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Wednesday, October 22, 2014

"The Strife of Riley: The Search-Incident Consequences of Making an Easy Case Simple"

The title of this post comes from this recent paper by Professor Leslie Shoebotham, the abstract of which states:

In Riley v. California, the U.S. Supreme Court held that the Fourth Amendment requires police officers to obtain a warrant before searching an arrestee’s cellular phone in a search incident to a lawful arrest. The lauded decision heralds the modernization of the Fourth Amendment to embrace privacy in the digital age. But Riley’s reasoning contains a flaw that only Justice Alito recognized. Evidence gathering — i.e., the need to look for evidence of the arrestee’s crime for use at trial — has long justified law enforcement’s authority to perform incident searches. Indeed, evidence-gathering searches incident to arrest were recognized as legitimate searches over a century before the adoption of the Fourth Amendment. The Riley Court ignored this pedigree, however. Despite the doctrine’s centuries-long history, Riley concluded that the authority to search incident to arrest was defined by a trilogy of cases — California v. Chimel, United States v. Robinson, and Arizona v. Gant — cases that date back only to 1969. Based on the Chimel line, Riley concluded that the justifications for performing an incident search were limited to officer safety and preventing the destruction of evidence. And the only evidence-gathering incident search that Riley recognized was based on Gant; an incident search of the passenger compartment of an arrestee’s vehicle that Riley justified solely on the “unique circumstances” involved in the automobile context, not the search incident doctrine’s historical evidence-gathering basis. Therein lies the concern. By ignoring the doctrine’s evidence-gathering history, Riley has reorganized the search-incident doctrine into a rigid Chimel-based rule that just so happens to have a vehicle exception.

This Article amplifies Justice Alito’s admonition that evidence gathering must be recognized as a legitimate justification for police to search incident to arrest. This Article addresses the consequences of Riley’s digital-age reboot of the search-incident doctrine, especially Riley’s limitation of Gant to the vehicle context — a restriction that was, ironically enough, not necessary for imposing a warrant requirement on cell phone searches. Rather than relying solely on Chimel’s two “concerns,” this Article argues that the search-incident doctrine has been supported—both before and after Chimel — by three justifications: officer safety, preservation of evidence, and importantly, the need to discover evidence of the crime of arrest. Without evidence gathering as an implicit justification in a properly limited search incident to arrest, Riley’s limitation of Gant calls into doubt law enforcement’s authority to perform an incident search of an arrestee’s reaching distance — a Chimel search — to look for evidence of the arrestee’s crime once the arrestee has been handcuffed and is adequately secured. All things considered, Riley represents much more than a commonsense warrant requirement for cell phone searches. Riley is the deceptively simple beginning of the end of evidence gathering as a justification in a properly limited search incident to arrest.

October 22, 2014 in Fourth Amendment | Permalink | Comments (0)

Saturday, October 18, 2014

"Cops Need a Warrant to Grab Your Cell Tower Data, Florida Court Rules"

WIRED's Kim Zetter:

The Florida Supreme Court ruled Thursday that obtaining cell phone location data to track a person’s location or movement in real time constitutes a Fourth Amendment search and therefore requires a court-ordered warrant.

 

The case specifically involves cell tower data for a convicted drug dealer that police obtained from a telecom without a warrant. But the way the ruling is written(.pdf), it would also cover the use of so-called “stingrays”—sophisticated technology law enforcement agencies use to locate and track people in the field without assistance from telecoms. Agencies around the country, including in Florida, have been using the technology to track suspects—sometimes without obtaining a court order, other times deliberately deceiving judges and defendants about their use of the devices to track suspects, telling judges the information came from “confidential” sources rather than disclose their use of stingrays. The new ruling would require them to obtain a warrant or stop using the devices.

 

[...]

 

The ruling constitutes the first time that a state court has reached this finding under the Fourth Amendment. It comes at a timely moment when federal courts of appeal in other jurisdictions are in the midst of taking up the question of cell tower data, Wessler told WIRED. Even if other jurisdictions rule differently, the Florida case makes it more likely that the issue will one day get to the U.S. Supreme Court.

October 18, 2014 in Fourth Amendment | Permalink | Comments (1)

Friday, October 17, 2014

NYPD police union argues for continuing stop-and-frisk appeal

Last year, U.S. District Court Judge Shira Scheindlin held the NYPD's stop-and-frisk policy unconstitutional and ordered reforms. The 2nd Cir. initially stayed Scheinlin's order, but it later vacated the stay.* Then-Mayor Bloomberg defended the policy and appealed, but now-Mayor de Blasio had other plans. He announced that the city would not defend the use of stop-and-frisk, and new NYPD Commissioner William Bratton thinks that's ok. But the police union isn't happy. Although it was not a party to the appeal, it filed a motion in federal court to take it up. The district court rejected its motion because it hadn't been timely. On Wednesday, the 2nd Cir. heard oral arguments in the union's appeal of that decision. 

* An earlier version of this post mistakenly said the 2nd Cir. affirmed Judge Scheinlin's ruling. 

October 17, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (1)

Thursday, October 16, 2014

"Stop and Frisk: Balancing Crime Control and Community Relations"

The title of this post comes from this recent report by The Urban Institute, the abstract of which states:

Police have been stopping, questioning, and frisking pedestrians for decades in an effort to protect themselves and the public from harm. However, pedestrians may view the stop and frisk experience as unjustified and perceive that they are subject to unfair and overly aggressive treatment. These feelings are most pronounced for those residing in high-crime areas that are targets for intensive stop and frisk activities. Because citizens’ views of the police contribute to their willingness to cooperate with and empower law enforcement, minimizing the negative effects of stop and frisk is crucial for overall police effectiveness and is especially important for improving relations with communities of color. This publication discusses the constitutionality and legal precedents of stop and frisk and the theory and practice behind these street stops. This background is followed by a discus¬sion of stop and frisk’s unintended consequences and a series of practical recommendations for the lawful and respectful use of pedestrian stops in the context of community policing.

October 16, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Monday, October 13, 2014

"Stop and Frisk, Judicial Independence, and the Ironies of Improper Appearances"

The title of this post comes from this recent paper by Professor Anil Kalhan, the abstract of which states:

On October 31, 2013 — just days before New York City’s mayoral election — three federal appellate judges, José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., hastily issued an unusual order staying two major decisions by U.S. District Judge Shira A. Scheindlin, which held that the New York City Police Department’s “stop and frisk” practices involved unconstitutional racial profiling. Acting sua sponte and providing no reasoned explanation, the three judges dismissed Judge Scheindlin from presiding over the stop and frisk cases altogether, summarily concluding that she had “compromised” the “appearance of [im]partiality” surrounding the litigation. Two weeks later, after their order had been widely criticized, the three judges abruptly issued a new opinion casting aside the ostensible basis for their earlier decree in favor of other legal grounds. To support their decision, the three judges relied entirely upon extrajudicial information that — by their own acknowledgment — they “read [in] the newspapers.”

In this Article, I closely examine this episode, which highlights a growing fluidity between adjudication and public discourse. With enormous amounts of news, opinion, and other information instantly available online, it has become trivially easy for judges to independently research matters outside the formal judicial record that they deem relevant to the cases before them. As a result, judges increasingly appear to render decisions based on extrajudicial sources, but without meaningful constraints or norms to guide and limit the practice. The panel’s actions illustrate the hazards in this apparent trend. Throughout the stop and frisk litigation, New York City officials relentlessly attacked Judge Scheindlin in the media for her alleged “bias” against law enforcement, but declined to actually seek her recusal. By validating and giving effect to that campaign — based entirely on what they had read in the newspapers — Judges Cabranes, Walker, and Parker openly permitted the norms of contemporary political discourse embodied in those news stories to displace the norms of reasoned judicial decision making, and unnecessarily inserted themselves into the mayoral election campaign.

Whatever the precise reasons for the conduct of Judges Cabranes, Walker, and Parker, both due process and the quality of their adjudication suffered as a result. And ironically, the three judges also thereby failed to satisfy the very standards to which they sought to hold Judge Scheindlin. The procedurally irregular and substantively deficient nature of their adjudication gave more than ample cause for reasonable observers to question the three judges’ own impartiality and propriety, and undermined the decisional independence that trial judges must enjoy to render fair and impartial decisions that are seen as legitimate across the full spectrum of the public’s diverse litigants and communities.

October 13, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Wednesday, October 8, 2014

Woman locks officer in basement during warrantless search, wins civil rights suit against police

As I recently noted, Baltimore PD has had its problems. And its image isn't improving. This local article explains the BPD's latest embarrassment:

In July 2009, [87-year-old Venus] Green's grandson, Tallie, was shot and wounded. Tallie said he was shot at a convenience store, but police insisted it happened inside Green's house and that the shooter was either Tallie or Green.

 

"Police kept questioning him. They wouldn't let the ambulance attendant treat him," Green said. "So, I got up and said, 'Sir, would you please let the attendants treat him? He's in pain,'" Green said.

 

Green said the officer said to her, "Oh, you did it, come on, let's go inside. I'll prove where that blood is. You did it."

 

Police wanted to go the basement, where Tallie lived, but Green refused on the basis that the police did not have a warrant.

 

"I said, 'No, you don't have a warrant. You don't go down in my house like that. He wasn't shot in here.'" Green said the officer replied, "I'm going to find that gun. I'm going to prove that you did it."

 

A struggle ensued between a male officer and Green [in which she suffered a separated shoulder].

 

"He dragged me, threw me across the chair, put handcuffs on me and just started calling me the 'b' name. He ridiculed me," Green said.

 

An officer went into the basement and Green locked him inside.

The city recently settled with Green because it doubted it could prevail in a case before a jury.

October 8, 2014 in Excessive Force, Fourth Amendment | Permalink | Comments (0)

"Two More Ways Not to Think About Privacy and the Fourth Amendment"

The title of this post comes from this essay by Professor David Alan Sklansky, the abstract of which states:

This brief essay challenges two increasingly common ideas about privacy and the Fourth Amendment. The first is that any protections needed against government infringements of privacy in the Information Age are best developed outside of the courts and outside of constitutional law. The second is that the various puzzles encountered when thinking about privacy and the Fourth Amendment can be solved or circumvented through some kind of invocation of the past: either a focus on the text of the Fourth Amendment, or the study of its history, or an effort to preserve the amount privacy that used to exist, either when the Fourth Amendment was adopted or at some later point.

