Monthly Archives: March 2017

Judge Gorsuch and the Fourth Amendment – Stanford Law Review Online

Posted: March 17, 2017 at 6:55 am

Introduction

Before Justice Scalia, pragmatic balancing tests dominated the Courts Fourth Amendment doctrine. 1Open this footnote Close this footnote 1 See David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739, 1739-43 (2000). Open this footnote Close But by 2008, Justice Scalia had succeeded in reframing the Courts analysis. In an opinion joined by seven other Justices, he wrote: In determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve. 2Open this footnote Close this footnote 2 Virginiav. Moore, 553 U.S. 164, 168 (2008). Open this footnote Close

Like Justice Scalia, Judge Gorsuch has advocated an originalist interpretation of the Fourth Amendment. But he has not applied that originalist approach to all Fourth Amendment questions. This Essay traces Judge Gorsuchs jurisprudence in two areas of Fourth Amendment doctrine. PartI considers his decisions regarding searches of homes and personal property, where he has adopted and extended Justice Scalias common law approach. PartII contrasts that approach with Judge Gorsuchs decisions regarding Terry stops, where he has proven even more willing than many of his peers to employ the sort of totality of the circumstances inquiry that Justice Scalia so eschewed. In each Part, we also consider how Judge Gorsuchs particular brand of originalism might impact Fourth Amendment issues looming on the Courts horizon.

I. Trespassory Searches of Personal Property

Between 2001 and 2013, Justice Scalia resurrected the Supreme Courts pre-1967 trespass test for Fourth Amendment searches. Over three opinionsKyllov. United States, 3Open this footnote Close this footnote 3 533 U.S. 27 (2001). Open this footnote Close United States v. Jones, 4Open this footnote Close this footnote 4 132 S. Ct. 945 (2012). Open this footnote Close and Florida v. Jardines 5Open this footnote Close this footnote 5 133 S. Ct. 1409 (2013). Open this footnote Close he developed an alternative to Katzs reasonable expectations of privacy test 6Open this footnote Close this footnote 6 United States v. Katz, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Open this footnote Close rooted in eighteenth-century tort law. When Justice Scalia passed away in 2016, many commentators thought this strain of doctrine might die with him. 7Open this footnote Close this footnote 7 See, e.g., Lawrence Rosenthal, The Court After Scalia: Fourth Amendment Jurisprudence at a Crossroads, SCOTUSblog (Sept. 9, 2016, 5:31 PM), https://shar.es/1UYXYc. Open this footnote Close But Judge Gorsuch, as his opinions in United Statesv. Carloss 8Open this footnote Close this footnote 8 818 F.3d 988 (10th Cir. 2016). Open this footnote Close and United Statesv. Ackerman 9Open this footnote Close this footnote 9 831 F.3d 1292 (10th Cir. 2016). Open this footnote Close show, is likely not just to preserve Justice Scalias trespass test, but to expand it.

A. United States v. Carloss

In Jardines, the Court explained that even though a homes curtilage is a Fourth Amendment protected space, police are permitted to walk up to your door and knock on it based on an implied licensethe same implied license granted to Girl Scouts selling cookies. 10Open this footnote Close this footnote 10 Jardines, 133 S. Ct. at 1415-16. Open this footnote Close In Carloss, the Tenth Circuit addressed whether that implied license persists when a homeowner places three No Trespassing signs along the path from the street to the door and a fourth on the door itself. 11Open this footnote Close this footnote 11 Carloss, 818 F.3d at 1003-04 (Gorsuch, J., dissenting). Open this footnote Close Judge Gorsuch, dissenting, argued that it does not.

Relying on Justice Scalias originalist reasoning in Jardines, Judge Gorsuch observed that the implied license enjoyed by police is the same as that enjoyed by private visitors. 12Open this footnote Close this footnote 12 Id. at 1006 (describing the implied license as one entitling the officers to do no more than any private citizen might (quoting Jardines, 133 S. Ct. at 1416)). Open this footnote Close At common law, that implied license could be revoked at will by the homeowner. 13Open this footnote Close this footnote 13 Id. Open this footnote Close And once revoked, police as well as private visitors were liable for trespass. 14Open this footnote Close this footnote 14 Id. Open this footnote Close Because the No Trespassing signs communicated the homeowners intent to revoke this license, Judge Gorsuch argued, police violated the Fourth Amendment when they entered the homes curtilage without a warrant. 15Open this footnote Close this footnote 15 Id. at 1005-06. Open this footnote Close

B. United States v. Ackerman

Whereas Carloss dealt with physical property, in Ackerman, Judge Gorsuch applied Justice Scalias trespass theory to searches of digital property: e-mails. In Jones, the Court held that the government conducts a search when it obtains information by physically intruding on a constitutionally protected areaincluding when, as in Jones itself, police place a GPS tracking device on the underside of suspects car. 16Open this footnote Close this footnote 16 United Statesv. Jones, 132 S. Ct. 945, 948, 950 n.3 (2012). Open this footnote Close In Ackerman, Judge Gorsuch applied Jones to e-mail searches for child pornography, writing that the warrantless opening and examination of... private correspondence... seems pretty clearly to qualify as exactly the type of trespass to chattels that the framers sought to prevent when they adopted the Fourth Amendment. 17Open this footnote Close this footnote 17 United Statesv. Ackerman, 831 F.3d 1292, 1307-08 (10th Cir. 2016) (citing Ex parte Jackson, 96 U.S. 727, 733 (1878)). Open this footnote Close

