Civil Rights Law & Policy Blog

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 This was not simply because Katz repealed the constitutional rules governing electronic eavesdropping established in Olmstead v. United States.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:

• 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?

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:

• Debate: The Constitutionality of Stop-and-Frisk in New York City
• UPDATE: SDNY amends related-case rule to increase transparency over case assignments
• NYPD's stop-and-frisk program dead?
• SDNY amends related-case rule to increase transparency over case assignments
• UPDATE II: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law
• UPDATE: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law
• The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law

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 Law, Aaron Sussman argues that excessive force jurisprudence under the Fourth Amendment has tended towards providing less protection for citizens who make excessive force claims against 
police 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: 

• Don't tase me, Bro!
• 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 

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.

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.

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-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:

• NYPD's stop-and-frisk program dead?
• UPDATE: SDNY amends related-case rule to increase transparency over case assignments
• SDNY amends related-case rule to increase transparency over case assignments
• UPDATE II: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law
• UPDATE: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law
• The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law

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.

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.

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.

“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.

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 Practicum—Professor 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:

• SDNY amends related-case rule to increase transparency over case assignments
• UPDATE II: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law
• UPDATE: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law
• The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law

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 Law. Professor 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:

• UPDATE: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law
• UPDATE: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law
• The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law

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!

John Yoo: NSA mass surveillance totally copacetic

In his upcoming paper, The Legality of the National Security Agency's Bulk Data Surveillance Programs, former DOJ official in the Bush II administration John Yoo says NSA's surveillance programs accord with FISA and do not violate the Fourth Amendment. Here's the abstract: 

Controversy has arisen again over the federal government’s electronic surveillance efforts to gather intelligence on foreign terrorist groups. Recent disclosures, both authorized and illicit, have described two secret National Security Agency (NSA) programs. The first collects telephone “metadata” such as calling records — but not the content of phone calls — both inside and outside the United States. A second NSA program intercepts the e-mails of non U.S. persons outside the United States. Despite the claims of critics, these programs do not violate the Foreign Intelligence Surveillance Act (FISA), as recently amended by Congress, or the Fourth Amendment to the Constitution. Concerns about the proper balance between these surveillance programs and individual privacy may be appropriate, but they properly fall within the province of Congress and the President to set future national security policy.

Part I of this paper describes the surveillance efforts against al Qaeda within a broader historical and legal context. Part II argues that the programs, as described publicly by authoritative sources, appear to meet statutory requirements. Part III addresses whether the NSA programs are constitutional along two dimensions. It argues that even if some aspect of the NSA programs does not fall within Congress’s authorization for foreign intelligence and counter-terrorism surveillance, it would most likely rest within the President’s Commander-in-Chief authority over the management of war. Second, even if the federal government has the internal authority to conduct surveillance, the Bill of Rights, through the Fourth Amendment, may still prohibit its application to citizens or non-citizens present in the territorial United States. Part III argues, however, that the NSA programs do not violate the Fourth Amendment, as currently interpreted by the federal courts.

Professor Yoo currently is a member of the faculty at UC Berkeley School of Law, and he is a visiting scholar at the American Enterprise Institute.

CRL&P Daily Reads: Dec. 20, 2013

New Mexico legalizes same-sex marriages; could Indiana be the next state to do so? Ohioans are split on the issue; and, Texas gubernatorial candidate invites gay people to support his campaign even though 'anyone who participates in that activity' should be executed.

But, executions in U.S.  reach the lowest point in 40 years; while heat on death row in Louisiana prison is cruel and unusual.

Pennsylvania woman files a federal lawsuit alleging the county sheriff prevented her from whistleblowing against local ambulance services; Miami Gardens PD face a civil rights lawsuit alleging a pattern of Fourth Amendment violations; and, former Des Moines officer faces civil rights charge for kicking a detainee in the head.

NPR asks whether NSA task force report went far enough; some say it increases the likelihood of reform; and, privacy groups urge immediate changes.

Texas's new voter registration cards riddled with errors.

 

CRL&P Daily Reads: Dec. 19, 2013

Five recommendations from NSA task force; The Week asks whether NSA's mass surveillance is effective; Politico looks at how task force's recommendations affect Obama's policy options; and, Dave Eggers says Dave Eggers and others should speak out against the NSA's policies.

ACLU alleges Native American and black students subject to racial and sexual harassment from students and teachers in California school district.

Bill in Ohio Senate would allow married same-sex couples to file joint tax returns.

Former officer alleges sex discrimination by police department when it terminated her because of a workplace relationship; police in New Jersey settle civil rights suit alleging harassment of a teenager; officer in Georgia faces lawsuit after putting a man in the hospital with a blow from his flashlight; and, Columbus alleged to have violated event organizer's civil rights when it shut down his festival after the shooting of an 11-year-old. 

No more donations to the Boy Scouts until gay leaders are allowed, says Lockheed Martin.

 

CRL&P Daily Reads: Dec. 18, 2013

Larry Klayman, Larry Klayman, Larry Klayman.

Brazil shirks Snowden.

