Category Archives: politics

What Chumps? The only chump I see sits in the center chair.

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I think the chief justice has lost control of his ship or at least has been poisoned by the bitter pen of Justice Scalia. His writings in dissent serve to diminish the legitimacy of the Court, and use language that – with the exception of Scalia – I rarely see in Supreme Court opinions.

Here is the start of his dissent in the Arizona redistricting case:

“Just over a century ago, Arizona became the second State in the Union to ratify the Seventeenth Amendment. That Amendment transferred power to choose United States Senators from “the Legislature” of each State, Art. I, §3, to “the people thereof.”…

What chumps! Didn’t they realize that all they had to do was interpret the constitutional term “the Legislature” to mean “the people”? The Court today performs just such a magic trick with the Elections Clause.”

WHAT CHUMPS? The only chump I see sits in the center chair. He can make his argument without having a temper tantrum.

Ironically, the dissent in this case by Scalia is measured and focused, without the rancor that we often see. Of course, his one friend, Ruth Bader Ginsburg is writing the opinion of the Court, and while he criticizes it, he does so without the fury he reserves for others.

Highlights from the Court’s decision in the Marriage Equality case

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While my first read of Kennedy’s opinion in Obergefell is certainly not detached, it is truly an enjoyable opinion to read. Eloquent in its defense of liberty, thorough in its review of precedents involving privacy and marriage, and makes a persuasive argument. Truly Justice Kennedy’s shining moment.

Some highlights:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as welearn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

Choices about marriage shape an individual’s destiny. As the Supreme Judicial Court of Massachusetts has explained, because “it fulfils yearnings for security, safehaven, and connection that express our common human- ity, civil marriage is an esteemedinstitution, and thedecision whether and whom to marry is among life’s momentous acts of self-definition….

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, suchas expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.”

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people be- come something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.”

I’ll leave the hypocrisy of the dissents for another post.

Religious freedom and compliance with the Court’s Same Sex Marriage Decision.

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Religious liberty does not mean your reliance on ancient texts taken out of context and translated using the state of the art tools of the early 17th century, permits you to deny full equal rights to others. There really is no religious freedom issue. Those opposed to same sex marriages do not have to enter into same sex marriages. Nor do their churches have to consecrate them. The Court spoke today, but the “religious freedom” lunacy will continue for some time.

And like after Brown v Board of Education, when southern states refused to implement the decision, we are already seeing plans to not comply in places like Texas and Alabama. In Texas, the Governor is issuing a statement prioritizing the “religious freedom” of Texans. In several counties in Alabama, their county clerks are no longer issuing any marriage licenses.

While it took a decade for the Civil Rights Act to finally force compliance, the Department of Justice has all the tools it needs today to nip this in the bud much more quickly today. The Court has said that marriage is a fundamental right. The DOJ can litigate to make sure that right is not deprived.

Thoughts on Ferguson and Grand Juries – a guest post I did

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Guest interview with Bruce Reyes-Chow, on his website:

Like so many people, the past few months have been filled with thoughts about the particularities of what has taken place in Ferguson, MO and the subsequent conversations about race in the United States of America. Not only have many been diving deeply into issues of being Black and male, but about the very nature of the justice system and the behavior police forces around the country.

After the decision was announced that Darren Wilson would not be indicted for the shooting death of Michael Brown (video below), like so many I was disappointed. And the more that I have read has only reinforced that disappointment.  That said, I am not an attorney, so I have turned to a few lawyer friends to help translate some of what has been going on as well as get some more opinions from people I trust.

Thanks to all who are willing to offer their voices to the mix.

Michael Gizzi,  Illinois State UniversityMy interview with Michael Gizzi

1) Please explain the Grand Jury Process: why does it exist, who is chosen to serve, what is the burden of proof, is there any accountability for decisions? Anything else that would be helpful as we think about the Ferguson decision?

A grand jury is convened for the sole purpose of determining whether probable cause exists to indict an individual of a criminal charge, and thus to proceed to trial. Grand Juries exist to investigate crime and determine whether a criminal trial is warranted. Their origins date back to the time of Magna Carta in England, and the Fifth Amendment to the U.S. Constitution provides the right to be tried only after indicted by a Grand Jury. Yet, grand juries are not as prevalent today as they once were, and are only used in about half of the states. In most state cases prosecutors file an “information” with the Court, indicating the charges, and the judge then holds a preliminary hearing to determine if there is probable cause to try the defendant.

