Constitutional Law Prof Blog

Ninth Circuit Dismisses Challenge to TSP, Request to Destroy Records

The Ninth Circuit today dismissed a case first challenging the Bush Administration's warrantless wiretap program (the Terrorist Surveillance Program, or TSP) and later requesting destruction of records retained from that program.  The case, In re National Security Agency Telecommunications Records Litigation, was brought by the Center for Constitutional Rights.  CCR's information page, including links to earlier filings and rulings, is here.

The Ninth Circuit dismissed the case in a very brief, unpublished decision that relied on the Supreme Court's ruling in Clapper v. Amnesty International.  Recall that the Court in that case dismissed a challenge to the government's surveillance program under the FISA Amendments Act of 2008.  The Court ruled that the plaintiffs lacked standing, because they could not demonstrate that they were injured by the Act.

So too, here, the Ninth Circuit said.  The court ruled that CCR had the same "highly attenuated chain" of alleged injury with one difference: the Amnesty International plaintiffs challenged a program with judicial oversight (by way of the FISC), whereas the CCR case challenged a program with no judicial oversight.  Still, the Ninth Circuit said that "CCR's asserted injury relies on a different uncertainty not present in Amnesty Int'l, namely, that the government retained 'records' from any past surveillance it conducted under the now-defunct TSP."

The ruling puts an end to CCR's efforts to destroy any records that the government retained under the TSP.  Indeed, it puts an end to efforts to determine whether the government even retained any such records at all.

SDS 

Eleventh Circuit on Florida's Mandatory Drug Testing of Public Employees

An Eleventh Circuit panel has rendered its opinion in AFCME v. Scott regarding the Executive Order of controversial Florida Governor Rick Scott requiring drug testing of all prospective state employees and random testing of all state employees.   The panel held that the Executive Order  "almost certainly sweeps far too broadly and hence runs afoul of the Fourth Amendment in many of its applications." 

But it also held that last year's opinion by Judge Ursula Ungaro of the Southern District of Florida that enjoined the Executive Order "also swept too broadly and captured both the policy’s constitutional applications and its unconstitutional ones." 

The gist of the panel's 61 page opinion is that Supreme Court cases such as Skinner v. Ry. Labor Execs.’ Ass’n (1989) hold that some categories of state employees may be drug tested without individualized suspicion and that a court must "balance the governmental interests in a suspicionless search against each particular job category’s expectation of privacy."  

Note that this is distinct from situation seeking mandatory drug testing of welfare recipients - - - an injunction against which the Eleventh Circuit affirmed earlier this year.

The complexities of the panel's opinion revolve around the procedures for accomplishing this balancing.  The original complaint as well as the appellate court's role were amply discussed by the panel. 

But the panel also spent considerable space on the State's "bold" argument that the Executive Order could "justify suspicionless drug testing of all 85,000 government employees regardless of the nature of their specific job functions."  The panel was "unpersuaded," and detailed its rejections of the State's arguments.

Thus, the panel gave clear guidelines to the district judge, remanding the case for a more limited injunction against the "sweeping" Executive Order. 

RR
[image: "Florida Sunrise" via]

 

District Judge Finds Sheriff Joe Arpaio's Office Engaged in Unconstitutional Racial Profiling

In a 142 page opinion and order in Melendres v. Arpaio, United States District Judge G. Murray Snow found that the Maricopa County Sheriff's Office [MCSO] led by Sheriff Arpaio unconstitutionally relied upon "Mexican ancestry" in stopping and detaining persons in its jurisdiction.

Recall that Sheriff Arpaio is a controversial figure who has styled himself as America's "toughest sheriff" and whose policies such as shackling pregnant inmates giving birth and forcing male inmates to "wear pink" have been subject to constitutional challenge.

In the Melendres class action lawsuit, the district judge listed the issues as:

• whether, and to what extent, the Fourth Amendment permits the MCSO to question, investigate, and/or detain Latino occupants of motor vehicles it suspects of being in the country without authorization when it has no basis to bring state charges against such persons;
• whether the MCSO uses race as a factor, and, if so, to what extent it is permissible under the Fourth Amendment to use race as a factor in forming either reasonable suspicion or probable cause to detain a person for being present without authorization;
•  whether the MCSO uses race as a factor, and if so, to what extent it is permissible under the equal protection clause of the Fourteenth Amendment to use race as a factor in making law enforcement decisions that affect Latino occupants of motor vehicles in Maricopa County;
•  whether the MCSO prolongs traffic stops to investigate the status of vehicle occupants beyond the time permitted by the Fourth Amendment; and
• whether being in this country without authorization provides sufficient reasonable suspicion or probable cause under the Fourth Amendment that a person is violating or conspiring to violate Arizona law related to immigration status.

