MINUS ONE FOURTH MINUS ONE FOURTEENTH
EQUALS MINUS TWO . . . AMENDMENTS, THAT IS
The Fourth Amendment to the U.S. Constitution was ratified as part of
the Bill of Rights in 1791. Although increasing numbers of citizens seem
unaware of it, the Fourth Amendment endures. For those a little rusty on
what it guarantees, here is the exact language:
"The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable 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."
In 1970, nearly two centuries after its institution, the Fourth Amendment
was still burning brightly right here in our own Maine Supreme Court.
Listen to Justice Pomeroy writing for the Court in the case of Maine v.
Linda A. Hawkins et al., (1/22/70):
"The constitutional proscription of unreasonable searches and seizures
was in large part a reaction to the general warrant and warrantless
searches that had so alienated the Colonists and helped speed the
movement for independence. ...What is sought to be protected by the
courts by suppressing evidence [obtained by warrantless searches and
seizures] is not the lawbreaker, but the right of the people to be
secure in their persons, houses, papers and effects against unreasonable
searches and seizures.
'[The provisions of the Fourth Amendment] are not mere
second-class rights but belong to the catalog of indispensable freedoms.
Among deprivations of rights, none is so
effective in cowing a population, crushing the spirit of the
individual and putting terror in every heart. Uncontrolled
search and seizure is one of the first and most effective
weapons in the arsenal of every arbitrary government.'
Mr. Justice Jackson, dissenting in Brinegar v. United
States, 1879, 1893."
It's worth noting that this opinion of the Maine Supreme Court
coincides with the time period when the Maine Legislature--freshly
sensitive to civil rights in America--saw fit to repeal the child
fingerprinting program which had been in place since World War II. And
yet, in the few years since 1970, it appears that the Fourth Amendment is
rapidly being dismissed. Maine's law requiring the fingerprinting of and
national criminal background checks on tens of thousands of innocent
citizens, for no reason other than that they work in the schools, flies
directly in the face of our own courts' recent and historically consistent
understanding of the intent of the Fourth Amendment.
The two key points to examine are: (A) does fingerprinting of innocent
citizens constitute "seizure"? and (B) what and who are required to
establish "probable cause"?
Many school personnel who have had to submit to fingerprinting report
feeling physically sickened by the experience. Students who have been
present in schools and witnessed their teachers being subjected to
fingerprinting have sometimes pointed their own fingers and burst out
laughing derisively as if--here's where the truth slips out--the tables had
finally been turned; those in authority over them had finally been brought
low, they observed, and were as common criminals.
But wait: the Governor and the Commissioner of Education have assured
everyone that "This process is about enhancing the integrity and public
perception of the teaching profession." Why, then, the sick feeling, the
ridicule, and the feeling of shame many speak of experiencing? Could it be
that fingerprinting really is just for criminals after all?
So what is the historical perspective of Maine law on fingerprinting?
Consider 25 Maine Revised Statutes Annotated, 1542-A section 5 (Right to
Take Fingerprints), which lists four situations in which fingerprints may
be taken:
A. when the subject has been charged with a juvenile offense;
B. when the subject has been charged with a criminal offense found in
Title 12 or 29;
C. when the subject is in a facility serving a sentence;
D. when the subject voluntarily submits to fingerprinting for any law
enforcement purpose.
It would appear that fingerprinting is something that happens to you when
you've either committed or are suspected of having committed an offense.
Situation D is hardly one many school personnel would say pertains to them,
since so many have submitted only against their will. In short,
fingerprinting Maine citizens against their will or without their having
been charged or convicted of a crime appears to be outside the historical
bounds of Maine law. And that the National Child Protection Act (1998) now
permits employers and other "qualified entities" to request fingerprints
and background checks is just as much a reversal of constitutional fortune
as Maine's fingerprinting law.
But the violation of the Fourth is even sharper. For to force people
to submit to fingerprinting--as the school fingerprinting law surely
does--is tantamount to seizing their persons. Again the Maine Supreme
Court has spoken quite clearly to just this point not too long ago. In
Maine v. Robert P. Inman (3/13/73) , the Court was faced with the question
of whether a murder suspect's fingerprints had been lawfully obtained and
whether, therefore, his conviction--dependent upon those prints--should
stand. Again Justice Pomeroy:
"We hold that fingerprinting a person validly in custody is not to conduct
a search protected by the Fourth Amendment. If the seizure of the person
and detention is lawful, the taking of fingerprints or a palm print does not
infringe upon any interest protected by the Fourth Amendment."
The corollary to this opinion appears to be that legal fingerprinting
requires that the subject be in "valid custody," in "lawful detention,"
or--echoing the Fourth Amendment--the subject of official "seizure." If
you think about it, the only difference between what is being done to
school employees and hauling a criminal suspect down to the police station
for fingerprinting is that the scene has been moved to a school cafeteria.
And that the suspect is actually suspected of something. And will lose her
job if she resists.
So what if, as in the case of Maine's school personnel, their seizure
meets none of the four criteria of 25 M.R.S.A. 1542? In Maine v. Inman,
Justice Pomeroy continues, citing precedent:
"The gravamen [essence; worst part] of the unconstitutional conduct
of the police in Davis [v. Mississippi, 1969] was the legally unjustified
seizure and detention of Davis' person, there being no warrant issued
and no probable cause existing for such seizure. A fingerprinting taken
under those circumstances automatically became a fruit resulting from
the constitutionally proscribed seizure of the person. The conduct
prohibited by the Fourth Amendment was the unreasonable seizure
of the person."
As to probable cause, one needs no lawbooks to show that there is no
probable cause regarding school personnel. In fact, again the Governor and
the Commissioner of Education have repeatedly insisted that school
personnel are not suspects. But to be consistent, what legally constitutes
"probable cause"? Maine v. Linda Hawkins et al. outlines the requirements
for probable cause in order for a magistrate to issue a warrant, which
until recently would appear to have been necessary in order for the
fingerprinting of those unwilling thousands of school employees:
"To show probable cause affidavit must describe underlying circumstances
from which neutral and detached magistrate can determine that informant
is reliable and affidavit must describe underlying circumstances from which
magistrate may determine that the posited reliable informant's information
concerning evidence of criminal activity is itself reliable and not result of
mere rumor or suspicion."
Just reading the above criteria leaves one with the queasy feeling that
somehow we're talking here about hardened criminals, not just innocent
school employees. But the conclusion must be the same: that without a
magistrate, or an informant, or the underlying circumstances, or evidence
of criminal activity, one can hardly establish any probable cause
whatever. And without probable cause, the forced fingerprinting of school
employees amounts to unreasonable seizure.
Where does the Fourteenth Amendment come in? The Fourteenth states
that "No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States...." The best
legal writing needs little explanation; as testified to above by our own
Maine Supreme Court, Maine's school personnel fingerprinting law certainly
seems to abridge Fourth Amendment rights, and thus the Fourteenth Amendment
as well.
Now I am neither a historian nor a lawyer, rather "only a
schoolteacher" as so many of my colleagues are wont to say. I make no
claim to judicial scholarship, and am sure others with legal training can
point out where I have erred above. But sadly neither historians nor
lawyers in Maine have risen to defend against what many schoolteachers view
as a serious attack upon the most fundamental freedoms we are all supposed
to enjoy. As Nadine Strossen, President of the ACLU, has said so
eloquently, "The Bill of Rights, which is a wonderful idea on paper, is not
a self-executing document." I would add that it needs historians and
lawyers, or--in a pinch--schoolteachers, to defend it.
Bernie Huebner
Maine Educators Against Fingerprinting