Thursday, August 30, 2012
"Can Magistrate Judges Deny Statutory Surveillance Orders Based on Prospective Fourth Amendment Concerns?"
From Orin Kerr at The Volokh Conspiracy:
This is a first in a series of posts on the issues I raised in an amicus brief I filed in the case. In my view, the Fifth Circuit must reverse because the Fourth Amendment issues in the case are not ripe and cannot be reached at this stage. There are no facts yet, so the courts can’t yet adjudicate the law. And magistrate judges cannot get around the absence of facts by just relabeling predictions of what might happen as “facts.” Rather, judicial rulings on Fourth Amendment questions have to follow the usual requirements of ripeness: There needs to be a real factual record formed in an adversarial setting on which courts can apply the very fact-specific principles of Fourth Amendment law.