The judge's extensive discussion of the trial and his findings of fact provide a detailed portrait of the MCSO's attempts to enforce immigration laws, including  its "LEAR" policy (Law Enforcement Agency Response in conjunction with federal immigration authorities), "saturation patrols,"  and mixed messages about the permissibility of the consideration of race or "Mexican ancestry." The opinion details the often rocky relationship between MCSO and federal ICE regarding immigration enforcement. 

Ultimately, Judge Snow concluded that that the MCSO's stated prohibition of "racial profiling" was limited to an exclusive reliance on race but allowed race to be a factor and did not strive to be race-neutral.  In keeping with this policy, the MCSO routinely relied upon race as a factor according to Judge Snow.  Such policies and practices violate both the Fourth Amendment and the Equal protection Clause of the Fourteenth Amendment.

The Judge entered a permanent injunction prohibiting MCSO from:

• detaining, holding or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons are in the country without authorization,
•  following or enforcing its LEAR policy against any Latino occupant of a vehicle in Maricopa County;
•  using race or Latino ancestry as a factor in determining to stop any vehicle in Maricopa County with a Latino occupant;
• using race or Latino ancestry as a factor in making law enforcement decisions with respect to whether any Latino occupant of a vehicle in Maricopa County may be in the country without authorization;
• detaining Latino occupants of vehicles stopped for traffic violations for a period longer than reasonably necessary to resolve the traffic violation in the absence of reasonable suspicion that any of them have committed or are committing a violation of federal or state criminal law;
•  detaining, holding or arresting Latino occupants of a vehicle in Maricopa County for violations of the Arizona Human Smuggling Act without a reasonable basis for believing that, under all the circumstances, the necessary elements of the crime are present;
• detaining, arresting or holding persons based on a reasonable suspicion that they are conspiring with their employer to violate the Arizona Employer Sanctions Act.

Judge Snow encouraged the parties to engage in further negotiations toward a settlement for implementing the injunction and included references to other settlements.  However, Sheriff Arpaio has reportedly already proclaimed his intention to appeal.

RR

 

Update on the Jacket in the United States Supreme Court Building

No, not John Paul Cohen's jacket about the draft, central to the 1971 case of Cohen v. California.

This jacket was worn a little over a year ago and prompted an arrest as we discussed then. 

Inside of US Supreme Court Building

 

Recall that the Supreme Court Building has special status, arguably as a First Amendment free-zone.  And although the charges were dropped against last year's  jacket wearer - - - Fitzgerald Scott - - - he brought suit in the United States District Court for the District of Columbia.

In its memorandum supporting its motion to dismiss,the United States Attorney's office includes this intriguing point heading: "The Fact that Plaintiff’s Jacket Conveyed a Message Only Reinforces the Conclusion that There Was Probable Cause for the Arrest."   Essentially, the government argues that the "message" does not support a First Amendment claim of political speech targeted because of its content, but instead is a "concession" under 40 U.S.C. § 6135, prohibiting the display of items designed to bring notice to an organization or movement within the United States Supreme Court building.  Recall that the Supreme Court has upheld the constitutionality of §6135.

While it seems that Scott has an uphill battle under the current precedent, his battle is certainly a reminder of Justice Thurgood's Marshall observation that the Supreme Court occupies an ironic position with regard to the First Amendment.

RR
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Eleventh Circuit Affirms Preliminary Injunction Against Florida's Mandatory Drug Testing of Welfare Recipients

In its unanimous panel opinion today in Lebron v. Sec't Florida Dep't of Children & Families, the Eleventh Circuit affirmed a district judge's grant of a preliminary injunction against Florida Statute §414.0652 requiring drug testing of all persons who receive public benefits. 

Recall that 16 months ago, Federal District Judge Mary Scriven issued a preliminary injunction against the controversial law championed by equally controversial governor Rick Scott requiring drug testing for each individual who applies for benefits under the federally funded TANF (Temporary Assistance for Needy Families) program to take a drug test, which must occur at an "approved laboratory" and be paid for by the applicant.   As the Eleventh Circuit panel made clear, it was not resolving "the merits of the constitutional claim" but only addressing "whether the district court abused its discretion in concluding that Lebron is substantially likely to succeed in establishing that Florida’s drug testing regime for TANF applicants violates his Fourth Amendment rights."