When used, grand juries are investigative bodies that have the authority to issue a “true bill” or indictment in a case if they find that there is probable cause that the suspect committed a crime. Probable cause is the same standard used for police to arrest someone, and is the basis for a warrant for government to conduct a search or seizure.

The Supreme Court has interpreted probable cause as a fluid, practical, common sense concept. Writing in Draper v. United States (1959), the Court said “In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” In 1983, in Illinois v. Gates, the Court utilized a “totality of the circumstances” standard to measure probable cause. Look at all the facts, and make a judgement about whether there is enough evidence to arrest, or to search, or to indict. On a scale of 1 to 100, probable cause can be thought of as a slightly higher than 50% standard of guilt. It is enough to launch the adversarial process against a defendant, but a much lower standard than the “beyond a reasonable doubt” needed to convict. Totality of circumstances is an extremely malleable, low standard for determining probable cause.

Historically, the grand jury served to protect the people, by making sure that government actors were held accountable to citizens when they brought criminal charges against a defendant. But the reality of the modern grand jury is that it is an almost entirely one-sided affair. A grand jury “investigates” an alleged crime, but the evidence brought to it is entirely provided by the prosecution. It is not an adversarial process. It is not a process in which two sides of an issue are brought to bear. The prosecutor has an agenda, and tries to present evidence in a way that will demonstrate probable cause — given the low thresh-hold of totality of the circumstances — this is an easy task to do.

In the Ferguson case, it is not at all apparent that the prosecutor wanted to indict Wilson. Indeed, the grand jury appears to have been used to provide cover in the desire NOT to indict. When you read the transcript of the testimony of Office Wilson, it reads more like the prosecutor is questioning his client the way a defense attorney would if the client chose to take the stand. Indeed, there was no real cross-examination of the witness. He was lobbed slow pitch soft balls, and never asked hard questions, like “why if Brown solidly “full forced” punched him in the face two times, did you have no injuries to reflect that?” Why is taking one step towards Wilson “charging him?” Wilson was not treated as a suspect, he was treated as a witness. Had he been treated otherwise, I doubt Wilson’s attorney’s would have permitted him to testify.

Why did these things not happen? Well, they didn’t happen, because the prosecutor apparently did not view Wilson as the wrong-doer. The entire grand jury provided the prosecutor “cover” and was used to take the blame for not trying Wilson. Yet, the grand jury almost always does exactly what the prosecutor wants, because the prosecutor controls all of the information the grand jury receives. We have to realize that the grand jury reflects the choices of the prosecution. A grand jury proceeding is not a trial.

2) How much power influence does this prosecutor have in this process? 

The prosecutor began his comments by offering condolence to the family of Michael Brown, but his criticism of social media was both offensive and misguided. If anything, the evidence that has come forth has made it clear that the Ferguson and St Louis police engaged in much manipulation over the past few months, spinning the case. Remember the claims that Wilson was severely beaten by Brown? The photos released made it clear that he had at best, minor bruises. The attacks on social media were baseless. They were simply an effort to deflect from the actions of the Ferguson Police Department and the intent to avoid prosecution of Wilson.

The prosecutor in a grand jury has almost total power. He alone controls the evidence that is presented; he alone selects WHICH evidence to bring forward. He alone provides the “spin” on the evidence. Had the prosecutor been inclined to seek a true bill, then some of Wilson’s comments alone, could have probably been enough, under the totality of the circumstances to warrant the indictment.

The prosecutor’s “lecture” on national television made it look like the grand jury had in effect tried the case. But that is inherently deceptive. It did nothing of the sort. It heard one narrative. In listening to the prosecutor, in many ways it felt like the grand jury proceeding was a trial against Michael Brown.

3) I do believe in the legal system, but it seems that when it comes to the police involvement, issues of race and/or socioeconomic there are often inconsistencies that creates distrust and suspicion of the system. Thoughts?

This is the million dollar question and issue, and deserves a full essay in response. There is overwhelming evidence that racial minorities are treated differently by police, across the country. The racial profiling data we have from numerous sources, and from cities large and small, make this clear. But let’s consider this instead.

