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Category Archives: Fourth Amendment

These Are the Legal Issues Surrounding Unmasking, and Heres Whos Doing It the Most – Law & Crime

Posted: May 15, 2020 at 7:59 am

Everyones talking about unmasking, but very few people are being honest about what that term really means or where it came from.

The Donald Trump White House and its allies have projected the notion that the unmasking process is always nefarious and illegal, though the current administration has issued unmasking requests far in excess of the administration of immediate predecessor Barack Obama. National security state fixtures and Democrats insist the unmasking process is standard, routine, and necessary despite the fact that unmasking has only existed for a little over a decade and was specifically conceived as an ex post facto method to reward and protect what critics say is rampant criminality by the national security state.

Spying on American citizens without a warrant used to be illegal. The administration fronted by George W. Bush and largely administered by Dick Cheney did it anyway for several years. In 2005, The New York Times finally released a story that had been withheld prior to the 2004 presidential election which confirmed the existence of the program known as Stellar Wind which critics call unconstitutional.

The reactionary U.S. Congress, with both houses controlled by the Democratic Party, passed a bill to retroactively and arguably legalize these spying efforts by way of the Protect America Act of 2007. Subsequent amendments made in the Foreign Intelligence Surveillance Amendments Act (FISA) of 2008 ensured that the Bush-Cheney warrantless spying program would stand the test of time.

Gone were the days of law enforcement having to seek out warrants for intercepting Americans communications. So long as the spy agency targets a foreign national reasonably believed to be outside the United States, the government has given free rein, for up to one year, to listen in and otherwise collect all forms of electronic data.

One of the few protections afforded to American citizens who are caught up in such dragnets is the masking requirement, which is mainly sourced from FISAs general minimization procedures. Each agencys rules are somewhat different, but when, for example, the Federal Bureau of Investigation (FBI) or National Security Agency (NSA) targets a foreign national and catches the name or communications of an American citizen, the spy agency is supposed to obscure the American citizens name by using U.S. Person 1 or a named U.S. Person in any resulting intelligence reports.

Those protections are, by design, not very strong.

FISA simply provides that American citizens have a reasonable expectation of privacy vis--vis such intercepted communications a legal standard derived from Fourth Amendment jurisprudence.

The statute also offers a general definitional guideline:

Minimization procedures, with respect to electronic surveillance, means

(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1), shall not be disseminated in a manner that identifies any United States person, without such persons consent, unless such persons identity is necessary to understand foreign intelligence information or assess its importance;

Spy agencies, in turn, craft their own determinations of how to keep American citizens privacy in place via internal rules.

Thus, those agencies mask. But national security officials and other high-level executive branch figures can also unmask with ease if they merely justify their unmasking requests with a plea to national security or some other allegedly legitimate rationale.

Unmasking procedures are also governed by internal agency rules andof a piece with the Kafkaesque contours of FISA generallytheres only oversight in name. That is, there is effectively no oversight whatsoever. Whether or not an unmasking is truly legitimate is necessarily impossible for the American public to know.

A brief unmasking scandal quickly passed through the collective consciousness during the spring and early summer of 2017 after allies of President Donald Trump alleged that highly-placed Obama administration officials mishandled and leaked surveillance information in a way that led to the improper identification of non-targets implicated in a foreign intelligence-gathering scheme.

Those charges, mainstreamed by Rep. Devin Nunes (R-Calif.) on behalf of the White House, effectively amounted to a dual-pronged blunt political instrument: (1) they suggested the then-controversial idea that Barack Obama authorized surveillance against the Trump campaign; and (2) they had characteristics of specific retribution directed against members of Trumps transition team.

The original story concerned Obamas onetime national security adviser, Susan Rice, who was apparently the foremost impetus behind the majority of those requests for the Trump aides in question to be unmasked after they appeared in surveillance reports of non-U.S. citizens during the final days of the Obama administration.

Again, the names of Americans are initially redacted in such intelligence reports. But the quirks of the national security state reward powerful individuals with end-runs around procedures and safeguards if their hearts desire such knowledge. When Rice requested those redactions be lifted, the intelligence community was more than happy to comply. It is a feature, not a bug, of how such facially sensitive information can quickly shape-shift according to political whims. Thats how the national security state works.

The inner logic is power itself. Democrats and national security-flavored pundits insisted the whole to-do was merely ho-hum; the Trump administration saw red, called foul and screamed like blood at several decibels for awhile. The scandal eventually died down and went away. Now it is back again.

Now, it appears, other key Obama administration officials were part of those unmasking efforts including presumptive Democratic Party presidential nominee and former vice president Joe Biden.

And this time, theres no guessing game as to who was outed for being mentioned by or conversing with a foreign surveillance target. This time around, the unmasked man is well known and already consuming a fair deal of digital ink and broadcast bandwidth. And he just so happens to be the subject of Trumpworlds latest passion play: retired lieutenant general Michael Flynn.

CBS News reporter Catherine Herridge posted images of documents that showcased Bidens involvementin the purported scandal mid afternoon on Wednesday. Other high profile Obama administration officials also signed off on the Flynn unmasking decision, like James Clapper, John Brennan and Samantha Power.

Notably, the Biden campaign did not respond favorably to Herridges reporting.

SCOOP, tweeted Bidens Rapid Response Director Andrew Bates in a since-deleted tweet. Catherine Herridge is a partisan, rightwing [sic] hack who is a regular conduit for conservative media manipulation ploys because she agrees to publicize things before contacting the target to ask for comment.

