Petition for Writ of Certiorari — Kelly v. Wilkinson

In Che

Supreme Court Of Che United States

OCTOBER TERM, 1987

JOHN J. KELLY, Chief State’s Attorney,

LESTER J. FORST, Commissioner of Public Safety,

Petitioners,

v.

BILL WILKINSON,

JAMES FARRANDS,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JOHN M. MASSAMENO

Senior Appellate Attorney

Office of the Chief

State’s Attorney

Counsel of Record

Division of Criminal Justice

340 Quinnipiac Street

Wallingford, Connecticut 06492

(203) 265-2373

Printed by

Brescia’s Printing Services, Inc.

66 Connecticut Boulevard

Fast Hartford, CT 06108

528-4254

et OE nw

QUESTION PRESENTED

WHETHER PAT-DOWN SEARCHES FOR WEAPONS

CONDUCTED ON ALL PERSONS ENTERING A PUB-

LIC FORUM ARE REASONABLE UNDER THE

FOURTH AMENDMENT WHERE THE SEARCHES

(1) ARE AUTHORIZED BY A NEUTRAL AND DE-

TACHED MAGISTRATE; (2) HAVE A PUBLIC SAFETY

AND NON-INVESTIGATORY PURPOSE; (3) AFFORD

THE SUBJECT AN OPPORTUNITY TO DECLINE TO

ENTER THE AREA; (4) ARE SUPPORTED BY EVI-

DENCE ESTABLISHING A SUBSTANTIAL LIKELI-

HOOD THAT PERSONS IN ATTENDANCE WILL BE

ARMED AND DANGEROUS; AND (5) PROTECT THE

EXERCISE OF FIRST AMENDMENT RIGHTS.

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISION INVOLVED

STATEMENT

REASONS FOR GRANTING THE WRIT

CONCLUSION

ll

i)

bo

16

TABLE OF AUTHORITIES

Cases: Page(s)

Almeida-Sanchez v. United States, 413 U.S. 266

RENE De re tocar e rr erin crar f., ey 14

Bell v. Wolfish, 441 U.S. 520 (1979)................. 13

Colorado v. Bertine, 479 U.S. ___, 107 S.Ct. 738

CRT oe ia be SRS ae nae a a ee Ghee es 12, 15

Feiner v. People of State of New York, 340 U.S. 315

FRIED Soa oe ee Pats wae os ee ne 15

Griffin v. Wisconsin, 483 U.S. ___, 107 S.Ct. 3164

RITE. sock 4 sae Pe en ae ee 15

Illinois v. Lafayette, 462 U.S. 640 (1983)............. 12

McMorris v. Alioto, 567 F.2d 897 (9th Cir. 1978)...... 10

Turner v. Safley, 482 U.S. ___, 107 S.Ct. 2254

SOOT. ok dv dace es eae eee 13

United States v. Albarado, 495 F.2d 799

eC Oe 2k ee ee 11, 13, 14

United States v. Lopez, 328 F.Supp. 1077 (E.D.N-Y.

ROTE) i here a 5 ke ee ee 11

United States v. Sharpe, 470 U.S. 675 (1985) ......... 12

Statutes:

Sts: tee. eee 2,7

SS tee See cr ee a ee 2

ae UA RR ee a ee ee oe oe

ill

TABLE OF AUTHORITIES (continued)

Miscellaneous: Page(s)

Bassiouni, Terrorism, Law Enforcement, and the

Mass Media: Perspectives, Problems, Proposals,

72 J. Crim. L. & Criminology (1981) 1]

4 W. LaFave, Search and Seizure, A Treatise on the

Fourth Amendment § 10.7 (2d ed. 1987) 15

Public Report of the Vice President's Task Force

on Combatting Terrorism (1986) 11

iv

No.

In Che

Supreme Court Of Che United States

OCTOBER TERM, 1987

JOHN J. KELLY, Chief State's Attorney,

LESTER J. FORST, Commissioner of Public Safety,

Petitioners,

Vv.

