Probable Cause.—The concept of “probable cause” is central to the meaning of the warrant clause. Neither the Fourth Amendment nor the federal statutory provisions relevant to the area define “probable cause”; the definition is entirely a judicial construct. An applicant for a warrant must present to the magistrate facts sufficient to enable the officer himself to make a determination of probable cause. “In determining what is probable cause . . . [w]e are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit . . . for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.”¹¹⁶ Probable cause is to be determined according to “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”¹¹⁷ Warrants are favored in the law and their use will not be thwarted by a hypertechnical reading of the supporting affidavit and supporting testimony.¹¹⁸ For the same reason, reviewing courts will accept evidence of a less “judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.”¹¹⁹ Courts will sustain the determination of probable cause so long as “there was substantial basis for [the magistrate] to conclude that” there was probable cause.¹²⁰

Much litigation has concerned the sufficiency of the complaint to establish probable cause. Mere conclusory assertions are not enough.¹²¹ In United States v. Ventresca,¹²² however, an affidavit by a law enforcement officer asserting his belief that an illegal distillery was being operated in a certain place, explaining that the belief was based upon his own observations and upon those of fellow investigators, and detailing a substantial amount of these personal observations clearly supporting the stated belief, was held to be sufficient to constitute probable cause. “Recital of some of the underlying circumstances in the affidavit is essential,” the Court said, observing that “where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause,” the reliance on the warrant process should not be deterred by insistence on too stringent a showing.¹²³

Requirements for establishing probable cause through reliance on information received from an informant has divided the Court in several cases. Although involving a warrantless arrest, Draper v. United States¹²⁴ may be said to have begun the line of cases. A previously reliable, named informant reported to an officer that the defendant would arrive with narcotics on a particular train, and described the clothes he would be wearing and the bag he would be carrying; the informant, however, gave no basis for his information. FBI agents met the train, observed that the defendant fully fit the description, and arrested him. The Court held that the corroboration of part of the informer’s tip established probable cause to support the arrest. A case involving a search warrant, Jones v. United States,¹²⁵ apparently considered the affidavit as a whole to see whether the tip plus the corroborating information provided a substantial basis for finding probable cause, but the affidavit also set forth the reliability of the informer and sufficient detail to indicate that the tip was based on the informant’s personal observation. Aguilar v. Texas¹²⁶ held insufficient an affidavit that merely asserted that the police had “reliable information from a credible person” that narcotics were in a certain place, and held that when the affiant relies on an informant’s tip he must present two types of evidence to the magistrate. First, the affidavit must indicate the informant’s basis of knowledge—the circumstances from which the informant concluded that evidence was present or that crimes had been committed—and, second, the affiant must present information that would permit the magistrate to decide whether or not the informant was trustworthy. Then, in Spinelli v. United States,¹²⁷ the Court applied Aguilar in a situation in which the affidavit contained both an informant’s tip and police information of a corroborating nature.

The Court rejected the “totality” test derived from Jones and held that the informant’s tip and the corroborating evidence must be separately considered. The tip was rejected because the affidavit contained neither any information which showed the basis of the tip nor any information which showed the informant’s credibility. The corroborating evidence was rejected as insufficient because it did not establish any element of criminality but merely related to details which were innocent in themselves. No additional corroborating weight was due as a result of the bald police assertion that defendant was a known gambler, although the tip related to gambling. Returning to the totality test, however, the Court in United States v. Harris¹²⁸ approved a warrant issued largely on an informer’s tip that over a two-year period he had purchased illegal whiskey from the defendant at the defendant’s residence, most recently within two weeks of the tip. The affidavit contained rather detailed information about the concealment of the whiskey, and asserted that the informer was a “prudent person,” that defendant had a reputation as a bootlegger, that other persons had supplied similar information about him, and that he had been found in control of illegal whiskey within the previous four years. The Court determined that the detailed nature of the tip, the personal observation thus revealed, and the fact that the informer had admitted to criminal behavior by his purchase of whiskey were sufficient to enable the magistrate to find him reliable, and that the supporting evidence, including defendant’s reputation, could supplement this determination.

subject and returned to the “totality of the circumstances” approach to evaluate probable cause based on an informant’s tip in Illinois v. Gates.¹²⁹ The main defect of the two-part test, Justice Rehnquist concluded for the Court, was in treating an informant’s reliability and his basis for knowledge as independent requirements. Instead, “a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.”¹³⁰ In evaluating probable cause, “[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”¹³¹

Probable Cause: Definition, Legal Requirements

What Is Probable Cause?

Probable cause is a requirement in criminal law that must be met before a police officer can make an arrest, conduct a search, seize property, or get a warrant.

Understanding Probable Cause

Probable cause requires that the police have more than just suspicion—but not to the extent of absolute certainty—that a suspect committed a crime. The police must have a reasonable basis in the context of the totality of the circumstances for believing that a crime was committed. The probable cause requirement stems from the Fourth Amendment of the U.S. Constitution, which provides for the right of citizens to be free from unreasonable government intrusion into their persons, homes, and businesses.

Probable cause is important in two aspects of criminal law:

1. Police must have probable cause before they search a person or property, and before they arrest a person.
2. The court must find that there is probable cause to believe the defendant committed the crime before they are prosecuted.

When a search warrant is in effect, police must generally search only for the items described in the warrant, although they can seize any contraband or evidence of other crimes that they find. However, if the search is deemed to be illegal, any evidence found becomes subject to the “exclusionary rule” and cannot be used against the defendant in court.

In United States criminal law, probable cause is the standard^[1] by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition or formulation for probable cause. One traditional definition, which comes from the U.S. Supreme Court’s 1964 decision Beck v. Ohio, is when “whether at [the moment of arrest] the facts and circumstances within [an officer’s] knowledge and of which they had reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that [a suspect] had committed or was committing an offense.”^[2]

It is also the standard by which grand juries issue criminal indictments. The principle behind the standard is to limit the power of authorities to perform random or abusive searches (unlawful search and seizure), and to promote lawful evidence gathering and procedural form during criminal arrest and prosecution. The standard also applies to personal or property searches.^[3]

The Supreme Court in Berger v. New York 1967 explained that the purpose of the probable cause requirement of the Fourth Amendment is to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed.^[4] The term probable cause itself comes from the Fourth Amendment of the United States Constitution:

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.

Probable in this case may relate to statistical probability or to a general standard of common behavior and customs. The context of the word probable here is not exclusive to community standards, and could partially derive from its use in formal mathematical statistics as some have suggested;^[5] but cf. probō, Latin etymology.

In U.S. immigration proceedings, the “reason to believe” standard has been interpreted as equivalent to probable cause.^[6]

Probable cause should not be confused with reasonable suspicion, which is the required criteria to perform a Terry stop in the United States of America. The criteria for reasonable suspicion are less strict than those for probable cause. source

The Constitution protects you from having your person or property searched without probable cause. But what is probable cause?

This guide explains how probable cause is defined and what probable cause requirements means for you. You’ll also see some examples of probable cause so you can better understand how this legal rule applies in the real world.

Amdt4.5.3 Probable Cause Requirement

Fourth Amendment:

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.

The concept of probable cause is central to the meaning of the Warrant Clause. Neither the Fourth Amendment nor the federal statutory provisions relevant to the area define probable cause; the definition is entirely a judicial construct. An applicant for a warrant must present to the magistrate facts sufficient to enable the officer himself to make a determination of probable cause. In determining what is probable cause . . . [w]e are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit . . . for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.¹ Probable cause is to be determined according to the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.² Warrants are favored in the law and their use will not be thwarted by a hypertechnical reading of the supporting affidavit and supporting testimony.³ For the same reason, reviewing courts will accept evidence of a less judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.⁴ Courts will sustain the determination of probable cause so long as there was substantial basis for [the magistrate] to conclude that there was probable cause.⁵

Footnotes

1.  Jump to essay-1Dumbra v. United States, 268 U.S. 435, 439, 441 (1925). [T]he term ‘probable cause’. . . means less than evidence which would justify condemnation. Lock v. United States, 11 U.S. (7 Cr.) 339, 348 (1813). See Steele v. United States, 267 U.S. 498, 504–05 (1925). It may rest upon evidence that is not legally competent in a criminal trial, Draper v. United States, 358 U.S. 307, 311 (1959), and it need not be sufficient to prove guilt in a criminal trial. Brinegar v. United States, 338 U.S. 160, 173 (1949). See United States v. Ventresca, 380 U.S. 102, 107–08 (1965). An anticipatory warrant does not violate the Fourth Amendment as long as there is probable cause to believe that the condition precedent to execution of the search warrant will occur and that, once it has occurred, there is a fair probability that contraband or evidence of a crime will be found in a specified place. United States v. Grubbs, 547 U.S. 90, 95 (2006), quoting Illinois v. Gates, 462 U.S. 213, 238 (1983). An anticipatory warrant is ‘a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of a crime will be located at a specified place.’ 547 U.S. at 94.
2.  Jump to essay-2Brinegar v. United States, 338 U.S. 160, 175 (1949).
3.  Jump to essay-3United States v. Ventresca, 380 U.S. 102, 108–09 (1965).
4.  Jump to essay-4Jones v. United States, 362 U.S. 257, 270–71 (1960). Similarly, the preference for proceeding by warrant leads to a stricter rule for appellate review of trial court decisions on warrantless stops and searches than is employed to review probable cause to issue a warrant. Ornelas v. United States, 517 U.S. 690 (1996) (determinations of reasonable suspicion to stop and probable cause to search without a warrant should be subjected to de novo appellate review).
5.  Jump to essay-5Aguilar v. Texas, 378 U.S. 108, 111 (1964). It must be emphasized that the issuing party must judge for himself the persuasiveness of the facts relied on by a [complainant] to show probable cause. Giordenello v. United States, 357 U.S. 480, 486 (1958). An insufficient affidavit cannot be rehabilitated by testimony after issuance concerning information possessed by the affiant but not disclosed to the magistrate. Whiteley v. Warden, 401 U.S. 560 (1971).
6. source

read ALL OF THE FOURTH AMENDMENT BELOW JUST CLICK THE LINK

Fourth Amendment  – Search and Seizure

California Penal Code § 170 – Misuse of the Warrant System – Crimes Against Public Justice

Probable Cause – Definition

What Is Reasonable Doubt?

Reasonable doubt is legal terminology referring to insufficient evidence that prevents a judge or jury from convicting a defendant of a crime. It is the traditional standard of proof that must be exceeded to secure a guilty verdict in a criminal case in a court of law.

In a criminal case, it is the job of the prosecution to convince the jury that the defendant is guilty of the crime with which he has been charged and, therefore, should be convicted.  The phrase “beyond a reasonable doubt” means that the evidence presented and the arguments put forward by the prosecution establish the defendant’s guilt so clearly that they must be accepted as fact by any rational person.

If the jury cannot say with certainty based on the evidence presented that the defendant is guilty, then there is reasonable doubt and they are obligated to return a non-guilty verdict.

The Reasonable Doubt Standard

Penal Code Title 7, Chapter 2, Section 1096 of the California Penal Code states that a defendant in a criminal trial must be proven guilty to a moral certainty and beyond a reasonable doubt. 

Section 1096 also states that a defendant is presumed innocent until the contrary is proven. If there is a reasonable doubt about the defendant’s guilt, they are entitled to an acquittal.

1096. A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: “It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” source

“Beyond a reasonable doubt” means that the prosecution must convince the jury that there is no other reasonable explanation that can come from the evidence presented at trial. In other words, the jury must be virtually certain of the defendant’s guilt in order to render a guilty verdict.

Pursuant to California Penal Code Section 836, peace officers are authorized to make an arrest based on probable cause. As such, the Police must believe that there is more evidence for than against the prospect that the person sought is guilty of a crime, yet reserving some possibility for doubt. source

Understanding Reasonable Doubt

Under U.S. law, a defendant is considered innocent until proven guilty. Reasonable doubt stems from insufficient evidence. If it cannot be proved without a doubt that the defendant is guilty, that person should not be convicted. Verdicts do not necessarily reflect the truth, they reflect the evidence presented. A defendant’s actual innocence or guilt may be an abstraction.

Beyond a reasonable doubt is the highest standard of proof used in any court of law and is widely accepted around the world. It is used exclusively in criminal cases because the consequences of a conviction are severe—a criminal conviction could deprive the defendant of liberty or even life.

Difference Between Belief And Certainty

It isn’t unusual for a juror to believe that the defendant is a criminal but not be convinced with certainty that they committed the particular crime they are charged with. That isn’t good enough to find the defendant guilty.

Reasonable doubt comes from certainty rather than belief. Belief and instinct are important in many instances in life but cannot be used to convict a defendant if not based on fact.2

Unreasonable Doubt

The reasonable doubt standard forces jurors to ignore doubts considered unreasonable when determining if a defendant is guilty. Unreasonable doubt, which often stems from the possibility that nonexistent or unpresented evidence might explain a defendant’s actions and lead to exoneration, is not enough to acquit the defendant.3

Exculpatory Evidence

Evidence favorable to the defendant in a criminal trial can also create reasonable doubt as to whether the accused committed the crime. The defendant’s team should not be viewed with more skepticism than the prosecutor’s team. Each shred of evidence should be given the same consideration. This is important as any reasonable doubt, however small, that the defendant did not do it is grounds for an acquittal.4

Other Standards of Proof

Other commonly used standards of proof in criminal cases are:

• Probable Cause: A requirement found in the Fourth Amendment that the police have more than just suspicion that a suspect committed a crime before making an arrest, conducting a search, or serving a warrant.5
• Reasonable Belief and reasonable suspicion: A reasonable presumption by a police officer that a crime was, is, or will be committed. This is more than a hunch and less than probable cause and is used to determine the legality of a police officer’s decision to take action.
• Credible Evidence: Evidence that is deemed worthy of being presented in a court and to the jury.

Meanwhile, evidentiary standards in civil cases include:

• Clear and convincing evidence: The judge or jurors have concluded that there is a high probability that the facts of the case as presented by one party represent the truth. The standard of clear and convincing evidence is used in some civil cases, and it may appear in some aspects of a criminal case, such as a decision on whether a defendant is fit to stand trial.6 The language appears in several U.S. state laws.
• Preponderance of the evidence: Both sides have presented their cases, and one side seems more likely to be true. Most civil cases require a “preponderance of the evidence,” as this is a lower standard of proof.

Presumption of Innocence

The criminal justice system seeks to unearth the truth, convict the guilty, and let the innocent walk free. In order for this to work, each juror must walk into the courtroom presuming the accused is innocent.7

This presumption requires that jurors have a skeptical mindset that must be overcome before they can reach a guilty verdict. The jurors must not just want to believe something or be swayed by prejudices. They must view each shred of evidence presented by the prosecution with skepticism.

The Bottom Line

Reasonable doubt is an important legal standard that strives to prevent innocent people from getting convicted for a crime they didn’t commit. If it cannot be proved without a reasonable doubt that the defendant is guilty, then they should not be convicted of the crime as charged. source

Reasonable suspicion

Overview

Reasonable suspicion is a standard used in criminal procedure. Reasonable suspicion is used in determining the legality of a police officer’s decision to perform a search.

When an officer stops someone to search the person, courts require that the officer has either a search warrant, probable cause to search, or a reasonable suspicion to search. In descending order of what gives an officer the broadest authority to perform a search, courts have found that the order is search warrant, probable cause, and then reasonable suspicion.

Reasonable Suspicion As Applied to a Stop & Frisk

Definition of Probable Cause – Probable cause means that a reasonable person would believe that a crime was in the process of being committed, had been committed, or was going to be committed.

Legal Repercussions of Probable Cause – Probable cause is enough for a search or arrest warrant. It is also enough for a police officer to make an arrest if he sees a crime being committed.

Definition of Reasonable Suspicion – Reasonable suspicion has been defined by the United States Supreme Court as “the sort of common-sense conclusion about human behavior upon which practical people . . . are entitled to rely.” Further, it has defined reasonable suspicion as requiring only something more than an “unarticulated hunch.” It requires facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion.

Reasonable suspicion means that any reasonable person would suspect that a crime was in the process of being committed, had been committed or was going to be committed very soon.

Legal Repercussions of Reasonable Suspicion – If an officer has reasonable suspicion in a situation, he may frisk or detain the suspect briefly. Reasonable suspicion does not allow for the searching of a person or a vehicle unless the person happens to be on school property. Reasonable suspicion is not enough for an arrest or a search warrant.

Stop and Frisk – In Terry v. Ohio, 392 U.S. 1 (1968), the court recognized that a limited stop and frisk of an individual could be conducted without a warrant based on less than probable cause. The stop must be based on a reasonable, individualized suspicion based on articulable facts, and the frisk is limited to a pat-down for weapons. An anonymous tip that a person is carrying a gun is not, by itself, sufficient to justify a stop and frisk. Florida v. J.L., 529 U.S. 266 (2000).

Florida v. Bostick 501 U.S. 429, 437 (1991) – A person’s refusal to cooperate is not sufficient for reasonable suspicion.

Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000). – A person’s flight in a high crime area after seeing police was sufficient for reasonable suspicion to stop and frisk.

The same requirement of founded suspicion for a “person” stop applies to stops of individual vehicles. United States v. Arvizu, 534 U.S. 266 (2002). The scope of the “frisk” for weapons during a vehicle stop may include areas of the vehicle in which a weapon may be placed or hidden. Michigan v. Long, 463 U.S. 1032 (1983). The police may order passengers and the driver out of or into the vehicle pending completion of the stop. Maryland v. Wilson, 519 U.S. 408 (1997). The passengers may not be detained longer than it takes the driver to receive his citation. Once the driver is ready to leave, the passengers must be permitted to go as well. During a stop for traffic violations, the officers need not independently have reasonable suspicion that criminal activity is afoot to justify frisking passengers, but they must have reason to believe the passengers are armed and dangerous. Arizona v. Johnson, 129 S Court. 781, 784 (2009).

The Difference Between the Two – The terms probable cause and reasonable suspicion are often confused and misused. While both have to do with a police officer’s overall impression of a situation, the two terms have different repercussions on a person’s rights, the proper protocol and the outcome of the situation.