Plain Dealer columnist argues for armed employees in schools.

Federal judge will hear challenge to Ohio's ban on recognition of same-sex marriages on death certificates.

Student's civil rights suit alleges anti-LGBT harassment by teachers and administrators; police lieutenant claims he was fired in retaliation for testimony he gave against the department in several civil rights cases; Orlando PD face allegations of excessive force by a group of officers; and, civil rights suit over alleged unjustifiable death of Lansing teenager re-emerges.

 

CRL&P Daily Reads: Dec. 17, 2013

Federal judge says NSA's surveillance program violates the Fourth Amendment, but that will not be the end of it; several Senators feeling vindicated after the ruling; Politico explains the political impact of the NSA ruling on the White House's surveillance program review plans; NYTimes profiles the plaintiff; Obama will discuss NSA surveillance with Tech giants at today's meeting; and, Snowden tests the waters on 'permanent political asylum' in Brazil (full letter here).

Civil rights activists accuse Texas of neglecting election laws aimed at boosting voter turnout.

State's lawyers in challenge to Pennsylvania's same-sex marriage ban allegedly stalling and making intrusive requests of plaintiffs; and, same-sex couples in Illinois can get married before law's enactment with a doctor's certification that a life-threatening illness would makes doubtful their ability to wait.

Seattle PD facing civil rights suit after officer allegedly throws a bystander of protest to the ground.

 

CRL&P Daily Reads: Dec. 16, 2013

Former NSA director says NSA programs have not been abused; NSA's current director misled us; White House says no amnesty for Snowden; NSA officials think maybe they should consider it; NSA's worried Snowden still can do damage; and, 60-Minutes criticized for NSA segment.

Milwaukee police face a civil rights suit alleging officer held gun to a man's head and threatened to kill.

Iowans largely support their voter ID law; and, thousands of senior Texans get voter ID cards with wrong names.

Kansas and Arizona to find out within a month whether they will be able to change federal voter registration forms.

 

CRL&P Daily Reads: Dec. 15, 2013

Calling on states to repeal gun restrictions, Gun Owners of America executive says 'Gun-free zones are murder magnets'; Gun control advocates have modest hopes for 2014; Guardian columnist calls for U.S. to follow Australia's example by passing life-saving gun laws; school shootings raise questions as to appropriate security measures; and, stand-your-gounds laws are again on Floridians' minds.

Iowa man's death at the hands of a trooper's Taser is ruled a homicide, while a Michigan family drops their suit against police after daughter's death from Taser.

Extent of Snowden's NSA leaks may never be known.

 

CRL&P Daily Reads: Dec. 14, 2013

NSA, Cyber Command will remain under the control of one military officer; NSA's top civilian official is retiring at the end of the year; but, NSA has already undergone many changes.

Gun control activists leave Capitol Hill to build up infrastructure in the states, while support for tighter gun laws lessens; gun violence is a daily reality for some schools; Politico says Utah is America's gun permit mill; and, CNN columnist says 'Background checks pose no threat to legal gun ownership.'

Detroit's bankruptcy disrupts settlement payments to the man whose wrongful conviction landed him in prison for nearly a decade.

Tea Party groups suing county officials in Texas for denying them use of the county courthouse. 

The Revenge Porn Avengers.

 

CRL&P Daily Reads: Dec. 13, 2013

Advisory committee says NSA's mass surveillance should continue under new privacy constraints.

Investigation finds that guns website posts ads from sellers without licenses; Guardian's Michael Cohen claims America's gun carnage continues with no end in sight; and, gun club hopes to curb violence by teaching young people different ideas about guns.

Trial in North Carolina voter ID case is scheduled for July 2015.

Michigan restricts abortion insurance offered through new exchanges.

Civil rights suit alleges deputies pepper sprayed a couple and beat the husband after he held train doors open for his wife; civil rights suit filed after sheriff's deputy makes a man sit and kneel on hot asphalt for nearly half an hour, causing second-degree burns; and, civil rights groups say Dallas PD has a pattern of using excessive force.

Same-sex couples now will receive equal treatment when applying for federal student loans.

 

UPDATE II: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law

This comment by Professor Katherine Macfarlane responds to the content of this CRL&P post.

I write regarding Judge Gertner's recent comment.  I am thrilled by the attention and careful read my article, posted on SSRN in August, has received.  It is due to be published in the Michigan Journal of Race & Law next year.  As a result, what appears on SSRN is a draft.  I didn't anticipate that any attention would be paid to it, let alone to my previous employment. 

That said, as most articles posted to SSRN tend to do, the related cases article identifies my current affiliation (with LSU).  My work at the Law Department is disclosed on my LSU faculty page, along with my prior work at Quinn Emanuel, and my federal clerkships. This information has been available on LSU’s website since July.  I am also pretty easy to google—last year I published a short essay in the Huffington Post, and was identified as an Assistant Corporation Counsel.  In July 2013, I published an essay in the New York Observer, and though I was already at LSU by then, my prior affiliation with the Law Department appeared in my byline.  In October, I presented my paper at an academic conference, and discussed the fact that I had previously worked at the Law Department.  In November I wrote another piece about the stop-and-frisk cases for the Observer, and again acknowledged my prior employment at the Law Department.  The Observer piece also mentioned that I had appeared in front of the judge I was writing about. 

