Monday, January 27, 2014
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 This was not simply because Katz repealed the constitutional rules governing electronic eavesdropping established in Olmstead v. United States.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:
- 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 legislative response to mass police surveillance
- Policing the Immigration Police: ICE Prosecutorial Discretion and the Fourth Amendment
- Excessive force claims under Fourth Amendment less protective when police use tasers?
Friday, January 17, 2014
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.
Thursday, November 14, 2013
Northern Illinois University student has been arrested after police discovered an AR-15 rifle and a handgun in his dorm room; federal agents claim gun made by a 3-D printer could threaten security; Iowa gun store owner has been arrested after selling fully automatic machine gun; Milwaukee youth help city officials develop strategies to reduce gun violence; and a Florida woman pulls a gun on a journalist.
Sen. Rubio is scheduled to speak at a conference led by an anti-gay activist; Indiana woman has been denied access to her partner who is currently unconscious in the hospital; and five Senagalese women could face as much as five years in prison because they are lesbians.
Supreme Court considers whether law enforcement officials violate the Fourth Amendment when they search an apartment after one roomate denies them entry but another later permits it; and TSA's profiling program is ineffective.
Students decry lack of diversity at UCLA; and federal court hears oral argument on University of Texas's addmission policy that considers race.
Former Dolphin's offensive lineman Jonathan Martin might sue the team for harassment and discrimination.
ProPublica documents China's efforts to censor Twitter messages.
Wednesday, November 13, 2013
Woman alleges that local police violated her civil rights by snooping into her driving records.
Female students file a federal lawsuit against UConn alleging that it did not notify police of sexual assault reports as required by the university's policy.
Officer files civil rights suit alleging that San Francisco PD wrongfully arrested and discriminated against him.
ACLU claim alleges Arizona's 'show me your papers' law violates citizens' civil rights.
California school district to discuss the appropriateness of controversial Arab mascot.
Saturday, November 9, 2013
The title of this post comes from this article about a gun owner who was shot by sheriff's deputies when he stepped outside his cousin's home with his gun to investigate the noises he had heard. As the Courtroom News Service reported at the time, he filed a lawsuit against the sheriff's department:
He seeks punitive damages for excessive force, unwarranted use of deadly force, illegal search and entry, illegal seizure, racial discrimination, assault, battery, negligence and due process violations.
The sheriff's office asserted qualified immunity because of their belief that the man had been armed, but the judge rejected that claim.
The parties dispute whether the plaintiff actually had fired a shot after he stepped outside.
The article begins:
Sheriff's deputies must face claims related to their shooting of a man who heard possible intruders outside his home and stepped out with a gun to investigate, the 4th Circuit ruled.
The decision notes that George Cooper Sr. had been at the mobile home of his cousin, Paul Herring, on May 2, 2007, in rural Leland, N.C., after they spent the better part of the day repairing the floor of a nearby relative's home.
Before dinner, the men relaxed in Cooper's backyard, "talking about '[f]ootball games [and] old fights," Judge Robert King wrote for the three-judge appellate panel.
"Cooper may have enjoyed the mid-spring evening a little too much, smoking marijuana laced with cocaine, and chasing 'three or four beers' with a pint of Brandy," he added.
It was just after 11 p.m. when a neighbor called 911 to report that an altercation was occurring on Cooper's property. The dispatchers then related the call to Brunswick County Sheriff's deputies James Sheehan and Brian Carlisle.
Friday, November 8, 2013
Last month, CRL&P noted this story about a woman who had been forcibly strip-searched by four prison gaurds in LaSalle County, Illinois. The woman filed a lawsuit alleging that the forcible search violated her civil rights and Illinois law. She claimed that the guards did not have "reasonable belief" that she possessed contraband or weapons as required in Illinois; and, she alleged that three male guards participated in the search in violation of Illinois' law requiring strip-searches to be performed by guards of the same sex as the arrestee (a claim supported by surveillance video of the incident).
The woman's attorney has since filed a separate class-action suit against LaSalle County, the sheriff, and several sheriff's officers. According to The Chicago Tribune, "The class-action suit against LaSalle County...claims the four named plaintiffs...were either forcibly stripped or made to take their clothes off and then made to stay in cells without bathrooms for several hours. There, they were ordered to urinate and defecate in a drain on the floor of the cell, and in some of the cases not given toilet paper, the suit claims."
