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On Wednesday, March 22, the eight-justice court will hear argument in County of Los Angeles v. Mendez, a Fourth Amendment civil action filed by two people shot by Los Angeles County sheriffs deputies. If Judge Neil Gorsuch is confirmed in April as Senate Majority Leader Mitch McConnell has promised, this will be one of the last eight-justice arguments in the year since the death of Justice Antonin Scalia. This is a case in which a ninth justice could matter, as well as one for which Scalia will be missed, as he had strong Fourth Amendment views.

While looking for a missing parolee, two sheriffs deputies opened the door of an occupied shack without a warrant and without knocking or announcing. When Angel Mendez moved a BB gun to respond, the deputies immediately shot him and his pregnant companion. Both were awarded $4 million after a bench trial (Mendezs leg was amputated below the knee; his companion delivered a healthy baby).

Like many Fourth Amendment cases, this one involves detailed and nuanced facts that can generate limitless hypotheticals. Legally, it presents interesting questions about proximate cause as well as about what law is clearly established for official-immunity purposes. There appears to be some analytical confusion in the briefing, which mixes together these very different concepts. And a preliminary ruling of the U.S. Court of Appeals for the 9th Circuit that the knock and announce rule was not clearly established for separate searches of curtilage areas after an earlier announcement has been made may conflict with that courts denial of official immunity for the later shooting. (Recall that under the doctrine of qualified immunity, an officer is not liable for damaging conduct if the law was not clearly established at the time that the officers conduct constituted a constitutional violation.)

The court granted review in this case primarily to consider a provocation theory of Fourth Amendment liability used by the 9th Circuit, which other courts of appeal have either rejected or applied differently. In an opinion written by then-Judge Samuel Alito ten years before he joined the Supreme Court, the U.S. Court of Appeals for the 3rd Circuit criticized a broad version of the 9th Circuits provocation theory, and Alito noted two terms ago in City and County of San Francisco v. Sheehan that the theory has been sharply questioned. A broadly stated provocation doctrine may therefore be on the way out. But whether the Mendezes damages award can survive on a more traditional proximate cause ground presents a more difficult question that seems likely to divide the court.

Compelling (if still somewhat disputed) facts

The Mendezes, a homeless couple who married after the shooting, present undoubtedly sympathetic facts. Because Fourth Amendment cases must be evaluated on a totality of the circumstances basis, factual nuances can make a difference. Here is my best distillation (based on detailed findings made by the district judge after a five-day bench trial):

In October 2010, officers were searching for a parolee-at-large who allegedly had been spotted bicycling in front of a suspected drug-trafficking house in suburban Los Angeles. Officers, who had no warrant to search or arrest, went to the house, announced themselves to the owner, and gained entry by threatening to force their way in. (The parolee was not there.)

Meanwhile, officers Christopher Conley and Jennifer Pederson went to clear the backyard. After entering the yard and checking some small metal storage boxes, the two officers came to a dilapidated wooden shack that (as the district court found) they could not reasonably have believed to be unoccupied. The shack had various signs of occupancy, and a lead officer testified that he had advised the deputies that a man named Angel lived in a shed in the yard with his pregnant girlfriend. (The district judge found that both deputies had heard this advisement, and that if they had not then they had unreasonably failed to pay attention.) With his gun drawn, Conley pulled open the door of the shack.

The Mendezes were resting on a futon; Angel kept a BB gun next to his bed to shoot pests. When he heard the deputies entry, he picked up the BB gun to move it so he could get up. (Whether the gun was pointed at the deputies remains disputed, but the trial judge found Mendez was moving it innocently, merely to help him sit up.) Conley shouted gun, and the deputies fired 15 bullets at the two occupants. Mendez, severely injured, exclaimed, I didnt know it was you guys. It was a BB gun.

The rulings below

The rulings of the trial and appeals courts present a somewhat complicated web of doctrine. The Mendezes filed a civil rights suit against Los Angeles County and the two deputies, alleging three Fourth Amendment violations: entry without a warrant, entry without knock and announce, and excessive force. The trial judge found for the Mendezes on all counts. However, the court awarded only nominal $1 damages for the warrantless entry and knock-and-announce violations, and also concluded that at the moment of shooting the deputies use of deadly force was objectively reasonable because they reasonably believed a man was holding a firearm rifle threatening their lives. Still, the court concluded, the county was liable because the deputies had recklessly provoke[d] a violent confrontation by not having a search warrant and by not knocking and announcing, and had thus creat[ed] the situation which caused the injuries.

Applying this provocation theory, which has been followed in the 9th Circuit since at least 2002, the 9th Circuit affirmed the damages award. Significantly, however, the court of appeals first ruled that although entering the shack without a search warrant was a clearly established Fourth Amendment violation, the deputies failure to knock and announce was not, because it was not clearly established that a law enforcement team that has announced itself at the front door of a house must then re-announce before entering a separate residence on the curtilage.

The 9th Circuit affirmed the damages award on two theories. First, the court of appeals applied its provocation precedents to hold that the deputies had creat[ed] a situation which led to the shooting and required the officers to use force that might have otherwise been reasonable. In the view of the court of appeals, the clearly established Fourth Amendment violation of entering without a warrant necessarily indicates that the deputies acted recklessly or intentionally.

