Eleventh Circuit protects your right to be blown to hell and back by terrorists

Orin Kerr of The Volokh Conspiracy — who even while a blogger, in or out of pajamas, is also an associate professor who teaches criminal law at George Washington University Law School and a former clerk for Justice Kennedy — points us all to the Eleventh Circuit's decision yesterday in Bourgeois v. Peters, which Prof. Kerr correctly describes as holding "that a city police policy requiring everyone attending a November 2002 protest against the 'School of the Americas' to pass through a metal detector violated the Fourth and First Amendments."  An Associated Press story on the decision appears here (hat-tip How Appealing.)

Beldar predicts that the en banc Eleventh Circuit will promptly agree to rehear this decision and, after oral argument before the full court, will reverse it.

The "School of the Americas" is now formally known as the "Western Hemisphere Institute for Security Cooperation"; housed at Fort Benning, Georgia, it's run by the U.S. Army to "train military leaders from throughout the Western Hemisphere in combat and various counterinsurgency techniques."  The plaintiff-appellants had unsuccessfully sought a preliminary and permanent injunction from the federal district court to bar the City of Columbus, Georgia, from requiring them and other protesters to pass through a magnetometer en route to the protest site outside Fort Benning's gates.  The Eleventh Circuit reversed and directed the district court to grant the requested injunction.

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The Eleventh Circuit panel comprised (former Chief) Judge Gerald B. Tjoflat and Judge Stanley F. Birch, Jr. of the Eleventh Circuit, along with Senior (and former Chief) Judge Alfred T. Goodwin of the Ninth Circuit, sitting "by designation" (essentially as a volunteer) — appointees of Presidents Ford, Bush-41, and Nixon respectively.  This is a distinguished panel, and it would be a mistake to presume, for example, that Judge Goodwin is a bomb-throwing liberal just because he's from the Ninth Circuit.  I'm unfamiliar with Judge Birch, but Judge Tjoflat was on the "old Fifth Circuit" when I clerked for Judge King during the final year before the "old Fifth" was split into the current Fifth and Eleventh Circuits, and one of my law school classmates clerked for Judge Goodwin on the Ninth; they're both solid and seasoned professionals, each of whom has doubtless decided thousands of Fourth Amendment cases over their long careers, and I'm sure they still draw very competent law clerks from top-ranked law schools. 

However, the composition of this panel is likely to work somewhat in favor of the Eleventh Circuit granting rehearing en banc:  Only active judges of the Eleventh Circuit sit on the en banc court, so Judge Goodwin will not have a vote.  The panel opinion will thus have to be "defended" before the en banc court by only Judges Tjoflat and Birch, and will start off with only their votes presumptively against rehearing en banc, as opposed to the usual three judges who'd presumably be doing so in the case of a unanimous circuit court panel opinion.

I'd expect the Justice Department to seek leave to file an amicus brief in support of the city defendant-appellees' certain motion for rehearing en banc, and I'm confident such a request would be granted.  The ramifications of this precedent are enormous on local, state, and national levels.  In fact, the three-judge panel might have been well served to have invited such an amicus brief on its own motion before deciding the case.

I'm by no means a specialist in either Fourth or First Amendment law — I know my readers must be tired of such disclaimers, and are wondering what the heck I am a specialist in! — and I'm unconstrained by the compulsion to write carefully, with reference to supporting Supreme Court precedents, that probably afflicts scholars and educators like Prof. Kerr.  So what follows are my reactions as "just one lawyer" and a former circuit court clerk who, once-upon-a-time, helped draft opinions like this one.  Citations to my legal commentary, after all, aren't in the form "2 BeldarBlog L. Rev. 1016 (2004)"; any old hyperlink will do, but my top-of-the-head views aren't likely to be impressive to any court or legal scholar.

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To begin with, this opinion looks to me like a good piece of research and writing, probably drafted in the first instance by one of Judge Tjoflat's law clerks, that may have suffered from a briefing imbalance.  I don't mean to slight the lawyers for the City of Columbus; I don't know whether the city defendants were represented by staff counsel or outside retained counsel; and I haven't read their brief, nor the district court's opinion, nor the briefing of the plaintiff-appellants.  But the opinion is replete with "gotchas" — points the defendant-appellees failed to introduce evidence for, and in some cases failed to raise altogether, before the district court, for example.  There are also hints, to my cynical eye, of a bright, very civil-rights-minded law clerk behind this opinion who's strayed a bit too far into the position of an advocate for the result he or she wanted to reach.  For example, the panel opinion states (at page 15 of the .pdf file) that "[t]he City's position would effectively eviscerate the Fourth Amendment."  That's the kind of rhetorical overkill that one sees all the time in briefs, but it's frankly over the top for a circuit court opinion.  Until yesterday, in fact, the district court's opinion was good and binding precedent throughout the Middle District of Georgia, and I don't recall reading of any gnashing of teeth and wailing that the Fourth Amendment had been effectively revoked across-the-board there.