 

"Florida Scene" by Albert Bierstadt

 

Nevertheless, the Eleventh Circuit's opinion, authored by Judge Rosemary Barkett, left little room to argue that the statute could survive a constitutional challenge.  Barkett observed that in the "specific context of government-mandated drug testing programs, the Supreme Court has exempted such programs from the Fourth Amendment’s warrant and probable cause requirement only where such testing 'fit[s] within the closely guarded category of constitutionally permissible suspicionless searches,'" requiring that the "proffered special need for drug testing must be substantial,” citing Chandler v. Miller, 520 U.S. 305 (1997).  These special needs include "the specific risk to public safety by employees engaged in inherently dangerous jobs and the protection of children entrusted to the public school system’s care and tutelag."  The Eleventh Circuit easily found that welfare recipients did not fall into a special needs category:

The question is not whether drug use is detrimental to the goals of the TANF program, which it might be. Instead, the only pertinent inquiry is whether there is a substantial special need for mandatory, suspicionless drug testing of TANF recipients when there is no immediate or direct threat to public safety, when those being searched are not directly involved in the frontlines of drug interdiction, when there is no public school setting where the government has a responsibility for the care and tutelage of its young students, or when there are no dire consequences or grave risk of imminent physical harm as a result of waiting to obtain a warrant if a TANF recipient, or anyone else for that matter, is suspected of violating the law. We conclude that, on this record, the answer to that question of whether there is a substantial special need for mandatory suspicionless drug testing is “no.”

The Eleventh Circuit also rejected Florida's "consent" argument.  Because under Florida’s program an applicant is required to sign an acknowledgment that he or she consents to drug testing, the State argued these consented-to searches are reasonable under the Fourth Amendment.  The Eleventh Circuit deemed Florida's reliance on Wyman v. James, 400 U.S. 309 (1971) "misplaced," because there the home visit by the social worker as a condition of receiving welfare benefits was not considered a search, while drug testing does constitute a search. 

The Eleventh Circuit briefly discussed "unconstitutional conditions," a theme that Judge Jordan, in a brief concurring opinion, echoed. But Jordan's discussion of unconstitutional conditions provided perhaps the only possibility that Florida might ever prevail, although interestingly relying largely upon First Amendment doctrine.

Judge Jordan's concurring opinion, however, questioned the outcome of any test requiring that the means chosen serve the government interest:

I am skeptical about the state’s insistence at oral argument that the Fourth Amendment permits the warrantless and suspicionless drug testing of all TANF applicants even if the evidence shows, conclusively and beyond any doubt, that there is 0% drug use in the TANF population. The state’s rationale—that such drug testing is permissible because the TANF program seeks to “move people from welfare to work”—proves too much. Every expenditure of state dollars, taxpayers hope, is for the purpose of achieving a desirable social goal. But that does not mean that a state is entitled to require warrantless and suspicionless drug testing of all recipients of state funds (e.g., college students receiving Bright Futures scholarships, see Fla. Stat. § 1009.53) to ensure that those funds are not being misused and that policy goals (e.g., the graduation of such students) are being achieved. Constitutionally speaking, the state’s position is simply a bridge too far.

The consensus of the federal judges who have considered the Florida statute's constitutionality does seem to be that the statute has definitely gone "too far."

RR
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Court Tests Dog Sniffs With Common Sense

A unanimous Supreme Court today rejected a defendant's challenge to a dog sniff, and the evidence that it led to, ruling that,

[t]he question . . . is whether all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. 

Op. at 12.  Oh, and then this: "A sniff is up to snuff when it meets that test."

The case, Florida v. Harris, arose out of a defendant's challenge to a dog alert that led an officer to search his vehicle and find ingredients for manufacturing methamphetamine.  But the dog, Aldo, wasn't trained to alert for the particular items that apparently triggered the alert (like pseudoephedrine).  And in a surprise twist Aldo later alerted to the same vehicle, driven by the same defendant (then out on bail), but the subsequent search this time turned up nothing.

The defendant, Harris, moved to suppress, challenging Aldo's reliability.  In particular, Harris claimed that Aldo was unreliable because he alerted to items that he wasn't trained to alert to (in the first stop), and because he alerted to nothing (in the second stop).  The state produced evidence of Aldo's training, but Harris didn't challenge that.

The Florida Supreme Court ruled for Harris.  It said that the state had to produce a wide array of evidence, including Aldo's field-performance records, in support of Aldo's reliability.  This it didn't do.

The Supreme Court disagreed.  Justice Kagan wrote for the unanimous Court that the proper test is practical and common-sensical, based on the totality of the circumstances, and not on rigid rules or mechanical inquiries.  In other words, the trial court should allow the parties to make their best cases on Aldo's reliability, including evidence of training and sometimes even field records, and evaluate the evidence based on the totality of the circumstances--just as it would with any other probable cause determination, using the test quoted above.