Second, the court concluded that even without relying on our circuits provocation theory, basic notions of proximate cause supported the judgment. The court noted a point made by the district judge: that because homeowners have a constitutional right to possess a firearm for protection, it is reasonably foreseeable that a startling entry into a bedroom will result in tragedy. (Justice Robert Jackson, joined by Justice Felix Frankfurter, made the same point in a concurrence some seven decades ago, a detail likely come up next Wednesday.) Thus, said the 9th Circuit, the deputies are liable for the shooting as a foreseeable consequence of their unconstitutional entry even though the shooting itself was not unconstitutionally excessive force.

The county/deputies arguments

A threshold procedural issue crops up here: Although the county and the deputies presented three questions in their petition for certiorari, their merits brief (and the solicitor generals friend of the court brief filed in their support) now lists only two questions. The original questions had not expressly asked for review of proximate cause, but their restated second question now explicitly does. The court has previously expressed displeasure with parties altering the questions presented when they get to the merits stage, and the Mendezes now argue that the proximate cause question is not squarely before the court. This may attract some attention at oral argument, although the objective of reviewing the 9th Circuits provocation theory is likely paramount.

On to the merits. At bottom, the countys argument is simple: The courts 1989 opinion in Graham v. Connor said that a Fourth Amendment excessive force claim should be objectively evaluated at the moment of the application of force. Here, the lower courts have concluded that at the moment the deputies fired, their reaction to a raised rifle was objectively reasonable. Although its reply brief backs off a little, the county argues that the officers actions before [the shooting] are not relevant.

The Mendezes respond that, in fact, the court has suggested (in a different Fourth Amendment context, Kentucky v. King) that the conduct of the police preceding the exigency must be considered; only if the police did not create the exigency by violating the Fourth Amendment is their conduct reasonable. The Mendezes read the courts prior excessive-force decisions not as finding such conduct irrelevant, but rather as examining the conduct to determine whether it is factually unpersuasive on the particular record presented. (It might also be argued that the courts at the moment phrase in Graham was dictum rather than essential to its holding.)

These arguments will set the stage for the court to examine, and ultimately to either define or reject, a Fourth Amendment provocation theory of law enforcement liability. Certainly the court will narrow the theorys confines, if not reject the label entirely. But after reams of briefing, and a likely (almost perfunctory) rejection of the 9th Circuits prior broad statements, provocation will probably not be the ultimate focus of the courts attention in this case.

Instead, the crux of the argument is now likely to shift to considering the deputies liability as simple question of proximate cause. And here, I think there is analytical confusion. Simply put, causation is a very different question from qualified immunity.

Cutting through many pages of briefing, the countys key argument is that the deputies failure to knock and announce cannot be considered in determining their liability for damages, because the 9th Circuit held that it was not a clearly established violation on the specific facts presented. If that legal factor is omitted, then it is difficult to say that shooting here was a foreseeable result of the failure to secure a search warrant. That is, even if the deputies had had a warrant in their back pockets, the same scenario would have resulted. It was the failure to knock and announce, not the failure to get a warrant, that led to the shooting here.

Causation, however, is a fact-dependent inquiry, requiring consideration of the totality of the circumstances, as the court has often noted. Such factual analysis does not allow for ignoring facts that are actually present; and it is analytically quite separate from the legal question of qualified immunity. The mash-up of the two concepts is perhaps best displayed in the solicitor generals brief, in which the argument that the deputies did not proximately cause Mendezs injuries concludes by saying that it was not clearly established that the officers had to knock and announce in this situation. The latter assertion may be true; it might even preclude liability. But that legal conclusion does not eliminate the fact of the failure to knock and announce a fact that, as all parties and the lower courts seem to agree, led directly to Angel Mendezs reaction and the deputies shooting.

Thus, while it seems unarguable that the failure to knock and announce led to Mendezs innocent reaction, as well as to the deputies equally understandable fear and decision to shoot, establishing causation is not the same as establishing a violation of clearly established law. The factual concept of causation (present here) must be separated from the very different legal concept of a clearly established Fourth Amendment violation (perhaps not present here).

Conclusion

This case presents many different points of entry for questioning at oral argument. If the justices are willing to go beyond consideration of the provocation theory, I would expect an extremely active free-for-all of questioning. But given Justice Alitos repeatedly expressed skepticism towards a broad reading of the 9th Circuits provocation doctrine, such a reading seems likely to be rejected here.

Nevertheless, the Mendezes brief effectively defends the commonsense view that the deputies failure to knock and announce their warrantless search caused the violence that followed. The countys arguments that the deputies actions did not constitute proximate cause, or that Mendezs innocent response to unknown intruders should be held to be a superseding event, seem stretched. On proximate cause, the justices seem likely to be divided. Indeed, once the provocation theory is disposed of, the eight-justice court might find it easier to remand for reconsideration under the clearer standards that its opinion will announce.

But its a bit premature to predict the result before the oral argument. At bottom, this is a qualified-immunity case, not one of simple Fourth Amendment violation or causation. Or, as the countys effective (if at times hyperbolic) brief concludes, rather than a reckless shooting, this might be described as a tragic confluence of reasonable misperceptions on both sides. By holding that the failure to knock and announce was not a clearly established violation of the Fourth Amendment, the 9th Circuit undercut its later finding of damages liability against the county. Well see if the justices are able to untangle these two ideas causation versus qualified immunity at oral argument next Wednesday.

