June 25, 2014
US Supreme Court Rules Unanimously That Cellphone Searches Require A Warrant

So this was a pleasant surprise.  Not only because the Roberts Court is notoriously pro law-enforcement, but also because the decision was basically unanimous (Alito filed a partial concurrence).

The Court held first that the warrant requirement applies to cellphones.  They next determined that the “search incident to arrest” exception to the warrant requirement does not apply to cellphones.  They reasoned that none of the circumstances justifying the exception were present in the case of cellphones.  There is no immediate danger to safety or potential for destruction of evidence once the person has been detained.

This was a surprising decision to me.  In United States v. Robinson, SCOTUS held that a pack of cigarettes was subject to the “search incident to arrest” exception, because police may legitimately search containers on the person’s body for weapons and evidence of criminal activity after the person’s been arrested.  I figured SCOTUS would apply this rationale to cellphones as well.  They’d hold that people had a reasonable expectation of privacy in their cellphones, but that the “search incident to arrest” exception applied, thus vitiating the need for a warrant.

I’m glad to see the Court coming to their senses on this issue.  This decision also represents a sea change of the type that was hinted at by Justice Sotomayor in United States v. Jones, when she questioned the idea that people have no reasonable expectation of privacy in information voluntarily disclosed to third parties.  State and federal governments have argued that people have no reasonable expectation of privacy in much of the data on their cellphones because it is voluntarily disclosed to third parties (e.g. GPS data).  Sotomayor wrote:

[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.  E.g., Smith, 442 U. S., at 742; United States v. Miller425 U. S. 435443 (1976) . This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellu-lar providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medi-cations they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the “tradeoff ” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,”post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

Today’s case is a good reminder that sometimes, judges plant the seeds of future opinions by engaging in this sort of rumination.  It appears that Sotomayor’s efforts in Jones did not go unnoticed.

April 25, 2014
Low-level federal judges balking at law enforcement requests for electronic evidence

We are seeing some judicial resistance against the tide of expanding search & seizure authority for law enforcement.  From the article:

Judges at the lowest levels of the federal judiciary are balking at sweeping requests by law enforcement officials for cellphone and other sensitive personal data, declaring the demands overly broad and at odds with basic constitutional rights.

This rising assertiveness by magistrate judges — the worker bees of the federal court system — has produced rulings that elate civil libertarians and frustrate investigators, forcing them to meet or challenge tighter rules for collecting electronic evidence.

Among the most aggressive opinions have come from D.C. Magistrate Judge John M. Facciola, a bow-tied court veteran who in recent months has blocked wide-ranging access to the Facebook page of Navy Yard shooter Aaron Alexis and the iPhone of the Georgetown University student accused of making ricin in his dorm room. In another case, he deemed a law enforcement request for the entire contents of an e-mail account “repugnant” to the U.S. Constitution.

For these and other cases, Facciola has demanded more focused searches and insisted that authorities delete collected data that prove unrelated to a current investigation rather than keep them on file for unspecified future use. He also has taken the unusual step, for a magistrate judge, of issuing a series of formal, written opinions that detail his concerns, even about previously secret government investigations.

“For the sixth time,” Facciola wrote testily, using italics in a ruling this month, “this Court must be clear: if the government seizes data it knows is outside the scope of the warrant, it must either destroy the data or return it. It cannot simply keep it.”

Judge Facciola is also a former prosecutor, making his hardline stance on warrants a refreshing change of pace.

April 22, 2014
"Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving."

Justice Scalia, dissenting in Navarette v. California, released today.  The Court decided 5-4 that an anonymous tip from a 911 caller accusing a motorist of reckless driving, without more, provides police with reasonable suspicion to conduct a traffic stop and detain the motorist.  This is a departure from the general rule that anonymous tips must be corroborated by extrinsic evidence or other “indicia of reliability” in order to provide a basis for reasonable suspicion.

March 10, 2014
DHS accused of holding U.S. citizen at airport, using emails to pry into her sex life


Even more concrete evidence that yes, the government will use the information it gets from spying on innocent people.

LTMC: The amount of information that is just out there, floating in the ether of various government databases, would probably startle the average person.  For example: The Social Security Administration knows every single job you’ve ever worked at where you paid payroll taxes.  The IRS knows exactly how much money you’ve made every year that you file (assuming you’re reporting everything you make).  If you use an electronic EZ-Pass for quick access to toll booths, your state’s Dep’t of Transportation knows the time and date of every instance that you’ve used them.