Reasonable suspicion is a step before probable cause. At the point of reasonable suspicion, it appears that a crime may have been committed. The situation escalates to probable cause when it becomes obvious that a crime has most likely been committed.

Probable Cause to Search
In order to obtain a search warrant, the court must consider whether based on the totality of the information there is a fair probability that contraband, evidence or a person will be found in a particular place. Illinois v. Gates, 462 U.S. 213 (1983).

Probable Cause to Arrest
In order to arrest a suspect the officer must have a good faith belief that a crime has been committed and the individual he is arresting committed the crime. In Maryland v. Pringle, 540 U.S. 366 (2003). In Pringle, an officer was permitted to arrest three individuals in a vehicle where marijuana was discovered. The court reasoned that, even though the officers did not have evidence that any one of the three occupants was responsible for the drugs, probable cause existed as to all of them because co-occupants of a vehicle are often engaged in a common enterprise and all three denied knowing anything about the drugs.

Texas – Goldberg v. State, 95 SW.3d 345 (Tex. App. 2002).

An arrest is proper when it is based upon article 14.03 (a)(1) of the Texas Code of Criminal Procedure, which permits a peace officer to arrest a person without a warrant if the person is found in a suspicious place and under circumstances that reasonably show that such person has been guilty of some felony or breach of the peace.

Facts: Mr. Goldberg was accused of entering a wig store, punching one attendant in the throat, and cutting the other attendant’s wrist and stabbing her when she attempted to call for help. The assailant quickly left the store. A witness in the parking lot followed the assailant to his vehicle. The witness provided police with a license plate number for the vehicle. The police traced the vehicle and located the defendant, the son of the owner of the vehicle. The police handcuffed Mr. Goldberg, performed a pat down and informed him of his rights. Mr. Goldberg stated he was willing to talk to the officers. He was later uncuffed.

The officer felt the hood of the vehicle and it was still warm. Mr. Goldberg denied driving the vehicle or knowledge of the crime. The officers also noticed a blood stain on Mr. Goldberg’s shirt and a red mark on his chest. Goldberg consented to a search of the house, his apartment and the vehicle. The officers found fibers matching the wigs at the wig shop. Mr. Goldberg claimed that the vehicle had been stolen several times but the person always returned the vehicle to the residence. Mr. Goldberg was taken to the police station and consented to a police interrogation. He later was released to his mother. Mr. Goldberg challenged the arrest as unlawful.

The court found that even if the detention rose to the level of an arrest when the defendant was transported to the police station it was proper. Probable cause exists where the police have reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense. Guzman v. State, 955 SW.2d at 87; Amores v. State, 816 SW.2d 407, 413 (Tex. Crim. App.1991). Probable cause deals with probabilities; it requires more than mere suspicion but far less evidence than that needed to support a conviction or even that needed to support a finding by a preponderance of the evidence. Guzman, 955 SW.2d at 87. source

 Principles of Probable Cause and Reasonable Suspicion

Although there is certainly more to probable cause and reasonable suspicion than just principles, it’s a good place to start, so that is where we will begin this four-part series. In part two, which begins on page 9, we will explain how officers can prove that the information they are relying upon to establish probable cause or reasonable suspicion was sufficiently reliable that is has significance. Then, in the Fall 2014 edition we will cover probable cause to arrest, including the various circumstances that officers and judges frequently consider in determining whether it exists. The series will conclude in the Winter 2015 edition with an discussion of how officers can determine whether they have probable cause to search.

It is ordinarily a bad idea to begin an article by admitting that the subjects to be discussed cannot be usefully defined. But when the subjects are probable cause and reasonable suspicion1, and when the readership is composed of people who have had some experience with them, it would be pointless to deny it. Consider that the Seventh Circuit once tried to provide a good legal definition but concluded that, when all is said and done, it just means having “a good reason to act.”2 Even the Supreme Court— whose many powers include defining legal terms— decided to pass on probable cause because, said the Court, it is “not a finely-tuned standard”3 and is actually an “elusive” and “somewhat abstract” concept.4 As for reasonable suspicion, the uncertainty is even worse. For instance, in United States v. Jones the First Circuit would only say that it “requires more than a naked hunch.”5

But this imprecision is actually a good thing because probable cause and reasonable suspicion are ultimately judgments based on common sense, not technical analysis. Granted, they are important judgments because they have serious repercussions. But they are fundamentally just rational assessments of the convincing force of information, which is something the human brain does all the time without consulting a rule book. So instead of being governed by a “neat set of rules,”6 these concepts mainly require that officers understand certain principles— principles that usually enable them to make these determinations with a fair degree of consistency and accuracy.

First, however, it is necessary to explain the basic difference between probable cause and reasonable suspicion, as these terms will be used throughout this series. Both are essentially judgments as to the existence and importance of evidence. But they differ as to the level of proof that is required. In particular, probable cause requires evidence of higher quality and quantity than reasonable suspicion because it permits officers to take actions that are more intrusive, such as arresting people and searching things. In contrast, reasonable suspicion is the standard for lesser intrusions, such as detentions and pat searches. As the Supreme Court explained:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quality or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.7

What Probability is Required?

When people start to learn about probable cause or reasonable suspicion, they usually want a number: What probability percentage is required?8 Is it 80%? 60%? 50%? Lower than 50? No one really knows, which might seem strange because, even in a relatively trivial venture such as sports betting, people would not participate unless they had some idea of the odds.

Nevertheless, the Supreme Court has refused to assign a probability percentage to these concepts because it views them as nontechnical standards based on common sense, not mathematical precision.9 “The probable cause standard,” said the Court, “is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of circumstances.”10 Similarly, the Tenth Circuit observed, “Besides the difficulty of agreeing on a single number, such an enterprise would, among other things, risk diminishing the role of judgment based on situation-sense.”11 Still, based on inklings from the United States Supreme Court, it is possible to provide at least a ballpark probability percentage for probable cause.

Reasonable suspicion, on the other hand, remains an enigma.

Probable cause

Many people assume that probable cause requires at least a 51% probability because anything less would not be “probable.” While this is technically true, the Supreme Court has ruled that, in the context of probable cause, the word “probable” has a somewhat different meaning. Specifically, it has said that probable cause requires neither a preponderance of the evidence nor “any showing that such belief be correct or more likely true than false,”12 and that it requires only a “fair” probability, not a statistical probability.13 Thus, it is apparent that probable cause requires something less than a 50% chance.14 How much less? Although no court has tried to figure it out, we suspect it is not much lower than 50%.

Reasonable suspicion

As noted, the required probability percentage for reasonable suspicion is a mystery. Although the Supreme Court has said that it requires “considerably less [proof] than preponderance of the evidence”15 (which means “considerably less” than a 50.1% chance), this is unhelpful because a meager 1% chance is “considerably less” than 51.1% but no one seriously thinks that would be enough. Equally unhelpful is the Supreme Court’s observation that, while probable cause requires a “fair probability,” reasonable suspicion requires only a “moderate” probability.16 What is the difference between a “moderate” and “fair” probability? Again, nobody knows. What we do know is that the facts need not rise to the level that they “rule out the possibility of innocent conduct.”17 As the Court of Appeal explained, “The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity.”18 We also know that reasonable suspicion may exist if the circumstances were merely indicative of criminal activity. In fact, the California Supreme Court has said that if the circumstances are consistent with criminal activity, they “demand“ an investigation.”19

Basic Principles

Having given up on a mathematical solution to the problem, we must rely on certain basic principles. And the most basic principle is this: Neither probable cause nor reasonable suspicion can exist unless officers can cite “specific and articulable facts” that support their judgment.20 This demand for specificity is so important that the Supreme Court called it the “central teaching of this Court’s Fourth Amendment jurisprudence.” 21 The question, then, is this: How can officers determine whether their “specific and articulable” facts are sufficient to establish probable cause or reasonable suspicion? That is the question we will address in the remainder of this article.

Totality of the circumstances

Almost as central as the need for facts is the requirement that, in determining whether officers have probable cause and reasonable suspicion, the courts will consider the totality of circumstances. This is significant because it is exactly the opposite of how some courts did things many years ago. That is, they would utilize a “divide-and-conquer”22 approach which meant subjecting each fact to a meticulous evaluation, then frequently ruling that the officers lacked probable cause or reasonable suspicion because none of the individual facts were compelling. This practice officially ended in 1983 when, in the landmark decision in Illinois v. Gates, the Supreme Court announced that probable cause and reasonable suspicion must be based on an assessment of the convincing force of the officers’ information as a whole. “We must be mindful,” said the Fifth Circuit, “that probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers. We weigh not individual layers but the laminated total.23 Thus, in People v. McFadin the court responded to the defendant’s “divide-and-conquer” strategy by utilizing the following analogy:

Defendant would apply the axiom that a chain is no stronger than its weakest link. Here, however, there are strands which have been spun into a rope. Although each alone may have insufficient strength, and some strands may be slightly frayed, the test is whether when spun together they will serve to carry the load of upholding [the probable cause determination].24

Here is an example of how the “totality of the circumstances” test works and why it is so important. In Maryland v. Pringle 25 an officer made a traffic stop on a car occupied by three men and, in the course of the stop, saw some things that caused him to suspect that the men were drug dealers. One of those things was a wad of cash ($763) that the officer had seen in the glove box. He then conducted a search of the vehicle and found cocaine. But a Maryland appellate court ruled the search was unlawful because the presence of money is “innocuous.” The Supreme Court reversed, saying the Maryland court’s “consideration of the money in isolation, rather than as a factor in the totality of the circumstances, is mistaken.”

Common sense

Not only did the Court in Gates rule that probable cause must be based on a consideration of the totality of circumstances, it ruled that the significance of the circumstances must be evaluated by applying common sense, not hypertechnical analysis. In other words, the circumstances must be “viewed from the standpoint of an objectively reasonable police officer.”26 As the Court explained:

Perhaps the central teaching of our decisions bearing on the probable cause standard is that it is a practical, nontechnical conception. In dealing with probable cause, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.27

Legal, but suspicious, activities

It follows from the principles discussed so far that it is significant that officers saw the suspect do something that, while not illegal, was suspicious in light of other circumstances.28 As the Supreme Court explained, the distinction between criminal and noncriminal conduct “cannot rigidly control” because probable cause and reasonable suspicion “are fluid concepts that take their substantive content from the particular contexts in which they are being assessed.”29 For example, in Massachusetts v. Upton the state court ruled that probable cause could not have existed because the evidence “related to innocent, nonsuspicious conduct or related to an event that took place in public.” Acknowledging that no single piece of evidence was conclusive, the Supreme Court reversed, saying the “pieces fit neatly together.”30 Similarly, the Court of Appeal noted that seeing a man running down a street “is indistinguishable from the action of a citizen engaged in a program of physical fitness.” But it becomes “highly suspicious” when it is “viewed in context of immediately preceding gunshots.”31

Another example of how noncriminal activities can become highly suspicious is found in Illinois v. Gates.32 It started with an anonymous letter to a police department saying that a local resident, Lance Gates, was a drug trafficker; and it explained in some detail the procedure that Gates and his wife, Sue, would follow in obtaining drugs in Florida. DEA agents followed both of them (Gates flew, Sue drove) and both generally followed the procedure described by the letter writer. This information led to a search warrant and Gates’ arrest. On appeal, he argued that the warrant was not supported by probable cause because the agents did not see him or his wife do anything illegal. It didn’t matter, said the Supreme Court, because the “seemingly innocent activity became suspicious in light of the initial tip.”

Multiple incriminating circumstances

Here is a principle that, while critically important, is often overlooked or underappreciated: The chances of having probable cause or reasonable suspicion increase exponentially with each additional piece of independent incriminating evidence that comes to light. This is because of the unlikelihood that each “coincidence of information”33 could exist in the absence of a fair or moderate possibility of guilt.

For example, in a Kings County murder case probable cause to arrest the defendant was based on the following: When the crime occurred, a car similar to defendant’s “uniquely painted” vehicle had been seen in a rural area, two-tenths of a mile from where a 15-year old girl had been abducted. In addition, an officer saw “bootprints and tire prints” nearby and “he compared them visually with boots seen in, and the treads of the tires of, defendant’s car, which he knew was parked in front of defendant’s hotel and registered to defendant. He saw the condition of the victim’s body; he knew that defendant had a prior record of conviction for forcible rape. He also knew of the victim’s occasional employment as a babysitter at the farm where defendant worked.” In ruling that these pieces of independent incriminating evidence constituted probable cause, the California Supreme Court said:

The probability of the independent concurrence of these factors in the absence of the guilt of defendant was slim enough to render suspicion of defendant reasonable and probable.34

Similarly, in a case from Santa Clara County,35 a man named Anthony Spears, who worked at a Chili’s in Cupertino, arrived at the restaurant one morning and “discovered” that the manager had been shot and killed before the restaurant had opened for the day. In the course of their investigation, sheriff ’s deputies learned that Spears had left home shortly before the murder even though it was his day off, there were no signs of forced entry, and that Marlboro cigarette butts (the same brand that Spears smoked) had been found in an alcove near the manager’s office. Moreover, Spears had given conflicting statements about his whereabouts when the murder occurred; and, after “discovering” the manager’s body, he told other employees that the manager had been “shot” but the cause of death was not apparent from the condition of the body.

Based on this evidence, detectives obtained a warrant to search Spears’ apartment and the search netted, among other things, “large amounts of bloodstained cash.” On appeal, Spears argued that the detectives lacked probable cause for the warrant but the court disagreed, saying, “[W]e believe that all of the factors, considered in their totality, supplied a degree of suspicion sufficient to support the magistrate’s finding of probable cause.”

While this principle also applies to reasonable suspicion to detain, a lesser amount of independent incriminating evidence will be required. The following are examples from various cases:

• The suspect’s physical description and his clothing were similar to that of the perpetrator.36
• In addition to a description similarity, the suspect was in a car similar in appearance to that of the perpetrator.37
• The suspect resembled the perpetrator and he was in the company of a person who was positively identified as one of two men who had just committed the crime.38
• The suspect resembled the perpetrator plus he was detained shortly after the crime occurred at the location where the perpetrator was last seen or on a logical escape route.39
• In addition to resembling the perpetrator, the suspect did something that tended to demonstrate consciousness of guilt; e.g., he lied to officers or made inconsistent statements, he made a furtive gesture, he reacted unusually to the officer’s presence, he attempting to elude officers.40
• The suspect resembled the perpetrator and possessed fruits of the crime.41
• The number of suspects in the vehicle corresponded with the number of people who had just committed the crime, plus they were similar in age, sex, and nationality.42

Unique circumstances

The odds of having reasonable suspicion or probable cause also increase dramatically if the matching or similar characteristics were unusual or distinctive. As the Court of Appeal observed, “Uniqueness of the points of comparison must also be considered in testing whether the description would be inapplicable to a great many others.”43

For example, the courts have taken note of the following unique circumstances:

• The suspect and perpetrator both had bandages on their left hands;44
• The suspect and perpetrator were in vehicles of the same make and model with tinted windows and a dark-colored top with light-colored side.45 Conversely, the Second Circuit noted that “when the points of similarity are less unique or distinctive, more similarities are required before the probability of identity between the two becomes convincing.”46

Inferences based on circumstantial evidence As noted earlier, probable cause and reasonable suspicion must be based on “specific and articulable facts.” However, the courts will also consider an officer’s inferences as to the meaning or significance of the facts so long as the inference appeared to be reasonable. It is especially relevant that the inference was based on the officer’s training and experience.47 In the words of the Supreme Court, “The evidence must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”48 Or, as the Court explained in United States v. Arvizu:

The process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.49

For example, in People v. Soun 50 the defendant and three other men killed the owner of a video store in San Jose during a botched robbery. The men were all described as Asian, but witnesses provided conflicting descriptions of the getaway car. Some said it was a two-door Japanese car, but one said it was a Volvo “or that type of car.” Two of the witnesses provided a partial license plate number. One said he thought it began with 1RCS, possibly 1RCS525 or 1RCS583. The other said he thought it was 1RC(?)538.

A San Jose PD officer who was monitoring these developments at the station made two inferences:

(1) the actual license plate probably began with 1RCS, and (2) the last three numbers included a 5 and an 8. So he started running these combinations through DMV until he got a hit on 1RCS558, a 1981 Toyota registered in Oakland. Because the car was last seen heading toward Oakland, officers notified OPD and, the next day, OPD officers stopped the car and eventually arrested the occupants for the murder. This, in turn, resulted in the seizure of the murder weapon. On appeal, one of the occupants, Soun, argued that the weapon should have been suppressed because the detention was based on nothing more than “hunch and supposition.” On the contrary, said the court, what Soun labeled “hunch and supposition” was actually “intelligent and resourceful police work.”

Similarly, in People v. Carrington 51 the California Supreme Court ruled that police in Los Altos reasonably inferred that two commercial burglaries were committed by the same person based on the following: “the two businesses were located in close proximity to each other, both businesses were burglarized on or about the same date, and in both burglaries blank checks were stolen.”

Hunches and unsupported conclusions

It is well known that hunches play an important role in solving crimes. “A hunch,” said the Ninth Circuit, “may provide the basis for solid police work; it may trigger an investigation that uncovers facts that establish reasonable suspicion, probable cause, or even grounds for a conviction.”52 Still, hunches are absolutely irrelevant in determining the existence of probable cause or reasonable suspicion. In other words, a hunch “is not a substitute for the necessary specific, articulable facts required to justify a Fourth Amendment intrusion.”53

The same is true of unsupported conclusions.54 For example, in ruling that a search warrant affidavit failed to establish probable cause, the court in U.S. v. Underwood 55 noted that much of the affidavit was “made up of conclusory allegations” that were “entirely unsupported by facts.” Two of these allegation were that officers had made “other seizures” and had “intercepted conversations” that tended to prove the defendant was a drug trafficker. “[T]hese vague explanations,” said the court, “add little if any support because they do not include underlying facts.”

