Lawyer: Accused killer was in 23 foster homes | News | 2theadvocate.com — Baton Rouge, LA
An attorney for Dustin Musso, who is accused of first-degree murder in the 2009 slaying of his grandfather in Baton Rouge, said Monday the 31-year-old Musso was in 23 foster homes starting at the age of 3.
Isabella Brooke Knightly and Austin Gamez-Knightly
In Memory of my Loving Husband, William F. Knightly Jr. Murdered by ILLEGAL Palliative Care at a Nashua, NH Hospital
Wednesday, April 13, 2011
April 25th is Parental Alienation Awareness Day-Parental alienation syndrome’s addition to manual remains uncertain
Parental alienation syndrome’s addition to manual remains uncertain
Parental alienation syndrome’s addition to manual remains uncertain
(March 2011 Issue)
By Ami Albernaz
As the forthcoming Diagnostic and Statistical Manual of Mental Disorders (DSM-5) takes shape, some psychologists and others outside the mental health field are pushing for the addition of parental alienation syndrome, a term used to describe the effects of one parent's manipulating a child into rejecting a relationship with the other parent.
Children who have suffered parental alienation syndrome, or PAS, usually in the context of divorce or separation, can grow up depressed and struggle toward self-sufficiency, says Amy Baker, Ph.D., director of research at the Vincent J. Fontana Center for Child Protection in New York, N.Y. and the author of three books on parental alienation. Depression, guilt and low self-esteem come from a sense of unresolved loss toward the rejected parent and a need to appease the other parent.
Baker and others who support the addition of parental alienation to the DSM say its recognition could lead to more research and better intervention and would increase its legitimacy among family court judges and custody evaluators.
The term "parental alienation syndrome" was coined in the 1980s by Richard Gardner, M.D., a child psychiatrist at Columbia University. Gardner, who died in 2003, believed PAS to be a form of abuse, most often perpetrated by mothers. (He revised this claim later on to say both parents could be responsible).
The term has come under criticism from women's rights groups and battered women's advocates, who say it could be used by men trying to deflect attention from their abusive behavior.
Baker argues that parental alienation was never intended to include abusive or neglectful parents, something that Gardner also said. Rather, it refers to "strategies intended to manipulate the child into rejecting a parent when there isn't a good reason to reject that parent," she says.
The strategies used by an alienating parent to turn a child or children against the other parent tend to be pervasive, Baker says. One tactic is denigrating the other parent in front of the child.
"It can be taking a minor flaw and making it seem worthy of contempt," she says. "There's probably an endless list of specifics one parent could say bad about another, but what it really comes down to is that the other parent is made out to be unsafe, unloving and unavailable."
Anything a marginalized parent or targeted parent, does can be recast in a negative light, Baker adds: The parent who calls a lot is characterized as a stalker. If the parent pulls away to give the child space, it's abandonment.
Alienating parents often limit contact between the child and the other parent, sometimes in subtle ways - dropping the child off with the other parent 10 minutes late and picking up 10 minutes early, for instance - and not-so-subtle ways, such as texting or calling the child during visits with the other parent.
"For young children who live very much in the present, a relationship is comprised of very many little moments," Baker says. "Whatever is in the child's mind and heart, they can share it with the parent. But if there's no opportunity to do that, the relationship can suffer."
Over time, a child might begin rejecting the criticized parent out of a sense of allegiance to the other parent, even if the child doesn't understand it.
"Children may read and internalize the vocal parent's strong feelings and react protectively - or self-protectively - on that parent's behalf," says Lynn Margolies, Ph.D., a Newton, Mass. psychologist whose areas of focus include marital, parental and family conflict. "In this situation, the child may identify with the critical, angry parent or unconsciously express this parent's perceptions as if they were the child's own."
This can be damaging to children because they "disavow their own feelings, creating a state of detachment from themselves, potential confusion and aloneness," Margolies says.
It's important for targeted parents to show their children they are safe, loving and available, Baker says. As much as possible, they should try to brainstorm solutions with their children.
"Often times, an alienating parent will do something to incite conflict between the child and the targeted parent," she says. "If possible, they should rearrange things, so they're not fighting against their kid."
If curfew is a contentious issue, for instance, "the targeted parent could say, 'gee, you had some thoughts about curfew - how should we approach this?' That way, it's like you're on the same team as the kid." By focusing on a relationship with the child in spite of the obstacles, a marginalized parent can have a positive impact, Margolies says.
"Though it is easy for the marginalized parent to feel hopeless about having any impact on their child, each parent's relationship with the child is critical," she says. "The marginalized parent should try to hold this in mind and positively channel their energy into developing and enhancing their relationship with the child during their time together."
While a number of groups have sprung up recently to support parental alienation's inclusion in the new DSM, its fate remains unclear.
Last fall, Darrel Regier, M.D., vice chair of the American Psychiatric Association task force drafting the manual, told the Associated Press that the chances of parental alienation being included were slim, and that there isn't enough scientific evidence to warrant its inclusion. A spokesperson for the American Psychiatric Association told New England Psychologist, there has been no change on that stance to date.
Yet Baker says she's hopeful PAS will somehow be included, either as a relational disorder or on a list of disorders that will be considered for future manuals.
Parental alienation syndrome’s addition to manual remains uncertain
(March 2011 Issue)
By Ami Albernaz
As the forthcoming Diagnostic and Statistical Manual of Mental Disorders (DSM-5) takes shape, some psychologists and others outside the mental health field are pushing for the addition of parental alienation syndrome, a term used to describe the effects of one parent's manipulating a child into rejecting a relationship with the other parent.
Children who have suffered parental alienation syndrome, or PAS, usually in the context of divorce or separation, can grow up depressed and struggle toward self-sufficiency, says Amy Baker, Ph.D., director of research at the Vincent J. Fontana Center for Child Protection in New York, N.Y. and the author of three books on parental alienation. Depression, guilt and low self-esteem come from a sense of unresolved loss toward the rejected parent and a need to appease the other parent.
Baker and others who support the addition of parental alienation to the DSM say its recognition could lead to more research and better intervention and would increase its legitimacy among family court judges and custody evaluators.
The term "parental alienation syndrome" was coined in the 1980s by Richard Gardner, M.D., a child psychiatrist at Columbia University. Gardner, who died in 2003, believed PAS to be a form of abuse, most often perpetrated by mothers. (He revised this claim later on to say both parents could be responsible).
The term has come under criticism from women's rights groups and battered women's advocates, who say it could be used by men trying to deflect attention from their abusive behavior.
Baker argues that parental alienation was never intended to include abusive or neglectful parents, something that Gardner also said. Rather, it refers to "strategies intended to manipulate the child into rejecting a parent when there isn't a good reason to reject that parent," she says.
The strategies used by an alienating parent to turn a child or children against the other parent tend to be pervasive, Baker says. One tactic is denigrating the other parent in front of the child.
"It can be taking a minor flaw and making it seem worthy of contempt," she says. "There's probably an endless list of specifics one parent could say bad about another, but what it really comes down to is that the other parent is made out to be unsafe, unloving and unavailable."
Anything a marginalized parent or targeted parent, does can be recast in a negative light, Baker adds: The parent who calls a lot is characterized as a stalker. If the parent pulls away to give the child space, it's abandonment.
