December 2022 S M T W T F S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31
- MN: “Deer-in-the-headlights” look is a factor in RS
- D.Mass.: Park ranger’s arrest of def outside park wasn’t 4A violation, even if statute violated
- Reason: The Federal Government’s Plan to Track Truckers’ Every Movement Is a Privacy Nightmare
- N.D.Cal.: There’s almost always PC in the contents of a stolen car, such as something of owner’s
- D.S.D.: Totality of circumstances showed def likely resided in dwelling for entry on arrest warrant
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Fourth Amendment cases,
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"If it was easy, everybody would be doing it. It isn't, and they don't."
“I am still learning.”
—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property."
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Qualified immunity
CA5: 1836 US-Morocco Treaty of Peace and Friendship as applied to courthouse metal detector not “clearly established law”
Plaintiffs are Moorish-Americans who, on the way to file papers with the clerk, refused to go through the metal detector at the Caddo Parish Courthouse. Entrance was denied. They refused to leave and were then arrested for trespass. They sued … Continue reading
techdirt: Immunity Denied To Deputies Who Tried To Turn Muscular Dystrophy Into Reasonable Suspicion
techdirt: Immunity Denied To Deputies Who Tried To Turn Muscular Dystrophy Into Reasonable Suspicion by Tim Cushing (reporting on Klaver v. Hamilton Cty., 2022 U.S. App. LEXIS 30642 (6th Cir. Nov. 3, 2022)*)
A single incident of legal mail being opened before it got to plaintiff in a county jail doesn’t state a constitutional violation. Braithwaite v. Suffolk Cty. N.Y., 2022 U.S. Dist. LEXIS 204233 (E.D.N.Y. Nov. 9, 2022). There is no reasonable … Continue reading
“Eli Martinez spent four and a half days in custody while he tried to explain to his jailers that his brother, Hector M. Rodriguez, was the one described in an arrest warrant. After Martinez was released, he sued two probation … Continue reading
In this excessive force case, the Fifth Circuit discusses qualified immunity in the heat of a confrontation. Henderson v. Harris County, 2022 U.S. App. LEXIS 28436 (5th Cir. Oct. 12, 2022). The standard of review:
Lack of consent is no defense to a probation search. United States v. Lombardo, 2022 U.S. Dist. LEXIS 173618 (N.D.N.Y. Sep. 20, 2022).* Defendant was detained after furtive gestures. He ultimately voluntarily spoke to the officers. There was no constitutional … Continue reading
CA6: District Court cannot order search of juror’s cell phone to investigate alleged juror misconduct
In a hearing on alleged juror misconduct, the district court cannot order the juror’s cell phone to be searched for evidence of what happened. In re Sittenfeld, 2022 U.S. App. LEXIS 26700 (6th Cir. Sep. 23, 2022). Plaintiff’s complaint against … Continue reading
NV: Protective sweep doesn’t require a prior arrest and state didn’t articulate the RS of potential danger for it
“While we hold that a protective sweep does not require a prior arrest, we conclude that the district court correctly concluded that the search performed here was not a lawful protective sweep because it was not based on articulable facts … Continue reading
Defendant was already stopped and the officer suspected DUI. She was handcuffed and transported for a breath test. This was an arrest for a misdemeanor that did not happen in the officer’s presence, and it thus violated the state constitution. … Continue reading
CA9: Arrest for misd without having seen it violated state law but not 4A; qualified immunity granted
The requirement that an arrest for a misdemeanor have occurred in the officer’s presence is a statutory rule [I thought common law], but not a Fourth Amendment requirement. Here, the officer still had probable cause, but didn’t see it. Not … Continue reading
CA9: Oral amendment to SW to add a place to be searched never incorporated violates 4A, but GFE here because no controlling authority
Officers had a search warrant for plaintiff’s hotel room searching for evidence of a drug operation. They called the issuing judge for permission to search plaintiff’s home under the same affidavit, which was orally granted, but the warrant was not … Continue reading
DDC: Delay in return of seized cell phone not necessarily unreasonable; Rule 41(g) provides procedural due process
DC Metro police seized numerous cell phones from BLM protestors, and they sued to recover them. The DC police policy wasn’t followed, but only by negligence, and that doesn’t state a claim against it. Rule 41(g) applies despite lack of … Continue reading
Public threats against FBI agents involved in the search requires leaving the affidavit for the search warrant under seal. In re Warrant, 2022 U.S. Dist. LEXIS 150388 (S.D. Fla. Aug. 22, 2022). Defendant’s traffic stop was factually based and not … Continue reading
Plaintiff’s prison warden denied qualified immunity for ordering three strip searches a day on plaintiff when he was in segregation. Fugate v. Erdos, 2022 U.S. App. LEXIS 23208 (6th Cir. Aug. 18, 2022). “The defendant officers were attempting to locate … Continue reading
Shooting a man advancing on an officer with a running chainsaw who was ignoring police commands to stop was subject to qualified immunity. Esker v. Lutz, 2022 U.S. App. LEXIS 23033 (7th Cir. Aug. 18, 2022).* The defendant officers’ contention … Continue reading
Officers violated the Fourth Amendment during defendant’s frisk when they removed his wallet from his pocket and searched it. People v. Lewis, 2022 NY Slip Op 04920, 2022 N.Y. App. Div. LEXIS 4797 (2d Dept. Aug. 10, 2022). The officer … Continue reading
Defendant officers’ motion for summary judgment on qualified immunity for violating the knock-and-announce rule is denied. The law is well settled for 25 years and there are no blanket exceptions. The rest is fact bound. Murphy v. Grochowski, 2022 U.S. … Continue reading
The Fourth Amendment does not require medical personnel participate in a prison strip search. Graham v. Wright, 2022 U.S. Dist. LEXIS 136026 (E.D. Cal. Aug. 1, 2022). Defendant’s stop for late night knocking on the door of a house where … Continue reading
In another court ordered video surveillance massage parlor case, this time a § 1983 case, the surveillance order was pre-Kraft where the 4th DCA suppressed surveillance there, so the defendants get qualified immunity. Taig v. Currey, 2022 U.S. Dist. LEXIS … Continue reading
Volokh Conspiracy: Qualifying Qualified Immunity: The Cases in Which the Fair Notice Rationale Clearly Supports …
Reason: Volokh Conspiracy: Qualifying Qualified Immunity: The Cases in Which the Fair Notice Rationale Clearly Supports … (“and clearly does not support qualified immunity.”) by Nathan Chapman