Information known to other officers

Information is ordinarily irrelevant unless it had been communicated to the officer who acted on it; i.e., the officer who made the detention, arrest, or search, or the officer who applied for the search or arrest warrant.56 To put it another way, a search or seizure made without sufficient justification cannot be rehabilitated in court by showing that it would have been justified if the officer had been aware of information possessed by a colleague. As the California Supreme Court explained, “The question of the reasonableness of the officers’ conduct is determined on the basis of the information possessed by the officer at the time a decision to act is made.”57

There is, however, an exception to this rule known as the “official channels rule” by which officers may detain, arrest, or sometimes search a suspect based solely on an official request to do so from another officer or agency. Under this rule, officers may also act based on information transmitted via a law enforcement database, such as NCIC and CLETS.58

Although the officers who act upon such transmissions are seldom aware of many, if any, of the facts known to the originating officer, this does not matter because, as the U.S. Supreme Court pointed out, “[E]ffective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.”59

For example, in U.S. v. Lyons 60 state troopers in Michigan stopped and searched the defendant’s car based on a tip from DEA agents that the driver might be transporting drugs. On appeal, Lyons argued that the search was unlawful because the troopers had no information as to why she was a suspected of carrying drugs. But the court responded “it is immaterial that the troopers were unaware of all the specific facts that supported the DEA’s reasonable suspicion analysis. The troopers possessed all the information they needed to act—a request by the DEA (subsequently found to be well-supported).”

Note that, although officers “are entitled to presume the accuracy of information furnished to them by other law enforcement personnel,”61 the officers who disseminated the information may later be required to prove in court that they had received such information and that they reasonably believed it was reliable.62

Information inadmissible in court

In determining whether probable cause or reasonable suspicion exist, officers may consider both hearsay and privileged communications.63 For example, although a victim’s identification of the perpetrator might constitute inadmissible hearsay or fall within the marital privilege, officers may rely on it unless they had reason to believe it was false. As the Court of Appeal observed, “The United States Supreme Court has consistently held that hearsay information will support issuance of a search warrant…. Indeed, the usual search warrant, based on a reliable police informer’s or citizen-informant’s information, is necessarily founded upon hearsay.”64 On the other hand, information may not be considered if it was inadmissible because it was obtained in violation of the suspect’s constitutional rights; e.g., an illegal search or seizure.65

Mistakes of fact and law

If probable cause was based on information that was subsequently determined to be inaccurate or false, the information may nevertheless be considered if the officers reasonably believed it was true. As the Court of Appeal put it, “If the officer’s belief is reasonable, it matters not that it turns out to be mistaken.”66 Or, in the words of the Supreme Court, “[W]hat is generally demanded of the many factual determinations that must regularly be made by agents of the government is not that they always be correct, but that they always be reasonable.”67

The courts are not, however, so forgiving with mistakes of law. This is because officers are expected to know the laws they enforce and the laws that govern criminal investigations. Consequently, information will not be considered if it resulted from such a mistake, even if the mistake was made in good faith.68 As the California Supreme Court explained, “Courts on strong policy grounds have generally refused to excuse a police officer’s mistake of law.”69 Or, as the Ninth Circuit put it, “If an officer simply does not know the law and makes a stop based upon objective facts that cannot constitute a violation, his suspicions cannot be reasonable.”70

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process  – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

What Is Traversing a Warrant (a Franks Motion)?

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

Penal Code 135 PC – Destroying or Concealing Evidence

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 32 PC – Accessory After the Fact

Penal Code 31 PC – Aiding and Abetting Laws

What is Abuse of Process? 

What is a Due Process Violation? 4th & 14th Amendment 

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

ARE PEOPLE LYING ON YOU?
CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Penal Code 148.5 PC –  Making a False Police Report in California

Penal Code 115 PC – Filing a False Document in California

 Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

 Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court? 

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case 

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?

Tort Claims Form
File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death (see below)

Federal –  Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

WRITS and WRIT Types in the United States

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Police BodyCam Footage Release

Electronic Audio Recording Request of OC Court Hearings

GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Download Here this Recommended Citation

Due Process Cause of the 14th amendment (which applies to the states)

Due Process Clause of the 5th amendment (which applies to the federal government)

AND OTHER HIGH COURT CITATIONS PROVING NO LICENSE IS NECESSARY FOR NORMAL USE OF AN AUTOMOBILE ON  common ways.

“The right of a citizen to travel upon the public highways and to transport his property thereon, by horsedrawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but a common right which he has under his right to life, liberty and the pursuit of happiness. Under this constitutional guaranty one may, therefore, under normal conditions, travel at his inclination along the public highways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another’s rights, he will be protected, not only in his person, but in his safe conduct.“ Thompson v. Smith, 154 SE 579, 11 American Jurisprudence, Constitutional Law, Section 329, Page 1135.

“The right of the citizen to travel upon the public highways and to transport his property thereon, in the ordinary course of life and business, is a common right which he has under the right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety.  It includes the right, in so doing, to use the ordinary and usual conveyances of the day, and under the existing modes of travel, includes the right to drive a horse drawn carriage or wagon thereon or to operate an automobile thereon, for the usual and ordinary purpose of life and business.” – Thompson vs. Smith, supra.; Teche Lines vs. Danforth, Miss., 12 S.20 784.

“… The right of the citizen to drive on a public street with freedom from police interference… Is a fundamental constitutional right” – White, 97 Cal.App.3d.141, 158 Cal.Rptr. 562, 566 – 67 (1979).

“Citizens have a right to drive upon the public streets of the District of Columbia or any other city absent a constitutionally sound reason for limiting their access.” Caneisha Mills v. D.C. 2009.

“The use of the automobile as a necessary adjunct to the earning of a livelihood in modern life requires us in the interest of realism to conclude that the right to use an automobile on the public highways partakes of the nature of a liberty within the meaning of the constitutional guarantees…” Berberian v. Lussier (1958) 139 a2d 869, 672, see also: Schecter v. Killingsworth, 380 p.20136, 140; 93 Ariz. 273 (1963).

“The right to operate a motor vehicle [an automobile] upon the public streets and highways 15 not a mere privilege. It is a right of liberty, the enjoyment of which is protected by the guarantees of the federal and state constitutions.” Adams v. City of Pocatello, 416 p.2d 46, 48; 91 Idaho 99 (1966).

“A traveler has an equal right to employ an automobile as a means of transportation and to occupy the public highways with other vehicles in common use.” Campbell v. Walker, 78 Atl. 601, 603, 2 Boyce (Del.) 41.

“The owner of an automobile has the same right as the owner of other vehicles to use the highway, a traveler on foot has the same right to the use of the public highways as an automobile or any other vehicle.” Simeone v. Lindsay, 65 Atl. 778, 779; Hannigan v. Wright, 63 Atl. 234, 236.

“The right of the citizen to drive on the public street with freedom from police interference, unless he is engaged in suspicious conduct associated in some manner with criminality is a Fundamental constitutional right which must be protected by the courts.“ People v. Horton 14 Cal. App. 3rd 667 (1971).

“The right to make use of an automobile as a vehicle of travel long the highways of the state, is no longer an open question. The owners thereof have the same rights in the roads and streets as the drivers of horses or those riding a bicycle or traveling in some other vehicle.” House v. Cramer, 112 N.W. 3; 134 Iowa 374; Farnsworth v. Tampa electric co. 57 so. 233, 237, 62 Fla. 166.

“The automobile may be used with safety to others users of the highway, and in its proper use upon the highways there is an equal right with the users of other vehicles properly upon the highways. The law recognizes such right of use upon general principles.” Brinkman v Pacholike, 84 N.E. 762, 764, 41 Ind. App. 662, 666.

“The law does not denounce motor carriages, as such, on public ways. They have an equal right with other vehicles in common use to occupy the streets and roads. It is improper to say that the driver of the horse has rights in the roads superior to the driver of the automobile. Both have the right to use the easement.” Indiana Springs Co. V. Brown, 165 Ind. 465, 468.

“A highway is a public way open and free to any one who has occasion to pass along it on foot or with any kind of vehicle.” Schlesinger v. City of Atlanta, 129 S.E. 861, 867, 161 Ga. 148,159; Holland v. Shackelford, 137 S.E. 2d 298, 304, 220 Ga. 104; Stavola v. Palmer, 73 a.2d 831, 838,136 Conn. 670.

“There can be no question of the right of automobile owners to occupy and use the public streets of cities, or highways in the rural districts.” Liebrecht v. Crandall, 126 N.W. 69, 110 Minn. 454, 456.

“The word ‘automobile’ connotes a pleasure vehicle designed for the transportation of persons on highways.” – American Mutual Liability Ins. Co. vs. Chaput, 60 A.2d 118, 120; 95 NH 200.

Saenz v. Roe, 526 U.S. 489, 498, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999). The constitutional right to travel “embraces at least three different components”:

[1] the right of a citizen of one State to enter and to leave another State,

[2] the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and

[3] for those travelers who elect to be permanent residents, the right to be treated like other citizens of that State.

A law only implicates this right when it actually deters such travel, when impeding travel is its primary objective, or when it uses any classification which serves to penalize the exercise of that right.

ArtIV.S2.C1.13 Right to Travel and Privileges and Immunities Clause

Article IV, Section 2, Clause 1:

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

In Saenz v. Roe, the Court characterized the constitutional right to travel as having at least three different components:

It protects:
[1]the right of a citizen of one State to enter and to leave another State,
[2] the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and,
[3] for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.⁴

Footnotes

1.  Jump to essay-1See, e.g., Ward v. Maryland, 79 U.S. 418, 430 (1870) ([The Privileges and Immunities] clause plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of the Union . . . .); Paul v. Virginia, 75 U.S. 168, 180 (1868) (stating that the Privileges and Immunities Clause includes the right of free ingress into other States, and egress from them), overruled on other grounds by United States v. S.-E. Underwriters Ass’n, 322 U.S. 533 (1944); see generally United States v. Guest, 383 U.S. 745, 762–67 (1966) (Harlan, J., concurring in part and dissenting in part) (surveying cases).
2.  Jump to essay-2See Guest, 383 U.S. at 759 (Although there have been recurring differences in emphasis within the Court as to the source of the constitutional right of interstate travel, there is no need here to canvass those differences further. All have agreed that the right exists.).
3.  Jump to essay-3Doe v. Bolton, 410 U.S. 179, 200 (1973), abrogated on other grounds by Dobbs v. Jackson Women’s Health Org., No. 19-1393 (U.S. June 24, 2022).
4.  Jump to essay-4526 U.S. 489, 500 (1999) (numbering added).
5.  Jump to essay-5Id. at 501 (citing Articles of Confederation of 1781 art. IV, § 1).
6.  Jump to essay-6Id. at 501–502.
7.  Jump to essay-7Id. at 502–03 (citing U.S. Const. amend. XIV, § 1). The Commerce Clause is another potential textual basis for the right to travel. See Guest, 383 U.S. at 758 (citing Edwards v. California, 314 U.S. 160, 173 (1941)).
8. source

Amdt14.S1.8.13.2 Interstate Travel as a Fundamental Right

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The doctrine of the right to travel actually encompasses three separate rights, of which two have been notable for the uncertainty of their textual support. The first is the right of a citizen to move freely between states, a right venerable for its longevity, but still lacking a clear doctrinal basis.¹ The second, expressly addressed by the first sentence of Article IV, provides a citizen of one state who is temporarily visiting another state the Privileges and Immunities of a citizen of the latter state.² The third is the right of a new arrival to a state, who establishes citizenship in that state, to enjoy the same rights and benefits as other state citizens. This right is most often invoked in challenges to durational residency requirements, which require that persons reside in a state for a specified period before taking advantage of the benefits of that state’s citizenship.

Footnotes

1.  Jump to essay-1Saenz v. Roe, 526 U.S. 489 (1999). For the purposes of this case, we need not identify the source of [the right to travel] in the text of the Constitution. The right of ‘free ingress and regress to and from’ neighboring states which was expressly mentioned in the text of the Articles of Confederation, may simply have been ‘conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.’ Id. at 501 (citations omitted).
2.  Jump to essay-2Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869) (without some provision . . . removing from citizens of each State the disabilities of alienage in other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists.).
3. source

What other rights and freedoms relate to the right to freedom of movement?

The right to freedom of movement may also be relevant to:

• the right to liberty and security under article 9 of the ICCPR
• the right to participate in public life under article 25 of the ICCPR
• the right to peaceful assembly under article 21 of the ICCPR
• the right to freedom of association under article 22 of the ICCPR
• the right to privacy under article 17 of the ICCPR
• the conditions for expulsion of aliens in article 13 of the ICCPR.

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 12

• Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
• Everyone shall be free to leave any country, including his own.
• The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
• No one shall be arbitrarily deprived of the right to enter his own country.

See also: ICCPR article 13; CRC article 10; CRPD article 18; CERD article 5; CEDAW article 15.

Motor Vehicle: 18 USC Part 1 Chapter 2 Section 31 Definitions:

“(6) Motor vehicle. – the term ‘motor vehicle’ means every description of carriage or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways…” .
“10) the term ‘used for commercial purposes’ means the carriage of persons or property for any fare, fee, rate, charge or other consideration, or directly or indirectly in connection with any business, or other undertaking intended for profit.
“A motor vehicle or automobile for hire is a motor vehicle, other than an automobile stage, used for the transportation of persons for which remuneration is received.” – International Motor Transit Co. Vs. Seattle, 251 p. 120.
“The term ‘motor vehicle’ is different and broader than the word ‘automobile.'” – City of Dayton vs. Debrosse, 23 NE.2d 647, 650; 62 Ohio App. 232.
“Thus self – driven vehicles are classified according to the use to which they are put rather than according to the means by which they are propelled” – Ex Parts Hoffert, 148 NW 20.
“The Supreme Court, in Arthur v. Morgan, 112 U.S. 495, 5 S.Ct. 241, 28 L.ed. 825, held that carriages were properly classified as household effects, and we see no reason that automobiles should not be similarly disposed of.” Hillhouse v United States, 152 f. 163, 164 (2nd Cir. 1907).
“… A citizen has the right to travel upon the public highways and to transport his property thereon…” State vs. Johnson, 243 p. 1073; Cummins vs. Homes, 155 p. 171; Packard vs. Banton, 44 S.Ct. 256; Hadfield vs. Lundin, 98 wash 516, Willis vs. Buck, 263 p. L 982; Barney vs. Board of railroad commissioners, 17 P.2d 82.
“The use of the highways for the purpose of travel and transportation is not a mere privilege, but a common and fundamental right of which the public and the individual cannot be rightfully deprived.” Chicago motor coach vs. Chicago, 169 NE 22; Ligare vs. Chicago, 28 ne 934; Boon vs. Clark, 214 SSW 607; 25 Am.Jur. (1st) Highways Sect.163.
“The right of the citizen to travel upon the highway and to transport his property thereon in the ordinary course of life and business… 15 the usual and ordinary right of the citizen, a right common to all.” – Ex Parte Dickey, (Dickey vs. Davis), 85 SE 781.
“Every citizen has an unalienable right to make use of the public highways of the state; every citizen has full freedom to travel from place to place in the enjoyment of life and liberty.” People v. Nothaus, 147 Colo. 210.
“No state government entity has the power to allow or deny passage on the highways, byways, nor waterways… Transporting his vehicles and personal property for either recreation or business, but by being subject only to local regulation i.e., safety, caution, traffic lights, speed limits, etc. Travel is not a privilege requiring licensing, vehicle registration, or forced insurances.” Chicago Coach Co. V. City of Chicago, 337 Ill. 200, 169 N.E. 22.
“Traffic infractions are not a crime.” People v. Battle.
“Persons faced with an unconstitutional licensing law which purports to require a license as a prerequisite to exercise of right… May ignore the law and engage with impunity in exercise of such right.” Shuttlesworth v. Birmingham 394 U.S. 147 (1969).
“The word ‘operator’ shall not include any person who solely transports his own property and who transports no persons or property for hire or compensation:” Statutes at Large California Chapter 412 p.83.
“Highways are for the use of the traveling public, and all have the right to use them in a reasonable and proper manner; the use thereof is an inalienable right of every citizen.” Escobedo v. State 35 C2d 870 IN 8 Cal Jur 3d p.27.
“Right – – a legal right, a Constitutional Right means a Right protected by the law, by the constitution, but government does not create the idea of right or original rights; it acknowledges them… ” Bouvier’s Law Dictionary, 1914, p. 2961.
“Those who have the right to do something cannot be licensed for what they already have right to 00 as such license would be meaningless.” City of Chicago v Collins 51 NE 907, 910.
“A license means leave to do a thing which the licensor could prevent.” Blatz Brewing Co. V. Collins, 160 P.2d 37, 39; 69 Cal. A. 2. 639.
“The object of a license is to confer a right or power, which does not exist without it.” Payne v. Massey (19) 196 SW 2nd 493, 145 Tex 273.
“The court makes it clear that a license relates to qualifications to engage in profession, business, trade or calling; thus, when merely traveling without compensation or profit, outside of business enterprise or adventure with the corporate state, no license is required of the natural individual traveling for personal business, pleasure and transportation.” Wingfield v. Fielder 20 ca. 3d 213 (1972).
“If [state] officials construe a vague statute unconstitutionally, the citizen may take them at their word, and act on the assumption that the statute is void.” – Shuttlesworth v. Birmingham 394 U.S. 147 (1969).
“With regard particularly to the U.S. Constitution, it is elementary that aright secured or protected by that document cannot be overthrown or impaired by any state police authority.” Donnolly vs. Union Sewer Pipe Co., 184 us 540; Lafarier vs. Grand Trunk R.R. Co., 24 a. 848; O’Neil vs. Providence Amusement Co., 108 A. 887.
“The right to travel (called the right of free ingress to other states, and egress from them) is so fundamental that it appears in the articles of confederation, which governed our society before the constitution.” (Paul v. Virginia).
“[T]he right to travel freely from state to state … Is a right broadly assertable against private interference as well as governmental action. Like the right of association, it is a virtually unconditional personal right, guaranteed by the constitution to us all.” (U.S. Supreme Court, Shapiro v. Thompson).
Edgerton, Chief Judge: “Iron curtains have no place in a free world… ‘Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any state is a right secured by the constitution.” Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 45 L.ed. 186.
“Our nation has thrived on the principle that, outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.” Id., at 197. Kent vs. Dulles see Vestal, Freedom of Movement, 41 Iowa L. Rev. 6, 13 – 14.
“The validity of restrictions on the freedom of movement of particular individuals, both substantively and procedurally, is precisely the sort of matter that is the peculiar domain of the courts.” comment, 61 Yale L.J. at page 187.
“A person detained for an investigatory stop can be questioned but is “not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest.” Justice White, Hiibel.
“Automobiles have the right to use the highways of the state on an equal footing with other vehicles.” Cumberland Telephone & Telegraph Co. v. Yeiser 141 Kentucky 15.
“Each citizen has the absolute right to choose for himself the mode of conveyance he desires, whether it be by wagon or carriage, by horse, motor or electric car, or by bicycle, or astride of a horse, subject to the sole condition that he will observe all those requirements that are known as the law of the road.” Swift v City of Topeka, 43 Kansas 671, 674.
The Supreme Court said in U.S. v Mersky (1960) 361 U.S. 431: an administrative regulation, of course, is not a “statute”.
“A traveler on foot has the same right to use of the public highway as an automobile or any other vehicle.” Cecchi v. Lindsay, 75 Atl. 376, 377, 1 Novae (Del.) 185.
“Automotive vehicles are lawful means of conveyance and have equal rights upon the streets with horses and carriages.” Chicago Coach Co. v. City of Chicago, 337 Ill. 200, 205; see also: Christy v. Elliot, 216 Ill. 31; Ward v. Meredith, 202 Ill. 66; Shinkle v. McCullough, 116 Ky. 960; Butler v. Cabe, 116 Ark. 26, 28 – 29.
“Automobiles are lawful vehicles and have equal rights on the highways with horses and carriages.” Daily v. Maxwell, 133 S.W. 351, 354. Matson v. Dawson, 178 N.W. 2d 589, 591.
“A farmer has the same right to the use of the highways of the state, whether on foot or in a motor vehicle, as any other citizen. Draffin v. Massey, 92 S.E.2d 38, 42.
“Persons may lawfully ride in automobiles, as they may lawfully ride on bicycles.” Doherty v. Ayer, 83 N.E. 677,197 Mass. 241, 246; Molway v. City of Chicago, 88 N.E. 485, 486, 239 Ill. 486; Smiley v. East St Louis Rv. Co., 100 N.E. 157, 158.
“A soldier’s personal automobile is part of his ‘household goods[.]” U.S. V Bomar, C.A.S.(Tex.), 8 F.3d 226, 235″ 19A Words and Phrases – Permanent Edition (West) Pocket Part 94. “[it is a jury question whether … an automobile … is a motor vehicle[.]” United States v Johnson, 718 F.20 1317, 1324 (5th Cir. 1983).
Other right to use an automobile cases:

• Edwards vs. California, 314 U.S. 160
• Twinng vs New Jersey, 211 U.S. 78
• Williams vs. Fears, 179 U.S. 270, at 274
• Crandall vs. Nevada, 6 Wall. 35, at 43 – 44
• The Passenger Cases, 7 Howard 207, at 492
• U.S. vs. Guest, 383 U.S. 745, At 757 – 758 (1966)
• Griffin vs. Breckenridge, 403 U.S. 88, at105 – 106 (1971)
• Califano vs. Tors, 435 U.S. 1, At 4, Note 6   – Shapiro vs. Thompson, 324 U.S. 618 (1969)
• Alifano vs. Aznavavorian, 439 U.S. 170 At 176 (1978)

source

READ UP MORE….. on Malicious Prosecution and Thompson Vs. Clark and other SCOTUS Rulings here

Footnotes

1. Saenz v. Roe, 526 U.S. 489 (1999). For the purposes of this case, we need not identify the source of [the right to travel] in the text of the Constitution. The right of “free ingress and regress” to and from neighboring states which was expressly mentioned in the text of the Article of Confederation, may simply have been ‘conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.’ Id. at 501 (citations omitted).
2. Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869) (without some provision . . . removing from citizens of each State the disabilities of alienage in other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists.).
3. Saenz v. Roe, 526 U.S. 489, 502–03 (1999).
4. Dunn v. Blumstein, 405 U.S. 330, 334 (1972). Because the right to travel is implicated by state distinctions between residents and nonresidents, the relevant constitutional provision is the Privileges and Immunities Clause, Article IV, § 2, cl. 1.
5. Intrastate travel is protected to the extent that the classification fails to meet equal protection standards in some respect. Compare Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970) (three-judge court), aff’d. per curiam, 405 U.S. 1035 (1972), with Arlington County Bd. v. Richards, 434 U.S. 5 (1977). The same principle applies in the commerce clause cases, in which discrimination may run against in-state as well as out-of-state concerns. Cf. Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951).
6. Shapiro v. Thompson, 394 U.S. 618, 629–31, 638 (1969); Dunn v. Blumstein, 405 U.S. 330, 338–42 (1972); Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974); Jones v. Helms, 452 U.S. 412, 420–21 (1981). See also Oregon v. Mitchell, 400 U.S. 112, 236–39 (1970) (Justices Brennan, White, and Marshall), and id. at 285–92 (Justices Stewart and Blackmun and Chief Justice Burger).
7. Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (emphasis by Court); Graham v. Richardson, 403 U.S. 365, 375–76 (1971).
8. Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868); Edwards v. California, 314 U.S. 160 (1941) (both cases in context of direct restrictions on travel). The source of the right to travel and the reasons for reliance on the Equal Protection Clause are questions puzzled over and unresolved by the Court. United States v. Guest, 383 U.S. 745, 758, 759 (1966), and id. at 763–64 (Justice Harlan concurring and dissenting), id. at 777 n.3 (Justice Brennan concurring and dissenting); Shapiro v. Thompson, 394 U.S. 618, 629–31 (1969), and id. at 671 (Justice Harlan dissenting); San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 31–32 (1973); Jones v. Helms, 452 U.S. 412, 417–19 (1981); Zobel v. Williams, 457 U.S. 55, 60 & n.6 (1982), and id. at 66–68 (Justice Brennan concurring), 78-81 (Justice O’Connor concurring).
9. 394 U.S. 618 (1969).
10. The durational residency provision established by Congress for the District of Columbia was also voided. 394 U.S. at 641–42.
11. 394 U.S. at 627–33. Gaddis v. Wyman, 304 F. Supp. 717 (N.D.N.Y. 1969), aff’d sub nom. Wyman v. Bowens, 397 U.S. 49 (1970), struck down a provision construed so as to bar only persons who came into the state solely to obtain welfare assistance.
12. 394 U.S. at 633–38. Shapiro was reaffirmed in Graham v. Richardson, 403 U.S. 365 (1971) (striking down durational residency requirements for aliens applying for welfare assistance), and in Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974) (voiding requirement of one year’s residency in the county as a condition to indigent’s receiving nonemergency hospitalization or medical care at county’s expense). When Connecticut and New York reinstituted the requirements, pleading a financial emergency as the compelling state interest, they were summarily rebuffed. Rivera v. Dunn, 329 F. Supp. 554 (D. Conn. 1971), aff’d per curiam, 404 U.S. 1054 (1972); Lopez v. Wyman, Civ. No. 1971-308 (W.D.N.Y. 1971), aff’d per curiam, 404 U.S. 1055 (1972). The source of the funds, state or federal, is irrelevant to application of the principle. Pease v. Hansen, 404 U.S. 70 (1971).
13. 405 U.S. 330 (1972). But see Marston v. Lewis, 410 U.S. 679 (1973), and Burns v. Fortson, 410 U.S. 686 (1973). Durational residency requirements of five and seven years respectively for candidates for elective office were sustained in Kanapaux v. Ellisor, 419 U.S. 891 (1974), and Sununu v. Stark, 420 U.S. 958 (1975).
14. For additional discussion of durational residence as a qualification to vote, see Voter Qualifications, supra.
15. Saenz v. Roe, 526 U.S. 489, 505 (1999).
16. 419 U.S. 393 (1975). Justices Marshall and Brennan dissented on the merits. Id. at 418.
17. 419 U.S. at 409. But the Court also indicated that the plaintiff was not absolutely barred from the state courts, but merely required to wait for access (which was true in the prior cases as well and there held immaterial), and that possibly the state interests in marriage and divorce were more exclusive and thus more immune from federal constitutional attack than were the matters at issue in the previous cases. The Court also did not indicate whether it was using strict or traditional scrutiny.
18. Starns v. Malkerson, 326 F. Supp. 234 (D. Minn. 1970), aff’d per curiam, 401 U.S. 985 (1971). Cf. Vlandis v. Kline, 412 U.S. 441, 452 & n.9 (1973), and id. at 456, 464, 467 (dicta). In Memorial Hospital v. Maricopa County, 415 U.S. 250, 256 (1974), the Court, noting the results, stated that some waiting periods . . . may not be penalties and thus would be valid.
19. Saenz v. Roe, 526 U.S. at 505.
20. Zobel v. Williams, 457 U.S. 55 (1982). Somewhat similar was the Court’s invalidation on equal protection grounds of a veterans preference for state employment limited to persons who were state residents when they entered military service; four Justices also thought the preference penalized the right to travel. Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986).
21. La Tourette v. McMaster, 248 U.S. 465 (1919), upholding a two-year residence requirement to become an insurance broker, must be considered of questionable validity. Durational periods for admission to the practice of law or medicine or other professions have evoked differing responses by lower courts.
22. E.g., McCarthy v. Philadelphia Civil Service Comm’n, 424 U.S. 645 (1976) (ordinance requiring city employees to be and to remain city residents upheld). See Memorial Hospital v. Maricopa County, 415 U.S. 250, 255 (1974). See also Martinez v. Bynum, 461 U.S. 321 (1983) (bona fide residency requirement for free tuition to public schools).
23. Jones v. Helms, 452 U.S. 412 (1981) (statute made it a misdemeanor to abandon a dependent child but a felony to commit the offense and then leave the state).

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Title 18, U.S.C., Section 249 – Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act

This statute makes it unlawful to willfully cause bodily injury—or attempting to do so with fire, firearm, or other dangerous weapon—when 1) the crime was committed because of the actual or perceived race, color, religion, national origin of any person, or 2) the crime was committed because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person and the crime affected interstate or foreign commerce or occurred within federal special maritime and territorial jurisdiction.

The law also provides funding and technical assistance to state, local, and tribal jurisdictions to help them to more effectively investigate, prosecute, and prevent hate crimes.

The law provides for a maximum 10–year prison term, unless death (or attempts to kill) results from the offense, or unless the offense includes kidnapping or attempted kidnapping, or aggravated sexual abuse or attempted aggravated sexual abuse. For offenses not resulting in death, there is a seven–year statute of limitations. For offenses resulting in death, there is no statute of limitations.

Title 18, U.S.C., Section 241 – Conspiracy Against Rights

This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the same).

It further makes it unlawful for two or more persons to go in disguise on the highway or on the premises of another with the intent to prevent or hinder his/her free exercise or enjoyment of any rights so secured.

Punishment varies from a fine or imprisonment of up to ten years, or both; and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years, or for life, or may be sentenced to death.

Title 18, U.S.C., Section 242 – Deprivation of Rights Under Color of Law

This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.

This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.

Acts under “color of any law” include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under “color of any law,” the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.

Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Title 18, U.S.C., Section 245 – Federally Protected Activities

1) This statute prohibits willful injury, intimidation, or interference, or attempt to do so, by force or threat of force of any person or class of persons because of their activity as:

1. A voter, or person qualifying to vote…;
2. a participant in any benefit, service, privilege, program, facility, or activity provided or administered by the United States;
3. an applicant for federal employment or an employee by the federal government;
4. a juror or prospective juror in federal court; and
5. a participant in any program or activity receiving Federal financial assistance.

2) Prohibits willful injury, intimidation, or interference or attempt to do so, by force or threat of force of any person because of race, color, religion, or national origin and because of his/her activity as:

1. A student or applicant for admission to any public school or public college;
2. a participant in any benefit, service, privilege, program, facility, or activity provided or administered by a state or local government;
3. an applicant for private or state employment, private or state employee; a member or applicant for membership in any labor organization or hiring hall; or an applicant for employment through any employment agency, labor organization or hiring hall;
4. a juror or prospective juror in state court;
5. a traveler or user of any facility of interstate commerce or common carrier; or
6. a patron of any public accommodation, including hotels, motels, restaurants, lunchrooms, bars, gas stations, theaters…or any other establishment which serves the public and which is principally engaged in selling food or beverages for consumption on the premises.

3) Prohibits interference by force or threat of force against any person because he/she is or has been, or in order to intimidate such person or any other person or class of persons from participating or affording others the opportunity or protection to so participate, or lawfully aiding or encouraging other persons to participate in any of the benefits or activities listed in items (1) and (2), above without discrimination as to race, color, religion, or national origin.

Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be subject to imprisonment for any term of years or for life or may be sentenced to death.

Title 18, U.S.C., Section 247 – Church Arson Prevention Act of 1996

Prohibits (1) intentional defacement, damage, or destruction of any religious real property, because of the religious, racial, or ethnic characteristics of that property, or (2) intentional obstruction by force or threat of force, or attempts to obstruct any person in the enjoyment of that person’s free exercise of religious beliefs. If the intent of the crime is motivated for reasons of religious animosity, it must be proven that the religious real property has a sufficient connection with interstate or foreign commerce. However, if the intent of the crime is racially motivated, there is no requirement to satisfy the interstate or foreign commerce clause.

Punishment varies from one year imprisonment and a fine or both, and if bodily injury results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this section, and the violation is by means of fire or an explosive, a fine under this title or imprisonment of not more than forty years or both; or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined in accordance with this title and imprisonment for up to twenty years, or both, and if death results or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined in accordance with this title and imprisoned for any term of years or for life, or both, or may be sentenced to death.

Title 18, U.S.C., Section 248 – Freedom of Access to Clinic Entrances (FACE) Act

This statute prohibits (1) the use of force or threat of force or physical obstruction, to intentionally injure, intimidate or interfere with or attempt to injure, intimidate or interfere with any person or any class of persons from obtaining or providing reproductive health services; (2) the use of force or threat of force or physical obstruction to intentionally injure, intimidate, or interfere with or attempt to injure, intimidate, or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship; or (3) intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services or intentionally damages or destroys the property of a place of religious worship. This statute does not apply to speech or expressive conduct protected by the First Amendment. Non obstructive demonstrations are legal.

Punishment varies from a fine or imprisonment for an offense involving exclusively a nonviolent physical obstruction, the fine shall be not more than $10,000 and the length of imprisonment shall be up to six months, or both, for the first offense: and the fine shall, notwithstanding section 3571, be up to $25,000 and the length of imprisonment shall be not more than 18 months, or both, for a subsequent offense; and if bodily injury results, the length of imprisonment shall be up to ten years, and if death results, it shall be for any term of years or for life.

Title 18, U.S.C., Section 844(h) – Federal Explosives Control Statute

Whoever (1) uses fire or an explosive to commit any felony which may be prosecuted in a court of the United States, or (2) carries an explosive during the commission of any felony which may be prosecuted in a court of the United States, including a felony which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device shall, in addition to the punishment provided for such felony, be sentenced to imprisonment for five years but not more than 15 years. In the case of a second or subsequent conviction under this subsection, such persons shall be sentenced to imprisonment for ten years but not more than 25 years.

Title 42, U.S.C., Section 3631 – Criminal Interference with Right to Fair Housing

This statute makes it unlawful for any individual(s), by the use of force or threatened use of force, to injure, intimidate, or interfere with (or attempt to injure, intimidate, or interfere with), any person’s housing rights because of that person’s race, color, religion, sex, handicap, familial status or national origin. Among those housing rights enumerated in the statute are:

• The sale, purchase, or renting of a dwelling;
• the occupation of a dwelling;
• the financing of a dwelling;
• contracting or negotiating for any of the rights enumerated above;
• applying for or participating in any service, organization, or facility relating to the sale or rental of dwellings.

This statute also makes it unlawful by the use of force or threatened use of force, to injure, intimidate, or interfere with any person who is assisting an individual or class of persons in the exercise of their housing rights.

Punishment varies from a fine of up to $1,000 or imprisonment of up to one year, or both, and if bodily injury results, shall be fined up to $10,000 or imprisoned up to ten years, or both, and if death results, shall be subject to imprisonment for any term of years or for life.

Title 42, U.S.C., Section 14141 – Pattern and Practice

This civil statute was a provision within the Crime Control Act of 1994 and makes it unlawful for any governmental authority, or agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.

Whenever the Attorney General has reasonable cause to believe that a violation has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.

Types of misconduct covered include, among other things:

1. Excessive Force
2. Discriminatory Harassment
3. False Arrest
4. Coercive Sexual Conduct
5. Unlawful Stops, Searches, or Arrests

https://www.fbi.gov/investigate/civil-rights/federal-civil-rights-statutes

Freedom of Access to Clinic Entrances (FACE) Act Violations

The Freedom of Access to Clinic Entrances (FACE) Act makes it a federal crime to injure, intimidate, or interfere with those seeking to obtain or provide health care services—including through assault, murder, burglary, physical blockade, and threats. This law also prohibits damaging or destroying any facility because it provides reproductive health services. The FBI and its local, state, tribal, and federal law enforcement partners aggressively pursue all violations of the statute.

The FACE Act does not criminalize the lawful exercise of constitutional rights. For instance, it is not a violation to protest peacefully outside of a reproductive health care facility–as long as no threats are communicated and facility access is in no way blocked.

• Department of Justice FACE website
• National Task Force on Violence Against Health Care Providers
• Resource Booklet for Reproductive Health Care Providers and Their Staffs (pdf)

Hate Crimes

Investigating hate crimes is the highest priority of the FBI’s civil rights program.

Color of law violations include, but are not limited to:

Sexual assault: Sexual assault by officials acting under color of law can happen in jails, during traffic stops, or in other settings where officials might use their position of authority to coerce an individual.