The police and prosecution are co-dependent. They need each other and exist in a exchange relationship. The police make arrests, but those arrests have no meaning if they are not prosecuted. The prosecution relies almost entirely on the police for making arrests, and for providing the bulk of the evidence used in their cases. They are partners. One of the consequences of this is a strong desire by prosecutors to avoid trying police officers for on-the-job shootings. The unwillingness of prosecutors to indict police officers involved in shootings serves to protect that relationship, but it also results in generating deep distrust by the public, through the appearance that in the criminal justice system, the cop can do no wrong.

4) Seems like this is not the end for Darren Wilson and other officials in Ferguson. so what, if any, might be next in the legal process: federal, criminal, or civil?

I can easily see a civil suit filed by Brown’s family for wrongful death against Wilson and the Ferguson Police Department; I would not at all be surprised to see a federal civil rights suit brought by the Department of Justice. I suspect federal criminal charges are less likely, but not impossible. Remember, there is no double jeopardy. Wilson has not been tried for anything, he was just not indicted.

5) Who should we be reading or following for helpful information about the Ferguson case in particular and the justice system in general.

In terms of who to read, Michelle Alexander’s book The New Jim Crow: Mass Incarceration in the Age of Colorblindness does an excellent job exploring the issues of the problems of race and the criminal justice system. The book is not without flaws however, but it paints a compelling picture of how the courts have immunized the criminal justice system from claims of racial bias.

The aftermath of Ferguson has resulted in significant attention given to the militarization of policing. On that, there is no better read than Radley Balko’s The Rise of the Warrior Cop: The Militarization of America’s Police Forces.

For the single most compelling academic work on the power of prosecutors, I highly recommend William Stuntz’ The Collapse of American Criminal Justice. It is not an easy read, but it is well worth the time. The book considers both prosecutors, the decline of jury trials, and how race has impacted the system. It is a must read. A shorter, easier read is Angela Davis, Arbitrary Justice: The Power of the American Prosecutor.

In terms of who the follow? I’d strongly recommend following the new organization, “The Marshall Project,” an independent non-partisan journalistic voice covering the criminal justice system, headed by former New York Times Editor Bill Keller. Their daily email provides a wealth of information. See:

Thanks so much Michael for taking the time to jot down some reflections.

Here is the video of the announcement from PBS Newshour in case you missed it . . .

Michael Gizzi is an associate professor of criminal justice who teaches constitutional law at Illinois State University, and holds a Ph.D. in political science from The State University of New York at Albany. His blog can be found at: and on twitter: @rockymtnhigh. He guest blogged here previously, on the US Supreme Court Hobby Lobby decision.

Further thoughts on Hobby Lobby and the farce of corporate personhood

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I explored yesterday’s decision in Burwell v Hobby Lobby in a guest post.
Here I expand on a few of the issues from that post.

The Court’s unwillingness to even address the constitutional issues at stake from Employment Division v. Smith suggest that the Court is not really interested in religious liberty.  The five justices in the majority see their interpretation of RFRA as a way to limit part of President Obama’s Affordable Care Act.  The same five justices have extended First Amendment speech rights to private corporations in campaign finance matters,  the decision today broadly expands the power of corporations, in what truly is a legal fiction.  Corporations do not profess religious beliefs. It is a farce to claim they do.  This case is about advancing corporate power, not religious freedom.  

It is also unclear whether today’s conservative bloc has the same understanding of religious liberty as the six justices who decided Smith in the Rehnquist Court.  I remember at the time thinking that Smith was a terrible decision that severely limited individual liberty.  Yet, in comparison with the smoke and mirrors of Hobby Lobby, perhaps Smith is ok. Ultimately the problem rests with the way that RFRA is used – and abused – by the Court in today’s decision.  And in the end, that all boils down to the idea of Hobby Lobby as even having a religious interest.  It is an arts and crafts store, not a church.  It is a corporation, not a person. 

The Court went to great pains to make it clear that this was a narrow decision, that only dealt with the contraception mandate.  It did not provide corporations with an exemption from other laws. The decision was also careful to use the words “closely-held” corporations, referring to privately-owned, and not publicly-traded corporations.  Thus, if you work for General Motors, the corporation would not be free to claim a religious objection to the contraception mandate.  Yet, it is a short leap from the logic that the Court uses to rule that corporations are people, to expand the decision to other corporations. That would be decided in future litigation, but Supreme Court decisions are interpreted by lower court judges, who will make the initial decisions as cases come to them.  