SDS

Detention Incident to Search Warrant Doesn't Stretch a Mile

The Supreme Court ruled today in Bailey v. United States that officers can't detain a suspect incident to the execution of a search warrant a mile away from the property searched.  The ruling underscores the geographic limit to the detention authority in Michigan v. Summers, allowing a detention incident to the execution of a search warrant even without probable cause.  (Summers is a narrow exception to the general probable cause requirement under the Fourth Amendment.) The case says that the Summers rule is "limited to the immidate vicinity of the premises to be searched." 

While the ruling favors Bailey and a geographically-bound reading of the Summers exception, the evidence that Bailey sought to exclude may ultimately make its way into the case on a different rationale.  In short, this ruling ultimately might not be a game changer for Bailey's criminal case.

The case started when officers went to Bailey's apartment to execute a search warrant.  (Nobody challenged the search warrant.)  Officers saw Bailey and another man leave the apartment in a car, and they followed them.  Officers pulled Bailey over about a mile from the apartment, patted him down, and found a ring of keys that they later discovered opened the apartment.  After they found a gun and drugs in the apartment, they charged Bailey.  Bailey moved to suppress the apartment key and statements he made when he was stopped.  The state argued that the officers validly detained him pursuant to the execution of the search warrant, under Summers. 

The Supreme Court ruled for Bailey.  Justice Kennedy wrote for the majority that a Summers detention incident to the execution of a search warrant extends only to the immediate vicinity of the place to be searched.  He wrote that the law-enforcement reasons for the Summers rule--officer safety, facilitating the completion of the search, and preventing flight--all work within that geographic limit, but not a mile outside of it.  He also wrote that a detention away from the search site involved a greater intrusion into privacy. 

Ruling that Summers did not authorize the search, Justice Kennedy wrote that the officers would need to rely on some other rationale for the detention and pat-down--perhaps Terry v. Ohio and reasonable suspicion.  But while the trial court denied Bailey's motion on both Summers and Terry grounds, the Second Circuit affirmed on Summers alone.  Thus the Supreme Court didn't reach the Terry issue.  All this means that the keys could ultimately be admitted.

Justice Scalia, joined by Justices Ginsburg and Kagan, wrote to say that, contrary to the dissent's approach, the Summers rule is categorical, and not susceptible to case-by-case interest balancing.  Summers, he wrote, "embodies a categorical judgment that in one narrow circumstance--the presence of occupants during the execution of a search warrant--seizures are reasonable despite the absence of probable cause."

Justice Breyer, joined by Justices Thomas and Alito, dissented.  He wrote that the officers acted reasonably, considering the flight risk, possibility of destruction of evidence, and possibility of injury. 

SDS

Stop and Frisk in the Bronx Enjoined by Federal Judge

In her 200 plus page opinion in Ligon v. City of New York, federal district judge Shira A. Scheindlin enjoined "stop and frisk" practices of the NYPD in the Bronx.  The stop and frisk practices by law enforcement have been increasingly controversial, including arrests of persons attempting to document the practice.

The problem in Lignon is a relatively simple one.  The standard for stop and frisk is reasonable suspicion, established by Terry v. Ohio (1968).   In the Bronx, there was a practice of Terry stops on the basis of reasonable suspicion of trespass outside buildings in the Bronx that are enrolled in the Trespass Affidavit Program (“TAP”), which was formerly known in the Bronx as Operation Clean Halls.  Seemingly, the building, rather than any activity by people, gave rise to the "suspicion" and many people were subject to a Terry stop and frisk outside their own residences. 

The judge concluded

while it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has systematically crossed it when making trespass stops outside TAP buildings in the Bronx. For those of us who do not fear being stopped as we approach or leave our own homes or those of our friends and families, it is difficult to believe that residents of one of our boroughs live under such a threat. In light of the evidence presented at the hearing, however, I am compelled to conclude that this is the case.

The judge made it clear that she was

not ordering the abolition or even a reduction of TAP, which appears to be a valuable way of using the NYPD’s resources to enhance the security in voluntarily enrolled private buildings. My ruling today is directed squarely at a category of stops lacking reasonable suspicion.

Precisely because these stops lack rational justification, they are presumably of less value to public safety than would be the stops of individuals who displayed objectively suspicious behavior.

But she did rule that the "NYPD is ordered immediately to cease performing trespass stops outside TAP buildings in the Bronx without reasonable suspicion of trespass."   Judge Scheindlin also ordered consolidation of the hearing on some other remedies with the remedies hearing in Floyd v. City of New York, a stop and frisk challenge involving the entire city and not only the borough of the Bronx.