BILL WILKINSON,

JAMES FARRANDS,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

OPINIONS BELOW

= The opinion of the district court rendering judgment for

the respondents is reported at 539 F.Supp. 518 (D. Conn. 1986),

and appears in the appendix at la. The memorandum of the

district court on the petitioners’ post judgment motions for

stay and for relief from judgment is reported at 656 F.Supp.

710(D. Conn. 1986), and appears in the appendix at 30a. The

opinion of the court of appeals is reported at 832 F.2d 1330

(2d Cir. 1987), and appears in the appendix at 37a.

JURISDICTION

The opinion and judgment of the United States Court of

Appeals for the Second Circuit was rendered on November

9, 1987. App. at 37a. The jurisdiction of this Court is invoked

under 28 U.SC. §§ 1254(I), 2101 (ce).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the Constitution of the United

States provides:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreason-

able searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

STATEMENT -

1. Respondents, leaders of the Invisible Empire, Knights

of the Ku Klux Klan (hereinafter KKK), brought this civil

rights action in the United States District Court for the Dis-

trict of Connecticut under 42 U.S.C. § 1983 claiming that their

First, Fourth, and Fourteenth Amendment rights were vio-

lated when the petitioners, state officials, obtained and

implemented state court orders authorizing pat-down searches

for weapons of all persons attending rallies they had spon-

sored. The district court, Cabranes, J., agreed that the searches

violated the Fourth Amendment and enjoined the practice.

Because it believed that the searches, though never condemned

by any court and approved by the state courts, violated clearly

established constitutional law, the district court also awarded

nominal damages to the respondents. App. at 29a. On peti-

tioner’s appeal, the Court of Appeals for the Second Circuit

affirmed the district court's judgment that pat-down searches

were, under the circumstances, unconstitutional. It did,

however, modify the injunction so as to permit magnetometer

screening at all future KKK rallies. The court of appeals also

reversed the district court's award of nominal damages. App.

at 64a-65a. This petition followed.

2. In September of 1980, the KKK held its first rally in

Connecticut in about half a century in the small, rural com-

munity of Scotland.' Open to the “white public,” Tr. at 839-40,

the rally followed by about one year a clash between a KKK

faction and opposing groups in Greensboro, North Carolina

in which several people were killed. Prior to the rally, Connect-

icut State Police (hereinafter CSP) officials learned that news

of the rally prompted various individuals and groups, includ-

ing the International Committee Against Racism (hereinafter

INCAR), to plan counter-demonstrations at the rally site.

Some of these groups had a history of violent confrontations

with the KKK and the police, and information provided by

an undercover agent of the United States Treasury Depart-

ment indicated that INCAR members would be armed (though

not with firearms) and ready to attack Klansmen. In addi-

tion, the CSP learned that KKK members intended to arm

themselves, for self-defense, and that their leader, Imperial

Wizard Bill Wilkinson, planned to attend with armed

bodyguards. Local residents heard gunfire from the site of the

rally only days before it was to take place.

Believing that Klansmen would be armed, the Governor

intended to forbid the rally altogether. At the suggestion of

the Chief State’s Attorney, however, the Governor agreed that

state and local officials should seek a state court injunction,

' Unless otherwise noted, facts appearing in this statement of the case

derive from the opinion of the Second Circuit.

a

ee

EE

based on the intelligence they had gathered, that would ban

the possession of firearms or other dangerous weapons on

one’s person or in a motor vehicle within the boundaries of

the Town of Scotland absent specific authorization from Scot-

land authorities. Tr. at 1625-30, 1636. The injunction was

sought and obtained ex parte. It was enforced by establish-

ing several checkpoints on main roads leading into Scotland,

within the town, and just outside the rally site. Persons and

motorists seeking to pass through these checkpoints were

informed that they would be subject to a pat-down search if

they proceeded to the rally site.” The searches that were con-

ducted were not based on individualized probable cause or

reasonable suspicion, though persons subjected to search were

first informed that they could avoid being searched by choos-

ing not to enter the rally area. The searches yielded seven fire-

arms, fifty-four rounds of ammunition, forty-one knives, two

swords, two machetes, five baseball bats, three pieces of pipe,

eight lengths of chain, two cans of mace, three sling shots,

one set of weighted knuckles, a detonator, and a number of

clubs. A firearm also was discovered under the speaker’s

podium. Tr. at 788.

