not know the Supreme Court's Fourth Amendment jurisprudence, or does he just not care? Or does he just think that lower court judges should ignore Supreme Court precedents?

Justice Fortunato wrote an article criticizing Judge Roberts' decision upholding the D.C. government's policy of arresting children for eating on the subway. Here's the criticism:

As statutes and constitutions are often marked by a lack of specificity, and thus allow for divergent interpretations by different judges, it is instructive to examine how Judge Roberts analyzed the Fourth Amendment declaration that people have a right "to be secure in their persons" and to be free from "unreasonable searches and seizures" when he was confronted with the claim of 12-year-old Ansche Hedgepeth that she had been unlawfully arrested and detained by undercover police officers in October of 2000.

Her crime? Eating food, specifically one French fry, at a Washington, D.C., subway stop, in contravention of a local ordinance.

For her gustatorial effrontery, police officers took her into custody, handcuffed her behind her back, searched her body and her backpack, removed her shoelaces, and then transported her in a windowless van to a facility for processing and fingerprinting. Throughout this ordeal, the child was sobbing. She was released to her distraught mother three hours later.

When Ansche's mother brought suit, the question presented to Judge Roberts and his colleagues on the U.S. Court of Appeals for the District of Columbia Circuit — which legal commentators maintain is the second most powerful court in the country — was whether Ansche's right to be free from unreasonable searches and seizures had been violated.

Judge Roberts noted the right and responsibility of courts to "inquire into the reasonableness of the manner in which an arrest is conducted," before he went on to rule that the police officers had done nothing unconstitutional in dragooning little Ansche.

We may fairly ask what Judge Roberts thought was reasonable about the scope and nature of the search and temporary incarceration of this child? Did he think that the girl was concealing contraband ketchup? Or an unpatriotic bottle of French wine to quaff with her fried spud? Perhaps there was something about her and her overt display of a French fry that led the officers to conclude that she had a hand grenade in her knapsack.

This outrageous decision is instructive. First, it teaches that a Harvard law degree and a professional lifetime representing corporate clients and the U.S. government are no guarantee that one comprehends the Bill of Rights. . . .

The view that it's generally unreasonable to arrest people for very minor criminal offenses — eating food in the subway, driving without a seat belt, and the like — is perfectly plausible. But it was squarely rejected by the Supreme Court in Atwater v. City of Lago Vista three years before Judge Roberts' decision (as Judge Roberts' opinion expressly discussed). Likewise, one could argue that it was unreasonable for the police to search the backpack, or Ansche Hedgepeth's person — but the Supreme Court has consistently held that the police have the right to search people and their nearby belongings incident to an arrest.

Hedgepeth did argue that Atwater was distinguishable, but I think Judge Roberts was quite right in explaining why her arguments were unpersuasive; the Court's ruling in Atwater did quite clearly control this case. And in any event, Justice Fortunato's op-ed never mentioned Atwater, or explained why Justice Fortunato thought the case didn't control. It left readers with the false impression that Judge Roberts was deciding the matter based on his own views of the Fourth Amendment, with no acknowledgment that he might have felt bound by the Supreme Court's decision.

It seems to me there's nothing outrageous about a lower court judge following the Supreme Court's precedents in this context. But there is something quite troubling about a state judge's publicly criticizing a person, while not revealing to his readers that person's s strongest — and quite likely dispositive — defense.

Thanks to How Appealing for the pointer to Justice Fortunato's op-ed.

UPDATE: I originally mischaracterized Justice Fortunato as a justice of the state Supreme Court; he's a judge on the state Superior Court -- i.e., the trial-level court -- though the honorific that such judges are given in Rhode Island is "Justice." Many thanks to Charles Lovell for the correction. The substance of my criticism remains entirely unaffected.