Kathleen Falk, Madison, WI and Louis Brandeis

"They conferred, as against the Government, the right to be let alone - the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."
- Justice Louis Dembitz Brandeis, (the "People's Attorney") dissenting opinion in Olmstead v. United States (1928)

Think Madison, Wisconsin, and surrounding Dane County, and you are likely to think: Progressive, civil rights and a secular culture existing peacefully with the second largest public research University in the world.

Mostly, you would be right. But there are a couple of vital exceptions: Dane County District Attorney Brian Blanchard [the best line I heard/read about him is that Blanchard should be sentenced to 30 days reading the disquisitions of Robert Jackson on prosecutorial discretion].

And secondly, an appalling effort under way to install police roadblocks, led by Dane County Executive Kathleen Falk who is dedicated to decimating the Fourth Amendment in the city named after the father of the Constitution.

The American electorate is regularly treated to examples of Democrats and liberals going along to get along with the powers that be.

Too often this going along involves complicity in appalling violations of our liberties at home, and inhumanity abroad as we loose our killing machine upon innocents.

Recent examples abound. We warehouse the largest proportion of our citizens in prisons and jails, with active aiding and abetting by liberal politicians (especially prosecutors seeking higher elective office).

The Patriot Act [and thank you again Sen. Russ Feingold for being the only U.S. senator to oppose this], the Iraq War, trillions of dollars for the military-industrial complex, the war on drugs, the war on terror, one can go on.

So what to do when the war drums on the Potomac beat as we corrupt and ruin the lives of our fellows at home and decimate the Bill of Rights?

Write a letter to Slate/the New Republic/the Atlantic/the New Yorker? Right, I used to think so.

But that's wasting time. As Noam Chomsky wrote on the liberals' applauding the run-up to the 2001 bombing of Afghanistan that ended up killing 1,000s more innocents than were murdered on 9/11:

(L)iberal intellectuals have lined up in support of the war machine in the familiar style -- discussed, for example, by Randolph Bourne in classic essays--and since they know they do not have the intellectual competence to deal with those who refuse to go along, resort to what comes natural to the educated classes: hysterical tantrums, lies, and abuse. Why become involved? There are more important things to do--such as continue to falsify their increasingly desperate claim that everyone is following them in their depraved subordination to power.
- CounterPunch, April 30, 2002
Speaking truth to political power in innovative ways at all levels of government seems an uncontroversial suggestion; to some this is simply a moral imperative, falsifying the notion that liberty, peace, and justice are not the concerns of the American people.

The Fourth Amendment and Michigan Department of State Police v. Sitz

Let's look locally [for me]. It was no great surprise to read the reaction of those trashing the Fourth Amendment and anyone daring to criticize Dane County Executive Kathleen Falk's strong advocacy of police roadblocks in a self-proclaimed effort to change the drinking "culture" of Wisconsin.

Even many liberals with long histories of peace-and-justice work are all too happy to aid the effort of Chief Justice William H. Rehnquist (1994-2005) who was never hesitant to weaken the Bill of Rights during his tenure on the court as he did in Michigan Department of State Police v. Sitz (1988) (decided in 1990) that enables states to enact roadblocks to battle drunk drivers, no matter the Fourth Amendment for those drivers who are doing absolutely nothing wrong or illegal.

You say you are an innocent, but you drive a car. Well, your Fourth Amendment rights go out the window like so many gas fumes out of your tailpipe is the effect of the Rehnquist decision.

Today, one daily newspaper (online) has spoken out for the Fourth Amendment on the police roadblock/Kathleen Falk question, the Capital Times:

No matter how they are operated, checkpoints where motorists are forced to pull over even where there is no indication of impaired driving are a form of unreasonable search and seizure that cannot be sanctioned in Wisconsin. Other states, with less regard for basic liberties, may allow checkpoints. But there is insufficient legal or scientific justification to warrant such an intrusion by state and local authorities in a state that has always set a higher standard when it comes to protecting the right to privacy.

That's quite insufficient to knock down the efforts of Falk, Jim Rowan, the Wisconsin State Journal, and others to trash the Fourth Amendment rights of Wisconsin citizens. Others should speak out.

So it's worth reviewing the three dissents in the Michigan Department of State Police v. Sitz (1988) decision written by John Paul Stevens, William J. Brennan, Jr. and that most uppity of black men, Thurgood Marshall, who recall the maxim of brother Brandeis.

Perhaps then the readers in Wisconsin may decide why voting against the liberty-destroying efforts of Dane County Executive Kathleen Falk is worth the effort this April election and show Falk the boot for her betrayal of the cause of liberty and her abdication of her role as a protector of a fundamental right.

Below is the Brennan-Marshall dissent.

- Brennan and Marshall's dissenting opinion in Michigan Department of State Police v. Sitz (1988)

- John Paul Stevens' dissenting opinion (joined by Marshall and Brennan) in Michigan Department of State Police v. Sitz (1988)


496 U.S. 444 Michigan Department of State Police v. Sitz
No. 88-1897 Argued: Feb. 27, 1990 --- Decided: June 14, 1990

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Today, the Court rejects a Fourth Amendment challenge to a sobriety checkpoint policy in which police stop all cars and inspect all drivers for signs of intoxication without any individualized suspicion that a specific driver is intoxicated. The Court does so by balancing the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped. Ante at 455.