Posted in County of Los Angeles v. Mendez, Featured, Merits Cases

Recommended Citation: Rory Little, Argument preview: Mixing concepts of causation, provocation and qualified immunity in the Fourth Amendment context, SCOTUSblog (Mar. 15, 2017, 10:38 AM), http://www.scotusblog.com/2017/03/argument-preview-mixing-concepts-causation-provocation-qualified-immunity-fourth-amendment-context/

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Argument preview: Mixing concepts of causation, provocation and qualified immunity in the Fourth Amendment context - SCOTUSblog (blog)

Introduction

Before Justice Scalia, pragmatic balancing tests dominated the Courts Fourth Amendment doctrine. 1Open this footnote Close this footnote 1 See David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739, 1739-43 (2000). Open this footnote Close But by 2008, Justice Scalia had succeeded in reframing the Courts analysis. In an opinion joined by seven other Justices, he wrote: In determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve. 2Open this footnote Close this footnote 2 Virginiav. Moore, 553 U.S. 164, 168 (2008). Open this footnote Close

Like Justice Scalia, Judge Gorsuch has advocated an originalist interpretation of the Fourth Amendment. But he has not applied that originalist approach to all Fourth Amendment questions. This Essay traces Judge Gorsuchs jurisprudence in two areas of Fourth Amendment doctrine. PartI considers his decisions regarding searches of homes and personal property, where he has adopted and extended Justice Scalias common law approach. PartII contrasts that approach with Judge Gorsuchs decisions regarding Terry stops, where he has proven even more willing than many of his peers to employ the sort of totality of the circumstances inquiry that Justice Scalia so eschewed. In each Part, we also consider how Judge Gorsuchs particular brand of originalism might impact Fourth Amendment issues looming on the Courts horizon.

I. Trespassory Searches of Personal Property

Between 2001 and 2013, Justice Scalia resurrected the Supreme Courts pre-1967 trespass test for Fourth Amendment searches. Over three opinionsKyllov. United States, 3Open this footnote Close this footnote 3 533 U.S. 27 (2001). Open this footnote Close United States v. Jones, 4Open this footnote Close this footnote 4 132 S. Ct. 945 (2012). Open this footnote Close and Florida v. Jardines 5Open this footnote Close this footnote 5 133 S. Ct. 1409 (2013). Open this footnote Close he developed an alternative to Katzs reasonable expectations of privacy test 6Open this footnote Close this footnote 6 United States v. Katz, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Open this footnote Close rooted in eighteenth-century tort law. When Justice Scalia passed away in 2016, many commentators thought this strain of doctrine might die with him. 7Open this footnote Close this footnote 7 See, e.g., Lawrence Rosenthal, The Court After Scalia: Fourth Amendment Jurisprudence at a Crossroads, SCOTUSblog (Sept. 9, 2016, 5:31 PM), https://shar.es/1UYXYc. Open this footnote Close But Judge Gorsuch, as his opinions in United Statesv. Carloss 8Open this footnote Close this footnote 8 818 F.3d 988 (10th Cir. 2016). Open this footnote Close and United Statesv. Ackerman 9Open this footnote Close this footnote 9 831 F.3d 1292 (10th Cir. 2016). Open this footnote Close show, is likely not just to preserve Justice Scalias trespass test, but to expand it.

A. United States v. Carloss

In Jardines, the Court explained that even though a homes curtilage is a Fourth Amendment protected space, police are permitted to walk up to your door and knock on it based on an implied licensethe same implied license granted to Girl Scouts selling cookies. 10Open this footnote Close this footnote 10 Jardines, 133 S. Ct. at 1415-16. Open this footnote Close In Carloss, the Tenth Circuit addressed whether that implied license persists when a homeowner places three No Trespassing signs along the path from the street to the door and a fourth on the door itself. 11Open this footnote Close this footnote 11 Carloss, 818 F.3d at 1003-04 (Gorsuch, J., dissenting). Open this footnote Close Judge Gorsuch, dissenting, argued that it does not.

Relying on Justice Scalias originalist reasoning in Jardines, Judge Gorsuch observed that the implied license enjoyed by police is the same as that enjoyed by private visitors. 12Open this footnote Close this footnote 12 Id. at 1006 (describing the implied license as one entitling the officers to do no more than any private citizen might (quoting Jardines, 133 S. Ct. at 1416)). Open this footnote Close At common law, that implied license could be revoked at will by the homeowner. 13Open this footnote Close this footnote 13 Id. Open this footnote Close And once revoked, police as well as private visitors were liable for trespass. 14Open this footnote Close this footnote 14 Id. Open this footnote Close Because the No Trespassing signs communicated the homeowners intent to revoke this license, Judge Gorsuch argued, police violated the Fourth Amendment when they entered the homes curtilage without a warrant. 15Open this footnote Close this footnote 15 Id. at 1005-06. Open this footnote Close