In applying the trespass test to digital searches, Judge Gorsuch takes Jones further than Justice Scalia himself was willing to go. In Jones, Justice Scalia had written that [s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis, not the Jones trespass test. 18Open this footnote Close this footnote 18 Jones, 132 S. Ct. at 953 (emphasis omitted). Open this footnote Close But Judge Gorsuch concluded differently in Ackerman. True, he conceded, the Framers had been concerned with physical, not virtual, correspondence. 19Open this footnote Close this footnote 19 Ackerman, 831 F.3d at 1308. Open this footnote Close Nevertheless, he wrote, a more obvious analogy from principle to new technology is hard to imagine. 20Open this footnote Close this footnote 20 Id. Open this footnote Close

C. Implications

In Jones, Justice Scalia explained that the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. 21Open this footnote Close this footnote 21 Jones, 132 S. Ct. at 952 (emphases omitted). Open this footnote Close Katz and Jones, then, are alternative theories of Fourth Amendment protection. But because Jones was not decided until 2012, it is in tension with portions of the Courts doctrine decided between 1967 (Katz) and 2012 (Jones). Judge Gorsuch, relying on Jones, might look to resolve that tension in at least two areas of Fourth Amendment lawsearches of open fields and testing of potential contrabandand to expand Joness approach into a third (digital searches).

In Oliver v. United States, a 1984 case, the Court held that police had not violated the Fourth Amendment when they bypassed a No Trespassing sign to enter a suspects farmland. 22Open this footnote Close this footnote 22 See 466 U.S. 170, 176 (1984) (invoking the Fourth Amendments language protecting persons, houses, papers, and effects (quoting Hesterv. United States, 265 U.S. 57, 59 (1924))). Open this footnote Close The Court distinguished open fields from curtilage, which is afforded the same protection as the home. 23Open this footnote Close this footnote 23 Id. at 176-81. Open this footnote Close Judge Gorsuch, for his part, does not dispute that distinction. 24Open this footnote Close this footnote 24 United States v. Carloss, 818 F.3d 988, 1009 (10th Cir. 2016) (Gorsuch, J., dissenting). Open this footnote Close But he nevertheless suggested in Carloss that curtilage historically encompassed a space much larger than just the areas, like the front porch, immediately surrounding the home. 25Open this footnote Close this footnote 25 See id. at 1005 n.1 (At common law the curtilage was far more expansive than the front porch, sometimes said to reach as far as an English longbow shotsome 200 yardsfrom the dwelling house.). Open this footnote Close

In United States v. Jacobsen, another 1984 case, police conducted a field test for cocaine on white powder found in a damaged package. 26Open this footnote Close this footnote 26 466 U.S. 109, 111-12 (1984). Open this footnote Close The Court, invoking Katz, upheld the search, concluding that there could be no reasonable expectation of privacy in contraband. 27Open this footnote Close this footnote 27 Id. at 122-23, 122 n.22. Open this footnote Close But in Ackerman, Judge Gorsuch suggested that Jacobsen was wrongly decided. 28Open this footnote Close this footnote 28 See United Statesv. Ackerman, 831 F.3d 1292, 1307 (10th Cir. 2016). Open this footnote Close Because police destroyed a trace amount of private property to conduct their test, in light of Jones, it seems at least possible the Court today would find a search did take place. 29Open this footnote Close this footnote 29 Id. Open this footnote Close

Judge Gorsuch might also seek to expand the Jones approach to digital searches, as he did in Ackerman. In that case, he applied common law principles to digital searches, relying on the obvious analogy from letters to e-mails. 30Open this footnote Close this footnote 30 Id. at 1308. Open this footnote Close But Ackerman is at odds with the Courts method in Rileyv. California 31Open this footnote Close this footnote 31 134 S. Ct. 2473 (2014). Open this footnote Close a post-Jones decision. In Riley, the government proposed a similar approach to the one employed by Judge Gorsuch, arguing that the Fourth Amendment permits searching cell phone data incident to arrest if [police] could have obtained the same information from a pre-digital counterpart. 32Open this footnote Close this footnote 32 Riley, 134 S. Ct. at 2493. Open this footnote Close But the Riley Court rejected that analogue test because it would launch courts on a difficult line-drawing expedition. 33Open this footnote Close this footnote 33 Id. Open this footnote Close The Court then asked, in a question suggesting that Judge Gorsuchs analogy is not so obvious: Is an e-mail equivalent to a letter? 34Open this footnote Close this footnote 34 Id. Open this footnote Close

Judge Gorsuchs Ackerman opinion came after Riley, so he clearly has not rejected extending Jones through an analogue test. Convincing the Court to adopt that approach, however, will likely prove more difficult.

II. Terry Stops and Frisks

Judge Gorsuchs highly originalist approach to the Fourth Amendment in Carloss and Ackerman is difficult to reconcile with his wholesale acceptance of the stop-and-frisk doctrine under Terry v. Ohio. 35Open this footnote Close this footnote 35 392 U.S. 1 (1968). Open this footnote Close Terry allows an officer to stop and, in some cases, frisk a person on the street if the officer reasonably...conclude[s]...that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous. 36Open this footnote Close this footnote 36 Id. at 30. Open this footnote Close But Terry was a pragmaticnot an originalistdecision. Scholars and judges seeking a historical hook for Terry have uncovered little evidence linking Terrys stop and frisks to police actions at common law. 37Open this footnote Close this footnote 37 See Lawrence Rosenthal, Pragmatism, Originalism, Race, and the Case Against Terry v. Ohio, 43 Tex. Tech L. Rev. 299, 330-37 (2010); Sklansky, supra note 1, at 1804-06. For a tentative originalist explanation of Terrys stops, if not its frisks, see Minnesotav. Dickerson, 508 U.S. 366, 380 (1993) (Scalia, J., concurring). Open this footnote Close

Despite the doctrines shaky originalist footing, Judge Gorsuch has consistently ruled in favor of the government when criminal defendants have challenged the legality of stop and frisks 38Open this footnote Close this footnote 38 See, e.g., United Statesv. Willis, 533 F. Appx 849, 850-51 (10th Cir. 2013) (finding reasonable suspicion to stop and frisk an African American man when a caller reported a disturbance with a gun involving a black man wearing a gray shirt). Open this footnote Close and traffic stops. 39Open this footnote Close this footnote 39 See, e.g., United Statesv. Lopez, 518 F.3d 790, 797-800 (10th Cir. 2008). For a longer discussion of Lopez, see note 54 below. Open this footnote Close As his opinion in United Statesv. Nicholson 40Open this footnote Close this footnote 40 721 F.3d 1236 (10th Cir. 2013). Open this footnote Close makes clear, he is more likely to protect and expand existing stop-and-frisk doctrine than he is to offer a new, originalist critique of Terry.

