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Michael C. Dorf

Are Hunters a Constitutionally-Protected Group? A New York Judge Says Yes


Thursday, September 9, 2010


Last week, New York State Judge Frank LaBuda declared a mistrial after determining that systematic discrimination had infected the jury that was chosen in the assault case being tried in his courtroom against defendant Robert Robar. That ruling, in itself, is not particularly novel or surprising: Supreme Court precedent requires judges to watch for and remedy discrimination by attorneys in jury selection. More interesting was the group that Judge LaBuda found was being victimized by such discrimination: hunters.

The judge issued his ruling orally from the bench, although he apparently plans to write a formal opinion explaining his reasoning. It is not difficult to anticipate what that opinion will say. Indeed, as I explain in this column, perhaps the most surprising aspect of the decision is that--given existing precedents--it may actually be correct.

Peremptory Challenges --and the Problems they Raise

To place the ruling in People v. Robar in context, it is useful to start with some basics about jury selection.

In New York State courts, as in the federal courts and the courts of other states, jury selection occurs in stages. Potential jurors--who are chosen from lists of registered voters, databases of licensed drivers, and other sources--are called to jury duty, where they are randomly assigned to individual jury pools for various trials. Depending on the jurisdiction and local practice, the judge, the lawyers, or both the judge and the lawyers next ask questions of members of the jury pool. These questions are designed to elicit disqualifying characteristics, such as bias. For example, a potential juror who is married to the defendant's sister will obviously be disqualified. So too will a juror who says she cannot promise to base her verdict vote solely on the evidence presented in court (although judges are alert to people who dishonestly say such things in the hope of escaping prolonged jury duty).

Lawyers may exercise an unlimited number of such challenges "for cause." In addition, each side has a finite quota of "peremptory challenges," which provide opportunities to remove a prospective juror even though he or she lacks any disqualifying characteristics. Such challenges can be exercised without the attorney at issue providing any reason at all for the challenge. In a criminal case in New York, each side is allotted between twelve and twenty-two peremptory challenges that can be used to exclude jurors and alternates. (The number of challenges depends on the seriousness of the charge.)

Critics have long objected to peremptory challenges on the ground that they license the worst forms of stereotyping and guesswork. In addition, peremptory challenges prolong jury selection and require citizens to perform longer and/or more frequent jury duty, because they require the empanelling of a substantially larger pool of prospective jurors than would be necessary with challenges available only for cause.

Yet peremptory challenges persist. As an experienced trial lawyer explained to me some years ago, when we jointly served on a commission charged with proposing reforms to jury selection, peremptory challenges are the one chance that a lawyer has "to overrule the judge." Thus, both defense attorneys and prosecutors resist calls to abandon peremptory challenges.

Constitutional Limits on Peremptory Challenges

Peremptory challenges are not completely unregulated, however. In the 1986 case of Batson v. Kentucky, the U.S. Supreme Court held that if a state gives parties the power to dismiss prospective jurors peremptorily, then the prosecutor must not exercise that power in a racially-discriminatory manner.

In Batson itself, the Court threw out a conviction against an African-American defendant after the prosecutor had used his peremptory challenges to dismiss all of the African-American members of the jury pool, resulting in an all-white jury. Under Batson, a prosecutor need not have a particularly good reason for exercising her peremptory challenges, but she cannot have a particularly bad reason for doing so: race.

Supreme Court cases following Batson expanded its prohibition in two important ways. First, the Court widened the group of persons subject to the Batson rule: Not just prosecutors, but also defense attorneys and lawyers in civil cases are forbidden from using their peremptory challenges in an illicit manner. These rulings were controversial because the constitutional obligation of equal protection only applies to government actors, not to private parties. Nonetheless, the Court thought that lawyers who exercise peremptory challenges are, for that purpose at least, "state actors," in that they are using government power (participating in the process of jury selection) in a government forum. Thus, the Court held that such lawyers are subject to constitutional limits.

Second, following Batson the Supreme Court added new grounds of forbidden discrimination in the exercise of peremptory challenges. The Court has forbidden peremptory challenges based on race, ethnicity, and sex. Some lower courts have added religion to the list. More broadly, lower courts and commentators have seen in the evolving jurisprudence a general principle forbidding the use of peremptory challenges on any grounds that trigger heightened judicial scrutiny. In constitutional jargon, these "suspect" and "semi-suspect" classifications mark out a small number of especially pernicious grounds of government decision-making.