As it turns out, Bidens request to unmask Flynn was made on January 12, 2017 the same day that the Washington Posts David Ignatius initially reported on the conversations via Flynn and then-Russian ambassador Sergey Kislyak. The Intercepts Glenn Greenwald argued at the time that the senior U.S. government officials leak to Ignatius was illegal. It would not be a surprise if Trumps allies pushed for an investigation. Such a course of action would, of course, have severe implications for the 2020 presidential election.

This was the description of the list of individuals who submitted requests to unmask Flynn:

The landscape here is a partisan minefield constructed out of what the intelligence community insists is simply business as usual.

Former CIA official Michael Morell told the Washington Post that unmasking happens all the time: literally hundreds of times a year across multiple administrations, he said. In general, senior officials make the requests when necessary to understand the underlying intelligence. I myself did it several times a month and NSA adjudicates the request.

Former Director of National Intelligence and retired lieutenant general James Clapper said Thursday on SiriusXMs The Joe Madison Show that unmasking is not at all nefarious.

Well, I think creating that exact narrative as though this was something illegitimate or inappropriate when it is actually a very, very useful tool available to national security officials. And I know that officials in the current administration are using it to a fairly well actually much more than the previous administration, he said. So they too must recognize that this is a valuable tool that serves the national security interests of the United States. Its not at all nefarious. And the unmasking is occasioned by the interest, the objective of trying to minimize the identity of U.S. persons and restrict that access as much as possible. Thats why the program is designed the way it is. So its a legitimate, appropriate and important national security tool.

He also said that the alarm bells were going off about Flynn and that it was perfectly legitimate to take a closer look.

There were actually dozens of contacts with various representatives of Russia. And so at the time our dashboard warning light [started blinking] . . . given the responsibilities of these positions, it seems to me perfectly legitimate, in fact people would be derelict if they didnt have enough curiosity to inquire what was going on, he added.

Civil libertarians and Fourth Amendment advocates would likely counter that the status quo of routinely unmasking American citizens due to requests from political appointees is, actually, somewhat problematic and, as noted above, its certainly not a longstanding feature of American society; it was only constructed from the ashes of an expressly illegal and unconstitutional program in the first place.

So, has the Trump administration found religion when it comes to the protection of Americans civil liberties? Hardly.

In fact, after learning all about the Obama administrations efforts to unmask certain members of their transition team, it seems the Trump administration underwent a Damascene conversion in the exact opposite direction. The 45th presidents national security state has ordered a massive spike in unmasking requests when compared to numbers from prior years.

Former National Security Agency intelligence analyst and counterintelligence officer John Schindler noted the uptick:

[Photo by Drew Angerer/Getty Images.]

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These Are the Legal Issues Surrounding Unmasking, and Heres Whos Doing It the Most - Law & Crime

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What if police were ordered to search homes in violation of the Fourth Amendment? –

Posted: May 14, 2020 at 5:07 pm

Would you (peace officers) follow an order to search someones home unlawfully in violation of the Fourth Amendment? You have no search warrant, court order, exigency, parole or probation exemptions, fresh pursuit, plain sight, no probable cause to even secure the residence for a warrant, etc. The answer should unambiguously be, NO!

What if your mayor or governor made the same demand via executive order? Hopefully, the answer would remain, forcefully, NO!

Yet what if there was a really good reason, like a public pandemic? Would you go house to house at the demands of a politician who justified that his or her order was meant to facilitate the greater good? Although the illustration is easy to answer for most police officers since the lines of delineation between right and wrong are clear, this appears to be the roller coaster ride we are currently on.

Things have gotten pretty murky with executive orders being issued in violation of several constitutional rights. Weve clearly seen demands that have violated the First, Second, and Fourth Amendments of the U.S. Constitution. Moreover, citizens caught failing to comply with these commands have been warned, cited, and arrested. This is becoming a field day for constitutional attorneys defending these cases, many of which have been immediately dismissed.

The problem for police officers is that many of the orders are not exactly defined as illegal until a court says so. In the meantime, politicians are expecting cops to be mindless robots following directives under the threat of discipline; or worse yet, termination.

We are beginning to see it happen, and it should scare the luster off our badge. Its tyranny, and its currently being practiced across America at this very moment.


As the coronavirus takes on political manifestations demanding safety at all cost, the price being paid includes economic catastrophes, which lead to high rates of domestic violence, drug and alcohol abuse as well as suicide. Therefore, in reality, the safety protocols are producing extremely tragic, unintended consequences. Some argue the results will ultimately outweigh coronavirus concerns.

That is why the salon owner in Dallas and other business owners like her have said enough, and are willing to be jailed or cited in defiance. Long-term repression of liberty and freedom ARE NOT the American way.

Police leaders should consult with legal counsel as the stakes are increasing, particularly those working in organizations demanding that police officers enforce orders that discard the Bill of Rights.

Peace officers should also consult with their labor attorneys before they are fired for insubordination, as Ive heard many cops talking about the price theyd pay if they failed to comply with enforcement demands resulting from executive orders issued by mayors and governors.

However, there will also be a price to pay for blind allegiance to violating constitutional rights, assuming our republic doesnt crumble.

The following excerpt is from an earlier Law Officer article, Taking enforcement action on rules that violate the Bill of Rights is bad practice.

Almost all orders related to COVID-19 violate the Bill of Rights in one way or another. Therefore, any government agency taking an aggressive enforcement approach, including the physical use of force, should reconsider its actions. We (peace officers) swore an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic.

Historically, the enemy has been far more recognizable. Yet now it is masked in the zeal of political leaders willing to discard the Constitution as they flex their power with the explicit desire to be powerful.This is more than the slippery slope we often use as an idiom, its a tidal wave crashing down on freedom and the blood that was shed to obtain and defend it.