Alienating parents often limit contact between the child and the other parent, sometimes in subtle ways - dropping the child off with the other parent 10 minutes late and picking up 10 minutes early, for instance - and not-so-subtle ways, such as texting or calling the child during visits with the other parent.
"For young children who live very much in the present, a relationship is comprised of very many little moments," Baker says. "Whatever is in the child's mind and heart, they can share it with the parent. But if there's no opportunity to do that, the relationship can suffer."
Over time, a child might begin rejecting the criticized parent out of a sense of allegiance to the other parent, even if the child doesn't understand it.
"Children may read and internalize the vocal parent's strong feelings and react protectively - or self-protectively - on that parent's behalf," says Lynn Margolies, Ph.D., a Newton, Mass. psychologist whose areas of focus include marital, parental and family conflict. "In this situation, the child may identify with the critical, angry parent or unconsciously express this parent's perceptions as if they were the child's own."
This can be damaging to children because they "disavow their own feelings, creating a state of detachment from themselves, potential confusion and aloneness," Margolies says.
It's important for targeted parents to show their children they are safe, loving and available, Baker says. As much as possible, they should try to brainstorm solutions with their children.
"Often times, an alienating parent will do something to incite conflict between the child and the targeted parent," she says. "If possible, they should rearrange things, so they're not fighting against their kid."
If curfew is a contentious issue, for instance, "the targeted parent could say, 'gee, you had some thoughts about curfew - how should we approach this?' That way, it's like you're on the same team as the kid." By focusing on a relationship with the child in spite of the obstacles, a marginalized parent can have a positive impact, Margolies says.
"Though it is easy for the marginalized parent to feel hopeless about having any impact on their child, each parent's relationship with the child is critical," she says. "The marginalized parent should try to hold this in mind and positively channel their energy into developing and enhancing their relationship with the child during their time together."
While a number of groups have sprung up recently to support parental alienation's inclusion in the new DSM, its fate remains unclear.
Last fall, Darrel Regier, M.D., vice chair of the American Psychiatric Association task force drafting the manual, told the Associated Press that the chances of parental alienation being included were slim, and that there isn't enough scientific evidence to warrant its inclusion. A spokesperson for the American Psychiatric Association told New England Psychologist, there has been no change on that stance to date.
Yet Baker says she's hopeful PAS will somehow be included, either as a relational disorder or on a list of disorders that will be considered for future manuals.
Blog « A Family's Heartbreak: A Parent's Introduction to Parental Alienation
Blog « A Family's Heartbreak: A Parent's Introduction to Parental Alienation
April 13th, 2011
Mike Jeffries, author of A Family’s Heartbreak: A Parent’s Introduction to Parental Alienation, is joining other parental alienation experts on Saturday, May 21, 2011 at the DePaul Center in Chicago, Illinois to help educate parents, legal and mental health professionals about parental alienation.
Jeffries will address participants at the Parental Alienation Awareness Organization (PAAO) conference, “The Painful Path of Parental Alienation and Visitation Interference.” Also speaking at the conference are Cook County Circuit Court Judge Michele Lowrance, the author of The Good Karma Divorce; Attorney Jame Pritikin, who recently helped Miami Heat star Dwayne Wade overcome the attempted alienation of his children; Dr. Michael Bone, a parental alienation expert who has spent the past 25 years dealing with high conflict divorce as a therapist, expert witness, mediator, evaluator and consultant; and Jill Egizii, PAAO President and author of The Look of Love.
“I’m thrilled to join such a great group of knowledgeable and passionate speakers as we help others understand parental alienation and examine strategies for addressing alienation both legally and therapeutically,” Jeffries said. “I’m also proud to support the PAAO. The organization does great work helping others deal with these very heartbreaking situations.”
The one-day conference begins at 9:00 a.m. in Conference Room 8005 at the DePaul Center in Chicago. The cost is $50 for non-PAAO members and $25 for CRC Illinois PAAO members. Participants can register online at www.paawareness.org/2011PAAOChicagoConference/or by mail with a check to Jill Egizii/PAAO at 1645 W. Laurel Street, Springfield, Illinois 62704.
The event is cosponsored by the DePaul Law Center. For more information on the conference you can visit, www.paawareness.org.
April 13th, 2011
Mike Jeffries, author of A Family’s Heartbreak: A Parent’s Introduction to Parental Alienation, is joining other parental alienation experts on Saturday, May 21, 2011 at the DePaul Center in Chicago, Illinois to help educate parents, legal and mental health professionals about parental alienation.
Jeffries will address participants at the Parental Alienation Awareness Organization (PAAO) conference, “The Painful Path of Parental Alienation and Visitation Interference.” Also speaking at the conference are Cook County Circuit Court Judge Michele Lowrance, the author of The Good Karma Divorce; Attorney Jame Pritikin, who recently helped Miami Heat star Dwayne Wade overcome the attempted alienation of his children; Dr. Michael Bone, a parental alienation expert who has spent the past 25 years dealing with high conflict divorce as a therapist, expert witness, mediator, evaluator and consultant; and Jill Egizii, PAAO President and author of The Look of Love.
“I’m thrilled to join such a great group of knowledgeable and passionate speakers as we help others understand parental alienation and examine strategies for addressing alienation both legally and therapeutically,” Jeffries said. “I’m also proud to support the PAAO. The organization does great work helping others deal with these very heartbreaking situations.”
The one-day conference begins at 9:00 a.m. in Conference Room 8005 at the DePaul Center in Chicago. The cost is $50 for non-PAAO members and $25 for CRC Illinois PAAO members. Participants can register online at www.paawareness.org/2011PAAOChicagoConference/or by mail with a check to Jill Egizii/PAAO at 1645 W. Laurel Street, Springfield, Illinois 62704.
The event is cosponsored by the DePaul Law Center. For more information on the conference you can visit, www.paawareness.org.
Dependent on Prescription Drugs, Even Before Birth
Dependent on Prescription Drugs, Even Before Birth - NYTimes.com
BANGOR, Me. — The mother got the call in the middle of the night: her 3-day-old baby was going through opiate withdrawal in a hospital here and had to start taking methadone, a drug best known for treating heroin addiction, to ease his suffering.
Enlarge This Image
Damon Winter/The New York Times
Liriel, 1 year old, playing with her mother, Kate, in their bedroom at a transitional home where they have lived while waiting for permanent housing in Maine. Liriel experienced withdrawal from opiate dependency at birth and was treated with methadone. Her mother is still receiving treatment.
The mother had abused prescription painkillers like OxyContin for the first 12 weeks of her pregnancy, buying them on the street in rural northern Maine, and then tried to quit cold turkey — a dangerous course, doctors say, that could have ended in miscarriage. The baby had seizures in utero as a result, and his mother, Tonya, turned to methadone treatment, with daily doses to keep her cravings and withdrawal symptoms at bay.
As prescription drug abuse ravages communities across the country, doctors are confronting an emerging challenge: newborns dependent on painkillers. While methadone may have saved Tonya’s pregnancy, her son, Matthew, needed to be painstakingly weaned from it.
Infants like him may cry excessively and have stiff limbs, tremors, diarrhea and other problems that make their first days of life excruciating. Many have to stay in the hospital for weeks while they are weaned off the drugs, taxing neonatal units and driving the cost of their medical care into the tens of thousands of dollars.