B. United States v. Ackerman

Whereas Carloss dealt with physical property, in Ackerman, Judge Gorsuch applied Justice Scalias trespass theory to searches of digital property: e-mails. In Jones, the Court held that the government conducts a search when it obtains information by physically intruding on a constitutionally protected areaincluding when, as in Jones itself, police place a GPS tracking device on the underside of suspects car. 16Open this footnote Close this footnote 16 United Statesv. Jones, 132 S. Ct. 945, 948, 950 n.3 (2012). Open this footnote Close In Ackerman, Judge Gorsuch applied Jones to e-mail searches for child pornography, writing that the warrantless opening and examination of... private correspondence... seems pretty clearly to qualify as exactly the type of trespass to chattels that the framers sought to prevent when they adopted the Fourth Amendment. 17Open this footnote Close this footnote 17 United Statesv. Ackerman, 831 F.3d 1292, 1307-08 (10th Cir. 2016) (citing Ex parte Jackson, 96 U.S. 727, 733 (1878)). Open this footnote Close

In applying the trespass test to digital searches, Judge Gorsuch takes Jones further than Justice Scalia himself was willing to go. In Jones, Justice Scalia had written that [s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis, not the Jones trespass test. 18Open this footnote Close this footnote 18 Jones, 132 S. Ct. at 953 (emphasis omitted). Open this footnote Close But Judge Gorsuch concluded differently in Ackerman. True, he conceded, the Framers had been concerned with physical, not virtual, correspondence. 19Open this footnote Close this footnote 19 Ackerman, 831 F.3d at 1308. Open this footnote Close Nevertheless, he wrote, a more obvious analogy from principle to new technology is hard to imagine. 20Open this footnote Close this footnote 20 Id. Open this footnote Close

C. Implications

In Jones, Justice Scalia explained that the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. 21Open this footnote Close this footnote 21 Jones, 132 S. Ct. at 952 (emphases omitted). Open this footnote Close Katz and Jones, then, are alternative theories of Fourth Amendment protection. But because Jones was not decided until 2012, it is in tension with portions of the Courts doctrine decided between 1967 (Katz) and 2012 (Jones). Judge Gorsuch, relying on Jones, might look to resolve that tension in at least two areas of Fourth Amendment lawsearches of open fields and testing of potential contrabandand to expand Joness approach into a third (digital searches).

In Oliver v. United States, a 1984 case, the Court held that police had not violated the Fourth Amendment when they bypassed a No Trespassing sign to enter a suspects farmland. 22Open this footnote Close this footnote 22 See 466 U.S. 170, 176 (1984) (invoking the Fourth Amendments language protecting persons, houses, papers, and effects (quoting Hesterv. United States, 265 U.S. 57, 59 (1924))). Open this footnote Close The Court distinguished open fields from curtilage, which is afforded the same protection as the home. 23Open this footnote Close this footnote 23 Id. at 176-81. Open this footnote Close Judge Gorsuch, for his part, does not dispute that distinction. 24Open this footnote Close this footnote 24 United States v. Carloss, 818 F.3d 988, 1009 (10th Cir. 2016) (Gorsuch, J., dissenting). Open this footnote Close But he nevertheless suggested in Carloss that curtilage historically encompassed a space much larger than just the areas, like the front porch, immediately surrounding the home. 25Open this footnote Close this footnote 25 See id. at 1005 n.1 (At common law the curtilage was far more expansive than the front porch, sometimes said to reach as far as an English longbow shotsome 200 yardsfrom the dwelling house.). Open this footnote Close

In United States v. Jacobsen, another 1984 case, police conducted a field test for cocaine on white powder found in a damaged package. 26Open this footnote Close this footnote 26 466 U.S. 109, 111-12 (1984). Open this footnote Close The Court, invoking Katz, upheld the search, concluding that there could be no reasonable expectation of privacy in contraband. 27Open this footnote Close this footnote 27 Id. at 122-23, 122 n.22. Open this footnote Close But in Ackerman, Judge Gorsuch suggested that Jacobsen was wrongly decided. 28Open this footnote Close this footnote 28 See United Statesv. Ackerman, 831 F.3d 1292, 1307 (10th Cir. 2016). Open this footnote Close Because police destroyed a trace amount of private property to conduct their test, in light of Jones, it seems at least possible the Court today would find a search did take place. 29Open this footnote Close this footnote 29 Id. Open this footnote Close

Judge Gorsuch might also seek to expand the Jones approach to digital searches, as he did in Ackerman. In that case, he applied common law principles to digital searches, relying on the obvious analogy from letters to e-mails. 30Open this footnote Close this footnote 30 Id. at 1308. Open this footnote Close But Ackerman is at odds with the Courts method in Rileyv. California 31Open this footnote Close this footnote 31 134 S. Ct. 2473 (2014). Open this footnote Close a post-Jones decision. In Riley, the government proposed a similar approach to the one employed by Judge Gorsuch, arguing that the Fourth Amendment permits searching cell phone data incident to arrest if [police] could have obtained the same information from a pre-digital counterpart. 32Open this footnote Close this footnote 32 Riley, 134 S. Ct. at 2493. Open this footnote Close But the Riley Court rejected that analogue test because it would launch courts on a difficult line-drawing expedition. 33Open this footnote Close this footnote 33 Id. Open this footnote Close The Court then asked, in a question suggesting that Judge Gorsuchs analogy is not so obvious: Is an e-mail equivalent to a letter? 34Open this footnote Close this footnote 34 Id. Open this footnote Close

Judge Gorsuchs Ackerman opinion came after Riley, so he clearly has not rejected extending Jones through an analogue test. Convincing the Court to adopt that approach, however, will likely prove more difficult.