Judge Gertner is not the first person to take issue with my writing on this subject (a letter to the New York Observer editor found my piece disappointing, and also referred to me as “this lady”).  What I think may be misleading people is my familiarity with the Daniels and Floyd dockets.  Unlike many more talented and experienced scholars who have written about stop-and-frisk, I used a great deal of sources pulled directly from PACER.  Litigators live on PACER.  But legal scholars do not.  I love the stories dockets tell, and mined the dockets in the cases marked related to Daniels for useful details.  In addition, another rich source of information was CCR's own website, which links to the expert reports the plaintiffs commissioned.  Those reports, as most expert reports tend to do, include the expert’s rate.  

The most frequent criticism I’ve received relates to my “perspective.”  I am happy to admit that I have a very specific perspective, as all legal scholarship should.  And I am of course influenced by my prior work.  My interest in the related cases rule has a lot to do with the time I spent as a federal law clerk.  My interest in civil rights stems from the time I spent at MALDEF and the summer I worked for the outstanding California civil rights litigation firm run by Dan Stormer and Barbara Hadsell. 

But there’s something else going here.  Aside from my docket-heavy research, I also addressed judicial behavior, and named the judge I was talking about.  This, I suspect, has rubbed many the wrong way.  It’s certainly fair to say that the academic response has been decidedly in favor of the stop-and-frisk judge.  I cannot think of any academic amici who have backed the decision to remove her, though there are intellectually defensible arguments on both sides.  The New York Times’ “Room for Debate” series on this topic wasn’t a debate at all—like Judge Gertner, all participants were against the decision to remove.

I joined the Law Department in 2011 and ended my employment there in April 2013.  I worked on about 50-60 cases, some big, some small.  I did not work on any of the stop-and-frisk matters.  For ethical reasons, I would have had great reservations writing about any case I was involved in.  Yet my decision to write about a topic I care about is not that unusual, nor should I be discouraged from doing so.  Former ADAs become defense counsel.  Former law clerks turn journalists.  Former judges become professors. Once in a great while, former city attorneys break into academia.  All of us are shaped by our prior work, and we should be encouraged, not discouraged, to look to our past experiences for guidance, so long as we do so ethically.

CRL&P Daily Reads: Dec. 12, 2013

How gun control is losing, badly; gun control groups focus on states; report says reducing gun violence requires early intervention for troubled youth; Ana Marie Cox claims Congress is scared of the gun lobby; but, gun control activists are staying positive.

Operator of revenge porn site says it's 'ruining my life', and his court date is scheduled.

Former contractor files a civil rights suit alleging the federal goverment harassed him because of an auto-complete error in Google search; and, Miami Gardens police chief resigns following allegations of racial profiling.

North Dakota Supreme Court weighs arguments in abortion case challenging ban on drugs to terminate pregnancies; and, legislators share personal stories about abortion.

No agreement on court date for North Carolina's voter ID case.

NSA chairman says mass surveillance is the best way to protect U.S.; Judge Napolitano warns about NSA mass surveillance; and, 'The Raven' Revisited.

 

CRL&P Daily Reads: Dec. 11, 2013

NSA takes advantage of 'cookies' used for advertising to track surveillance targets.

Federal judge rejects California AG's request for dismissal in case challenging law requiring 10-day waiting period for gun owners.

Cruel and unusual punishment suit after prisoner placed in solitary confinement for one month could cost taxpayers.

American man claims discrimination after the California Department of Corrections denied him a job because he had previously used a false SSN, while in Illinois this guy still has a job.

Amendment aimed at protecting sexual assault victims scrapped as Congress passes the National Defense Authorization Act.

Bill introduced in the Senate to eliminate state laws regulating the sexual activity of people with HIV.

Chinese Law Prof is expelled for criticizing China's one-party government.

Man convicted of a hate crime after attacking a Sikh cab driver to serve more than three years in prison. 

And, a six-year old is suspended after kissing a classmate on the cheek. I wonder if he would have received similar punishment if had hit her.

 

CRL&P Daily Reads: Dec. 10, 2013

Allegedly illegal strip searches in Milwaukee jail could cost the city millions; man acquitted of drug charges files a civil rights suit against FBI alleging malicious prosecution; police face civil rights suit after officer pleads guilty to child porn; jail staff knew diabetic woman in their care needed insulin perhaps days before she died; Miami Gardens police allegedly used excessive force and denied medical treatment to arrestee; and, man was killed by a police officer who had accidently been tased by another officer.

Atlantic says Obama misled MSNBC's Chris Matthews on NSA surveillance; Guardian reflects on how the debate over surveillance has changed since Snowden's leaks; Nobel-winning writers say NSA surveillance is compromising freedom; Bill Clinton worries about the NSA's collection of economic data; and, NSA makes tech companies worry about profits.