Like the cocaine-exposed babies of the 1980s, those born dependent on prescription opiates — narcotics that contain opium or its derivatives — are entering a world in which little is known about the long-term effects on their development. Few doctors are even willing to treat pregnant opiate addicts, and there is no universally accepted standard of care for their babies, partly because of the difficulty of conducting research on pregnant women and newborns.
Those who do treat pregnant addicts face a jarring ethical quandary: they must weigh whether the harm inflicted by exposing a fetus to powerful drugs, albeit under medical supervision, is justifiable.
Read more at the above link.
BANGOR, Me. — The mother got the call in the middle of the night: her 3-day-old baby was going through opiate withdrawal in a hospital here and had to start taking methadone, a drug best known for treating heroin addiction, to ease his suffering.
Enlarge This Image
Damon Winter/The New York Times
Liriel, 1 year old, playing with her mother, Kate, in their bedroom at a transitional home where they have lived while waiting for permanent housing in Maine. Liriel experienced withdrawal from opiate dependency at birth and was treated with methadone. Her mother is still receiving treatment.
The mother had abused prescription painkillers like OxyContin for the first 12 weeks of her pregnancy, buying them on the street in rural northern Maine, and then tried to quit cold turkey — a dangerous course, doctors say, that could have ended in miscarriage. The baby had seizures in utero as a result, and his mother, Tonya, turned to methadone treatment, with daily doses to keep her cravings and withdrawal symptoms at bay.
As prescription drug abuse ravages communities across the country, doctors are confronting an emerging challenge: newborns dependent on painkillers. While methadone may have saved Tonya’s pregnancy, her son, Matthew, needed to be painstakingly weaned from it.
Infants like him may cry excessively and have stiff limbs, tremors, diarrhea and other problems that make their first days of life excruciating. Many have to stay in the hospital for weeks while they are weaned off the drugs, taxing neonatal units and driving the cost of their medical care into the tens of thousands of dollars.
Like the cocaine-exposed babies of the 1980s, those born dependent on prescription opiates — narcotics that contain opium or its derivatives — are entering a world in which little is known about the long-term effects on their development. Few doctors are even willing to treat pregnant opiate addicts, and there is no universally accepted standard of care for their babies, partly because of the difficulty of conducting research on pregnant women and newborns.
Those who do treat pregnant addicts face a jarring ethical quandary: they must weigh whether the harm inflicted by exposing a fetus to powerful drugs, albeit under medical supervision, is justifiable.
Read more at the above link.
Tuesday, April 12, 2011
15 Books Every New Father Should Read | Masters in Health Care
15 Books Every New Father Should Read | Masters in Health Care
15 Books Every New Father Should Read
In the immortal words uttered by Keanu Reeves in Parenthood: "You need a license to buy a dog, to drive a car — hell, you even need a license to catch a fish. But they’ll let any butt-reaming asshole be a father." On one level, it’s impossible for a man to totally prepare for the experience of fatherhood. At best, you can buy supplies and prepare by telling yourself that, no matter what, things are probably going to get crazy. But even if it’s not feasible to understood the magnitude of parenting until the situation is upon you, it is possible to do your homework and read first-hand accounts from men who’ve done their time in the trenches with dirty diapers. Granted, reading a book about parenting and thinking you’re prepared is a lot like reading a sex-ed primer and then landing a hot date: application is a whole lot trickier (and more interesting) than theory. But these books are still some of the best places to get the info you’ll need, and new or expectant fathers would be wise to buy them, bookmark them, and live by their example.
15 Books Every New Father Should Read
In the immortal words uttered by Keanu Reeves in Parenthood: "You need a license to buy a dog, to drive a car — hell, you even need a license to catch a fish. But they’ll let any butt-reaming asshole be a father." On one level, it’s impossible for a man to totally prepare for the experience of fatherhood. At best, you can buy supplies and prepare by telling yourself that, no matter what, things are probably going to get crazy. But even if it’s not feasible to understood the magnitude of parenting until the situation is upon you, it is possible to do your homework and read first-hand accounts from men who’ve done their time in the trenches with dirty diapers. Granted, reading a book about parenting and thinking you’re prepared is a lot like reading a sex-ed primer and then landing a hot date: application is a whole lot trickier (and more interesting) than theory. But these books are still some of the best places to get the info you’ll need, and new or expectant fathers would be wise to buy them, bookmark them, and live by their example.
Constitutional Law & Rights Topic Area
Constitutional Law & Rights Topic Area
The Constitution of the United States, 45k
The U.S. Supreme Court's Early Years, 4k
Constitutional Law, 11k
Constitutional Law Outline, 32k, Zip
Another Const. Law Outline, 30k
A 3rd Constitutional Law Outline, 40k
Can We Take our Freedoms for Granted?, 30k
Brief Bibliography on the U.S. Constitution, 8k
U.S. Archivist's Certification of 27th Amend., 5k
Some Constitutional Issues & Points for Discussion, 11k
Notable Court Decisions on Constitutional Issues, 270k
For A Little Comparison:
People's Republic of China Constitution Preamble & Excerpts, 14k
Republic of Hungary Constitution, 60k
Some Nazi Laws On Jews, 2k
FIRST AMENDMENT ISSUES
Artistic Freedom, 15k
ACLU on the 1st Amendment., 7k
Freedom of Expression, 30k
U.S. & Canadian Press Freedom Re: Courts, 30k, Zip
Controlling Protest's 1st Amend. Implications, 30k
1st Amendment Outline, 50k, Zip
Hate Speech on Campus, 13k
Some Recent Cases on Censorship, 5k
Some 1st Amendment & Censorship Cases, 5k
History of Censorship In Canada, 25k
Jeffreys v. City Col NY, 2nd Cir., 25k
8/96 Order Affirming OJ Civil Trial Gag Order & Camera Ban, 11k
Abrams v. U.S., 1919, 31k
OK to Criminalize 'Anti-American' Speech
NY Times v. U.S., '71, 101k
'Pentagon Papers' Case - Nixon's 'Prior Restraint' Attempt Unconstitutional
Church & State, 14k
Religion & our Public Schools ACLU, 30k
Supreme's Rulings on Religious Freedom [for school discussion], 6k
House Report on '94 Indian Religious Freedom Act excerpts, 26k
'94 American Indian Religious Freedom Act Amendment Allowing Indian Peyote Use, 7k
Fed Judge Rules Non-Indian Peyote Pusher's Prosecution Unconstitutional, 40k
The Supreme's Smith Peyote Decision & the Compelling Gov't Interest Test, 5k
THE SECOND AMENDMENT
The Library's a Strong Supporter of Gun Control, meaning: The Ability to Hit What you're Aiming At.
Besides, if Guns are Outlawed How can we Shoot the Liberals... and Conservatives?
Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms.... The right of citizens to bear arms is just one guarantee against arbitrary government, one more safeguard against tyranny... - Hubert Humphrey, liberal
Banning guns addresses a fundamental right of all Americans to feel safe. - Dianne Feinstein, liberal hypocrite
The ACLU's Policy on Gun Control, 12k
The Framer's Intentions about the 2nd Amendment, 20k
9th Circuit's '95 Decision on Brady Bill's Constitutionality, 45k
No man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government. - Thomas Jefferson
I like automatic weapons. I fought for my right to use them in Vietnam. - Oliver Stone
It is criminal to teach a man not to defend himself when he is the constant victim of brutal attacks. It is legal and lawful to own a shotgun or a rifle. We believe in obeying the law. - Malcolm X
Arms, like laws, discourage and keep the invader and plunderer in awe and preserve order... - Thomas Paine
Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence. The very atmosphere of firearms everywhere restrains evil interference. - George Washington
We're going to hammer guns on the anvil of relentless legislative strategy.
We're going to beat guns into submission! - Sen. Charles Schumer
OTHER CONSTITUTIONAL ISSUES
14th Amendment Outline, 54k, Zip
English as the Only U.S. Language, 12k
Electronic Privacy Rights in the Workplace, 8k
Guide to the Net Resources on Individual Rights, 25k, Zip
Clinton's 2/96 Memo on the 'Benefits' of School Uniforms, 5k'Standardized uniforms encourages the subordination of personal preferences and identities in favor of the overall group.' - William Rehnquist
Aids & Civil Liberties, 11k
Court Reinstates Law Denying Gay Rights, 3k
Report on Discrimination due to Physical Size, 50k
Reproductive Freedom Rights of Minors, 13k
Reproductive Freedom - The Right to Choose, 20k
Property Compensation Bill's Opposition, 11k
Supremes Limits Local Bars to Group Homes, 10k
Local Land Control & the U.S. Constitution., 17k
Pennsylvania Coal v. Mahon, '22, 24k Property Regulation can be Unconstitutional
Due Process Mini-Outline, 10k
Supremes on No-Knock Searches - Syllabus, 3k
A Few Cites from the Supremes on Police I.D. Checks, 2k
Constitutional Guide to the Use of Cellmate Informants, 25k
Flag Desecration Legislation Pros & Cons, 20k, Zip
Civil Liberty Implications of Terrorism Laws, 35k
Some Important ACLU Supreme Court Victories, 30k
ACLU on Congress's Assault on Civil Liberties, 6k
ACLU on Counterterrorism Legislation, 6k
ACLU on Crime Bills, 5k
MORE COURT CASES & DECISIONS
M'Culloch v. Maryland, 1819, 65k, Zip Constitution's 'The Supreme Law of the Land'
9th Circuit's '96 Opinion, 35k Calif. Gas Chamber is Cruel & Unusual Punishment
Gregg v. Georgia, 1976, 57k, Zip Death Penalty Not Inherently Cruel & Unusual Punishment
Bivens v. Six Unknown Fed. Narcotics Agents, 1971, 86k, OKed Suing Feds for Unconstitutional Acts
9th Cir's '96 Ruling, 109k, Zip Right to Die is Constitutionally Protected
Supreme's '96 Decision, 25k, Zip Allowing Forfeiture of Innocent Owner's Property
Kastigar v. U.S., 1972, 62k Granting 'Use Immunity' can Override Self-Incrimination Privilege
The Constitution of the United States, 45k
The U.S. Supreme Court's Early Years, 4k
Constitutional Law, 11k
Constitutional Law Outline, 32k, Zip
Another Const. Law Outline, 30k
A 3rd Constitutional Law Outline, 40k
Can We Take our Freedoms for Granted?, 30k
Brief Bibliography on the U.S. Constitution, 8k
U.S. Archivist's Certification of 27th Amend., 5k
Some Constitutional Issues & Points for Discussion, 11k
Notable Court Decisions on Constitutional Issues, 270k
For A Little Comparison:
People's Republic of China Constitution Preamble & Excerpts, 14k
Republic of Hungary Constitution, 60k
Some Nazi Laws On Jews, 2k
FIRST AMENDMENT ISSUES
Artistic Freedom, 15k
ACLU on the 1st Amendment., 7k
Freedom of Expression, 30k
U.S. & Canadian Press Freedom Re: Courts, 30k, Zip
Controlling Protest's 1st Amend. Implications, 30k
1st Amendment Outline, 50k, Zip
Hate Speech on Campus, 13k
Some Recent Cases on Censorship, 5k
Some 1st Amendment & Censorship Cases, 5k
History of Censorship In Canada, 25k
Jeffreys v. City Col NY, 2nd Cir., 25k
8/96 Order Affirming OJ Civil Trial Gag Order & Camera Ban, 11k
Abrams v. U.S., 1919, 31k
OK to Criminalize 'Anti-American' Speech
NY Times v. U.S., '71, 101k
'Pentagon Papers' Case - Nixon's 'Prior Restraint' Attempt Unconstitutional
Church & State, 14k
Religion & our Public Schools ACLU, 30k
Supreme's Rulings on Religious Freedom [for school discussion], 6k
House Report on '94 Indian Religious Freedom Act excerpts, 26k
'94 American Indian Religious Freedom Act Amendment Allowing Indian Peyote Use, 7k
Fed Judge Rules Non-Indian Peyote Pusher's Prosecution Unconstitutional, 40k
The Supreme's Smith Peyote Decision & the Compelling Gov't Interest Test, 5k
THE SECOND AMENDMENT
The Library's a Strong Supporter of Gun Control, meaning: The Ability to Hit What you're Aiming At.
Besides, if Guns are Outlawed How can we Shoot the Liberals... and Conservatives?
Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms.... The right of citizens to bear arms is just one guarantee against arbitrary government, one more safeguard against tyranny... - Hubert Humphrey, liberal
Banning guns addresses a fundamental right of all Americans to feel safe. - Dianne Feinstein, liberal hypocrite
The ACLU's Policy on Gun Control, 12k
The Framer's Intentions about the 2nd Amendment, 20k
9th Circuit's '95 Decision on Brady Bill's Constitutionality, 45k
No man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government. - Thomas Jefferson
I like automatic weapons. I fought for my right to use them in Vietnam. - Oliver Stone
It is criminal to teach a man not to defend himself when he is the constant victim of brutal attacks. It is legal and lawful to own a shotgun or a rifle. We believe in obeying the law. - Malcolm X
Arms, like laws, discourage and keep the invader and plunderer in awe and preserve order... - Thomas Paine
Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence. The very atmosphere of firearms everywhere restrains evil interference. - George Washington
We're going to hammer guns on the anvil of relentless legislative strategy.
