From the SDFL Blog (via How Appealing): Big en banc 4th Amendment opinion comes down 7-5. Originalist Judge William Pryor writing for the majority upholds police seizure of a bullet during a Terry stop without much discussion of originalism. The dissent objects on originalist grounds:
[Judge] Jordan dissents and says, what about originalism? Originalism would not have allowed this to go forward and all of those in the majority who are generally champions of originalism are awfully quiet now:
Relying on Justice Scalia’s originalist position, Mr. Johnson argues that we should construe Terry narrowly, and not extend it to allow the seizure and removal of items that are neither weapons nor contraband. See Mr. Johnson’s En Banc Br. at 18-23. But the majority barely acknowledges this argument, and declines to address its merits. According to the majority, we are bound by Terry, and must therefore ignore the original understanding of the Fourth Amendment.
The majority is correct that Terry constitutes binding precedent, and that no one on this court can wish it away. But accepting Terry does not require extending its reach on an issue of first impression. Terry permitted pat-downs for weapons, and only weapons. See Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979) (“Nothing in Terry can be understood to allow . . . any search whatever for anything but weapons.”). By allowing officers to seize a stand-alone bullet from an unarmed suspect who is in handcuffs and being held at gunpoint by several officers, the majority expands Terry beyond its “narrow scope.” Dunaway v. New York, 442 U.S. 200, 210 (1979).
The case is United States v. Johnson. Judge Jordan's dissent starts this way:
This appeal presents an interesting case study for originalism, a set of related theories which (broadly speaking) call for constitutional provisions to be interpreted in accord with their understanding and meaning at the time of enactment or in accord with the intent of their framers. See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 813-38 (2010) (Thomas, J., concurring in part and concurring in the judgment); Randy Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105-08 (2001); Edwin Meese, III, Speech Before the American Bar Association on July 9, 1985, in Steven Calabresi, Originalism: A Quarter-Century of Debate 53-54 (2007); Antonin Scalia, A Matter of Interpretation 38 (1997); Robert H. Bork, The Tempting of America: The Political Seduction of the Law 144 (1990); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 363-73 (1977). I write separately to discuss the majority’s failure to address, in any meaningful way, Mr. Johnson’s originalist argument for limiting the reach of Terry v. Ohio, 392 U.S. 1 (1968).
As to Scalia and Terry, the dissent has this to say (and I think it is correct):
A quarter century ago, Justice Scalia concluded that the “frisk” aspect of Terry, 392 U.S. at 25-27—which allows the police to conduct pat-downs for weapons based only on reasonable suspicion—could not be justified on originalist grounds. See Minnesota v. Dickerson, 508 U.S. 366, 381 (1993) (Scalia, J., concurring) (finding “no English authority” and “no clear support at common law” for physical searches of suspects absent probable cause). Some subsequent scholarship appears to validate Justice Scalia’s view. See, e.g., Thomas K. Clancy, The Fourth Amendment: Its History and Interpretation 40-41 (2d ed. 2014) (asserting that in America and England during the period preceding the American Revolution, “[w]arrantless searches and seizures were virtually nonexistent or at least uncontroversial,” and “[o]nly one type of warrantless seizure may have been common, that is, the arrest of a suspected felon”); Heather Winter, Resurrecting the “Dead Hand” of the Common Law Rule of 1789: Why Terry v. Ohio is in Jeopardy, 42 Crim. L. Bull. 564, 565 (2006) (“The historical evidence reveals that Terry frisks did not occur at common law and would have been viewed unfavorably by the Constitution’s framers.”); George C. Thomas III, Time Travel, Hovercrafts, and the Framers: James Madison Sees the Future and Rewrites the Fourth Amendment, 80 Notre Dame L. Rev. 1451, 1515 (2005) (concluding that Terry, insofar as it permits a warrantless frisk on the street without probable cause, “would have baffled the Framers”).
(But I'm not sure what Scalia would have thought about seizing a bullet.)
UPDATE: Josh Blackman emails: "Pryor got Terry right. But the dissent's framework was solid."
Agreed. (I hear he has more on twitter).
Posted at 6:02 AM