Therefore, police officers need to reflect upon the substance of the oath they took when their badge was pinned in place.

So, am Im calling political leaders urging aggressive enforcement of rules as our enemy? If they continue to repress liberty, freedom, or the values that created American exceptionlism, they are not acting like a friend to our way of life. As a matter of fact, the more these individuals demand compliance with unreasonable demands, the more they sound like third-world dictators. Hence, an enemy!

So back to my original question: Would you intentionally search someones home unlawfully in violation of the Fourth Amendment? Of course not! Or would you?

Jim McNeff

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Mulhall column: Reading the COVID-19 tea leaves – Glenwood Springs Post Independent

Posted: at 5:07 pm

Since the onset of the COVID-19 pandemic, which in these parts was in early March, I have found the data-gathering practices on actual cases, hospitalizations, and deaths unhelpful.

Everyone has.

In full disclosure, I had to take college algebra twice to get a passing grade.

This is no slight on Mrs. Haines or GSHS, but you may want to take with a grain of salt anything I might write related even obliquely to math (unless, of course, it has to do with the Electoral College, where numerical reason always gets offended and leaves the room in a snit).

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Youd think that in the 21st Century, U.S. data gathering and reporting would be spit-polished by ubiquitous technologies like iPhones and wireless networks, but alas, the garbage-in-garbage-out proposition still applies, perhaps now more than ever.

Despite my questionable math background, early on in the pandemic I dumped TV news in favor of Bings COVID-19 Tracker to get a clearer picture about where and how quickly the virus was spreading.

However, I soon gave up on Bing for some of the same reasons I soured on TV news.

Unlike the news, Bings COVID-19 Tracker allocates a spot for recoveries. Like the news, they dont put a number to it usually.

Even as I write, the map lists no recoveries in Colorado and most other states.

I thought maybe recovery data gets protected by HIPPA or the Fourth Amendment, and perhaps some of it does, but some states do cite recoveries.

Wyoming, for example, showed 596 cases earlier this week, 391 of which had recovered. Colorado, on the other hand, shows no recoveries but dutifully updates the total number of cases daily, which on Wednesday exceeded 17,000.

In fairness, KDVR did cite Colorado recovery statistics from CDPHE for about three days. KDVR still leads every broadcast with a fuss over cumulative cases, hospitalizations and fatalities, but apart from an occasional human interest piece on a patients hospital departure, theres little mention of recoveries.

Its not just the absence of recovery data that makes data on COVID-19 unhelpful.

Last month I watched as a news anchor unashamedly reported on live TV that a spike in COVID fatalities was partially due to previously unreported deaths attributed to the virus. The gist of the story was something like, CDPHE found numerous COVID-19 fatalities from previous weeks, so they have been added to todays number.

Its like they had no idea what to do, so they plugged them into the nearest slot.

The tendency of fatality reporting to gin up foreboding has been well-understood since the days of Walter Cronkite, but this kind of sloppy data gathering turns a new leaf. Yet, Colorado and communities like Glenwood Springs base decisions on whether to end mask-wearing ordinances and lift restaurant restrictions on this data.

Modeling based on solid data testing, active cases, hospitalizations, recoveries and mortality strikes me as a valid basis for making decisions about precautionary measures, but that validity unravels if you ignore recoveries, dismiss the temporal integrity of deaths, and focus mainly on cumulative active cases, hospitalizations and fatalities.

That focus yields one grim picture.

Holy moly, Myrtle, you end up saying as you smack your forehead with the palm of your hand, Theres over 17,000 COVID cases in Colorado!

View that number through the prism of recoveries and a different picture emerges.

Of course, we dont see that picture because somewhere along the way someone decided recoveries dont matter as much as active cases and fatalities, or something like that.

Last month Gov. Jared Polis referenced the use of cellphone metadata to analyze human movement and determine the efficacy of stay-at-home orders. He could certainly get his hands on recovery data if he wanted it Fourth Amendment rights or not.

So, listen carefully, friends, whenever someone trots out COVID-19 statistics. The vision of what a hopeful future looks like is often in what the voices of public trust dont say.

Mitch Mulhall is a husband, father and longtime Roaring Fork Valley resident. His column appears monthly in the Post Independent and at

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Arlington gym owner reopens, trying to be as responsible as possible –

Posted: at 5:07 pm

(Photo by Spencer Platt/Getty Images)

Mike Jellison, owner of PA Fitness in Arlington, Wash., has decided to reopen his gym despite Washingtons ongoing stay-at-home order.

Initially, Jellison did close his business. He took time off, went to Arizona where his family has a home to think about the future, and told the Jason Rantz Show that he even considered retiring.

I understand. I get it. Everybodys got their own job, but now Ive got my job and Ive got to reassess, understand what I need to do, Jellison said. And then I started digging into a proper procedure, a proper way of actually running our situation.

WA salon owner believes they could safely reopen now, if allowed

Jellison said he listened to the federal briefings with President Trump and understood that health and fitness is essential for a persons mental and physical well-being. Knowing that, it seemed reasonable to expect a gym or fitness center to be included in the early reopening phases.

I mean, thats what he had stated, and thats what I thought the situation would end up being, Jellison said. So coming back up here after that situation, with all my ducks in a row and all the plans and procedures and understandings to make us CDC qualified, and everything in order, come to find out it wasnt to be.

Then, Jellison said, he was infuriated.