We're going to beat guns into submission! - Sen. Charles Schumer
OTHER CONSTITUTIONAL ISSUES
14th Amendment Outline, 54k, Zip
English as the Only U.S. Language, 12k
Electronic Privacy Rights in the Workplace, 8k
Guide to the Net Resources on Individual Rights, 25k, Zip
Clinton's 2/96 Memo on the 'Benefits' of School Uniforms, 5k'Standardized uniforms encourages the subordination of personal preferences and identities in favor of the overall group.' - William Rehnquist
Aids & Civil Liberties, 11k
Court Reinstates Law Denying Gay Rights, 3k
Report on Discrimination due to Physical Size, 50k
Reproductive Freedom Rights of Minors, 13k
Reproductive Freedom - The Right to Choose, 20k
Property Compensation Bill's Opposition, 11k
Supremes Limits Local Bars to Group Homes, 10k
Local Land Control & the U.S. Constitution., 17k
Pennsylvania Coal v. Mahon, '22, 24k Property Regulation can be Unconstitutional
Due Process Mini-Outline, 10k
Supremes on No-Knock Searches - Syllabus, 3k
A Few Cites from the Supremes on Police I.D. Checks, 2k
Constitutional Guide to the Use of Cellmate Informants, 25k
Flag Desecration Legislation Pros & Cons, 20k, Zip
Civil Liberty Implications of Terrorism Laws, 35k
Some Important ACLU Supreme Court Victories, 30k
ACLU on Congress's Assault on Civil Liberties, 6k
ACLU on Counterterrorism Legislation, 6k
ACLU on Crime Bills, 5k
MORE COURT CASES & DECISIONS
M'Culloch v. Maryland, 1819, 65k, Zip Constitution's 'The Supreme Law of the Land'
9th Circuit's '96 Opinion, 35k Calif. Gas Chamber is Cruel & Unusual Punishment
Gregg v. Georgia, 1976, 57k, Zip Death Penalty Not Inherently Cruel & Unusual Punishment
Bivens v. Six Unknown Fed. Narcotics Agents, 1971, 86k, OKed Suing Feds for Unconstitutional Acts
9th Cir's '96 Ruling, 109k, Zip Right to Die is Constitutionally Protected
Supreme's '96 Decision, 25k, Zip Allowing Forfeiture of Innocent Owner's Property
Kastigar v. U.S., 1972, 62k Granting 'Use Immunity' can Override Self-Incrimination Privilege
Fourth Amendment Defined & Explained
Fourth Amendment Defined & Explained
'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.'
To pass muster under the Fourth Amendment, detention must be 'reasonable. ' See U.S. v. Montoya de Hernandez, 473 U.S. 531, 542-44 ('85) (analyzing constitutionality of length of traveler's border detention under Fourth Amendment reasonableness standard); Caban, 728 F.2d at 75 (considering whether duration of border detention without a hearing was reasonable).
In the context of a criminal arrest, a detention of longer than 48 hours without a probable cause determination violates the Fourth Amendment as a matter of law in the absence of a demonstrated emergency or other extraordinary circumstance. See County of Riverside v. McLaughlin, 111 S.Ct. 1661, 670 ('91). However, the Supreme Court arrived at this rule by considering the time it takes to complete administrative steps typically incident to arrest. See id.
Unreasonable Searches And Seizures.
Non-consensual extraction of blood implicates Fourth Amendment privacy rights. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 16 ('89) ('this physical intrusion, penetrating beneath the skin, infringes [a reasonable] expectation of privacy'); Schmerber v. California, 384 U.S. 757, 67 ('66) (compulsory blood test 'plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment').' '[f]or the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable.' Skinner, 489 U.S. at 619; accord Vernonia School Dist. 47J v. Acton, No. 95-590, 1995 WL 373274, at *3 (June 26,'95) ('the ultimate measure of the constitutionality of a governmental search is `reasonableness''). A search's reasonableness under the Fourth Amendment generally depends on whether the search was made pursuant to a warrant issued upon probable cause. U.S. v. Place, 462 U.S. 696, 701 ('83).
Even in the law enforcement context, the State may interfere with an individual's Fourth Amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and is justified by law enforcement purposes. E.g., Michigan State Police Dept v. Sitz, 496 U.S. 444, 450 ('90); Terry v. Ohio, 392 U.S. 1, 20 ('68).
The gathering of fingerprint evidence from 'free persons' constitutes a sufficiently significant interference with individual expectations of privacy that law enforcement officials are required to demonstrate that they have probable cause, or at least an articulable suspicion, to believe that the person committed a criminal offense and that the fingerprinting will establish or negate the person's connection to the offense. See Hayes v. Florida, 470 U.S. 811, 813-18 ('85); Davis v. Mississippi, 394 U.S. 721, 726-28 ('69).
Nevertheless, everyday 'booking' procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence. See Smith v. U.S., 324 F.2d 879, 882 (D.C. Cir.'63) (Burger, J.) ('it is elementary that a person in lawful custody may be required to submit to . . . fingerprinting . . . as part of the routine identification processes'); Napolitano v. U.S., 340 F.2d 313, 314 (1st Cir.'65) ('Taking fingerprints [prior to bail] is universally standard procedure, and no violation of constitutional rights.'). Thus, in the fingerprinting context, there exists a constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state.
Although the drawing of blood from free persons generally requires a warrant supported by probable cause to believe that a person has committed a criminal offense and that his blood will reveal evidence relevant to that offense, see Schmerber, 384 U.S. at 768-71; U.S. v. Chapel, ___ F.3d ___, slip op. at 5753-54 (9th Cir.'95) (en banc), the absence of such a warrant does not a fortiori establish a violation of the plaintiffs' Fourth Amendment rights.
The Supreme Court has noted repeatedly that the drawing of blood constitutes only a minimally intrusive search. Skinner, 489 U.S. at 625 (blood tests do not 'infringe significant privacy interests'); Winston v. Lee, 470 U.S. 753, 62 ('85) (not 'an unduly extensive imposition'); Schmerber, 384 U.S. at 771 ('commonplace'); Breithaupt v. Abram, 352 U.S. 432, 36 ('57) ('routine' and 'would not be considered offensive by even the most delicate').
'An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.' Skinner, 489 U.S. at 421-2 (holding that a warrant was not required in part because 'in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate'). The Supreme Court recently reaffirmed and expanded the principle first enunciated in Skinner, stating that, in some contexts, 'testing based on `suspicion' of [wrongful activity] would not be better, but worse' than suspicionless testing. Acton, 1995 WL 373274, at *8. In Acton, the Supreme Court upheld as constitutional a school district's practice of conducting random, suspicionless urine testing of school athletes for drug use. The Court rejected the proposition that the school district could conduct such testing only if school officials had suspicion that a specific athlete was using drugs, holding that this alternative 'entails substantial difficulties -- if it is indeed practicable at all.' Id. Accusatory drug testing would 'transform[] the process into a badge of shame' and would increase the risk that school officials would impose testing arbitrarily upon disfavored, but not drug-using, students. Id.
Except in certain narrowly limited cases, the Court repeatedly has stated its 'insist[ence] upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.' Chambers v. Moreny, 399 U.S. 42, 51 ('70). Because '[t]he integrity of an individual's person is a cherished value in our society,' searches that invade bodily integrity cannot be executed as mere fishing expeditions to acquire useful evidence: 'The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.' Schmerber, 384 U.S. at 772, 769-70.
Only when law enforcement faces an exigent circumstance, such as a need to preserve evanescent blood alcohol evidence, and has probable cause to link the sought-after information to a crime under investigation is it constitutional to conduct nonconsensual blood testing without a warrant. Id. at 770-71. Therefore, forced extraction of blood not only 'implicates the Fourth Amendment,' as the majority notes, but also falls squarely within the area of privacy interests for which the traditional probable cause requirement determines reasonableness in the law enforcement context. Forced blood extraction intrudes on the private personal sphere and infringes upon an individual's 'most personal and deep-rooted expectations of privacy.' Winston v. Lee, 470 U.S. 753, 60 ('85).