October 8, 2014 in Fourth Amendment | Permalink | Comments (0)

Tuesday, October 7, 2014

"Negotiated Order: The Fourth Amendment, Telephone Surveillance, and Social Interactions, 1878-1968"

The title of this post comes from this paper by Professor Colin Agur, the abstract of which states:

In the US, the words ‘telephone surveillance’ bring to mind contemporary security concerns about smart phone tracking, the NSA warrantless wiretapping scandal, and the telecommunications provisions of the Patriot Act. Yet telephone surveillance is as old as telephony itself, dating back to the nearly simultaneous commercialization of the telephone and phonograph in 1878. First put to use by users, so they would have a written record of business meetings held over the phone, recorders were later put to use by police for surreptitious recording of criminal suspects’ conversations. This article examines telephone surveillance by American law enforcement agencies from the inception of telephone service to the passage of the Federal Wiretap Law in 1968, focusing on the challenges an advancing, proliferating, and shrinking technology posed for Fourth Amendment law. To highlight the technological, institutional and cultural interactions that have shaped Fourth Amendment jurisprudence, the article deploys Jack Balkin’s theory of cultural software and Anslem Strauss’s concept of a negotiated order, and brings together major cases, federal legislation, and evidence of government surveillance. The article shows how telephone surveillance brought the Fourth Amendment into prominence and inspired many of its most contentious debates; the article argues that during the first 90 years of telephone usage in America, laws on search and seizure developed not from constitutional consistency or logic, but as the result of a complex negotiation process involving new media and human agency.

October 7, 2014 in Fourth Amendment | Permalink | Comments (0)

Thursday, September 25, 2014

"Following the Script: Narratives of Suspicion in Terry Stops in Street Policing"

The title of this post comes from this recent paper by Professors Jeffrey Fagan and Amanda Geller. The abstract states:

Regulation of Terry stops of pedestrians by police requires articulation of the reasonable and individualized bases of suspicion that motivate their actions. Nearly five decades after Terry, courts have found it difficult to articulate the boundaries or parameters of reasonable suspicion. The behavior and appearances of individuals combine with the social and spatial contexts where police observe them to create an algebra of suspicion. Police can proceed to approach and temporarily detain a person at a threshold of suspicion that Courts have been unable and perhaps unwilling to articulate. The result has been sharp tensions within Fourth Amendment doctrine as to what is reasonable, why, and in what circumstances. The jurisprudence of suspicion is no clearer today than it was in the aftermath of Terry. This issue has taken center stage in both litigation and policy debates on the legality of the Stop and Frisk policing regime in New York. Under this regime, police record the bases of suspicion using both a menu of codified stop rationales with supplemental text narratives to record their descriptions of suspicious behaviors or circumstances that produced actionable suspicion.

Evidence from 4.4 million stops provide an empirical basis to assess the revealed preferences of police officers as to the bases for these Terry stops and identify narratives of suspicion that justify their actions beyond the idiosyncrasies of the individual case. First, we identify patterns of articulated suspicion. Next, we show the individual factors and social conditions that shape how those patterns are applied. We also show how patterns evolve over time and become clearer and more refined across a wide range of police stops. That refinement seems to follow the capacious interpretative room created by Fourth Amendment jurisprudence. Next, we assess the extent of constitutional compliance and examine the neighborhood and individual factors that predict noncompliance. The results suggest that the observed patterns of narratives have evolved into shared narratives or scripts of suspicion, and that these patterns are specific to suspect race and neighborhood factors. We conclude that scripts are expressions of the norms within the everyday organizational exercise of police discretion and that these scripts defeat the requirement of individualization inherent in caselaw governing Fourth Amendment stops.

September 25, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Wednesday, September 24, 2014

"Digital Security in the Expository Society: Spectacle, Surveillance, and Exhibition in the Neoliberal Age of Big Data"

The title of this post comes from this paper by Professor Bernard Harcourt, the abstract of which states:

In 1827, Nicolaus Heinrich Julius, a professor at the University of Berlin, identified an important architectural mutation in nineteenth-century society that reflected a deep disruption in our technologies of knowledge and a profound transformation in relations of power across society: Antiquity, Julius observed, had discovered the architectural form of the spectacle; but modern times had operated a fundamental shift from spectacle to surveillance. Michel Foucault would elaborate this insight in his 1973 Collège de France lectures on The Punitive Society, where he would declare: “[T]his is precisely what happens in the modern era: the reversal of the spectacle into surveillance…. We have here a completely different structure where men who are placed next to each other on a flat surface will be surveilled from above by someone who will become a kind of universal eye.” 

What should we make of those archetypes today? Do they help us better understand our neoliberal digital condition of data collection, mining, and profiling by corporate giants such as Google and Facebook, and the NSA? With neoliberalism and digitization — in the age of digital security — I suggest, we have gone beyond both spectacle and surveillance to a new form: one that is captured best by the idea of exposition or exhibition. Guy Debord spoke of “the society of the spectacle,” Foucault drew our attention instead to “the punitive society,” but it seems as if, today, we live in the expository society. This essay offers an architectural schema to better understand our contemporary distributions of power, one that focuses on the themed space of consumption. It then actualizes the metaphor by exploring one particular manifestation of a fully-digitized themed space, and asks how we have come to embrace and love these new forms of exhibition today.

September 24, 2014 in Fourth Amendment, Web/Tech | Permalink | Comments (0)

Monday, September 22, 2014

"Two More Ways Not to Think About Privacy and the Fourth Amendment"

The title of this post comes from this essay by Professor David Alan Sklansky, the abstract of which states:

This brief essay challenges two increasingly common ideas about privacy and the Fourth Amendment. The first is that any protections needed against government infringements of privacy in the Information Age are best developed outside of the courts and outside of constitutional law. The second is that the various puzzles encountered when thinking about privacy and the Fourth Amendment can be solved or circumvented through some kind of invocation of the past: either a focus on the text of the Fourth Amendment, or the study of its history, or an effort to preserve the amount privacy that used to exist, either when the Fourth Amendment was adopted or at some later point.

September 22, 2014 in Fourth Amendment | Permalink | Comments (0)

Tuesday, September 16, 2014

"An International Legal Framework for Surveillance"

The title of this post comes from this recent paper by Professor Ashley Deeks, the abstract of which states:

Edward Snowden’s leaks laid bare the scope and breadth of the electronic surveillance that the U.S. National Security Agency and its foreign counterparts conduct. Suddenly, foreign surveillance is understood as personal and pervasive, capturing the communications not only of foreign leaders but also of private citizens. Yet to the chagrin of many state leaders, academics, and foreign citizens, international law has had little to say about foreign surveillance. Until recently, no court, treaty body, or government had suggested that international law, including basic privacy protections in human rights treaties, applied to purely foreign intelligence collection. This is now changing: several U.N. bodies, judicial tribunals, U.S. corporations, and victims of foreign surveillance are pressuring states to bring that surveillance under tighter legal control.

This article tackles three key, interrelated puzzles associated with this sudden transformation. First, it explores why international law has had so little to say about how, when, and where governments may spy on other states’ nationals. Second, it draws on international relations theory to argue that the development of new international norms regarding surveillance is both likely and essential. Third, it identifies six process-driven norms that states can and should adopt to ensure meaningful privacy restrictions on international surveillance without unduly harming their legitimate national security interests. These norms, which include limits on the use of collected data, periodic reviews of surveillance authorizations, and active oversight by neutral bodies, will increase the transparency, accountability, and legitimacy of foreign surveillance.

This procedural approach challenges the limited emerging scholarship on surveillance, which urges states to apply existing — but vague and contested — substantive human rights norms to complicated, clandestine practices. In identifying and valuing new, objectively verifiable, neutral norms, the article offers a more viable and timely solution to the perils of foreign surveillance.

September 16, 2014 in First Amendment, Fourth Amendment, Web/Tech | Permalink | Comments (1)

Thursday, September 11, 2014

Poll finds only 35% of people believe government surveillance has "gone too far in restricting civil liberties"

Monday, September 8, 2014

"Two More Ways Not to Think About Privacy and the Fourth Amendment"

The title of this post comes from this recent essay by Professor David Alan Sklansky, the abstract of which states:

This brief essay challenges two increasingly common ideas about privacy and the Fourth Amendment. The first is that any protections needed against government infringements of privacy in the Information Age are best developed outside of the courts and outside of constitutional law. The second is that the various puzzles encountered when thinking about privacy and the Fourth Amendment can be solved or circumvented through some kind of invocation of the past: either a focus on the text of the Fourth Amendment, or the study of its history, or an effort to preserve the amount privacy that used to exist, either when the Fourth Amendment was adopted or at some later point.

September 8, 2014 in Fourth Amendment | Permalink | Comments (0)

Thursday, July 31, 2014

Florida family awake as police storm their house in search of neighbor

Hit & Run's Robby Soave notes yet another mistaken no-knock entry by police.

July 31, 2014 in Fourth Amendment | Permalink | Comments (0)

Monday, July 21, 2014

Federal judge holds warrant for individual emails permits law enforcement to seize entire email account

The New York Law Journal reports that a federal judge has found that the Fourth Amendment does not prohibit law enforcement officials from seizing and reviewing an email account after the execution of the initial search. The article states:

"In the case of electronic evidence, which typically consists of enormous amounts of undifferentiated information and documents, courts have recognized that a search for documents or files responsive to a warrant cannot possibly be accomplished during an on-site search," [U.S. District Magistrate for the Southern District of New York Gabrial Gorenstein] said.

 

So courts have developed a more flexible approach compared to on-site searches and "routinely" allow the seizure of entire hard drives, he said, and that's why the Federal Rules of Criminal Procedure were amended in 2009 [Rule 41(e)(2)(A)] to allow a warrant that "authorizes a later review of the media or information." Under the amended rule, the time for executing the warrant "refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review."

 

Gorenstein also said in June the U.S. Court of Appeals for the Second Circuit held in United States v. Ganias, 2014 WL 2722618, that "the creation of mirror images for off-site review is constitutionally permissible in most instances, even if wholesale removal of tangible papers would not be."

 

Gorenstein said he could "perceive no constitutionally significant difference between searches of hard drives and email accounts.

July 21, 2014 in Fourth Amendment | Permalink | Comments (0)

Update: NSA is still creepy

And the White House is complicit in its continued neglect of our civil liberities. Writing last week in WaPo, former State Department employee John Napier Tye explained that neither metadata nor the content of private communications by U.S. citizens is protected from NSA peeping. Indeed, as a result Spying1-e1345335685310of Executive Order 12333, many private communications remain exposed without even minimal Congressional oversight (such that it is, right Sen. Feinstein?). Here's the breakdown:

Bulk data collection that occurs inside the United States contains built-in protections for U.S. persons, defined as U.S. citizens, permanent residents and companies. Such collection must be authorized by statute and is subject to oversight from Congress and the Foreign Intelligence Surveillance Court. The statutes set a high bar for collecting the content of communications by U.S. persons. For example, Section 215 permits the bulk collection only of U.S. telephone metadata — lists of incoming and outgoing phone numbers — but not audio of the calls.