In some cases, it makes sense for the Government offices who run these programs to have this information.  It can be used to hold Government officials accountable.  For example, time-stamps on electronic “SunPass” toll booth records in Florida were used in a 3-month investigation that determined Florida police officers were habitually speeding on Florida highways in excess of 100+ mph.  The public pressure led to an investigation and reforms in police departments across Florida.

The point remains, however, that most people are unaware that this information is out there, or that it can be used against you if you’re being investigated by government officials.  It’s always good to keep in mind what’s out there, so you can protect yourself from liability.

February 14, 2014
Supreme Court Weighs 'Qualified Immunity' for Cops Who Use Deadly Force to End Car Chases

This case presents an interesting question: does it violate the Fourth Amendment for police to use deadly force to end a car chase by firing their guns at a fleeing vehicle?

There are two cases that come to mind here.  The first, cited in the article above, is Scott v. Harriswhich the article summarizes as follows:

[T]he Court ruled eight-to-one in favor of a Georgia deputy sheriff who rammed his cruiser into the vehicle of a fleeing suspect in order to bring a high-speed chase to an end, causing a crash that left the suspect paralyzed. “A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment,” declared the majority opinion of Justice Antonin Scalia, “even when it places the fleeing motorist at risk of serious injury or death.” Of the eight justices who voted for that outcome, seven of them—Scalia, Roberts, Kennedy, Thomas, Ginsburg, Breyer, and Alito—remain on the bench.

A second case, Tennessee v. Garner, is a 1985 case which SCOTUS said that police officers may not use deadly force to stop a fleeing suspect “unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”  The devil here, as they say, is in the details.

The question here comes down to one of semantics.  There’s no question that car chases are dangerous.  But the legally relevant question here is who is causing the danger. Is it the suspect that is causing the danger by fleeing, or the police officer that is causing the danger by giving chase?  Unfortunately, since Scott v. Harris was an 8-1 decision ,and seven of the eight judges are still on the bench, this case probably ends in qualified immunity for the officers.

(Source: generalinjusticeblog)

February 12, 2014
"I am filing a lawsuit against President Barack Obama because he has publicly refused to stop a clear and continuing violation of the 4th Amendment. The Bill of Rights protects all citizens from general warrants. I expect this case to go all the way to the Supreme Court and I predict the American people will win."

Sen. Rand Paul, who is joining FreedomWorks President Matt Kibbe and lead counsel Ken Cuccinelli on the case.  Kibbe adds:

This class action suit isn’t about Republican versus Democrat, or progressive versus conservative. This is about defending the basic civil liberties of every American from a government that has crossed the line. FreedomWorks is participating in this suit on behalf of our community of 6 million citizens nationwide, along with any American who has a phone. If you use a phone, you should care about this case. Never in American history has there been such a warrantless gathering of citizens information. We believe it is time to put this before the courts.

January 11, 2014
Man With Disassembled Airsoft Gun Shot In Head By Police

LTMC: This is what reduced expectations of privacy under the Fourth Amendment get you.  Instead of announcing his presence and knocking on the driver’s side door, the officer swings the passenger door open without checking to see if anyone is in the vehicle.  The driver is startled, The police officer is startled. The officer sees what appears to be a handgun in the driver’s hand.  In a moment of fear, the officer pulls his gun and fires.  Now, the driver and legal owner of a handsoft gun who was engaged in no illegal activity is dead.
I don’t know what this young man was doing, or what he planned to do.  What I do know is that, if the police officer had knocked on the door and identified himself as a police officer, or maybe used his cruiser lights to make it obvious that police were behind the vehicle, the driver might’ve had time to put down his airsoft gun and explain himself.  At the very least, he could’ve been taken into custody and charged with something, rather than executed by a scared cop.
But because the Supreme Court has determined that you have a reduced expectation of privacy in your automobile, police behave far more licentiously when investigating automobiles than, say, one’s home—particularly if that vehicle happens to be parked in a public place rather than a garage or driveway.  Common law rules that protect your home, like the knock-and-announce rule, don’t apply to automobiles.
Police internalize these rules when conducting investigations.  Fourth Amendment standards of reasonableness are notoriously vague, so police officers often must abide by equally vague procedures when determining whether they have grounds to conduct a search.  The officer in this case probably knew that people have reduced expectations of privacy in their automobile, so he didn’t feel terribly bad about swinging the door open without knocking.  This same officer probably wouldn’t have done this if it was somebody’s house, since the Fourth Amendment protections for home invasions are held to a higher standard.
So now, instead of a misunderstanding that could’ve been resolved with a simple conversation or a brief period of detention, we have a dead person shot by a cop who thought he saw a gun after the cop threw open the passenger side door.  This situation might have been avoided if the officer did not think he was entitled to do so under the law.  This is just one in a long line of examples of reduced expectations of privacy having bad—and in this case fatal—consequences for U.S. citizens.