The Tribune also reports:
The new lawsuit, filed Thursday, claims that in addition to forcibly stripping three female arrestees and one man brought to the jail in a civil matter, the four were forced to stay in their cells for several hours without access to a bathroom.
The suit also claims one of the women was denied medication for diabetes and denied food she was capable of eating based on her medical condition.
"This abusive and humiliating treatment has been, and continues to be, a regular and common practice in the LaSalle County Jail as a means of illegally punishing arrestees," the lawsuit reads.
LaSalle County officials could not be reached Thursday night for comment but previously said that County Jail guards did nothing wrong in the incident involving Holmes.
Although not charged, the Cleveland PD continue to hold a man's gun pursuant to a city ordinance that permits police to seize an arrestee's guns until a court orders their return.
House Republicans say they're worried about ENDA's effect on small businesses, and gay-rights advocates turn to President Obama urging him to sign an workplace anti-discrimination order. Crotia prepares to vote on whether to allow gay-marriage.
Secure email system used by Snowden now will work to create a new system that is immune from government surveillance.
LAPD arrests 54 Walmart protesters as more than 500 workers and community leaders gathered to protest the store's low wages.
Mother files suit against local school district alleging it ignored reports that an assistant principle repeatedly snuck her daughter out of her home for sex.
November 8, 2013 in 42 U.S.C. § 1983, Civil Rights Litigation, First Amendment, Fourth Amendment, Freedom of Assembly, Gun Policy, Same-sex marriage, Schools, Search, Seizure | Permalink | Comments (0)
Wednesday, November 6, 2013
The title of this post comes from this upcoming article offering a model statute to guide state legislatures as they craft public policy balancing the safety interests compelling mass surveillance with issues of fundamental fairness. Here's the abstract:
Police departments have rapidly adopted mass surveillance technologies in an effort to fight crime and improve efficiency. I have previously described this phenomenon as the growth of the digitally efficient investigative state. This new technological order transforms traditional law enforcement by improving the efficiency of everyday policing activities and retaining copious amounts of data on both suspicious and unsuspicious behavior. Empirical evidence shows that police surveillance technologies are common and rapidly expanding in urban America. In the absence of legislative action, police departments have adopted widely disparate internal policies. The Supreme Court had the opportunity to reign in the scope of police surveillance in Jones v. United States. But the Court could not agree on whether technological improvements in efficiency transform an otherwise legal policing tactic into an unconstitutional search. Nor could the Court agree on whether a person may have a reasonable expectation to privacy in public movement. Post-Jones, the jurisprudence of police surveillance emerged as incoherent as ever.
I have previously argued that the judiciary should regulate police surveillance technologies. While it remains possible that the judiciary will someday make such a doctrinal shift, the immediate responsibility for regulating police surveillance technology falls on state legislatures. In this Article, I offer a model statute to regulate mass police surveillance. The model statute limits indiscriminate data collection. It also caps data retention for personally identifiable information. It excludes from criminal court any locational evidence obtained in violation of the statute. And it gives the state attorney general authority to bring suit against police departments that fail to abide by the law. This legislation would give discretion to police departments to craft data policies fitting their city’s unique needs, while also encouraging consistency and fairness.