 

Executive Order 12333 contains no such protections for U.S. persons if the collection occurs outside U.S. borders. Issued by President Ronald Reagan in 1981 to authorize foreign intelligence investigations, 12333 is not a statute and has never been subject to meaningful oversight from Congress or any court... 

 

Unlike Section 215, the executive order authorizes collection of the content of communications, not just metadata, even for U.S. persons. Such persons cannot be individually targeted under 12333 without a court order. However, if the contents of a U.S. person’s communications are “incidentally” collected (an NSA term of art) in the course of a lawful overseas foreign intelligence investigation, then Section 2.3(c) of the executive order explicitly authorizes their retention. It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.

Perhaps you don't give two hoots about the NSA's activities abroad. You live in 'Merica, and your communications stay here. Well tighten your belt... As Tye explains:

A legal regime in which U.S. citizens’ data receives different levels of privacy and oversight, depending on whether it is collected inside or outside U.S. borders, may have made sense when most communications by U.S. persons stayed inside the United States. But today, U.S. communications increasingly travel across U.S. borders — or are stored beyond them. For example, the Google and Yahoo e-mail systems rely on networks of “mirror” servers located throughout the world. An e-mail from New York to New Jersey is likely to wind up on servers in Brazil, Japan and Britain. The same is true for most purely domestic communications.

So, forget privacy. 

For her part, Sen. Feinstein cares enough about the unchecked surveillance of US citizens to pretend to care. But only time will tell whether or not her concerns bear fruit, for the story-told creates considerable doubt as to her seriousness.

July 21, 2014 in Fourth Amendment | Permalink | Comments (1)

Tuesday, July 15, 2014

NSA whistleblower claims NSA's aim is 'total population control'

Via RT:

“At least 80 percent of fiber-optic cables globally go via the USThis is no accident and allows the US to view all communication coming in. At least 80 percent of all audio calls, not just metadata, are recorded and stored in the US. The NSA lies about what it stores.” Former NSA technical director William Binney

The article notes that Mr. Binney cannot prove these allegations because he didn't heist any documents. But, of course, he praises Edward Snowden and cites the documents released by Snowden as evidence that the NSA's surveillance efforts far exceed those previously claimed by the agency. 

July 15, 2014 in Fourth Amendment | Permalink | Comments (1)

Monday, July 14, 2014

Say what? You wanna search this phone? Get a warrant, y'all!

The Superior Court of Pennsylvania says the police may not search your cellphone without a warrant. Citing SCOTUS's recent decision in the consolidated cases of Riley v. California and U.S. v. Wurie, the court upheld the lower court's "suppression of photographs containing alleged child pornography that were obtained from defendant Adam Edward Stem’s phone during a warrantless search following his arrest for an unrelated incident." 

As you may recall, Chief Justice John Roberts wrote these cheeky lines for the majority in Riley and Wurie

The fact that technology now allows an individual to carry [private] information in his hands does not make the information any less worthy of the protection for which the founders fought. Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple—get a warrant.

July 14, 2014 in Fourth Amendment | Permalink | Comments (1)

Sunday, July 13, 2014

Risky business: photography edition

A professional photographer was placed in a terrorism investigation database after attempting to photograph Dorchester, MA's gas storage tank, which looks like this:

Kent1

The artwork is titled 'Rainbow Swash,' and it's reportedly "historic." It has a Wikipedia page, so that must be right.

In any case, there seems to be little justification for subjecting citizens to surveillance for activities as routine as photographing artwork. What's next? Does the government intend to monitor anybody caught photographing the Golden Gate Bridge? The Capitol? 

July 13, 2014 in Fourth Amendment | Permalink | Comments (0)

Wednesday, July 9, 2014

'The Hitchhiker's Guide to the Fourth Amendment: The Plight of Unreasonably Seized Passengers Under the Heightened Factual Nexus Approach to Exclusion'

The title of this post comes from this recent paper by Professor Nadia B. Soree, the abstract of which states:

Over thirty years ago, the Supreme Court, in Rakas v. Illinois, made it abundantly clear that “mere passengers” do not have “standing” to contest the searches of the cars in which they are riding. However, the Court offered a glimmer of hope to passengers in California v. Brendlin, by holding that passengers, like drivers, are seized when the police effectuate a traffic stop. Theoretically, then, unlawfully seized passengers can seek suppression of the evidence found in the stopped vehicles as fruit, not of the search of the vehicle, but of their unlawful detentions. Three circuits, however, have expressly adopted a heightened factual nexus test in determining whether passengers can successfully move to suppress evidence discovered in cars that are initially stopped lawfully, but whose occupants are then unlawfully detained, for example, when the duration of the stop exceeds the stop’s lawful scope. The Sixth, Ninth, and Tenth Circuits utilize a counterfactual hypothetical, typically to reach a finding that because the passenger is unable to demonstrate that the evidence would not have been found but-for her and only her detention, the passenger fails to establish the causal relationship between the constitutional violation and the discovery of evidence necessary to trigger the exclusionary rule. These courts force the passenger defendant to prove the following unlikely scenario: that had she asked the police for permission to leave, the police would have permitted her not only to leave, but to take the car (not belonging to her) as well. This Article surveys the relevant case law in the circuits that have considered and either adopted or rejected this approach and argues that the heightened factual nexus approach is inconsistent with the Court’s holdings in Brendlin and its other decisions defining seizures, particularly with respect to automobile passengers. Further, this Article posits that the heightened factual nexus approach creates a no-win situation for passenger defendants, where the very fact of their unlawful detention, necessary for standing to seek suppression, seems to preclude their success in doing so. Further, this Article argues that the subjective motivations of officers who prolong a seizure beyond its lawful scope should be taken into account when making exclusionary rule determinations, and that the Court’s decision in Whren v. United States, holding that when a traffic stop is predicated on objective probable cause, the subjective motivations of the officer are irrelevant in determining the reasonableness of the stop, does not preclude such scrutiny of officer motives in this context. Finally, the Article seeks to illustrate the danger to FourthAmendment rights and values engendered in the heightened factual nexus approach by examining data on traffic stops and motions to suppress arising from such stops.

July 9, 2014 in Fourth Amendment | Permalink | Comments (1)

Thursday, July 3, 2014

'Justice Scalia's Fourth Amendment Text, Context, Clarity, and Occasional Faint-Hearted Originalism'

The title of this post comes from this intriguing paper by Professor Timothy C. MacDonnell, the abstract of which states:

Since joining the United States Supreme Court in 1986, Justice Scalia has been one of the most prominent voices on the Fourth Amendment, having written twenty majority opinions, twelve concurrences and eight dissents on the topic. Justice Scalia’s Fourth Amendment opinions have had a significant effect on the Court’s jurisprudence relative to the Fourth Amendment. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision for how technology’s encroachment on privacy should be addressed; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia’s opinions, he has championed the originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from these commitments; particularly in the areas of the special needs doctrine and qualified immunity. The article asserts that Justice Scalia’s non-originalist approach in these spheres threatens the cohesiveness of his Fourth Amendment jurisprudence, and could, if not corrected, unbalance the Fourth Amendment in favor of law enforcement interests.

July 3, 2014 in Fourth Amendment | Permalink | Comments (1)

Thursday, June 19, 2014

'Police Ignorance of the Law Is No Excuse'

Cato Institute's Ilya Shapiro argues (I think correctly) that a police search violates the Fourth Amendment's reasonableness requirement when conducted based upon a police officer's incorrect assesment that the conduct justifying the search is illegal. Shapiro writes: 

To execute any search or seizure, a police officer must reasonably suspect that a crime has been or is being committed based on the facts available to him at the time he executes the search or seizure. Under this standard, searches can be lawful even if the officer is mistaken in his understanding of the facts before him, as long as his understanding led him to reasonably suspect criminal activity. But what if the officer is mistaken about whether a particular activity is actually criminal?

 

Nicholas Heien was driving with a broken taillight in North Carolina when he was pulled over by police who mistakenly believed that state law required two working taillights. Upon receiving consent to search the car—note: you don’t have to agree to such requests!—police found cocaine and charged Heien with drug trafficking. At his trial, Heien sought to suppress the evidence arising out of the search by arguing that the officer never had the reasonable suspicion necessary to pull his vehicle over because having one broken taillight is not illegal. The trial court ruled against him, but the appellate court found a Fourth Amendment violation and reversed. The North Carolina Supreme Court reversed in turn, by a 4-3 vote, holding that an officer’s understanding of the state’s taillight requirements could form the basis for reasonable suspicion because that understanding, while incorrect, was reasonable.

 

There is considerable disagreement among state and federal courts, so the U.S. Supreme Court took the case to resolve the issue. In a brief filed jointly with the National Association of Criminal Defense Lawyers, the ACLU, and the ACLU of North Carolina, Cato argues that the approach taken by the North Carolina Supreme is inconsistent with the logic that applies to factual mistakes committed by law enforcement and erodes civil liberties, all while undermining police authority and safety. The allowance for mistakes of fact in police evaluation of suspicious conduct is justified because facts can be ambiguous and unique to each circumstance, and officers must make quick evaluations based on their own observation and expertise. In contrast, the law is the same regardless of the particular circumstance to which it is applied, and can be ascertained long before the officer needs to enforce it. Officers have no specialized expertise in evaluating law, while ambiguities in the criminal code are typically resolved (by courts) in favor of criminal defendants, or struck down for vagueness. The burden placed on citizens by our accommodation of officers’ mistakes of fact is justified as a means of avoiding the social cost of unlawful conduct. Lawful conduct imposes no such cost, however, so excusing mistakes of law serves no social purpose.

 

The North Carolina ruling opens citizens up to searches based on all kinds of lawful conduct, as long as law enforcement can have a “reasonable” misapprehension of the law in a given area. To avoid the intrusion of police searches, people will need not only to avoid appearing to participate in criminal activity, but also to avoid appearing to participate in innocent activity which police could construe as criminal. The result is a system in which “ignorance of the law is no excuse” for citizens facing conviction, but police can use their own ignorance about the law to their advantage. Officers are therefore disincentivized from knowing the law, which undermines public confidence in their authority and encourages citizens to dispute it during police encounters—putting both parties in greater danger. The U.S. Supreme Court should make clear that law enforcement mistakes of law preclude lawful searches and seizures under the Fourth Amendment.

 

The Supreme Court will hear the case of Heien v. North Carolina this fall.

June 19, 2014 in Fourth Amendment, Search | Permalink | Comments (0)

Thursday, May 15, 2014

"Is the NSA Spying Upon Judges?"