A. United States v. Nicholson

In Nicholson, a police officer pulled over the defendants vehicle, mistakenly believing that a city ordinance prohibited a left turn he had made. 41Open this footnote Close this footnote 41 Id. at 1237. Open this footnote Close Applying Tenth Circuit precedent, the majority held the officers mistaken understanding of the law rendered the stop categorically unreasonable. 42Open this footnote Close this footnote 42 Id. at 1238, 1241-42; see also United Statesv. Tibbetts, 396 F.3d 1132, 1138 (10th Cir. 2005) ([F]ailure to understand the law by the very person charged with enforcing it is not objectively reasonable.); United Statesv. DeGasso, 369 F.3d 1139, 1144-45 (10th Cir. 2004) (holding that an officers failure to understand the plain and unambiguous law he is charged with enforcing...is not objectively reasonable). Open this footnote Close

Judge Gorsuch dissented, arguing that mistakes of law are per se unreasonable only where the law is unambiguous, [and] the error plain. 43Open this footnote Close this footnote 43 See Nicholson, 721 F.3d at 1248 (Gorsuch, J., dissenting). Open this footnote Close He emphasized that under Terry, the central Fourth Amendment inquiry is whether the government has acted reasonably 44Open this footnote Close this footnote 44 Id. Open this footnote Close whether a reasonable and prudent officer would have acted as [the officer] did in the circumstances. 45Open this footnote Close this footnote 45 Id. at 1249 (quoting Ornelasv. United States, 517 U.S. 690, 695 (1996)). Open this footnote Close He explained this approach will rarely yield...a neat set of legal rules 46Open this footnote Close this footnote 46 Id. at 1248 (quoting United Statesv. Sokolow, 490 U.S. 1, 7 (1989)). Open this footnote Close or bright-line tests. 47Open this footnote Close this footnote 47 Id. (quoting Floridav. Harris, 133 S. Ct. 1050, 1055 (2013)). Open this footnote Close Rather, the analysis will typically favor a case-by-case approach that takes a realistic view of human capacities and limitations. 48Open this footnote Close this footnote 48 Id. Open this footnote Close He concluded, therefore, that an officers mistaken understanding of the law should be assessed based on the totality of the circumstances. 49Open this footnote Close this footnote 49 Id. at 1248-49. Open this footnote Close

At the time, the Fifth, Seventh, Ninth, and Eleventh Circuits had all held categorically that an officers mistake of law could not justify a stop. 50Open this footnote Close this footnote 50 See United Statesv. McDonald, 453 F.3d 958, 962 (7th Cir. 2006); United Statesv. Chanthasouxat, 342 F.3d 1271, 1279-80 (11th Cir. 2003); United Statesv. King, 244 F.3d 736, 741 (9th Cir. 2001); United Statesv. Miller, 146 F.3d 274, 279 (5th Cir. 1998). Open this footnote Close Only the Eighth Circuit had held otherwise. 51Open this footnote Close this footnote 51 See United Statesv. Rodriguez-Lopez, 444 F.3d 1020, 1022-23 (8th Cir. 2006). Open this footnote Close But in an 8-1 decision, the Supreme Court ultimately adopted the minority approachJudge Gorsuchs approachin Heienv. North Carolina. 52Open this footnote Close this footnote 52 135 S. Ct. 530 (2014). Open this footnote Close

B. Implications

Legal scholars and advocates have frequently criticized Terry and its amorphous reasonableness standard for granting police too much discretion. 53Open this footnote Close this footnote 53 See Rosenthal, supra note 37, at 300-01, 300 n.7 (collecting literature). Open this footnote Close But Judge Gorsuchs jurisprudence suggests that rather than introducing originalist limits on Terry, he will protect and expand the substantial discretion Terry grants to police officers.

In Nicholson, Judge Gorsuch both emphasized Terrys pragmatic focus on the reasonableness of a stop and encouraged courts to conduct case-by-case analyses. This approach is unlikely to generate new, bright-line rules cabining police discretion under Terry. Judge Gorsuch also appears willing to show officers a great deal of deference when evaluating the reasonableness of their conduct, 54Open this footnote Close this footnote 54 See, e.g., United Statesv. Lopez, 518 F.3d 790, 797-800 (10th Cir. 2008). In Lopez, officers stopped the defendants truck after seeing a man place a cooler in the bed of the truck. Id. at 798. The trial court determined the officers observations were insufficient to create reasonable suspicion that there were drugs in the cooler; they amounted to inchoate suspicions and unparticularized hunches. United Statesv. Lopez, 485 F. Supp. 2d 1226, 1236 (D. Kan. 2007). Judge Gorsuch overturned that finding, emphasizing the officers training and experience in detecting drug sales. See Lopez, 518 F.3d at 792, 797-800. Open this footnote Close suggesting that, as a practical matter, he may not see bright-line rules as useful or desirable.

