Thursday, April 26, 2007

How the Supreme Court killed downtown Los Angeles

U.S. District Judge Dean D. Pregerson ruled Wednesday that some of the tactics used by Los Angeles police to clean up Skid Row are unconstitutional. LAPD officers have been patrolling the streets, asking people if they are on parole or probation and sometimes searching them, without any evidence that they have committed a crime.

The judge ordered the police to change their tactics. He made his ruling in a lawsuit filed by the American Civil Liberties Union.

If you don't live in Los Angeles, you may not know that city officials have spent decades and fortunes trying to redevelop downtown Los Angeles, an area the L.A. Times gently describes as "once-blighted." Picture thousands of people camping on the streets with no bathroom facilities except the sidewalk, picture an open-air drug market that extends for blocks in all directions, picture thieves and thugs with guns and knives, and you can see that it hasn't been all that easy to persuade Barnes & Noble or Macaroni Grill to sign a downtown lease.

But then skyrocketing real estate values and hideous traffic congestion helped downtown developers turn old office and commercial buildings into trendy new loft condominiums, and a new political constituency brought pressure on the city to restore the sidewalks to their intended purpose. In the last six months, the Times reports, the LAPD made 6,000 arrests and cut the downtown crime rate by 35 percent. In September, city officials counted 1,800 people sleeping on the streets. Last week the number was 750.

The Central City East Association, which represents downtown businesses and merchants, praised the crackdown by police. "The LAPD is saving lives by the work they are doing here," executive director Estela Lopez told the Times. "There's fewer people exposed to the violence, ensnared in daily drug markets and the inhumanity of the streets that exposes them to the elements."

Of course, and there's no sarcasm intended here, none of that matters if the police are violating an individual's constitutional rights.

But are they?

The answer you get to that question today is very different than the one you would have had prior to June 27, 1949. That's when the U.S. Supreme Court ruled 6-3 that "the security of one's privacy against arbitrary intrusion by the police -- which is at the core of the Fourth Amendment -- is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause [of the Fourteenth Amendment]."

This was an earth-shaking change in the law. Until that moment, the Fourth Amendment's restrictions against unreasonable searches and seizures applied only to the federal government, not to the states.

The Supreme Court's decision in the 1949 case of Wolf v. Colorado meant that the states, which had always controlled their own police procedures under their own state constitutions, were now subject to second-guessing by the federal courts.

You might think that's a very good idea, but you should know that this fundamental change in the constitutional division of power was never approved by Congress, the state legislatures, the state courts, or any of the voters in any jurisdiction.

The U.S. Supreme Court made this change, all by itself, by a vote of six to three.

And today the elected leaders of the City of Los Angeles were told that the law enforcement procedures they approved are not acceptable to the federal courts.

Now city officials will have to ask: What procedures are acceptable to the federal courts?

They will get the same answer from the courts that they would get from a Magic 8-Ball: "Ask again later."

In other words, whatever they do, city officials can be hauled into federal court and forced to prove that their laws and procedures are reasonable and necessary and narrowly tailored to achieve a permissible purpose. That's the balancing test the Supreme Court uses to decide when a "fundamental right" can be infringed by a state or local government.

But this is all made up out of the air. The people of the United States never agreed to have the federal courts supervise the administration of state and local laws. When the Fourteenth Amendment was ratified in 1868, its equal protection clause required all states to apply the laws equally to all individuals regardless of race, and its due process clause meant that everyone was entitled to the procedures of law, as opposed to the exercise of arbitrary power. No one who debated or ratified the Fourteenth Amendment ever thought it meant the Bill of Rights suddenly and for the first time restricted the states in the same way it restricted the federal government.

That's why the Supreme Court had to wait until everyone who ratified the Fourteenth Amendment was dead before they could reinterpret it.

Now, thanks to the Supreme Court's reinterpretation, state and local officials often find their hands tied by federal court rulings when they try to pass or enforce laws that once were entirely within their own powers.

One year, or two years, or five years from now, when you hear that the redevelopment of downtown Los Angeles is dead, don't bother hiring a city planning consultant to find out what went wrong. Don't blame Mayor Antonio Villaraigosa. Don't blame Police Chief William J. Bratton. Don't blame the private developers.

The date of death is June 27, 1949. The cause of death is the United States Supreme Court, and good intentions.

Copyright 2007

Editor's note: For more information and complete source notes, please see the appendix to The 37th Amendment: A Novel, "How the First Amendment Came to Protect Topless Dancing: A History of the Incorporation of the Bill of Rights into the Fourteenth Amendment, Why It's a Problem, and How to Fix It," online at

You might also be interested in the earlier post, "The cat, the bag, and Justice Scalia."