The question posed by the title of this post comes from this Courthouse News Service article on one reporter's lawsuit to compel the NSA to disclose requested documents potentially revealing whether the scope of its surveillance extends into judges' chambers.  It reports:

The 7-page lawsuit tersely summarizes the controversies stirred up by NSA spying on foreign leaders and U.S. citizens, and recent judicial rulings on it.

 

[Jason] Leopold claims that, in a fine example of Orwellian doublespeak, the NSA refused a senator's inquiry on whether it spies upon members of Congress, by replying that it can't tell because it's not allowed to examine its own collection of metadata unless it thinks a specific phone number may be associated with a specific foreign terrorist group.

 

Leopold says in the lawsuit: "The vast scope of the NSA's surveillance program has raised questions about whether the agency has spied on the coordinate branches of the federal government. In response to an inquiry from Sen. Bernie Sanders about whether the NSA spies on members of Congress, NSA director Gen. Keith Alexander responded, 'Nothing NSA does can fairly be characterized as 'spying on members of Congress or other American elected officials[.]' But the response stated that the agency could make no guarantees that representatives or senators have not had their telephone metadata caught in broad government sweeps. Further, Alexander did not rule out the possibility that the NSA would, in the future, examine the telephone metadata of specific members of Congress or other American elected officials. According to Alexander, 'The NSA can query the metadata only based on phone numbers reasonably suspected to be associated with specific foreign terrorist groups' and '[f]or that reason, NSA cannot lawfully search to determine if any records NSA has received under the program have included metadata of the phone calls of any member of Congress, other American elected officials, or any other American without that predicate.' But according to Sen. Feinstein, such a query apparently does not require approval from the FISA court.

 

"Jerrold Nadler, an attorney and congressman on the House Judiciary Committee who attended a secret briefing, relayed that he was told that the contents of a phone call could be accessed 'simply based on an analyst deciding that.' "These revelations beg the question of whether the NSA has spied on the third branch of government, the judiciary.

 

"Little is known about whether the NSA has surveilled judges or their staff. With regard to spying on lawyers in the United States more generally, a recent report published by the National Lawyers Guild, 'Breach of Privilege,' details covert governing spying on the legal profession by federal agencies, including the NSA.

 

"The NSA, and the executive branch more generally, have a powerful incentive in intercepting communications involving judges or their staff. For example, the NSA might desire to learn about deliberations by this court in cases involving Guantanamo detainees, or in cases involving the Foreign Intelligence Surveillance Court. It is not beyond peradventure that the NSA would conclude that such deliberations are relevant to an investigation into foreign terrorism and that a federal judge's phone number could be 'associated' with a foreign terrorist organization, in the broadest sense of that word.

 

"The Department of Justice, one of the defendants in this case, has previously taken the position that it has the legal authority to mislead federal courts on issues involving national security. Islamic Shura Council of S. Cal. v. FBI, 779 F. Supp. 2d 1114, 1117 (C.D. Calif. 2011) ('The Government asserts that it had to mislead the Court regarding the Government's response to Plaintiffs' FOIA request to avoid compromising national security.') To an agency which has taken the position that federal judges cannot be trusted to avoid compromising national security, it would be a logical step to approve, or at least to consider, surveillance of judges who handle national security cases. " 

May 15, 2014 in Fourth Amendment | Permalink | Comments (0)

Tuesday, May 13, 2014

After breathalyzer and blood test, man suspected of drunk driving subjected to forced catheterization

In Indiana, 23-year-old William Clark alleges that local police violated his civil rights by subjecting him to forced catheterization after he failed to provide a urine sample on his own. He had been arrested on suspicion of driving drunk. As this local article reports:

PoliceLightsAccording to his lawsuit, Clark submitted to a blood test at the Dyer hospital that showed his blood alcohol was below the legal limit. It states [Officer Matthew] Djukic, however, became impatient with Clark's inability [sic] to provide a urine sample and made an effort to forcibly get the sample. The suit claims Djukic physically restrained Clark while hospital personnel inserted a catheter to extract the fluid.

Clark says the forced catheterization was "painful, degrading and humiliating." Among other things, he alleges that it amounted to excessive force, and he’s seeking more than $10 million in total damages.

Excessive force claims usually are analyzed under the Fourth Amendment, which protects citizens’ “persons, houses, papers, and effects” from “unreasonable searches and seizures” by law enforcement. A reasonable search or seizure generally is one supported by a warrant issued by a magistrate, although certain circumstances may justify waiving the requirement. Such is the case when the search is likely to produce evidence of criminality, and when the warrant requirement is impractical.

In Schmerberg v. California, the Supreme Court held that warrantless blood testing for alcohol by law enforcement squares with the Fourth Amendment’s prohibition on unreasonable searches. Because the body works to eliminate alcohol as soon as drinking stops, the application of the warrant requirement to drunk driving cases would prevent discovery of needed evidence. Blood testing also is “a highly effective” means of determining one’s level of intoxication.

But a prick of the finger is less invasive than catheterization. Blood testing usually requires only the exposure of one’s finger to momentary discomfort. Forced catheterization requires exposing one’s genitals to medical staff so that a tube may be inserted into the urethra, allowing for the collection of urine directly from the bladder. The procedure could last a minute or more. Because some people experience severe pain, local anesthetic is occasionally used. The propriety of the warrantless procedure is also specious given Grant’s submission to both a breathalyzer and a blood test—less invasive, but effective, alternatives to urinalysis.

As one federal judged argued, unlike blood testing, “the Fourth Amendment’s protection of human dignity and privacy might require a warrant at the very least before government officials could compel a citizen to undergo a catheterization.” Officer Djukic didn't have one, and the existence of exigent circumstances justifying forced catheterization is doubtful.

Still, even assuming the validity of Grant’s excessive force claim, Officer Djukic may nevertheless be immune from legal action if a reasonable officer wouldn’t have known the forced catheterization violated Grant’s rights.

(h/t Debra Cassens Weiss at the ABA Journal Blog)

May 13, 2014 in Excessive Force, Fourth Amendment, Search | Permalink | Comments (1)

Monday, May 12, 2014

"Too Much Information: How Not to Think About Privacy and the Fourth Amendment"

The title of this post comes from this upcoming paper by Professor David Alan Sklansky, the abstract of which states:

Fourth Amendment law today is overloaded with information: not just in the sense that the explosive growth of digitized information requires rethinking traditional rules of search and seizure, but also and more importantly in the sense that a preoccupation with data flows has led to the neglect of important dimensions of privacy. There is no doubt that the control of personal information is an important value and one uniquely threatened by the rise of social media, by the proliferation of technological surveillance, and by the arrival of Big Data. But the reduction of privacy to control over information has made it difficult to think sensibly about the distinctive threats posed by government searches, and it is partly to blame for the growing and unwarranted idea that the Fourth Amendment should be decoupled from privacy - an idea variously motivated by a belief that the concept of privacy is meaningless, by the fear that privacy is dead or dying, and by a sense that the main threats to privacy today are orthogonal to the chief dangers posed by law enforcement. Search and seizure law would be better served by an understanding of privacy rooted in respect for a zone of refuge and informed by privacy’s longstanding associations with enclothement, retreat, and personal sovereignty. This alternative conception of privacy - privacy as refuge - should also be attentive to the relational nature of privacy, the connection between privacy and civility, and the effects of privacy violations on the perpetrators as well as the victims.

CRL&P related posts:

May 12, 2014 in Fourth Amendment, Search, Seizure | Permalink | Comments (2)

Sunday, May 4, 2014

"School Surveillance and the Fourth Amendment"

The title of this post comes from this recent paper by Professor Jason Nance, the abstract of which states:

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school crime, and school disorder. These empirical findings are problematic on two related fronts. First, research suggests that students subjected to these intense surveillance conditions are deprived of quality educational experiences that other students enjoy. Second, the use of these measures perpetuates social inequalities and exacerbates the school-to-prison pipeline. 

Under the current legal doctrine, students have almost no legal recourse to address conditions creating prison-like environments in schools. This Article offers a reformulated legal framework under the Fourth Amendment that is rooted in the foundational Supreme Court cases evaluating students’ rights under the First, Fourth, and Fourteenth Amendments. The historical justification courts invoke to abridge students’ constitutional rights in schools, including their Fourth Amendment rights, is to promote the educational interests of the students. This justification no longer holds true when a school creates a prison-like environment that deteriorates the learning environment and harms students’ educational interests. This Article maintains that in these circumstances students’ Fourth Amendment rights should not be abridged, but strengthened.

May 4, 2014 in Fourth Amendment, Schools, Search, Seizure | Permalink | Comments (0)

Thursday, April 24, 2014

Teacher alleges strip search by school nurse violated Fourth Amendment

A teacher in Virginia has sued school officials for civil rights violations following an alleged strip search. According to her complaint, after the parent of one of her students reported a child with scabies, the assistant principle interrupted the teacher's class and escorted her from her classroom to the nurse's office where she was forced to remove everything but her undergarments. The nurse looked her over, but found nothing. The teacher then "returned to her class to continue teaching though very upset." According to the Courthouse News service:

[She] says the search violated her Fourth and Fourteenth Amendment rights to bodily privacy.

 

"Because a parent or guardian of the student made an unsupported allegation, with no rational connection to the plaintiff, the defendants responded with an intrusive search," she says in the lawsuit. "The search was unjustified at its inception, and the nature of the search as conducted - removing Ms. Anderson's clothes to inspect her body for mites - was not reasonable to the perceived or alleged problem in its scope, and unsupported by any objective facts."

 

Anderson, who says she suffers from severe mental anguish and embarrassment from the search, seeks $622,000 in damages.

April 24, 2014 in Fourth Amendment, Schools, Strip Searches | Permalink | Comments (0)

Friday, April 11, 2014

"Analyzing the SDNY's Amended 'Related Case' Rule: The Process for Challenging Nonrandom Case Assignment Remains Inadequate"

The title of this post comes from Professor Katherine MacFarlane's latest contribution to the stop-and-frisk debate, the abstract of which states:

Cartman-Cop1On October 31, 2013, the Second Circuit relied on a little-known Division of Business Rule to remove a well-respected and long-serving jurist from two high-profile stop-and-frisk cases. This highly unusual and unexpected move has stirred up an uproar of public support for the judge. But the Southern District of New York’s Division of Business Rule 13, the catalyst for a series of unprecedented procedural twists and turns, has been left unexamined. This essay refocuses the discussion on the overlooked rule at issue in Judge Scheindlin’s removal. First, it explains the consequences of Rule 13’s Division of Business label. Unlike local rules of civil procedure, Rule 13 is not subject to review by the Second Circuit, nor is it open to public comment. Creation and enforcement of a district court’s division of business rules are delegated to the court itself; unsurprisingly, decisions made pursuant to such rules are largely unreviewable. Next, this essay explains that precisely because it was a division of business rule, Rule 13 permitted case assignment decisions that might have raised red flags had they occurred pursuant to a local rule of civil procedure. This essay further argues that Rule 13 was only nominally a rule about relatedness. Instead, it functioned as a mechanism through which judges could pull certain cases onto their docket based on the cases’ subject matter. Rule 13 is the reason so many high-profile stop-and-frisk cases were sent to Judge Scheindlin, as opposed to being divvied up at random amongst all S.D.N.Y. judges. The essay also tracks how the stop-and-frisk cases were assigned, their odd procedural history on appeal, and recent hints of settlement. 