For the reasons stated by JUSTICE STEVENS in Parts I and II of his dissenting opinion, I agree that the Court misapplies that test by undervaluing the nature of the intrusion and exaggerating the law enforcement need to use the roadblocks to prevent drunken driving. See also United States v. Martinez-Fuerte, 428 U.S. 543, 567 (1976) (BRENNAN, J., dissenting). I write separately to express a few additional points.

The majority opinion creates the impression that the Court generally engages in a balancing test in order to determine [p457] the constitutionality of all seizures, or at least those "dealing with police stops of motorists on public highways." Ante at 450. This is not the case. In most cases, the police must possess probable cause for a seizure to be judged reasonable. See Dunaway v. New York, 442 U.S. 200, 209 (1979). Only when a seizure is "substantially less intrusive," id. at 210, than a typical arrest is the general rule replaced by a balancing test. I agree with the Court that the initial stop of a car at a roadblock under the Michigan State Police sobriety checkpoint policy is sufficiently less intrusive than an arrest so that the reasonableness of the seizure may be judged, not by the presence of probable cause, but by balancing the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.

Brown v. Texas, 443 U.S. 47, 51 (1979). But one searches the majority opinion in vain for any acknowledgment that the reason for employing the balancing test is that the seizure is minimally intrusive.

Indeed, the opinion reads as if the minimal nature of the seizure ends rather than begins the inquiry into reasonableness. Once the Court establishes that the seizure is "slight," ante at 451, it asserts without explanation that the balance "weighs in favor of the state program." Ante at 455.

The Court ignores the fact that, in this class of minimally intrusive searches, we have generally required the Government to prove that it had reasonable suspicion for a minimally intrusive seizure to be considered reasonable. See, e.g., Delaware v. Prouse, 440 U.S. 648, 661 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 882-883 (1975); Terry v. Ohio, 392 U.S. 1, 27, (1968). Some level of individualized suspicion is a core component of the protection the Fourth Amendment provides against arbitrary government action. See Prouse, supra, 440 U.S. at 654-655; Martinez-Fuerte, supra, 428 U.S. at 577 (BRENNAN, J., dissenting) ("Action based merely on [p458] whatever may pique the curiosity of a particular officer is the antithesis of the objective standards requisite to reasonable conduct and to avoiding abuse and harassment"). By holding that no level of suspicion is necessary before the police may stop a car for the purpose of preventing drunken driving, the Court potentially subjects the general public to arbitrary or harassing conduct by the police. I would have hoped that before taking such a step, the Court would carefully explain how such a plan fits within our constitutional framework.

Presumably, the Court purports to draw support from Martinez-Fuerte, supra, which is the only case in which the Court has upheld a program that subjects the general public to suspicionless seizures. But as JUSTICE STEVENS demonstrates, post at 463-466, 471-472, the Michigan State Police policy is sufficiently different from the program at issue in Martinez-Fuerte that such reliance is unavailing. Moreover, even if the policy at issue here were comparable to the program at issue in Martinez-Fuerte, it does not follow that the balance of factors in this case also justifies abandoning a requirement of individualized suspicion. In Martinez-Fuerte, the Court explained that suspicionless stops were justified because

[a] requirement that stops . . . be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens.

428 U.S. at 557. There has been no showing in this case that there is a similar difficulty in detecting individuals who are driving under the influence of alcohol, nor is it intuitively obvious that such a difficulty exists. See Prouse, supra, 440 U.S. at 661. That stopping every car might make it easier to prevent drunken driving, but see post at 469-471, is an insufficient justification for abandoning the requirement of individualized suspicion.

The needs of law enforcement stand in constant tension with the Constitution's protections [p459] of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards.

Alameida-Sanchez v. United States, 413 U.S. 266, 273 (1973). Without proof that the police cannot develop individualized suspicion that a person is driving while impaired by alcohol, I believe the constitutional balance must be struck in favor of protecting the public against even the "minimally intrusive" seizures involved in this case.

I do not dispute the immense social cost caused by drunken drivers, nor do I slight the government's efforts to prevent such tragic losses. Indeed, I would hazard a guess that today's opinion will be received favorably by a majority of our society, who would willingly suffer the minimal intrusion of a sobriety checkpoint stop in order to prevent drunken driving. But consensus that a particular law enforcement technique serves a laudable purpose has never been the touchstone of constitutional analysis.

The Fourth Amendment was designed not merely to protect against official intrusions whose social utility was less as measured by some "balancing test" than its intrusion on individual privacy; it was designed in addition to grant the individual a zone of privacy whose protections could be breached only where the "reasonable" requirements of the probable cause standard were met. Moved by whatever momentary evil has aroused their fears, officials -- perhaps even supported by a majority of citizens -- may be tempted to conduct searches that sacrifice the liberty of each citizen to assuage the perceived evil. But the Fourth Amendment rests on the principle that a true balance between the individual and society depends on the recognition of "the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men."Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

New Jersey [p460] v. T.L.O., 469 U.S. 325, 361-362 (1985) (BRENNAN, J., concurring in part and dissenting in part) (footnote omitted).

In the face of the "momentary evil" of drunken driving, the Court today abdicates its role as the protector of that fundamental right. I respectfully dissent.

Contact author at: maleon64@yahoo.com

- mal contends

Tags: Brian Blanchard, Dane County, Fourth Amendment, John Paul Stevens, Kathleen Falk, Madison, Michigan Department of State Police v. Sitz, Nancy Mistele, Noam Chomsky, Randolph Bourne, Robert H. Jackson, Russ Feingold, Thurgood Marshall, William J. Brennan, Wisconsin (all tags)


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