One specific Terry challenge the Court may soon confront is the tension between more expansive Second Amendment rights 55Open this footnote Close this footnote 55 See, e.g., District of Columbiav. Heller, 554 U.S. 570, 635-36 (2007). Open this footnote Close and broad police discretion to conduct stop and frisks. In an opinion joined by Judge Gorsuch, the Tenth Circuit in United Statesv. Rodriguez 56Open this footnote Close this footnote 56 739 F.3d 481 (10th Cir. 2013). Open this footnote Close held that officers can stop and frisk individuals simply because they are carrying concealed firearms, even if the jurisdiction allows for permitted concealed carry. 57Open this footnote Close this footnote 57 Id. at 486-87, 491 (citing N.M. Stat. Ann. 30-7-2). Open this footnote Close Similarly, the Fourth Circuit recently held in United Statesv. Robinson 58Open this footnote Close this footnote 58 846 F.3d 694 (4th Cir. 2017) (en banc). Open this footnote Close that in concealed-carry jurisdictions, once an officer has legally stopped a person, the officer can frisk him if he is armed. 59Open this footnote Close this footnote 59 Id. at 701. Open this footnote Close But in tension with those holdings, the Sixth, Fourth, and Third Circuits have held that where state law allows open carry of firearms, the police cannot conduct a Terry stop simply because a person visibly carries a gun. 60Open this footnote Close this footnote 60 See Northrupv. City of Toledo Police Dept, 785 F.3d 1128, 1131-33 (6th Cir. 2015); United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013); United Statesv. Ubiles, 224 F.3d 213, 218 (3d Cir. 2000). Open this footnote Close

The Court is likely to confront this growing tension in the coming years. The Robinson dissent urged the court to adopt a rule that officers cannot conduct frisks of armed individuals without evidence that they are not only armed but also dangerous. 61Open this footnote Close this footnote 61 See Robinson, 846 F.3d at 707, 709 (Harris, J., dissenting). Open this footnote Close But as he did in Rodriguez, Judge Gorsuch would likely uphold the legality of the frisk in Robinson. In Rodriguez, the Tenth Circuit reasoned that an officer making a lawful investigatory stop [must have] the ability to protect himself from an armed suspect whose propensities are unknown. 62Open this footnote Close this footnote 62 Rodriguez, 739 F.3d at 491. Open this footnote Close Instead of the dissents rule, Judge Gorsuch is likely to favor an approach that prioritizes officer safety by considering the totality of the circumstances and tak[ing] a realistic view of human capacities and limitations, as he did in Nicholson. 63Open this footnote Close this footnote 63 United States v. Nicholson, 721 F.3d 1236, 1248 (10th Cir. 2013) (Gorsuch, J., dissenting). Open this footnote Close

Conclusion

It is too simple, then, to say that Judge Gorsuch is an originalist or that he will merely preserve Justice Scalias common law approach to the Fourth Amendment. True, Judge Gorsuch has adopted Justice Scalias bright-line trespass test for searches of personal property. But while Justice Scalia never conclusively resolved whether stop and frisks would have been permitted at common law, 64Open this footnote Close this footnote 64 See Minnesotav. Dickerson, 508 U.S. 366, 380 (1993) (Scalia, J., concurring). Open this footnote Close he was always frank regarding his preference for bright-line rules over thol totality-of-the-circumstances. 65Open this footnote Close this footnote 65 See United States v. Mead Corp., 533 U.S. 218, 241 (2001) (Scalia, J., dissenting); see also Justice Antonin Scalia, The Rule of Law as a Law of Rules, Oliver Wendell Holmes, Jr. Lecture at Harvard University (Feb. 14, 1989), in 56 U. Chi. L. Rev. 1175, 1186 (1989). Open this footnote Close Conversely, Judge Gorsuch seems not just to tolerate but to prefer case-by-case reasonableness inquiries when it comes to stop and frisks. 66Open this footnote Close this footnote 66 See United Statesv. Nicholson, 721 F.3d 1236, 1248-49 (2013) (Gorsuch, J., dissenting) (arguing for a case-by-case approach that considers the totality of the circumstances and takes a realistic view of human capacities and limitations). Open this footnote Close So although Judge Gorsuch could, if confirmed, posit an originalist answer to Terry and thereby develop a unified originalist approach to the Fourth Amendment, there is nothing in his record to indicate that such a project interests him.

* Sophie J. Hart, J.D. Candidate, Stanford Law School, 2017. Dennis M. Martin, J.D. Candidate, Stanford Law School, 2018.

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Arizona Committee Passes Bill to Prohibit Warrantless Stingray Spying – Tenth Amendment Center (blog)

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PHOENIX, Ariz. (March 16, 2017) Yesterday, an Arizona House Committee unanimously passed abill that would ban the use of stingrays to track the location of phones and sweep up electronic communications without a warrant in most situations. The proposed law would not only protect privacy in Arizona, but would also hinder one aspect of the federal surveillance state.

Sen. Bob Worsley (R-Mesa) introduced Senate bill 1342 (SB1342) on Jan. 31. The legislation would help block the use of cell site simulators, known as stingrays. These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.

SB1342 would require police to get a search warrant based on probable cause before deploying a stingray to locate or track an electronic device. It would also require law enforcement agencies to obtain a warrant under existing wiretapping statutes before using a stingray to intercept, obtain or access the content of any stored oral, wire or electronic communication.

The House Judiciary and Public Safety Committee passed an amended version SB1342 by an 8-0 vote. The amendment decreases the time between the issuance of a warrant and notification of the target from 120 to 90 days.

IMPACT ON FEDERAL SURVEILLANCEPROGRAMS

The federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements. This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.

Defense attorney Joshua Insley asked Cabreja about the agreement.

Does this document instruct you to withhold evidence from the states attorney and Circuit Court, even upon court order to produce? he asked.

Yes, Cabreja said.

As privacysos.org put it, The FBI would rather police officers and prosecutors let criminals go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.