On December 18, 2013, the S.D.N.Y adopted amendments to Division of Business Rule 13, seemingly in reaction to the circumstances that caused Judge Scheindlin’s removal. This essay ends with an analysis of the amendments, concluding that they do not do enough to explain why a judge decides to deem a case related to an earlier-filed matter. The amendments also do not create meaningful motion practice through which parties can challenge a relatedness decision. Rather, the district’s case assignment procedures remain shrouded in secrecy, and, most disturbingly, are still easy to manipulate. If a judge wants to overcome random case assignment and engage in subject matter-specific case shopping, the S.D.N.Y.’s Division of Business rules will not stop it.

CRL&P related posts:

April 11, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Thursday, March 27, 2014

While on the topic of stop-and-frisk...

The Atlantic today has What Stop-and-Frisk Means to the Descendants of Slaves by Theodore R. Johnson, which begins:

Jehu Grant was a Rhode Island slave who escaped the bondage of his anglophile master to join the fight for American independence. He was in his eighth month of service in George Washington’s Continental Army when the military returned him to his owner. Years later, Grant obtained his freedom papers and, as an 80 year old indigent man who’d lost his eyesight, he applied for the military annuity authorized in the Pension Act of 1832. His appeal was denied because the War Department determined that a slave could not also be a soldier. Despite a commitment to America’s founding principles and a mortal fight for liberty, he was denied capital gain by the very nation in which he’d literally placed his blind trust.

 

Grant’s story is instructive: as a black man, I know America was not intended for me. This is not an indictment; it’s just reality. When the nation was forged from fruited plains and purple mountain majesties, it was crafted for a specific, privileged segment of the population. The founding fathers determined that the actual construction of the republic was a higher priority than ensuring that the rights it promised were available to everyone. Pragmatism ruled over idealism. Despite a national gospel that deified freedom and independence, the exclusion of black liberty was coded into the American DNA.

 

This is what Daniel Bergner ultimately details in his April Atlantic article, “Is Stop-and-Frisk Worth It?” The proactive policing program is ostensibly an honorable attempt to provide safe communities. But whether or not the program is effective (the rationale and statistics have so far been insubstantial), the discriminatory way it is carried out reflects the same pathologies that thwarted our first attempts at liberty. Stop-and-frisk isn’t racist on purpose. It was just born that way.

March 27, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Wednesday, March 26, 2014

"Stop and Frisk Didn't Make New York Safer"

The Atlantic's Donald Braman writes:

When former NYPD Commissioner Ray Kelly was asked what would happen if stop-and-frisk were curtailed, his response was characteristic of his tenure: “No question about it,” he said “violent crime will go up.” When homicides rose in Chicago, Chicagoans clamored for NYPD-style stop-and-frisk. The same premise is repeated by proponents of stop-and-frisk throughout Daniel Bergner’s illuminating Atlantic article: if you want to reduce crime, you have to be willing to suffer more aggressive policing tactics.

 

In reality, there’s no good reason to assume that these strategies work to reduce crime. David Greenberg has conducted the most comprehensive analysisof the relationship between the NYPD’s practice of stop-and-frisk and crime levels to date, and he finds “no evidence that misdemeanor arrests reduced levels of homicide, robbery, or aggravated assaults.”

 

No one thinks a police officer with a reasonable suspicion that a suspect has a gun should be barred from frisking the suspect, but that is not what stop-and-frisk has come to mean. The now-abandoned practice of requiring officers (often fresh out of the academy) to meet performance goals for citations and arrests seems wrong on several levels, but the most fundamental one is that it doesn’t reduce crime. A close second is the increased costs to families and communities. As Bruce WesternAmanda GellerChristopher Wildeman, andmany others have described, the collateral damage from broad criminalization is far-reaching, and concentrated on the populations that can least afford them.

 

So why are so many so enamored of these dubious tactics?

March 26, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

"The Inverse Relationship between the Constitutionality and Effectiveness of New York City 'Stop and Frisk'"

The title of this post comes from this recent contribution to the debate over NYC's stop-and-frisk program by Professor Jeffrey Bellin, the abstract of which states:  

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all of the strands – falling crime, reduced incarceration and aggressive policing – analyzing the hazy historical and empirical connections between them, and evaluating the legal implications of a crime-fighting policy that might “work” to reduce both crime and incarceration precisely because of the factors that render it unconstitutional.
CRL&P related posts:

March 26, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Tuesday, March 25, 2014

Dancers sue San Diego police following recent raid of area strip club

The San Diego Police Department faces a civil rights lawsuit filed on behalf of more than two dozen dancers who allege they were held against their will during a recent raid of a local strip club. This local article explains:

Twenty-five dancers at a San Diego strip club have filed a civil rights lawsuit against the San Diego Police Department, claiming that police officers held them against their will and took revealing pictures of their tattoos.

 


StripperTen San Diego police officers raided the Cheetahs Gentlemen’s Club in Kearny Mesa on March 6 to check 30 dancers’ permits and the business’ compliance to city codes, according to a claim filed by attorney Dan Gilleon.

 

During the check, the claim says the unidentified officers detained dancers against their will for about one hour without a warrant and without probable cause.

 

They ordered the women to pose in various positions and expose their body so the police could photograph their tattoos, all the while making “arrogant and demanding comments” and telling the women to “smile,” the claim states.

 

According to Gilleon, the SDPD said its officers were abiding by municipal code as they inspected the business and demanded identification.

 

“Any peace officer shall have free access to any police-regulated business during normal operating hours,” municipal code states.

 

But the civil rights lawsuit said the officers went too far, violating the dancers’ civil rights by making them disclose private information like Social Security numbers and subjecting them to demeaning searches and seizures.

 

Cheetahs manager Rich Buonantony said this isn’t the first time something like this has happened.

 

He claimed the women were helpless because if they said “no” to any part of the operation, their work permit and business licenses could be taken away.

 

The claim filed against the SDPD is for more than $10,000, though an exact dollar amount has not been released.

March 25, 2014 in Civil Rights Litigation, Fourth Amendment | Permalink | Comments (0)

Wednesday, March 12, 2014

"Probabilities, Perceptions, Consequences and 'Discrimination': One Puzzle About Controversial 'Stop and Frisk'"

The title of this post comes from this essay by Professor Kent Greenawalt, the abstract of which states:

The essay focuses on a particular issue about “stop and frisk” raised by the concern about concentration on young men in racial minorities. Although reference is made to the recent decision in Floyd v. City of New York, my focus is not on what has actually happened in New York and elsewhere, but whether, if there is substantial evidence that a higher percentage of members of a group commit certain kinds of crimes more than members of other groups, it is appropriate for police to stop partly on the basis of whether movements that are somewhat suspicious are made by members of that group, or whether that constitutes inappropriate discrimination.

Using an imagined private analogy and made up statistics about levels of criminal behavior and innocence among different groups, I contend that given the level of probability needed for a stop, i.e., “reasonable suspicion,” the likelihood that a group characteristic could figure importantly in the necessary probability is somewhat higher than when a more demanding standard such as “probable cause” is in play. In respect to a person’s gender and age, I suggest that use of that in applying a probability standard is really uncontroversial. But race is different. Both because of the risk of nonobjective appraisals, based partly on prejudices or implicit cultural assumptions, and because of the harmful negative message conveyed to members of minorities subject to stops, I conclude that police should not explicitly use race as a factor (unless they are looking for a person already identified by his race). I also believe this problem is serious enough so that such use should be viewed as a constitutional violation.

March 12, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (1)

Sunday, March 2, 2014

"The Due Process Exclusionary Rule"

The title of this post comes from this recent paper by Richard M. Re, the abstract of which states:

As the Supreme Court continues to cut back on and perhaps eliminate Fourth Amendment suppression, the exclusionary rule has entered a new period of crisis. The rule’s greatest vulnerability today stems from the consensus that it can be justified only based on policy arguments from deterrence or atextual values like judicial integrity. Instead of pursuing those prevailing theories, the exclusionary rule’s defenders should draw on arguments centered on constitutional text and historical change. Under that approach, the exclusionary rule would spring not from the Fourth Amendment itself, but rather from the historically evolving interrelationship between the Fourth Amendment and the Due Process Clauses. By the mid-twentieth century, changes in law and practice had recast the Fourth Amendmentas a source of pre-trial “process” analogous to in-trial procedural guarantees such as the Confrontation Clause. And when a criminal conviction is predicated on a violation of the Constitution’s criminal procedure requirements, including the Fourth Amendment, the conviction works an ongoing deprivation of liberty without due process. This approach has a number of advantages and implications. It provides a constitutional foundation for the harmless error doctrine, explains why the same exclusionary principles apply to different constitutional rights, clarifies the contested bounds of many exclusionary exceptions, and supplies a manageable framework for analyzing the remedial implications of newly emerging Fourth Amendment rules for digital surveillance technologies.

CRL&P related posts:

March 2, 2014 in Fourth Amendment | Permalink | Comments (0)

Thursday, February 13, 2014

Police unions pursue appeal of ordered changes to NYPD's stop-and-frisk policy

The dispute over the NYPD's stop-and-frisk policy appeared to have come to a conclusion last month when new NYC mayor Bill de Blasio announced that the city would not pursue its appeal of ordered changes to the policy. But, last Friday, unions representing much of the NYPD announced that it won't acquiesce so easily. The Associated Press reports:

Police unions told a federal appeals court Friday that they want the courts to decide whether a judge properly ordered changes to the New York Police Department's stop-and-frisk program even if the city no longer wants to challenge her rulings.

 

Unions representing most of the 35,000 members of the nation's largest police force told the 2nd U.S. Circuit Court of Appeals that they would like to continue the case despite the city's recent announcement that it wanted to drop its appeal and settle the case in the lower court.

