Constitutional law: playing poker with a card sharp

sI am currently reviewing several cases coming from federal courts where constitutional rights (4th Amendment search and seizure of home in one case and denial of habeas corpus review in another) were denied because constitutional rights were not "clearly established" prior to that time.

Well, 4th Amendment is "clearly established" from the date of enactment of the 4th Amendment, and so is the right to habeas corpus relief, which is only to be suspended at times of war.

But, federal courts require more than that - that the particular circumstances under which such rights are violated (the 4th Amendment or other constitutional violations challenged through a civil rights action or habeas corpus petitions) must be also recognized as violation of those particulars constitutional rights in precisely the context in which the violation happened to the present challenger.

That kind of specificity, of course, is not required by either the Civil Rights Act.

Yet, since recent times, it was included into the so-called "Anti-terrorism and Effective Death Penalty Act" which encompasses ALL habeas petitions, even those not related to either terrorism or death penalty cases.

In 2015, the 9th Circuit made an extremely bad decision of denying relief in a civil rights action where child protective services, together with police, came to a home to investigate allegedly unsafe conditions in the home pursuant to a 2-month old anonymous report and demanded access to the house and warrantless search of the house.

The parents' confrontation with CPS reportedly occurred in 2004 (the lawsuit was filed in 2005, this is the way litigation is dragged on through courts sometimes).

The police eventually backed off and did not demand the search of the home, after the parents called their attorney and the attorney talked to the police.

The CPS raged on and, based on an anonymous report that CPS did not investigate for 2 months, and based on parents assertion of their 4th Amendment rights, CPS offered the parents a "choice" - to allow search of the home, or to surrender their children, and wrote up immediately the CPS custody paperwork without a court order (allowed in that state in emergency situations). 

The case was hardly an emergency, but CPS could nevertheless first take and traumatize the children, and leave parents argue unlawfulness of the taking for months or years in court.

The parents spared the children and allowed the search - and then sued.

The federal court claimed that they did that after consultation with an attorney, that constituted consent, and that the duress parents were put under by the CPS was not a violation of the 4th Amendment or due process rights that was "clearly established previously".

The same argument is entrenched in a statute, AEDPA, the Antiterrorism and Effective Death Penalty (once again, EFFECTIVE death penalty, figure that out) Act - no habeas corpus regarding a federal constitutional issue unless, before the violation occurred (and that could have been decades prior to the habeas petition being filed), the constitutional violation has been "clearly established" by the U.S. Supreme Court precedent.

First, such a restriction makes the U.S. Constitution look like a strobe light in a night club - it means this now, and that in second, and it meant that two seconds ago, and now this two months down the road.

Doesn't work that way.  The U.S. Constitution is what it is once and for always.  The interpretation by the U.S. Supreme Court does not change the Constitution.

If the U.S. Supreme Court took upon itself the duty of interpreting the U.S. Constitution (the duty that is nowhere to be found in the actual text of the U.S. Constitution), that is the only duty that it is - take the case and interpret it against the U.S. Constitution, not against the court's own prior interpretations of that U.S. Constitution.

And, while interpreting the U.S. Constitution, each time anew, the court needs to remember that at no time the U.S. Constitution was changed to include the U.S. Supreme Court's precedents into the Supremacy Clause, so the U.S. Supreme Court precedents are not, and have never been, the Supreme Law of the Land.

With that in mind, let's see what is happening in the habeas (death penalty and life-in-prison cases) and in civil rights cases.

According to the AEDPA and according to interpretation by the federal courts of the "qualified immunity" of various governmental officials from liability in civil rights lawsuits alleging constitutional violations, a victim of such a constitutional violation cannot have ANY relief unless the fact that what occurred to that victim was, indeed, a constitutional violation, was established, on the same or closely similar set of facts, in another lawsuit, in a prior U.S. Supreme Court case.

Here is what it means legally.

The review by the U.S. Supreme Court is by a petition for a writ of certiorari only.

That means that the U.S. Supreme Court has an absolute discretion to decide which cases to take and which not to take.

So, the "clearly established" part is committed to the chance that:

1. somebody else's right before you were similarly violated;
2. that somebody filed a lawsuit, appealed it to the federal court of appeals, and further took the case all the way to the U.S. Supreme Court, complying with an ocean of rules and either paying a lot of money or finding somebody to represent that person for free - or being an exceptionally tenaciously and resourceful pro se party;  as everybody understands, such a combination of probabilities reduces your chances considerably if not drastically;
3. after the above improbable events, then the U.S. Supreme Court should have agreed to take and review the case, and 
4. the U.S. Supreme Court then decided in that somebody's favor.  

So, federal courts are telling you that your right to obtain a remedy for your constitutional violations depends upon whether somebody else before you, through a series of highly improbable events committed to chance and to the whim of the U.S. Supreme Court to even hear those cases.

And, of course, since it is the government you are suing, and the government tells you that your right to sue the government depends on whether, before the lawsuit, the government (the U.S. Supreme Court) CHOSE to agree to review and decide a similar case for somebody else.

And, if it was not the whim of the U.S. Supreme Court to take and review and decide cases of somebody else before you - even if there was an ocean of such cases, but they were all rejected by the U.S. Supreme Court - tough, you are without a remedy.

Doesn't it feel like playing poker with a card sharp?