Federal judge holds journalists have no constitutional right to be embedded with military; and, ACLU says prison officials violated the First Amendment by denying reporters access to prisoners after a riot.

Gun manufacturers doing better than before Newtown.

Same-sex couples race to challenge Texas's same-sex marriage ban; and, this graph shows geographical online efforts to promote gay-rights.

 

CRL&P Daily Reads: Dec. 9, 2013

Senate likely to extend ban on plastic guns, but nexus of gun-control debate has shifted to the states; and, four of five members of the city council in rural Rhode Island town face recalls after recommending changes to process for issuing concealed weapons permits.

Obama about ready to announce changes to NSA surveillance program; major tech companies submit open letter to Obama and Congress demanding new limits on NSA's freedom-harming surveillance; Snowden might testify before the EU Parliament's committee on civil liberties; local law enforcement is using software in NSA-style monitoring of cellphone data, and here's how it does it; and, Sen. Paul calls for a renewed commitment to the Fourth Amendment.

Rutger's basketball player alleges civil rights violations against former coach for allegedly repeated verbal and physical abuse; and, New Orleans settles civil rights lawsuit alleging man was falsely arrested and held for five months.

Editorial lambasts New Mexico prison for placing 71-year-old in solitary confinement for one month on suspicion of bringing meth into the facility.

Internet companies speak out against former Cincinatti Bengals cheerleader's defamation suit after federal judge allows it to proceed.

Lexington facing protests after booking for its New Years Eve party a DJ who previously ran a revenge porn site.

 

CRL&P Daily Reads: Dec. 7, 2013

Federal court hears case alleging the heat on death row in a Louisiana prison is unsafe; civil rights lawsuit filed alleging that a diabetic inmate died because the prison failed to provide adequate medical care; and, civil rights lawsuit alleges the police in a Miami suburb targeted African-Americans.

Fourth Circuit orders gun found on a convicted felon suppressed because it was obtained during an illegal search.

Americans are more deeply divided on gun policy than before Newtown; Plain Dealer columnist contrasts Newtown parents efforts to keep children safe from guns with those of gun-rights activists; and, Georgia man mistakingly kills a man suffering from Alzheimer's.

Iowa Supreme Court upholds law banning non-residents from hunting on property that they own.

Amish girl refuses chemo.

Panel discusses 'Who's afraid of free speech' at Newseum; and, South Carolina sheriff refuses to lower flag to honor Mandela.

 

CRL&P Daily Reads: Dec. 5, 2013

Massachussetts legislative committee on election laws considers voter ID bill; Mississippi's Secretary of State claims that 90 percent of the state's citizens already have ID required by new voting law; and, voting rights group to advocate for laws that expand voting and access to the polls in all 50 states.

Civil rights lawsuit filed against a police officer who allegedly broke an elderly man's arm in a roadside incident while off-duty; taxpayers in a Rhode Island town will cover $7 million settlement agreed to after a confrontation in which the police shot a teen 9 times leaving him paralyzed; and, wrongful death claim against California police for the shooting of a suicidal man is allowed to proceed.

Support for stricter-gun laws is dropping.

Federal judge hears oral arguments on Utah's same-sex marriage ban.

Tennessee asks state Supreme Court to provide dates of execution for 10 inmates.

NSA tracks cell locations worldwide.

 

UPDATE: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law

On December 2, 2013, I posted the abstract from an article arguing that some federal judges have been able to influence policy through a system of non-random case assignment. As an example, author Katherine Mcfarlane pointed to New York District Judge Shira Scheindlin's frequent assignment to stop-and-frisk cases. 

Judge Nancy Gertner since has contributed this insight:

Thanks for the post, but a critical detail was omitted. The author of the article had been assistant corporation counsel for the City of New York since April of 2012, defending the city in civil rights cases. While that doesn't mean there are unimportant insights in the article, her distinct perspective should have been disclosed. As should mine: I was one of the retired judges who signed onto an amicus brief in support of vacating Judge Scheindlin's disqualification at the hands of the Second Circuit -- a decision that was made without a record, briefing, an opinion from the judge. Indeed, a central question we have had is where the panel got its information from -- untested, one sided though it made be. Here's one answer.

Judge Scheindlin had found that the NYPD's stop-and-frisk program discriminated against minorities and was therefore unconsitutional.

The Second U.S. Circuit Court of Appeals removed Judge Scheindlin from cases involving the NYPD's  stop-and-frisk program, and it blocked her ruling pending the city's appeal.

On November 22, the Second Circuit rejected the city's request to vacate her order. 

CRL&P related posts:

• The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law
• NY appeals judges ponder fate of stop-frisk ruling
• How long is too long for a traffic stop?
• Illinois county faces class-action suit for jail's allegedly illegal strip-search policy

CRL&P Daily Reads: Dec. 4, 2013

Georgia prosecutors struggle to decide whether to apply stand-your-ground law to man who shot Alzheimer's patient who attempted to enter his house; House passes gun-control bill, but Sen. Schumer hopes for broader reforms; Politico explains why gun control advocates might have to settle for small gains; guns and ammunition have been stolen from Dallas SWAT; student brings a stun gun to a Cleveland Heights elementary school; and, one teacher explains why she talks to her middle-school students about guns.