RR
[image from protest against stop and frisk via]

 

Complaint Against NYPD Alleging Right to Record Police Officers

The First Amendment right to record public police interactions with "smartphones" is the basis of a complaint filed yesterday in Charles v. City of New York.  The facts as alleged by plaintiff Hadiyah Charles are not dissimilar to those in Glik v. Cunniffe in which the First Circuit in 2011 found a First and Fourth Amendment violation and denied qualified immunity to the officers involved. (Compare the Seventh Circuit decision earlier this year).

The recitation of facts in Charles' complaint link her actions to the controversial "stop and frisk" policy of the NYPD that she sought to record.  Her allegations also include failure to train law enforcement officers to abide by the department's Patrol Guide as well as the First Amendment.  Ms. Charles was arrested, held for some time, her phone searched, released with a charge of disorderly conduct that was ultimately dismissed.  The complaint also contains allegations that police officers derided Ms. Charles for being a "street lawyer." Ms. Charles is not an attorney, but an HIV activist who has been recognized as a "Champion of Change" by the White House.

A report in Gothamist has more details. 

And for those who plan on replicating Ms. Charles' activities, NYCLU has an "app" for that: “Stop and Frisk Watch” includes the ability to record, provide information, and transmit it to the NYCLU. 

RR
[image: screenshot from NYCLU video via].

District Court Upholds Federal Ban on Body Armor

Judge Thomas Johnston (WDWV) ruled in U.S. v. Mark that the federal ban on body armor possession by a convicted felon did not violate the Second Amendment or Due Process Clause, and that Congress did not exceed its authority in enacting the ban under the Commerce Clause.

Mark brought his challenge after he was charged and convicted of possession of body armor by a felon under 18 U.S.C. Secs. 931 and 921(a)(35).  Federal marshalls found the body armor, along with a cache of weapons, in a protective sweep of his home after his arrest. 

Judge Johnston ruled that the statutes did not violate the Second Amendment, because there was no indication that the Framers intended to protect body armor in the Second Amendment, and there was no case law on body armor providing any additional guidance.  He wrote that the statutes were not unconstitutionally vague under due process in defining "body armor," because Section 931 gives a definition "that is readily understandable to the ordinary person."  Op. at 19.  And he held that the jurisdictional element in Section 931 was indistinguishable from the jurisdictional element in 18 U.S.C. Sec. 922(g)(1), the statute penalizing possession of firearms by convicted felons and upheld by the Fourth Circuit--on the basis of its jurisdictional element.

Judge Johnston also ruled the marshalls' search, a protective sweep of the home after arrest, didn't violate the Fourth Amendment.

SDS

Daily Read: The Case of the Arabic Flash Cards

Being argued today in the Third Circuit is George v. TSA, a case seemingly about Arabic language flash cards as a rationale for airport detention by the TSA and Philadelphia police officers with obvious First Amendment implications.

The government has appealed from the denial of its motion to dismiss.   

 

Plaintiff Nick George is represented by the ACLU, and the organization not only has an informative case page with documents, but an effective video:

 

 

 

RR
[image of flash cards for sale at Amazon via]

Portions of Arizona's SB 1070 Now in Effect

In a one page Order, Judge Susan Bolton has dissolved the preliminary injunction she issued regarding Section 2(B) of S.B. 1070, the so-called "show me your papers" provision.

This was inevitable given her opinion earlier this month ruling that it would be premature to declare the provision unconstitutional, resting her conclusion - - - perhaps erroneously as we discussed - - - on the United States Supreme Court's opinion in Arizona v. United States last June.

RR

 

Judge Bolton Declines Pre-Enforcement Injunction Against Arizona's SB1070's "show your papers" Provision

Judge Susan Bolton, who entered a preliminary injunction against portions of Arizona's controversial SB1070 in July 2010, including the controversial "show me your papers" provision, section 2(b), has issued a new order and opinion in del Sol v. Whiting, refusing to enjoin section 2(b) in light of the Supreme Court's decision in Arizona v. United States last June. 

Recall that the Court held several sections of SB1070 preempted by federal law (thus essentially affirming Judge Bolton's initial decision, as affirmed by the Ninth Circuit), but found that Section 2(b) could be read to avoid the concerns of conflict.  While section 2(b) requires every Arizona law enforcement officer to verify the immigration status of every person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully, the Court provided several instances where 2(b) might be compatible with federal law and thus refused a pre-enforcement injunction.

Thus, on the preemption challenge, Judge Bolton's opinion is squarely within the dictates of Arizona v. United States.