False arrest and obstruction of justice: The U.S. Constitution guarantees the right against unreasonable searches or seizures and prohibits the use of cruel and unusual punishment. The Fourteenth Amendment secures the right to due process—meaning a person accused of a crime must be allowed the opportunity to have a trial.

Deprivation of medical care: People in custody have a right to medical treatment for serious medical needs. An official acting under color of law who recognizes the serious medical need, but knowingly and willfully denies or prevents access to medical care may have committed a federal violation.

Failure to keep from harm: The public counts on its law enforcement officials to protect local communities. If it’s shown that an official willfully failed to keep an individual from harm, that official could be in violation of the color of law statute.

Filing a Complaint

To file a color of law complaint, contact your local FBI office. You should be prepared to provide as much information and detail as possible.

FBI investigations vary in length. Once our investigation is complete, we forward the findings to the U.S. Attorney’s Office within the local jurisdiction and to the U.S. Department of Justice in Washington, D.C., which decide whether or not to proceed toward prosecution and handle any prosecutions that follow.

The U.S. Department of Justice has additional information on reporting other types of civil rights violations.

Report a Violation 

• Contact your local FBI office
• Submit a tip

External Resources 

• U.S. Dept. of Justice Civil Rights Division
• Addressing Police Misconduct
• Conduct of Law Enforcement Agencies

https://www.fbi.gov/investigate/civil-rights

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Public Corruption

The FBI’s top criminal investigative priority poses a fundamental threat to our national security and way of life.

It can affect how well our borders are secured, how verdicts are handed down in courts, and how public infrastructure like roads and schools are built. It also takes a significant toll on the public’s pocketbooks; it’s estimated that public corruption costs the U.S. government and the public billions of tax dollars each year.

Our public corruption program focuses on:

• Investigating violations of federal law by public officials at the federal, state, and local levels of government.
• Overseeing the nationwide investigation of allegations of fraud related to federal government procurement, contracts, and federally funded programs.
• Combating the threat of public corruption along the nation’s borders and points of entry to decrease the country’s vulnerability to drug and weapons trafficking, alien smuggling, espionage, and terrorism.
• Addressing environmental crime, election fraud, and matters concerning the federal government procurement, contracts, and federally funded programs.

Regional Corruption Hotlines

To report public corruption in your area, contact your local FBI public corruption hotline.

The FBI is uniquely situated to combat corruption, with the skills and capabilities to run complex undercover operations and surveillance.

We also work with a number of federal, state, local, and tribal law enforcement agencies to combat public corruption, including:

• The Department of Justice
• Offices of inspectors general in different agencies
• Law enforcement agencies’ internal affairs divisions
• Federal, state, and local law enforcement and regulatory investigative agencies
• State and county prosecutor’s offices.

Can you imagine this SCUM BAG CRIMINAL DA allowed a MURDERER SNITCH (MAN GETTING SOMETHING IN HIS FAVOR TO STAB A MAN ON HIS SIDE IN THE BACK) TO GET A DEAL IF HE RATS OUT SOME MORE SHIT BAGS LIKE HIMSELF (MURDERER SNITCH).  Our tax dollars at work letting one scum off softly to catch another scum all while being scum yourself! wow, you are a piece of work!

Orange County District Attorney Todd Spitzer’s Office is Dirty and Corrupt from the TOP DOWN, the good one’s that work there have to fear their own boss! PURE EVIL SCUM SOCIOPATH TODD SPITZER

Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division announced today, based upon a thorough investigation focused on custodial informant activity from 2007 through 2016, that the Orange County District Attorney’s Office and the Orange County Sheriff’s Department operated a custodial informant program that systematically violated criminal defendants’ Sixth Amendment right to counsel and Fourteenth Amendment right to due process of law.

Specifically, the department found reasonable cause to believe that Orange County prosecutors and Sheriff deputies violated the Sixth Amendment by using jailhouse informants to elicit incriminating statements from people who had been arrested, after those individuals had been charged with a crime. The department also found that Orange County prosecutors violated the Fourteenth Amendment by failing to disclose exculpatory evidence about those custodial informants to criminal defendants. The department believes that OCDA and OCSD stopped using informants as agents of law enforcement to obtain statements from charged defendants in the Orange County Jail in 2016.

The Justice Department provided a comprehensive, written report of its investigative findings to the Orange County District Attorney and Sheriff. The report explicitly acknowledges the reforms that the District Attorney’s Office and the Sheriff’s Department have implemented already, and identifies the additional remedial measures that the department believes are necessary to fully address its findings.

“All persons who are accused of a crime are guaranteed basic constitutional protections that are intended to ensure fairness in criminal proceedings and due process of law,” said Assistant Attorney General Kristen Clarke. “Prosecutors and law enforcement officers have an obligation to uphold these rights in their fight against crime and in their pursuit of justice, including in the way that they use custodial informants against criminal defendants. The failure to protect these basic constitutional guarantees not only deprives individual defendants of their rights, it undermines the public’s confidence in the fundamental fairness of criminal justice systems across the county.”

The evidence uncovered by the department reveals that custodial informants in the Orange County Jail system acted as agents of law enforcement to elicit incriminating statements from defendants represented by counsel, and that for years Orange County Sheriff deputies maintained and concealed systems to track, manage, and reward those custodial informants. The evidence also reveals that Orange County prosecutors failed to seek out and disclose exculpatory information regarding custodial informants to defense counsel.

The department opened this investigation in 2016. The department reviewed thousands of pages of documents, conducted numerous site visits and interviewed dozens of witnesses, including Orange County prosecutors. The department also monitored developments in criminal cases, including those that culminated recently. Orange County officials cooperated throughout the investigation.

The Special Litigation Section of the Department of Justice Civil Rights Division in Washington, D.C., conducted the investigation pursuant to the Violent Crime Control and Law Enforcement Act of 1994, which prohibits state and local governments from engaging in a pattern or practice of conduct by law enforcement officers that deprives individuals of rights protected by the Constitution or federal law. The statute allows the department to remedy such misconduct through civil litigation.

Click Here to read more about this corrupt criminal District Attorney Todd Spitzer’s Office by the ACLU

• IN (JUSTICE) in ORANGE COUNTY A Case for Change and Accountability ACLU REPORT or Here from GoodShepherdMedia.net

• IN (JUSTICE) in ORANGE COUNTY A Case for Change and Accountability ACLU CASE STUDY SUMMARY or Here from GoodShepherdMedia.net

In re Caden C.: The Supreme Court Recognizes No Parent is Perfect

“The dependency statutes were enacted to prevent harm to children. They prevent harm at the outset of the dependency process by removing children from situations where they are likely to suffer abuse or neglect. But they also prevent harm in the process of selecting permanent placement through the parental-benefit exception, by allowing certain children to preserve emotionally important parental relationships.” (In re Caden C. (2021) 11 Cal. 5th 614, 644 (“Caden C.”).)

At a hearing on termination of parental rights, the court is required to consider a “permanent plan” for a child in the following order of preference: adoption, legal guardianship, and long-term foster care. (Welf. & Inst. Code § 366.26, subd. (b)) The “parental-benefit exception” allows parents to prevent termination of their rights if, by a preponderance of the evidence, they can show:

1) “regular visitation and contact with the child, taking into account the extent of visitation permitted”;
2) “the child has a substantial, positive, emotional attachment to the parent — the kind of attachment implying that the child would benefit from continuing the relationship;” and
3) “terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new adoptive home.” (Caden C., supra, 11 Cal. 5th at 636; See also In re Autumn H. (1994) 27 Cal.App.4th 567; Welf. & Inst. Code § 366.26, subd. (c)(1)(B)(i); Evid. Code, § 115.)

The California Supreme Court’s 2021 decision in Caden C. gives parents and children a small ray of hope when parental rights are at stake. It clarifies preexisting law, recognizing the humanity of parents in juvenile court and the importance of children’s relationship with them. It also clearly instructs judges to stop adding conditions to the parental-benefit exception above and beyond those already required by statute.

Factual and Procedural Background

The Child Welfare Agency (“the Agency”) removed four-year-old Caden from his mother’s care due to her drug use, suicidal ideation, and homelessness. Caden was placed with a non-related extended family member (“NREFM”) before returning to his mother’s care in July, 2014. Mother received Family Maintenance services until June, 2016 when the Agency removed Caden again due to her relapse.

The court was prevented by statute from granting Mother additional services. It made an order placing seven-year-old Caden in long-term foster care, in part to give Mother time to regain stability and sobriety.

In January 2018, the court set a “Selection and Implementation Hearing” pursuant to Welfare and Institutions Code section 366.26 (“.26 hearing”). After four days of trial, including dueling expert testimony, the court did not terminate Mother’s parental rights, finding that it would be detrimental to Caden to do so. Now about nine years old, Caden’s two remaining options were either legal guardianship or continued long-term foster care. Caden’s NREFM caregiver asked that Caden remain in her home under a plan of long-term foster care due to her concerns about Mother’s behavior if the court ordered legal guardianship. The court granted that request, and the Agency and Caden’s attorney appealed.

The First District Court of Appeal reversed, holding Mother’s parental rights should have been terminated. It found that “no reasonable court could have concluded that a compelling justification had been made for forgoing adoption.” (In re Caden C. (2019) 34 Cal.App.5th 87, 115.) It opined that there was little chance Caden would ever return to his mother’s care and that Caden’s relationship with his mother was sometimes difficult, rocky, and had not been perfect for many, many years, which undercut the trial court’s findings. The appellate court argued that Mother’s failure to address the problems which led to the dependency meant “no reasonable court would apply the beneficial relationship exception …” (Id. at p. 112.) It remanded the case to the juvenile court, strongly suggesting termination of Mother’s parental rights. (Id. at p. 116.)

Supreme Court’s Ruling

On review, the Supreme Court reversed. Its opinion obliterates the idea that the parental-benefit exception should not apply due to a parent’s ongoing struggles with sobriety. The Supreme Court pointed out that “…when the court holds a section 366.26 hearing, it all but presupposes that the parent has not been successful in maintaining the reunification plan meant to address the problems leading to dependency.” (Caden C., supra, 11 Cal. 5th at 637.) “[M]aking a parent’s continued struggles with the issues leading to dependency, standing alone, a bar to the exception would effectively write the exception out of the statute.” (Ibid.) “The parent’s continuing difficulty with mental health or substance abuse may not be used as a basis for determining the fate of the parental relationship by assigning blame, making moral judgments about the fitness of the parent, or rewarding or punishing a parent.” (Id. at p. 638.) Nor can trial courts use the implausibility of future reunification to undermine the parental-benefit exception. “Even where it may never make sense to permit the child to live with the parent, termination may be detrimental.” (Id. at p. 634.)

The Supreme Court’s decision rebukes the idea floating around in lower courts that parents are not only required to meet the three elements of the parental-benefit exception but also must demonstrate a some additional “compelling reason . . . termination of parental rights would be detrimental to the child…” (Id. at p. 631.) Caden C. states proving the three statutory elements of the parental-benefit exception is compelling enough.

Conclusion

If you have a parent client who is facing termination of their parental rights, you should always consider presenting expert testimony about the bond between the parent and child. Attorneys representing children need to seriously consider supporting legal guardianship to protect their clients’ rights to maintain beneficial relationships with their parents.
Caden C. has given dependency practitioners a great deal of hope and clarity. Generally, if social workers and minors’ counsel support termination of parental rights, it is nearly impossible to prevent the termination from happening. Caden C. clearly removes the additional requirement of showing a further “compelling reason” used by trial courts and the Court of Appeal to justify termination of parental rights.

cited https://www.cccba.org/article/in-re-caden-c-the-supreme-court-recognizes-no-parent-is-perfec/

In reversal, the California Supreme Court holds that the parental-benefit exception per Welf. & Inst.C. §366.26(c)(1)(B)(i) does not require heightened or additional showing in order to establish the exception; neither must a parent show that they are substantially complying with the case plan in order to establish the exception.

Caden C. was born in 2009 and lived with his mother until September 2013, when the Marin County Health and Human Services Department removed Caden from her custody because the two had been living in a car and his mother admitted to drug use and suicidal ideation. Caden was placed with Ms. H, a nonrelative extended family member. The juvenile court ordered Caden to remain in foster care and for mother to address substance abuse and mental health issues as well as attend parenting classes. At a July 2014 hearing, the juvenile court retained jurisdiction but placed Caden with his mother. His mother and Caden then moved to San Francisco.

In June 2016, after mother relapsed, the San Francisco Human Services Agency (SFHSA) removed Caden from his mother’s custody and filed a supplemental dependency petition. SFHSA placed Caden with Ms. H once again. Meanwhile, his mother reentered residential treatment and filed a petition to regain custody. After the juvenile court denied this petition, Caden’s mother abandoned her drug treatment. In May 2017, the juvenile court reduced mother’s visitation with Caden to once per month and set a Welf. & Inst.C. §366.26 hearing.

At the Welf. & Inst.C. §366.26 hearing, SFHSA argued that Caden was likely to be adopted, his mother’s parental rights should be terminated, and the juvenile court should enter a permanent plan of adoption. SFHSA’s expert, Dr. Lieberman, who did not interview or meet Caden, but who had participated in administrative reviews of Caden’s case, testified that Caden “has a very strong emotional bond with his mother” but that Caden needs ongoing support to address the trauma developed during his early years with his mother and that Ms. H. could provide the necessary support and comfort such that terminating his relationship with his mother would not be harmful to Caden. A social worker for SFHSA also testified that mother discussed her drug treatment in front of Caden, and, as a result, the Caden now talked about drugs and alcohol in detail.

Meanwhile, mother argued that terminating her relationship with Caden would be harmful to him. Mother’s expert witness, Dr. Molesworth, testified that Caden has an “intense bond” with his mother and losing contact with her would compound certain traumatic effects and could result in significant acting out during Caden’s adolescence. Dr. Molesworth concluded that although Caden has a positive relationship with Ms. H., terminating his relationship with his mother would be detrimental to Caden. In her testimony, mother expressed her fear that terminating their relationship would cause Caden to feel abandoned. On cross-examination, mother admitted to having an existing meth addiction.

After this four day hearing, the juvenile court found that Caden would likely be adopted but that mother had established the parental-benefit exception per Welf. & Inst.C. §366.26(c)(1)(B)(i), precluding termination of her parental rights. The juvenile court found that mother met each element of the three-pronged parental-benefit exception: (1) mother maintained regular visitation with Caden; (2) Caden benefited from the continuing relationship with his mother; and (3) termination of this relationship would be detrimental to Caden. Thus, the juvenile court declined to terminate mother’s parental rights and ordered Caden to remain in foster care while Ms. H. considered legal guardianship. SFHSA appealed, and the First District reversed, holding that due to mother’s ongoing struggle with substance abuse, no reasonable court could find Caden’s relationship with his mother outweighed the benefits of adoption. The Supreme Court of California granted review and reversed the First District.

Cleaning house. . .
The justices first addressed the issue whether heightened or additional showing is required to establish the parental-benefit exception. They noted that after the legislature amended Welf. & Inst.C. §366.26(c)(1)(B) to require a parent to show a “compelling reason for determining that termination would be detrimental to the child,” some courts have reasoned that the new language requires a parent to show a heightened level of harm or additional compelling reason in order to establish the parental-benefit exception. But after examining the legislative history of the amendment, the justices here determined that this interpretation is incorrect. In fact, the legislature added the “compelling” language to the statute merely to comply with the Adoption and Safe Families Act of 1997 (ASFA). This federal statute required a “compelling reason” in certain situations where a social service agency did not move to terminate parental rights or where a court declined to terminate such rights. The ASFA, however, did not specify what constitutes a “compelling reason,” so the legislature determined that the existing reasons in the statute satisfy the language in question. Thus, the amendment to the language of Welf. & Inst.C. §366.26(c)(1)(B) did not add a heightened or additional compelling element to the parental-benefit exception. In finding that no heightened or additional showing is required to establish the exception, the California Supreme Court disapproved opinions that have held otherwise, including In re Logan B., 3 Cal.App.5th 1000, 207 Cal.Rptr.3d 837; In re Jasmine D., 78 Cal.App.4th 1339, 93 Cal.Rptr.2d 644; and In re Casey D., 70 Cal.App.4th 38, 82 Cal.Rptr.2d 426.

The justices next turned to whether a parent’s ongoing struggles with issues that led to the dependency action can bar that parent’s showing of the parental-benefit exception. The justices held that there is no basis in the statute to find that such consideration may prevent application of the exception and that such a categorical bar “would effectively write the exception out of the statute.” Specifically, the justices noted that when a juvenile court holds a Welf. & Inst.C. §366.26 hearing, it necessarily terminates reunification services for the parent precisely because that parent has not been successful in maintaining the reunification plan. Calling such a categorical bar to the exception a “paradoxical proposition,” the justices held that parents do not need to show they are “actively involved in maintaining their sobriety or complying substantially with their case plan” in order to establish the parental-benefit exception, disapproving cases that hold otherwise, including In re Breanna S., 8 Cal.App.5th 636, 214 Cal.Rptr.3d 98; In re Noah G., 247 Cal.App.4th 1292, 203 Cal.Rptr.3d 91; and In re Marcelo B., 209 Cal.App.4th 635, 146 Cal.Rptr.3d 908.

Finally, the justices resolved the standard of the review for courts considering application of the parental-benefit exception, finding that the first two elements of the exception [whether there has been regular visitation and whether a beneficial relationship exists] shall be reviewed under the substantial evidence standard while the last element [whether termination of parental rights would be detrimental to the child] is more appropriately reviewed under a hybrid approach. The justices noted that factual determinations related to the third element shall be reviewed under the substantial evidence standard, but the ultimate decision whether termination of parental rights would be detrimental to the child requires a balancing of these factual determinations and must be reviewed for an abuse of discretion. Accordingly, the justices reversed the judgment of the First District. cited https://www.cflr.com/com/2021_07.php

IN RE CADEN C. No. S255839.