Three couples challenge Utah's same-sex marriage ban.

Federal judges question the Wisconsin law requiring abortion clinics to have admitting privileges at nearby hospitals.

First Amendment controversy continues to brew after Pheonix bans gun-rights activist's 'Gun Saves Lives' billboard.

Snowden was considered for Walters's 'Most Interesting Person of the Year'; and, The Atlantic informs us that there was a pre-Snowden Snowden (with perhaps a less villanous name--Yardley).

 

CRL&P Daily Reads: Dec. 2, 2013

SCOTUS rejects challenge to the ACA's employer mandate as it prepares to hear challenges to ACA's contraceptive coverage mandate.

Think Progress says Texas's voter ID law could produce six-hour delays to vote.

Guardian explores how the pact between the U.S and U.K. led to modern surveillance; and, Glenn Greenwald responds to continued attacks over his release of Snowden's NSA leaks.

Constitutional Law Prof Blog previews oral argument in an upcoming First Amendment case: U.S. v. Apel.

NPR examines 'forgotten' issue of fair housing.

Albaquerque looks to reform its allegedly costly intiative process.

Next LA fire chief will have to deal with legacy of race and sex discrimination.

SCOTUS doesn't have enough to do.

 

CRL&P Daily Reads: Dec. 1. 2013

Kansas City Star editorial says electoral reforms should focus on making voting easier for eligible voters; and, The New Republic explains how this might be accomplished.

Guardian columnist explores some of the consequences of the continuing controversy over the NSA's surveillance program.

SCOTUS to decide whether government can prevent some from protesting based on security interests.

Woman wants Mississippi to recognize same-sex marriage so that she can get a divorce; and, lawmaker challenges Hawaii's new law legalizing same-sex marriage in court.

Women still make less than men for the same work.

Americans still don't agree on gun policy; and, man makes a gun made from things available at airports.

NPR explores pilot program that provides public defenders to immigrant detainees.

 

The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law

The title of this post comes from this upcoming article arguing that federal cases are not actually assigned randomly to district judges. Rather, the judges are able to influence policy by accepting cases "nonrandom[ly]" assigned on the basis of subject matter. Here's the abstract:

The Southern District of New York’s local rules are clear: "[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time." Yet for the past fourteen years, Southern District Judge Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the NYPD’s stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen an uninterrupted stream of equally landmark stop-and-frisk cases, which culminated in an August 12, 2013 order granting a sweeping injunction against the NYPD. The cases were assigned according to the Southern District’s "related cases" local rule, which allows judges to "accept" a new case related to an earlier-filed case already on their docket. Unlike past stop-and-frisk scholarship, this article addresses the procedural rules that have shaped the development of stop-and-frisk law, arguing that case assignment rules should not permit any district judge to exert total control over the evolution of significant Constitutional jurisprudence.

The article begins by challenging the commonly-held assumption that federal cases are assigned to district judges at random. It explains that although random assignment is widely assumed and generally heralded, it is not enforceable. Instead, district courts retain discretion to assign cases as they wish, with little (if any) obligation for transparency. The article looks specifically to the Southern District of New York’s Local Rules, examining the numerous ways in which cases are assigned to specific judges according to the cases’ subject matter, through a system hidden from the public and devoid of oversight. The article then traces stop-and-frisk litigation from its roots in Terry v. Ohio to the complex and protracted stop-and-frisk cases filed in federal courts across the country today. It explains how police have utilized stop-and-frisk practices before and after Terry, focusing on the Giuliani-era theory of "hot-spot policing." The article turns to the stop-and-frisk litigation before Judge Scheindlin, using it to examine the serious — and substantive — consequences of nonrandom case assignment in an adversary system. Nonrandom assignment allows an interested judge to inject herself into the litigation as a player with a stake in the outcome. Giving one district judge power over an entire category of Fourth Amendment jurisprudence elevates her decisions to a quasi-appellate level of significance, violating the principle that a district court opinion is not binding on any court within the same district. The article proposes amendments to the Southern District’s Local Rules to prohibit manipulation of case assignments, and advocates for the publication of assignment decisions as well as for motion practice challenging the assignments. Finally, it warns of the impact Judge Scheindlin’s control over this area of the law may have if appealed to the Supreme Court. Her decisions take a broad view of a plaintiff’s right to enforce the Fourth Amendment. Yet because her interpretation is so broad, her decisions may be reversed, and the rights at stake narrowed.

CRL&P related posts:

• NY appeals judges ponder fate of stop-frisk ruling
• How long is too long for a traffic stop?
• Illinois county faces class-action suit for jail's allegedly illegal strip-search policy
• The legislative response to mass police surveillance
• Policing the Immigration Police: ICE Prosecutorial Discretion and the Fourth Amendment

 

CRL&P Daily Reads: Nov. 29, 2013

Latinos want DOJ to sue over redistricting in Los Angeles County that allegedly unfairly reduces their influence; and, Pennsylvania legislature considers a bill to curb voter intimidation.