However, the challengers also raised Equal Protection and Fourth Amendment challenges.  Bolton's opinion subsumes these into the preemption challenge based on the Supremacy Clause.  She quotes the Court in Arizona v. US as stating that its "opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” adding emphasis.  Yet it is unclear how the Court's opinion could possibly foreclose the "other constitutional challenges" even pre-enforcement given that the issue before the Court was solely preemption (a limitation Justice Roberts stressed at the start of the oral arguments). 

Bolton's opinion states that she "will not ignore the clear direction in the Arizona opinion that subsection 2(B) cannot be challenged further on its face before the law takes effect," but certainly the Court could not give direction, clear or otherwise, regarding issues that were not before it.

RR
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Sixth Circuit Says No Expectation of Privacy in Location Data From Cell Phone

A three-judge panel of the Sixth Circuit ruled in U.S. v. Skinner that a defendant did not have a reasonable expectation of privacy in GPS data coming from a cell phone that showed his location, and therefore the government did not violate the Fourth Amendment in using that data to track him and locate him.

The case involved a drug-runner's use of a pay-as-you-go cell phone that was equipped with GPS technology.  The DEA identified the phone number for the phone and obtained an order from a federal magistrate authorizing the phone company to release subscriber information, cell site information, GPS real-time location, and ping data.  DEA agents then pinged the number and determined the location of the defendant.  They tracked him for a couple days and arrested him at a motorhome with over 1,100 pounds of marijuana.

The Sixth Circuit ruled that the defendant had no reasonable expectation of privacy in the GPS data coming from the phone and therefore that the DEA did not violate the Fourth Amendment in using the data to track the defendant and locate him.  The court explained:

There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone.  If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal.  The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools.  Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent.  A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen.  The recent nature of cell phone location technology does not change this.  If it did, then technology would help criminals but not the police.  It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car's paint.

Op. at 7.

The court distinguished U.S. v. Jones--the OT11 case holding that the placement by law enforcement of a GPS tracking device on the defendant's car violated the Fourth Amendment--saying that this case involved no trespass by police.  Instead, the court aligned the case with U.S. v. Knotts, which held that placement by law enforcement of a beeper in a five-gallon drum of chloroform, with the consent of a chemical company, in order to track the movements of the defendant did not violate the Fourth Amendment because "[t]he governmental surveillance conducted by means of the beeper . . . amounted principally to the following of an automobile on public streets and highways. . . .  A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."

The court rejected Skinner's argument that the DEA agents never established visual surveillance of his movements, didn't know his identity, and didn't know the make or model of the vehicle he was driving.  It said that Skinner's movements could have been observed by any member of the public--and that he therefore had no reasonable expectation of privacy--even if they weren't actually observed by DEA agents.

SDS

Second Circuit Upholds Arrests at 2004 Republican National Convention in NYC

Affirming the district judge's grant of summary judgment in favor of the city, the Second Circuit's opinion today in Marcavage v. City of New York rejects the claim of two participants at the 2004 Republican National Convention protests that their First and Fourth Amendment rights were violated. 

The controversy involves an often-called "free speech zone" used by law enforcement to designate areas for protest.  As the Second Circuit opinion explains, the "NYPD implemented a three-zone system" outside of Madison Square Garden where the convention was held:  "a demonstration area, a frozen area (with no pedestrian traffic), and a no-demonstration area."   The plaintiffs were "standing in the no-demonstration zone between 32nd and 33rd Streets, holding anti-abortion signs--one sign was four by six feet, the other was three by five."   When told to move into the demonstration zone, the protesters objected that this was not within the sight and sound of the Convention attendees and "they did not want to be in the demonstration zone lumped with other demonstrators."   According to the Second Circuit, the protesters were "ordered to leave 17 times by three different police officers before they were informed that they were blocking traffic and placed under arrest."  They were both charged with disorderly conduct; one with resisting arrest; and all charges were ultimately dismissed.

Relying upon Ward v. Rock Against Racism, 491 U.S. 781, 790-91 (1989), the panel analyzed whether plaintiffs were engaged in First Amendment protected activity in a traditional public forum, and if the restriction on speech was unrelated to content.   The panel easily found that the first two prongs were satisfied, and noted that the plaintiffs conceded that the restraint on their expressive activity was content-neutral.  Thus, the restriction needed to be narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information. 

The panel emphasized the security concerns, invoking terrorism, and finding that NYC had significant, if not compelling, interests.  Further, while the NYPD could have made different judgments: "“narrowly tailored”does not mean the “least restrictive or least intrusive means" and "simply because there is some imaginable alternative that might be less burdensome on speech" does not render the restriction invalid."   As for the alternative channels, the panel described it as "a demonstration zone  spanning the width of Eighth Avenue, starting at the southwest corner of the Garden, one avenue from the primary entrance to the Garden. The zone was equipped with a stage and sound amplification equipment, which all the protesters (including Plaintiffs) were free to use."   This zone need not be within the "sight and sound" of the intended audience, as a constitutional matter.