The feds sell the technology in the name of anti-terrorism efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.

Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal data bases.

The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the information sharing environment or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigatorshave mission needs to collaborate and share information with each other and with private sector partners and our foreign allies. In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

The federal government encourages and funds stingrays at the state and local level across the U.S., thereby undoubtedly gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on stingray use, state and local governments limit the data available that the feds can access.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of SB1342 would representa major blow to the surveillance state and a win for privacy.

WHATS NEXT

SB1342 now moves to the House Rules Committee where it must pass by a majority vote before moving to the full House.

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House Passes Veterans 2nd Amendment Protection Act – NRA ILA

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Fairfax, Va. The National Rifle Association Institute for Legislative Action (NRA-ILA) applauds the House of Representatives today for passing The Veterans 2nd Amendment Protection Act (H.R. 1181), a bill that protects the due process rights of veterans, in a 240-175 vote.

The constitutional rights of our veterans must be strongly protected, said Chris W. Cox, executive director, NRA-ILA. The House vote today is a step forward in ensuring our veterans rights are not infringed upon.

The VA has been effectively banning veterans who receive disability benefits and use a fiduciary to help manage those benefits from gun ownership. These individuals are being stripped of their Second Amendment rights by a bureaucratic rule that denies them due process.

There is no data indicating a correlation between needing help managing money and being a danger to oneself or others the criterion the government must meet before denying a person their Second Amendment rights.

If enacted into law, the Veterans 2nd Amendment Protection Act would ensure that going forward, veterans who use a fiduciary would not be stripped of their constitutional rights unless a judicial authority first finds they pose a danger to themselves or others. This ensures due process rights for all veterans.

Needing help managing your money does not make you a danger to society. The NRA is pleased with the House vote today and we look forward to the Senate taking action soon, concluded Cox.

The NRA thanks Speaker Paul Ryan, Majority Leader Kevin McCarthy , Majority Whip Steve Scalise and Chairman Phil Roe for their leadership on this matter.

Established in 1871, the National Rifle Association is America's oldest civil rights and sportsmen's group. More than five million members strong, NRA continues to uphold the Second Amendment and advocates enforcement of existing laws against violent offenders to reduce crime. The Association remains the nation's leader in firearm education and training for law-abiding gun owners, law enforcement and the armed services. Be sure to follow the NRA on Facebook at NRA on Facebook and Twitter @NRA.

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SCOTUS nominee Neil Gorsuch’s view of Second Amendment a mystery – CBS News

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WASHINGTON -- Despite strong endorsements from some gun rights advocates, Supreme Court nominee Neil Gorsuch has a slim appeals court record on the subject - a record that leaves his views a mystery on how far constitutional firearms rights extend.

The National Rifle Association notes favorably a 2012 case in which Gorsuch wrote for the 10th U.S. Circuit Court of Appeals that the Supreme Court has held the Second Amendment protects an individuals right to own firearms and may not be infringed lightly.

Taken with his conservative leanings, originalist views on interpreting the Constitution and comparisons to the late Justice Antonin Scalia, that leads many gun owners to believe Gorsuch would protect their interests.

He has an impressive record that demonstrates his support for the Second Amendment, Chris W. Cox, executive director of the NRAs Institute for Legislative Action, said in a statement endorsing the nominee.

However, Gorsuch has not ruled on major Second Amendment cases.

We dont know, for instance, if he believes people have a right to carry guns in public. We dont know what he thinks about restrictions on assault weapons or high-capacity magazines, said Adam Winkler, a law professor at the University of California, Los Angeles, and author of Gunfight: The Battle Over the Right to Bear Arms in America.

Those are the big issues that are likely to come before the Supreme Court with regards to the Second Amendment, Winkler said. And on those issues Gorsuch is a Second Amendment mystery.

The case cited by the NRA involved a man who appealed his conviction of being a felon in possession of a gun, saying he didnt know he was considered a felon due to a misunderstanding over his deferred prosecution in a previous robbery case.

Although he had signed documents indicating he would be considered guilty of a felony, the state judge told him, among other things, If I accept your plea today, hopefully you will leave this courtroom not convicted of a felony and instead granted the privilege of a deferred judgment, which means you will be supervised by the Department of Probation for a period of two years.

Miguel Games-Perez was arrested less than a year later with a pistol that had an obliterated serial number.

Gorsuch was on a three-judge panel that found the government had only to prove that Games-Perez knew he had a gun, not that he knew he was prohibited from having one.

Gorsuch said the panel was bound by precedent.

Our duty to follow precedent sometimes requires us to make mistakes. Unfortunately, this is that sort of case, Gorsuch wrote.

Games-Perez later asked the full appeals court to hear the case, a request that was denied in a 6-4 decision. Gorsuch dissented, saying the full court could reconsider its precedent. He wrote that due to the repeated misstatements from the court itself, Mr. Games-Perez surely has a triable claim he didnt know his state court deferred judgment amounted to a felony conviction.

Some groups favoring more stringent gun laws refer to the same case when arguing that Gorsuch is unfit for the Supreme Court.

Judge Gorsuchs views are so outside the mainstream that he has gone out of his way to side with felons over public safety, Peter Ambler, executive director of Americans for Responsible Solutions, said in a statement opposing Gorsuchs nomination.

And not all gun rights advocates are enthusiastic to endorse Gorsuch - because of another case.

Larry Pratt, executive director emeritus of Gun Owners of America, said the case that gave him pause involved a police officer in New Mexico disarming Daniel Rodriguez, a convenience store employee who had a pistol tucked into his waistband. The man turned out to be a convicted felon, but Pratt said the officer had no way of knowing that at the time because the man wasnt accused of a crime and the officer didnt question him beforehand.