Some experts question whether new encryption services actually will protect users from spying.

Texas GOP talk gun rights to appeal to voters.

Same-sex couple files lawsuit challenging Texas's ban on same-sex marriage.

Missouri sheriff faces a second lawsuit over allegations he sexually harassed female employees.

 

CRL&P Thanksgiving Reads: Nov. 28, 2013

NSA has been monitoring the porn-watching habits of suspected radicals, which The Atlantic's Friedersdorf claims is bad for democracy; NSA soon will be split up; The Progressive discusses 'The NSA's New McCarthyism'; Ambinder has a cool NSA org chart; and, Nice, Canada. Real nice.

Cleveland Plain Dealer calls on Senate to oppose pending stand-your-ground bill; Iowa gun club will remain next to school; and, woman sentenced to 20-years in prison after firing a warning shot to deter her allegedly abusive husband released the night before Thanksgiving.

Congresswoman Fudge asks Holder to investigate Ohio's new voting laws; African-American youths pay higher 'time-tax' at the polls; and, Kentucky could be the next state to enact a voter ID law.

Federal judge decides NYPD must proceed with case of Occupy protester claiming an officer grabbed her breast.

 

The Third Amendment, Privacy and Mass Surveillance

The title of this post comes from this article arguing that the Third Amendment could serve to protect individual privacy interests against instrusion by 'cybersoldiers' serving the country's national security interests. Here's the abstract:

We live in an era of mass surveillance. Advertisers, corporations and the government engage in widespread data collection and analysis, using such avenues as cell phone location information, the Internet, camera observations, and drones. As technology and analytics advance, mass surveillance opportunities continue to grow. 

The growing surveillance society is not necessarily harmful or unconstitutional. The United States must track people and gather data to defend against enemies and malevolent actors. Defenses range from stopping attempts to breach government computers and software programs, to identifying and thwarting potential terroristic conduct and threats at an embryonic stage. 

Yet, without lines drawn to limit mass data gathering, especially in secret, unchecked government snooping likely will continue to expand. A sitting Secretary of State even recently acknowledged that the government has “sometimes reached too far” with its surveillance. The stakes for drawing lines demarcating privacy rights and the government’s security efforts have never been higher or more uncertain. 

This paper argues that the forgotten Third Amendment, long in desuetude, should be considered to harmonize and intersect with the Fourth Amendment to potentially limit at least some mass government surveillance. While the Fourth Amendment has been the sole source of search and seizure limitations, the Third Amendment should be added to the privacy calculus because it provides a clear allocation of power between military and civil authorities and creates a realm of privacy governed by civil law. 

Consequently, in today’s digital world it would be improper to read the words of the Third Amendment literally, merely as surplusage. Instead, the Amendment’s check on government tyranny should be viewed as restricting cybersoldiers from focusing surveillance instrumentalities on and around private residences or businesses in an intrusive way – or using proxies to do so -- that would serve as the functional equivalent of military quartering in the civil community.

 

CRL&P Daily Reads: Nov. 27, 2013

Revelations about the extent of the NSA's surveillance program could put international data-sharing agreements at risk; federal judge hears arguments regarding the release of DOJ documents on the legality of NSA's surveillance program; The Atlantic explores the inception of the NSA; and, Microsoft will change encryption to prevent NSA surveillance.

Texas National Guard will allow same-sex couples to apply for benefits immediately; gay teen banned from mall at which he allegedly was attacked; Kentucky couple fined one cent for remaining in county clerks office after closing time to protest same-sex marriage ban; and, judge okays terminally ill woman's request to marry her female partner before Illinois same-sex marriage law becomes effective.

Colorado Democrat resigns after gun-rights advocates successfully petition for her recall; and, Plain Dealer guest columnist argues that Ohio legislature should pass gun-safety laws to prevent children from accessing guns.

Voters claim Lousiana segregated African Americans into one racially-gerrymandering congressional district.

SCOTUS to hear arguments as to constitutionality of ACA's contraceptive rule; and, it will consider the First Amendment rights of Bush protesters alleging official's attempts to disperse them were not supported by valid security interests.

 

CRL&P Daily Reads: Nov. 26, 2013

African American judge alleges that UCLA police used excessive force when they stopped him ostensibly for not wearing his seat belt.

NSA likely accessed Google and Yahoo user data through fiber-optic cables used to connect data centers; Guardian columnist says NSA's surveillance program demonstrates hypocrisy of 'Five Eyes' countries; U.S. officials worry that Snowden might still have a large cache of intelligence data; and, Jeff Jarvis wades through more hero/villain-talk regarding Snowden.

The Week examines the recent difficulties of anti-abortion groups at the polls.

Mississippi Democrats say new voter ID law will hurt both parties, but the state is ready to start issuing voter ID cards.

Civil rights group updates its app for reporting TSA complaints.

