certainly Kozinski's remarks regarding gender and pepper spray, have special resonance to recent events at the "occupation" of Zuccotti Park near Wall Street.  The pepper spraying of a woman protester by a senior law enforcement officer was captured on video and distributed widely.

 

 

Chelsea Elliot, the woman in the video being pepper sprayed by an officer identified as Anthony Bologna, is reportedly bringing a civil suit for excessive force.  The NYPD is reportedly also investigating Bologna and other senior officers.

For those teaching constitutional litigation, civil rights, and similar courses this semester, the video and the case would make a great pairing for discussion or an individual student project.

RR

Court Considers Constitutionality of Strip Searches for Arrestees

The Supreme Court heard oral arguments today in Florence v. Board of Chosen Freeholders (Burlington), asking whether arrestees can be strip-searched on admission to jail without reasonable suspicion.

The case grew out of Albert Florence's arrest and jailing on an outstanding warrant.  The arresting officer took Florence to Burlington County Jail, where officers conducted a strip-search and a visual body-cavity search (including a shower) as part of the intake process.  Florence was detained at Burlington for six days and was then transferred to Essex County Jail.  Officers at Essex conducted similar searches, but this time required Florence to squat and cough to expel any contraband.  Neither Burlington nor Essex officers had reasonable suspicion that Florence was concealing contraband.

Florence argued that his searches violated the Fourth Amendment, because officers lacked reasonable suspicion.  Burlington and Essex, helped by the U.S. solicitor general as amicus, argued that prison officials could conduct blanket intake strip searches like these without reasonable suspicion.

As we might expect, oral arguments centered around the necessary line drawing in a case like this.  Justices wondered whether Florence's reasonable suspicion standard should apply to all arrestees--those arrested for both serious and non-serious offenses, violent and non-violent, drug-related and not, etc.  They wondered just how intrusive a search would trigger the reasonable suspicion standard--a search at 2 feet, or at 5 feet, or at 10 feet.  They wondered whether reasonable suspicion would apply to all types of searches--those conducted for contraband, and those conducted for prison health purposes (as in, say, a lice check).  And they wondered about both the administrability of a reasonable suspicion standard (for the prison) and the trade on personal dignity that might accompany searches based on individualized assessment (for the arrestees). 

If the arguments today are any indication, nobody on the Court seems particularly enthuastic about drawing these lines.

And yet the parties' stronger positions--that reasonable suspicion should always apply (from Florence), and that it should never apply (from the jails)--also had their drawbacks.  As several justices pointed out (led by Justice Breyer), there's scant empirical evidence that contraband works its way into jails under a reasonable suspicion standard.  Moreover, as Justice Alito suggested, applying blanket, suspicionless strip searches to, say, people arrested for routine traffic citations seems wrong.  And as Tom Goldstein argued (for Florence), nobody seems to seriously contest the administrability of a reasonable suspicion standard; in fact, it's the one applied by the federal Marshal Service and ICE to over 600,000 arrestees every year.

On the other side, there was some evidence in the record--testimony by a prison warden--that blanket suspicionless strip searches are necessary to protect the safety of all prisoners.  And, as Carter Phillips argued for the jails, the Court has granted deference in the penal context; according to Phillips, deference here means no constitutional bar to suspicionless strip searches.

Because of the inevitable line-drawing problems with any intermediate position, look for the Court to lean toward a categorical rule--either that reasonable suspicion is always required, or that it is never required.  This, in turn, will almost certainly depend on administratibility and effectiveness of a reasonable suspicion rule (or not)--the kinds of empirical questions over which several justices expressed concern.  But still there may be a thumb on the Court's scale against a categorical rule for reasonable suspicion: as the arguments made clear, such a rule would necessarily introduce some line-drawing--say, as Chief Justice Roberts pointedly put it, between a search at 2 feet or a search at 5 feet--and it wasn't at all clear that a majority on the Court would be comfortable with this (much less in agreement over the line).

Here's a short video by the American Constitution Society and the National Constitution Center on the story behind the case:

We previously posted on the issue here, on Bame v. Dilland, a split decision by a three-judge panel of the D.C. Circuit that the officer enjoyed qualified immunity for a suspicionless strip search of a non-violent, non-drug-related arrestee.

SDS

Wisconsin Law School Conference: The Constitutionalization of Labor and Employment Law?