II. Terry Stops and Frisks

Judge Gorsuchs highly originalist approach to the Fourth Amendment in Carloss and Ackerman is difficult to reconcile with his wholesale acceptance of the stop-and-frisk doctrine under Terry v. Ohio. 35Open this footnote Close this footnote 35 392 U.S. 1 (1968). Open this footnote Close Terry allows an officer to stop and, in some cases, frisk a person on the street if the officer reasonably...conclude[s]...that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous. 36Open this footnote Close this footnote 36 Id. at 30. Open this footnote Close But Terry was a pragmaticnot an originalistdecision. Scholars and judges seeking a historical hook for Terry have uncovered little evidence linking Terrys stop and frisks to police actions at common law. 37Open this footnote Close this footnote 37 See Lawrence Rosenthal, Pragmatism, Originalism, Race, and the Case Against Terry v. Ohio, 43 Tex. Tech L. Rev. 299, 330-37 (2010); Sklansky, supra note 1, at 1804-06. For a tentative originalist explanation of Terrys stops, if not its frisks, see Minnesotav. Dickerson, 508 U.S. 366, 380 (1993) (Scalia, J., concurring). Open this footnote Close

Despite the doctrines shaky originalist footing, Judge Gorsuch has consistently ruled in favor of the government when criminal defendants have challenged the legality of stop and frisks 38Open this footnote Close this footnote 38 See, e.g., United Statesv. Willis, 533 F. Appx 849, 850-51 (10th Cir. 2013) (finding reasonable suspicion to stop and frisk an African American man when a caller reported a disturbance with a gun involving a black man wearing a gray shirt). Open this footnote Close and traffic stops. 39Open this footnote Close this footnote 39 See, e.g., United Statesv. Lopez, 518 F.3d 790, 797-800 (10th Cir. 2008). For a longer discussion of Lopez, see note 54 below. Open this footnote Close As his opinion in United Statesv. Nicholson 40Open this footnote Close this footnote 40 721 F.3d 1236 (10th Cir. 2013). Open this footnote Close makes clear, he is more likely to protect and expand existing stop-and-frisk doctrine than he is to offer a new, originalist critique of Terry.

A. United States v. Nicholson

In Nicholson, a police officer pulled over the defendants vehicle, mistakenly believing that a city ordinance prohibited a left turn he had made. 41Open this footnote Close this footnote 41 Id. at 1237. Open this footnote Close Applying Tenth Circuit precedent, the majority held the officers mistaken understanding of the law rendered the stop categorically unreasonable. 42Open this footnote Close this footnote 42 Id. at 1238, 1241-42; see also United Statesv. Tibbetts, 396 F.3d 1132, 1138 (10th Cir. 2005) ([F]ailure to understand the law by the very person charged with enforcing it is not objectively reasonable.); United Statesv. DeGasso, 369 F.3d 1139, 1144-45 (10th Cir. 2004) (holding that an officers failure to understand the plain and unambiguous law he is charged with enforcing...is not objectively reasonable). Open this footnote Close

Judge Gorsuch dissented, arguing that mistakes of law are per se unreasonable only where the law is unambiguous, [and] the error plain. 43Open this footnote Close this footnote 43 See Nicholson, 721 F.3d at 1248 (Gorsuch, J., dissenting). Open this footnote Close He emphasized that under Terry, the central Fourth Amendment inquiry is whether the government has acted reasonably 44Open this footnote Close this footnote 44 Id. Open this footnote Close whether a reasonable and prudent officer would have acted as [the officer] did in the circumstances. 45Open this footnote Close this footnote 45 Id. at 1249 (quoting Ornelasv. United States, 517 U.S. 690, 695 (1996)). Open this footnote Close He explained this approach will rarely yield...a neat set of legal rules 46Open this footnote Close this footnote 46 Id. at 1248 (quoting United Statesv. Sokolow, 490 U.S. 1, 7 (1989)). Open this footnote Close or bright-line tests. 47Open this footnote Close this footnote 47 Id. (quoting Floridav. Harris, 133 S. Ct. 1050, 1055 (2013)). Open this footnote Close Rather, the analysis will typically favor a case-by-case approach that takes a realistic view of human capacities and limitations. 48Open this footnote Close this footnote 48 Id. Open this footnote Close He concluded, therefore, that an officers mistaken understanding of the law should be assessed based on the totality of the circumstances. 49Open this footnote Close this footnote 49 Id. at 1248-49. Open this footnote Close