Gorsuch sided with the appeals panel to uphold the mans conviction.

Ultimately, Pratt said, Gorsuchs judicial philosophy and overall record helped earn an endorsement.

Were going to support him with this caveat of our concern because of the Rodriguez case. And part of its a practical matter that if Gorsuch were to be turned down, its not likely, politically, that the next one would be any better, Pratt said.

J. Adam Skaggs, litigation director for the Law Center to Prevent Gun Violence, Americans for Responsible Solutions Foundation, said in a telephone interview that Gorsuch has a very thin paper trail, but the few cases where he has ruled on gun issues raise a lot of questions.

In a 2010 case, Skaggs said Gorsuch relied on procedural grounds in rejecting the appeal of a man charged with possessing a gun after being convicted of domestic violence rather than conceding the point that convicted domestic abusers dont enjoy the same Second Amendment rights as law abiding citizens.

Instead, he went out of his way to resolve the case on a complicated procedural ground, Skaggs said.

Still, Winkler, the law professor, said its difficult to know how Gorsuch would rule in the most important Second Amendment cases because his track record is so limited.

Hes only decided a few cases with Second Amendment overtones and none of them are the major decisions on the important issues of the day, Winkler said. Nothing in his path tells use what he understands the scope of the Second Amendment to be.

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The Second Amendment as an individual right – Washington Times

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ANALYSIS/OPINION:

Since San Bernardino, Sandy Hook, Columbine et al., the progressives, the media and their acolytes have beaten their chests calling for even stricter gun restrictions, although the most restrictive states and cities that have the highest crime. They insist that the Second Amendment does not apply to individuals, but only to the National Guard, even though the modern Guard did not come into existence until the Dick Act of 1903. To them, the Supreme Court decisions in Heller v. District of Columbia and McDonald v. Chicago affirming an individual right are mistaken, a conclusion reachable only by abjuring grammar and history.

To anyone who can diagram a sentence the Second Amendment is crystal-clear, not a Delphic pronouncement. The Founding Fathers, well versed in Latin grammar, knew exactly what they meant when they passed the Second Amendment. The meaning is in the main clause the right of the people to keep and bear arms shall not be infringed a complete sentence. A well-regulated militia is, in Latin, an ablative absolute, it introduces the main idea. Would Second Amendment opponents be happier if it read, The right of the people to keep and bear arms shall not be infringed, a well-regulated militia, being necessary to the security of a free state? The idea remains the same, but given the progressivist idea of a living Constitution, they would nullify the Second Amendment by asserting knowledge of the Bill of Rights superior to that of its author, James Madison.

Historian Leonard Levys Origins of the Bill of Rights reaffirmed an individual right. Wrote Levy: The right to bear arms is an individual right. if all it meant was the right to serve in the military [it] would never have reached constitutional status in the Bill of Rights. The very language of the amendment is evidence that the right is a personal one, for it is not subordinated to the militia clause. The state constitutions of the revolution and early national period also acknowledged an individual right.

The Founders classical education made them realistically fearful of government power. They knew well what had befallen the Roman Republic and that tyrannies were only possible when the people lacked the means to resist. The chaos and oppression of the English Civil War and the Glorious Revolutions short-circuiting of the Stuarts divine right ambitions were fixed in their minds as was the English Bill of Rights (1689) which, although limited to Protestants, secured an Englishmans right to arms. However, the roots go even further back, to the Trained Bandes, locals called up to defend the realm as Elizabeth I did when the Armada threatened England. Englishmen provided their own accouterments according to their station. Likewise, the chronic war with France in which for over a century frontier settlements were attacked, settlers massacred or carried off into Indian slavery meant colonists had to protect themselves.

New England towns either supplied weapons or, as had Plymouth in 1632, ordered freemen to arm themselves for defense against ever-present Indian dangers. When Queen Annes War (War of the Spanish Succession) broke out in 1702, New England militias were called to support the British assault on French Canada. Militiamen brought their own weapons; those who did not own a musket were issued one that they could keep when mustered out. The battles of Lexington and Concord at the start of the American Revolution could not have taken place without an armed citizenry. Who, then, was the militia? To George Mason, it consisted of the whole people. Under the Militia Act of 1792, every man between 18 and 54 who when so enrolled and notified shall within six months thereafter, provide himself with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack.

The lefts assertion that Americas creators couldnt foresee a firearm beyond a flintlock is the logical fallacy of presentism we know better today. Were the Dark Ages better than the Pax Romana because 900 A.D. came later than 300 A.D? Contrary to modernist fallacies, innovation, not stasis, was the characteristic of 18th century society. They might not have foreseen the M-16 but they knew the devastation of the massed firepower of .69 caliber Brown Bess and that weapons evolved. The matchlock was superseded by the wheelock, the wheelock by the flintlock, as the rifle was to supersede the musket. In 1770, British Army Major Patrick Ferguson had invented a breechloading flintlock rifle and effectively deployed his riflemen at Saratoga in 1777 (Fergusons rifle could have revolutionized warfare). By 1819, 19 years after the Constitutions ratification, the U.S. Army adopted the Hall breechloader.

What of the Second Amendment, then? It is most certainly individual, but more importantly, it does not grant a right; it affirms an existing one as surely as natural law recognizes every mans right to self-defense.

William Layer is a historian who covered Air Force presidential operations during the early years of the Reagan administration.

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Police And Second Amendment Groups Debate Open Carry Bill – WNPR News

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The General Assembly is considering a bill that would require gun owners who openly carry a weapon to produce their gun permit if asked by law enforcement. Changes to the proposed language in the bill are causing some contention among members of the Judiciary Committee, which held a public hearing on the legislation Wednesday.

