Full Opinion here[0], Dissent starts on page 22.
Full Oral Argument here[1], presented by the wonderful folks over at Oyez who really do wonderful work in cataloging the history of the Court (I'm not connected to them, just love what they do and I recommend folks listen to cases if only to sharpen your own rhetorical toolset).
[0] https://www.supremecourt.gov/opinions/20pdf/19-292_21p3.pdf
Gorsuch called the court’s opinion “novel” and “mistaken.” The majority “holds that a criminal suspect can be simultaneously seized and roaming at large. ... In two centuries filled with litigation over the 4th Amendment’s meaning, this court has never before adopted the majority’s definition of a ‘seizure.’ Neither the Constitution nor common sense can sustain it.”
Sounds a bit like Schrödinger's cat dilemma. Can a suspect be considered "seized" while at the same time roaming free? I think that was his point. You can't really expand the notion to attempted - doesn't it have to be one state or other?
Being freed in 10 seconds or 10 years later doesn't make the seizure less unlawful and your current disposition should have little to do with deciding what WAS lawful at time of seizure.
Deciding that shooting a suspect unlawfully counts as detaining them is more challenging than the current state. I would prefer to call it attempted murder and prosecute the shooter.
Yes. I recommend reading the whole opinion (both the Majority and the Dissent). It really is an interesting question.
The “question” of jury nullification is a fundamental flaw of the jury system. Legalising it invites mob rule. Directly challenging it undermines the prerogative of a jury. So...we just don’t talk about it. If it were to be solved, it would involve the abolition of the jury system. Which nobody wants.
I don't think it is accurate to define it as 'mob rule.' Generally, in mob rule, the mob decides who is guilty and punishes them arbitrarily. In jury nullification, the mob decides who is technically guilty but unjustly punished (because the law is bad, because the punishment is too severed, etc..)
I won't lie to a judge or to anyone in court. But I won't ever convict someone if the death penalty is on the line. I expect to be excused, but if not... That isn't 'mob rule.' That's a power granted to me as a juror by the system. Presidents and Congress have grasped far more power than that without explicitly (and sometimes without even implicitly) being granted that power.
Jury nullification is a jury acting on its own accord, without respect to the law.
Overruling unjust punishment is the archetype. The Northern jury nullifying Fugitive Slave Act convictions, for instance. The flip side of that coin is Southern juries nullifying lynching convictions. One can make a value judgement on that not being jury nullification, but it's the same mechanism.
The law grants this power to juries under the premise that they behave objectively. If jury nullification became commonplace, I would expect we'd see calls to join the rest of the world in abolishing popular juries. I think that would be a net loss.
While nullification has mostly been used for ill in the past, at least it's a grassroots democratic process. Why should someone be punished if their peers don't think it should be a crime? That's pretty small d democratic, much more so than elections where your vote barely counts.
Last I checked, juries aren't co-equal with Congress.
> Why should someone be punished if their peers don't think it should be a crime?
If cases become a matter of selecting your sampling bias, the legal system becomes unpredictable. That, in turn, subverts the rule of law--you no longer know if what you're doing is legal based on the law per se.
If jury nullification becomes commonplace, the jury system would need to be revised or thrown out. If you have trouble imagining this, imagine a group you are highly unsympathetic to, now put them in a zip code, now put them on a jury, now write the headlines they rulings would produce.
You can claim declaring laws unconstitutional is kind of an implied power, but it is certainly no where in the text.
Other thinkers have said that legalism is fake and there is really only contests between political factions with a legal gloss to pretend things are fair and objective. If you take that critique seriously, then the courts shouldn't have that power and congress should decide what is constitutional as they are actually elected and represent legitimate authority.
Philosophically, I like this argument. Practically, dear god.
The U.S. system was supposed to balance the stability of monarchy (executive) and aristocracy (judiciary) against the justness of democracy (legislative). Our executive is, by design and decidedly, not monarchic. That removes a "slow thinking" system, leaving the "fast thinking" executive and legislature. We see the results in our political volatility.
Given the last two hundred years, Marbury was right. We needed a dampener, so to speak. People not incentivized by poll numbers.
P.S. Thank you. This has been a fun discussion and distraction.
For example, a jury should feel free to simply dismiss charges brought under the espionage act.
I should also point out that nullification was unfortunately mostly used to acquit lynchers. I'm not sure why precisely that only that particular heinous act inspired enough solidarity to nullify the law as opposed to anything good, so historically nullification has been mostly a bad thing.
The short answer is jury nullification is an unavoidable thing. If matters get bad enough, it will kick in. (Though if things get that bad, they'll be eliminated.) That doesn't mean it should be encouraged.
The moment you let juries start deciding whether the law is just, versus deciding if a law was broken, you remove the veneer of objectivity that has kept our courts somewhat sacred. It also becomes problematic for lawyers to remove jurists for ridiculous political views, as it becomes a First Amendment issue. Currently, that isn't a problem--your political views don't matter. Only your objectivity does.
https://en.wikipedia.org/wiki/Bang%E2%80%93bang_control with all of its flaws
Well, 90% of the world is doing just fine without the jury system. What is so great about it anyways?
It's the sole popular check on the judiciary, the unelected branch of government.
