Archives for: January 2012, 29

01/29/12

Permalink 06:36:52 pm, by fourth, 217 words, 563 views   English (US)
Categories: General

The Raw Story: “Ron Paul: TSA ‘totally voids’ the Fourth Amendment”

The Raw Story: Ron Paul: TSA ‘totally voids’ the Fourth Amendment by David Edwards:

Republican presidential candidate Ron Paul said on Sunday that airport security should be turned over to private corporations because the Transportation and Security Administration (TSA) effectively “voids” the Fourth Amendment.

Paul’s son, Sen. Rand Paul (R-KY), claimed last week that he had been “detained” by the TSA for refusing an intrusive pat down at an airport in Nashville, Tennessee.

. . .

In 1973, the U.S. Court of Appeals for the Ninth Circuit ruled that the Fourth Amendment did not apply to airport security, “noting that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft.”

Paul did not say how privatizing airport screenings would circumvent the Ninth Circuit’s [1973] ruling [that the Fourth Amendment doesn't apply to airport screenings].

Watch this video from Fox’s Fox News Sunday, broadcast Jan. 29, 2012.

[Note: If private actors fulfilling a government function violate the Fourth Amendment, what difference does it make? The Fourth Amendment does apply to airport screenings--the question is reasonableness and special needs. TV talking heads don't get it and never will because the issue can't be explained in one sentence.]

Permalink 05:43:12 pm, by fourth, 701 words, 860 views   English (US)
Categories: General

M.D.Tenn.: School nurse's examination of 6 year old's vagina without notice to parents was unreasonable as a matter of law

The mother of a 6 year old girl told her school teacher that her daughter had a doctor's appointment because of a probable urinary tract infection. The school officials took it upon themselves to have the school nurse inspect the girl's vagina without telling the parents, and this was an unreasonable search with no qualified immunity. Enough case law had developed by the time this happened that school officials were on notice it was unreasonable and excessive. The school's reliance on "special needs" completely fails. Hearring v. Sliwowski, 2012 U.S. Dist. LEXIS 9578 (M.D. Tenn. January 26, 2012), USMJ R&R overruled:

As to whether, under these decisions, Plaintiff states a Fourth Amendment violation for the search of B.H., the Court concludes that the nature of the privacy interest here, the exposure of a 6 year-old girl's labia, is far greater than the students' privacy interests in T.L.O., Safford, Beard and Brannum. The nature of the search was B.H.'s pulling down her pants and underwear as well as the separation of her vaginal area before a nurse and also a school official that resulted in embarrassment and humiliation to B.H. There is proof that this search was without a medical justification or emergency, without parental consent and was contrary to professional and state standards for public school nurses. Based upon these decisions and facts, the Court concludes that Plaintiff states and proves a violation of B.H.'s Fourth Amendment right to be free from such invasive and unjustified searches of her person by a public school nurse.

The Magistrate Judge also cited the "special needs" doctrine as justifying Sliwowski's search, as a school nurse inquiring about the need for possible medical treatment. (Docket Entry No. 69, Report and Recommendation at 12-13) (Sliwowski "was not trying to prevent an imminent injury when she examined B.H. Instead, Nusre Sliwowski was trying to determine what medical care, if any, B.H. required for her existing medical condition").

The "special needs" doctrine applies where an important governmental interest justifies excusing the probable cause requirement of the Fourth Amendment, Ferguson v. City of Charleston, 532 U.S. 67, 76 n.7 (2001), or where compliance with Fourth Amendment standards is "impracticable." Bd. of Educ. of Independent School Dist. No.92 of Pottawatomie County v. Earls, 536 U.S. 822, 829 (2002) (drug testing of middle and high school students). In T.L.O., the Supreme Court recognized that school officials act in loco parentis for school children and "the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause." 469 U.S. at 341.

In Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), the Tenth Circuit considered this special needs doctrine in the context of genital examinations of pre-school students who were subjected to such searches. There, the school employed an agency to conduct health examinations, but the agency had to secure parental permission for such examinations. The district court ruled that the students' Fourth Amendment rights were violated given the absence of a medical emergency or parental consent. The Tenth Circuit held that the special needs doctrine did not apply because there was not any showing that securing a parent's consent was impracticable. Id at 1214-15. ...

. . .

Based upon these collective authorities, the Court concludes that the fundamental dignity of a young person's body is so obvious and the cited Supreme Court and Sixth Circuit decisions since 1984 provide more than fair warnings to school officials that such intrusive searches of students cannot be made by school officials without justification. The search of B.H. was not an emergency situation and was contrary to published national nursing standards and state educational standards for school nurses. As evidenced by her nursing supervisor, supra at 5, Sliwowski's search was not the "proper performance of [her] duties," Forrester, 484 U.S. at 223, that is a key rationale for qualified immunity. Applying Walker and Smith, the Court concludes that B.H.'s Fourth Amendment right to be free from such an highly invasive search was clearly established at the time of Sliwowski's search and that Sliwowski is not entitled to qualified immunity.

Permalink 12:15:31 am, by fourth, 221 words, 748 views   English (US)
Categories: General

CA11: Damage to door in attempt to enter, without entry, is de minimus for Fourth Amendment purposes

In a pro se § 1983 case over an officer allegedly banging on and kicking a door to the point of damaging it to get access, but did not get access, the court agrees with the district court that there was no seizure or interference with liberty. This damage was de minimus, and it did not rise to the level of a Fourth Amendment violation. Porter v. Jewell, 453 Fed. Appx. 934 (11th Cir. 2012) (unpublished):

The Constitution, however, "is not concerned" with de minimis violations. Ingraham v. Wright, 97 S.Ct. 1401, 1414 (1977); see also United States v. Hernandez, 418 F.3d 1206, 1212 n.7 (11th Cir. 2005) (stating that "[o]f trifles the law does not concern itself: De minimis non curat lex"); United States v. Purcell, 236 F.3d 1274, 1279 (11th Cir. 2001) (concluding that a de minimis delay during a traffic stop did not violate the Fourth Amendment); Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000) (stating that "the application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment"). Although we have not addressed the amount of property damage required to constitute a "seizure" of that property under the Fourth Amendment, we are convinced -- based on our decisions in these other contexts -- that a de minimis amount of damage does not rise to the level of a Fourth Amendment violation.

Permalink 12:05:22 am, by fourth, 84 words, 499 views   English (US)
Categories: General

UT: Stop valid where there still was some legal basis for it

Although the officer’s articulated basis of the stop was partly wrong under state law, it was partly right, and that was enough to legally support the stop. State v. Juma, 2012 UT App 27, 270 P.3d 564, 700 Utah Adv. Rep. 64 (2012).*

Minnesota statute requiring DNA production of anybody charged with a felony but pled down to a misdemeanor does not violate the Fourth Amendment or the Minnesota Constitution. State v. Johnson, 813 N.W.2d 1 (Minn. 2012).*

Same with juveniles. In re M.L.M., 813 N.W.2d 26 (Minn. 2012).*

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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2013-14 Term:
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  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
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  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

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  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)


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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"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!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"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."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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