Posts Tagged ‘Fourth Amendment’

Supreme Court roundup

October 23 roundup

June 12 roundup

  • Moving against emerging litigation analytics and prediction sector, France bans publication of statistical information about individual judges’ decisions on criminal penalty [Artificial Lawyer, ABA Journal, David Post]
  • Eugene Volokh analyzes Washington high court’s unanimous ruling against Arlene’s Flowers and Barronelle Stutzman in same-sex marriage refusal case [Volokh Conspiracy, earlier on case here and here]
  • “Small claims court for copyright” idea would likely worsen the problem of copyright trolling [Mike Masnick, Techdirt]
  • Activists push laws and pledges intended to push charitable foundation giving (yet) further to left [James Piereson and Naomi Schaefer Riley, Washington Examiner]
  • Review of new book by libertarian economist David D. Friedman, “Legal Systems Very Different from Ours”: pirates, prisoners, gypsies, Amish, imperial Chinese, Jewish, Islamic, saga-period Icelandic, Somali, early Irish, Plains Indians, 18th century English, and ancient Athenian [Michael Huemer, Reason]
  • If the Supreme Court is going to let police stop your car on a pretext, they should at least insist that there *be* a pretext [Jonathan Blanks on Sievers v. Nebraska Cato cert petition]

Police roundup

  • Review of 70 studies shows police body cameras to be popular with both officers and public, though tangible benefits fall short of what some proponents had hoped [Ronald Bailey, Reason]
  • If law enforcement is allowed to use facial recognition technologies at all, here are some important safeguards for its use [Matthew Feeney, Cato]
  • Do you think of intensive police stops of minority teens on the street as a way to reduce crime rates? Think again [Jonathan Blanks, Cato]
  • When political influentials are in the vehicle, police collision reports can be works of art [Eric Turkewitz]
  • Why juries acquit cops charged with brutality [Phil Fairbanks, Buffalo News]
  • Investigation finds police officers found to have committed serious misconduct not only remain active as police, usually at different departments, but in 32 instances have become police chiefs or sheriffs [James Pilcher, Aaron Hegarty, Eric Litke and Mark Nichols, USA Today]

Watching you for your own good

Under a sweeping surveillance program, the federal Drug Enforcement Administration “secretly spied on Americans who bought money counters, ‘the vast majority’ of whom “were never shown to be connected to illicit drug-related activities.” The “administrative” subpoenas the DEA routinely issued to companies that sold money counters not only were “conducted without any court oversight, they were ‘unrelated to a specific drug trafficking investigation or target.'” [Nick Sibilla, Forbes via IJ]

“Chalking tires constitutes unreasonable search, 6th Circuit rules”

“Parking enforcement officers in Saginaw, Michigan, who use chalk to mark the tires of cars to track how long they have been parked are violating the constitution, a federal appeals court ruled Monday.” [Amanda Robert, ABA Journal] In particular, the court found that chalking was a trespass and a search meant to obtain information that was not reasonable under a probable-cause or community-caretaker standard, nor under an exception allowing orderly regulation of road traffic, since in the court’s view it was aimed primarily at obtaining revenue rather than mitigating public hazard. Orin Kerr has more analysis at Volokh Conspiracy.

Update, from Orin Kerr: “The Sixth Circuit has issued an amended opinion in the chalking case clarifying the limited scope of its holding.” Quoting the amended opinion: “Taking the allegations in Taylor’s complaint as true, we hold that chalking is a search under the Fourth Amendment, specifically under the Supreme Court’s decision in Jones. This does not mean, however, that chalking violates the Fourth Amendment. Rather, we hold, based on the pleading stage of this litigation, that two exceptions to the warrant requirement — the ‘community caretaking’ exception and the motor-vehicle exception — do not apply here. Our holding extends no further than this. When the record in this case moves beyond the pleadings stage, the City is, of course, free to argue anew that one or both of those exceptions do apply, or that some other exception to the warrant requirement might apply.”

“Unconscious People Can’t Consent to Police Searches”

Police officers in Wisconsin “drew Gerald Mitchell’s blood while he was unconscious—to test his blood alcohol content after a drunk-driving arrest. The state has attempted to excuse the officers by citing an implied-consent statute, which provides that simply driving on state roads constitutes consent to such searches.” Although the right to privacy are not absolute, there are problems with that approach, made worse by a strange Wisconsin Supreme Court opinion extending to highway searches a Fourth Amendment search exception for “pervasively regulated businesses.” [Ilya Shapiro and Patrick Moran on Cato cert amicus brief urging the Supreme Court to review Mitchell v. Wisconsin]

“Canada’s New Drunk Driving Law Will Make You Thankful for the 4th Amendment”

“Under the revised law, known as C-46, which went into effect in December, police can stop any driver, anywhere, for any reason and demand their sample. Furthermore, you could be cited even if you haven’t driven a car in two hours” because police are given the right to run tests on persons who have recently driven. One strange implication: if you drive to a restaurant and have enough to drink there to cross the blood-alcohol threshold, police can write you up even if you intended to rely on your sober spouse as the one to drive home. [Jon Miltimore, FEE; Maham Abedi, Global News/MSN; earlier]

But see: Richard in comments below says the law is broad but not quite as broad as described above: the original stop must be for some lawful reason, and the law includes an exception that would mostly (though not invariably) preclude liability in the restaurant example.

OSHA drones flying over your workplace

“‘That buzzing noise over a construction site could be an OSHA drone searching for safety violations,’ Bloomberg Law reports, linking to a May 18, 2018 DOL memorandum obtained through a Freedom of Information Act request. Yes, your friendly neighborhood OSHA inspector is now authorized by the Labor Department ‘to use camera-carrying drones as part of their inspections of outdoor workplaces.'” And while current procedures call for obtaining employer consent before sending the spycams aloft, thus avoiding Fourth Amendment challenge, employers who refuse such consent “risk the ire of the DOL, with serious consequences. Nothing is more likely to put a target on an employer’s back for multiple and frequent future investigations than sending a DOL investigator away from your doors. Refusing consent will label you at the DOL as a bad faith employer that deserves closer scrutiny. This I know through experience practicing before DOL and as a former Administrator of DOL’s Wage & Hour Division.” [Tammy McCutchen, Federalist Society]

And speaking of the Fourth Amendment (if not of OSHA), here is a Cato Daily Podcast with Caleb Brown, Julian Sanchez, and Matthew Feeney on how courts think about rights against unreasonable search and seizure in the digital age, and what could be done to improve protections.