Wisconsin has recently been the site of several recent controversies regarding labor law, including academic labor, and the University of Wisconsin Law School Conference, The Constitutionalization of Labor and Employment Law?, on October 28-29, 2011 in Madison is sure to address some of these issues. 

Additionally, the conference organizers note that recent "U.S. Supreme Court cases have contained much legal discussion at the intersection of constitutional law concepts and the law of the workplace – both in the public-sector workplace where constitutional state action exists and in the private-sector workplace where it does not. Recent cases include: Garcetti v. Ceballos, Christian Legal Society v. Martinez, City of Ontario v. Quon, NASA v. Nelson, Engquist v. Oregon Dept. of Agricultural, and Ricci v. DeStefano."

The 5 panels are Equal Protection, 13th Amendment, Workplace Privacy, Freedom of Association and Freedom of Speech.  

More information, including registration information is here.  The "symposium fee is waived for full-time members of academia," pre-registration is required and the deadline is October 18. 

RR

First Circuit: Police Officers Lack Qualified Immunity in Cell Phone Recording Arrest

The First Circuit has denied qualified immunity to several police officers who arrested a bystander for recording their arrest of a third person in its opinion in Glik v. Cunniffe. 

Simon Glik was arrested for using his cell phone's digital video camera to film several police officers arresting a young man on the Boston Common - - - a site the court describes as "the oldest city park in the United States and the apotheosis of a public forum."  The charges against Glik, which included violation of Massachusetts's wiretap statute were "subsequently judged baseless and were dismissed." Glik then brought suit under 42 U.S.C. § 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments.  The ACLU is representing Glik, and produced the video below that discusses Glik's case and includes an interview with Glik.

 

  

 

 Affirming the district judge on this interlocutory appeal, the court applied the two prong test for qualified immunity: do the allegations show a constitutional violation; and was such constitutional violation "clearly established" at the time of the incident.  For the constitutional violation to be clearly established, the law must have been clear and the defendants must have reasonably understood their actions violated the plaintiff's rights given the facts.

On the First Amendment issue regarding Glik's right to use his cell phone to record police officers in a public place, the First Circuit held that while there need not be a case directly on point, the First Circuit did have such a case.  The court also noted that what was "particularly notable" about that case was the "brevity of the First Amendment discussion, a characteristic found in other circuit opinions that have recognized a right to film government officials or matters of public interest in public space."  For the court, this very "terseness implicitly speaks to the fundamental and virtually self-evident nature of the First Amendment's protections in this area."  The court summed up its conclusion thusly:

Although not unqualified, a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.

The court thus stated it had "no trouble concluding"  that the state of the law at the time of the alleged violation was settled and gave the defendants fair warning that their particular conduct was unconstitutional. 

As for the Fourth Amendment issue, the question was whether Glik's use of the cell phone that included an audio recorder provided probable cause to arrest Glik for violating the Massachusetts wiretap statute.  The court carefully examined state law, holding that it was clear that to violate the state statute the recording had to be surreptitious.  The complaint alleged that Glik was openly recording the officers, however the officers countered that while they might have known he was video-recording them, they would not necessarily know he was audio-recording them.  This was insufficient, the court held, to render the recording "secret."

Thus, Glik's complaint will proceed to trial in district court.  Assuming Glik can prove the facts alleged in the complaint, qualified immunity was the best defense for the officers.   Odds on a settlement?

RR
[h/t Nate Treadwell]

Seventh Circuit Denies Qualified Immunity to Officers for Failure to Provide Medical Care

A panel of the Seventh Circuit ruled last week that Chicago Police Department lockup officers did not enjoy qualified immunity for denying medical care to an arrestee when the officers knew about the arrestee's medical condition and that she needed care. 

The case, Molina v. City of Chicago, is the latest chapter in the long-running litigation between the estate of May Molina, a prominent civil rights activist, and the City and CPD officers arising out of Molina's death while in police custody prior to her probable cause hearing. 