Searches Involving Intrusions Beyond The Body's Surface.
Schmerber v. California, 384 U.S. 757, 69 ('66). The Schmerber Court posed two questions: (1) whether the police were justified in imposing a nonconsensual blood test and (2) whether the procedures themselves were reasonable. Id. at 768. In answering the first question, the Court recognized that it was 'writ[ing] on a clean slate' regarding the treatment of searches that involve intrusions into the human body. Id. at 767-8. It concluded that such searches require probable cause. Id. at 770-1.
Similarly, the Supreme Court in Winston v. Lee, 470 U.S. 753 ('85), recognized that Schmerber's threshold standard was a requirement of probable cause 'where intrusions into the human body are concerned,' which implicate 'deep-rooted expectations of privacy.' Id. at 761, 760. The Winston Court then acknowledged `other factors'' [b]eyond these standards' that must be considered in determining whether a particular intrusion is reasonable: whether 'the procedure threatens the safety or health of the individual' and 'the extent of the intrusion upon the individual's dignitary interests.' Id. at 761 (emphasis added). In regard to the additional 'dignitary' factor (beyond the threshold inquiry of invasion of bodily integrity), the Winston Court noted Schmerber's recognition that blood extraction is not 'an unduly extensive imposition.' Id. at 762. The Court contrasted this lesser bodily invasion, which the Schmerber Court had upheld upon demonstration of probable cause, with the more drastic measure of dangerous surgery to recoup criminal evidence, which the Winston Court concluded would violate the individual's Fourth Amendment rights even when supported by probable cause. Thus again, the context of the quotation demonstrates that the Court places blood extraction squarely within the probable cause requirement because it is an invasion of bodily integrity, while at the same time acknowledging that it is a less extensive imposition on dignitary interests than surgical removal of a bullet.
Investigatory Stops Of Motorists At Sobriety Checkpoints.
The unique situation in which the Supreme Court has approved suspicionless searches in the traditional law enforcement context. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444 ('90). The Sitz Court relied on well-settled law that motorists have a lessened expectation of privacy regarding stops and visual searches of automobiles on the nation's roadways. Id. at 450 (explaining the importance of the context of 'police stops of motorists on public highways'). At these sobriety checkpoints, which motorists may choose to avoid, only the initial brief stop and preliminary questioning may take place without individualized suspicion: 'more extensive field sobriety testing' requires justification. Id. at 450-2.
Like the highway sobriety checkpoints, the 'special needs beyond normal law enforcement' rationale supports searches on lesser grounds than probable cause only in a very few, carefully tailored regulatory contexts that do not involve apprehension of criminal perpetrators. See, e.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656, 65-66 ('89) (applying the special needs exception to suspicionless quasi-consensual drug testing of Customs Service employees seeking transfer to positions having a direct involvement in drug interdiction).
The special needs exception covers testing which 'is not designed to serve the ordinary needs of law enforcement [because] . . . results may not be used in criminal prosecution.' Von Raab, 489 U.S. at 666 (emphases added). Even so, a search in the special needs context almost always requires individualized suspicion. See, e.g., Portillo v. U.S. Dist. Court, 15 F.3d 819, 823 (9th Cir.'94) (requiring individualized suspicion for urinalysis testing under the probationer special needs exception). The rare special needs cases which do not require individualized suspicion involve persons who voluntarily participate in a highly regulated context. See, e.g., Von Raab, at 671, 677 (noting that 'certain forms of employment may diminish privacy expectations' for the 'employees who seek to be promoted' to certain positions); Vernonia School Dist. v. Acton, 1995 WL 373274, *6-*7 (U.S. June 26, '95) (noting that schools are highly regulated and 'like adults who choose to participate in a `closely regulated industry,' students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy').
Nonetheless, routine searches that intrude into prisoners' bodies without probable cause may be upheld only when the search is undertaken pursuant to a valid prison regulation that is reasonably related to a legitimate penological objective. Turner v. Safley, 482 U.S. 78, 87-91 ('87); see, e.g., Walker v. Sumner, 917 F.2d 382, 387 (9th Cir.'90) (remanding for evidence of a specific penological objective because 'general protestations of concern for the welfare of the citizens of Nevada and the prison community are simply insufficient to render the involuntary seizure of blood specimens, even from prison inmates, constitutionally reasonable').
Individuals have a categorically different and lesser expectation of privacy in their fingerprints, visual images, or voice prints
- even when their production is compelled -- because they are personal attributes that are routinely exposed to the public at large in daily life. Katz v. U.S., 389 U.S. 347, 51 ('67) (finding a lesser expectation of privacy in personal effects that 'a person knowingly exposes to the public, even in his own home or office').
The Fourth Amendment provides no protection for what 'a person knowingly exposes to the public'. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.
The required disclosure of a person's voice is thus immeasurably further removed from the Fourth Amendment protection than was the intrusion into the body effected by the blood extraction in Schmerber . . . . Rather, this is like the fingerprinting in Davis, . . . [which] 'involves none of the probing into an individual's private life and thoughts that marks an interrogation or search.' U.S. v. Dionisio, 410 U.S. 1, 14-15 ('73) (quoting Katz v. U.S., 389 U.S. 347, 51 ('67), and Davis v. Mississippi, 394 U.S. 721, 27 ('69)) (emphases added).
'Fingerprinting' - like the compelled production of other aspects of an individual's identification that are routinely exposed to and superficially observable by the public at large, such as voice prints, handwriting exemplars, and photographs - simply belongs to a different category of search that 'represents a much less serious intrusion upon personal security than other types of searches and detentions.' Hayes v. Florida, 470 U.S. 811, 14 ('85).*fn10 The majority's analysis obliterates this critical constitutional distinction between coerced fingerprinting and blood extraction for DNA genetic pattern analysis.
Blanket Searches.
Blanket searches are unreasonable, however 'evenhanded' they may be, in the traditional criminal law enforcement context. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91-2, 92 n.4 ('79) (invalidating a blanket patdown search of all patrons in a tavern, even though there was probable cause to search the bartender and the premises). The ill that the Fourth Amendment prevents is not merely the arbitrariness of police discretion to single out individuals for attention, but also the unwarranted domination and control of the citizenry through fear of baseless but 'evenhanded' general police searches.
In Zurcher, the Supreme Court held that a search of the offices of a university newspaper, which was not involved in any criminal activity, for photographs of demonstrators who had assaulted police officers did not offend the Fourth Amendment's ban against unreasonable searches and seizures. The court concluded: '[T]he Amendment has not been a barrier to warrants to search property on which there is probable cause to believe that fruits, instrumentalities, or evidence of crime is located, whether or not the owner or possessor of the premises to be searched is himself reasonably suspected of complicity in the crime being investigated.' Zurcher v. Stanford Daily ('78) 436 U.S. 547, 549-50.
Fourth Amendment protects the 'right of the people to be secure in their persons . . . against unreasonable searches and seizures.' The essence of that protection is a prohibition against some modes of law enforcement because the cost of police intrusion into personal liberty is too high, even though the intrusion undoubtedly would result in an enormous boon to the public if the efficient apprehension of criminals were the sole criterion to be considered. 'The easiest course for [law enforcement] officials is not always one that our Constitution allows them to take.' Wolfish, 441 U.S. at 595 (Stevens, dissenting).