All too often, children experience harm—and shoulder long-term consequences—because their physical and emotional needs are neglected by their parents. In California, we rely on social services and statutory procedures to strike a delicate balance between protecting children from abuse or neglect and ensuring the continuity of children’s emotionally important relationships, especially with their parents. The resulting balance sometimes gives a struggling parent enough time and support to overcome deficiencies and regain custody. When such success is not achieved, the dependency statutes require the court to hold a hearing under Welfare and Institutions Code section 366.26.¹ At that hearing, the court determines whether to terminate parental rights, making way for adoption, or to maintain parental rights and select another permanent plan.

When making that fraught determination, a court must sift through often complicated facts to weigh competing benefits and dangers for the child. It must consider practical realities over which it has limited control and envision a child’s future under contingent conditions. And it must navigate situations that can change as quickly as the children before the court do.

To ease the court’s difficult task in making this important decision, the statute provides a carefully calibrated process. Even if a court finds by clear and convincing evidence that the child is likely to be adopted, the parent may avoid termination of parental rights by establishing at least one of a series of enumerated exceptions. If the parent establishes that an exception applies, the statute sets out additional steps for selecting a permanent plan for the child that preserves parental rights. Going step by step through the prescribed process, the court can somewhat more easily accomplish the statutory goals of protecting the parent and child from an overhasty termination of their relationship while ensuring that the child is expeditiously placed in a safe and stable home.

In this case, the trial court found that the parent had established the first of the listed exceptions, the parental-benefit exception.² This exception applies where the parent has maintained regular visitation and contact with the child, the child would benefit from continuing the relationship, and termination of that relationship would impose a detriment on the child. The Court of Appeal reversed. It held that because the parent continued to

struggle with substance abuse and mental health issues and because of the risks of foster care and benefits of the potential adoptive home, no reasonable court could find the child’s relationship with his parent outweighed the benefits of adoption.

The Court of Appeal did not explain how the parent’s struggles related to the specific elements of the statutory exception: the importance of the child’s relationship with the parent or the detriment of losing that relationship. Instead, the appellate court treated the lack of progress in addressing substance abuse and mental health issues as a categorical bar to establishing the exception. That conclusion was mistaken, so we now reverse.

I.

Caden C. was born in 2009 and lived with his mother (Mother) until he was four years old. In September 2013, the County of Marin Department of Health and Human Services removed Caden from Mother’s custody because Caden and his mother had been living in a car and Mother admitted to recent drug use and suicidal ideation. The court subsequently took and then decided to retain jurisdiction of Caden. It ordered that he remain in foster care and that Mother address her substance abuse and mental health issues and attend parenting classes. Caden was placed in foster care with a nonrelative extended family member, Ms. H. At a review hearing in July 2014, the court adopted the Department’s recommendation to retain jurisdiction but place Caden with Mother; Mother and Caden subsequently moved to San Francisco.

By June 2016, Mother had relapsed. The San Francisco Human Services Agency (the Agency) then filed a supplemental dependency petition and removed Caden from her custody. (See § 387.) The petition alleged that Mother had created an unhealthy relationship with Caden, exposing him to “conversations that cause fear and create behaviors that jeopardize his safety, emotional well-being, and education.” The Agency placed Caden back with Ms. H., but over the next year he moved through three other foster placements before being returned to Ms. H. The foster parents said they were exhausted by the multitude of services for Caden and expressed concern that visitation with Mother made it difficult for him to settle into their homes. During the same period of time, Mother reentered residential treatment and filed a modification petition to regain custody; the court denied the petition, and Mother disengaged from drug treatment. In May 2017, the court reduced Mother’s visits to once per month, limited her educational rights, and set a hearing pursuant to section 366.26. Mother appealed, filed additional modification petitions and appealed their denials, and sought extraordinary relief.

The juvenile court eventually held a section 366.26 hearing from January to February 2018. Over four days the court heard testimony from numerous witnesses for both Mother and the Agency. It also received reports from the Agency; a bonding study from Mother’s expert, Dr. Molesworth; a clinical consultation report from the Agency’s expert, Dr. Lieberman; and a letter from Caden. Caden indicated that he did not want to come to the hearing. In light of his wishes and to avoid further traumatizing him, the court relied on his letter and statements in the course of the bonding study to understand his feelings. (See § 366.26, subd. (h)(1).)

The Agency argued that Caden was likely to be adopted, that Mother’s parental rights should be terminated, and the court should order a permanent plan of adoption. The social worker indicated Mother sometimes discussed the case and her drug treatment in front of Caden, and described reports from caregivers and service providers that Caden talked about alcohol and drug use in detail. She testified that Caden was doing well in his current foster placement with Ms. H., had not been harmed by having fewer visits with Mother, and would be able to form a bond with Ms. H. that would mitigate the loss of his relationship with Mother. And the social worker testified that Caden reacted positively to living with Ms. H. but grew distressed at the prospect of not living with his mother. Dr. Lieberman participated in administrative reviews of Caden’s case starting in 2016. Dr. Lieberman testified for the Agency as an expert in parent-child bonding and attachment, with a specific focus in childhood trauma and its impact on children. She agreed that Caden “has a very strong emotional bond with his mother” but emphasized that “the narrowness of the bond poses a risk to [Caden’s] ability to devote his attention, energy, investment to developmentally appropriate tasks now of learning [and] socialization.” Dr. Lieberman also explained her opinion that Caden would need ongoing support to address the trauma from his early years as well as from separating from his mother, but that Ms. H. could provide him the necessary comfort and security such that termination of his relationship with Mother would not be harmful for him.

What Mother argued is that the court should not terminate her parental rights, because terminating her relationship with Caden would harm him. Numerous witnesses described how they’d observed the relationship. Mother herself testified that “I don’t want my son to ever, ever blame himself and think that he did something wrong or feel abandoned because I grew up, I grew up abandoned and feeling those things and I saw to it that my child has known he was loved and that he was a good kid and he had a heart of gold and that his heart resembled god. Like why would you want to take that from him? Because that’s exactly what it would do if you were to, if you were to take me out of his life.” On cross-examination of Mother, the Agency elicited testimony about Mother’s ongoing methamphetamine addiction. Dr. Molesworth testified for Mother as an expert in child psychology, bonding studies,

and the parent-child attachment. Based on his review of visit reports and visits he observed, Dr. Molesworth characterized Mother’s interactions with Caden as generally positive. He explained that Caden had an intense bond with Mother of the kind that might tend to impede Caden in forming relationships with others but did not seem to have done so in his case. Dr. Molesworth suggested that, given the intense bond, losing contact with Mother would compound Caden’s other traumas leading to significant emotional fluctuation, confusion, and acting out in the near term and in adolescence. On cross-examination, Dr. Molesworth opined that despite the descriptions of Caden’s relationship with Ms. H., terminating contact with Mother would have detrimental effects of the kind he had described.

The court found that Caden was likely to be adopted but that Mother had established the parental-benefit exception, precluding termination of parental rights. The court explained Mother “has been a constant and that is the relationship that the Court does need to focus on.” She “has maintained consistent and regular visitation and contact”; she “does stand in a parental role to her son”; and “the visits themselves have continued the significant emotional attachment that Caden and his Mother did create prior to his removals.” Mother “substantially complied with her case plan and although unsuccessful at times … has continued her efforts to maintain her sobriety and address her mental health issues.” As the court summed up its reasoning: “Caden loves his Mother. And he does derive benefits from his visits with her. The record does show that while he has a strong developing relationship with Ms. H[.] that relationship in and of itself does not negate the harm that Caden would experience from the loss of his most significant emotional relationship.” The court noted that “Dr. Lieberman did not interview or meet Caden” and emphasized that its review of both expert reports confirmed that “[Mother] and Caden have a consistent and positive relationship.” On that basis, the court found that “severing Caden’s relationship with his Mother would deprive Caden of a positive emotional attachment and greatly harm Caden.” It therefore declined to terminate parental rights and ordered the Agency to determine if Ms. H. would agree to serve as a legal guardian.

In an addendum report, the Agency explained that Ms. H. did not feel comfortable with legal guardianship. She had concerns about Mother’s demands for visitation and use of court process to disturb the placement. She expressed fear for her own safety and that of her family based on Mother’s erratic behavior over the course of July 2014 to August 2016. Ms. H. instead expressed a preference to further consider legal guardianship but keep Caden in her care for the time being as a foster placement. The court then ordered that Caden remain in foster care subject to periodic review, and the Agency appealed the decision.

The Court of Appeal reversed the trial court—but its rationale encompassed a conclusion we now find to be mistaken. (See In re Caden C. (2019) 34 Cal.App.5th 87, 116 [245 Cal.Rptr.3d 797] (Caden C.).) The Court of Appeal took particular issue with the trial court’s suggestion that Mother had “`substantially complied with her case plan’ and `continues her efforts to maintain her sobriety and address her mental health issues.'” (Id. at p. 110.) In so doing, it followed a recent trend in the Courts of Appeal to place great emphasis on a parent’s failure to make progress in addressing the problems that led to the child’s dependency. (See In re Breanna S. (2017) 8 Cal.App.5th 636, 648 [214 Cal.Rptr.3d 98]; In re Noah G. (2016) 247 Cal.App.4th 1292, 1302, 1304 [203 Cal.Rptr.3d 91]; In re Marcelo B. (2012) 209 Cal.App.4th 635, 643-645 [146 Cal.Rptr.3d 908].) The Court of Appeal also reasoned that the trial court “gave short shrift to uncontroverted evidence that long-term foster care posed substantial risk of further destabilizing a vulnerable child, fostered unhealthy and sometimes `toxic’ interactions between mother and child, and robbed Caden of a stable and permanent home with an exceptional caregiver.” (Caden C., supra, 34 Cal.App.5th at p. 110.)

We granted review to clarify the applicability of the parental-benefit exception—in particular, whether a parent must show progress in addressing issues such as drug abuse that led to the child’s dependency in order to establish the exception—and to resolve the standard of review for decisions regarding the parental-benefit exception.³

II.

Even when a court proceeds to select a permanent placement for a child who cannot be returned to a parent’s care, the parent may avoid termination of parental rights in certain circumstances defined by statute. One of these is the parental-benefit exception. What it requires a parent to establish, by a preponderance of the evidence, is that the parent has regularly visited with the child, that the child would benefit from continuing the relationship, and that terminating the relationship would be detrimental to the child. (See Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i); Evid. Code,

§ 115.) The language of this exception, along with its history and place in the larger dependency scheme, show that the exception applies in situations where a child cannot be in a parent’s custody but where severing the child’s relationship with the parent, even when balanced against the benefits of a new adoptive home, would be harmful for the child. While application of the beneficial parental relationship exception rests on a variety of factual determinations properly reviewed for substantial evidence, the ultimate decision that termination would be harmful is subject to review for abuse of discretion.

A.

If the court cannot safely return a dependent child to a parent’s custody within statutory time limits, the court must set a hearing under section 366.26. (See Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248-249 [19 Cal.Rptr.2d 698, 851 P.2d 1307] (Cynthia D.).)

At the section 366.26 hearing, the question before the court is decidedly not whether the parent may resume custody of the child. (See In re Amber M. (2002) 103 Cal.App.4th 681, 690 [127 Cal.Rptr.2d 19] (Amber M.); cf. § 388, subd. (a)(1) [parent must show changed circumstances to get back custody of child during dependency proceedings].) In fact, it is not permissible to order reunification at the section 366.26 hearing. (See In re Zeth S. (2003) 31 Cal.4th 396, 411 [2 Cal.Rptr.3d 683, 73 P.3d 541] (Zeth S.); In re Marilyn H. (1993) 5 Cal.4th 295, 304-306 [19 Cal.Rptr.2d 544, 851 P.2d 826] (Marilyn H.).) Indeed, when the court orders the section 366.26 hearing, reunification services have been terminated, and the assumption is that the problems that led to the court taking jurisdiction have not been resolved. (See, e.g., In re Edward R. (1993) 12 Cal.App.4th 116, 126 [15 Cal.Rptr.2d 308].)

Instead, the goal at the section 366.26 hearing is “specifically … to select and implement a permanent plan for the child.” (Marilyn H., supra, 5 Cal.4th at p. 304; see also Cynthia D., supra, 5 Cal.4th at p. 250 [“`This hearing determines only the type of permanent home'”].) To guide the court in selecting the most suitable permanent arrangement, the statute lists plans in order of preference and provides a detailed procedure for choosing among them. (See § 366.26, subd. (b) [“In choosing among the alternatives in this subdivision, the court shall proceed pursuant to subdivision (c)”].) According to that procedure, the court must first determine by clear and convincing evidence whether the child is likely to be adopted. (See § 366.26, subd. (c)(1).) If so, and if the court finds that there has been a previous determination that reunification services be terminated, then the court shall terminate parental rights to allow for adoption. (See Cynthia D., supra, 5 Cal.4th at pp. 249-250.) But if the parent shows that termination would be detrimental to the child for at least one specifically enumerated reason, the

court should decline to terminate parental rights and select another permanent plan. (See § 366.26, subd. (c)(1)(B)(i)-(vi), (4)(A).) As we have previously explained, “[t]he statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (In re Celine R. (2003) 31 Cal.4th 45, 53 [1 Cal.Rptr.3d 432, 71 P.3d 787], italics omitted (Celine R.).)

In interpreting the exceptions, we are guided by the relevant statutory provisions, read in context. (See, e.g., Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 128 [218 Cal.Rptr.3d 654, 395 P.3d 689].) In particular, we take account of the connection the statute establishes—when an exception applies—between the “best interest” of the child and the continuation of parental rights. Parallel to the provision detailing the exceptions (§ 366.26, subd. (c)(1)(B)(i)-(vi)), the statute provides that “[i]f the court finds that adoption of the child or termination of parental rights is not in the best interest of the child, because one of [those exceptions] … applies, the court shall” follow a process to select among permanent plans other than adoption. (§ 366.26, subd. (c)(4)(A), italics added.) In other words, when a parent establishes that one of the exceptions applies, adoption or termination is not “in the best interest of the child.” (Ibid.; see Stats. 1997, ch. 510, § 1, p. 3155; Sen. Judiciary Com., Analysis of Assem. Bill No. 329 (1997-1998 Reg. Sess.) as amended June 23, 1997, pars. 14-15 [“This section provides that termination would be detrimental to the child and should not occur when one of the following circumstances exists. [¶] … [¶] [T]he proposed language would provide that termination would not be in the interests of the child when one of the four exceptions applies …”].)

The exception at issue in this case is limited in scope. It applies where “[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) From the statute, we readily discern three elements the parent must prove to establish the exception: (1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child. In understanding these elements, we are guided by what has become the seminal decision interpreting the exception, the Fourth District Court of Appeal’s opinion in In re Autumn H. (1994) 27 Cal.App.4th 567 [32 Cal.Rptr.2d 535] (Autumn H.). The court there articulated the meaning of the exception in an opinion that has guided the thousands of Court of Appeal decisions on the exception since. (See id. at pp. 575-576; see also, e.g., Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2020) § 2.171[5][b][ii][A]-[B].) What the appellate court emphasized in Autumn H. is a crucial aspect of the trial court’s responsibility

in these cases: in assessing whether termination would be detrimental, the trial court must decide whether the harm from severing the child’s relationship with the parent outweighs the benefit to the child of placement in a new adoptive home. (See Autumn H., supra, at p. 575.) By making this decision, the trial court determines whether terminating parental rights serves the child’s best interests.

The first element—regular visitation and contact—is straightforward. The question is just whether “parents visit consistently,” taking into account “the extent permitted by court orders.” (In re I.R. (2014) 226 Cal.App.4th 201, 212 [171 Cal.Rptr.3d 469].) Visits and contact “continue[] or develop[] a significant, positive, emotional attachment from child to parent.” (Autumn H. supra, 27 Cal.App.4th at p. 575.) Courts should consider in that light whether parents “maintained regular visitation and contact with the child” (§ 366.26, subd. (c)(1)(B)(i)) but certainly not to punish parents or reward them for good behavior in visiting or maintaining contact—here as throughout, the focus is on the best interests of the child. (See Cynthia D., supra, 5 Cal.4th at p. 254.)

As to the second element, courts assess whether “the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) Again here, the focus is the child. And the relationship may be shaped by a slew of factors, such as “[t]he age of the child, the portion of the child’s life spent in the parent’s custody, the `positive’ or `negative’ effect of interaction between parent and child, and the child’s particular needs.” (Autumn H., supra, 27 Cal.App.4th at p. 576.) As the trial court and Court of Appeal did here, courts often consider how children feel about, interact with, look to, or talk about their parents. (See, e.g., Caden C., supra, 34 Cal.App.5th at p. 109 [“The record is replete with comments from various care providers attesting to the significance of the bond between mother and son”]; In re Scott B. (2010) 188 Cal.App.4th 452, 466-467, 471 [115 Cal.Rptr.3d 321] (Scott B.); In re Brandon C. (1999) 71 Cal.App.4th 1530, 1536-1537 [84 Cal.Rptr.2d 505] (Brandon C.).) Doing so properly focuses the inquiry on the child, even as courts must remain mindful that rarely do “[p]arent-child relationships” conform to an entirely consistent pattern. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 [93 Cal.Rptr.2d 644] (Jasmine D.); see also In re Grace P. (2017) 8 Cal.App.5th 605, 614-615 [213 Cal.Rptr.3d 714] [“parenting styles and relationships differ greatly between families”]; In re S.B. (2008) 164 Cal.App.4th 289, 299 [79 Cal.Rptr.3d 449] [“Autumn H. does not narrowly define or specifically identify the type of relationship necessary to establish the exception”].) Certainly, it is not necessary—even if it were possible—to calibrate a precise “quantitative measurement of the specific amount of `comfort, nourishment or physical care’ [the parent] provided during [his or] her weekly visits.” (Brandon C., supra, at p. 1538.) As in this case, often expert psychologists who have observed the child and parent and

can synthesize others’ observations will be an important source of information about the psychological importance of the relationship for the child.⁴

Concerning the third element—whether “termination would be detrimental to the child due to” the relationship—the court must decide whether it would be harmful to the child to sever the relationship and choose adoption. (§ 366.26, subd. (c)(1)(B); see also § 366.26, subd. (c)(1)(D).) Because terminating parental rights eliminates any legal basis for the parent or child to maintain the relationship, courts must assume that terminating parental rights terminates the relationship. (See In re C.B. (2010) 190 Cal.App.4th 102, 128 [117 Cal.Rptr.3d 846]; In re Noreen G. (2010) 181 Cal.App.4th 1359, 1391 [105 Cal.Rptr.3d 521]; see also Troxel v. Granville (2000) 530 U.S. 57, 66-67 [147 L.Ed.2d 49, 120 S.Ct. 2054].) What courts need to determine, therefore, is how the child would be affected by losing the parental relationship—in effect, what life would be like for the child in an adoptive home without the parent in the child’s life. (Cf. Celine R., supra, (2003) 31 Cal.4th at p. 55 [explaining, in discussing the “sibling relationship exception” (§ 366.26, subd. (c)(1)(B)(v)), “the court should carefully consider all evidence regarding the sibling relationship as it relates to possible detriment to the adoptive child”].) As the expert who performed the bonding study in this case suggested, the effects might include emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression. Yet as the experts in this case discussed, a new, stable home may alleviate the emotional instability and preoccupation leading to such problems, providing a new source of stability that could make the loss of a parent not, at least on balance, detrimental.