Although violence did not occur within the rally site itself,

members of Citizens Against Racism, during an attempt to

march to the rally, attacked people in the area outside the site

with their fists, rocks, sticks and flagpoles. At least eight per-

sons were injured as a result of the attack, during which

officers heard two gunshots ring out. Tr. at 856-57, 1074-75;

Ex. 19.

The next KKK rally involved in this case occurred in

March, 1981, six months later, in the City of Meriden. KKK

members planned to march to and from the city hall. State

and local officials did not seek a state court weapons injunc-

tion or authority to search on less than probable cause.

oe ;

Unlike later state court orders, the Scotland order contained no express

authorization to conduct searches

The demonstration was attended by fifty police

officers, twenty-one Klansmen, 1,500 to 2,000 spec-

tators and press, and a substantial number of anti-

Klan demonstrators. As Klan members arrived at the

City Hall steps, they were attacked with rocks and

bottles thrown by anti-Klan forces. A person with a

bullhorn advocated violence against the Klan and the

police. Fist fights broke out among various groups

in the crowd, and automobile windows were smashed.

As the police attempted to escort the Klan out of the

area, demonstrators pelted the Klan and the police

with rocks, bottles, boards, clubs, and bricks. Two peo-

ple used a building block to strike [respondent] Far-

rands’ daughter on the back. At some point during

the demonstration, Klansman Clyde Dick was re-

strained by the police when he attempted to draw a

revolver from his coat pocket. Twenty policemen, six

Klansmen, and one bystander received injuries. Many

of the officers were hit with rocks or bricks. One

female Klan member suffered head lacerations and

injuries to the skull, while another was rendered semi-

conscious by a blow to the head.

App. at 43a-44a.

The Klan returned to Meriden four months later. Again,

the State did not seek an order barring weapons or authoriz-

ing searches. Searches of Klansmen, with their consent,

produced two pistols, several ax handles, sticks, and pocket

knives, which were confiscated by police. Police also disarmed

a group of anti-Klan demonstrators whom they had observed

gathering or carrying rocks, sticks and clubs.

This demonstration ended before it began. INCAR mem-

bers began to attack KKK members, who were escorted by

police, with rocks, bottles, and tin cans; fist fights broke out

within the crowd. Police halted the rally and cleared the area.

Three officers and one Klansman had to be treated for injuries.

These events led state officials to explore new methods

for preventing violence at future rallies while preserving the

speech and associational rights of those attending. Prior to

the next rally, scheduled for October 10-11, 1981 in Windham,

and the twelve rallies that followed, state officials sought state

court injunctions barring the carrying of firearms or other

dangerous weapons on and around rally sites and permitting

pat-down searches of persons attending the rally. The ban on

weapons in these orders typically extended only to the demon-

stration sites and the immediate vicinity. The orders gener-

ally followed the language used in the Windham order, which

provided:

All persons entering the designated area will be

advised of the injunction and the option of leaving

the area with their weapons. Those who choose to

enter the designated area will be questioned concern-

ing their possession of weapons and, where appropri-

ate, a frisk for weapons will be performed. All lawfully

possessed weapons held pursuant to the injunction

will be tagged and returned to the lawful owners upon

their exit from the designated area.

App. at 45a (italics omitted).

No order was sought or rendered without service of civil

process and notice on local KKK officials and a full eviden-

tiary hearing at which evidence of the likelihood of violence

at the particular rally was presented. Ex. 144 at 6; Ex. 160

at 75. State court judges also were informed of the manner

in which law enforcement officials proposed to enforce the

injunctions, i.e., through pat-down frisks for weapons of all

persons choosing to pass through checkpoints established

around the rally sites.

