The Criminal Justice of Amy Coney Barrett, Part Two

 

By David K. Shipler 

                The newest Supreme Court Justice, Amy Coney Barrett, writes much better than most of her new colleagues, and she knows how to tell a story. In the area of criminal justice, including defendants’ and prisoners’ rights, she begins each opinion with a narrative vivid enough for a crime writer to treat as a synopsis for a novel. And her rulings, founded on clear legal argument, are hard to categorize along a liberal-conservative spectrum. She stands willing to decide against police, prosecutors, and trial judges when she sees the facts and the law demanding as much.

                That was her record during three years on the 7^th Circuit Court of Appeals. But she was restricted by the precedents of earlier rulings by her circuit and the Supreme Court. In many cases, she wrote for unanimous three-judge panels that included two liberals who surely had significant influence over the shape of the opinion. The highest court’s culture with a conservative majority will be different. Its authority to reinterpret the law and the Constitution exceeds that of appeals courts. With such license, she could shift to the right in cases involving the Fourth Amendment, for example, where she has been fairly tough on law enforcement. On the other hand, as a supporter of the Second Amendment right to own firearms, she gives close scrutiny to police searches that turn up guns and to sentence enhancements for gun possession.

                Following are several of her most interesting opinions that were described more briefly in Part One:

                United States v. Watson—“The police received an anonymous 911 call from a 14-year-old who borrowed a stranger’s phone and reported seeing ‘boys’ ‘playing with guns’ by a ‘gray and greenish Charger’ in a nearby parking lot.” The caller said the “boys” were black. “A police officer then drove to the lot and blocked a car matching the caller’s description. The police found that a passenger in the car, David Watson, had a gun. He later conditionally pleaded guilty to possessing a firearm as a felon.”  Watson then moved to suppress the gun evidence as the fruit of an unconstitutional search.

                 Under the Supreme Court’s application of the Fourth Amendment dating from Terry v. Ohio in 1968, Barrett noted, “an officer cannot stop someone to investigate potential wrongdoing without reasonable suspicion that ‘criminal activity may be afoot.’” She also cited later cases spelling out factors justifying reasonable suspicion, including a particularized and objective basis for suspecting a certain individual of a specific crime. Reasonable suspicion is a lower bar than the “probable cause” required to get a search warrant from a judge. A warrantless search also requires urgency, in that a pedestrian or a driver could depart with evidence before a warrant could be issued.

In Watson’s case, the police claimed that blocking the car and doing the search were justified under those rules. Barrett quoted the first officer as describing the neighborhood as a heavy crime area and worrying that if there were “three or four guys displaying weapons, they might [be] about to shoot somebody.” A second officer said, “any time you have males with weapons, there’s always a sense of urgency ‘cause anything could happen.”

But Barrett found precedents derogating the reliability of anonymous tips in establishing reasonable suspicion. Furthermore, she declined to apply a Supreme Court precedent granting a 911 call considerable credibility because here, she observed, it came from a borrowed phone by a boy whose identity was unknown and could probably not be traced. Furthermore—the clincher—“his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful.” Her panel suppressed the evidence and vacated the judgment.

 United States v. Vaccaro—“Milwaukee police officers Aaron Frantal and Matthew Tracy stopped [Travis] Vaccaro for running a red light. Officer Frantal testified that Vaccaro stopped his car and made a ‘very ferocious move’ by ‘bending at the waist.’ Vaccaro then leaned toward the passenger seat and ‘made another aggressive move with his entire top torso and both arms into the back seat of the vehicle.’ Officer Tracy added that he saw Vaccaro ‘double over bending at the waist’ and then reach toward the passenger side of the car. Officer Frantal testified that Vaccaro’s movements took under five seconds. Afraid that Vaccaro might be trying to ‘gain control of something from the back seat,’ Officer Frantal drew his gun and ordered Vaccaro out of his car. The officers immediately handcuffed Vaccaro, and Officer Frantal patted him down. Meanwhile, Officer Tracy asked Vaccaro questions about his movements.” Vaccaro said he had just been trying to take off his coat.

A driver’s “furtive movement” after a traffic stop is a standard police rationale for searching a vehicle, since it could mean an attempt to hide or retrieve a weapon. Although it could also mean that you’re reaching for your registration, courts usually accept it as satisfying the “reasonable suspicion” requirement.