 

Malicious Prosecution Claims in Section 1983 Lawsuits

The title of this post comes from this note arguing that the Supreme Court wrongly decided in Albright v. Oliver, 510 U.S. 266 (1994), that malicious prosecution claims in Section 1983 actions are properly considered under the Fourth Amendment. Here is the abstract:

There is little certainty among the federal courts as to how the tort of malicious prosecution and 42 U.S.C. § 1983 interact. In Albright v. Oliver, the Supreme Court suggested that the Fourth Amendment was the proper vehicle for analyzing malicious prosecution claims in Section 1983 actions. But the continuing confusion among the lower courts is some evidence that the Court’s answer was unsatisfactory. This Note hopes to provide some clarity to this muddied area of the law and explain why the Court’s decision in Albright was wrong. Part I surveys the history of malicious prosecution and Section 1983, as well as the Supreme Court’s opinion in Albright and the subsequent circuit split among the Courts of Appeals. Part II then proceeds to explain why the Court’s decision to use the Fourth Amendment to incorporate malicious prosecution made little sense, and why the Fifth and Fourteenth Amendments provide better alternatives. It also examines the implications of using the different amendments, and whether it matters if these questions are resolved by federal courts. Finally, Part III analyzes two distinct claims made in the literature which rest on the premise that Albright was correct, and explains why there are critical flaws in each of these arguments.

 

CRL&P Daily Reads: Nov. 25, 2013

Texas officials worry that new voter ID law could cause significant problems in higher-turnout elections; and, county officials in Alabama ask for more workers to deal with new voter ID law.

Ohio officials worry that new gun laws could waste taxpayer dollars; and, threatened boycott by hunters opposing Colorado's new gun laws appears to have been only bluster.

NSA director offered to resign over Snowden leak; and, NSA infected thousands of networks with malware.

Excessive force lawsuit costs Los Angeles County $1.6 milliion.

 

CRL&P Daily Reads: Nov. 24, 2013

NSA director doesn't really want to give the FBI and DEA access to surveillance data.

Abortion clinic owner in Mississippi fights to keep her facility open.

Federal appeals court upholds ruling requiring changes to NYC's stop-and-frisk policy.

Decades-long civil rights dispute over Little Rock schools could be nearing its conclusion.

Federal lawsuit over the use of Tasers by prison guards alleges 'callous and sadistic' constitutional violations.

Atlantic City PD face another civil rights suit alleging excessive force.

 

CRL&P Daily Reads: Nov. 23, 2013

NSA actually sought to expand surveillance program.

Montgomery Advertiser calls for more ballot access for minor party candidates; PolitiFact calls North Carolina governor's claim that Democrats 'agree' with voter ID law 'mostly false'; and, Plain Dealer column argues that Ohio election reforms should not include photo ID.

Wisconsin Court of Appeals will not block probe into campaign spending and fundraising during this month's elections.

Inmate charged with double murder files a hand written civil rights lawsuit alleging unduly harsh prison conditions and First Amendment violations.

Seattle PD settle a civil rights suit for an illegal search resulting in arrest of ex-felon for illegally possessing a firearm.

Wilmington PD 'stop-and-frisk' policy challenged.

Philadelphia bans 3-D printed guns.

 

CRL&P Daily Reads: Nov. 22, 2013

ACLU sues Kansas Attorney General over state's new election law requiring proof of citizenship to vote; Independent candidate denied ballot access in Alabama's special congressional election; 134 voters in Virginia election couldn't provide proper ID; and, Arkansas's voter ID program is nearly ready.

Some fear Ohio gun bill could limit police stops; Washington voters to choose betweent competing gun policies; Michiganders can now carry guns in state capital's libraries; and Dershowitz and Levinson debate Second Amendment's contemporary usefulness.

Woman files suit against Pittsburgh PD after a repeated sex offender was permitted to remain on the job; store owner files civil rights lawsuit after store's surveillance videos allegedly show racial profiling by police officers; and, civil rights lawsuit against officers in Utah could end up costing the state's taxpayers millions.

Government lawyers return to federal court to defend NSA's mass surveillance of telephone data.

Pennsylvania judge holds status hearing on the challenge to the state's same-sex marriage ban.

Spanish government introduces anti-protest laws.

 

CRL&P Daily Reads: Nov. 21, 2013

Many believe NSA intrusions go too far, and most Americans believe Snowden leaks harmed national security; President Reagan played a role in NSA's development; NSA spies on Britons despite no-spying pact; and, Toomey & Kaufmann argue that the problems with NSA surveillance are the result of too much secrecy.

Wisconsin Supreme Court to hear challenge to voter ID law; proponent of Wisconsin voter ID law claims that people who can't vote just don't care; and, Massachusetts House approves early voting and online registration.

Online impersonators are not protected by the First Amendment, according to the Pennsylvania Supreme Court.

Disgruntled businessman uses newspaper editor's name to direct people to hardcore porn website.

Police use of license plate readers draws criticisms from privacy groups.

Rep. John Lewis speaks about President Kennedy's complicated relationship with civil rights.