Molina was arrested after seventeen officers raided her home on a drug tip and recovered a number of tinfoil packets and some brown putty.  Arresting officers denied Molina permission to take along her medication for diabetes; lockup officers refused to give her medical attention when she asked for a doctor--and quite clearly needed one.  Molina died while in custody.  (There's a factual dispute about the cause of Molina's death: her estate argues that she died because she didn't have her diabetes medication, while the defendants argue that she died of a heroin overdose.  There's a related evidentiary dispute about the lower court's rejection of Molina's expert (which the Seventh Circuit reversed).  But the case came to the court on appeals of summary judgment in favor of the defendants; the court ruled that the facts viewed in the light most favorable to Molina warranted reversal.)

The court ruled that the lockup officers were aware of Molina's condition and that they denied her appropriate medical care.  But the defendants argued that they were entitled to qualified immunity, because at the time of Molina's detention the law wasn't clear what standard applied--the Eighth Amendment "deliberate indifference" standard or the Fourth Amendment "objectively unreasonable" standard. 

The court rejected that argument.  It ruled that it had long held that the Fourth Amendment protected an arrestee until the probable cause hearing.  But in any event, it didn't matter: Molina's evidence could also show that the officers violated the higher Eighth Amendment standard.

The ruling means that the case goes back to the district court on Molina's claim that she was denied medical care. 

SDS

[Image: Delacroix, The Prisoner of Chillon, Wikimedia Commons]

Court Upholds TSA's Use of Body Scanners

A three-judge panel of the D.C. Circuit today rejected arguments in Electronic Privacy Information Center v. U.S. DHS that the Transportation Security Administration's use of advanced imaging technology (instead of magnetometers) violated the Fourth Amendment (and various federal statutes).  The court also ruled that the TSA failed to use notice-and-comment rulemaking in adopting the scanner; but the court declined to vacate the rule, opting instead to remand to the TSA for further proceedings.  (The court declined to say whether the TSA might invoke the Administrative Procedure Act's "good cause" exception to notice-and-comment rulemaking, so it's not clear that the agency will use notice-and-comment rulemaking.)   The ruling validates the TSA's use of body scanners at airports, but it also requires the TSA to take a second look at the issue--at least to determine whether use of the scanners meets the APA's good cause exception.

 

As to the Fourth Amendment, the court ruled that TSA airport screenings are "administrative searches," subject to a balancing test under the Fourth Amendment between the degree to which the screening intrudes upon an individual's privacy and the degree to which it's needed for a legitimate government interest.  Here's what the court said about that balance:

[It] clearly favors the Government here.  The need to search airline passengers "to ensure public safety can be particularly acute," and, crucially, an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form.  On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared.  More telling, any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.

SDS

[Image: Millimeter Wave Technology Image, from TSA: How it Works]

Alabama HB56: Constitutional Challenge to Alabama Immigration Law

Alabama's HB56, signed into law in June, and being touted as the "nations' toughest immigration law," has been challenged in federal court. 

The Alabama statute, slated to become effective September 1, joins other state statutes such as Arizona's SB1070, partially enjoined with the injunction upheld on appeal;  Indiana's statute enjoined last month; and Georgia's statute also enjoined last month.

Alabama's statute shares many of the constitutional problems of the Arizona, Indiana, and Georgia statutes.

One of the more controversial requirements includes "record-keeping" by public schools: 

Every public elementary and secondary school in this state, at the time of enrollment in kindergarten or any grade in such school, shall determine whether the student enrolling in public school was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States and qualifies for assignment to an English as Second Language class or other remedial program.

Other provisions criminalize harboring or transporting an "alien," a provision that could criminalize citizens assisting non-citizen family members, mandatory use of E-verify by employers, and criminal solicitation provisions.

The 118 page complaint in  Hispanic Interest Coalition of Alabama v. Bentley, filed on behalf of several organizations, represented by organizations including the Southern Poverty Law Center, has eight constitutional claims including claims under the Supremacy Clause (arguing that the state law is pre-empted); Fourth Amendment; Equal Protection Clause; Due Process Clause;  First amendment claims including speech, assembly, and petition clauses, and the Contracts Clause.  The Complaint also includes two interesting Sixth Amendment claims:

HB 56 violates the Confrontation Clause because a defendant would be prohibited from confronting the witness who prepared the federal government verification, and the state court is prohibited from considering any evidence except for the federal government verification.

HB 56’s criminal provisions violate the Compulsory Process Clause (as well as the Due Process Clause) because a defendant would be prohibited from presenting a defense on the issue of whether he or she possesses lawful immigration status.