And the panel opinion, while internally coherent, is light on its handling of crucial, possibly outcome-determinative threshold issues.  Is passing through a magnetometer en route to a public demonstration site, for instance, a "search" for purposes of the Fourth Amendment?  The panel opinion assumes that it is, and at least as characterized by the panel opinion, the city defendant-appellees' briefing appear to have conceded that characterization.  Maybe there's a Supreme Court precedent directly on point that so holds — I haven't cracked a book or made so much as a keystroke to do any independent research on the point, and it's been many years since I've handled a case with Fourth Amendment issues — but I'd expect to see that critical foundation for all the panel opinion's subsequent analysis to be firmly nailed down, whether raised by the parties in their briefing or not.

Similarly, there's no doubt but that the plaintiff-appellants were seeking to engage in speech and assembly that were directly expressing political protest, and that they were and are entitled to First Amendment protections to do so.  (It's speech that I don't personally agree with and assembly for a purpose I wouldn't care to participate in, but that's quite probably also true of the three judges on the panel, and it's quite beside the point.)  Yet the panel opinion treats the passage through a magnetometer en route to that protest, however, as tantamount to an absolute, unconditional denial of the protesters' rights to assemble and speak.  It's obviously not — and in fact, the protest actually did take place in both 2002 and 2003 despite the district court's refusal to enjoin against the use of the magnetometer.

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As Prof. Kerr's post points out, the panel opinion seemed to emphatically reject — curtly, in an almost offended manner — the suggestion by the district court and the city defendant-appellees that the case could be decided just by an invocation of 9/11.  Perhaps the manifest urgencies of our current national situation caused the city defendant-appellees and the district court to take some shortcuts in logic, citation of precedent, and development of a factual record.  But frankly, the panel opinion strikes me as a decision that would be just as wrong in peacetime or as of 9/10/01.  I don't disagree with this statement in the panel opinion (at page 16 of the .pdf file):

We cannot simply suspend or restrict civil liberties until the War on Terror is over, because the War on Terror is unlikely ever to be truly over.  September 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country.

But neither should a litigant's or a district court's shorthand and possibly sloppy reliance on "9/11" — as a catch-all justification for government safety measures designed to protect the public — justify sloppy and overbroad reasoning and writing by a circuit court of appeals panel. 

With due, and genuine, respect to the distinguished judges on this particular panel, I think that's what they're guilty of, and I expect the full Eleventh Circuit, sitting en banc, to promptly correct their well-intentioned mistake.

Update (Sun Oct 17 @ 9:32am):  Howard Bashman has helpfully pointed out to me via email that I erred in this post, as it was originally written, in describing Judge Tjoflat as a senior-status judge, when in fact he's still active-status and would therefore participate in en banc proceedings of the Eleventh Circuit.  I've revised the text above accordingly, with my thanks to Mr. Bashman for the catch.  As a practical matter, when the author of a challenged panel opinion is able to be involved in internal court discussions over whether to grant rehearing en banc, it effectively lowers the chance of rehearing en banc being granted.  I still think this one will be reheard, however.

There's one other possibility that I didn't mention in the original post — that the city defendant-appellees might seek, and get, rehearing before the three-judge panel itself.  One strategy for seeking such a rehearing, particularly with respect to the First Amendment portions of the panel opinion, would be to focus on the scope of the relief granted.  The panel opinion was concerned by the lack of objective standards for law enforcement officials to use in deciding whether or not to require clearance through metal detectors.  If the defendant-appellees succeeded in persuading the panel (or for that matter, the en banc court) that the panel opinion's Fourth Amendment analysis is wrong, it could argue that the injunction should be granted only provisionally, subject to reconsideration by the district court when and if such objective standards are drafted and applied.  That would considerably reduce the sweeping precedential effect of this opinion.

Update (Mon Oct 18 @ 3:10pm):  Prof. Volokh notes that the panel opinion cites and relies upon "Wikipedia, a free online collaborative encyclopedia, for information on the Department of Homeland Security Advisory System."  He thinks Wikipedia's pretty neat, but not a good source for judicial precedents to be based upon.  This strikes me as another indicator, frankly, that the result in this case was affected by a law clerk who's trying hard but using poor judgment.