Those who remember the Warren Court recall imaginative renderings of the constitution to expand criminal’s rights coupled with outright judicial hostility to police. The result was a national crime wave only recently curbed by new police techniques and more favorable rulings from the Supreme Court.
Now that Barack Obama has identified Earl Warren as a model judge, we could face a judicial flashback to the 1970s. Unfortunately, we have a preview of what that might look like from a recent Sixth Circuit case involving a drug arrest in Michigan.
The suspect, Lonnie Ray Davis, was pulled over for violating a Michigan law prohibiting “dangling ornaments” that obstruct a driver’s vision. Davis had a 4” Tweety Bird statue dangling by a 3” string on his rear view mirror.
When he was pulled over, Davis admitted he had no drivers license, and was arrested. A search revealed an open pint of Hennessey Cognac, a stun gun in his waist, 2 baggies of crack cocaine in his sock, four rolled up wads of cash in his pocket, and a loaded .380 pistol under the drivers’ seat.
So, we have Tweety Bird, open booze, no license, two weapons, illicit drugs packaged for sale, and the apparent proceeds of prior sales. What were the honorable judges of the Sixth Circuit worried about? Tweety Bird, of course! You just can’t trust those cops, the judges concluded, to tell the difference between a dangling Tweety Bird ornament (not allowed) and a parking pass (ok). Even though Davis’ lawyers had not even raised the point, the judges struck down the Michigan “ornament” law finding it too vague to trust police with enforcing it.
Beyond the facial absurdity, the case is a classic example of judicial activism. First, courts have a duty to avoid raising constitutional issues unless they are necessary to decide the case. Here, the court bent over backwards to decide a constitutional question that no one raised or even discussed. Second, the judicial gymnastics appear designed to undermine Supreme Court case law that allows police to pull over drivers for minor traffic violations even if the “real” reason for the stop is a belief that the driver is a drug runner. If you can’t pull over cars festooned with Tweety, then police have fewer tools to stop potential drug dealers.
Heritage’s Todd Gaziano has previously spelled out that the opinion’s author, former Chief Judge Boyce Martin, is known for mischief that would make even the most strident activist blush. GW Law Professor Orin Kerr has more on this at the Volokh Conspiracy for those interested in the technical legal doctrines of which such silliness is composed. For the rest of us this case is a sobering reminder that some judges actually believe there is more to fear from a Michigan Township Policeman than from a liquored-up, armed, well-stocked drug dealer illegally operating a motor vehicle.