Fourth Amendment rights violated

The Fourth Amendment to the U.S. Constitution was ratified as part of the Bill of Rights in 1791. Although in-creasing 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, supported 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. (Jan. 22, 1970):

“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 1970 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 done 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.

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 clearly to just this point not too long ago. In Maine v. Robert P. Inman (March 13, 1973), 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.

As to probable cause, one needs no law books 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.”

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 American Civil Liberties Union, 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 is a resident of Waterville and member of Maine Educators Against Fingerprinting.