I started looking into our constitutional rights and checking out my Fourth Amendment, for business purposes, understanding that we have certain rights, he said. Were all Americans. Everybody has a say in whats going to happen, and whats going to go on, and what were doing. Its called the Constitution. It was put in place for us.

The last straw for Jellison was that any county would have to go three weeks, at least during this phase, without a positive case or a death. Spokane County was denied the ability to move to Phase 2 because of this rule.

I listened to that, and I was outraged, he said. I was totally outraged because of the idea that this cant be true.

So then he opened, with proper rules and restrictions in place.

In my facility, what we did is we put everything at six feet apart, he said. We got rid of half of our stuff. Were doing cleanings through a cleaning company, through us, bleaching. Were doing everything we need to do once an hour. Were taking temperatures at the front door to make sure that nobody is compromised.

The person at the front door checking temperatures wears a mask and gloves. Once the temperature is approved, each person signs a waiver from the insurance company.

We hand them a disinfectant bottle, which is a hospital disinfectant and a towel. They have the personal stuff, and then they go on about their business and do their workout constructively, Jellison said. We have a couple of rovers that are on the floor, and what they do is they make sure that the customers are doing their job.

Jellison said his gym wants to set a good example for the community.

We want to make sure that the community understands that were trying to be as responsible as possible, he said. But physical and mental health is important, and its been pushed to the side for a long time. Its just not right.

Jellison said PA Fitness was contacted yesterday by the state. They had received one complaint, Jellison said. While Jellison said he respects others opinions and right to complain, he also has heard from many more people who recognize that he is trying to do the right thing and being responsible.

Why one customer defied the rules to get a haircut at Snohomish barbershop

He said hes not worried about his business license because he understands his rights as a business owner and has thought about the recourse to his action.

I understand what, legally, what can and cant happen to me. I get it, he said. Like I told my other partners, Ill be the shield, you be the sword.

His message to Gov. Inslee is to put the people as the first priority.

Dont use us as second, third, or fourth priority of what you have going on, he said. I mean, we cant be a sub line, the people, to your agenda. Put the people first because we deserve it.

PA Fitness in Arlington will remain open, Jellison said.

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Appellate Rulings Not Argued By Any Party; Or Too Many Fingers In The Pie – JD Supra

Posted: at 5:07 pm

Last year, I blogged about State v. Elliswhere a passing motorist gave a Highway Patrol trooper the middle-finger salute and was arrested for his trouble. A divided Court of Appeals allowed the defendants conviction to stand. The case made it to the Supreme Court, which recently issued an opinionreversing the conviction.

A quick recap of our story. A trooper was assisting motorists when he noticed that the passenger in a car driving by had extended his hand out the window and was waving. After the vehicle passed, the trooper kept watching and saw that the waving stopped but the passengers middle finger remained extended. The trooper pursued and stopped the car. The passenger would not identify himself until cuffed and placed in the patrol car. Having determined that no one was in distress, the trooper issued a citation to the passenger for resisting, delaying, and obstructing an officer.

At trial, the defendant moved to suppress evidence of his refusal to identify himself, arguing that the facts did not establish reasonable suspicion to justify the stop. After hearing evidence from the trooper, the trial court orally denied the motion without making written findings of fact or conclusions of law, stating instead that [b]ased on a review of the evidence, the Court does find reasonable suspicion for the stop. In addition, based upon the totality of the evidence the Court does find probable cause for the arrest. The defendant then pled guilty, but reserved his right to appeal the denial of his suppression motion.

In its first opinion, filed on 6 August 2019, the Court of Appeals majority found no error. In the absence of written findings of fact and conclusions of law, the Court of Appeals inferred findings based upon the trial courts oral ruling and assessed de novo whether those findings supported the trial courts legal conclusion.

The Court of Appeals noted that the issue was not whether shooting the bird was a crime and that the defendant was not charged on the basis of that behavior. Instead, the issue was whether the trooper, when initiating the stop, had reasonable suspicion that criminal activity was afoot. The majority concluded that the defendants actions reasonably could alert an objective officer to a pending breach of the peace. In dissent, Judge Arrowood argued that no reasonable suspicion existed for the stop.

Heres where it gets interesting. The majority noted that the States brief did not argue that the stop was predicated on reasonable suspicion. Instead, the State had contended that the community caretaker exception, whose application does not require reasonable suspicion, justified the stop. The majority disagreed, finding the community caretaker exception inapplicable. However, the court went on to observe that, because the State was the appellee, the majority could still affirm the trial courts decision on an alternative reasonable suspicion theory. In so doing, the Court of Appeals stated that it is our duty to affirm the trial courts ruling if there is any legal means to justify that trial courts ruling, even if that reason was not argued by the appellee. Indeed, it is our duty to consider all possible legal bases to affirm the trial court even if the State, as appellee, had not filed a brief at all.

This language caused a bit of a stir in the appellate practitioner world. Questions arose as to whether the issue of reasonable suspicion had been fully argued and preserved below or whether the issue merely had been noted in the trial courts ruling, abandoned by the State in its appellees brief, and then invoked by the Court of Appeals majority sua sponte. Also, the language about the Court of Appeals duty to affirm was generating debate. Just as I completed a blog post discussing the original opinion, the Court of Appeals withdrew it and filed a new opinionon 20 August 2019.

In its reissued opinion, the majority again affirmed the trial court, but with two significant modifications. First, the reissued opinion specifically stated that the question of reasonable suspicion had been raised and argued before the trial court, thereby quelling any question whether the issue had been preserved under Appellate Rule 10, even if it was not argued on appeal as contemplated by Appellate Rule 28. Second, discussion of the States brief was relegated to footnote 5, where the opinion stated that the State argues, as an alternative legal basis justifying the stop, that the troopers traffic stop was justified under the judicially-recognized community caretaking exception, then noted that exception was inapplicable. The footnote could be read to suggest that the State had argued both reasonable suspicion and community caretaker, though as we will see below, the States sole contention to that court was the latter. Judge Arrowood maintained his dissent, modified in light of the revised majority opinion.

