The term "due process" is hard to define exactly, but one thing it doesn't mean is "we do this all the time," a lesson that a judge in Tennessee learned the hard way. Judge Durwood Moore was censured last year, and now faces a lawsuit, for what was allegedly a routine practice of forcing courtroom spectators (not lawyers or defendants, but spectators) to undergo drug tests if he suspected them of being under the influence.
Benjamin Marchant alleges that in January 2009, he had driven a friend to the courthouse and was sitting in the courtroom waiting when Moore suddenly ordered officers to seize him. He alleges he was taken into custody and required to provide a urine sample for testing. He was let go after the test came back negative, but, surprisingly, was not especially pleased by this treatment and filed an ethics complaint against the judge.
Moore was censured last May after reaching an agreement with the panel that investigated the case for the state's Administrative Office of the Courts. The letter of censure relates the facts above and states that the seizure and the testing were illegal, unconstitutional, and, most horrifying of all, violated at least three of the Canons of Judicial Conduct. The panel described the public censure as "the highest degree of judicial discipline authorized by law short of the Court seeking a judgment recommending your removal as a judge from office." It concludes by reminding Moore that he should accord all citizens appearing in his court their constitutional rights, so that's nice too.
Although the pleadings related to the censure don't seem to be available, Marchant alleges that Moore provided a written statement to the panel admitting he "routinely drug screens 'spectators' in his courtroom if he 'thinks' they may be under the influence of drugs or alcohol." He alleges that Moore acted "on a hunch" but without probable cause. (Is a "hunch" not probable cause these days? When did the terrorists win?) Marchant is also suing the officers who took him into custody when the judge ordered it, alleging that "[o]nly a plainly incompetent officer or a knowing participant would have taken place in such unlawful and unconstitutional procedures."
Interestingly, on the same day that the panel imposed the "highest degree of judicial discipline authorized by law" for this incident, it did the same for another incident in which, using profanity, Moore allegedly threatened an attorney with contempt if he didn't show up in person to present a certain document. I guess if all your censures are imposed on the same day, they only count as one.