(Source: generalinjusticeblog)

January 1, 2014
"There is nothing so special or immediate about the government’s interest in ensuring that TANF recipients are drug free so as to warrant suspension of the Fourth Amendment. The only known and shared characteristic of the individuals who would be subjected to Florida’s mandatory drug testing program is that they are financially needy families with children. Yet, there is nothing inherent in the condition of being impoverished that supports the conclusion that there is a concrete danger that impoverished individuals are prone to drug use or that should drug use occur, that the lives of TANF recipients are fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences."

Judge Mary Scriven, striking down Florida’s welfare drug-testing law as unconstitutional.

November 20, 2013
The Qualified Immunity Trap

Note: This is a cross-post from my legal blog, 10 Guilty Men.

Imagine the following: A police officer pulls somebody over for speeding.  He encounters the driver, and realizes that the driver is recording the officer with a camera.  The officer seizes the camera, and calls a prosecutor for advice on whether the officer can arrest the driver for violating the state’s Wiretap statute.  The prosecutor says yes.  Later, the prosecutor’s advice turns out to be completely wrong.  Can the victim sue the cop for arresting him?  What about the municipality that the officer works for?  How about the prosecutor?

The answer to the first and second questions are no, according to the Third Circuit.  Because the officer reasonably relied on the advice of the prosecutor, the officer was entitled to Qualified Immunity for arresting the Plaintiff.  Furthermore, because the Plaintiff couldn’t establish municipal liability under Monell v. Dep’t of Social Services, he was up a proverbial creek without sufficient means of locomotion.

In order to beat Qualified Immunity, you have to show that a government official (1) violated a constitutional right, and (2) the right was clearly established.  Attendant to number (2) is the idea that a constitutional right must be so well established that a “reasonable officer under the circumstances” would know they were violating the law.

Erstwhile, in order to establish municipal liability for a government official’s conduct under § 1983, you have to show that the official’s conduct was the result of a pattern of conduct on the part of the municipality which would cause government officials to violate someone’s constitutional rights.  One of the most common ways to do this is by showing that the municipality failed to train its officers effectively.  Another way to do it is by showing that the municipality regularly ignores legal violations by its officers.  If you can’t do this, you probably won’t be able to sue the municipality under § 1983.

The Plaintiff in the case above wasn’t able to do either of these things.  He couldn’t beat Qualified Immunity even though his rights were clearly violated, and the law was clearly established.  Even when your rights are clearly established, according to the court, government officials are allowed to be bad at their jobs:

[A]lthough “[P]olice officers generally have a duty to know the basic elements of the laws they enforce,” id., in circumstances when a police officer “neither knew nor should have known of the relevant legal standard,” qualified immunity may still be granted. Harlow, 457 U.S. at 818-19. In other words, there are circumstances wherein a police officer’s violation of a law may be within the bounds of reason, even though the law in question can be said, from the comfort of an armchair, to be “clearly established.” See, e.g., Amore, 624 F.3d at 535 (2d Cir. 2010) (“‘The statement in Harlow that reasonably competent public officials know clearly established law[] is a legal fiction.’ Qualified immunity is appropriate in ‘those situations in which the legal fiction does not make sense and applying that fiction would create problems that qualified immunity is intended to avert.’” (citation omitted) (quoting Lawrence v. Reed, 406 F.3d 1224, 1237 (10th Cir. 2005) (Hartz, J., dissenting)))

In other words, police are allowed to violate clearly established constitutional rights so long as the police are “reasonably” ignorant of the legal standards that govern their jobs.  Wonderful.  But if the police are protected, surely somebody can be held responsible for the Plaintiff’s Constitutional injury.  What about the prosecutor?  Can he be held responsible for his erroneous legal advice?  Like a private attorney would be under similar circumstances?