The original language of House Bill 6200 stated that police could only request to see the permit if there was reasonable cause that a crime had been committed. The Judiciary Committees version of the bill removes that clause, meaning if a person carries a pistol or revolver in plain sight and a police officer asks for his or her permit, they would be obliged to comply, whether there is reasonable cause or not.

Several committee members were concerned by the removal of reasonable suspicion from the bill.

"This committee hears a lot of testimony on a lot of issues making sure that our citizens of all different types are not discriminated against," said Republican state Representative Christie Carpino, "and I have a real fear that if [House Bill] 6200 passes, we're gonna deal with that.

Connecticut Chief State's Attorney Kevin Kane testified that the draft language seems reasonable and legal.

"The problem is difficult situations that the police are confronted in. To resolve it, all they have to do is say 'May I see the permit?' And just the mere showing of the permit doesn't seem to be that intrusive," said Kane. "I think a fair balance is to require people to show [the open carry gun permit] if asked."

Other lawmakers on the committee worried that the proposal would make it easier for police to unfairly target minority gun owners. The bill is supported by the Connecticut Police Chief's Association, while Second Amendment groups like the Connecticut Citizens Defense League say it violates the constitution.

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Sunshine Week: First Amendment Foundation goes to bat for … – Florida Politics (blog)

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Its Sunshine Week in the Sunshine State, and not just because its Spring Break.

Since 2005, open government and freedom of information advocates have designated March 13-19 as a time to celebrate public transparency and raise awareness about the critical importance of access to government records.

Sunshine Week is timed to coincide with the birthday of James Madison, author of the First Amendment.

True to form, the First Amendment Foundation has been busy at the Florida Capitol battling to ensure the publics right to know. The Tallahassee-based nonprofit helped restructure a bill this week that would have severely limited access to information if the government decided not to comply with public records laws.

Floridas sunshinelaw says that it is the policy of this state that all state, county, and municipal records shall at all times be open for a personal inspection by any person.But the only real recourse against a government officer or agency that refuses to hand over public informationis to challenge them in court.

That can be expensive. As a safeguard, if a judge rules that the government violated public records laws, then the government must pay the record requesters attorneys fees.

The mandatory provision creates a level playing field for someone who can afford to pay for an attorney and those who cannot, according to the First Amendment Foundation.

Putting aside the issue of awarding attorneys fees with taxpayer money, a new bill would have made the mandatory fee provision optional. By changing the word must to shall, a judge could deny fees even if the court rules in favor of the citizen.

The potential consequences are enormous.

Without a penalty provision when the government is wrong, there is no incentive to be transparent and provide citizens with access to information about governmental decision-making. The result will be fewer challenges brought by citizens, which will certainly result in less government transparency, says the First Amendment Foundation.

But Tuesday, a compromise was reached and the Senate Judiciary Committee unanimously approved it.

Under the bill as amended in committee, the fee provision remains mandatory, Barbara Petersen, the foundations executive director, told Watchdog.org.

Petersen sounded the alarm about the proposal in February, then outlineda fix, and recently worked with Sen. Greg Steube, R-Sarasota, the bills sponsor, and the Florida League of Cities to amend the bill.

As part of the compromise, the bill also includes a five-day notice requirement that would alert a public records custodian of a pending records request before a lawsuit can be filed, and an additional provision that allows courts to crack down on improper records requests the issue Steubes bill initially sought to address.

Hisapproach, however, also would have penalized legitimate inquiries and legal challenges.

In recent years, lawmakers have decried a cottage industry of records requests that are intended to trigger sunshine violations. Petersen calls them predatory requests.

Theyre designed to fail, she told Watchdog.org. When the agency doesnt respond, or doesnt respond quickly enough, then the requester files suit in civil court. A few days later, they call up the agency and offer to settle for a financial payout with the promise of dropping the lawsuit.

In 2014, the issue became a statewide concern when a circuit court judge ruled that Jeffrey Gray, a self-described civil rights activist from northeast Florida, was engaged in a baiting gesture meant to achieve personal financial gain, rather than a genuine effort to obtainpublic information.

According to the Florida Bar, the ruling said Gray had been a plaintiff in 18 separate lawsuits involving public records requests in Duval County, and that Grays lawyer had paid him when attorneys fees were recovered. The judgment said the practice was nothing more than a scam.

Knocking out Floridas mandatory fee provision would haltfrivolous, harassing and disingenuous records requestsdesigned to force sunshine violations, but not without collateral damage.

In doing that, the bill wouldnt just punish the people who are taking advantage of the system, but the 99 percent of people who make requests because theyre legitimately seeking public records, Petersen said.

The amendment adopted this week should fix that.

If Steubes amended bill becomes law, not only will courts continue to award attorneys fees when the government wrongfully withholds public information, but courts also would be able to assess attorneys fees against anyone who attempts to profit from scamming Floridas public records system.

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1st Amendment triumphs in court – Craig Daily Press

Posted: at 6:55 am

Steamboat Springs District Judge Shelley Hill on Thursday ruled that a Jan. 26 court hearing should not have been closed to the public, and the transcripts should be released.

On Jan. 26, a preliminary hearing for Miguel Diaz-Martinez was scheduled. Diaz-Martinez has been charged with 41 felonies related to accusations that he exchanged drugs for sex with underage girls.

Diaz-Martinez ultimately decided he did not want a preliminary hearing, and the case was bound over to District Court, where felonies are heard.

It was disclosed in court during the Jan. 26 hearing that Diaz-Martinez had been offered a plea deal.

In a rare move, Routt County Judge James Garrecht offered to close his courtroom to the public for a few minutes. District Attorney Brett Barkey said he wanted to state the plea deal on the record, but he did not think it was appropriate in this case to do it publicly.

The Steamboat Pilot & Today requested the transcripts, believing court should not have been held in secret.

Hill agreed.

Once the public is excluded, that First Amendment right has been abridged, Hill said.

