October 29, 2018 3:38PM

Judge Thapar Can Handle the Truth about the Fourth Amendment and Due Process

Before President Trump nominated now-Justice Brett Kavanaugh to fill Justice Anthony Kennedy’s Supreme Court seat, I wrote a piece about Judge Amul Thapar, a top contender for the seat who may yet find his way onto the Court. Thapar is on the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit and is a judge who has displayed a deep understanding of our founding principles. He's also a clear writer with a fondness for movie references. Two of his recent opinions illustrate his commitment to individual liberty and due process through a nuanced, contextualized view of the Constitution.

Morgan v. Fairfield County concerned a “knock and talk,” where county policy involved forming a police perimeter around a suspect’s house while one officer attempts to talk to the residents. One of the perimeter officers behind the house saw marijuana plants on a balcony, pursuant to which the police eventually secured a search warrant. The majority found that the county’s “knock and talk” policy directed the officers to conduct a warrantless search -- that forming the perimeter involved invading the "curtilage" of someone's house -- and so the county could be held liable for a Fourth Amendment violation (though the officers had qualified immunity because they were just following standard policy).

Judge Thapar dissented in relevant part, arguing that while the officers did have qualified immunity if all they were doing was preserving officer safety or preventing the destruction of evidence, the county's policy itself did not direct the officers to conduct a search. Accordingly, there was no constitutional violation unless the police actively searched while they formed their perimeter. Looking at the history of the Fourth Amendment, Thapar defined a search as a “purposeful investigative act.” He argues that the Supreme Court muddies Fourth Amendment protections by describing them as relating to a reasonable expectation of privacy, rather than to the reasonableness of a search. That gives too much wiggle room to police and courts alike, as judges struggle to define subjective expectations of privacy. Thapar maintains that the question should instead be whether officers engaged in a purposeful investigative act -- and indeed would have remanded the case for a determination of that issue. This would simplify the analysis and allow courts to apply the original meaning of the Fourth Amendment to the facts before them. 

If Morgan puts Judge Thapar’s intellectual chops on display, then Doe v. Michigan showcases the effectiveness of his vibrant writing style. Here, a fraternity boy (“John Doe”) and sorority girl (“Jane Roe”) at the University of Michigan drank and had sex at a party. Roe filed a report, claiming she was too drunk to consent. Doe said the sex was consensual and he didn’t know she was intoxicated. He introduced witnesses, all of whom were his male fraternity brothers, and she brought her own, all female, most of whom were her sorority sisters. The two sets of witnesses presented two conflicting stories. The school was at an impasse, ultimately deciding in favor of Roe. Doe filed a claim against the school, citing due process violations.

The Sixth Circuit has established that in a public university disciplinary hearing where credibility is at issue, the accused must have an opportunity to cross-examine witnesses. Judge Thapar thus writes for the court that, since the case turned on Roe and her witnesses’ credibility, Doe had a right to cross-examine. Cross-examination, he argued, allows us to determine the truth when the accuser’s story sounds as plausible as the accused’s version of events. The accused has the chance to reveal inconsistencies in a witness’s story, and the trier of fact can evaluate someone’s demeanor. In a footnote, Thapar cited A Few Good Men and My Cousin Vinny as examples of why, even in pop culture, cross-examination is so highly regarded; it can be incredibly effective to “both undermine and establish the credibility of witnesses.”

The clarity of Judge Thapar’s opinions demonstrate his effectiveness as an originalist. Not only does he rely on the liberty-protecting context surrounding constitutional text to determine its proper meaning, but he applies it to the facts with style. He merits his place on a future Supreme Court short list.

Cato legal associate Patrick Moran contributed to this blogpost.