No major disruptions occurred at KKK demonstrations

for which the state court injunctions were issued.? All persons

3 A court order was sought, but not rendered, for one rally in the small

town of Canterbury. No disruption of that rally occurred, though some

thirty shotguns, rifles, and handguns were observed in the hands of Klans-

men and others. Ex. 148 4 6.

seeking to-pass established checkpoints were advised of their

right to turn back and avoid the weapons pat-down. Neverthe-

less, the kinds of weapons confiscated by the police, even with

the benefit of court orders authorizing the weapons searches,

can be seen from the list of weapons seized at one rally in

Danbury:

three clubs, fifteen shells, twenty-seven knives, seven

axes, a pick, two pitchforks, eleven ax or hammer han-

dles, twenty-three arrows, two hatchets, five sheaths,

four tomahawks, six machetes, two shillelaghs, four

rubber hose pieces, three tear gas containers, two

pellet guns, a BB gun, two spears, a lead pipe, a chain

with lead weights, an Indian head club, a metal pike,

a blackjack, a crossbow, a whip, a flare-launcher, and

_a wooden stake.

App at 47a. In addition, a machine gun and approximately

thirty rifles were seized from the owner of the property used

for that rally.

3. Although the respondents never appeared with coun-

sel to contest these orders in state court, they commenced this

action in federal court under 42 U.S.C. § 1983 claiming that

the pat-down searches conducted pursuant tothe state court

orders violated their rights under the First, Fourth and Four-

teenth Amendments to the United States Constitution.

The district court, Cabranes, J., rejected the due process

claim and held the First Amendment issue in abeyance, but

agreed that the searches violated the respondents’ Fourth

Amendment rights.* The district court’s conclusion was based

in large part upon the testimony of an expert witness called

* The district court found unpersuasive the respondents’ due process claim

because it believed that the state judges never authorized pat-down searches

on less than reasonable suspicion. App. at 25a. The court of appeals would

not credit this conclusion, however, based on the transcripts and plead-

ings in the state proceedings and the uncontradicted testimony in district

court. App. at 46a, 63a; Tr. at 1184, 1186-89, 1547-48, 1588, 1595-96.

by the Klan leaders at trial, Robert W. Klotz. A retired deputy

chief of police in the District of Columbia, Klotz expressed

his opinion that the absence of violence at rallies where court

authorized searches were conducted was the result of improved

crowd control techniques, as well as other measures, and that

the weapons searches ‘were not necessary or even particu-

larly helpful in preventing violence.’ App. at 12a. The district

court, thus, rejected the contrary opinion of seven CSP offi-

cials, who also were trained to handle mass demonstrations

and violent crowds. See citations in petitioners’ brief before

the Second Circuit at 12.

In post-judgment motions, the petitioners sought a stay

of the district court’s order pending appeal or, in the alterna-

tive, a modification of the injunction so as to permit at least

the use of magnetometer scanning at an upcoming KKK rally.

The district court denied both motions, noting that the record

itself established the ineffectiveness of magnetometers in

detecting the types of weapons responsible for the injuries

inflicted at prior rallies. App. at 34a.

4. The Court of Appeals for the Second Circuit reversed

in part. That court agreed that pat-down searches under the

circumstances violated Fourth Amendment rights, but con-

cluded that magnetometer searches would not. In so doing,

it found the district court’s categorical opinion on the use-

fulness of the pat-down searches in preventing serious vio-

lence to be without basis in the record. App. at 54a-56a. The

court of appeals failed to address, however, the district court’s

conclusion and the opinion of CSP officials that magnetometer

scanning simply would not suffice to detect weapons of the

type used in violent assaults during the demonstrations.

This petition followed.

5

REASONS FOR GRANTING THE WRIT

This case raises an important question of first impression

with far-reaching significance. It concerns the legitimate

authority of government to protect citizens from the substan-

tial likelihood of harm that has arisen when they have sought

to exercise their First Amendment rights in advancing or con-

demning controversial political, religious and racial views. To

the extent that a real risk of violence at such gatherings would

deter the exercise of First Amendment rights, a proposition

few would doubt, the case concerns not only the authority

of goverrment, but its obligation in a democratic society to

protect the free exchange of ideas and ideologies, no matter

how repugnant, in an environment free from intimidation by

violence.