 

Bar3n-1-webNew York City Mayor Bill de Blasio announced last month that the city would agree to the appointment of a monitor to oversee a process to reform stop-and-frisk tactics after U.S. District Judge Shira Scheindlin concluded last summer that the crime-reduction program was sometimes carried out in a discriminatory manner and that a monitor was necessary. De Blasio's administration also asked the 2nd Circuit to drop its appeal, which was made by his predecessor, Mayor Michael Bloomberg.

 

When the city made its request, the appeals court invited the unions to submit written arguments saying why they oppose the city's request to return the case to the lower court for an eventual settlement.

 

"The court entered findings that unfairly besmirch the reputations of the men and women of the NYPD, imposed facially overbroad remedies, and exposed the NYPD to an unwarranted and indefinite period of federal supervision," according to papers submitted to the appeals court on behalf of the Patrolmen's Benevolent Association, the Detectives Endowment Association, the Lieutenants Benevolent Association and the Captains' Endowment Association.

 

"The contemplated injunction would directly burden the officers' daily work and would impair the police unions' collective bargaining and other rights," lawyers for the unions said.

In separate papers, the Sergeants Benevolent Association said a dismissal of the city's appeal "would leave in force the two grossly flawed opinions" from Scheindlin.

 

It said its members were "among the most harshly criticized individual NYPD officers mentioned in the opinions" and "deserve the opportunity to defend and vindicate themselves through this appeal."

 

The unions also invited the 2nd Circuit to vacate Scheindlin's rulings as a condition of approval for any agreement reached between the city and plaintiffs in lawsuits challenging the stop-and-frisk procedures.

 

The unions said they have been injured by the rulings because "their daily work lives will be changed substantially if the remedies embodied in the district court's order — now to be embodied in a consent decree — are ever to be implemented."

 

Last year, the 2nd Circuit took the unusual step of removing Scheindlin from the case, saying she misapplied a related ruling that allowed her to accept it to begin with and had inappropriately spoken publicly about the case. Lawyers for the judge have challenged her removal.

 

Baher Azmy, legal director of the civil liberties group Center for Constitutional Rights, which had argued on behalf of those challenging the stop-and-frisk tactics, said of the unions: "Mere disagreement doesn't give them the right to intervene in a legal case."

 

He said the remedial process ordered by Scheindlin includes the police unions, giving them a voice in any reforms.

CRL&P related posts:

February 13, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Wednesday, February 12, 2014

The Difference between Invisible and Visible Surveillance in a Mass Surveillance World

The title of this post comes from this recent paper by Professor Steven Friedland arguing that mass surveillance programs justified on national security grounds require at least minimal transparency to ensure that individuals' privacy interests are not infringed. Here's the abstract:

Drone1In Tijuana, Mexico, one can now look in the night sky and possibly see a small, desk-size object flying over the city. The object, a small, unmanned, low-altitude aircraft commonly referred to as a drone, is capable of twenty-minute battery-operated flights. The drone sends live video to screens at police headquarters. Several drones are being used both day and night in Tijuana for crime interdiction, particularly against burglaries. In Great Britain, multiple cameras appear throughout the country, part of a network of closed-circuit televisions also utilized for crime interdiction. 

While the United States has some “red light” cameras at intersections, most of its government surveillance is invisible to the public. The National Security Agency (NSA), for example, has multiple surveillance programs. The NSA obtains data from private companies, taps telephone calls, and gathers a massive amount of phone metadata and telephone records. Biometric techniques, such as facial recognition software, are already employed in a sophisticated manner by private companies such as Facebook, and will be utilized by the United States through its Biometric Optical Surveillance System (BOSS). 

These collective activities lead inexorably to the realization that we are now living in a mass surveillance world. The forms of surveillance are multiplying, from drones to biometrics to signals analysis. As we learn from the French root of the word surveillance, surveiller, meaning to watch over, our movements are being watched, stored, connected and dissected every day in myriad ways. 

For most surveillance to succeed, unless it is designed primarily to deter observers instead of capturing information or behavior, it is almost axiomatic that an element of secrecy is needed. This is especially true when the governmental objective is national security. The problem is that the national security narrative cloaks surveillance in invisibility. In doing so, the cloak minimizes other factors in the calculus for determining the parameters of lawful surveillance, such as the harms incurred by individuals, the Constitution and the rule of law. As a recent report by the independent Privacy and Civil Liberties Oversight Board noted, “Despite widespread support for balancing openness and secrecy, there has been equally widespread consensus within and without the government that the system tilts too far in the direction of secrecy.” 

With invisibility, there generally is no narrative, and without such a narrative, a coherent voice — the core of our adversarial court system and democracy — cannot be raised concerning the harms of surveillance, such as whether it might violate the Fourth Amendment or various statutes. Consequently, it is more difficult to distinguish between legitimate and illegitimate powers, creating a slippery slope of one-sided justification. 

This paper will explore the distinctions between visible and invisible surveillance. Given the significance of these distinctions, I will argue that some visibility of surveillance — some transparency — is needed to ensure that proper privacy safeguards exist. In short, reframing the analysis to allow a narrative about the harms of indiscriminate mass surveillance will lead to the protection of liberty and a stronger rule of law.

CRL&P related posts:

February 12, 2014 in Fourth Amendment | Permalink | Comments (0)

Friday, January 31, 2014

NYC agrees to stop-and-frisk monitor, reforms

Yesterday, New York City Mayor Bill de Blasio (D) announced that the city will develope reforms to end the discriminatory use of stop-and-frisk. The mayor's announcement ends a lengthly legal saga that peaked last August when a district court judge ruled NYC's stop-and-frisk program unconstitutional and ordered reforms. The appellate court subsequently removed the district judge from the case, although she later was exhonerated of "judicial misconduct."  The appellate court also upheld her ruling.

The title of this post comes from this article, which begins:

The new mayor on Thursday delivered on his campaign promise to reform stop-and-frisk police tactics, agreeing to the appointment of a monitor and seeking to end a 14-year court fight that culminated in a judge's ruling that New York City had discriminated in carrying out the crime-reduction program.

 

StopAndFrisk-300_0_0"We believe these steps will make everyone safer," Mayor Bill de Blasio told a Brooklyn news conference shortly after city lawyers asked the 2nd U.S. Circuit Court of Appeals to return the case to the lower court "for the purpose of exploring a full resolution."

 

He added: "This will be one city where everyone rises together, where everyone's rights are protected."

 

He said the city agreed to the appointment of a monitor for three years to oversee the creation of reforms aimed at ending discrimination. The monitor will oversee a process in which those communities most affected by the stop-and-frisk tactics will provide input on the reforms.

 

"I can't wait to get started," said Vincent Warren, executive director of the Center for Constitutional Rights, which has represented plaintiffs in the lawsuits.

 

But he cautioned that the announcement did not mean discrimination would immediately end.

 

"Nobody standing here today is pretending this is mission accomplished. The problem hasn't been solved," he said. "We will have a collaborative reform process. We'll have a court monitor to ensure these reforms move forward."

 

Police Commissioner William Bratton said the policy as it had been carried out for years had left too many people who were frisked asking, "Why, why me?" while police officers being pressed to make ever more arrests even as crime rates fell dramatically were wondering, "Why more?"

 

He said the practice had torn the fabric between the police and the population. "We need to repair it," he said.

CRL&P related posts:

January 31, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Monday, January 27, 2014

Concreteness Drift and the Fourth Amendment

The title of this post comes from this paper by Professor Luke M. Milligan claiming that the Supreme Court's decision in Katz v. United States  has not "reorient[ed] interpretations of the Fourth Amendment" as many had anticipated. Here's the abstract: 

Katz v. United States was expected to reorient interpretations of the Fourth Amendment. This was not simply because Katz repealed the constitutional rules governing electronic eavesdropping established in Olmstead v. United States. Rather, it was because Katz called for doctrinal reform across a broad swath of cases-the entire catalogue of "search" issues-and it supplanted a mechanical rule with an open standard based on contextual and evolving societal expectations. Of course the hope of Katz would prove hollow. In forty-five years, Katz has had only a marginal impact on the Court's "search" decision-making. Put more directly, Katz has failed to direct judges to evaluate the term "search" based on contextual and evolving privacy norms. Explanations for Katz's failure come in many forms: some point to the resilience of the justices' personal juridical and policy preferences; others to the vagueness of the Katz opinions themselves; and still others to the inaccessibility of good empirical data regarding "reasonable expectations of privacy." I agree, more or less, with each of these explanations. Yet I believe that the prevailing explanations are somewhat incomplete. This essay seeks to offer a fuller picture of Katz's failure.

CRL&P related posts:

January 27, 2014 in Fourth Amendment, Search | Permalink | Comments (0)

Saturday, January 25, 2014

Across the Hudson: Taking the Stop and Frisk Debate Beyond New York City

In this forthcoming article, Professor David A. Harris contends that the actual effects of stop-and-frisk policies as a whole remain obscure because more data is needed from cities other than New York City to ascertain such effects.  The title of this post comes from the title of the article, the abstract of which states:

This article presents the results of a survey conducted by the author of 56 police departments across the country concerning the practice of data collection on stop and frisk practices of those police departments. These results are discussed against the backdrop of the debate on stop and frisk, examined in this article through a review of the legal basis for the practice and its use by police departments. The article then argues that greater data collection efforts in places other than New York City, where such efforts have been more robust than elsewhere, could broaden and deepen the debate on stop and frisk and better inform the larger debates over the impact of race on criminal justice, particularly with respect to the question of whether stop and frisk necessarily has a disparate impact on racial and ethnic minorities, as New York City data indicates.

CRL&P related posts:

January 25, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Friday, January 24, 2014

Excessive force claims under Fourth Amendment less protective when police use tasers?

In Shocking the Conscience: What Police Tasers and Weapon Technology Reveal about Excessive Force LawAaron Sussman argues that excessive force jurisprudence under the Fourth Amendment has tended towards providing less protection for citizens who make excessive force claims against 
Taserpolice who have used tasers during an arrest. For such cases, Sussman prescribes a re-commitment to "the balancing standard" articulated by the Supreme Court in Graham v. Conner, 490 U.S. 386 (1989); and, (2) a more "reality-based approach" to qualified immunity claims. 

The Fourth Amendment protects "[t]he right of the people to be secure in their persons... against unreasonable searches and seizures[.]" According to the Graham Court, excessive force claims fall under the Fourth Amendment's protection against "unreasonable...seizures." Id. at 395.  Whether the use of a taser is "unreasonable" requires balancing "the nature and quality of the intrusion on the individual's Fourth Amendment interests [on account of being tased] against the countervailing governmental interests at stake." Id. at 396. (Internal quotations omitted). This inquiry "depends not only on when [a seizure] is made, but also on how it is carried out." Importantly, the Graham Court wrote: 

The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene...With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.

