Fourth Amendment permits the use of chemical mace on persons that are restrained in police custody in order to subdue them without violence
The Supreme Court delivered an opinion. Solicitor General Needle, Solicitor General Keenan and Attorney General Keener are in dissent. JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE joins, concurring.
For a variety of reasons, I am concerned a plurality opinion could be the basis for the Court to abandon traditional First Circuit precedent and hold that, even if a chemical weapon has been used by police officers in the course of an arrest, Fourth Amendment seizure rights survive even if the defendant is unarmed. This concern is not merely theoretical. In my thirty years as a judge, I have seen the arrest of countless individuals end in a chemical injury. And I have personally seen others suffer the injury.
I
In response to the terrorist attacks of September 11, 2001, United States citizens from New York to Maine and all over the country, who have nothing to do with al-Qaeda or Osama bin Laden, can be put in jail solely because of their perceived political beliefs. If you believe in peace and freedom and oppose the wars in Iraq and Afghanistan and you believe the United States government's domestic policies are unfair or wrong, you could be jailed and perhaps even killed. It is, in effect, a First Amendment free-for-all in search of an enemy, or rather members of an enemy group.
Because all of this is happening on the public streets of New York, Los Angeles, and, indeed, across the country, I recognize that the Court has jurisdiction of this case. But it is not my intention to discuss that point at great length. Rather, I wish to point out that, as I discussed earlier in this opinion, we now possess an overwhelming amount of First Circuit precedent recognizing the broad protections provided to police officers in the execution of their duties. As the plurality opinion implicitly acknowledges, however, the constitutional protections afforded to police officers are more limited than the Fourth Amendment protections afforded to other Americans. If we accept the premise that the Fourth Amendment's protections extend only to arrested, then this issue is a nonfactor. However, if we understand the Fourth Amendment to protect all of those individuals, including those in our jail cells, then the decision to taser one of us and the decision not to arrest another of us will have to be decided differently with respect to each of us.
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No. 05-852 In the Supreme Court of the United States GURPREET KHURANA PETITIONER v. ALBERTO R. GONZALES ATTORNEY GENERAL ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION PAUL D. CLEMENT Solicitor General Counsel of Record PETER D. KEISLER Assistant Attorney General DONALD E. KEENER ALISON MARIE IGOE Attorneys Department of Justice Washington D.C. 20530-0001 202...
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