Brett Stuff
Judging the Judges
Term Year: 2018

Gerald P. Mitchell, Petitioner v. Wisconsin

Summary Analysis

DATE: 2019-06-27
DOCKET: 18-6210
NAME: Gerald P. Mitchell, Petitioner v. Wisconsin

   AUTHOR: Alito
   JOINING: Roberts, Breyer, Kavanaugh
   GOOD: Yes

OPINION: Concurring
   AUTHOR: Thomas
   JOINING: None
   GOOD: Yes

OPINION: Dissenting
   AUTHOR: Sotomayor
   JOINING: Ginsburg, Kagan
   GOOD: No

OPINION: Dissenting
   AUTHOR: Gorsuch
   JOINING: None
   GOOD: No

An electric pole (or telephone pole) with all sorts of wires going this way and that against a sunset sky

Case Commentary

In which The Government asks whether it is acceptable to Draw First Blood.

I kid, of course... or maybe there is no, of course, at all. For, how would you know that I kid? So if you don't know that I kid, then that means this is likely your first visit to my little corner of the Internet. {I hope you find your way to wherever it was you were headed, soon enough. But in the meantime, welcome. Please make yourself at home. For, my website is... um, well, it's my website.} And one should realize that I take things none too seriously here at My Website. And I am more than happy to discuss such things as really should be left to my betters... people like Judges, Lawyers, those who have actually studied law, and even those who know what all those tiny little Latin Phrases mean.

Inter Alia, You Have Been warned. So, like, this is a Disclaimer per se.

And yeah, I don't actually know if I understand those words correctly enough to use them slightly off-kilter in a non-standard sort of way that still remains intellectually pleasing.

Anyway, got it?

I do what I want.

And if you are not interesting in a bit of the public discourse disguised as doggerel, I'm sure you know where the back button on your browser is located.

ED: You might want to tone down that attitude of yours a bit. It's no way to win friends and influence people.

ME: Ed? Ed, who? I don't know any Ed. Oh, you're the Ghost of Takosori Past. Better change your handle to Eddie or no one is going to know what this aside is about.

ED: They still don't. Just tone it down a bit. OK?

ME: Roger Dodger, Will Roger.

Putatively, This Case is about Search Warrants... or more specifically, the lack thereof and how that relates to Unreasonable Search and Seizure. I, on the other hand, view The Case as being directly related to Qualified Immunity.

Word for word, I do not know the definition of Qualified Immunity. But I'm pretty sure it means that if a Police Officer thought they were doing their job (working within the perceived scope of their work) and their fellow Police Officers would tend to agree (with that perception) then no matter what the Police Officer did (no matter how patently illegal it was) the Officer is protected from Criminal or Civil Prosecution.

On a practical level, this means good luck successfully suing a Police Officer. Oh, sure. It happens. But tie goes to the Police Officer. And it is an uphill battle from the onset.

Thus, if you are wondering, why the media is full of stories regarding Police Misconduct, it is because:

{As an interesting case in point (or at least, as an interesting aside), in the case of The City of Chicago v. Fraternal Order of Police, Chicago Lodge No. 7 (currently pending trial, as I write, or so is my understanding), the litigants are discussing how long Records Concerning Allegations of Police Misconduct must be retained. The City would like it to be for a lot (lot, lot-lot) longer than FOP #7 (which I take to be a Police Union Local), indicating (to me) The Police are not as keen on being Policed as they are on Policing others: i.e. if you look close enough and long enough at anyone, they are screwed... and The Police being in the business know that's the case.

Of course, that is a personal opinion. And one could just as well argue that pretty much everyone who has ever been arrested has a vested interest in claiming Police Brutality, regardless of the underlying truth.

Still, stats can be run and outliers identified. And if one is not interested in looking into something as simple and trivial as that, then maybe one is not interested in curbing Police Brutality or Misconduct.

But that is neither here nor there.}

I believe Police Officers (and every other Public Sector Employee) should be at the same risk of being abused by The Legal System as everyone else.

I want the risk of prosecution to curtail their activities. Pure and Simple.

