Neil Gorsuch could be the Supreme Court's wild card in criminal justice cases – Business Insider

Neil GorsuchJudge
Neil Gorsuch speaks in the East Room of the White House in
Washington, Tuesday, Jan. 31, 2017, after President Donald Trump
announced Gorsuch as his nominee for the Supreme
AP Photo/Carolyn

WASHINGTON (AP) — 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 favorite 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

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

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

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
favor 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

Neil GorsuchJudge Neil Gorsuch stands
with his wife Louise.

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 center 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

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.”

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