Fourth Amendment – Overlawyered

Constitutional law roundup

Walter Olson — Mon, 11 May 2020 10:17:30 +0000

Case reporting, contact tracing, location monitoring: “Disease Surveillance and the Fourth Amendment” [Alan Z. Rozenshtein, Lawfare]
Unanimous Supreme Court spanks Ninth Circuit for its attempt to use immigration-law case to bring up (admittedly interesting) issue that neither party had presented and was not necessary to resolve the dispute [Ilya Shapiro and Michael Collins on U.S. v. Sineneng-Smith: “Neither Party Is Right, But the Ninth Circuit Is Wrong”]
Judge Thomas Hardiman of the Third Circuit on the history of judicial independence [Cato audio]
“While many scholars have studied Erie v. Tompkins, few have studied the facts of the case, and none have questioned Tompkins’s account. This article argues that Tompkins and his witnesses were not telling the truth.” [Brian L. Frye, SSRN 2018]
Can procedurally valid constitutional amendments themselves be unconstitutional? [Mike Rappaport and followup post, both 2018]
And now for something completely different: “Ayn Rand, Gary Lawson, and the Supreme Court” [Balkinization symposium last summer on Ken Kersch book Conservatives and the Constitution, more; unrelated but also about Lawson]

Tags: Article V, constitutional law, COVID-19 virus, Fourth Amendment, judges, Ninth Circuit, public health, Supreme Court

Constitutional law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Indiana high court: “Removing a GPS tracking device from your car isn’t theft”

Walter Olson — Thu, 27 Feb 2020 05:05:56 +0000

If cops attach a covert GPS tracking device to your car, and you discover and remove it, you have not “stolen” the device, nor can the removal stand as evidence needed to justify a search warrant. So says the Indiana Supreme Court, at least. [Timothy Lee, ArsTechnica; opinion in Heuring v. State of Indiana]

Tags: autos, Fourth Amendment

Indiana high court: “Removing a GPS tracking device from your car isn’t theft” is a post from Overlawyered - Chronicling the high cost of our legal system

Supreme Court roundup

Walter Olson — Thu, 20 Feb 2020 10:59:34 +0000

Court grants review of two cases, likely to be among the term’s more important for business, to clarify the limits of state court personal jurisdiction when none of defendants’ actions relevant to the dispute took place in the state [Jim Beck on Ford Motor Co. v. Bandemer (Minnesota) and Ford Motor Co. v. Montana Eighth Judicial District Court]
From Peace Cross to Espinoza: where religious exercise and the Establishment Clause are headed in the Roberts Court [Federalist Society conference panel video and transcript with Stephanie Barclay, Luke Goodrich, Micah Schwartzman, and William P. Marshall, moderated by the Hon. Carlos Bea] “Conservatives want courts to consider the governments’ bigoted motives in enacting anti-Catholic Blaine amendments, but not when it comes to Trump’s travel ban. Liberals tend to be inconsistent in the opposite way.” [Ilya Somin]
Federal law forbids attorneys and advocates to “encourage” an alien to reside unlawfully in the U.S. Spot the First Amendment problem with that [Ilya Shapiro and Michael Collins on Cato merits amicus brief in case of U.S. v. Sineneng-Smith]
“The Supreme Court Should Continue To Defend Arbitration” [my new post with Ilya Shapiro and Dennis Garcia on Cato Institute certiorari brief in OTO, LLC v. Kho]
What Martin Van Buren had to say in his memoirs concerning James Madison, Bushrod Washington, and Chancellor James Kent [Gerard Magliocca, Prawfsblawg]
Is the Ninth the most overturned circuit? Checking the numbers [Adam Feldman, Empirical SCOTUS]
Search and seizure: “How Long Does the Third Party Doctrine Have Left?” [Cato Daily Podcast with Billy Easley II and Caleb Brown, earlier]

Tags: arbitration, Fourth Amendment, immigration law, Ninth Circuit, religious liberty, Sixth Circuit, Supreme Court

Supreme Court roundup is a post from Overlawyered - Chronicling the high cost of our legal system

October 23 roundup

Walter Olson — Wed, 23 Oct 2019 10:01:16 +0000

“Per Hailey’s Law, Washington state police are required to impound a vehicle any time they arrest the driver for a DUI, regardless of whether the car is off the road or someone else can safely drive it away. But that violates the state’s constitution, explains the Washington Supreme Court, because warrantless seizures require individualized consideration of the circumstances. This law eliminates that individualized consideration, and the legislature cannot legislate constitutional rights away.” [Institute for Justice “Short Circuit” on Washington v. Villela, in which it signed on to (IJ signed on to an amicus brief; David Rasbach, Bellingham Herald)
“The Great American Vape Panic of 2019 Is Producing Some Wild Lawsuits” [Alex Norcia, Vice; Priscilla DeGregory and Ben Feuerherd, New York Post]
Federal judge rejects state’s challenge to SALT tax revisions, push to raise minimum legal age for marriage, aerial police surveillance in Baltimore, pension funding and more in my new Maryland policy roundup [Free State Notes] Yuripzy Morgan took time on her WBAL radio show to discuss my article on the Supreme Court’s consideration of job bias law and you can listen here;
Great moments in reparations: candidates propose dropping cash from airplanes on neighborhoods that were redlined 50+ years ago. But mostly different people live there now [Robert VerBruggen, National Review; Andre M. Perry and David Harshbarger, Brookings Institution]
Full Fifth Circuit should review ruling upholding Indian Child Welfare Act against constitutional challenge [Ilya Shapiro on Cato amicus brief seeking en banc reconsideration in Brackeen v. Bernhard; earlier]
Bay Area: “Donor who gave $45K to elect sheriff got coveted gun permit from her office” [Josh Koehn, Matthias Gafni and Joaquin Palomino, San Francisco Chronicle; Santa Clara County, Calif.]

Tags: age of majority, Bay Area, DUI, Fourth Amendment, guns, Maryland, reparations, tobacco, Washington state

October 23 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

June 12 roundup

Walter Olson — Wed, 12 Jun 2019 09:59:21 +0000

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]

Tags: charitable trusts, copyright, Fourth Amendment, France, judges

June 12 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Police roundup

Walter Olson — Mon, 10 Jun 2019 09:58:56 +0000

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]

Tags: Fourth Amendment, police, surveillance

Police roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Watching you for your own good

Walter Olson — Thu, 06 Jun 2019 09:55:40 +0000

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]

Tags: Fourth Amendment, illegal drugs, surveillance

Watching you for your own good is a post from Overlawyered - Chronicling the high cost of our legal system

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

Walter Olson — Wed, 24 Apr 2019 10:01:30 +0000

“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.”

Tags: Fourth Amendment, traffic laws

“Chalking tires constitutes unreasonable search, 6th Circuit rules” is a post from Overlawyered - Chronicling the high cost of our legal system

“Unconscious People Can’t Consent to Police Searches”

Walter Olson — Sun, 24 Mar 2019 16:01:29 +0000

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]

Tags: Fourth Amendment, privacy, Wisconsin

“Unconscious People Can’t Consent to Police Searches” is a post from Overlawyered - Chronicling the high cost of our legal system

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

Walter Olson — Tue, 29 Jan 2019 05:05:30 +0000

“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.

Tags: Canada, DUI, Fourth Amendment

“Canada’s New Drunk Driving Law Will Make You Thankful for the 4th Amendment” is a post from Overlawyered - Chronicling the high cost of our legal system