Taken together, these two Court of Appeals opinions suggest some limit on a reviewing courts ability to strike out on its own when resolving a case. As indicated in the first Court of Appeals opinion, an appellee can prevail on appeal without filing a brief. The burden is on the appellant to convince the reviewing court that the trial court committed reversible error; a bold (or broke) appellee can just sit by and watch. So the reviewing courts opinion in favor of such a silent appellee will be based on a premise that was not briefed, at least not by the prevailing party. May the reviewing court reverse based upon a theory no one ever argued? The original opinion emphatically said yes. The revised opinion suggests a more limited approach, that a reviewing court may rely on an issue that was preserved, even if not presented on appeal.

The defendant appealed to the Supreme Court on the basis of the dissent. The States brief to the Supremes makes unusual reading, to say the least. The State advised the Supreme Court that while the Court of Appeals found that the trooper had reasonable suspicion that justified the stop, [t]he State did not assert this argument in its appellate brief or raise it during oral argument. Rather, it solely contended that the community caretaking exception to the Fourth Amendment applied. The State added that it does not believe that the specific articulable facts included in this record established reasonable suspicion of the crime of disorderly conduct. Lest there be any doubt, the State closed its brief by stating that the decision of the majority of the Court of Appeals should be reversed.

In a unanimous opinion filed on 1 May 2020, the Supreme Court reversed and remanded the Court of Appeals opinion. The matter was determined on the record and briefs without oral argument. The Supreme Courts straightforward opinion reviewed the inferred facts and concluded that no reasonable suspicion existed to justify the initial stop.

Think about what happened here. Recall that the State, to its credit, candidly acknowledged the limited basis of its appeal and conceded that it had never argued the theory on which the Court of Appeals relied. Even so, the Supreme Court, without discussion, followed and analyzed the reasonable suspicion argument that the State did not argue but the Court of Appeals embraced. The original blog post in this chain discussed cases where the reviewing court found that the trial court reached the right result while using the wrong rationale. Here, in a bit of a twist on that earlier post, the Supreme Court found that the Court of Appeals reached the wrong result but had based that result upon a misapplication of the right rationale.

Various permutations of this process are not hard to find. Another prime example where a reviewing court decided issues neither briefed nor argued is Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998). In that case, the Supreme Court abolished the distinction between invitees and licensees in premises liability case. This result came as a surprise to the litigants, none of whom had advocated for such a significant jurisprudential shift.

Similar events can be found in the Big Leagues. Ever-vigilant Beth has pointed me to United States v. Evelyn Sineneng-Smith, U.S. Supreme Court case number 19-67, issued this month, reversing a Ninth Circuit opinion. Writing for a unanimous Court, Justice Ginsburg remanded the case for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel. Ouch. RBG noted the issue addressed in this post when she added A court is not hidebound by the precise arguments of counsel, but the Ninth Circuits radical transformation of this case goes well beyond the pale. Ouch again.

Often, these appellate gyrations may be a practical necessity. Trial courts and litigators need to know the bases for the reviewing courts decisions. Thats why we have written opinions. The reviewing courts obligation to oversee the states jurisprudence and reach sound conclusions will sometimes lead it to a rationale that those below did not see coming. It only makes sense for the ultimate reviewing court to be explicit in those rationales. As Beth and Matts treatise notes, the ultimate responsibility for jurisdictional oversight lies with the jurisdictions court of last resort, though intermediate reviewing courts also have a role. Elizabeth Brooks Scherer & Matthew Nis Leerberg, North Carolina Appellate Practice and Procedure, 2.05[4].

Unanswered is the question how far a reviewing court may (or must) go to reach a correct result. Ellis illuminates the risks inherent in a courts decision to reach what it sees to be the right outcome. The Court of Appeals majority found for the State on a legal basis that the State deliberately had not argued on appeal and later explicitly rejected when in the Supreme Court. In other words, the Court of Appeals majority reached beyond the issues briefed for a result it thought correct, but no one else did, including the beneficiary of the courts reaching.

Litigants and trial judges would surely like to know the limitations, if any, on the reviewing courts ability to look beyond the issues the parties have chosen to present. The process illustrated here in Ellis can be frustrating for those involved in a case who were giving it their best effort but were unexpectedly second-guessed by the reviewing court.

Should the parties be notified and given the opportunity to be heard when the reviewing court is considering a theory that no one argued? While that sounds sensible, implementing it would be a jolt to the cultures of both of North Carolinas appellate courts, at least as existed when I was there. The judges and justices rarely discussed cases before they were calendared, so the panels did not know the outcome and rationale of a case until the judges or justices discussed it in conference and voted on the resolution. Only then could supplemental briefing be ordered if the court was considering going in a direction unanticipated by the parties.

What are the lessons from this case? For one, if you are of a mind to tell a trooper or officer that they are Number 1, use your index finger.

Has something like this ever happened to you? Can you recall any opinions where the appellate courts admitted that they were deciding the appeal based on a theory not argued in any of the appellate briefs? Or where the reviewing court went off on a frolic of its own sub silentio?

