An avenue to explore with the facts in Moore might be a due process violation. I am loathe to argue substantive due process, but this strikes me, arguably, as a PROCEDURAL due process claim: if Virginia wishes to authorize warrantless arrests for misdemeanors, they may, without offending the federal constitution. But since Virginia explicitly prohibits such arrests, the Commonwealth creates a procedural due process right which is enforceable under the federal constitution.It's an interesting thought but I haven't the time to explore it at the moment so I'll leave it to ya'll to comment upon (while I'm spending the day driving to Kentucky).
Probably wasn't argued below, so even if the idea has legs, it's likely waived now anyway. But what do you think, theoretically?
01 December 2005
Rick, whose letter I talked about in this week's LexCast, follows up with a further inquiry:
Author: Ken Lammers on 12/01/2005