But having curtailed their activities, I don't care in the slightest how much force they bring to bear against a gun toting mass murderer.

{I believe I have expressed a consistent contempt for Trivial Laws.

First, I do not believe Freedom can be Micromanaged.

Secondly, the instantiation of Morality Laws is the antithesis of what is meant by the phrase Life, Liberty, and The Pursuit of Happiness.

Do Not Kill is a Moral Proscription, but almost everyone (seriously, almost everyone) agrees with that one.

Don't Do Drugs is also a Moral Prescription, but agreement on this one is far from universal. In fact, I would posit that if at this moment Every Drug Law was Universally Enforced (miraculously, by Decree of Our Lord God and Saviour Jesus Christ, who art in Heaven), then a staggering portion (let's estimate it at 25%) of the populace would suddenly find themselves behind bars.

Any law that is that universally held in contempt should not be a law... and should not be enforceable.

"I was going with the flow of traffic," should be a valid defence.

{{Though, to temper that, I also believe that if one is involved in a car accident that results in any fatalities, one should lose their license forever, regardless of blame. And if someone runs away from the scene of such an accident to avoid such a penalty, I am OK with putting a bullet in their head.

Driving is a privilege, not a right.

By the same token, I'm OK with unrestricted gun ownership. But if a gun is used to take someone else's life (in an illegal manner, which I am willing to assume any such taking of life would be, so why one would wish to own a gun in the first place is beyond me), the owner's life is forfeit, as well.

So, please.

Do not fool yourself into thinking I am a moderate, my opinions are representative, or this page or web series has the slightest thing to do with Real World Legal Realities.}}

In short (and as it stands), Police Officers are not Guardians of Morality. But rather, they are Guardians of The Marketplace. And no one has ever had much respect for a mere Security Guard.

To bring it back to the issue at hand, any force is too much force when the crime at issue is jaywalking. While almost no level of force is excessive when we are talking about an active shooter situation.

Police Officers, you want my respect? Then protect ME and not your paycheck or some corrupt and patently abusive institution that has long forgotten what the phrase Life, Liberty, and The Pursuit of Happiness is supposed to mean.}

The Case at hand involves a Drunk Driver, a driver so drunk, they subsequently passed out... about an hour or so after being taken into custody.

Lest one be sued for Dereliction of Duty (Failure to Protect the Public Welfare, and/or however you want to phrase such an offence), it has become SOP (Standard Operating Procedure) across the nation for unconscious individuals to be taken to a hospital (and/or for an ambulance to be called on their behalf, which in many cases amounts to the same thing). And once admitted, it is, once again, SOP (by which I mean Standard Operating Procedure and not Sales Order Pending, Some Old Person, or any other phrase which starts with an S, is followed by an an O, and ends with a P) to draw blood... especially if the individual in question is suspected of suffering from Alcohol Poisoning, Chemical Overdose, or the like.

Thus, I have no problem with The Powers That Be drawing blood from an unconscious individual and using said blood to prosecute a Drunk Driving Claim.

BUT (and this is a very important BUT), drawing blood is akin to Assault, Battery, or some such nonsense. And I have no problem prosecuting anyone (and I mean, anyone) involved (so, Police Officers, Nurses, Hospital Administrators, and so on) should the blood draw fail to indicate a crime... and it came to pass that drawing blood in the situation at hand was not SOP: i.e. Sensible Or Practical.

Further, I would allow Evidence to validate ANY Search... however seemingly unreasonable, because in point of fact, the 20/20 facts in hindsight have proved the search was indeed reasonable... or at least, successful.

But do you want to take the chance?

How sure are you?

Because if you are wrong, you might be looking at Criminal Prosecution.

That's where Search Warrants come in. A Police Officer pleads their case (or states the evidence) and a Magistrate makes a Pre-emptive Ruling shielding the Police Officer from Prosecution or Accusations of Wrongful Conduct... or at least, this is as I would have it.

As it stands, the construction is more along the lines of a Magistrate condones a search, which in turn allows any evidence to be used in a Court of Law... with any Police Officer Conduct presumed to be Honourable... unless proved to the contrary by an overwhelming preponderance of the evidence, which can be a sort of difficult hurdle to surmount on account of Qualified Immunity, as previously discussed.