At the time, the Fifth, Seventh, Ninth, and Eleventh Circuits had all held categorically that an officers mistake of law could not justify a stop. 50Open this footnote Close this footnote 50 See United Statesv. McDonald, 453 F.3d 958, 962 (7th Cir. 2006); United Statesv. Chanthasouxat, 342 F.3d 1271, 1279-80 (11th Cir. 2003); United Statesv. King, 244 F.3d 736, 741 (9th Cir. 2001); United Statesv. Miller, 146 F.3d 274, 279 (5th Cir. 1998). Open this footnote Close Only the Eighth Circuit had held otherwise. 51Open this footnote Close this footnote 51 See United Statesv. Rodriguez-Lopez, 444 F.3d 1020, 1022-23 (8th Cir. 2006). Open this footnote Close But in an 8-1 decision, the Supreme Court ultimately adopted the minority approachJudge Gorsuchs approachin Heienv. North Carolina. 52Open this footnote Close this footnote 52 135 S. Ct. 530 (2014). Open this footnote Close

B. Implications

Legal scholars and advocates have frequently criticized Terry and its amorphous reasonableness standard for granting police too much discretion. 53Open this footnote Close this footnote 53 See Rosenthal, supra note 37, at 300-01, 300 n.7 (collecting literature). Open this footnote Close But Judge Gorsuchs jurisprudence suggests that rather than introducing originalist limits on Terry, he will protect and expand the substantial discretion Terry grants to police officers.

In Nicholson, Judge Gorsuch both emphasized Terrys pragmatic focus on the reasonableness of a stop and encouraged courts to conduct case-by-case analyses. This approach is unlikely to generate new, bright-line rules cabining police discretion under Terry. Judge Gorsuch also appears willing to show officers a great deal of deference when evaluating the reasonableness of their conduct, 54Open this footnote Close this footnote 54 See, e.g., United Statesv. Lopez, 518 F.3d 790, 797-800 (10th Cir. 2008). In Lopez, officers stopped the defendants truck after seeing a man place a cooler in the bed of the truck. Id. at 798. The trial court determined the officers observations were insufficient to create reasonable suspicion that there were drugs in the cooler; they amounted to inchoate suspicions and unparticularized hunches. United Statesv. Lopez, 485 F. Supp. 2d 1226, 1236 (D. Kan. 2007). Judge Gorsuch overturned that finding, emphasizing the officers training and experience in detecting drug sales. See Lopez, 518 F.3d at 792, 797-800. Open this footnote Close suggesting that, as a practical matter, he may not see bright-line rules as useful or desirable.

One specific Terry challenge the Court may soon confront is the tension between more expansive Second Amendment rights 55Open this footnote Close this footnote 55 See, e.g., District of Columbiav. Heller, 554 U.S. 570, 635-36 (2007). Open this footnote Close and broad police discretion to conduct stop and frisks. In an opinion joined by Judge Gorsuch, the Tenth Circuit in United Statesv. Rodriguez 56Open this footnote Close this footnote 56 739 F.3d 481 (10th Cir. 2013). Open this footnote Close held that officers can stop and frisk individuals simply because they are carrying concealed firearms, even if the jurisdiction allows for permitted concealed carry. 57Open this footnote Close this footnote 57 Id. at 486-87, 491 (citing N.M. Stat. Ann. 30-7-2). Open this footnote Close Similarly, the Fourth Circuit recently held in United Statesv. Robinson 58Open this footnote Close this footnote 58 846 F.3d 694 (4th Cir. 2017) (en banc). Open this footnote Close that in concealed-carry jurisdictions, once an officer has legally stopped a person, the officer can frisk him if he is armed. 59Open this footnote Close this footnote 59 Id. at 701. Open this footnote Close But in tension with those holdings, the Sixth, Fourth, and Third Circuits have held that where state law allows open carry of firearms, the police cannot conduct a Terry stop simply because a person visibly carries a gun. 60Open this footnote Close this footnote 60 See Northrupv. City of Toledo Police Dept, 785 F.3d 1128, 1131-33 (6th Cir. 2015); United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013); United Statesv. Ubiles, 224 F.3d 213, 218 (3d Cir. 2000). Open this footnote Close

The Court is likely to confront this growing tension in the coming years. The Robinson dissent urged the court to adopt a rule that officers cannot conduct frisks of armed individuals without evidence that they are not only armed but also dangerous. 61Open this footnote Close this footnote 61 See Robinson, 846 F.3d at 707, 709 (Harris, J., dissenting). Open this footnote Close But as he did in Rodriguez, Judge Gorsuch would likely uphold the legality of the frisk in Robinson. In Rodriguez, the Tenth Circuit reasoned that an officer making a lawful investigatory stop [must have] the ability to protect himself from an armed suspect whose propensities are unknown. 62Open this footnote Close this footnote 62 Rodriguez, 739 F.3d at 491. Open this footnote Close Instead of the dissents rule, Judge Gorsuch is likely to favor an approach that prioritizes officer safety by considering the totality of the circumstances and tak[ing] a realistic view of human capacities and limitations, as he did in Nicholson. 63Open this footnote Close this footnote 63 United States v. Nicholson, 721 F.3d 1236, 1248 (10th Cir. 2013) (Gorsuch, J., dissenting). Open this footnote Close