Is today’s decision a serious setback to women’s rights?  Yes, and no.  On the one way, it is baffling to even be debating contraception in 2014.  I thought that ship had, with the exception of some Roman Catholic Bishops, sailed long ago.  Justice Ginsburg’s concerns are valid.  But the decision is narrow;  most Americans are not impacted by it. Of course if I were one of the 22,000 women employees of the two companies immediately at risk of losing coverage, it would not matter that most American’s coverage is not limited.  I hope the Obama Administration take Justice Kennedy’s cue, and extends the same coverage that is being done for employees of non-profit religious organizations that have sought the exemption.  Of course, this infuriates me that it is even necessary, but if it ensures full access to all women for basic reproductive health care, then I can live with it. This case proves the point that health care should not be tied in any way to employment.  

Were I someone who actually steps foot in an “arts and crafts” store, I would be looking for a new place to shop.  But that is a personal choice of an individual – an actual person who has full rights to speech, press, and free exercise of religion.

GUEST POST — Making Sense of Burwell v. Hobby Lobby: Free Exercise of Religion or Advancing Corporate Power? | Bruce Reyes-Chow

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Link: GUEST POST — Making Sense of Burwell v. Hobby Lobby: Free Exercise of Religion or Advancing Corporate Power? | Bruce Reyes-Chow

Yes, I am blogging a link to my own writing, hosted on my friend Bruce Reyes Chow’s site.  

But here is a snippet:

What do we make of this decision?

I would argue that the Court’s unwillingness to even address the constitutional issues at stake from Employment Division v. Smith suggest that the Court is not really interested in religious liberty. The five justices in the majority see their interpretation of RFRA as a way to limit part of President Obama’s Affordable Care Act. The same give justices have extended First Amendment speech rights to private corporations in campaign finance matters, the decision today broadly expands the power of corporations, in what truly is a legal fiction. Corporations do not profess religious beliefs. It is a farce to claim they do.  This case is about advancing corporate power, not religious freedom.

It is also unclear whether today’s conservative bloc has the same understanding of religious liberty as the six justices who decided Smith in the Rehnquist Court. I remember at the time thinking that Smith was a terrible decision that severely limited individual liberty. Yet, in comparison with the smoke and mirrors of Hobby Lobby, perhaps Smith is ok. Ultimately the problem rests with the way that RFRA is used – and abused – by the Court in today’s decision. And in the end, that all boils down to the idea of Hobby Lobby as even having a religious interest. It is an arts and crafts store, not a church. It is a corporation, not a person.”

A sweeping endorsement for digital privacy: Riley v. California

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The Supreme Court’s decision today in Riley v. California can be thought of as “a sweeping endorsement of digital privacy” —  words used on the SCOTUSblog live stream when news of the decision first came out.  The statement is certainly accurate.  In a unanimous decision (with just one concurrence by Justice Alito), Chief Justice Roberts ruled that before police can search a cell phone after an arrest, they must first secure a warrant.  Roberts left open the possibility for exigent circumstances justifying a warrantless search, but described them as “extreme hypotheticals.” 

I have paid very close attention to this case, not just because I am writing a book on the Roberts Court and the Fourth Amendment, but because the case has forced the Court to address how the Fourth Amendment will be viewed in a digital world, after a forty-five year period of limiting individual rights in the name of crime control.  The Fourth Amendment, beginning with the Burger Court in the 1970s and 1980s, has been recast from one where the warrant requirement was the measuring stick, to one where the “touchstone” of Fourth Amendment analysis has become not a warrant but instead “reasonableness,” — a term that provides much wiggle room for providing discretion to police in the name of crime control. 

The cell phone case is not the first one to address questions of technology, although it is the logical sequel to the GPS surveillance decision, United States v. Jones, that the Court decided in 2012.   In Jones, the Court ruled that government could not use GPS to conduct surveillance of a vehicle without first obtaining a warrant. In that case, however, Justice Scalia relied on an old – previously discarded – theory of the Fourth Amendment claiming that an unreasonable search occurred when there was a physical trespass on a constitutionally protected area, one’s “person, home, papers, or effects.”    In the cell phone case, the Court never once mentions trespass.  Indeed, Scalia did not even mention it during oral argument.  Instead, the focus is on the doctrine of search incident to arrest.  Like Jones, all nine justices agree with the outcome – but in Jones, there was a 4-1-4 breakdown (Scalia writing for 4 justices, Sotomayor concurring; Alito writing for another 4, all agreeing with outcome, but not reasoning).  Here it is 8-1, with Alito concurring in part, and concurring with the judgment.  