What does that leave as constitutionally-acceptable grounds for peremptory challenges? Almost everything else. For example, in a tort suit by one neighbor against another, where the plaintiff claims he was bitten by the defendant's dog, defense counsel might use her peremptories to exclude postal workers, based on the hypothesis that they are inclined to be hostile to dogs. Is this a stereotype? Sure, but because postal workers are not a suspect or semi-suspect class--we have no long history of discrimination against postal workers, after all--this is the sort of stereotype to which trial lawyers may give free rein.

Hunters and the Possible New York Twist on Batson

Against this backdrop, the Robar decision looks curious. Robar was charged with assault for shooting another hunter who had mistakenly wandered onto the property on which Robar was hunting. Robar's own lawyer used her peremptories to exclude licensed hunters from the jury. Presumably, she acted on the theory that licensed hunters would be subtly biased against a defendant who shot at a hunter, even though the defendant is a hunter himself. This theory, however, looks very much like the theory underlying the permissible use of peremptory challenges against postal workers in a dog-bite case. So why did Judge LaBuda find the pattern of challenges unconstitutional?

The key to Judge LaBuda's bench ruling comes from a decision of New York's highest court. In its 2008 opinion in People v. Luciano, the New York Court of Appeals noted that under the state constitutional version of Batson, courts should forbid peremptory challenges based on "race, gender or any other status that implicates equal protection concerns." Judge LaBuda treated that "any other status" language as forbidding the use of peremptory challenges that systematically exclude any class of people, even if the excluded class is not suspect or semi-suspect under equal protection doctrine.

It is possible that the quoted language from the Luciano case was meant to broaden the scope of the New York version of Batson in just the way that Judge LaBuda thought it was. But that seems unlikely. Immediately following that language, the Court of Appeals cited two cases involving peremptory challenges based on race and sex, which are, a suspect and a semi-suspect class, respectively. And the New York Court of Appeals has never applied the federal or state version of Batson to invalidate peremptories that are exercised on the basis of non-suspect classifications. Hence, the Luciano language is probably best read as referring to statuses "that implicate equal protection concerns" only in the sense that they trigger heightened judicial scrutiny.

The Second Amendment Twist

Does that mean that Judge LaBuda erred in declaring a mistrial? Not necessarily. One other equal protection doctrine could support that result.

Under another line of Supreme Court precedent, laws that draw distinctions based on "fundamental rights" trigger heightened judicial scrutiny, in the same way that laws discriminating on illicit grounds do. And according to two recent Supreme Court cases, hunters could be described as a group that is defined by its members' exercise of a fundamental right to keep and bear arms.

Although the Supreme Court's 2008 decision in District of Columbia v. Hellermostly focused on the use of firearms for self-defense, the language and logic of the opinion implied that the Second Amendment also protects possession and use of firearms for hunting. Then, this year in McDonald v. City of Chicago, the Court applied the Second Amendment to the states, precisely because it deemed the rights it protects to be "fundamental."

Taken together, Heller and McDonald can be understood to treat hunting as a fundamental right. Accordingly, the exclusion of hunters from a jury could be said to "implicate equal protection concerns," under the New York version of Batson. Thus, Judge LaBuda could be mistaken in his statement that any discrete group is protected by the state version of Batson but correct in the bottom-line result he reached: Hunters cannot be systematically excluded from a jury.

Revisiting Peremptories: Protecting Hunters From Such Challenges is Silly

Yet viewed in larger perspective, that result makes little sense. Consider another point made by Judge LaBuda in his oral ruling in Robar: The exclusion of hunters from Robar's jury, the judge said, deprives Robar of a trial by his peers. Yet it was Robar's own attorney who excluded the hunters.

The real problem here is the peremptory challenge itself. If hunters cannot be fair to someone charged with shooting another hunter, then they should be excused for cause from a case like Robar. But if they can be fair--and if questioning reveals no reason why any particular hunter-juror cannot be fair--then there is simply no good reason to keep them off the jury.

Even when a peremptory challenge is not used to work a systematic exclusion of some suspect or quasi-suspect class, the whole point of such a challenge is its arbitrariness. Why should a lawyer's hunch or stereotype be sufficient grounds for excusing a prospective juror who, after questioning, has been shown to be free of bias?

The fact that peremptory challenges give lawyers an opportunity to "overrule the judge" is simply not a sufficient basis for retaining this wasteful license to arbitrariness. Lawyers should find some other way of venting their anger and frustration with judges who rule against them.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He blogs at His next book, The Oxford Introductions to U.S. Law: Constitutional Law (with Trevor Morrison), will be published in September.

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