1. This case has great national significance

It is evident to all that we live in an increasingly danger-

ous society. But the danger involved in this case is different

in kind from that created by the predatory crime that afflicts

our streets, schools and homes. The violence in this case is

not motivated by greed or passion; nor is it the product of

irrational aggression. It has, rather, one object: the suppres-

sion of ideas so as to advance political ends. This type of vio-

lence is especially threatening, for it challenges both the

commitment and the ability of government in a free society

to protect the marketplace of ideas.” No constitutional right,

> The object of the state court orders sought in this case was expressed

by counsel at one of the pre-rally hearings:

We are in the anomalous position of safeguarding the First

Amendment speech and associational rights of those who would

deprive them of others. We make it clear for the record that|,]

while we hold their beliefs in contempt, we do not hold the rights

that they possess as citizens under the First Amendment in con-

tempt and will do everything in our power to implement those

(continued)

and particularly the rights of association and free speech

under the First Amendment, is self-executing. Without

enforcement by the executive branch, constitutional guaran-

tees would have little meaning.

The obligation of government to implement First Amend-

ment rights in the context of this case is not unlike other

governmental responsibilities. The duty to ensure public

access to courts, to protect channels of communication, to

preserve the means of safe travel, to safeguard the electoral

process, and to maintain the security of military and diplo-

matic installations rests daily upon the federal government

and the governments of the states.

The means of fulfilling these various obligations cannot

remain static, just as the security measures used to protect

the early presidents of this Nation have not remained

unchanged. As the likelihood and extent of harm and sophisti-

cation of the means for inflicting it increase, the effectiveness

of the governmental response to the threat created must like-

wise be enhanced.

Thus, we enter courthouses and other governmental build-

ings today expecting to pass through some sort of security

system designed to detect weapons that could be carried

within. Pocketbooks, bags, briefcases are examined, where

only several decades ago such precautions would be viewed

as at least excessive and over-cautious. But recent violence

in courtrooms and other government buildings has disproved

that notion. See McMorris v. Alioto, 567 F.2d 897, 899-900

(9th Cir. 1978).

° (continued)

rights. In fact, we view the security precautions that have been

undertaken for the expected rally on Saturday to be in a sense

an implementation of the First Amendment rights and not in

any way an attempt to undermine them.

Ex. 160 at 78.

10

Similar measures are employed with respect to air travel,

public appearances of high government officials or candidates

for high office, military installations, diplomatic facilities, and

legislative chambers. We have seen too much ideologically-

related violence in our time to ignore the threat it poses.

Naiveté would be too costly.®

This case questions the reasonableness of security meas-

ures employed at public gatherings where people advocate

political beliefs that generate emotionally explosive responses.

But the question presented could as easily relate to security

precautions taken at a presidential appearance, at a diplomatic

facility, or at a state capitol or courthouse. The security of

any governmental or public forum that is specifically threat-

ened with violence is implicated in this case, not just a KKK

rally site in Connecticut.

Nor is the significance of the security issue raised here

minimized by the Second Circuit’s approval of magnetome-

ters in this context. What that court failed to appreciate is

that, as the district court expressly found, virtually all of the

injuries at these gatherings were inflicted, not by firearms

detectable with a magnetometer, but by other instruments,

many of which could not be so detected. Magnetometers,

which detect only items containing metal, provide no secu-

rity against clubs, bottles, rubber hoses and rocks. See United

States v. Lopez, 328 F.Supp. 1077, 1085 (E.D.N-Y. 1971). Other,

more sophisticated weapons and certain explosives also will

elude magnetometer screening. Liquid bottle bombs, fiber-

glass knives, plastic grenades and other plastic explosives can

be made or obtained by violent political groups. See United

States v. Albarado, 495 F.2d 799, 804 (2d Cir. 1974). These

items evade magnetometer detection because they have no,

® Even with enhanced security precautions, statistics continue to reflect

the success ideologicaliy-motivated criminals have. See Public Report of

The Vice President's Task Force on Combatting Terrorism (1986); Bassiouni,

Terrorism, Law Enforcement, and the Mass Media: Perspectives, Problems,

Proposals, 72 J. Crim.L. & Criminology, 1, 4-5 (1981).

11

or only slight, metallic content; they can evade visual inspec-

tion by being concealed beneath loose-fitting clothing. In

short, the variety of dangerous weapons that can elude mag-

netometer screening is limited only by the ingenuity of the

terrorist or violent agitator.