One of the major “warrant exceptions” that Court has relied on, and on which police have used extensively in the war on drugs, is the doctrine of search incident to legal arrest.  What this means is that after an arrest an officer can search the person of the arrestee, and the area within his “immediate” control.  This is done for the two reasons of officer safety, and to prevent the destruction of evidence.  The Court’s 1969 ruling in Chimel v California set the original precedent; it was reinforced in the 1973 decision in United States v. Robinson, in which the arrest occurred in a vehicle.  While the Court departed from it in the 1980s, with its ruling from New York v Belton which permitted vehicle passenger compartment searches regardless of those two rationales, in 2009, the Court’s decision in Arizona v. Gant restored the Chimel and Robinson justifications, limiting vehicle searches, for the most part,to those instances when it was reasonable to believe further evidence of the crime of arrest would be found. 

In oral argument in Riley, the government encouraged the Court to extend the Gant rationale to cell phone searches, but the justices would have nothing to do with it.  Chief Justice Roberts, in an opinion which seemed to try to make his knowledge of contemporary technology clear (he even referred to the iOS 7.01 user manual — who knew there even was a user manual?), Roberts argued that cell phones are fundamentally different than searching a wallet or pocket.    He used powerful language that privacy advocates will quote for years to come. His words are worth quoting in full.   Roberts describes cell phones as 

“such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones.” 

Moreover, the Court made it clear that

“Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” 

There are clear implications for privacy.    Roberts’ opinion focused on the storage capacity of phones. 

“The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.” 

The use of cell phones — smartphones really – is pervasive. 

Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. ”

In his opinion, the Chief Justice rejected the government’s arguments that there were officer safety concerns, and largely swept aside concerns about the ability for a third party to remotely “wipe” a phone, by suggesting that police could seize the phone, and put it in a “Farady” bag (an aluminun baggie designed to prevent the transmission of digital signals, turn off the phone, or remove the battery.    He suggested that the concerns raised were mostly anecdotal.  

The Court does not over-rule the “third party doctrine” of Smith v. Maryland, the 1979 case which permitted searches of a “pen register” – a list of phone calls made, but distinguished it, by suggesting that call logs provide more information than just phone numbers.   There is certainly room for this to be further visited.  

The Court also never once acknowledges the “reasonable expectation of privacy” standard that has been the primary focus of Court decisions involving privacy issues since Katz v. U.S. was decided in 1967.    It is clearly implied that there is an expectation of privacy in the contents of one’s cell phone that society is willing to recognize as legitimate,” but the fact that the Court NEVER mentions the standard is telling.  It suggests efforts to distance itself from Katz, something Scalia has been pushing for for years.    Of course, the Court also ignores Justice Scalia’s misguided “trespass” doctrine.  Whether that will be just a blip on the jurisprudential landscape remains to be seen. 

Justice Alito’s brief concurrence questions why it should be the Court’s job to regulate these issues, and suggests Congress should be the entity to regulate police and cell phones, just as it passed legislation dealing with wiretapping after the Katz decision.  He also challenges the majority’s reliance on search incident to arrest being based on only officer safety and the preservation of evidence.

The Court’s decision today truly is a sweeping victory for digital privacy.  It raises a large red flag for other issues such as the pervasive government sweeping of our digital lives by the National Security Agency, but those issues will wait for another day — and will be further complicated by the “national security” interests that would be put forth, and could shift the balance.  But today, advocates of the Fourth Amendment serving to protect individual privacy have much to be happy about. 

Steve Jobs would be proud.  

What to make of oral argument in the cell phone case

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Wow.  After reading 130 pages of argument transcripts from the Riley and Wurie cases, it is clear to me that technology is really beyond the justices.  And yet, they wanted to sound hip, and be up on all the latest things, by asking questions like “Your brief suggested a limitation with respect to access to the iCloud.”    The iCloud.   Apparently Justice Sotomayor owns an iPhone, and thinks cloud storage is “iCloud storage.”   

But I digress.  There was plenty of  skepticism among the justices who spoke about considering a search of a phone’s contents to be the same as anything else incident to arrest.   Justice Breyer, Sotomayor, Ginsburg, Alito, and even Chief Justice Roberts all voiced concerns — with much discussion about reasonable expectations of privacy.