Unfortunately, I have no reason (none whatsoever) to believe Search Warrants are hard to come by.

If a Police Officer is willing to swear that a driver is acting drunk (slurred speech, difficulty standing, whatever), then I doubt there are very many judges who would deny the warrant.

Hence, warrants (in many contexts) seem to be window dressing.

'What do you mean why do I think he is drunk. I think he is drunk, because he is drunk.'

'And the symptoms of this drunkenness are?'

'Slurred speech, to start.'

'Perhaps, he has a speech impediment or gets nervous talking to a would be vampire.'


'Well, you want to draw blood, right?'


'So, you're either a vampire or a ghoul or you're going to have to do a lot better in your diagnosis. How old did you say this kid was?'

'Twenty, so it's under-age drinking, as well.'

'Eh, what that really means is that he is a member of the Millennial Generation. And if he's anything like my grandson, he's prone to act all loosey-goosey, have a complete inability to stand at attention, much less at ease, and basically he eats,' as in, he swallows, 'everything he says to the point of a complete lack of understanding. I mean, my grandson presents himself like a complete retard to me, but apparently he's pulling Straight A's and is Captain of the Basketball Team. So, it's a whole new ballgame out there.'

'You're not going to give me this warrant, are you?'

'Not a chance. Word gets around I issued a Search Warrant and I'll never get another date from one of those sexy coeds, as long as I live.'

In This Case (This Supreme Court Case), the perp gave consent (or was not with it enough to deny consent) and voluntarily blew into a Breath Analyser. I am happy to attach a 'voluntary' qualifier to the Breath Test without knowing any details, as I am led to believe the test itself requires a certain degree of cooperation in order to obtain accurate results: i.e. one must blow evenly into a nozzle and not hold one's breath, gasp sporadically, or otherwise muck about.

Subsequent to the Breath Test (and within an hour or so), the perp passed out. Whereupon, he was rushed to a hospital and blood was drawn.

Both the Breath Test and Blood Draw showed the perp was as guilty as sin and smashed (a technical term meaning inebriated) out of his mind.

Thus, the Breath Test was voluntary and (in my opinion) provided Reasonable Cause for a follow up Blood Test.

As I've outlined it (and as The Court analyses it), the reason for which Certiorari was originally granted has been handily sidestepped, which is why Gorsuch's Opinion is among the most relevant... not that I care.

And I think I have covered it. All that is left to do is post a few choice words from The Justices (various, out of order, and with minor edits) and I will be on my way.
We have held that forcing drunk-driving suspects to undergo a blood test does not violate their constitutional right against self-incrimination.

From 1982 to 2016, alcohol-related accidents took roughly 10,000 to 20,000 lives in this Nation every single year. See National Highway Traffic Safety Admin. (NHTSA), Traffic Safety Facts 2016, p. 40 (May 2018). In the best years, that would add up to more than one fatality per hour.

It is a biological certainty that alcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour.

The Court has consistently held that police officers may perform searches without a warrant when destruction of evidence is a risk.

Oh, one final thing to note, the driver tried (unsuccessfully, I might add) to suppress The Blood Draw (i.e. not allow it into evidence). But since denying a Blood Draw is (in the jurisdiction at issue, at least) reason enough for a suspension of one's license, I fail to see what the fuss is about... you know, in this particular case.

Ah, but then I am forgetting about any monetary damages, forced counselling, community service, and the like. So, never mind. A Suspended License is much better than a DWI Conviction.

Meaning, if one thinks they are drunk, they are likely much better off refusing any sobriety test.

Judging the Judges

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I cannot begin to tell you how invasive a blood draw sounds to me. I have no problem likening it unto Assault. However, in This Case, I believe the affront was justified.

As to the underlying issue (mentioned here for the first time and why Certiorari was originally granted), I do not believe it is possible to passively waive certain Rights or have those Rights waived on one's behalf by legislative decree, thank you very much.

© copyright 2020 Brett Paufler
A Personal Opinion/Editorial