On the Fourth Amendment claim, the panel interestingly relied on an audio recording made by the plaintiffs themselves: 

that recording dooms their assertion . . . . even viewed  in the light most favorable to Plaintiffs, the audio recording shows indisputably that they were neither courteous nor compliant. Plaintiffs were hostile and non-compliant; in effect, they courted arrest.

With this, the panel found no need to extensively discuss the district judge's grant of summary judgment on the Fourth Amendment issue.

The Second Circuit's opinion is yet another one upholding free-speech zones for political protest, certainly to be a law enforcement practice yet again in the upcoming national political conventions.

Suit Seeks Damages for Targeted Killing

The ACLU and the Center for Constitutional Rights filed suit in the D.C. District on behalf of relatives of victims of the government's targeted killing program.  The plaintiffs, parents of Samir Khan and Anwar al-Aulaqi and grandfather of Abdulrahman al-Aulaqi (Anwar's son), seek money damages against high-level government officials for authorizing targeted killings in violations of the Fourth and Fifth Amendments and the Bill of Attainder Clause.

The case comes 19 months after Judge Bates (D.D.C.) dismissed an earlier suit by Anwar al-Aulaqi's father, seeking to stop the government from killing his son in the first place.  Judge Bates ruled that al-Aulaqi's father lacked standing and failed to allege a violation of the Alien Tort Statute, and that the case raised non-justiciable political questions.  (Judge Bates didn't rule on the government's state secrets claim.)

The case also comes on the heels of a couple of dismissed torture suits against high-level officials--Doe v. Rumsfeld (rejected because special factors counseled against a Bivens remedy) and Lebron v. Rumsfeld (same, and cert. denied).

All this is to say that the case faces some hurdles--political question, state secrets, Bivens special factors, and qualified immunity, to name a few.

The plaintiffs in the most recent case argue that the targeted killing were illegal under the laws of war, because the plaintiffs were not engaged in activities that presented a concrete, specific, and imminent threat of death of serious physical injury; because something short of lethal force could have been used to neutralize any threat that they posed; because they were not directly participating in hostilities; because the government failed to take steps to avoid harm to bystanders; and because the killings didn't meet the requirements of distinction and proportionality.

We covered the government's likely justification for targeted killing here, here, here, and here (among other places, linked in these posts).  We still don't have a complete legal justification from the government for the targeted killing program.

SDS

Ninth Circuit Upholds Warrantless Searches of Hotel Records

A divided three-judge panel of the Ninth Circuit ruled today in Patel v. City of Los Angeles that an LA ordinance allowing police officers to inspect hotel records containing guest information, without a warrant, did not violate the Fourth Amendment on its face.

The ruling means that the ordinance stays on the books.  But the court was careful not to rule out a later as-applied challenge.

The majority looked to both the reasonable-expectation-of-privacy test and the common-law trespassory test.  As to reasonable expectation of privacy, the majority ruled that hotel owners do not have a categorical expectation of privacy in the guest information that they are required to obtain and retain--although it held open the possibility that an owner might have such an expectation in an as-applied challenge.  The court said that it already held that hotel guests themselves do not have a reasoanble expectation of privacy in this information; it's not a huge leap, it said, to imagine that owners, as a class, do not have a reasoanble expectation of privacy in this information.

As to the common-law trespassory test, the court ruled that the limited intrusion into paper (and not property) is reasonable and therefore does not violate the Fourth Amendment.  The court explained that "reasonableness" remains the standard for the Fourth Amendment, even after the Supreme Court did not discuss it in applying the common-law trespassory test in United States v. Jones--because the Court said in that case that the government ""forfeited" the argument that that attachment and use of the GPS device was reasonable by failing to make that argument to the court of appeals."  Op. at 8202.  (Jones was the case this Term that held that the government's warrantless attachment of a GPS device to a vehicle, and its use of that device to monitor the vehicle's movements, was a search and violated the Fourth Amendment.  The Court did not address the government's alternative argument that the search was reasonable, because the government failed to raise it below.)

Judge Pregerson dissented, arguing that a warrantless search must meet an exception to the warrant requirement.  Here, there was none.

SDS

DC Circuit Declares Random Drug Testing of Forest Service Employees Unconstitutional

Over a dissent and reversing the district judge, a DC Circuit panel held unconstitutional the random drug testing policy applicable to all employees working at Job Corps Civilian Conservation Centers operated by the U.S. Forest Service in its opinion in National Federation of Federal Employees-IAM v. Vilsack.