 

As in other Fourth Amendment contexts, however, the "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional. Id. at 396-97. (Internal citations and quotations omitted).

Susmann claims courts have demonstrated little actual fidelity to the Graham balancing test. "Courts are likely to misjudge both the individual’s and the government’s interests in taser cases," he writes, "because these cases involve poorly understood technology and less serious observable injury." He later adds,

Courts do not serve the mandates of Graham when they fail to acquire a sufficient understanding of what tasers actually do or of what is still unknown about what they do. In addition to obtaining an understanding of the use of force before deciding whether its use was reasonable, courts should presume that it would be unreasonable for officers to deploy a weapon without understanding its effects. Similarly, neither Graham nor fundamental Fourth Amendment principles are served by discounting plaintiffs’ experience of pain, emotional distress, and fear. Doing so will effectively turn weapons designed to inflict severe pain while minimizing tissue damage into tools for avoiding legal liability, a role they may already play given developments in qualified immunity doctrine.

Qualified immunity protects individual police officers from lawsuits arising from their actions in furtherance of an unconstitutional law or policy. According to Sussman, "Qualified immunity substantially advantages defendant police officers. The doctrine helps courts justify grants of summary judgment and provides defendants two opportunities to escape liability, both entailing their own pro-defendant" biases.

Here's the abstract to Shocking the Conscience:

Since Graham v. Connor, the U.S. Supreme Court’s 1989 opinion establishing the Fourth Amendment standard for assessing whether a police officer’s use of force was unconstitutionally excessive, the law has slowly developed through a body of narrow and fact-specific precedents that guide judges’ excessive force and qualified immunity analyses. Recently, the Ninth Circuit — the source of many of the most influential excessive force opinions — decided three contentious cases regarding when an officer’s use of a taser is unconstitutional. On one view, these cases raise novel questions about how to apply the Fourth Amendment standard for nontraditional and technologically advanced uses of force. In this Comment, however, I argue that these cases predominantly present issues that pervade all excessive force jurisprudence and illuminate judicial trends and tendencies disadvantaging plaintiffs while advantaging defendant officers. In light of this understanding, my proposal is not for new rules or standards in taser cases. Rather, I suggest that courts, first, faithfully apply Graham’s standard of balancing the nature and quality of the Fourth Amendment intrusion against the government’s interest in the officer’s use of force and, second, employ a reality-based approach in deciding whether the officer is entitled to qualified immunity. For courts to do this, excessive force jurisprudence must evolve to match the development of police weapons technology. That evolution includes fully understanding and considering the distinctive effects and risks posed by tasers and presuming that a reasonable police officer would have done the same.

Relatedly on CRL&P: 

January 24, 2014 in 42 U.S.C. § 1983, Excessive Force, Fourth Amendment | Permalink | Comments (1)

Don’t Daze, Phase, or Lase Me, Bro! Fourth Amendment Excessive-Force Claims, Future Nonlethal Weapons, and Why Requiring an Injury Cannot Withstand a Constitutional or Practical Challenge

The title of this post comes from this paper by Professor Douglas McKechnie discussing excessive force under the Fourth Amendment. Here's the abstract:

This article suggests that requiring an injury in a Fourth Amendment excessive force claim is neither constitutional nor practical. The article has two components. First, it examines the requirement that an arrestee allege an injury to have a valid Fourth Amendment excessive force claim. The article explores the de minimis injury exception’s genesis in Fourth Amendment jurisprudence and discusses whether and how the circuit and district courts have implemented an injury requirement. The article demonstrates that an injury requirement in some circuits has created contradictory and confusing tests and exceptions. It then argues why an injury requirement is not supported by the Supreme Court’s seminal Fourth Amendment excessive force case. Second, the article discusses the technology of future non-lethal weapons as well as the physical and psychological impact on the weapons’ targets. The article posits that a de minimis injury exception to Fourth Amendment excessive force claims is impractical in light of the deceptively minimal harm these non-lethal weapons will cause.

January 24, 2014 in 42 U.S.C. § 1983, Excessive Force, Fourth Amendment | Permalink | Comments (1)

Friday, January 17, 2014

Drug search involving anal probe results in $1.6-million settlement

Yesterday, The Los Angeles Times had this eye-opening story on the settlement of a civil rights suit stemming from body cavity searches performed on a New Mexican man the police suspected of drug possession. The police were immodestly diligent in their pursuit of the alleged drugs, but their efforts yielded nothing. From the article, the plaintiff appears to have raised several intriguing CrimPro issues--e.g. whether the hospital at which the cavity search is performed must be within the jurisdiction in which the search warrant had been issued--but ones to which I cannot respond without beginning, "I presume..." So, here's a portion of The Times's article from which the title of this post comes: 

Police took [David] Eckert [Plaintiff] to a hospital. His federal civil rights lawsuit — which reached a partial conclusion this week — detailed what happened next.

 

First Eckert got an X-ray, which was inconclusive for drugs, according to his lawsuit. Then a doctor examined Eckert's anus with his finger, as did a second doctor. Neither found drugs.

 

Then the doctors gave a protesting Eckert an enema, he alleged, forcing him to have a bowel movement in front of medical staff. There were no drugs in his stool.

 

Doctors purportedly gave him two more enemas and got the same result.

 

They took another X-ray, which was negative this time. Then came the colonoscopy, which involves inserting a camera into the anus. It found nothing.

 

No drugs were found in Eckert's body.

 

Weeks later, he received a hospital bill for $4,539.

 

He sued the city of Deming, along with Hidalgo County and the hospital, Gila Regional Medical Center in Grant County.

 

In his complaint, Eckert said he was denied the opportunity to call his attorney; that the search warrant had expired by the time the doctors were examining him; that the procedures were carried out in a different county where the warrant wasn't valid; and that police mocked him during the procedures and intentionally pulled back his privacy curtain while he was exposed.

 

City and county officials denied some of the allegations in preliminary court filings. But last month, after a six-hour negotiating session, they settled. Eckert will get $1.6 million in damages.

January 17, 2014 in Civil Rights Litigation, Fourth Amendment, Search, Strip Searches | Permalink | Comments (3)

Thursday, January 9, 2014

Debate: The Constitutionality of Stop-and-Frisk in New York City

Professors David Rudovsky and Lawrence Rosenthal at the University of Pennsylvania Law Review Online. Here's the abstract:

Stop-and-friskStop-and-frisk, a crime prevention tactic that allows a police officer to stop a person based on “reasonable suspicion” of criminal activity and frisk based on reasonable suspicion that the person is armed and dangerous, has been a contentious police practice since first approved by the Supreme Court in 1968. In Floyd v. City of New York, the U.S. District Court for the Southern District of New York ruled that New York City’s stop-and-frisk practices violate both the Fourth and Fourteenth Amendments. Professors David Rudovsky and Lawrence Rosenthal debate the constitutionality of stop-and-frisk in New York City in light of Floyd and Judge Shira A. Scheindlin’s controversial removal from the case. Professor Rudovsky argues that Floyd shows the important role of data and statistical analysis in assessing the constitutionality of stop-and-frisk procedures. He contends that empirical evidence regarding both the factors for and outcomes of stops and frisks in New York demonstrates that either the legal standard is too permissive or police-stop documentation is not truthful. In response, Professor Rosenthal argues that Judge Scheindlin erred in failing to consider evidence of stop-and-frisk’s efficacy — evidence indicating that the NYPD’s stops are based on reasonable suspicion, a standard considerably less demanding than “preponderance of the evidence.” Additionally, Rosenthal argues that Judge Scheindlin should have considered differential offending by race or other potentially nondiscriminatory explanations for the higher stop rates of minorities.

CRL&P related posts:

January 9, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (1)

Monday, January 6, 2014

Atlantic's Cohen says Florida will 'never be able to rationalize' drug testing of welfare recipients

Today at The Atlantic contributing editor Andrew Cohen offers this worthwhile examination of the recent ruling striking down Florida's mandatory drug testing of welfare recipients, which CRL&P noted here. Cohen writes:

Last Tuesday, on New Year's Eve, a federal judge, a nominee of President George W. Bush, struck down for good a dubious Florida law that required state welfare recipients to submit to (and pay for) drug testing as a precondition of receiving benefits. The ruling was not a surprise—the 11th Circuit Court of Appeals presaged it in a February 2013 injunction ruling in this case—but it was nonetheless bracing: a good, old-fashioned screed against a very bad idea.

 

The 30-page order by U.S. District Judge Mary Stenson Scriven, in Orlando, is an easy read and comes down to an essential point: The government may not condition the receipt of a benefit upon the violation of a constitutional right. What is remarkable is not that every federal judge who has ever looked at this law has found it unconstitutional but that Florida officials—led by the indefatigable Governor Rick Scott—defended it as long as they have.

 

What was Florida's argument in defense of the statute, passed with overwhelming support by Republicans in May 2011? Both before and after the 11th Circuit ruling last year, the rationale remained the same. The mandatory drug tests were necessary (and legally justified) for all candidates under the "Temporary Assistance for Needy Families" program to: 1) ensure TANF participants’ job readiness; (2) ensure the TANF program meets its child-welfare and family-stability goals; and (3) ensure that public funds are used for their intended purposes and not to undermine public health.

 

Judge Scrivens rejected these arguments as factually and legally insufficient when she granted a preliminary injunction temporarily halting the law late in 2011. Then the 11th Circuit, one of the most conservative federal appeals courts in the nation, did, too.

January 6, 2014 in Fourth Amendment | Permalink | Comments (0)

Saturday, January 4, 2014

Katz on a Hot Tin Roof: The Reasonable Expectation of Privacy Doctrine is Rudderless in the Digital Age, Unless Congress Continually Resets the Privacy Bar

The title of this post comes from this recent paper by Professor Charles E. MacLean arguing that Congress ought to take action to ensure that the reasonable expectation of privacy doctrine does not erode as technology advances. Here's the abstract:

Technology evolves so quickly now, while courts plod along trying to force-fit new digital advancements into old precedents. Those old precedents never quite fit. But Congress, that need not await a case or controversy, and therefore can act much more quickly as or even before technological advancements emerge, can enliven the Katz reasonable expectation of privacy doctrine by resetting the privacy bar. After all, if Congress were to make a specific digital mining approach illegal, we all would have a reasonable expectation of privacy in that protected material, no matter how easy it might be for computer programmers, internet marketers, ISPs, or government agencies to access and store that material. If Congress is proactive, as exemplified by the EU approach, Courts do not have to analogize new technologies to pagers or telephone booths to determine whether the subject enjoys objective and subjective expectations of privacy in that new technology. Thus, the reasonable expectation of privacy doctrine is rudderless in the digital age – unless Congress continually steps in to reset that privacy bar.