Suspicions were heightened when the cops noticed a GPS monitor on Vaccaro’s ankle and he told them he was on supervision for “false imprisonment.” They believed they had a felon who might illegally have a weapon. Since he seemed in an “amped-up” state, they suspected that he was on drugs. So they locked him, still handcuffed, in the back of a squad car. But since his only known offense to that point was a traffic violation, they did not place him under arrest, which became a key issue in the outcome of his appeal.

Then they searched his car, and there is where the Fourth Amendment got muddy. One of the officers spotted a rifle case in the back seat under a coat—only after Vaccaro was safely locked in the squad car, with no access to any gun that might have been inside his own vehicle. They pulled the coat aside, opened the case, and found a rifle. Vaccaro was charged possessing a firearm as a felon and entered a conditional guilty plea, contesting the searches.

Barrett and her panel decided that the pat-down was justified by reasonable suspicion, although he had no weapon on him. The car search, she said, was “a closer call” but in the end, narrowly justified.

Barrett’s opinion cited a very thin rationale under Michigan precedent justifying a warrantless car search when officers fear that a suspect could gain immediate control of weapons. But could Vaccaro have gained control? He was detained in the back of the police car. The Supreme Court, in Arizona v. Gant, had ruled a search under such conditions unconstitutional. In that case, the suspect was under arrest. Vaccaro was not, so Barrett quoted a concurring opinion in Gant by her mentor, the late Justice Antonin Scalia, which carved out an exception to the Court’s rejection of officer-safety concerns when a suspect is handcuffed and locked in a squad car. “In the no‐arrest case,” Scalia wrote, “the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed.” Such was Vaccaro’s status, Barrett found, and he lost his appeal.

United States v. Atwood—While James Atwood was awaiting sentence by Federal District Judge Colin S. Bruce for drug crimes, the judge continued a longtime practice of communicating ex parte with prosecutors in the U.S. Attorney’s Office, where he had worked for many years. A newspaper reported that while presiding over a criminal trial, he had emailed a paralegal in the office expressing “exasperation,” Judge Barrett wrote, “that the novice prosecutor’s weak cross-examination had turned the case ‘from a slam-dunk for the prosecution to about a 60-40 for the defendant.’ After learning of those emails, the Chief District Judge removed Judge Bruce from all cases involving the Office. [The removal ended September 1, 2019.] The Office then disclosed additional emails, which revealed that Judge Bruce had communicated ex parte with the Office over 100 times since taking the bench. . . . They often showed Judge Bruce cheering on Office employees and addressing them by nicknames.” At times, Barrett said, “Judge Bruce wrote to prosecutors in the Office to congratulate and thank them for persuading our court to affirm his decisions.”

 Barrett noted that none of Judge Bruce’s communications involved Atwood’s case, and that the 7^th Circuit’s Judicial Council had found no decisions affected by his ex parte contacts. But the council reprimanded him for violating the Code of Conduct for United States Judges. Furthermore, she wrote for a unanimous panel, “The federal recusal statute requires a judge to recuse himself from ‘any proceeding in which his impartiality might reasonably be questioned.’” Citing case law, she examined the three factors to be considered: fairness to the litigants, the risk of injustice to other litigants in future cases, and “the risk of harm to the public’s confidence in the impartiality of the judiciary.” All three tests were met here, she and her colleagues found. “Judge Bruce compromised his appearance of impartiality,” she said, and ordered resentencing by a different judge. Bruce had given him 17 and a half years, which was reduced by another judge to 13 years in federal prison plus 5 years of supervised release.

It was a small victory for Atwood, a larger one for judicial ethics, and perhaps a signal of how seriously Barrett will take the “appearance of impartiality” as she considers whether to recuse herself from election cases that are arriving at the Supreme Court so soon after her highly politicized confirmation.

In the end, the appearance of impartiality by any judge can best be upheld by her ability and willingness to put her personal attitudes aside and to transcend, rather than reflect, the politics and social conflicts that are enflaming the country. Democrats have vilified Justice Barrett as a political pawn and a predictable ideologue. Perhaps they’ll turn out to be correct. But the best way for her to rebut the charge would be, quite simply, to prove them wrong.