Conclusion

It is too simple, then, to say that Judge Gorsuch is an originalist or that he will merely preserve Justice Scalias common law approach to the Fourth Amendment. True, Judge Gorsuch has adopted Justice Scalias bright-line trespass test for searches of personal property. But while Justice Scalia never conclusively resolved whether stop and frisks would have been permitted at common law, 64Open this footnote Close this footnote 64 See Minnesotav. Dickerson, 508 U.S. 366, 380 (1993) (Scalia, J., concurring). Open this footnote Close he was always frank regarding his preference for bright-line rules over thol totality-of-the-circumstances. 65Open this footnote Close this footnote 65 See United States v. Mead Corp., 533 U.S. 218, 241 (2001) (Scalia, J., dissenting); see also Justice Antonin Scalia, The Rule of Law as a Law of Rules, Oliver Wendell Holmes, Jr. Lecture at Harvard University (Feb. 14, 1989), in 56 U. Chi. L. Rev. 1175, 1186 (1989). Open this footnote Close Conversely, Judge Gorsuch seems not just to tolerate but to prefer case-by-case reasonableness inquiries when it comes to stop and frisks. 66Open this footnote Close this footnote 66 See United Statesv. Nicholson, 721 F.3d 1236, 1248-49 (2013) (Gorsuch, J., dissenting) (arguing for a case-by-case approach that considers the totality of the circumstances and takes a realistic view of human capacities and limitations). Open this footnote Close So although Judge Gorsuch could, if confirmed, posit an originalist answer to Terry and thereby develop a unified originalist approach to the Fourth Amendment, there is nothing in his record to indicate that such a project interests him.

* Sophie J. Hart, J.D. Candidate, Stanford Law School, 2017. Dennis M. Martin, J.D. Candidate, Stanford Law School, 2018.

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Judge Gorsuch and the Fourth Amendment - Stanford Law Review Online

CONCORD, N.H. (Mar.10, 2017) The New Hampshire House has passeda bill that would ban material support or resources towarrantless federal spying.The vote was 199-153.

Rep. Neal Kurk and Rep. Carol McGuire, along with two cosponsors, introduced House Bill 171 (HB171). The legislation would prohibit the state or its political subdivisions from assisting a federal agency in the collection of electronic data without a warrant.

Neither the state nor its political subdivisions shall assist, participate with, or provide material support or resources to enable or facilitate a federal agency in the collection or use of a persons electronic data or metadata, without that persons informed consent, or without a warrant issued by a judge and based upon probable cause that particularly describes the person, place, or thing to be searched or seized, or without acting in accordance with a judicially-recognized exception to the warrant requirement of the Fourth Amendment to the Unites States Constitution.

On Feb. 15, the full House gave HB171 initial approval with an ought to pass recommendation by a 199-153 vote. It was then referredback to the House Criminal Justice and Public Safety Committee. Under House rules, bills with certain subject matter are required to go through a 2nd committee for approval, however the Chair has the discretion to decline that 2nd referral.

Today, House House Criminal Justice and Public Safety ChairDavidWelch(r) exercised that prerogative per House Rule 46(f), and the original Feb. 15 vote stands as final House passage of the bill.

PRACTICAL EFFECT

Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, passage of HB171 wouldhinder warrantless surveillance in the state. For instance, if the feds wanted to engage in mass surveillance on specific groups or political organizations in New Hampshire, it would have to proceed without state or local assistance. That would likely prove problematic.

The feds share and tap into vast amounts of information gathered at the state and local level through a programknown as the information sharing environment or ISE. This includes monitoring phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies. In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

State and local law enforcement agencies regularly providesurveillance data to the federal government through ISE and Fusion Centers. They collect and store information from cell-site simulators (AKA stingrays), automated license plate readers (ALPRs), drones, facial recognition systems, and even smart or advanced power meters in homes.

Passage of HB171 would set the stage to end this sharing of warrantless information with the federal government. It would also prohibit state and local agencies from actively assisting in warrantless surveillance operations.

By including a prohibition on participation in the illegal collection and use of electronic data and metadata by the state, HB171would also prohibit what NSA former Chief Technical Director William Binney called the countrys greatest threat since the Civil War.

The bill would ban the state from obtaining or making use of electronic data or metadata obtained by the NSA without a warrant.

Reuters revealed the extent of such NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known Special Operations Divisions and the cases rarely involve national security issues. Almost all of the information involves regular criminal investigations, not terror-related investigations.

In other words, not only does the NSA collect and store this data. using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.

This is the most threatening situation to our constitutional republic since the Civil War, Binney said.

NSA FACILITIES

The original definition of material support or resources included providing tangible support such as money, goods, and materials and also less concrete support, such as personnel and training. Section 805 of the PATRIOT Act expanded the definition to include expert advice or assistance.

Practically-speaking, the legislation would almost certainly stop the NSA from ever setting up a new facility in New Hampshire.

In 2006, the agency maxed out the Baltimore-area power grid, creating the potential, as the Baltimore Sun reported, for a virtual shutdown of the agency. Since then, the NSA aggressively expanded in states like Utah, Texas, Georgia and elsewhere, generally focusing on locations that can provide cheap and plentiful resources like water and power.

For instance, analysts estimate the NSA data storage facility in Bluffdale, Utah, will use 46 million gallons of water every day to cool its massive computers. The city supplies this water based on a contract it entered into with the spy agency. The state could turn of the water by voiding the contract, or refusing to renew it. No water would effectively mean no NSA facility.

What will stop the NSA from expanding in other states? Bills like HB171. By passing this legislation, New Hampshire would become much less attractive for the NSA because it would not be able to access state or local water or power supplies. If enough states step up and pass the Fourth Amendment Protection act, we can literally box them in and shut them down.