It is, thus, clear that resolution of the Fourth Amendment

question raised by Connecticut officials in this case would aid

state and federal law enforcement agencies significantly in

their efforts to protect the institutions of government and the

exercise of individual liberties.

2. This Court should resolve the unsettled question of

federal law presented

This case raises an important but unsettled question of

federal law. Twelve state court judges considered the injunc-

tions and implementing searches to be warranted and lawful

under the circumstances. The federal courts, to different

extents, disagreed. The district court was of the view that the

state has less of an interest in preserving public safety at polit-

ical rallies than at federal courts or airports.’ App. at 20a.

7 As noted above, the district court also expressed its opinion that the

‘searches of persons and automobiles are not necessary or even particu-

larly helpful in preventing violence at Klan rallies in Connecticut.’ App.

at 12a. The court of appeals pointed out that the expert's opinicn, upon

which the district court relied, could not support any such categorical *‘find-

ing,’ and hence, rejected it. App. at 54a-56a.

More important than whether some expert would have lent support

to the district judge’s conclusion, however, is the principle that police con-

duct is not unconstitutional simply because its objective might have been

accomplished through less intrusive means. See Colorado v. Bertine, 479

U.S. ___, 107 S.Ct. 738, 742 (1987); United States v. Sharpe, 470 U.S. 675,

687 (1985); Illinois v. Lafayette, 462 U.S. 640, 647-48 (1983). The inquiry,

rather, is whether police acted unreasonably in adopting the means they

used. Colorado v. Bertine, 107 S.Ct. at 742. ‘Monday morning quarterback-

ing” is as popular in assessing police conduct as it is in other areas of profes-

sional activity. But the Fourth Amendment does not call for a battle of

(continued)

12

The court of appeals rejected that notion and recognized the

need for some, albeit limited, protection against the introduc-

tion of weapons at political rallies. State officials maintain,

however, that it is demonstrably reasonable to prevent the

carrying of any weapon into a public forum for the exchange

of ideas when there is good reason to believe that people intend

to participate with more than their voices.

Understandably cautious, the lower courts were at a loss

to find any authority that would provide specific support for

the searches conducted. But the first magnetometer search

at an airport or governmental building brought with it no legal

authority directly on point; such searches were not therefore

unconstitutional.® See, e.g., United States v. Albarado, 495

F.2d at 803-4. That the government in our society may

respond effectively to new and different threats of violence

reveals the genius in the standard governing police conduct

created by the Framers of the Fourth Amendment. That stan-

dard is a test of reasonableness that is as appropriate in the

20th century as it was in the 18th. Today’s technology, avail-

able both to detect and to perpetrate crime, and the current

tactics of political extremists cannot be ignored simply

because they were not contemplated in the 18th century.

. (continued)

the experts on the question of the need for security procedures. Especially

is that so when the competing expert has no connection with state govern-

ment and, thus, has no obligation to protect the safety of its citizens. Our

federal system has not required that the judgment of state officials, who

are answerable to the citizens of the state, be so lightly tossed aside.

In the absence of a showing of incompetence or subterfuge, the judg-

ment of state officials that a policy is necessary to preserve public safety

should be given deference. Cf. Turner v. Safley, 482 U.S. ___, 107 S.Ct. 2254,

2260-62 (1987) and Bell v. Wolfish, 441 U.S. 520, 547-48 (1979) (prison

safety).

® Indeed, the court of appeals acknowledged the uniqueness of the issue

when it prefaced its finding that the searches were unconstitutional with

the qualifying phrase, ‘‘taking into account the existing law.’ App. at 59a.

13

This Court has said that the test of reasonableness

“requires a balancing of the need for the particular search

against the invasion of personal rights that the search entails,”

and that consideration should be given to ‘‘the scope of the

particular intrusion, the manner in which it is conducted, the

justification for initiating it, and the place in which it is con-

ducted.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). The district

court and, to a lesser degree, the court of appeals misapplied

this test. The district court failed to see the compelling need

to exclude weapons from what state officials had good rea-

son to believe would be a violent confrontation of armed, ideo-

logically opposed groups. By focusing on alternative methods

of preventing violence, such as increased police manpower,

both courts did not appreciate that nearly all administrative,

protective searches can be avoided by the use of increased

police personnel. The fact that for one rally alone police costs,

even with the benefit of the pat-down searches, amounted to

$75,000.00 apparently did not influence the lower courts’

assessment of reasonableness. Tr. at 1705. While the court of

appeals recognized the need to exclude weapons frorn rally

sites, it did not go on to ascertain whether magnetometers

would satisfy it, and clearly they would not.