Justice Scalia surprised me, and quite frankly, disappointed me.   He seemed to think the law was clear, incident to arrest you can search things that are in the arrestee’s persona and within their reaching distance (although he didn’t speak much about Chimel).   He did seem to suggest that Arizona v. Gant’s “reasonable to believe that further evidence of the crime of arrest” might be an important modifier.   But not once, did he acknowledge that the cell phone was an “effect.”  In the past two terms, Scalia has argued that physical intrusions on constitutionally protected places — one’s person, house, papers, and effects, represents a trespass — and is an unreasonable search.   He has always framed his arguments in terms of what the Framer’s of the Constitution would have thought the Fourth Amendment protected.  And given his decisions in Jones and Jardines, this could have been a slam-dunk argument.   But he didn’t make it.    Yet, he also was largely silent for most of the two hours, and did not ask many questions at all.  I am uncertain what to make of his lack of participation.  Maybe he had a cold.   Who knows.

Yet, there seemed to be concern about allowing police to have full access to all of the contents of an arrestee’s phone without a warrant.   The Court explained the rationale for the warrant – and having a neutral magistrate to make the decision about whether to issue a warrant — seemed to take a large amount of the Court’s time.    Justice Breyer made a strong argument for why a warrant and magistrate is important.  

The Court seemed to go far afield from the facts of both cases in the extended discussion given to encrypted phones and the ability to “buzz” them to automatically wipe the phone’s contents.  It seemed a bit surreal, as if it was out of a science fiction movie, and did not seem to reflect reality, or much understanding.  

The Chief Justice seems to misconstrue privacy interests in social media, but no other justices appeared to accept his arguments.  He even claimed that Facebook users had basically no privacy.   (His argument was countered that a Facebook account opens things to some but not all people).   But he also seemed skeptical of allowing full access to a phone. 

I would love to be a fly on the conference room wall on Friday when the Court decides the case.  But Sotomayor, Kagan, Ginsburg, Breyer, Kennedy, Alito, and perhaps Roberts seemed to support limits on police searches of phones.   I can’t even pretend to categorize where Scalia will be.   And Thomas never spoke.   

And now we wait.  

The importance of a warrant

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The point of a warrant is that a person who is not involved and is objective listens to what the policeman is saying, knowing that

sometimes, like me or any other human being, a policeman can get a little carried away. So if, in fact, he does show the warrant, that there is this basis, you issue the warrant. Many, many and if he doesn’t you don’t. It isn’t because they’re difficult legal questions. It’s just you want that third dispassionate mind to review what the facts are.

Justice Breyer, on the importance and purpose of a warrant,  US v Wurie, oral argument, April 29, 2014.

No Mr Chief Justice, all social media is NOT designed to be made public

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Still waiting for the full transcripts and audio from today’s oral argument in the cell phone search cases, but the NYT’s brief report has the Chief Justice quoted as saying  that phones also contained “information that is specifically designed to be made public,” mentioning Facebook and Twitter.”

Perhaps this is true for twitter.  When I tweet, it is public.   It is not likely to be seen by people except those who follow me, but it can be found easily enough.  Same with this tumblr.   If I tag this post, it can be easily found, otherwise, it is read – maybe, if I am lucky – by those who have chosen to follow me.    I may very well be speaking to myself.   

But Facebook is different.  I have PRIVACY settings, so that if you are not one of my “friends” you DO NOT SEE ANYTHING. Get that, PRIVACY settings.  Yes, I put a lot out there on Facebook, but I decide WHAT I share, and with whom I share it.  My privacy is intact.  

It is true if a cop takes my phone (and manages to get past my lock screen), he could easily enough click on Facebook, and SEE what I have posted.   And see who I have texted.  And see what apps I run.   Or what music I listen to.  Or the photos I share with followers on instagram. (Mostly he will see lots of photos of my dog Gracie, my cat Jazz, and frequent references to bacon).    But when he does that, he is doing it without my permission, and is violating my right to be free from unreasonable searches.  

My privacy has nothing to do with having something to hide.   Privacy is about choices; about control over information.  About control over what information I want to disclose to the government, and what information I want to keep to myself, or to keep to my group of friends.

Sure, a friend could share something I post with law enforcement.  I get that.  But King John Roberts is wrong in thinking that social media is designed to be made public.   He clearly does not understand what social media is about.  

My two month vigil of anticipation over whether the Supreme Court will acknowledge that we the people have a reasonable expectation of privacy in the contents of our cell phones begins now.  

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