I occasionally, by which I mean hourly or less, marvel at comments by people who approve or disapprove of something because of their normative views. Usually, it involves someone with exceptionally limited experience who inductively reasons that if it’s good with them, it ought to be fine with everyone else. After all, they are the center of the universe, and the world should adopt their tastes because, well, they’re the center of the universe.
But rarely is such a flagrantly narcissistic and unprincipled rationale openly used as the foundation for Circuit opinion. Except by Judge Richard Posner, for whom the rule of law is secondary to his sensibilities. In one of the more bizarre Seventh Circuit opinions, Judge Posner lays it on the line.
The district judge held the Wisconsin monitoring statute unconstitutional on both grounds, precipitating this appeal by the defendants (in effect by the state). Although the judge wrote a long opinion, it omits what seem to us the crucial considerations in favor of the constitutionality of Wisconsin’s requiring the plaintiff to wear the ankle bracelet for the rest of his life.
Given how slight is the incremental loss of privacy from having to wear the anklet monitor, and how valuable to society (including sex offenders who have gone straight) the information collected by the monitor is, we can’t agree with the district judge that the Wisconsin law violates the Fourth Amendment. The plaintiff argues that monitoring a person’s movements requires a search warrant. That’s absurd. The test is reasonableness, not satisfying a magistrate.
The appellee in the case, Michael Belleau, having prevailed in the district court, is “about to turn 73,” having completed his sentence for child molestation, and having been released from post-sentence “civil” confinement after a psychologist determined that he was no longer a significant threat. So the State of Wisconsin cut him loose, but imposed a requirement that he wear a GPS device on his ankle for the rest of his life.
Why did the district judge, in his “long opinion,” rule in favor of the Belleau? That’s kind of hard to say, since Posner didn’t find it worth mentioning. The norm, a recap of the rationale below together with the standard of review, before launching into why the Circuit is reversing, is for lesser judges. Posner accepts no such constraints.
Instead, Judge Posner went right to what mattered to him.
The type of anklet worn by the plaintiff is waterproof to a depth of fifteen feet, so one can bathe or shower while wearing it. It must however be plugged into a wall outlet for an hour each day (while being worn) in order to recharge it. There are no restrictions on where the person wearing the anklet can travel, as long as he has access to an electrical out‐ let. Should he move away from Wisconsin, he ceases having to wear it. And while he’s supposed to pay a monthly fee to compensate for the cost of the anklet, the plaintiff in this case does not pay it and the Department of Corrections appears not to have tried to compel him to do so.
When the ankleted person is wearing trousers the anklet is visible only if he sits down and his trousers hike up several inches and as a result no longer cover it. The plaintiff complains that when this happens in the presence of other people and they spot the anklet, his privacy is invaded, in violation of the Fourth Amendment, because the viewers assume that he is a criminal and decide to shun him.
Yes, the picture is part of the opinion. Posner is avant garde in that way. What about the fact that Belleau is a free man, post-conviction, post-sentence, even the nonsensical post-civil confinement? Posner couldn’t care less.
It would be particularly odd to think that all searches require a warrant just because most of them invade privacy to a greater or lesser extent.
Some might call it “particularly odd” to ignore the black letter law that all warrantless searches are presumptively unconstitutional. Not Posner.
The terms of supervised release, probation, and parole often authorize searches by probation officers without the officers’ having to obtain warrants, and the Supreme Court has held that such warrantless searches do not violate the Fourth Amendment as long as they are reasonable. Samson v. California, supra; United States v. Knights, 534 U.S. 112, 118–120 (2001).
Uh, yeah, except Belleau isn’t on supervised release, probation or parole.
Having to wear the monitor is a bother, an inconvenience, an annoyance, but no more is punishment than being stopped by a police officer on the highway and asked to show your driver’s license is punishment, or being placed on a sex offender registry, held by the Supreme Court in Smith v. Doe, supra, and by our court in Mueller v. Raemisch, supra, 740 F.3d at 1133, not to be punishment.
Except police can’t stop drivers at will to ask for their driver’s license. That whole probable cause thing, because otherwise it would be a seizure in violation of the Fourth Amendment.
No, the aim of requiring a person who has a psychiatric compulsion to abuse children sexually to wear a GPS monitor is not to shame him, but to discourage him from yielding to his sexual compulsion, by increasing the likelihood that if he does he’ll be arrested because the Department of Corrections will have incontestable evidence that he was at the place where and at the time when a sexual offense was reported to have occurred.