Nope.  Prosecutors have absolute immunity from civil suit under Imbler v. Pachtman.  There is a small chink in the prosecutor’s armor, clarified by Burns v. Reed, which allows prosecutors to be sued for actions taken during the “investigative” stage of criminal prosecution, but not for actions taken during the “judicial” stage of the prosecution.  Later, the Supreme Court clarified in Kalina v. Fletcher that prosecutors must be “acting as lawyers” rather than “complaining witnesses” in order to be granted absolute immunity.

In this case, the prosecutor was certainly acting as a lawyer.  He was giving legal advice to a police officer.  However, his advice was arguably given during the investigative stage of a criminal proceeding.  But here’s the catch: the prosecutor was essentially signing the Plaintiff’s arrest warrant.  This means that the prosecutor is likely off the hook, since in Kalina v. Fletcher, the court granted the prosecutor immunity for statements made in a motion for an arrest warrant.  She was denied immunity for a certification that accompanied the motion—but nothing analogous to a certification was made here.

And so once again, the Plaintiffs in a § 1983 action are left without a remedy for a clear violation of their constitutional rights.  To be sure, the results of this case were not all bad for the Plaintiff—if you read the opinion, you’ll discover that the officer made the mistake of seizing the Plaintiff’s camera before calling the prosecutor for advice, so the court held that the officer could not claim qualified immunity for the seizure itself.

But what about the arrest?  Can the Plaintiff sue for being thrown in a jail cell for 27 hours?  Can he sue for the humiliating, fear-inducing experience of being arrested and manhandled by a government agent with a badge and a gun?  Can he sue for the indignity of being herded into a prison cell like human cattle?  Of being paraded through the station house with handcuffs on?  Of having his face exposed to the degrading public shame of being placed in the back of a police car?

Nope.  He can’t sue the cop.  He can’t sue the municipality.  And he very likely can’t sue the prosecutor.  Another victim of illegal government conduct gets caught in the Qualified Immunity trap.

June 10, 2013
A Disingenuous Sensenbrenner

G. Jack King, former NACDL Public Affairs Director, destroys Jim Sensenbrenner’s attempt to distance himself from the NSA’s recent data collection scandal by claiming that the PATRIOT Act didn’t authorize such broad data collection:

In a column published in today’s Guardian (U.K.) titled “This abuse of the Patriot Act must end,” U.S. Congressman Jim Sensenbrenner writes, “The administration claims authority to sift through details of our private lives because the Patriot Act says that it can. I disagree. I authored the Patriot Act, and this is an abuse of that law.”

Nice sentiment, but it’s not just misleading — it’s all false. Let me explain.

As yesterday’s FourthAmendment.com posting points out, the Patriot Act does authorize the administration to collect telephony and internet metadata. Arguing that doing what the law authorizes is an abuse of the law is sophistry.

Nearly every provision of the Patriot Act, from electronic surveillance to money laundering to information sharing between the law enforcement and intelligence communities, was drafted by career lawyers in the U.S. Department of Justice in the 1990s and introduced or circulated piecemeal during the Clinton Administration. Hardline right wingers like Rep. Sensenbrenner, then-chair of the House Judiciary Committee, and Charles Grassley in the Senate, successfully opposed giving a Democratic president the same extraordinary surveillance powers that were passed nearly unanimously in both houses in October 2001. (Who dared vote against a law in the weeks after Sept. 11, 2001, that called itself the “United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” –- short titled “USA-PATRIOT Act of 2001”?)

As for Rep. Sensenbrenner’s claim that he authored the Patriot Act, well, that’s just false, as this contemporaneous 2001 article in the Milwaukee Journal-Sentinel explained. Now in fairness, as that article shows, the events of 9-11 and a Republican administration in power merely softened his view of expanded government surveillance powers. The congressman was a supporter of several “sunset provisions,” including some of the surveillance provisions, which he called then “roving wiretaps.”

Unfortunately, Rep. Sensenbrenner sponsored H.R.3199: USA PATRIOT Improvement and Reauthorization Act of 2005. He also supported futher extension of the Patriot Act just two years ago…

The American people may have allowed their elected representatives to trade their liberty for the illusion of security, but Rep. Sensenbrenner should not be let off the hook by saying that what the current administration is doing with the law is not what he intended.

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