- TN: “Process” in a child exploitation statute does not include SWs; legislature could have added SWs if it intended that
- NY3: Judge who signs SW doesn’t have to recuse from suppression hearing
- LA5: Car in driveway near the street wasn’t on the curtilage
- CA5: 4A IAC for not challenging search doesn’t avoid deportation
- TX3: Littering supports a stop
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Section 1983 Blog
"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
"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: § 1983 / Bivens
Defendants don’t get the benefit of a Heck bar without putting the papers of the underlying case into evidence. “As stated, court records online indicate that two felony drug charges have been dismissed. Without copies of relevant court documents and … Continue reading
E.D.N.Y.: Govt’s possession of cell phone for nine months waiting to decrypt password isn’t unreasonable
Defendant’s phone has been in the hands of the government for many months, but defendant refused to provide the password to access the phone. That justifies the delay in the government accessing the phone. The motion for return of property … Continue reading
CA9: Not well settled law that LEO stealing property during a search is 4A violation, so alleged thief gets qualified immunity
The law is not well settled, thus requiring qualified immunity, that a law enforcement officer’s stealing plaintiff’s property during a search is a violation of the Fourth Amendment. (Apparently something that’s obviously an unreasonable seizure doesn’t matter as long as … Continue reading
Officer Minard stopped the plaintiff for a minor traffic offense, and he let her off with a warning. Despite the break, she “flipped him the bird,” and the officer blue lighted her again and this time ran into her trying … Continue reading
CA9: Injunctive relief against records surreptitiously collected is a possible remedy for a 4A violation
In a wide ranging case against the FBI for conducting covert surveillance in a mosque and targeting Muslims allegedly solely based on their religion, the court holds that injunctive relief to expunge what was seized is a possible remedy for … Continue reading
Plaintiff’s indictment by a Texas grand jury cuts off his malicious prosecution claim. There was no evidence the grand jury was misled. Curtis v. Sowell, 2019 U.S. App. LEXIS 4666 (5th Cir. Feb. 15, 2019). Defendant was encountered by police … Continue reading
Defendant was ordered out of the car, and she left her purse inside. Her purse was legitimately subjected to the inventory since it was left in the car. State v. Fulmer, 296 Ore. App. 61, 2019 Ore. App. LEXIS 190 … Continue reading
CA11: § 1983 malicious prosecution claim defeated by PC even though exonerating information omitted from arrest affidavit
Plaintiff police officers’ false arrest claim fails on qualified immunity. Even though allegedly exonerating information was omitted from the arrest affidavits, and the criminal case was dropped by the state’s attorney, it wasn’t enough to undermine the probable cause that … Continue reading
Officers who visited plaintiff in his hospital room he shared with another were sued for allegedly violating his reasonable expectation of privacy. There is no clear controlling authority, and the officers get qualified immunity [and the issue goes undecided]. Bonds … Continue reading
CA9: Ptf’s affidavit there was no announcement before battering ram broke in her door makes her civil case survive summary judgment
Plaintiff showed enough of a fact question that officers never announced they were attempting to enter on a search warrant, breaking in her door, to survive their motion for summary judgment. They said, she said. Greiner v. Wall, 2019 U.S. … Continue reading
Essentially the only evidence supporting defendant’s conviction came from his search and seizure of evidence. Thus, his § 1983 case over the search is barred by Heck. Anderson v. Houston, 2019 U.S. Dist. LEXIS 19246 (D.Utah Feb. 5, 2019).* For … Continue reading
Plaintiff was imprisoned for six months on a drug charge. After a successful motion to suppress, the charges were dropped. His § 1983 case against the officers fails, but it survives challenge against the city. “He has adequately alleged that … Continue reading