A taste of SCOTUS nominee Neil Gorsuch's western wisdom

Wednesday , March 22, 2017 - 8:53 PM1 comment

NADIA PFLAUM, Standard-Examiner Staff

President Donald Trump’s Supreme Court nominee, Judge Neil Gorsuch, rules over Utah-specific matters from his position on the U.S. Court of Appeals for the 10th District. So while Gorsuch weathers days of grilling by the Senate Judiciary Committee before he can be confirmed, we attempted to cruise through some of his most colorful (and layperson-friendly) legal writing. 

Gorsuch has submitted more than 800 opinions to the Senate Judiciary Committee for review and taken part in roughly 2,750 decisions while on the 10th Circuit bench. Here is a sampling of Gorsuch’s writings the non-legal-scholars among us might appreciate.

Ute land disputes

Gorsuch’s 2016 opinion in Ute Indian Tribe of the Uintah and Ouray Reservation v. Myton is worth reading, all 16 pages, for it’s edifying summary of tribal vs. state and local land disputes dating back to the 1800s. Because the matter had been litigated an astonishing number of times before reaching Gorsuch’s desk, he likened the court’s task to the Greek myth of Sisyphus.

“Thirty years ago, this court decided all boundary disputes between the Ute Indian Tribe, the State of Utah, and its subdivisions,” Gorsuch wrote. “...Yet just last year the State of Utah and several of its counties sought to relitigate those same boundaries. And now one of its cities tries to do the same thing today. Over the last forty years the questions haven’t changed — and neither have our answers. We just keep rolling the rock.”

The 10th Circuit Court’s decision in the tribal case put to rest — for good? — any question that “tribal reserves, remaining allotments and restored lands were all Indian country” and therefore outside the jurisdiction of all but federal and tribal criminal authorities. 

Fake burping

Another noteworthy bit of Gorsuch-ese is found in A.M. v. Holmes. It involved an Albequerque, New Mexico, police officer who handcuffed and detained a 13-year-old student for disrupting class with fake burps. In the 2016 appeal, Gorsuch dissented from his colleagues who upheld the officer’s claim of qualified immunity (meaning, the officer could not be held liable for conduct committed in his professional capacity).

Gorsuch wrote in his dissent, “If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.”

‘Knock and talk’

In U.S. v. Carloss, Oklahoma authorities with the U.S. Bureau of Alcohol, Tobacco and Firearms received tips that a previously convicted felon, Ralph Gene Carloss, was unlawfully in possession of a firearm and was selling meth. Authorities went to a home where Carloss was staying, the property of which displayed several “No Trespassing” signs.

The officers knocked on the door of the dwelling and were eventually invited inside by Carloss, despite their lack of a search warrant. Carloss was later charged based on drugs observed by the authorities in his room. The Oklahoma court subsequently denied Carloss’ motion to have that evidence suppressed. The 10th Circuit panel affirmed the state court’s denial.

Gorsuch dissented, taking the opportunity to issue a warning on a growing prevalence of so-called “knock and talk” searches.

He wrote, “The ‘knock and talk’ has won a prominent place in today’s legal lexicon. The term is used to describe situations in which police officers approach a home, knock at the front door, and seek to engage the homeowner in conversation and win permission to search inside. Because everything happens with the homeowner’s consent, the theory goes, a warrant isn’t needed.

“After all, the Fourth Amendment prohibits ‘unreasonable’ searches, and consensual searches are rarely that. No doubt for just this reason law enforcement has found the knock and talk an increasingly attractive investigative tool and published cases approving knock and talks have grown legion. But in the constant competition between constable and quarry, officers sometimes use knock and talks in ways that test the boundaries of the consent on which they depend.”

Right to sue

The U.S. District Court for the State of Kansas ruled against a property owner who alleged he was intimidated and threatened out of his First Amendment right to contest the fairness of the county’s assessed amount of taxes on his property. In the 2007 case in the 10th circuit, Van Deelen v. Johnson, Gorsuch wrote the opinion in which the panel upheld the property owner’s right to sue.

Gorsuch wrote, “Put simply, and taking as true Mr. [Michael] Van Deelen’s version of the facts as we must, we hold (unremarkably, we think) that a reasonable government official should have clearly understood ... that physical and verbal intimidation intended to deter a citizen from pursuing a private tax complaint violates that citizen’s First Amendment right to petition for the redress of grievances.”

For more in-depth analysis of Gorsuch’s past decisions and opinions, visit Empirical SCOTUS  and SCOTUS Blog

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