This article (1) provides an abbreviated history of constitutional privacy protection and the Katz reasonable expectation of privacy doctrine, (2) assesses the impact of technology (and user agreements) on reasonable expectations of privacy, and (3) posits some legislative and court-driven alternatives to the Katz reasonable expectation of privacy doctrine in the digital age. Although there have been a number of commentators focusing on courts’ tenuous grasp on reasonable expectation of privacy in the digital age, the author is among the few suggesting the solution’s core lies almost entirely in the legislative branch, and does not predominantly lie in the courts.

January 4, 2014 in Fourth Amendment | Permalink | Comments (0)

Wednesday, January 1, 2014

Judge strikes down Florida's drug testing requirement for welfare recipients

The New York Times reports that a federal judge has ruled unconstitutional Florida's law requiring recipients of welfare benefits to submit to mandatory drug testing.

Aclu03_dlr_testing“The court finds there is no set of circumstances under which the warrantless, suspicionless drug testing at issue in this case could be constitutionally applied,” [the judge] wrote. The ruling made permanent an earlier, temporary ban by the judge.

 

Mr. Scott, who had argued that the drug testing was necessary to protect children and ensure that tax money was not going to illegal drugs, said that the state would appeal the ruling.

 

“Any illegal drug use in a family is harmful and even abusive to a child,” he said in a statement. “We should have a zero-tolerance policy for illegal drug use in families — especially those families who struggle to make ends meet and need welfare assistance to provide for their children.” 

Florida has argued that the law's drug testing requirement "is not a search within the meaning of the Fourth Amendment." But, according to the Supreme Court, that drug testing is a search is an "uncontested point"; and, here, the state proposes to condition the acceptance of assistance on the forfeiture of a constitutional right to be free from such searches. Their justification for doing so is dubious.
 
Furthermore, the Fourth Amendment requires articulable suspicion except when there are "special needs." But, this invasion of privacy on Floridians receiving assistance on this ground is equally questionable. In Chandler v. Miller, for example, the Supreme Court held that the"special needs" exception did not support a Georgia statute requiring lawmakers to affirm that they had  passed a drug test. The impact a coked-out (or drunk) lawmaker might have on children--and everybody else--is no less significant than the child's custodian. Moreover, the Supreme Court has said that the state acts as the child's custodian when they are in school. 
 
The Times also quotes the executive director of the conservative Foundation for Governmental Accountability, Tarren Bragdon, as saying: 

“I think what we are seeing is Florida pursuing a strategy of protecting kids by testing all applicants,” Mr. Bragdon said. “You’re going to see a shift in strategy of how to best protect kids in a constitutional way.”

 

For example, some states are now screening applicants and require drug tests only of those who appear to be drug users. “The decision is not that you can’t drug test applicants,” Mr. Bragdon said. “It’s that you can’t blanket drug test all of them.”

Very good, Mr. Bragdon. The Fourth Amendment prohibits suspicionless searches, which are inherently unreasonable. So, yes, if the state can articulate grounds for subjecting a specific citizen to drug testing, you can do so after you get a warrant. But, those articulable grounds cannot be based on someone's economic class.  

I also doubt that justifying this policy on the need to protect children makes good sense, especially given that Gov. Scott's proposed policy seeks to protect those children by  subjecting their parents to degradation in excess of what is already accomplished by his rhetoric.

Furthermore, I'm extremely skeptical that the state can establish non-capricious grounds for judging who "appear[s] to be a drug user," although former Sen. Bill Frist (R-TN) might disagree.

January 1, 2014 in Fourth Amendment | Permalink | Comments (1)

Saturday, December 28, 2013

NYPD's stop-and-frisk program dead?

In New York City's Stop-And-Frisk Appeals Are Still Alive—appearing on Brooklyn Law School's Jounral of Law & Policy website PracticumProfessor Katherine Macfarlane argues that it's not. According to Professor Macfarlane, the program could be preserved because the plaintiffs in the Ligon and Floyd cases lacked standing under precedent established by the Supreme Court in City of Los Angeles v. Lyons. Further, she claims that by ignoring Lyons the plaintiffs forwent a valuable opportunity to present a higher court with an opportunity to limit the restrictions of that precedent.

Here's the Introduction:

Will Judge Scheindlin’s decision that the NYPD’s stop-and-frisk practices are unconstitutional stand?  Everyone seems to think so.  On November 22, 2013, the Second Circuit denied the City of New York’s motion to vacate two decisions that ordered fundamental changes to the NYPD’s stop-and-frisk practices: the February 14, 2013 decision in Ligon v. City of New York, and the August 12, 2013 decision in Floyd v. City of New York.  The blow inflicted by the October 31, 2013 removal of Judge Scheindlin from Floyd and Ligon (due to a purported appearance of partiality) now seems irrelevant.  Mayor-elect Bill De Blasio, who takes office on January 1, 2014, has signaled that he will direct the City attorneys charged with appealing and overturning the stop-and-frisk orders to go no further.  The appeals will be set for argument after March 14, 2014, so if De Blasio follows through, the City’s appeal arguments will be mooted.  The Bloomberg administration will never get to defend its stop-and-frisk practices, Judge Scheindlin’s sweeping injunctions will stand, and the plaintiffs’ cause will be vindicated. But this outcome is by no means inevitable.  

 

The strongest argument in the City’s arsenal is one that it has yet to use: that the stop-and-frisk plaintiffs may lack standing to request the relief the court ordered.  The Second Circuit denied the City’s motions to vacate the orders granting vast injunctive relief “without prejudice,” so more motions may be filed. Moreover, though the City filed its opening briefs in Floyd and Ligon on December 10, 2013 and made no mention of the plaintiffs’ potential lack of standing, standing arguments are never waived. As a result, standing may keep the appeals alive, and stop-and-frisk practices in New York may remain untouched.

 

Is this the right outcome? Most stop-and-frisk opponents would object. But if City of Los Angeles v. Lyons is properly applied, the inevitable outcome is that the plaintiffs lack standing. In civil rights cases, the logic supporting a plaintiff-friendly outcome must be inscrutable because the rights at stake are so important. If federal court opinions that uphold or expand civil rights are based on faulty logic, not only will the opinions be attacked, the rights themselves will also come under fire. Because Lyons is still good law, the way to overcome it was to acknowledge that Lyons is binding, and then explain how to overcome its holding with a new theory of justiciability, which would then pave the way for a higher court to undo Lyons’ mistakes. Analytical shortcuts and misrepresentations, however, result in unjustifiable standing rulings, and hand the civil rights-unfriendly Supreme Court yet another case through which to further narrow civil rights remedies.

CRL&P related posts:

December 28, 2013 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (1)

Thursday, December 26, 2013

SDNY amends related-case rule to increase transparency over case assignments

The Southern District of New York has changed its rules for the assignment of cases to judicial dockets. According to The New York Times:

Following public debate over how a federal judge in Manhattan came to oversee a 2008 lawsuit challenging the city’s stop-and-frisk policy, the Federal District Court in Manhattan on Monday [Dec. 23] announced new rules to make the assignment of cases more random and transparent, and to offer a means for parties to object to assignments.

Previously, a party to a lawsuit could request a particular judge for a case in which the facts were "related" to those of a case previously heard by that judge.  

But the rule has its critics. Early this month, for example, CRL&P highlighted Professor Katherine Macfarlane's critique of "nonrandom case assignment" in The Danger of Nonrandom Case Assignment: How the Southern District of New York's 'Related Cases' Rule Shapped the Evolution of Stop-and-Frisk LawProfessor Macfarlane argues that the related-case rule allows judges to step from behind the bench to influence--indeed to make--policy. According to Macfarlane, Judge Scheindlin did exactly that when she heard a series of stop-and-frisk cases, the culmination of which was her ruling in Floyd v. City of New York in which she held that New York City's stop-and-frisk program was unconstitutional. Macfarlane concludes:

Like the Fifth Circuit judge who packed civil rights cases with desegregationist judges, Judge Scheindlin's positions may be guided by the right moral compass and ultimately vindicated, if not by the Supreme Court, then by history. But the manner in which the Souther District of New York's local rules have allowed one judge to select certain cases, and use them to shape the development of important Constitutional law, gives off such an appearance of impropriety that the procedures that allow for such practices must be eliminated. "[T]o perform its high function in the best way, justice must satisfy the appearance of justice." (citing In re Yagman, 796 F.2d 1165, 1178 (9 th Cir. 1986) (internal citations omitted).

Although the appellate court questioned Judge Scheindlin impartiality and removed her from the case, it upheld her ruling. A federal appeals panel later found no bias or misconduct by Judge Scheindlin

The district's new rules require parties using the related-case rule to justify their request in writing; and, they provide an opportunity for objections from disagreeing parties. The judge still has the authority to determine the propriety of the request. But, the judge's decision is subject to review by a three-judge panel, which can require random assignment.

CRL&P related posts:

December 26, 2013 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (2)

Monday, December 23, 2013

Former CIA director: whether NSA's surveillance program has been effective is irrelevant

There's John Yoo, but then there's this guy. As The Atlantic reports:

Michael Morell, the former acting director of the CIA and a member of President Obama's task force on surveillance, said in an interview on Sunday that a controversial telephone data-collection program conducted by the National Security Agency should be expanded to include emails. He also said the program, far from being unnecessary, could prevent the next 9/11.

 

Morell, seeking to correct any misperception that the presidential panel had called for a radical curtailment of NSA programs, said he is in favor of restarting a program that the NSA discontinued in 2011 that involved the collection of "metadata" for internet communications. That program only gets a brief mention in a footnote on page 97 of the task-force report, "Liberty and Security in A Changing World." "I would argue actually that the email data is probably more valuable than the telephony data," Morell told National Journal in a telephone interview. "You can bet that the last thing a smart terrorist is going to do right now is call someone in the United States."

 

Morell also said that while he agreed with the report's conclusion that the telephone data program, conducted under Section 215 of the Patriot Act, made "only a modest contribution to the nation's security" so far, it should be continued under the new safeguards recommended by the panel. "I would argue that what effectiveness we have seen to date is totally irrelevant to how effective it might be in the future," he said. "This program, 215, has the ability to stop the next 9/11 and if you added emails in there it would make it even more effective. Had it been in place in 2000 and 2001, I think that probably 9/11 would not have happened."

Holy crap! According to Morell, questioning whether a controversial government program has been effective is a completely futile exercise. After all, it might work someday.

How can you argue with that? You can't predict the future... Freedom haters!

December 23, 2013 in Fourth Amendment | Permalink | Comments (2)