Whether or not the Alabama statute is enjoined as similar statutes have been, the issue of the ability of states to pass immigration measures - - - and the scope of any measures - - - is sure to reach the United States Supreme Court, yet again.

RR
[image: flag map of Alabama via]

 

Federal Judge Enjoins Georgia's Immigration Statute

Georgia's House Bill 87, the "Illegal Immigration Reform and Enforcement Act of 2011" is similar to efforts by other states to control immigration, including the Indiana statute enjoined a few days ago and most notably Arizona.

A motion for preliminary injunction sought relief on three sections of the statute scheduled to take effect on July 1, 2011, but a federal judge has enjoined its enforcement in a 45 page opinion (and additional appendix).

The plaintiffs contended that HB87 violates the Fourth Amendment, the Fourteenth Amendment's due process and equal protection clause, and Article IV privileges and immunities clause right to travel.  The district judge rejected all of these arguments, as well as rejecting the State's argument that the individual and organizational plaintiffs lacked standing.

However, the district judge found favor with the arguments that the provisions of HB87 under consideration were preempted by federal law and therefore violative of the Supremacy Clause.

Section 8 of HB 87 authorizes local law enforcement officers to investigate a suspect’s illegal immigration status and, if the officer determines the suspect has violated federal immigration law, detain and arrest the suspect without a warrant. The judge stated: "Congress, however, has already addressed the circumstances in which local law enforcement personnel may enforce federal civil immigration law" in statutes that "clearly express Congressional intent that the Attorney General should designate state and local agents authorized to enforce immigration law."  Indeed, the district judge noted, "Congress has provided that local officers may enforce civil immigration offenses only where the Attorney General has entered into a written agreement with a state," or "where the Attorney General has expressly authorized local officers in the event of a mass influx of aliens."

Section 7 of HB87 creates three criminal violations: (1) transporting or moving an illegal alien in a motor vehicle; (2) concealing, harboring or shielding an illegal alien from detection;  and (3) inducing, enticing, or assisting an illegal alien to enter Georgia.  The judge distinguishes Chamber of Commerce v. Whiting, decided by the United States Supreme Court in May, in which the Court held that federal law did not preempt an Arizona statute providing for suspension and revocation of business licenses for entities employing unauthorized aliens. Unlike in Whiting, the judge found that the state and federal provisions were not parallel: the state law prohibits knowingly inducing, enticing or assisting illegal aliens to enter Georgia.  The federal law's corresponding “inducement” provision prohibits inducing an alien to “come to, enter, or reside in the United States.” "Once in the United States, it is not a federal crime to induce an illegal alien to enter Georgia from another state."  Moreover, the judge reasoned that the Arizona statute in Whiting "imposed licensing laws specifically authorized by a statutory savings clause, HB87 imposes additional criminal laws on top of a comprehensive federal scheme that includes no such carve out for state regulation."

The judge therefore found both sections 7 and 8 to be sufficiently constitutionally suspect to support a preliminary injunction. 

The judge also had some observations on Georgia's articulated necessity for regulating immigration:

The widespread belief that the federal government is doing nothing about illegal immigration is the belief in a myth. Although the Defendants characterize federal enforcement as “passive,” that assertion has no basis in fact. On an average day, Immigration and Customs Enforcement officers arrest approximately 816 aliens for administrative immigration violations and remove approximately 912 aliens, including 456 criminal aliens, from the United States. (Declaration of Daniel H. Ragsdale ¶ 5) (Attached for convenience as Appendix B). In 2010, immigration offenses were prosecuted in federal court more than any other offense. U.S. SENTENCING COMMISSION–2010SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 11-12 (2010).  Of the 83,946 cases prosecuted under the federal sentencing guidelines, 28,504, or 34% involved immigration offenses. Id. In 2010, of 81,304 criminal cases prosecuted in federal court, 38,619 (47.5%) were non-United States citizens. It is true that there are thousands of illegal immigrants in Georgia that are here because of the insatiable demand in decades gone by for cheap labor in agriculture and certain industries such as construction and poultry processing. The federal government gives priority to prosecuting and removing illegal immigrants that are committing crimes in this country and to those who have previously been deported for serious criminal offenses such as drug trafficking and crimes of violence. (Declaration of Daniel H. Ragsdale ¶¶ 16-28.) To the extent that federal officers and prosecutors have priorities that differ from those of local prosecutors, those priorities are part of the flexibility that “is a critical component of the statutory and regulatory framework” under which the federal government pursues the difficult (and often competing) objectives, of “protecting national security, protecting public safety, and securing the border.”

