WASHINGTON — Judge Neil Gorsuch wasn’t convinced that a teenager who made burping sounds in a classroom should be arrested, handcuffed and taken to juvenile detention in a police car.
Gorsuch said the 13-year-old student from Albuquerque, New Mexico, should have been able to sue the arresting officer for excessive force. His powerful dissent in the case last year offers a glimpse of how Gorsuch — a favourite among conservatives — might be hard to pigeonhole on criminal justice issues if he is confirmed to the Supreme Court.
“Arresting a now compliant class clown for burping was going a step too far,” Gorsuch wrote, saying there is a difference “between childish pranks and more seriously disruptive behaviours.”
During a decade on the federal appeals court in Denver, Gorsuch has raised concerns about intrusive government searches and seizures that he found to violate constitutional rights. He generally has ruled against defendants appealing their convictions and those who claim they received unfair trials. But he also has warned in writings and speeches about the danger of having too many criminal laws on the books.
“What happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?” he said in a 2013 speech.
That skepticism seems to align him with the late Justice Antonin Scalia, a strong believer in protecting people from overzealous police and prosecutors. Scalia at times sided with liberals in tossing out evidence that breached privacy rights and in strengthening the right to confront accusers in court.
Liberal groups are opposing Gorsuch’s nomination, in part based on views that his overall record on criminal justice is too harsh.
“At a time when the abuses of our criminal justice system are becoming a national crisis, we cannot confirm a justice who does not understand the role of the Supreme Court to protect the most vulnerable among us,” said a report from People for the American Way, a liberal advocacy group.
When Gorsuch has said there are too many criminal laws, he has often focused on business regulations, such as requirements that mattress sellers preserve mattress tags or that lobster importers use cardboard instead of plastic.
Adam Winkler, a law professor at UCLA School of Law, says such decisions could forecast that Gorsuch may be a vote to curtail criminal prosecution of Wall Street executives and financiers.
“He is likely to read federal criminal laws narrowly,” Winkler said. “Gorsuch is also likely to favour industry against what he sees as excessive criminal laws regulating business.”
Some of his opinions have faulted police for seizing evidence in violation of the Fourth Amendment, which bars unreasonable searches. In a case last year, Gorsuch parted from the two-judge majority in a ruling that said police had a right to walk onto a man’s property to knock on the front door even though there were several “No Trespassing” signs in the yard.
Gorsuch mocked the majority’s opinion, saying it gave government agents the right to “invade” a homeowner’s property “whatever the homeowner may say or do about it.”
The homeowner “might add a wall or a medieval-style moat, too,” Gorsuch wrote. “Maybe razor wire and battlements and mantraps besides. Even that isn’t enough to revoke the state’s right to enter.”
In a separate 2016 case, Gorsuch was on a panel that found the National Center for Missing and Exploited Children violated the Fourth Amendment when it searched a man’s emails without a warrant and discovered child pornography. The emails had been forwarded by AOL, the man’s internet service provider, after the images were flagged by an automatic filter.
Writing for the panel, Gorsuch said the centre is a government-like entity “endowed with law enforcement powers beyond those enjoyed by private citizens.” The case was sent back to a lower court to decide whether the search still might be reasonable on other grounds.
Paul Rothstein, a professor at Georgetown University Law Center, said Gorsuch appears to have a mixed record in criminal cases and “seems to call them as he sees them.”
“I think his primary area of concern for the citizen is in the privacy of your home or your private belongings,” Rothstein said. “He believes there is a private area and he’s pretty strong about that.”
Gorsuch has been less sympathetic to defendants in other rulings.
In a 2012 case, Gorsuch dissented from a majority opinion in which his colleagues sided with an Oklahoma man seeking to overturn his murder conviction due to an ineffective lawyer. The lawyer had advised his client to reject a plea agreement that called for a 10-year sentence. Instead, the man went to trial, was convicted and sentenced to life in prison.
The majority said the lawyer’s decision to reject the plea had “disastrous results” for his client. But Gorsuch said the man’s right to effective representation was not violated because he was later convicted in a fair trial.
In 2013, Gorsuch wrote a majority opinion ruling that a police officer did not use excessive force when he shot a man in the head with a stun gun during a chase. The man, who was suspected of growing marijuana plants and fleeing from police, later died. The officer said the suspect reached for his pocket despite warnings not to do so. A dissenting judge noted that the officer’s training manual specifically warned against aiming a stun gun at the head unless necessary.
Gorsuch said the situation facing the officer at the time was “replete with uncertainty and a reasonable officer in his shoes could have worried he faced imminent danger from a lethal weapon.”
EDITOR’S NOTE _ One in a series of stories examining the judicial record of Neil Gorsuch, nominated to the Supreme Court by President Donald Trump
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