> It is no doubt true that juries have a de facto power to disregard the law as stated to the jury by the judge. We cannot enter the jury room. The jury is never called upon to explain the reasons which lie behind a verdict. It may even be true that in some limited circumstances the private decision of a jury to refuse to apply the law will constitute, in the words of a Law Reform Commission of Canada working paper, "the citizen's ultimate protection against oppressive laws and the oppressive enforcement of the law" [...] But recognizing this reality is a far cry from suggesting that counsel may encourage a jury to ignore a law they do not support or to tell a jury that it has a right to do so.
But as they noted, they also reasoned that jury nullification is an integral and unavoidable part of the system, and that leaving juries the final say on the verdict, without appeal, is the intended effect, as a firestop against government abuse. They also reasoned there's no way to actually address jury nullification, beyond ensuring that the jury is properly instructed, without effectively getting rid of juries altogether.
The Canadian cases cite an unusual amount of American and British non-binding precedent (even for the Canadian courts, which tend to borrow freely from other common law jurisdictions when relevant) for their legal reasoning. The legal logic in the Canadian cases closely follows American rulings on jury nullification in the appellate courts, even though it hasn't gone to SCOTUS. The principles and constitutional rights in question are basically identical. I'd be very surprised if the American Supreme Court didn't issue a carbon copy ruling on the topic.
The reality is jury nullification is here to stay because jurors are not required to explain their findings nor can they be punished for finding things 'wrongly.' Judges, per the SCOTUS, are free to discourage this behavior, but there's nothing to stop it and no imaginable mechanism to even bring such a stoppage to the SCOTUS.
Again, not a criminal lawyer, but I doubt a judge would ever instruct a jury with respect to nullification. It’s not relevant. The role of the jury is fact finder. The function of the jury is not to determine right from wrong or good law from bad law.
https://reason.com/2017/06/20/although-juries-can-acquit-the...
Quoth the judge:
> You cannot substitute your sense of justice, whatever that means, for your duty to follow the law, whether you agree with it or not. It is not for you to determine whether the law is just or whether the law is unjust. That cannot be your task. There is no such thing as valid jury nullification. You would violate your oath and the law if you willfully brought a verdict contrary to the law given to you in this case.
On the juries I’ve served the instructions were extremely limiting and there was an implicit “no jury nullification here”, but they were not as direct as the judge in this case.
There is also no implied punishment so the judge in case overstepped.
There was no nullification in that particular case. If there was judge can say whatever s/he wants but there would be no conviction.
Today’s majority disputes none of this. It accepts that a seizure of the inanimate objects mentioned in the Fourth Amendment (houses, papers, and effects) requires possession. Ante, at 4. And when it comes to persons, the majority agrees (as Hodari D. held) that a seizure in response to a “show of authority” takes place if and when the suspect submits to an officer’s possession. Ante, at 15. The majority insists that a different rule should apply only in cases where an officer “touches” the suspect. Here—and here alone—possession is not required. So, under the majority’s logic, we are quite literally asked to believe the officers in this case “seized” Ms. Torres’s person, but not her car, when they shot both and both continued speeding down the highway.
He goes on to mention that the term "seizure" is used in reference to 4 objects in the 4th Amendment, and that prior case law forbids interpreting the same term to mean different things depending on the object being modified. From the opinion:
To “[a]scrib[e] various meanings” to a single word, we have observed, is to “render meaning so malleable” that written laws risk “becom[ing] susceptible to individuated interpretation.” Ratzlaf, 510 U. S., at 143 (internal quotation marks omitted).
I think I'm with Gorsuch here. While I do think the officers acted unreasonably and should be punished, the 4th Amendment doesn't seem to apply. You end up with weird and inconsistent cases. If an officer shoots at someone shooting at him, and ends up hitting a hostage in the house, has he arrested the hostage? Probably not, so now we have to add another layer of complexity in determining whether the officer intended to arrest that person, or "accidentally arrested" them. It just becomes incoherent. I also find it notable that the majority declines to comment on Gorsuch's hypotheticals like lasers or tear gas. Has everyone who's been tear gassed been arrested? What if the wind blows it a different direction? The resulting case law is going to be a mess.
I agree that "unreasonable attempted seizure" should be illegal, there's a gap in the law there. I just think it's up to the legislative branch to fix that. The case law doesn't seem to support the majority opinion; it reads to me like they started with a conclusion and worked backwards.
So given the choice between 1: Say nothing, which is known to not spread lies but has no potential to help anyone, and 2: Extend the article's potential misrepresentation by repeating it as fact, instead I chose option 3: Include my confidence interval in my comment explicitly which enables readers such as yourself to make their own judgment call, but which opens me up to obvious "criticism" by people who are so thrown off by the straightforwardness of this strategy that they can't help themselves from repeating the clearly stated choice while pinning it with their own judgement.
Think of it like this: my comment is a function with a parameter for "trust of this article's summary" for which I trust my reader to provide a value that works well for them, and in turn I give them a comment that they can evaluate themselves.
I hope more people choose option 3, but I can sympathize with why they wouldn't. :)
That's not true. I believe just the burden of proof is more similar to civil (preponderance of the evidence) than criminal (beyond a reasonable doubt). It still seems unreasonable, but not literally legal highway robbery.
Maybe in some states it is that you would only keep whatever fraction of certainty you proved, as is done in civil disputes in some places?
Now if we can get a case to find the same for "civil asset forfeiture" / literally legal highway robbery by police, that would be great.