Neither court fully appreciated other features of the

searches. All of the rally site searches were judicially autho-

rized, not the product of unbridled police discretion.’ They

were conducted on everyone, and so avoided particular stigma

to anyone. Cf. United States v. Albarada, 495 F.2d at 806 (mag-

netometer scanning). The orders authorizing the pat-downs

were based on specific evidence, which pertained to the par-

ticular rally and established that members of ideologically

? Indeed, the Second Circuit acknowledged that the state court orders

‘‘satisfied many of the concerns to which the traditional warrant require-

ment of the fourth amendment is directed.’ App. at 63a. It went on to sug-

gest that Connecticut officials in the future seek ‘‘area search warrants,"

such as Justice Powell and at least five other justices of this Court identi-

fied with approval in Almeida-Sanchez v. United States, 413 U.S. 266, 270

n.3, (1973), id., 283-85 (Powell, J., concurring), id., 288 (White, J., dissent-

ing). The Second Circuit failed to explain, however, why the orders obtained

did not in fact already satisfy the Almeida-Sanchez standard.

14

opposed groups would attend with arms intending to use

them.'° The pat-down searches were conducted, not to inves-

tigate crime, but for the public safety purpose of preventing

physical injury or death to the participants and, so, to pro-

tect their First Amendment rights of association and free

expression. See Colorado v. Bertine, 107 S.Ct. at 742 (prob-

able cause standard is “‘peculiarly related to criminal inves-

tigations, not routine noncriminal procedures); Griffin v.

Wisconsin, 483 U.S. ___, 107 S.Ct. 3164, 3167-8 (1987)

(regulatory searches not subject to probable cause standard).

Finally, the searches were voluntary, and so lacked the type

of police control and intimidation that pat-downs in the crimi-

nal context involve. A citizen who can thumb his nose to a

police search is in a far different position from one who is forced

to spread eagle on the side of a road or building. See gener-

ally 4 W. LaFave, Search and Seizure, A Treatise on the Fourth

Amendment § 10.7 (2d ed. 1987).

The reasonableness of these searches, under the particu-

lar circumstances of this case, becomes evident. Even if it does

not, however, what does is the need for clarification of the law.

The lower courts could not agree on a resolution of the mat-

ter. Existing law is concededly unclear. But the obligation of

government to protect public safety and facilitate the exer-

cise of constitutional rights in a dangerous world arises daily.

Failure to give government officials guidance in this uncharted

area of Fourth Amendment law may exact a price, whether

in public safety or in individual liberties, that none of us should

be asked to pay.

The issue merits review.

'® 4s this Court has said in a related context, ‘“[t}his Court respects, as it

must, the interest of the community in maintaining peace and order on

its streets.’ Feiner v. People of State of New York, 340 U.S. 315, 320 (1951)

(state has power to prevent clear and present danger of riot or other immedi-

ate threat to public safety).

CONCLUSION

For the reasons set out above, the petition should be

granted.

Respectfully submitted.

February 1988

By:

The Petitioner John J. Kelly,

Chief State’s Attorney

JOHN M. MASSAMENO

Senior Appellate Attorney

Office of the Chief State’s Attorney

Counsel of Record

Division of Criminal Justice

340 Quinnipiac Street

Wallingford, Connecticut 06492

(203) 265-2573

SCOTT J. MURPHY

Assistant State’s Attorney

The Petitioner Lester J. Forst

: JOSEPH I. LIEBERMAN

Attorney General of Connecticut

RICHARD T. BIGGAR

Assistant Attorney General

CARL J. SCHUMAN

Assistant Attorney General

JAMES J. SZEREJKO, ESQUIRE

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