Bench Memos

Seventh Circuit Nominee David Hamilton—Substantive Due Process

I’ve previously outlined (here, here, here, and here) some basic facts that cut against efforts to portray President Obama’s first appellate nominee, district judge David F. Hamilton, as a “moderate.”  Before Hamilton’s nomination is reported out of committee, I’d just like to flesh out a couple of points.  In this post, I’ll detail Hamilton’s reckless use of “substantive due process” to suppress evidence of violation of drug laws. 

In United States v. McCotry (2006), Hamilton invoked “substantive due process” to suppress evidence of marijuana and crack cocaine found in the apartment of a criminal defendant, Tamica Hollingsworth, charged with possessing marijuana and knowingly making her apartment available for the unlawful storage of controlled substances. 

Here are the relevant facts:  Hollingsworth’s nine-year-old daughter “T.H.” was called to the principal’s office of her public school after frequent tardiness and classroom reprimands for disruptive behavior.  The principal told T.H. that if the school couldn’t reach Hollingsworth, it would need to send a police officer (the school resource officer) to do a home visit.  T.H. replied that the officer couldn’t visit her home until her mother and “J” had a chance to “get their stuff out” and indicated (in the principal’s account) that there were “things in the house that her mother did not want anybody to see.”  The officer later arranged for the school social worker to question T.H. further.  Assessing conflicting evidence, Judge Hamilton determined that this further questioning was for the sole purpose of pursuing a criminal investigation of Hollingsworth.  In the course of that questioning, T.H. told the social worker that there was marijuana in her home and that her mother and “J” went on drug runs.  This information was used to obtain a search warrant, and marijuana and crack cocaine were found in Hollingsworth’s apartment.

As Hamilton put it:

the question presented here is whether the police may interrogate a young elementary school child at a public school (using a school personnel member as the interrogator) for the sole purpose of a criminal investigation of the child’s parent and not for any purpose relating to child protection, such as in cases of suspected abuse or neglect.

Relying heavily on a dissent by then-Judge Anthony Kennedy from an en banc Ninth Circuit ruling, Hamilton set forth “the combination of factors [that] persuades the court that the police stepped over the line protecting the family from government intrusion” and “shock[ed] the conscience”:

T.H.’s young age, the lack of prior indications of criminal activity by her mother, the ambiguous quality of the statement triggering the investigation, the use of T.H.’s presence in a public school (under compulsion of law) to investigate her mother, the use of a school social worker to carry out what amounted to custodial interrogation for purposes of criminal investigation, and (in the absence of any child protective purpose, such as investigation of child abuse or neglect) the officials’ efforts to conceal this interrogation.

The Seventh Circuit unanimously reversed (in United States v. Hollingsworth, 495 F.3d 795 (2007)).  Acknowledging the Supreme Court’s longstanding recognition of the “constitutional importance of a parent’s right to bring up his or her child as he sees fit,” the Seventh Circuit explained that a governmental intrusion into the protected sphere of familial relations violates substantive due process “only if ‘the Due Process Clause would not countenance it even were it accompanied by full procedural protection.’”  The panel determined that “the government’s interest in speaking with T.H. was compelling because it had at least some reason to believe that Hollingsworth was engaged in illegal activity” and that school officials’ intrusion on the family relationship was “minimal”:  “In fact, we question whether such a de minimis intrusion could ever ‘shock the conscience.’”

Just a few quick comments:

1.  The grab bag of factors that Hamilton relied on to find that the questioning “shocked the conscience” had nothing to do with the evidence that resulted from the search.  His ruling would require the same result if the search had uncovered, say, explosive material to be used in a terrorist bombing or 10,000 pounds of cocaine.  And his ruling would have the effect of preventing similar questioning from occurring in such cases.

2.  Those of us who care deeply about protecting the family from improper government intrusion shouldn’t imagine that willy-nilly rulings by judges imposing their own subjective impressions of what is acceptable and what is not is a proper or desirable way to achieve that goal.

3.  A judge who will invoke substantive due process in a case like this is a threat to invoke it whenever he doesn’t like the result that neutral application of the laws yields.  The fact that Hamilton not only got it wrong in the first place but continues not to recognize his error (see Hamilton’s Response to Sessions #2.d) is very troubling.

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