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Disease Surveillance and the Fourth Amendment – Reason

Posted: April 11, 2020 at 7:37 pm

A key issue will be determining what policy responses to the coronavirus can be squared with the requirements of the Constitution. Many constitutional provisions are implicatedfor example, the Due Process Clause may restrict the government's ability to quarantine people suspected infection, the Commerce Clause (and its judicially crafted inverse, the Dormant Commerce Clause) bears on the question of division of power between the federal government and the states, and the open-ended nature of Article II raises questions about the president's inherent powers to act in the absence of congressional authorization. For now, I want to focus on the Fourth Amendment, which prohibits "unreasonable searches and seizures" and requires that warrants be supported by probable cause, and which will determine the outer bounds of permissible surveillance at the federal and state levels.

A word of warning: Any analysis is going to be highly tentative, for two reasons. First, Fourth Amendment analysis is highly sensitive to factual details about both the surveillance at issue and the broader context (for example, the severity of the pandemic). In the absence of concrete proposals, any analysis is going to necessarily be at a fairly high level. Second, the relevant Fourth Amendment doctrinesthe third-party and special needs doctrinesare, even by the standards of constitutional law, in flux and without much coherence. Any predictions will thus be somewhat speculative.

I'll first give an overview of the relevant Fourth Amendment law and then apply it to three types of disease surveillance that are likely to be relevant in the near term: tracking the occurrence of coronavirus infection, contact tracing and quarantine enforcement.

Much of the legal difficulty, of course, indirectly stems from the text of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Not all searches and seizures are banned, but just the "unreasonable" ones; and the warrant/probable cause provision doesn't mandate warrants or probable cause, but only requires that a warrant be based on probable cause. That leaves a vast amount open to interpretation (as of course is true for many other constitutional provisions as well), but even more guided than usual by a necessarily vague principle of reasonableness, because "unreasonable" is right there in the text.

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Disease Surveillance and the Fourth Amendment - Reason

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Disease Surveillance and the Fourth Amendment – Lawfare

Posted: at 7:37 pm

Like governments around the world, the United States is struggling with the coronavirus trilemma: It wants to protect lives, ease social isolation, and protect privacy and civil liberties, but it can do only two of those at the same time. In particular, and as South Koreas successful management of the coronavirus shows, extensive surveillance may be the only way to control the outbreak while preserving some degree of normalcy for economic and social life. Ive argued that the longer the pandemic drags on, the more willing (and rightly so) people will be to trade in some of their privacy for the freedom to work and play. There is already significant support for location tracking among both policy experts and the general public, and we should expect this sentiment to increase.

A key issue will be determining what policy responses to the coronavirus can be squared with the requirements of the Constitution. Many constitutional provisions are implicatedfor example, the Due Process Clause may restrict the governments ability to quarantine people suspected infection, the Commerce Clause (and its judicially crafted inverse, the Dormant Commerce Clause) bears on the question of division of power between the federal government and the states, and the open-ended nature of Article II raises questions about the presidents inherent powers to act in the absence of congressional authorization. For now, I want to focus on the Fourth Amendment, which prohibits unreasonable searches and seizures and requires that warrants be supported by probable cause, and which will determine the outer bounds of permissible surveillance at the federal and state levels.

A word of warning: Any analysis is going to be highly tentative, for two reasons. First, Fourth Amendment analysis is highly sensitive to factual details about both the surveillance at issue and the broader context (for example, the severity of the pandemic). In the absence of concrete proposals, any analysis is going to necessarily be at a fairly high level. Second, the relevant Fourth Amendment doctrinesthe third-party and special needs doctrinesare, even by the standards of constitutional law, in flux and without much coherence. Any predictions will thus be somewhat speculative.

Ill first give an overview of the relevant Fourth Amendment law and then apply it to three types of disease surveillance that are likely to be relevant in the near term: tracking the occurrence of coronavirus infection, contact tracing and quarantine enforcement. Since the Fourth Amendment imposes no restrictions on voluntary sharing of information with the governmenton the part of either surveillance targets or third parties who may have information about the targetsIm going to address only mandatory reporting. I will also address the implications of the Fourth Amendment on surveillance. The Fourth Amendment has other applications to disease control that I dont address herefor example, whether individuals can be subject to quarantines and forced medical testing, which raises the question of government seizures (of the body).

A threshold question in any Fourth Amendment analysis is whether the government activity is a search. An activity is a search and thus triggers the Fourth Amendment if it infringes on a reasonable expectation of privacy (the Katz test) or it involves a government trespass (the Jones test). Different forms of disease surveillance could trigger the Fourth Amendment under one or both of these tests. For example, any government surveillance program that required individuals to download an app on their phones might constitute a Fourth Amendment search under the trespass test, since it would interfere in individuals property intereststhat is, to control what is on their devices. By contrast, if the government were to track peoples movement by directly surveilling cellphonesfor example, though IMSI (international mobile subscriber identity) catchers, which mimic cell towersthat might violate a persons reasonable expectation of privacy.

Things become more complex if the government were to compel third partiescellphone companies, internet platforms, medical-device makers or health care providersto turn over data. A long-established carve out to the Katz reasonable-expectation-of-privacy test is the third-party doctrine: People cannot claim a reasonable expectation of privacy in information they have voluntarily handed over to a third party and that the government subsequently acquires. But the third-party doctrine is in flux, and its precise contours are unclear. For example, in the landmark Carpenter v. United States case from 2018, the Supreme Court held that the third-party doctrine did not apply to a weeks worth of cellphone location data that the government had acquired from a mobile provider. Unfortunately the court did not provide much guidance on how to apply Carpenters reasoning to different fact patternssmaller amounts of more-precise location data, larger amounts of less-precise location data, nonlocation data (for example, health data) that nevertheless reveals intimate information about an individual, and so on. All we can say is that, after Carpenter, courts are going to have to decide whether data that would normally be excluded from the Fourth Amendments scope under the third-party doctrine is nevertheless protected because it is particularly sensitive and revealing.