The defense and prosecution argued that releasing the transcript containing the plea offer would harm the ability to seat an impartial jury. They were concerned that, if an impartial jury could not be found, the trial would have to be held in another county.

Because of that, District Attorney Brett Barkey said there was an overriding and compelling interest to close the courtroom to the public.

As we all know, there is a clash between two constitutional divisions, Hill said.

The First Amendment guarantees freedom of the press, while the Sixth Amendment guarantees a person the right to a fair trial.

Hill said there were times when the freedom of the press might be limited, but she had the ability to ensure Diaz-Martinez still receives a fair trial.

Hill said pre-trial media coverage helps ensure an open, competent judicial system based on integrity and fundamental fairness.

Without constitutional freedom of the press and public scrutiny, government, including the judicial, and for trials themselves, could easily become secret proceedings where fundamental fairness could always be suspect, Hill said.

The court is preparing the transcripts for the Steamboat Pilot & Today.

On Thursday, Diaz-Martinez was scheduled for an arraignment to either plead guilty or not guilty to the charges. The arraignment was postponed until 2:30 p.m. April 26.

Also on Thursday, Hill partially denied a request from the Steamboat Pilot & Today to take photos in the courtroom.

The defense did not want photos taken, because it felt doing so might endanger Diaz-Martinezs right to a fair trial.

Hill ruled photos could not be taken while Diaz-Martinez appeared in jail clothing. Diaz-Martinez was still in custody and in jail clothing Thursday.

Photos will be allowed if there is a trial. During trials, defendants are allowed to wear normal clothing to avoid the appearance of guilt in front of jurors.

The Steamboat Pilot & Today will still not be allowed to show Diaz-Martinez wearing shackles.

To reach Matt Stensland, call 970-871-4247, email mstensland@SteamboatToday.com or follow him on Twitter @SBTStensland

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Letter: Anonymous sources a First Amendment right – Deseret News

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President Donald J. Trump's call for the press to cease using anonymous sources is a blatant attack on the First Amendment. Without the ability to use anonymous sources to provide crucial information, it could seriously undermine the media's efforts to get to the bottom of major stories. Take Watergate, for example. An explosive story like that would have likely never broken in a country without protected media sources. By scaring away the Mark Felts of this world from aiding in the exposure of truth, we really do ourselves a disservice.

As veteran newsman Dan Rather once wrote, "A free and truly independent press fiercely independent when necessary is the red beating heart of freedom and democracy." In my opinion, a country that lacks a free press isn't much of a country. So for the sake of democracy and survival of liberty, President Trump's remarks and the subsequent exclusion of several mainstream media outlets from a White House briefing is something we all should be deeply concerned about.

Ryan Curtis

Salt Lake City

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What the 1st Amendment does – WND.com

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Ronald Reagan

On MARCH 15, 1941, Franklin Roosevelt warned at the dinner of White House correspondents: Modern tyrants find it necessary to eliminate all democracies. A few weeks ago I spoke of freedom of speech and expression, freedom of every person to worship God in his own way. If we fail if democracy is superseded by slavery then those freedoms, or even the mention of them, will become forbidden things. Centuries will pass before they can be revived. When dictatorships disintegrate and pray God that will be sooner then our country must continue to play its great part. May it be said of us in the days to come that our children and our childrens children rise up and call us blessed.

The Senate voted down letting children voluntarily pray in public schools on March 15, 1984.

President Reagan said: I am deeply disappointed that, although a majority of the Senate voted for it, the school prayer amendment fell short.

On Sept. 25, 1982, Ronald Reagan said: Unfortunately, in the last two decades weve experienced an onslaught of such twisted logic that if Alice were visiting America, she might think shed never left Wonderland. Were told that it somehow violates the rights of others to permit students in school who desire to pray to do so. Clearly this infringes on the freedom of those who choose to pray, the freedom taken for granted since the time of our Founding Fathers.

Reagan continued: To prevent those who believe in God from expressing their faith is an outrage. The relentless drive to eliminate God from our schools should be stopped.

Ronald Reagan said Feb. 25, 1984: Sometimes I cant help but feel the First Amendment is being turned on its head.

Ronald Reagan stated in a Q & A session, Oct. 13, 1983: The First Amendment has been twisted to the point that freedom of religion is in danger of becoming freedom from religion.

Reagan told the Alabama Legislature, March 15, 1982: To those who cite the First Amendment as reason for excluding God from more and more of our institutions and everyday life, may I just say: The First Amendment of the Constitution was not written to protect the people of this country from religious values; it was written to protect religious values from government tyranny.

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Ronald Reagan stated in a radio address, 1982: The Constitution was never meant to prevent people from praying; its declared purpose was to protect their freedom to pray.

Ronald Reagan stated in a radio address, Feb. 25, 1984: Former Supreme Court Justice Potter Stewart noted if religious exercises are held to be impermissible activity in schools, religion is placed at an artificial and state-created disadvantage. Permission for such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit them is seen not as the realization of state neutrality, but rather as the establishment of a religion of secularism.

Ronald Reagan told the Annual Convention of the National Religious Broadcasters, Jan. 30, 1984: I was pleased last year to proclaim 1983 the Year of the Bible. But, you know, a group called the ACLU severely criticized me for doing that. Well, I wear their indictment like a badge of honor.

Ronald Reagan worded it differently on the National Day of Prayer, May 6, 1982: Well-meaning Americans in the name of freedom have taken freedom away. For the sake of religious tolerance, theyve forbidden religious practice.

Ronald Reagan stated at an Ecumenical Prayer Breakfast, Aug. 23, 1984: The frustrating thing is that those who are attacking religion claim they are doing it in the name of tolerance and freedom and open-mindedness. Question: Isnt the real truth that they are intolerant of religion?

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