Tuesday, May 25, 2010

"We don't need no stinkin' badges!"

New York City makes it illegal to walk into certain federal buildings with bogus police badges. The police effort to crack down on these lawbreakers is called Operation Stinking Badges. The Court of Appeals rejects a constitutional challenge to the program.

The case is Dickerson v. Napolitano, decided on May 14. As this case involves First Amendment principles, Judge Sack (a free speech lawyer in his practice days) gives us a workout in this area (along with a footnote YouTube link to the movie clip from The Treasure of the Sierre Madre which contains the famous outcry, "We don't need no stinkin' badges").

Plaintiff were arrested for bringing fake badges into certain federal buildings, including 26 Federal Plaza. They did not intend to convey any message, and their criminal cases were dismissed, an outcome that gives the plaintiffs a ticket to the federal courthouse. That doesn't mean they win the case, and they don't.

For very technical reasons that only a First Amendment lawyer can love, the Court of Appeals (Sack, Jacobs and Hall) decides that plaintiffs are limited to an as-applied challenge to Operation Stinking Badges. For some reason, plaintiffs waived a facial challenge to the law, which is too bad since the Court of Appeals suggests they could have won that challenge since the law's prohibition against the possession of certain items "in any way resembling" a police uniform, insignia or shield could reach as far as kids playing cops and robbers or the souvenirs sold in the police department gift shop.

Plaintiffs can only win the "as-applied" challenge if the statute as applied to the things they were bringing into the buildings violated First Amendment principles. They lose the case. Judge Sack finds, "even if there is ambiguity as to the margins of what conduct is prohibited under the statute, we are of the view that an ordinary person would understand the statute to prohibit the possession of items that could be used by an adult to impersonate a police officer." In other words, the law gives fair notice that fake badges that look like police shields are prohibited.

The plaintiffs come close to winning the case in a different argument, i.e., that language in the statute prohibiting items that "in any way resemble" legitimate police badges gives the police too much discretion to enforce the statute without clear guidelines to prevent arbitrary arrests. This legal theory is grounded in settled Supreme Court authority. The Court of Appeals likes this argument, but it cannot pull the trigger because the rule against plaintiff's bogus badges falls within the statute's "core concerns," that is, to prevent impostors from trying to impersonate police officers in order to commit crimes. No case law is cited in support of the "core concerns" exception to the rule against standardless speech restrictions, and I am wondering if this is the first time the Court of Appeals is applying it.

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