Assuming the Fourth Amendment does apply to the government surveillance, the Fourth Amendment requires that the activity be reasonable. In most cases reasonableness requires that the government have probable cause and get judicial authorizationa warrantbefore conducting the search. In some cases this may be feasible. For example, if the government gets a reliable tip that an infected individual has violated a quarantine order, that might be enough to establish probable cause that a crime has been committed (the quarantine violation) and thus justify a warrant for location data to confirm this fact.

But for many public health purposes, strict adherence to a warrants regime may not be required. Specifically, warrants are not required when exigent circumstances make getting them unfeasible. For example, police do not need a warrant to arrest a fleeing suspect or to prevent the destruction of evidence. Nor is a warrant required when police are engaged primarily in a community caretaking activityfor example, when they are trying to track down someone who is experiencing an imminent medical emergency. But courts tend to construe these exceptions narrowly and, most importantly, they still require police to have probable cause that the underlying activity is taking place. These exceptions to the warrant requirement thus are unlikely to be sufficient for disease surveillance, which requires gathering ongoing data on a wide population (rather than individual by individual), of which few if any may have clear symptoms.

For this reason, any disease surveillance program is likely to be evaluated under the Fourth Amendments special needs doctrine (also called the administrative search doctrine), by which courts sometimes permit warrantless surveillance with less than probable cause if getting a warrant would be impracticable; the search is aimed at something other than a traditional law enforcement purpose; and the search is, all things considered, reasonable.

The difficulty is that the special needs doctrine is by far the least coherent and unsettled part of Fourth Amendment doctrine. Every element in the test is contested, lacking coherent theoretical foundations and full of seemingly arbitrary distinctions that appear to reflect little more than the gut instincts of shifting majorities on the Supreme Court. For example, vehicle checkpoints are permissible when aimed at drunk driving but not at intercepting drugs. Discretionary stops of vehicles to check licenses are not permitted, but similar stops of ships are. Searches of students generally require some degree of individualized suspicion, but student athletes or anyone engaging in extracurricular activities can be subjected to blanket mandatory drug testing. It remains difficult to predict when the courts will authorize nontraditional surveillance under the special needs doctrine.

Nevertheless, the cases suggest some factors that courts routinely consider. First, courts consider the proportionality of the government action. This inquiry balances the intrusiveness of the search against the expected government benefits of that search and also asks whether the government could achieve its objective using less intrusive means. Second, courts are more comfortable when warrantless searches are conducted pursuant to legislative authorization and strict administrative guidelines. Legislative authorization is important for democratic and separation-of-powers reasons, and administrative guidelines help limit the discretion that the front-line enforcement officials have. Third, judicial supervisionin particular ex ante authorization or the ability of the target to challenge the search before it is executedimproves the chances that the search will be deemed constitutional, even if judges arent applying the probable cause standard. Fourth, searches that can be done on an individualized basis are preferred to dragnet searches. Finally, the less that law enforcement has access to or uses the data in criminal prosecutions, the more likely courts are to find that the program is not intended for ordinary law enforcement purposes and is thus permissible.

We can now begin to apply the Fourth Amendment to different kinds of disease surveillance. First, disease reporting. All states require health care providers to report information about infected diseases, and the federal government has extensive disease-reporting programs as well. Traditionally these did not raise any Fourth Amendment concerns, chiefly because the third-party doctrine excluded such data collection from the Fourth Amendments scope. Carpenter may change this, although, given the public health interests at stake and the long history of mandatory disease reporting, such programs would almost certainly pass muster under the special needs doctrine.

Second, contact tracing. Traditional contact tracing involves a manual process by which infected individuals are interviewed and asked with whom they came in contact, so that those individuals can be tested and monitored. But as a group of Oxford researchers wrote in Science, traditional manual contact tracing procedures are not fast enough for the coronavirus. They recommend the widespread use of a contact tracing app that would use location tracking to detect contact with an infected person. If the government requires people to download such an app on their phones, that might trigger the Fourth Amendment under the Jones trespass test. If instead the government were to collect large amounts of location data from companies (in order to do contact tracing), that would likely trigger the Fourth Amendment under the Katz reasonable-expectation-of-privacy test, especially in light of Carpenter.

Thus the constitutionality of contact tracing would hinge on the special needs analysis. Here a lot would depend on how the factors listed above applied to the specific contact tracing program at issuethat is, how effective the contact tracing program was, what safeguards were built into the program, and so on. This is particularly important because contact tracing requires surveillance not just of infected individuals but of all the individuals the infected person might have come into contact with. This means that the government will need to collect information on individuals it has little individualized suspicion to think have contracted the virus. A robust contact tracing program would thus raise constitutional concerns similar to those regarding the National Security Agencys telephony metadata program under Section 215 of the USA Patriot Act.

Finally, location surveillance to enforce quarantine orders. As above, a threshold question is how the government collected the information at issue. If the government required infected individuals to download a location-broadcasting app on their phonesor, in an extreme case, to wear a physical device, like a GPS braceletthat would almost certainly trigger the Fourth Amendment under Jones. If the government instead tracked the quarantined persons phone directly (for example, through IMSI catchers) or indirectly (by compelling the disclosure of location data from the cellphone provider), whether the activity was a search would likely turn on how much information the government acquired. And whether the search was nevertheless reasonable in the absence of a warrant would turn on the intrusiveness of the search relative to its importance in enforcing quarantine. Broad, constant surveillance would likely not pass constitutional muster given that enforcing a quarantine does not require constant surveillance of people while theyre in the quarantine zone but, instead, only when they leave it.