In each case, then, the court acts in the child’s best interest in a specific way: it decides whether the harm of severing the relationship outweighs “the security and the sense of belonging a new family would confer.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) “If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that,” even considering the benefits of a new adoptive home, termination would “harm[]” the child, the court should not terminate parental rights. (Ibid.) That subtle, case-specific inquiry is what the statute asks courts to perform: does the benefit of placement in a new, adoptive home outweigh “the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent?]” (In re S.B., supra, 164 Cal.App.4th at p. 300.) When the relationship with a parent is so important to the child that the security and stability of a new home wouldn’t outweigh its loss, termination would be “detrimental to the

child due to” the child’s beneficial relationship with a parent. (§ 366.26, subd. (c)(1)(B)(i), italics added.) We don’t address here what it means for termination to be detrimental due to any of the other listed exceptions. That inquiry may well differ depending on the particular exception at issue. (See § 366.26, subd. (c)(1)(B)(ii)-(vi).)

When it weighs whether termination would be detrimental, the court is not comparing the parent’s attributes as custodial caregiver relative to those of any potential adoptive parent(s). Nothing that happens at the section 366.26 hearing allows the child to return to live with the parent. (See Zeth S., supra, 31 Cal.4th at p. 411.) Accordingly, courts should not look to whether the parent can provide a home for the child; the question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home. (See Amber M., supra, 103 Cal.App.4th at p. 690 [finding error in not applying exception based on social worker’s testimony that “focus[ed] on [parent’s] inability to provide a home for [the children] and on the suitability of the current placements”].) Even where it may never make sense to permit the child to live with the parent, termination may be detrimental. (See Scott B., supra, 188 Cal.App.4th at pp. 471-472.) And the section 366.26 hearing is decidedly not a contest of who would be the better custodial caregiver. (See Brandon C., supra, 71 Cal.App.4th at pp. 1537-1538.)

What’s more, understanding the harm associated with severing the relationship is a subtle enterprise—sometimes depending on more than just how beneficial the relationship is. In many cases, “the strength and quality of the natural parent/child relationship” will substantially determine how detrimental it would be to lose that relationship, which must be weighed against the benefits of a new adoptive home. (Autumn H., supra, 27 Cal.App.4th at p. 575.) A child would benefit from continuing a strong, positive, and affirming relationship, and it would be destabilizing to lose that relationship. Sometimes, though, a relationship involves tangled benefits and burdens. In those cases, the court faces the complex task of disentangling the consequences of removing those burdens along with the benefits of the relationship.

This is a case in point. The experts agreed that Caden’s relationship with Mother had potentially negative features. Dr. Molesworth indicated that Caden’s bond to Mother might be “narrow”: Caden was preoccupied with Mother in a way that could impede forming other relationships. And Dr. Lieberman highlighted this aspect of the relationship. They disagreed, though, about how negative this feature actually was. Dr. Molesworth thought the “narrow” bond had not in fact impeded Caden from forming other relationships. Dr. Lieberman opined that it had. And most relevantly for whether

termination would be detrimental, the experts disagreed about the effects of severing the relationship given Caden’s preoccupation with Mother. Dr. Molesworth opined that termination could be more detrimental on account of Caden’s preoccupation than if Caden were less preoccupied with Mother. Dr. Lieberman, on the other hand, opined that termination could, in this respect, even be beneficial because it would allow Caden to focus on other relationships or activities. The trial court seems to have credited Dr. Molesworth on the ground that Dr. Lieberman hadn’t interviewed or met with Caden. A different court in a different case could find as the trial court did here that a potentially or actually negative aspect of a relationship might make termination even more detrimental. It could also find that terminating a relationship with negative aspects would have some positive effects that weigh in the balance—and may tip it in favor of severing the parental relationship to make way for adoption.

To gauge and balance these weights can be a daunting prospect for trial courts. But it’s what the statute requires—and the legislative history confirms it. In interpreting the dependency scheme in general and section 366.26 in particular, we have regularly looked to the report of the “Task Force,” which the Legislature created in 1987 to redesign the dependency system and whose recommendations the Legislature adopted. (See Cynthia D., supra, 5 Cal.4th at p. 247; Sen. Select Com. on Children & Youth, SB 1195 Task Force Rep. on Child Abuse Reporting Laws, Juvenile Court Dependency Statutes, and Child Welfare Services (Jan. 1988) p. i (hereafter Task Force Report).) The Task Force Report explained why the parental-benefit exception existed and when it should be applied: “Termination would not be permissible, however, in the following situation[]: [¶] a) Termination would be detrimental to the child due to the strength of the parent-child relationship. There is substantial clinical evidence that some children in foster care retain very strong ties to their biological parents. Since termination in such situations is likely to be harmful to the child, courts should retain parental ties if desired by both the parents and the child.” (Task Force Report, supra, at p. 11, underscoring omitted.)

The history of the statute also underscores that these three elements—visitation, a beneficial relationship, and detriment from losing it—are what the parent has to prove. Subsequent to Autumn H., the Legislature amended the statute to require a parent to show a “compelling reason for determining that termination would be detrimental to the child….” (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B), italics added; see Stats. 1998, ch. 1056, § 17.1, p. 8359.) Based on this amendment, some courts suggested that parents must prove something more than Autumn H. required, some heightened level of harm or an additional “compelling reason.” (See Caden C., supra, 34 Cal.App.5th at pp. 113-114; In re Logan B. (2016) 3 Cal.App.5th 1000, 1012 [207 Cal.Rptr.3d 837]; Jasmine D., supra, 78 Cal.App.4th at p. 1349; In re Casey D. (1999) 70 Cal.App.4th 38, 51 [82 Cal.Rptr.2d 426].) But closer

examination of the legislative history of this amendment reveals the change does not impose an additional or heightened showing. The Legislature added the “compelling reason” language in section 366.26 and throughout the Welfare and Institutions Code to comply with the new Adoption and Safe Families Act of 1997 (ASFA). (Pub.L. No. 105-89 (Nov. 19, 1997) 111 Stat. 2115; see Stats. 1998, ch. 1056, p. 8392, § 27; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2773 (1997-1998 Reg. Sess.) as amended Aug. 24, 1998, p. 1 [“This bill conforms state law to the recently enacted Public Law 105-89, the Adoptions [sic] and Safe Families Act”].) That federal statute required a “compelling reason” in particular situations when an agency didn’t move to terminate parental rights, or a court declined to terminate parental rights within specified timeframes. (See 42 U.S.C. § 675(5)(C), (E)(ii).)

But ASFA didn’t specify what would count as a “compelling reason.” The Legislature accordingly specified that existing reasons in the statute to delay setting a Welfare and Institutions Code section 366.26 hearing or not to terminate parental rights were in fact compelling reasons as required by ASFA. (See, e.g., Welf. & Inst. Code, §§ 366.21, subd. (g)(1)(C)(i), (5), 366.22, subd. (a)(3), 366.3, subd. (h)(1).) The addition of “compelling” in section 366.26, subdivision (c)(1)(B) is another such example and just clarifies that, for example, the parental-benefit exception is a compelling reason not to terminate parental rights as possibly required by ASFA. In other words, where terminating a child’s substantial, positive attachment to the parent would, on balance, be detrimental to the child, that simply is a compelling reason not to terminate parental rights.⁵

What this means is that the parent asserting the parental benefit exception must show, by a preponderance of the evidence, three things. The parent must show regular visitation and contact with the child, taking into account the extent of visitation permitted. Moreover, the parent must show that the child has a substantial, positive, emotional attachment to the parent— the kind of attachment implying that the child would benefit from continuing the relationship. And the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home. When the parent has met that burden, the parental-benefit exception applies such that it would not be in the

best interest of the child to terminate parental rights, and the court should select a permanent plan other than adoption. (See § 366.26, subd. (c)(4)(A).) We do not further discuss the steps for selecting such a permanent plan. (See § 366.26, subd. (c)(4)(A)-(B).)

B.

We now turn to whether and how a parent’s continued struggles with the issues that led to dependency relate to application of the parental-benefit exception.

A parent’s continued struggles with the issues leading to dependency are not a categorical bar to applying the exception. As the parties before us all agree, making a parent’s continued struggles with the issues leading to dependency, standing alone, a bar to the exception would effectively write the exception out of the statute. In cases like this one, when the court sets a section 366.26 hearing, it terminates reunification services for the parent. (See § 366.21, subd. (h).) Thus, when the court holds a section 366.26 hearing, it all but presupposes that the parent has not been successful in maintaining the reunification plan meant to address the problems leading to dependency. (See also § 366.26, subd. (c)(2)(A) [court shall not terminate parental rights unless court has previously found that, to the extent required by statute, “reasonable services” were offered or provided].) The parental-benefit exception can therefore only apply when the parent has presumptively not made sufficient progress in addressing the problems that led to dependency. So, we reject the paradoxical proposition, without any basis in the statute or its history, that the exception can only apply when the parent has made sufficient progress in addressing the problems that led to dependency. Parents need not show that they are “actively involved in maintaining their sobriety or complying substantially with their case plan” (Caden C., supra, 34 Cal.App.5th at p. 112) to establish the exception.⁶

But the parties likewise agree on something else: issues such as those that led to dependency often prove relevant to the application of the exception. We agree. A parent’s struggles may mean that interaction between parent and child at least sometimes has a “`negative’ effect” on the child. (Autumn H., supra, 27 Cal.App.4th at p. 576.) For example, there was some evidence in this case that, perhaps as a result of her mental health issues, Mother sought to undermine at least some of Caden’s foster placements, which could certainly have had a negative effect on him. Conversely, a parent who gains

greater understanding of herself and her children’s needs through treatment may be in a better position to ensure that her interactions with the children have a “`positive’ … effect” on them. (Ibid.; see In re E.T., supra, 31 Cal.App.5th at p. 77 [“the insight [Mother] has into her own development and the love and care she has for her children was clear in her testimony. Mother recognized that her behavior was traumatic for the children …”].) In both scenarios, the parent’s struggles speak to the benefit (or lack thereof) of continuing the relationship and are relevant to that extent. And issues such as those leading to dependency may also be relevant to the detriment from terminating parental rights. There was some evidence in this case that Mother’s continuing substance abuse and mental health issues contributed to Caden forming what might have been a “narrow” bond with her. And there was conflicting testimony about whether the nature of Caden’s bond to Mother, associated with Mother’s substance abuse and mental health issues, would make termination more or less detrimental for Caden.

Nonetheless, the parent’s struggles with issues such as those that led to dependency are relevant only to the extent they inform the specific questions before the court: would the child benefit from continuing the relationship and be harmed, on balance, by losing it? The parent’s continuing difficulty with mental health or substance abuse may not be used as a basis for determining the fate of the parental relationship by assigning blame, making moral judgments about the fitness of the parent, or rewarding or punishing a parent. (See Cynthia D., supra, 5 Cal.4th at p. 254 [“It is not the purpose of the section 366.26 hearing to show parental inadequacy … [or] that the parents are `at fault'”]; see also Marilyn H., supra, 5 Cal.4th at p. 305; Amber M., supra, 103 Cal.App.4th at p. 690; Goldstein et al., Beyond the Best Interests of the Child (1979) p. 79.)

Nor could a parent’s struggles be relevant simply because they might conceivably affect the parent’s ability to regain custody of the child. As we have previously explained, return to the parent’s custody is not an option at the section 366.26 hearing. (See Marilyn H., supra, 5 Cal.4th at pp. 304-305.) Accordingly, whether the parent is or is not “ready for the children’s return to her custody” is not, by itself, relevant to the application of the parental-benefit exception. (Amber M., supra, 103 Cal.App.4th at p. 690.) If termination of parental rights would, when weighed against the offsetting benefits of an adoptive home, be detrimental to the child, the court should not terminate parental rights, even if the parent has not demonstrated a likelihood that he or she will ever be able to regain custody.⁷ (See Scott B., supra, 188 Cal.App.4th at pp. 471-472.)

Mother argues that a parent’s struggles should only be relevant to whether the child would benefit from continuing the relationship. They should not be considered “a second time” in deciding whether termination would be detrimental. A parent’s struggles may be most directly relevant—as Mother suggests—to the “`positive’ or `negative’ effect of interaction between parent and child” (Autumn H., supra, 27 Cal.App.4th at p. 576) and then somewhat more indirectly to the harm of removing such interactions from the child’s life. (See also Zeth S., supra, 31 Cal.4th at p. 412, fn. 9.) But how and how much the loss of a relationship with a parent may be harmful, how and how much that harm might be offset by a new family are complex questions not always answered just by determining how beneficial the child’s relationship with the parent is. Though there is no reason for a court to consider “a second time” the same struggles in the same way, a parent’s struggles with substance abuse, mental health issues, or other problems could be directly relevant to a juvenile court’s analysis in deciding whether termination would be detrimental.

C.

When courts make decisions about whether to apply the beneficial relationship exception, their decisions are subject to review. What standard applies is another question we granted review to resolve.

Courts of Appeal have come to use three different standards. Many courts review all the trial court’s findings for substantial evidence. (See, e.g., Autumn H., supra, 27 Cal.App.4th at p. 575.) Other courts have suggested that the appropriate standard is abuse of discretion because the “juvenile court is determining which kind of custody is appropriate for the child.” (Jasmine D., supra, 78 Cal.App.4th at p. 1351 [analogizing § 366.26 hearing to custody determinations at other stages of dependency proceedings].) And yet others, including the Court of Appeal in this case, have adopted a “hybrid” standard. They review whether there has been regular visitation and whether there is a beneficial relationship for substantial evidence but whether termination would be detrimental for abuse of discretion. (See In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [117 Cal.Rptr.3d 568].)

We agree with the general consensus: a substantial evidence standard of review applies to the first two elements. The determination that the parent has visited and maintained contact with the child “consistently,” taking into account “the extent permitted by the court’s orders” (Brandon C., supra,

71 Cal.App.4th at p. 1537) is essentially a factual determination. It’s likewise essentially a factual determination whether the relationship is such that the child would benefit from continuing it.

The third element—whether termination of parental rights would be detrimental to the child—is somewhat different. As in assessing visitation and the relationship between parent and child, the court must make a series of factual determinations. These may range from the specific features of the child’s relationship with the parent and the harm that would come from losing those specific features to a higher-level conclusion of how harmful in total that loss would be. The court must also determine, for the particular child, how a prospective adoptive placement may offset and even counterbalance those harms. In so doing, it may make explicit or implicit findings ranging from specific benefits related to the child’s specific characteristics up to a higher-level conclusion about the benefit of adoption all told. All these factual determinations are properly reviewed for substantial evidence. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1067 [24 Cal.Rptr.2d 654] (Robert L.) [“evaluating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling”].)

Yet the court must also engage in a delicate balancing of these determinations as part of assessing the likely course of a future situation that’s inherently uncertain. The decision is not the same as a determination whether to transfer the child from the custody of one caregiver to another, but it does require assessing what the child’s life would be like in an adoptive home without the parent in his life. (Cf. In re Stephanie M. (1994) 7 Cal.4th 295, 317-318 [27 Cal.Rptr.2d 595, 867 P.2d 706] (Stephanie M.).) The court makes the assessment by weighing the harm of losing the relationship against the benefits of placement in a new, adoptive home. And so, the ultimate decision—whether termination of parental rights would be detrimental to the child due to the child’s relationship with his parent—is discretionary and properly reviewed for abuse of discretion.

In reviewing factual determinations for substantial evidence, a reviewing court should “not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228 [33 Cal.Rptr.3d 337].) The determinations should “be upheld if … supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.” (Ibid.; see also 9 Witkin, Cal. Procedure (5th ed. 2020) Appeal, § 365.) Uncontradicted testimony rejected by the trial court “`cannot be credited on appeal unless, in view of the whole record, it is clear, positive, and of such a nature that it cannot rationally be disbelieved.'” (Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 717 [57 Cal.Rptr.3d 259].)

Review for abuse of discretion is subtly different, focused not primarily on the evidence but the application of a legal standard. A court abuses its discretion only when “`”the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.”‘” (Stephanie M., supra, 7 Cal.4th at p. 318.) But “`”[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”‘” (Id. at p. 319; see also Robert L., supra, 21 Cal.App.4th at p. 1067 [“The reviewing court should interfere only “`if … under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he [or she] did”‘”].)

While each standard here fits a distinct type of determination under review, the practical difference between the standards is not likely to be very pronounced. Review for substantial evidence applies to factual determinations; abuse of discretion applies when a lower court must delicately balance factual determinations to assess an uncertain future situation. But where, as with the parental-benefit exception, “the appellate court will be evaluating the factual basis for an exercise of discretion, there likely will be no practical difference in application of the two standards.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 8:88, p. 8-41; see also Jasmine D., supra, 78 Cal.App.4th at p. 1351 [“The practical differences between the two standards of review are not significant”].) At its core, the hybrid standard we now endorse simply embodies the principle that “[t]he statutory scheme does not authorize a reviewing court to substitute its own judgment as to what is in the child’s best interests for the trial court’s determination in that regard, reached pursuant to the statutory scheme’s comprehensive and controlling provisions.” (Zeth S., supra, 31 Cal.4th at p. 410.)