A permanent resident alien is entitled to constitutional protection. See Landon v. Plasencia, 459 U.S. 21, 32-4 ('82) ('[O]nce an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.'). In particular, to Fourth Amendment protection against unlawful seizures. See Benitez-Mendez v. INS, 760 F.2d 907, 09-10 (9th Cir.'85) (finding that INS seizure of alien violated Fourth Amendment); see also INS v. Delgado, 466 U.S. 210, 213 n.1, 215-21 ('84) (considering whether questioning of resident aliens by INS agents amounted to seizure for purposes of Fourth Amendment); Martinez v. Nygaard, 831 F.2d 822, 824, 826-28 (9th Cir.'87) (analyzing whether seizures of three resident aliens complied with Fourth Amendment).
'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.'
To pass muster under the Fourth Amendment, detention must be 'reasonable. ' See U.S. v. Montoya de Hernandez, 473 U.S. 531, 542-44 ('85) (analyzing constitutionality of length of traveler's border detention under Fourth Amendment reasonableness standard); Caban, 728 F.2d at 75 (considering whether duration of border detention without a hearing was reasonable).
In the context of a criminal arrest, a detention of longer than 48 hours without a probable cause determination violates the Fourth Amendment as a matter of law in the absence of a demonstrated emergency or other extraordinary circumstance. See County of Riverside v. McLaughlin, 111 S.Ct. 1661, 670 ('91). However, the Supreme Court arrived at this rule by considering the time it takes to complete administrative steps typically incident to arrest. See id.
Unreasonable Searches And Seizures.
Non-consensual extraction of blood implicates Fourth Amendment privacy rights. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 16 ('89) ('this physical intrusion, penetrating beneath the skin, infringes [a reasonable] expectation of privacy'); Schmerber v. California, 384 U.S. 757, 67 ('66) (compulsory blood test 'plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment').' '[f]or the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable.' Skinner, 489 U.S. at 619; accord Vernonia School Dist. 47J v. Acton, No. 95-590, 1995 WL 373274, at *3 (June 26,'95) ('the ultimate measure of the constitutionality of a governmental search is `reasonableness''). A search's reasonableness under the Fourth Amendment generally depends on whether the search was made pursuant to a warrant issued upon probable cause. U.S. v. Place, 462 U.S. 696, 701 ('83).
Even in the law enforcement context, the State may interfere with an individual's Fourth Amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and is justified by law enforcement purposes. E.g., Michigan State Police Dept v. Sitz, 496 U.S. 444, 450 ('90); Terry v. Ohio, 392 U.S. 1, 20 ('68).
The gathering of fingerprint evidence from 'free persons' constitutes a sufficiently significant interference with individual expectations of privacy that law enforcement officials are required to demonstrate that they have probable cause, or at least an articulable suspicion, to believe that the person committed a criminal offense and that the fingerprinting will establish or negate the person's connection to the offense. See Hayes v. Florida, 470 U.S. 811, 813-18 ('85); Davis v. Mississippi, 394 U.S. 721, 726-28 ('69).
Nevertheless, everyday 'booking' procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence. See Smith v. U.S., 324 F.2d 879, 882 (D.C. Cir.'63) (Burger, J.) ('it is elementary that a person in lawful custody may be required to submit to . . . fingerprinting . . . as part of the routine identification processes'); Napolitano v. U.S., 340 F.2d 313, 314 (1st Cir.'65) ('Taking fingerprints [prior to bail] is universally standard procedure, and no violation of constitutional rights.'). Thus, in the fingerprinting context, there exists a constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state.
Although the drawing of blood from free persons generally requires a warrant supported by probable cause to believe that a person has committed a criminal offense and that his blood will reveal evidence relevant to that offense, see Schmerber, 384 U.S. at 768-71; U.S. v. Chapel, ___ F.3d ___, slip op. at 5753-54 (9th Cir.'95) (en banc), the absence of such a warrant does not a fortiori establish a violation of the plaintiffs' Fourth Amendment rights.
The Supreme Court has noted repeatedly that the drawing of blood constitutes only a minimally intrusive search. Skinner, 489 U.S. at 625 (blood tests do not 'infringe significant privacy interests'); Winston v. Lee, 470 U.S. 753, 62 ('85) (not 'an unduly extensive imposition'); Schmerber, 384 U.S. at 771 ('commonplace'); Breithaupt v. Abram, 352 U.S. 432, 36 ('57) ('routine' and 'would not be considered offensive by even the most delicate').
'An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.' Skinner, 489 U.S. at 421-2 (holding that a warrant was not required in part because 'in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate'). The Supreme Court recently reaffirmed and expanded the principle first enunciated in Skinner, stating that, in some contexts, 'testing based on `suspicion' of [wrongful activity] would not be better, but worse' than suspicionless testing. Acton, 1995 WL 373274, at *8. In Acton, the Supreme Court upheld as constitutional a school district's practice of conducting random, suspicionless urine testing of school athletes for drug use. The Court rejected the proposition that the school district could conduct such testing only if school officials had suspicion that a specific athlete was using drugs, holding that this alternative 'entails substantial difficulties -- if it is indeed practicable at all.' Id. Accusatory drug testing would 'transform[] the process into a badge of shame' and would increase the risk that school officials would impose testing arbitrarily upon disfavored, but not drug-using, students. Id.
Except in certain narrowly limited cases, the Court repeatedly has stated its 'insist[ence] upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.' Chambers v. Moreny, 399 U.S. 42, 51 ('70). Because '[t]he integrity of an individual's person is a cherished value in our society,' searches that invade bodily integrity cannot be executed as mere fishing expeditions to acquire useful evidence: 'The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.' Schmerber, 384 U.S. at 772, 769-70.
Only when law enforcement faces an exigent circumstance, such as a need to preserve evanescent blood alcohol evidence, and has probable cause to link the sought-after information to a crime under investigation is it constitutional to conduct nonconsensual blood testing without a warrant. Id. at 770-71. Therefore, forced extraction of blood not only 'implicates the Fourth Amendment,' as the majority notes, but also falls squarely within the area of privacy interests for which the traditional probable cause requirement determines reasonableness in the law enforcement context. Forced blood extraction intrudes on the private personal sphere and infringes upon an individual's 'most personal and deep-rooted expectations of privacy.' Winston v. Lee, 470 U.S. 753, 60 ('85).
Searches Involving Intrusions Beyond The Body's Surface.
Schmerber v. California, 384 U.S. 757, 69 ('66). The Schmerber Court posed two questions: (1) whether the police were justified in imposing a nonconsensual blood test and (2) whether the procedures themselves were reasonable. Id. at 768. In answering the first question, the Court recognized that it was 'writ[ing] on a clean slate' regarding the treatment of searches that involve intrusions into the human body. Id. at 767-8. It concluded that such searches require probable cause. Id. at 770-1.