 

 

The federal district judge is Thomas Thrash formerly a LawProf at Georgia State.  The case is sure to be appealed to the Eleventh Circuit.

RR
[image: Cutters at Turpentine Farm in Georgia via]

Indiana Immigration Law (SEA 590) Enjoined by Federal Judge

Indiana has joined several other states, most notably Arizona, in passing statutes intended to regulate immigration.  The Indiana statute, SEA 590 set to become effective July 1, has been partially enjoined by a federal district judge in a 39 page Order

The judge enjoined both provisions challenged by plaintiffs:

• Section 19 of SEA 590, which amends Indiana Code § 35-33-1-1(1), by adding new sections (a)(11)-(a)(13), authorizing state and local law enforcement officers to make a warrantless arrest of a person when the officer has a removal order issued for the person by an immigration court, a detainer or notice of action issued for the person by the United States Department of Homeland Security, or has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies.
• Section 18 of SEA 590, to be codified as Indiana Code § 34-28-8.2, which creates a new infraction under Indiana law for any person (other than a police officer) who knowingly or intentionally offers or accepts a consular identification card as a valid form of identification for any purpose.

The opinion considers standing issues, as well at the standards for preliminary injunction, but found both sections 19 and 18 unconstitutional and enjoined their enforcement.

As to section 19, the judge found it troubling under both pre-emption and Fourth Amendment principles.  On pre-emption, the judge stated that :

Clearly, it is not the intent or purpose of federal immigration policy to arrest individuals merely because they have at some point had contact with an administrative agency about an immigration matter and received notice to that effect. Authorizing an arrest for nothing more than the receipt of an administrative notification plainly interferes with the federal government’s purpose of keeping those involved in immigration matters apprised of the status of their cases, but not arresting them.

As to the Fourth Amendment issue, the judge noted that the State conceded that "nothing under Indiana law makes criminal the receipt of a removal order, a notice of action or detainer, or a person’s having been indicted for or convicted of an aggravated felony."   Section 19 expressly provides that state and local enforcement officers 'may arrest' individuals for conduct that all parties stipulate and agree is not criminal."   While the State argued that the statute would only be enforced in circumstances in which the officer had a "separate, lawful reason for the arrest," the judge found that construction "fanciful" and would " in effect, read the statute out of existence."  The judge thus found the statute violative of the Fourth Amendment.

On section 18, the judge similarly considered pre-emption, but also an equal protection and due process challenge.   On pre-emption, the treaty power was also implicated, and planitiffs argued that the provision interferes with rights bestowed on foreign nations by treaty as well as with the federal government’s responsibilities for the conduct of foreign relations.  The State rejoined that the statute does not directly conflict with any treaty nor does it impede the federal government’s ability to manage foreign affairs, because Section 18 is merely an "internal regulation outlining acceptable forms of identification within the State of Indiana that does not single out or conflict with any identifiable immigration policy or regulation."  The judge reasoned that the provision targeted "only one form of identification – CIDs issued by foreign governments" and moreover, regulated CIDs "in the broadest possible terms, restricting not just what state agencies may accept as valid identification but prohibiting what identification may be shown and accepted for purely private transactions."   With regard to equal protection, the judge cited United States Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), noting that this "targeting" was a "bare desire to harm a politically unpopular group."  Thus, the judge found this provision unconstitutional as well.

The District Court Judge, Sarah Evans Parker (pictured above) was appointed to the bench by president Ronald Regan in 1984; an interesting profile of the judge, with video interviews, appeared earlier this year from Indiana Business Journal. 

RR

Florida Public Employees Update: State and Federal Constitutional Complaints

A controversial Florida statute, spearheaded by Governor Rick Scott, mandating state employees to contribute 3% to their pension funds is the subject of a complaint filed in state court.

The complaint contends that the legislative change violates the Florida Constitution: the contract clause, Article I, section 10;  the takings clause, Article X, section 6; and the right to collectively bargain, Article I section 6. 

The Article I, section 6 claim is based on Florida's "right to work" constitutional provision:

The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.