 

CRL&P Daily Reads: Nov. 19, 2013

FISA court order permitting NSA's surveillance of Americans' email and internet data released; The Week reports on NSA's efforts to minimize data collected on Americans; NSA releases documents showing it vowed to correct surveillance mistakes; and Yahoo seeks to protect users from surveillance.

Stop-and-frisk by NYPD down over last few months.

Pennsylvania woman files a civil rights lawsuit after a police officer offered her legal breaks for sexual favors.

Illegal immigrants don't vote in Arizona; Tennessee Supreme Court upholds new voter ID law; and, The Christian Science Monitor asks whether voter ID laws represent a war on the Greatest Generation.

Former lawmaker files civil rights lawsuit alleging that officers ignored his legislative immunity when they charged him with domestic violence.

United Methodist jury convicts a pastor for performing son's marriage to male partner; same-sex couples married outside Missouri now can file joint tax returns there; and, Cardinal denounces Illinois's new law legalizing same-sex marriage.

Albuquerque voters decide today whether to ban abortions after 20 weeks; vote could represent new front in fight over abortion rights.

Dallas reviews ban on protests within 75 feet of highways.

 

CRL&P Daily Reads: Nov. 18, 2013

SCOTUS will not hear privacy group's challenge to NSA's collection of telephone information from Verizon customers; however, two lower courts will hear challenges to NSA's program; and, The New Republic explains how German support for granting asylum to Snowden could have an impact in NYC.

Federal judge schedules case over Texas's voter ID law for September 2014; another federal judge hears closing arguments in the case over Wisconsin's voter ID law; Alabama's voter ID law will be enforced; and the Atlanta Daily World says black voting rights are at a crossroads.

Muslim woman files a civil rights lawsuit alleging that co-workers at The New School in NYC harassed and discriminated against her.

Iowa Supreme Court decides to allow a man wrongfully convicted of sexual abuse to proceed with his wrongful imprisonment claim.

Texas school district will allow a picture in the school's yearbook of a transgender teen dressed in a tuxedo.

Cheney sisters spar over same-sex marriage on Facebook.

 

CRL&P Daily Reads: Nov. 17, 2013

Support stalled for Sen. Gillibrand's bill providing sexual assault victims in the military reporting alternatives outside the chain of command; she will seek a floor vote on the bill.

Churches join the NAACP's lawsuit challenging North Carolina's new election laws limiting early voting and same-day registration; and Wisconsin Republicans seek to end weekend voting, while the Wisconsin Assembly passes a new voter ID bill.

United Methodist Church prosecutes Pennsylvania pastor under church law for performing same-sex marriage for his son and his son's partner; and, Wyoming Senate candidate Liz Chaney explains her opposition to same-sex marriage.

Obama issues memo haulting deportation of undocumented military families.

NYC Mayor-elect de Blasio meets with NYPD commissioner Kelly, who recently criticized Democrats for opposition NYPD's stop-and-frisk policy.

Protester files civil rights lawsuit against City of Newark, California for false arrest and alleges First Amendment violations.

In Spain, topless women interrupt anti-abortion rally with chants of 'Abortion is sacred.'

 

CRL&P Daily Reads: Nov. 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.

 

CRL&P Daily Reads: Nov. 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.

Hawaii governor is expected to sign same-sex marriage bill today, and one-third of Americans now live where same-sex marriage is legal.

California school district to discuss the appropriateness of controversial Arab mascot.

 

Fair Warning

The title of this post comes from this article arguing that courts have employed a limited First Amendment analysis to protesters' right of fair warning by police officers. Courts, however, have not explicitly adopted this standard, and as a result the amount of protection under the fair warning doctrine remains ambiguous. Here's the abstract:

Protesting has become an integral part of American politics, so much so that federal Courts of Appeals have recently restricted police officers’ power to arrest demonstrators who have concededly violated otherwise valid statutes and regulations. Specifically, courts have found that, where demonstrators may reasonably, yet mistakenly believe that police officers have permitted their conduct, officers must give “fair warning” before arresting or dispersing those demonstrators. In § 1983 suits, courts have even found that demonstrators’ right to fair warning is “clearly established.” While the right to fair warning may be clearly established, its doctrinal roots are not. Ordinarily, the requirement of fair warning, grounded in the Due Process Clause, guides courts in their application of statutes. The cases mentioned above, however, consider not the content of statutes — indeed, the statutes’ applicability is frequently conceded — but instead the conduct of police officers and demonstrators. As a result, the courts that have recognized demonstrators’ rights to fair warning have not clearly specified whether the First Amendment, the Fourth Amendment, or the Due Process Clause creates that right. Identifying the source of this right is more than an academic exercise. Such identification will help courts expound the right’s contours and determine its future application. Ultimately, this Article argues that courts have unconsciously employed the right to fair warning as a less sweeping form of First Amendment review, one that applies First Amendment principles to officers’ enforcement of a statute, rather than to the statute itself. Only by attributing the right to fair warning to the First Amendment can courts both explain existing doctrine and vindicate the principles that earlier decisions have recognized when invoking that right.