Judge Posner weighs the benefits to society of a former child molester being compelled to wear a GPS device for life against the harm done to children by molestation. That could pretty much be said of any person who has ever committed any crime ever, but has nothing whatsoever to do with whether the government can impose on a citizen who is under no legal constraint a requirement that his every movement for the rest of his life be subject to government surveillance.
But the core of Posner’s opinion is that it ain’t no big deal. See the picture? All he has to do is wear long pants and nobody will ever know. After all, when the test of the warrant clause ceases to be a warrant upon probable cause, but is replaced by Judge Posner’s personal feelz of reasonableness, what could possibly go wrong?
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
What I find to be the most remarkable about this is that the guy was released from civil confinement in the first place. I don’t think I’ve ever heard of that happening before.
As for Posner’s opinion, it strikes me as classic Posner.
It strikes me that classic Posner is quickly becoming senile dementia Posner.
That could be. But is there any way to tell the difference?
He’s become an embarrassment, but then, he is still writing majority opinions. Something is rotten in the 7th Circuit, and it isn’t just Posner’s intellectual faculties.
That concerned me as well. I wonder if they don’t have the guts to do something about Posner, if he’s too “important,” or if they just can’t bring themselves to do anything about it. But something is definitely rotten in the 7th Circuit.
You should really give the fame and fortune of karaoke some more consideration before these normative Posner data updates become standard fare.
It is starting to come through in echoes…
Kind of reminds me of this Posner joint:
[Ed. Note: Link deleted per rules.]
He conducts a post-argument “experiment” in chambers using his law clerks and then uses it in his determination, all the while stating: “This was not “evidence” — the intention was to satisfy curiosity rather than to engage in appellate factfinding — but it is information that confirms the common sense intuition”
If you’re gonna try to sneak a link past me into the comments, the least you could is use my post for the link.
It’s a strange paraphilia that renders the man dangerous only to Cheese Head Children. Or, could it be that, 50 appeals-court rulings later, we find that all the states can “independently” impose the same non-burdensome, purely local restrictions?
This one weird constitutional trick aside, it seems highly unlikely that the premise of no actual harm is accurate. For a start, I can’t imagine any real doctor testifying that wearing that thing in the same position 24/7 is healthy.
Trigger Warning: law student comment
The way attorneys (and professors) brag about arguing in front of him (or reading his books), I assumed Posner was one of the greats. Now I’m starting to think I wasn’t misunderstanding when important parts of the reasoning in United States v. Perez, 86 F.3d 735, were illogical. Do I trust my own mind or what they’re telling me?
Perhaps “was” is the operative word.
Perhaps the 7th Circuit en banc will reverse Posner for clear error:
S Industries, Inc. v. Centra 2000, Inc., 249 F.3d 625, 627 (7th Cir. 2001)
Nah, what was I thinking?
Hmm, that citation itself has a citation. I wonder what that could be…
Oh look, there’s a dissent by Posner, saying that the court should overlook the standard of review because the case offends his feelz. (He used the words “substanitive justice” but he doesn’t seem to be raising any valid points in support, merely that he did not like the outcome below.)
Never change, Judge Posner, never change.
Good catch. I knew of the earlier Opinion, but forgot that Posner had dissented. I’m partial to the S Industries cite, because the “S” of S industries is Leo Stoller, a true pioneer in the noble field of trademark trolling.
He’s hiding porn or terrorism instructions in the digitized cat images on his phone.
This would have called for an Al Jazeera America investigation, right after Peyton Manning retires, but alas the NFL and 7th Circuit conspired to put them out of business.
I think. Sometimes.
Oh good, it’s not just Millennials substituting their feelz for an understanding of the law, it’s a federal judge.
Oh ****, it’s not just Millennials substituting their feelz for an understanding of the law, it’s a federal judge.
The post-sentencing civil commitments (I’m assuming Wisc has something akin to Fla’s Jimmy Ryce Act) are themselves ridiculous. It’s letting dept families/children using the word “civil” to lock people into sex prison. I’m confused how the courts allow these double jeopardy punishments to last even a week after enactment of the laws.
Why is there a balancing test of harm and privacy violations? If he’s a threat, then he’s never getting out of confinement. Where do we get the right to a test other than PC for the free? If there’s a forecasted storm or power surge does he have to hang out in the police station by the generator with an extension cord?
This case has to get cert…all these odd “civil law” (it can’t be a criminal punishment as J Posner alludes) tests for whether law enforcement monitoring any hypothetical future act can exist greater than the original trial judge’s sentence is textbook double jeopardy.
Yup.
Perhaps the good Judge would like to personally demonstrate how minor the inconvenience is…