You be the Judge! 10/26/15

Click to access 14-5194.pdf


Please read the opinion that I link above.  There is no question but that the decision in the case is a correct one based on the limits of Supreme Court investiture of a person’s right to enforce a remedy for a governmental violation of liberty after the violation has occurred.

However, as a Judge in this case you would have a choice to make, if you thought the 4th and 5th Amendments should provide such a remedy, lest the protections become stripped of meaning.  There are several possible choices here, by the way.  I probably would have recognized the Bivens right as extending to this man in this situation because the FBI intended to use his coerced confession in a criminal proceeding, reading between the lines.  But I would have stayed my Judgment pending Supreme Court review.

What would you have written?


Florence and the 4th Amendment

I promised Mark I’d post some thoughts on Florence v. Board of Freeholders, the recent 4th Amendment case from SCOTUS. Since this post isn’t a scholarly document, I’m not going to provide extensive references or links.  My sources are the opinions from the various cases, which can be found at various sites on the web.

First, a brief summary of the case from Lyle Denniston at SCOTUSblog:

Insisting that it has no expertise in how to run a jail or prison, the Supreme Court divided 5-4 Monday in ruling that every person arrested and held temporarily can be subjected to a routine strip search, so long as it involves only a visual inspection without touching or abusive gestures.  The prisoner, however, may be told to manipulate some part of the body.  Some difference of emphasis among the five Justices in the majority made it appear that the decision might be more limited than at first glance.

The ruling, it appeared, did not authorize jail officials to conduct a strip search unless the prisoner was to be placed among other prisoners at the facility.  Two Justices wrote separately in an effort to stress that aspect of the ruling, and their votes were essential to the 5-4 result.

The decision was a clear defeat for challengers to strip searches as a general policy.  The Court explicitly refused to limit the authority to use strip searches only to situations in which a specific individual gave officers a reason to consider that prisoner to be dangerous or likely to be carrying a concealed weapon or drugs.   The same kind of visual inspection of an arrestee’s naked body, the Court declared, can be applied to anyone placed in the general population of a jail or prison, even if only temporarily.

If you’re still interested, then there is more below.

Continue reading

4th Amendment News: SCOTUS Rules GPS Tracking is a Search

We’ve talked about this case before.  Details at Wired.  The case was unanimous.   Scalia wrote the opinion and was joined by 4 others and Alito wrote a concurring opinion that was joined by three.  So 9-0 in favor of limiting a police power.

What’s really surprising is that it a 9-0 in favor of tossing a death sentence of a DC drug dealer.

The case is available here.

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