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David Alan Sklansky, One Train May Hide Another: Katz, Stonewall, and the Secret Subtext of Criminal Procedure, 41 U.C. Davis L. Rev. 875 (2008).

David Alan Sklansky offers fascinating new insights into an old chestnut, Katz v. United States, 389 U.S. 347 (1967).  Katz is a worthy subject, because its rejection of the “trespass” test for searches in favor of the “reasonable expectation of privacy” framework apparently heralded a new scope for the Fourth Amendment.   The specific holding of Katz, that wiretapping constituted a search, overruled prior law and survives today.  Yet, as the cases after Katz developed, from open fields to wired informants, the results of the new test were the same as the old test.

Together, the great criminal procedure cases of the Warren Court read like a parade of vice straight out of Guys and Dolls: The possession of dirty paperbacks at issue in Mapp v. Ohio, 367 U.S. 643 (1961), the incipient stick-up artists of Terry v. Ohio, 392 U.S. 1 (1968), the Chinese opium dealers in Wong Sun v. United States, 371 U.S. 471 (1963), the bookmaker in Spinelli v. United States, 393 U.S. 410 (1969), and the L.A. bookie in Katz itself.  Sklansky proposes that with Katz, at least, this image is wrong; Katz was not only about bets and telephone booths.  The secret subtext of Katz was protection of gay men from police surveillance in public restroom stalls.  Sklansky advances a powerful circumstantial case that both pre-Katz jurisprudence involving gay men and the cultural context of “morals” policing of males might well have influenced the Court’s decision.

Remarkably, the phrase “reasonable expectation of privacy” originated in arguments that the police should not spy on men in bathroom stalls.  In a 1966 special project, the UCLA Law Review published an empirical study of arrests for consensual sodomy in California.  More than half “were made in public restrooms.  Most were for sexual conduct directly witnessed by the arresting officers, typically, it seems, from hidden observation posts.” Sklansky, supra, at  887.   The study criticized toilet surveillance, arguing “that the Fourth Amendment should protect ‘reasonable expectations of privacy’ in ‘semi-public places.’” Id. at 894.

The study built on ongoing litigation in California employing the same phraseology.   In 1962, a pair of California Supreme Court decisions held that the police could not observe people in closed bathroom stalls from hidden vantage points.  In a case involving Park Rangers observing men in bathrooms at Yosemite, the Ninth Circuit disagreed.  Smayda v. United States, 352 F.2d 251 (9th Cir. 1965), cert. denied, 382 U.S. 981 (1966).   However, Judge Browning’s dissent contended that the evidence had to be suppressed because defendants had a “reasonable expectation of partial privacy.” Id. at 260.

The UCLA report was noticed; for example, Look Magazine discussed it in a 1967 an article on “The sad ’gay’ life.”  Similarly, while the Court ultimately denied certiorari in Smayda in spite of the conflicting decisions, Sklansky shows that it was not a routine rejection.  Justice Douglas voted to take the case, and clerks for Clark and Warren also recommended a grant.  Not coincidentally, the Chief’s clerk had been editor in chief of the UCLA Law Review when the study was being prepared.

Sklansky does not claim to have proved the phrase “reasonable expectation of privacy” came directly from jurisprudence involving gay men.   However, he makes a compelling argument that it could have.  He also points out that if Katz was not revolutionary in other areas, it did change toilet surveillance: “courts in a range of jurisdictions read Katz to provide Fourth Amendment Protection at least in enclosed toilet stalls.  In doing so, they generally stressed precisely that aspect of the Katz opinions that scholars have treated as a red herring: Justice Harlan’s description of a telephone booth as a ‘temporarily private place’” Sklansky, supra, at 893.

This begs the question of why the Court would do such a thing.  The Court was not broadly sympathetic to the rights of gay men and lesbians.  Indeed, in Boutilier v. INS, 387 U.S. 118, 124 (1967), six justices were untroubled by a cruel statute excluding from the United States all immigrants “afflicted with homosexuality.”  But perhaps gay people were like ex-Communists, whose repression, however tolerable in principle, had to be controlled lest unchecked enforcement destroy the lives of innocent people.

This part of the story begins with the 1950s “Lavender Scare”, a purge of gay people from federal employment as security risks susceptible to blackmail; “as many as 5,000 may have lost their jobs.” Sklansky, supra, at 906.  “[T]he Lavender Scare quickly spread outward from investigations of government officials to embrace many other sectors of American life.” Id. at 907.  Police around the country invested more resources in discovery and prosecution of gay men.

Sklansky draws on several forms of evidence suggesting that establishment opinion thought criminal suppression of gay activity went too far.  In Kelly v. United States, 194 F.2d 150 (D.C. Cir. 1952), the court through Judge Prettyman reversed a conviction of solicitation for oral sodomy, explicitly reasoning that the charge was grave, yet easily falsifiable and could be preferred against ordinary, innocent citizens.  A single police officer’s claim to have been propositioned, the court held, was insufficient to prove guilt.   Another telling cultural artifact was Advise and Consent, a bestselling book, play and then hit film about Washington politics which included the tale of a Senator “driven to suicide by the politically motivated disclosure of a brief homosexual affair he had had during World War II.” Sklansky, supra, at 909.   In the end, criminal enforcement of consensual sodomy became disfavored in the Model Penal Code, for example, because corruption of the criminal justice system and the associated invasions of privacy outweighed the cost, not because on principle gay people were entitled to live their lives without being charged with crimes.

Of course, no one will be surprised that the Court is influenced by considerations that do not appear in their opinions.  But this tale of how legal change actually occurred will intrigue students of the Court and inspire further examination of the complicated interaction of doctrine and culture.

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Cite as: Gabriel "Jack" Chin, Exposing Criminal Procedure’s Hidden History, JOTWELL (December 3, 2009) (reviewing David Alan Sklansky, One Train May Hide Another: Katz, Stonewall, and the Secret Subtext of Criminal Procedure, 41 U.C. Davis L. Rev. 875 (2008)), http://crim.jotwell.com/exposing-criminal-procedures-hidden-history/.