Tuesday, November 5, 2013
Cyber-Surveillance Without Restraint? The Meaning and Social Value of the Probable Cause and Reasonable Suspicion Standards in Governmental Access to Third Party Electronic Records
The title of this post comes from this recent article arguing that the Fourth Amendment's probable cause and reasonable suspicion standards provide adequate protection against impermissible searches of third-party electronic records. Here's the abstract:
The United States Supreme Court has interpreted the Fourth Amendment to provide no privacy protection for records held by third parties. The American Bar Association recently sought to step into this breach by recommending standards to govern government access to third-party electronic records, such as those held by banks, Internet service providers, and medical care providers. Those standards retain requirements of probable cause and reasonable suspicion for government access respectively to highly protected and moderately protected records. Law enforcement has challenged these requirements as unduly burdensome, while some commentators have argued that probable cause and reasonable suspicion are so easy to prove in the third-party records context as to provide no effective privacy protection at all. This Article challenges both those views by defining with greater specificity than has yet been accomplished the meaning of two aspects of probable cause: the quantitative and the qualitative. The Article also addresses their social value by exploring cognitive science, philosophy on the nature of probability, and political incentives facing police and prosecutors. The Article also examines the evidentiary concept of “weight” and analyzes the implications of various technological processes for applying these justification requirements in the third-party electronic-records context. The Article ultimately concludes that retaining probable cause and reasonable suspicion protections—when coupled with additional protections provided by the standards—is neither oppressive of law enforcement nor underprotective of persons whose records are searched. Instead, the balance achieved by the standards in this area is just right.
Wednesday, October 30, 2013
Arizona Sheriff Joe Arpaio wants to employ 'one or two' drones in surveillance of Pheonix area.
NPR says Texas voter-ID law is unexpectedly making voting difficult for some women.
Support growing in the Senate for Employment Anti-Discrimination Act (ENDA) banning workplace discrimination on the basis of sexual orientation or gender identity, and an Ohio funeral home wants gay marriages recognized on death certificates.
Planned Parenthood says Iowa ban on telemedicine system used for dispensing abortion pills prevents rural access to needed medical services and asks judge to suspend the ban.
Egyptian military tribunal sentences a journalist to one year in prison for allegedly impersonating a military officer.
Tuesday, October 29, 2013
The title of this post comes from this article reporting that the Second U.S Circuit Court of Appeals may suspend the lower court's ruling that NYC's stop-and-frisk policy is unconstitutional. The article begins:
A federal judge's conclusion that New York City police officers sometimes violate the constitution when they stop and frisk people has made officers "passive and scared" to use the crime-fighting tactic, lawyers warned a federal appeals panel Tuesday as they asked that the ruling be suspended while it is appealed.
The three-judge 2nd U.S. Circuit Court of Appeals asked plenty of questions but did not immediately rule in a case that may be affected in a major way by next week's mayoral election. Democratic candidate Bill de Blasio, who is leading in polls, has sharply criticized and promised to reform the police department's stop-and-frisk technique, saying it unfairly targets minorities.
Attorney Celeste L. Koeleveld, arguing for the city, said officers are "hesitant, unfortunately" to use the tactic anymore.
Attorney Daniel Connolly, making legal points on behalf of former Mayor Rudolph Giuliani and former U.S. Attorney General Michael Mukasey, told judges that city officers were "defensive, passive and scared" about using the technique.
The title of this post comes from this paper examining the role of prosecutors in upholding the Fourth Amendment in immigration cases, and what remedies might be available to noncitizens when law enforcement violate its mandate during arrests. Here's the abstract:
A persistent puzzle in immigration law is how the removal adjudication system should respond to the increasing prevalence of violations of noncitizens’ constitutional rights by arresting officers. Scholarship in this area has focused on judicial suppression of unconstitutionally obtained evidence, typically by arguing that the Supreme Court should overrule its 1984 decision in INS v. Lopez-Mendoza not to enforce the exclusionary rule in civil immigration court. This Essay, in contrast, considers the role of Immigration and Customs Enforcement (ICE) attorneys in upholding the Fourth Amendment, taking as a launching point the recent exercise of prosecutorial discretion by ICE attorneys in Charlotte, North Carolina in cases arising from systemic unlawful policing.
Part I briefly describes how ICE's lawyers in the Charlotte immigration court have closed deportation cases against noncitizens arrested through unlawful policing by local officers in North Carolina, following a Department of Justice report on the discriminatory targeting of Latinos in Alamance County, North Carolina. The Essay then explores two potential bases for an ICE prosecutor’s decision to take remedial action when arresting officers violate the constitution. First, Part II examines ICE prosecutors’ constitutional responsibilities as executive branch attorneys in light of the Supreme Court’s decision to underenforce the Fourth Amendment in the context of immigration arrests. Part III then considers whether ICE’s remedial actions in North Carolina comport with internal agency guidelines for exercising prosecutorial discretion in deportation cases.