The majority described the random drug testing policy as “a solution in search of a problem” and thus concluded that the “designation of all Forest Service Job Corps Center employees for random drug testing does not fit within the ‘closely guarded category’ of constitutionally permissible suspicionless searches” permissible under the Fourth Amendment.

The panel reasoned that "where the government asserts 'special needs' for intruding on Fourth Amendment rights, as here, the specific context matters" and in demonstrating that the governmental interests are “important enough to justify the particular search at hand, in light of other factors that show the search to be relatively intrusive upon a genuine expectation of privacy,” the government must provide a foundation for the "determination that the requirement of individualized suspicion is impractical in the Forest Service Job Corps Center context."

While the usual employees subject to random drug testing are those involved in high security or safety positions, the US Department of Agriculture in 1996 designated all Forest Service Job Corps staff positions for random drug testing.  There were, however, various objections and drug testing only occurred on the basis of individualized suspicion.  It was not until 2010 that the Forest Service informed the Union, during collective bargaining, "that all Job Corps Center staff would be subject to the random testing program." (emphasis in original).  Interestingly, the government argued that because the policy had first been advanced (even if not implemented) in 1996, the employees no longer had any expectation of privacy in not being subject to random drug tests.

The panel rejected this argument and also found the Secretary of Agriculture's rationales supporting special needs too speculative.  Quoting from the government's brief that the government has a “legitimate interest in deterring drug use that might affect work performance, that employees who use drugs off the job risk performance-impairing addiction, that off-duty drug users may buy [or sell] drugs at work,” the panel found these interests insufficient to justify a Fourth Amendment intrusion absent more specifics. 

The government argued that because the Job Corps Civilian Conservation Centers employees supervised students, this essentially constituted a special need.  The dissenting judge found this contention persuasive.  However, as the majority noted, in Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) - - - upholding random drug testing of student athletes in the context of a documented drug abuse issue - - -  "the Supreme Court did not imply that protection of this interest would justify random drug testing of the teachers and other staff at the schools — to the contrary, it 'caution[ed] against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts.' "

In short, without some sort of documented problem, or some particular special need such as security or safety, a random drug testing policy of federal employees does not satisfy the Fourth Amendment.

RR
[image via]

OWS Complaint for Destruction of Books Filed in Federal Court

The November 15, 2011 police "eviction" of members of Occupy Wall Street from Zucotti Park prompted quick legal action resulting in a TRO, and today, months later, a complaint in federal court raising constitutional and state law challenges to the confiscation of the materials in the OWS library.

In their complaint in Occupy Wall Street v. City of New York, the plaintiffs allege that city officials seized 3,600 books, only 1,003 of which were returned, and 201 of those very damaged.  The constitutional claims include a violation of the Fourth Amendment, a violation of procedural due process, and a violation of the First Amendment.  The plaintiffs also allege these violations occurred because of a lack of supervision and training, a claim that has become more and more difficult to sustain.  The plaintiffs also make parallel claims under the pertinent New York state constitution, as well as common law claims of conversion and replevin.

RR
[image: OWS Zucotti Library via]

 

Complaint Against NYPD for Barricading OWS Protesters

The complaint filed today in the Southern District of New York in Berg v. Kelly (as NYC Police Commissioner), also naming as defendants a number of NYC Police Officers, claims violations of the First, Fourth, and Fourteenth Amendments for actions of the NYPD during an Occupy Wall Street (OWS) protest on November 30, 2011. The alleged facts are thet the NYPD detained the plaintiffs "for nearly two hours inside an interlocking metal barricade" and prohibited them from exiting the pen, although it allowed  "tourists and journalists to leave."

The real gravamen of the complaint, however, is that the NYPD violated its settlement in Stauber v. The City of New York, and the NYPD Patrol Guide provisions that the NYPD agreed to inserts in its manuals as a result of that settlement.  One such provision is alleged to be:

Barrier configuration for demonstrations should not unreasonably restrict access to and participation in the event. For example, attendees should be permitted to leave a barricaded area at any time. In addition, if crowd conditions and other circumstances permit, participants should be permitted to leave and return to the same area. Sufficient openings in the barricades should be maintained for purpose of permitted attendees to leave expeditiously and return to the event as described in this paragraph.

Under this language, the facts alleged are certainly in violation, leaving the First, Fourth, and Fourteenth Amendment arguments ancillary.  Also compare the  European Court of Human Rights opinion from last month that found no violation by British law enforcement's practice of kettling during a demonstration.  

RR

[image: NYPD & Occupy Wall Street demonstration in September 2011 via]