LEGAL BASIS

HB171 rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. Theanti-commandeering doctrineis based primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

NEXT UP

California Gov. Jerry Brown signed a limited version of the Fourth Amendment Protection Act in 2014. The law prohibits state cooperation when a federal agency requests state assistance in data collection if there exists actual knowledge that the request constitutes an illegal or unconstitutional collection of electronically stored information. Although that law will need further steps to put into practical effect, it set a strong foundation that HB171 would expand on for New Hampshire.

The legislation willnow move to the Senate for further consideration.

Read the original here:
New Hampshire House Passes Bill Banning Support for Warrantless Federal Spying Programs - Tenth Amendment Center (blog)

History >> US Government The Fourth Amendment was part of the Bill of Rights that was added to the Constitution on December 15, 1791. It protects people from unlawful searches and seizures. This means that the police can't search you or your house without a warrant or probable cause.

From the Constitution

Here is the text of the Fourth Amendment from the Constitution:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Reasons for the Fourth Amendment

The Fourth Amendment came about because of the actions of British tax collectors before the Revolutionary War. They would use general warrants to enter and search any house they wanted without needing evidence of wrongdoing. The Founding Fathers wanted to protect people from this sort of invasion of privacy from the government.

What is "searches and seizures"?

A "search" under the Fourth Amendment is when a public employee (like a police officer) looks at something that is considered "private". It typically takes two things in order for something to be considered "private":

1) the citizen thought it was private and it would not be able to be viewed by the public (For example, something inside a house would be private, something on the driveway could be viewed by anyone).

2) these expectations of privacy are realistic (It wouldn't be realistic to expect something on your driveway to be private).

When someone is "seized" they are not free to leave (like being arrested and placed in jail). When something is "seized" it cannot be taken back (like the police taking your wallet and not giving it back).

Judges Warrant

In order to conduct a legal "search" or "seizure" the police must have a warrant written by a judge. To get this warrant they must present evidence to the judge that some criminal activity has taken place. This assures that the police can't enter a person's home or arrest a person without evidence that has been reviewed by a judge.

Probable Cause

The Fourth Amendment also states that there must be "probable cause." This means that there is enough evidence to show that a crime has likely been committed. The police must have this evidence before any arrest or search. Any evidence found during the search does not count as probable cause.

How does this work in public schools?

The requirements for search and seizure are slightly different in the public schools. The Supreme Court has said that school officials and police officers can search a student if they have "reasonable suspicion" that a crime has occurred. This is less of a requirement than "probable cause."

Some Searches Are Allowed

There are certain places and situations where people are searched or stopped without a warrant. Consider the airport where everyone who flies is searched. When you agree to fly, you give up some of your Fourth Amendment rights. Another example is a roadblock that tests for drunk drivers. When you drive on public roads you give up some of your Fourth Amendment rights. These searches are generally accepted by the citizens for their own safety and protection.

Interesting Facts about the Fourth Amendment

To learn more about the United States government:

Works Cited

History >> US Government

Go here to see the original:
US Government for Kids: Fourth Amendment

The American Civil Liberties Union is moving to quash a police warrant granted to search data on a Facebook page of a group protesting the Dakota Access pipeline.

The American Civil Liberties Unionfiled a motion Wednesday to strike what it described as a far-reaching and unconstitutional request by the Whatcom County Sheriffs Department in Bellingham, Wash., to search the Facebook page of the Bellingham #NODAPL Coalition.

The coalition and other individuals across the country have engaged in protests against the Trump administrations plan to move forward on construction of the pipeline. The group is said to have been involved in a protest at Bellinghams U.S. Bank in early February.

According to the ACLU, the founder of the Facebook page received an email from Facebook on March 3 with a copy of the warrant issued to search the site. The message, cited by the ACLU in its filing, also indicated that a motion would need to be filed by March 8 to quash the warrant and that Facebook would otherwise respond to the legal process. The ACLU has posted a copy of the warrant on its website.

The motion argues that the warrant is unconstitutional because it permits a broad search of private electronic data protected by the First and Fourth Amendments.

The warrant at issue here is deeply problematic and runs afoul of constitutional protections.Political speech and the freedom to engage in political activity without being subjected to undue government scrutiny are at the heart of the First Amendment, La Rond Baker, staff attorney at the ACLU of Washington, said in a statement issued late Wednesday.

Further, the Fourth Amendment prohibits the government from performing broad fishing expeditions into private affairs. And seizing information from Facebook accounts simply because they are associated with protests of the government violates these core constitutional principles, Baker said.

The Whatcom County Sheriffs Department did not respond to a request for comment by press time.

The First Amendment protects political speech, the right to receive information, and the right to associate with others to engage in political speech and advocacy without state monitoring or interference. The warrant here intrudes on all of these rights and would chill both political speech and association at the heart of the First Amendment, the motion states.

The warrant also fails to meet the basic Fourth Amendment requirement that warrants be particularized, not least because it potentially extends to any member of the public, supportive or not, who interacted with the group."

This post was updated at 2:06 p.m.

More:
ACLU challenges warrant to search Facebook page of Dakota Access opponents - The Hill