III.

Having explained the scope of the parental-benefit exception and the standard for reviewing an application of it, we turn to the Court of Appeal’s decision in this case. The Court of Appeal found substantial evidence supported the trial court’s determinations that Mother had maintained regular visitation with Caden. (Caden C., supra, 34 Cal.App.5th at pp. 108-109.) It also found that substantial evidence supported the trial court’s determination that Caden and Mother had a beneficial relationship. (Id. at p. 109.) It held, though, that the trial court abused its discretion in finding that the relationship was a compelling reason not to terminate parental rights. (Id. at pp. 110-115.)

The Court of Appeal rested its decision to reverse on two considerations. First, it concluded that mother had not “`maintain[ed] her sobriety and

address[ed] her mental health issues.'” (Caden C., supra, 34 Cal.App.5th at p. 110.) It therefore held that “[n]o reasonable court would apply the beneficial relationship exception on this record of mother’s disengagement from treatment and case plan, inability or unwillingness to remain sober, and deficient insight regarding her parenting.” (Id. at p. 112.) Second, it reasoned that “although Caden enjoyed visiting with mother, their interactions were often detrimental to his well-being” (id. at p. 114) by contrast with his relationship with Ms. H., “the only caregiver in Caden’s life who had enabled him `to feel that he is in the care of a consistent and predictable adult who keeps him safe and reliably looks out for his physical and emotional needs'” (id. at p. 115). It therefore concluded that “when the strength and quality of mother’s relationship with Caden in a tenuous placement is properly balanced against the security and sense of belonging adoption by Ms. H. would confer, no reasonable court could have concluded that a compelling justification had been made for forgoing adoption.” (Ibid., italics added.)

The first consideration supporting reversal was improper. Even where a parent continues to struggle with addiction—and even if she believes that her addiction doesn’t make her an unfit parent—a reasonable court could conclude that termination of parental rights would, on balance, be detrimental to the child. (See Caden C., supra, 34 Cal.App.5th at p. 111.) Mother was not required, in order to establish that the parental-benefit exception applied, to put evidence in at the section 366.26 hearing that she had recently attempted to maintain her sobriety or seek treatment for her addiction or mental health issues. (See Caden C., at p. 111.) The Court of Appeal did not conclude, applying the appropriate standard of review, that the evidence showed Mother’s substance abuse or mental health issues affected whether her relationship with Caden was beneficial or whether its loss would, on balance, be detrimental to him. The Court of Appeal did not, for example, connect Mother’s substance abuse or mental health to its emphasis on contested evidence about whether Caden’s visits with Mother “were often detrimental to his well-being.” (Id. at p. 114.) It also did not explain how its reliance on that contested evidence fit with its determination that “it cannot be seriously disputed that Caden had a beneficial relationship with mother—that is, a significant relationship the termination of which would cause him detriment.” (Id. at p. 109.) And so, the Court of Appeal’s holding that no reasonable court could apply the parental-benefit exception given Mother’s substance abuse and mental health issues was error.

Because we find that the Court of Appeal’s first consideration was erroneous, we reverse. Accordingly, we do not address the court’s second consideration in detail. In particular, we don’t decide whether the Court of Appeal failed to view “all the evidence, … most favorably in support of the trial

court’s actions” (Robert L., supra, 21 Cal.App.4th at p. 1067) or improperly “substitute[d] its own judgment” (Zeth S., supra, 31 Cal.4th at p. 410) for the trial court’s.

The juvenile court declined to terminate parental rights nearly three years ago. We now hold that the Court of Appeal, in reversing that decision, erred. And so, we reverse the Court of Appeal. More recently, the Agency filed a new petition to terminate parental rights, and the trial court held a new hearing and terminated Mother’s parental rights. That subsequent decision renders moot the earlier decision not to terminate parental rights. On remand, the Court of Appeal should therefore dismiss this appeal as moot. (See People v. DeLeon (2017) 3 Cal.5th 640, 660 [220 Cal.Rptr.3d 784, 399 P.3d 13].)

IV.

The dependency statutes were enacted to prevent harm to children. They prevent harm at the outset of the dependency process by removing children from situations where they are likely to suffer abuse or neglect. But they also prevent harm in the process of selecting permanent placement through the parental-benefit exception, by allowing certain children to preserve emotionally important parental relationships. This exception allows a child a legal basis for maintaining a relationship with the child’s parent if severing that relationship would, on balance, harm the child. The exception preserves the child’s right to the relationship even when the child cannot safely live with that parent. What it does not allow is a judgment about the parent’s problems to deprive a child of the chance to continue a substantial, positive relationship with the parent. Accordingly, we reverse the judgment of the Court of Appeal and remand with directions to dismiss the appeal as moot.

Cantil-Sakauye, C. J., Corrigan, J., Liu, J., Kruger, J., Groban, J., and Jenkins, J., concurred.

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Opinion

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What is a Due Process Violation?

it violates your Constitutional Rights afforded to you in the following amendments

• Fourth Amendment

• Fifth Amendment 

• Fourteenth Amendment

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Due Process Introduction

The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law (“legality”) and provide fair procedures. Most of this essay concerns that promise. We should briefly note, however, three other uses that these words have had in American constitutional law.

Incorporation The Fifth Amendment’s reference to “due process” is only one of many promises of protection the Bill of Rights gives citizens against the federal government. Originally these promises had no application at all against the states (see Barron v City of Baltimore (1833)). However, this attitude faded in Chicago, Burlington & Quincy Railroad Company v. City of Chicago (1897), when the court incorporated the Fifth Amendment’s Takings Clause. In the the middle of the Twentieth Century, a series of Supreme Court decisions found that the Due Process Clause incorporated” most of the important elements of the Bill of Rights and made them applicable to the states. If a Bill of Rights guarantee is “incorporated” in the “due process” requirement of the Fourteenth Amendment, state and federal obligations are exactly the same.

Substantive due process The words “due process” suggest a concern with procedure rather than substance, and that is how many–such as Justice Clarence Thomas, who wrote “the Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness”–understand the Due Process Clause. However, others believe that the Due Process Clause does include protections of substantive due process–such as Justice Stephen J. Field, who, in a dissenting opinion to the Slaughterhouse Cases wrote that “the Due Process Clause protected individuals from state legislation that infringed upon their “privileges and immunities” under the federal Constitution. Field’s dissenting opinion is often seen as an important step toward the modern doctrine of substantive due process, a theory that the Court has developed to defend rights that are not mentioned in the Constitution.” Substantive due process has been interpreted to include things such as the right to work in an ordinary kind of job, marry, and to raise one’s children as a parent. In Lochner v New York (1905), the Supreme Court found unconstitutional a New York law regulating the working hours of bakers, ruling that the public benefit of the law was not enough to justify the substantive due process right of the bakers to work under their own terms. Substantive due process is still invoked in cases today, but not without criticism (See this Stanford Law Review article to see substantive due process as applied to contemporary issues). The promise of legality and fair procedure Historically, the clause reflects the Magna Carta of Great Britain, King John’s thirteenth century promise to his noblemen that he would act only in accordance with law (“legality”) and that all would receive the ordinary processes (procedures) of law. It also echoes Great Britain’s Seventeenth Century struggles for political and legal regularity, and the American colonies’ strong insistence during the pre-Revolutionary period on observance of regular legal order. The requirement that government function in accordance with law is, in itself, ample basis for understanding the stress given these words. A commitment to legality is at the heart of all advanced legal systems, and the Due Process Clause often thought to embody that commitment.

The clause also promises that before depriving a citizen of life, liberty or property, government must follow fair procedures. Thus, it is not always enough for the government just to act in accordance with whatever law there may happen to be. Citizens may also be entitled to have the government observe or offer fair procedures, whether or not those procedures have been provided for in the law on the basis of which it is acting. Action denying the process that is “due” would be unconstitutional. Suppose, for example, state law gives students a right to a public education, but doesn’t say anything about discipline.

Before the state could take that right away from a student, by expelling her for misbehavior, it would have to provide fair procedures, i.e. “due process.” How can we know whether process is due  what counts as a “deprivation” of “life, liberty or property”), when it is due, and what procedures have to be followed (what process is “due” in those cases)? If “due process” refers chiefly to procedural subjects, it says very little about these questions. Courts unwilling to accept legislative judgments have to find answers somewhere else. The Supreme Court’s struggles over how to find these answers echo its interpretational controversies over the years, and reflect the changes in the general nature of the relationship between citizens and government.

In the Nineteenth Century government was relatively simple, and its actions relatively limited. Most of the time it sought to deprive its citizens of life, liberty or property it did so through criminal law, for which the Bill of Rights explicitly stated quite a few procedures that had to be followed (like the right to a jury trial) — rights that were well understood by lawyers and courts operating in the long traditions of English common law. Occasionally it might act in other ways, for example in assessing taxes. In Bi-Metallic Investment Co. v. State Board of Equalization (1915), the Supreme Court held that only politics (the citizen’s “power, immediate or remote, over those who make the rule”) controlled the state’s action setting the level of taxes; but if the dispute was about a taxpayer’s individual liability, not a general question, the taxpayer had a right to some kind of a hearing (“the right to support his allegations by arguments however brief and, if need be, by proof however informal”). This left the state a lot of room to say what procedures it would provide, but did not permit it to deny them altogether.

Distinguishing Due Process

Bi-Metallic established one important distinction: the Constitution does not require “due process” for establishing laws; the provision applies when the state acts against individuals “in each case upon individual grounds” — when some characteristic unique to the citizen is involved. Of course there may be a lot of citizens affected; the issue is whether assessing the effect depends “in each case upon individual grounds.” Thus, the due process clause doesn’t govern how a state sets the rules for student discipline in its high schools; but it does govern how that state applies those rules to individual students who are thought to have violated them — even if in some cases (say, cheating on a state-wide examination) a large number of students were allegedly involved.

Even when an individual is unmistakably acted against on individual grounds, there can be a question whether the state has “deprive[d]” her of “life, liberty or property.” The first thing to notice here is that there must be state action. Accordingly, the Due Process Clause would not apply to a private school taking discipline against one of its students (although that school will probably want to follow similar principles for other reasons).

Whether state action against an individual was a deprivation of life, liberty or property was initially resolved by a distinction between “rights” and “privileges.” Process was due if rights were involved, but the state could act as it pleased in relation to privileges. But as modern society developed, it became harder to tell the two apart (ex: whether driver’s licenses, government jobs, and welfare enrollment are “rights” or a “privilege.” An initial reaction to the increasing dependence of citizens on their government was to look at the seriousness of the impact of government action on an individual, without asking about the nature of the relationship affected.

Process was due before the government could take an action that affected a citizen in a grave way.

In the early 1970s, however, many scholars accepted that “life, liberty or property” was directly affected by state action, and wanted these concepts to be broadly interpreted. Two Supreme Court cases involved teachers at state colleges whose contracts of employment had not been renewed as they expected, because of some political positions they had taken. Were they entitled to a hearing before they could be treated in this way? Previously, astate job was a “privilege” and the answer to this question was an emphatic “No!” Now, the Court decided that whether either of the two teachers had “property” would depend in each instance on whether persons in their position, under state law, held some form of tenure. One teacher had just been on a short term contract; because he served “at will” — without any state law claim or expectation to continuation — he had no “entitlement” once his contract expired. The other teacher worked under a longer-term arrangement that school officials seemed to have encouraged him to regard as a continuing one. This could create an “entitlement,” the Court said; the expectation need not be based on a statute, and an established custom of treating instructors who had taught for X years as having tenure could be shown. While, thus, some law-based relationship or expectation of continuation had to be shown before a federal court would say that process was “due,” constitutional “property” was no longer just what the common aw called “property”; it now included any legal relationship with the state that state law regarded as in some sense an “entitlement” of the citizen.

Licenses, government jobs protected by civil service, or places on the welfare rolls were all defined by state laws as relations the citizen was entitled to keep until there was some reason to take them away, and therefore process was due before they could be taken away. This restated the formal “right/privilege” idea, but did so in a way that recognized the new dependency of citizens on relations with government, the “new property” as one scholar influentially called it.

When process is due

In its early decisions, the Supreme Court seemed to indicate that when only property rights were at stake (and particularly if there was some demonstrable urgency for public action) necessary hearings could be postponed to follow provisional, even irreversible, government action. This presumption changed in 1970 with the decision in Goldberg v. Kelly, a case arising out of a state-administered welfare program. The Court found that before a state terminates a welfare recipient’s benefits, the state must provide a full hearing before a hearing officer, finding that the Due Process Clause required such a hearing.

What procedures are due

Just as cases have interpreted when to apply due process, others have determined the sorts of procedures which are constitutionally due. This is a question that has to be answered for criminal trials (where the Bill of Rights provides many explicit answers), for civil trials (where the long history of English practice provides some landmarks), and for administrative proceedings, which did not appear on the legal landscape until a century or so after the Due Process Clause was first adopted. Because there are the fewest landmarks, the administrative cases present the hardest issues, and these are the ones we will discuss.

The Goldberg Court answered this question by holding that the state must provide a hearing before an impartial judicial officer, the right to an attorney’s help, the right to present evidence and argument orally, the chance to examine all materials that would be relied on or to confront and cross-examine adverse witnesses, or a decision limited to the record thus made and explained in an opinion. The Court’s basis for this elaborate holding seems to have some roots in the incorporation doctrine.

Many argued that the Goldberg standards were too broad, and in subsequent years, the Supreme Court adopted a more discriminating approach. Process was “due” to the student suspended for ten days, as to the doctor deprived of his license to practice medicine or the person accused of being a security risk; yet the difference in seriousness of the outcomes, of the charges, and of the institutions involved made it clear there could be no list of procedures that were always “due.” What the Constitution required would inevitably be dependent on the situation. What process is “due” is a question to which there cannot be a single answer.

A successor case to Goldberg, Mathews v. Eldridge, tried instead to define a method by which due process questions could be successfully presented by lawyers and answered by courts. The  approach it defined has remained the Court’s preferred method for resolving questions over what process is due. Mathews attempted to define how judges should ask about constitutionally required procedures. The Court said three factors had to be analyzed:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Using these factors, the Court first found the private interest here less significant than in Goldberg. A person who is arguably disabled but provisionally denied disability benefits, it said, is more  likely to be able to find other “potential sources of temporary income” than a person who is arguably impoverished but provisionally denied welfare assistance.

Respecting the second, it found the risk of error in using written procedures for the initial judgment to be low, and unlikely to be significantly reduced by adding oral or confrontational procedures of the Goldberg variety. It reasoned that disputes over eligibility for disability insurance typically concern one’s medical condition, which could be decided, at least provisionally, on the basis of documentary submissions; it was impressed that Eldridge had full access to the agency’s files, and the opportunity to submit in writing any further material he wished. Finally, the Court now attached more importance than the Goldberg Court had to the government’s claims for efficiency. In particular, the Court assumed (as the Goldberg Court had not) that “resources available for any particular program of social welfare are not unlimited.” Thus additional administrative costs for suspension hearings and payments while those hearings were awaiting resolution to persons ultimately found undeserving of benefits would subtract from the amounts available to pay benefits for those undoubtedly eligible to participate in the program. The Court also gave some weight to the “good-faith judgments” of the plan administrators what appropriate consideration of the claims of applicants would entail.

Matthews thus reorients the inquiry in a number of important respects. First, it emphasizes the variability of procedural requirements. Rather than create a standard list of procedures that constitute the procedure that is “due,” the opinion emphasizes that each setting or program invites its own assessment. About the only general statement that can be made is that persons holding interests protected by the due process clause are entitled to “some kind of hearing.” Just what the elements of that hearing might be, however, depends on the concrete circumstances of the particular program at issue. Second, that assessment is to be made concretely and holistically. It is not a matter of approving this or that particular element of a procedural matrix in isolation, but of assessing the suitability of the ensemble in context. Third, and particularly important in its implications for litigation seeking procedural change, the assessment is to be made at the level of program operation, rather than in terms of the particular needs of the particular litigants involved in the matter before the Court. Cases that are pressed to appellate courts often are characterized by individual facts that make an unusually strong appeal for proceduralization.

Indeed, one can often say that they are chosen for that appeal by the lawyers, when the lawsuit is supported by one of the many American organizations that seeks to use the courts to help establish their view of sound social policy.

Finally, and to similar effect, the second of the stated tests places on the party challenging the existing procedures the burden not only of demonstrating their insufficiency, but also of showing that some specific substitute or additional procedure will work a concrete improvement justifying its additional cost.

Thus, it is inadequate merely to criticize. The litigant claiming procedural insufficiency must be prepared with a substitute program that can itself be justified.

The Mathews approach is most successful when it is viewed as a set of instructions to attorneys involved in litigation concerning procedural issues. Attorneys now know how to make a persuasive showing on a procedural “due process” claim, and the probable effect of the approach is to discourage litigation drawing its motive force from the narrow (even if compelling) circumstances of a particular individual’s position.

The hard problem for the courts in the Mathews approach, which may be unavoidable, is suggested by the absence of fixed doctrine about the content of “due process” and by the very breadth of the inquiry required to establish its demands in a particular context. A judge has few reference points to begin with, and must decide on the basis of considerations (such as the nature of a government program or the probable impact of a procedural requirement) that are very hard to develop in a trial.

While there is no definitive list of the “required procedures” that due process requires, Judge Henry Friendly generated a list that remains highly influential, as to both content and relative priority:

1. An unbiased tribunal.
2. Notice of the proposed action and the grounds asserted for it.
3. Opportunity to present reasons why the proposed action should not be taken.
4. The right to present evidence, including the right to call witnesses.
5. The right to know opposing evidence.
6. The right to cross-examine adverse witnesses.
7. A decision based exclusively on the evidence presented.
8. Opportunity to be represented by counsel.
9. Requirement that the tribunal prepare a record of the evidence presented.
10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.

This is not a list of procedures which are required to prove due process, but rather a list of the kinds of procedures that might be claimed in a “due process” argument, roughly in order of their  perceived importance.