Similarly, the Supreme Court in Winston v. Lee, 470 U.S. 753 ('85), recognized that Schmerber's threshold standard was a requirement of probable cause 'where intrusions into the human body are concerned,' which implicate 'deep-rooted expectations of privacy.' Id. at 761, 760. The Winston Court then acknowledged `other factors'' [b]eyond these standards' that must be considered in determining whether a particular intrusion is reasonable: whether 'the procedure threatens the safety or health of the individual' and 'the extent of the intrusion upon the individual's dignitary interests.' Id. at 761 (emphasis added). In regard to the additional 'dignitary' factor (beyond the threshold inquiry of invasion of bodily integrity), the Winston Court noted Schmerber's recognition that blood extraction is not 'an unduly extensive imposition.' Id. at 762. The Court contrasted this lesser bodily invasion, which the Schmerber Court had upheld upon demonstration of probable cause, with the more drastic measure of dangerous surgery to recoup criminal evidence, which the Winston Court concluded would violate the individual's Fourth Amendment rights even when supported by probable cause. Thus again, the context of the quotation demonstrates that the Court places blood extraction squarely within the probable cause requirement because it is an invasion of bodily integrity, while at the same time acknowledging that it is a less extensive imposition on dignitary interests than surgical removal of a bullet.
Investigatory Stops Of Motorists At Sobriety Checkpoints.
The unique situation in which the Supreme Court has approved suspicionless searches in the traditional law enforcement context. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444 ('90). The Sitz Court relied on well-settled law that motorists have a lessened expectation of privacy regarding stops and visual searches of automobiles on the nation's roadways. Id. at 450 (explaining the importance of the context of 'police stops of motorists on public highways'). At these sobriety checkpoints, which motorists may choose to avoid, only the initial brief stop and preliminary questioning may take place without individualized suspicion: 'more extensive field sobriety testing' requires justification. Id. at 450-2.
Like the highway sobriety checkpoints, the 'special needs beyond normal law enforcement' rationale supports searches on lesser grounds than probable cause only in a very few, carefully tailored regulatory contexts that do not involve apprehension of criminal perpetrators. See, e.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656, 65-66 ('89) (applying the special needs exception to suspicionless quasi-consensual drug testing of Customs Service employees seeking transfer to positions having a direct involvement in drug interdiction).
The special needs exception covers testing which 'is not designed to serve the ordinary needs of law enforcement [because] . . . results may not be used in criminal prosecution.' Von Raab, 489 U.S. at 666 (emphases added). Even so, a search in the special needs context almost always requires individualized suspicion. See, e.g., Portillo v. U.S. Dist. Court, 15 F.3d 819, 823 (9th Cir.'94) (requiring individualized suspicion for urinalysis testing under the probationer special needs exception). The rare special needs cases which do not require individualized suspicion involve persons who voluntarily participate in a highly regulated context. See, e.g., Von Raab, at 671, 677 (noting that 'certain forms of employment may diminish privacy expectations' for the 'employees who seek to be promoted' to certain positions); Vernonia School Dist. v. Acton, 1995 WL 373274, *6-*7 (U.S. June 26, '95) (noting that schools are highly regulated and 'like adults who choose to participate in a `closely regulated industry,' students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy').
Nonetheless, routine searches that intrude into prisoners' bodies without probable cause may be upheld only when the search is undertaken pursuant to a valid prison regulation that is reasonably related to a legitimate penological objective. Turner v. Safley, 482 U.S. 78, 87-91 ('87); see, e.g., Walker v. Sumner, 917 F.2d 382, 387 (9th Cir.'90) (remanding for evidence of a specific penological objective because 'general protestations of concern for the welfare of the citizens of Nevada and the prison community are simply insufficient to render the involuntary seizure of blood specimens, even from prison inmates, constitutionally reasonable').
Individuals have a categorically different and lesser expectation of privacy in their fingerprints, visual images, or voice prints
- even when their production is compelled -- because they are personal attributes that are routinely exposed to the public at large in daily life. Katz v. U.S., 389 U.S. 347, 51 ('67) (finding a lesser expectation of privacy in personal effects that 'a person knowingly exposes to the public, even in his own home or office').
The Fourth Amendment provides no protection for what 'a person knowingly exposes to the public'. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.
The required disclosure of a person's voice is thus immeasurably further removed from the Fourth Amendment protection than was the intrusion into the body effected by the blood extraction in Schmerber . . . . Rather, this is like the fingerprinting in Davis, . . . [which] 'involves none of the probing into an individual's private life and thoughts that marks an interrogation or search.' U.S. v. Dionisio, 410 U.S. 1, 14-15 ('73) (quoting Katz v. U.S., 389 U.S. 347, 51 ('67), and Davis v. Mississippi, 394 U.S. 721, 27 ('69)) (emphases added).
'Fingerprinting' - like the compelled production of other aspects of an individual's identification that are routinely exposed to and superficially observable by the public at large, such as voice prints, handwriting exemplars, and photographs - simply belongs to a different category of search that 'represents a much less serious intrusion upon personal security than other types of searches and detentions.' Hayes v. Florida, 470 U.S. 811, 14 ('85).*fn10 The majority's analysis obliterates this critical constitutional distinction between coerced fingerprinting and blood extraction for DNA genetic pattern analysis.
Blanket Searches.
Blanket searches are unreasonable, however 'evenhanded' they may be, in the traditional criminal law enforcement context. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91-2, 92 n.4 ('79) (invalidating a blanket patdown search of all patrons in a tavern, even though there was probable cause to search the bartender and the premises). The ill that the Fourth Amendment prevents is not merely the arbitrariness of police discretion to single out individuals for attention, but also the unwarranted domination and control of the citizenry through fear of baseless but 'evenhanded' general police searches.
In Zurcher, the Supreme Court held that a search of the offices of a university newspaper, which was not involved in any criminal activity, for photographs of demonstrators who had assaulted police officers did not offend the Fourth Amendment's ban against unreasonable searches and seizures. The court concluded: '[T]he Amendment has not been a barrier to warrants to search property on which there is probable cause to believe that fruits, instrumentalities, or evidence of crime is located, whether or not the owner or possessor of the premises to be searched is himself reasonably suspected of complicity in the crime being investigated.' Zurcher v. Stanford Daily ('78) 436 U.S. 547, 549-50.
Fourth Amendment protects the 'right of the people to be secure in their persons . . . against unreasonable searches and seizures.' The essence of that protection is a prohibition against some modes of law enforcement because the cost of police intrusion into personal liberty is too high, even though the intrusion undoubtedly would result in an enormous boon to the public if the efficient apprehension of criminals were the sole criterion to be considered. 'The easiest course for [law enforcement] officials is not always one that our Constitution allows them to take.' Wolfish, 441 U.S. at 595 (Stevens, dissenting).
A permanent resident alien is entitled to constitutional protection. See Landon v. Plasencia, 459 U.S. 21, 32-4 ('82) ('[O]nce an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.'). In particular, to Fourth Amendment protection against unlawful seizures. See Benitez-Mendez v. INS, 760 F.2d 907, 09-10 (9th Cir.'85) (finding that INS seizure of alien violated Fourth Amendment); see also INS v. Delgado, 466 U.S. 210, 213 n.1, 215-21 ('84) (considering whether questioning of resident aliens by INS agents amounted to seizure for purposes of Fourth Amendment); Martinez v. Nygaard, 831 F.2d 822, 824, 826-28 (9th Cir.'87) (analyzing whether seizures of three resident aliens complied with Fourth Amendment).
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