 Earlier this month, Governor Scott suspended his executive order relating to a different right of public employees, a right to be free from unreasonable searches under the Fourth Amendment.  The executive order provided for mandatory random drug testing; public employees filed a complaint and request for preliminary injunction in federal court in Miami, but there has not yet been a ruling.

 RR

 

Texas House Moves Bill to Ban Federal Pat-Downs

The Texas House of Representatives this week passed legislation that would ban TSA pat-down searches, among other actions by state and federal officers.

The legislation, H.B. 1937, states that any "public servant" commits an offense when

while acting under color of the person's office of employment without probable cause to believe the other person committed an offense:

(A) performs a search for the purpose of granting access to a publicly accessible building or form of transportation; and

(B) intentionally, knowingly, or recklessly:

(i) touches the anus, sexual organ, buttocks, or breast of the other person, including touching through clothing; or

(ii) touches the other person in a manner that would be offensive to a reasonable person.

The legislation also more generally bans any intentional denial or impediment by a "public servant" of "any right, privilege, power, or immunity, knowing the actor's conduct is unlawful."

The legislation defines "public servant" to include an "officer, employee, or agent of the United States."

The bill (if it were to become law)--obviously preempted by federal law creating and empowering the TSA, among other federal "public servants"--is best understood as yet another political statement by a State objecting to federal policy.  (This appears to be the first state bill passed by any house in any state legislature that would ban TSA pat-downs.)

SDS

Footnote of the Day: Bill of Rights Provisions Incorporated Against the States

In need of a handy list (with citations) of the provisions of the Bill of Rights incorporated against the states through the Fourteenth Amendment's Due Process Clause? 

The Court's opinion in McDonald v. City of Chicago, decided June 2010, is an obvious place to look and its footnotes do not disappoint.  

As support for the proposition "The Court eventually incorporated almost all of the provisions of the Bill of Rights," the opinion includes footnote 12: 

With respect to the First Amendment, see Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947) (Establishment Clause); Cantwell v. Connecticut, 310 U. S. 296 (1940) (Free Exercise Clause); De Jonge v. Oregon, 299 U. S. 353 (1937) (freedom of assembly); Gitlow v. New York, 268 U. S. 652 (1925) (free speech); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931) (freedom of the press).

With respect to the Fourth Amendment, see Aguilar v. Texas, 378 U. S. 108 (1964) (warrant requirement); Mapp v. Ohio, 367 U. S. 643 (1961) (exclusionary rule); Wolf v. Colorado, 338 U. S. 25 (1949) (freedom from unreasonable searches and seizures).

With respect to the Fifth Amendment, see Benton v. Maryland, 395U. S. 784 (1969) (Double Jeopardy Clause); Malloy v. Hogan, 378 U. S. 1 (1964) (privilege against self-incrimination); Chicago, B. & Q. R. Co.v.Chicago, 166 U. S. 226 (1897) (Just Compensation Clause).

With respect to the Sixth Amendment, see Duncan v. Louisiana, 391U.S. 145 (1968) (trial by jury in criminal cases); Washington v. Texas, 388 U. S. 14 (1967) (compulsory process); Klopfer v. North Carolina, 386 U. S. 213 (1967) (speedy trial); Pointer v. Texas, 380 U. S. 400 (1965) (right to confront adverse witness); Gideon v. Wainwright, 372U.S. 335 (1963) (assistance of counsel); In re Oliver, 333 U. S. 257 (1948) (right to a public trial).

With respect to the Eighth Amendment, see Robinson v. California, 370 U. S. 660 (1962) (cruel and unusual punishment); Schilb v. Kuebel, 404 U. S. 357 (1971) (prohibition against excessive bail).

 In the next footnote, footnote 13, the Court discusses the provisions that have not been incorporated:

                the Sixth Amendment right to a unanimous jury verdict;
                the Third Amendment’s protection against quartering of soldiers;
                the Fifth Amendment’s grand jury indictment requirement;
                the Seventh Amendment right to a jury trial in civil cases;
                the Eighth Amendment’s prohibition on excessive fines

 At issue in McDonald, of course, was the Second Amendment's right to "keep and bear arms."  

In a 5-4 decision, the Court in McDonald held that this right belongs with the category of incorporated rights in footnote 12 and not with the unincorporated rights discussed in footnote 13.

RR