By contrast, if the government program only disclosed when individuals left the quarantine zone, that would substantially strengthen its argument for constitutionality. Indeed, such a program (absent a physical intrusion into the quarantined persons phone) might not even count as a Fourth Amendment search at all. Under binary search doctrine, government action that only discloses whether or not some contraband or other illicit substance is present is not a search, on the theory that no one has a reasonable expectation of privacy in breaking the law. The binary search doctrine has been most commonly applied in the context of drug-sniffing dogs or drug field tests, but the same logic might apply here. Especially if leaving a quarantine zone would violate the law, a system that notified the government only when someone left the zone might avoid Fourth Amendment scrutiny altogether.

In the background to all this doctrinal analysis is the question of the role of the Fourth Amendmentand the Constitutionin times of emergency. On the one hand, courts tend to give the government a lot more leeway in emergencies. We might expect the same in a pandemic situation, especially at the beginning, when there is less information and courts have little basis to question government representations about necessity or effectiveness.

On the other hand, emergency powers are not limitless. There are a number of safeguards that can be built into emergency powersand that courts might take into accountwhich can limit the possibility for abuse without harming efficacy. For example, courts may give the government more leeway when the action is taken pursuant to a formal invocation of emergency, especially if it is also ratified by the legislature. Sunset clauses (as in the United Kingdoms recently enacted Coronavirus Act), can provide an assurance that emergency powers will not be permanent. Transparency as to how the program is operating can increase accountability to the general public and civil society watchdog groups. And, above all, the emergency response must be limited to what is necessary to deal with the emergency; courts will (or at least should) examine the government program for surveillance creep.

To reiterate, this analysis is deeply provisional. We are confronted with a truly unprecedented situation (in both the legal and nonlegal senses of the term), and much will depend on the specific details of future disease surveillance programs. Part of my reason for writing this post is to encourage other Fourth Amendment scholars to weigh in and do their own analysis of how they believe the law applies to the coronavirus crisis. This legal spadework is important, if only to give policymakers and legislators as much guidance as possible as to what options are constitutionally permitted to fight the coronavirus and future pandemics.

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Supreme Court Rules on Traffic Stops and Age Bias – The New York Times

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WASHINGTON The Supreme Court ruled on Monday that police officers may stop vehicles registered to people whose drivers licenses had been suspended on the assumption that the driver was the owner, rather than, say, a family member. The court also ruled that federal workers can win age discrimination suits under a more relaxed standard than employees in the private sector. And it turned down an appeal challenging a transit systems ban on religious advertising.

In spring 2016, a sheriffs deputy in Lawrence, Kan., ran a check of the license plate of a moving Chevrolet pickup truck. The deputy learned that the vehicle was registered to Charles Glover Jr. and that Mr. Glovers drivers license had been revoked.

Based on that information and nothing more, the deputy stopped the truck, which Mr. Glover turned out to be driving. Mr. Glover was prosecuted for driving without a license, and he moved to suppress the evidence against him, arguing that the stop had violated the Fourth Amendment, which forbids unreasonable searches and seizures.

The Kansas Supreme Court ruled for Mr. Glover, saying the deputy had made two unreasonable assumptions: that a vehicles registered owner is likely the primary driver and that people whose drivers licenses are suspended or revoked will likely disregard the suspension or revocation and continue to drive.

The U.S. Supreme Court on Monday reversed that ruling, saying that the deputys assumption had been supported by common sense. Justice Clarence Thomas, writing for the majority, said the deputy had drawn an entirely reasonable inference that Glover was driving while his license was revoked.

Justice Thomas wrote that matters would be different had the officer known, for instance, that the registered owner was in his mid-60s but observed that the driver was in her mid-20s. In a concurring opinion, Justice Elena Kagan, joined by Justice Ruth Bader Ginsburg, gave several other examples of kinds of information available to police officers that would make such traffic stops improper.

Only Justice Sonia Sotomayor dissented in the case, Kansas v. Glover, No. 18-556. The majority today has paved the road to finding reasonable suspicion based on nothing more than a demographic profile, she wrote.

The second decision issued Monday, Babb v. Wilkie, No. 18-882, concerned Noris Babb, a pharmacist who said she was denied promotions, benefits and training opportunities by the Department of Veterans Affairs at least partly because of her age.

Had she worked in the private sector or for a state or local government, she would have had to prove that her age was a determinative reason for the denials a but for cause in the legal jargon. The question for the justices was whether federal workers can win age discrimination suits under a more relaxed standard, showing only that age was one factor among many leading to a negative employment decision.

Justice Samuel A. Alito Jr., writing for the majority, said the words of the relevant law allowed Ms. Babb to sue under the relaxed standard. The law says that all personnel actions affecting employees or applicants for employment who are at least 40 years of age shall be made free from any discrimination based on age.

That Congress would want to hold the federal government to a higher standard than state and private employers is not unusual, Justice Alito wrote. He added, though, that even federal workers must satisfy the stricter standard to obtain many forms of relief, including reinstatement and back pay.

Only Justice Thomas dissented. The courts holding, he wrote, unnecessarily risks imposing hardship on those tasked with managing thousands of employees within our numerous federal agencies.

The court also turned down an appeal from the Archdiocese of Washington, whose request to place religious advertising on public buses during the 2017 Christmas season was rejected by the local transit system.

The ad showed the silhouettes of three shepherds looking at a star along with the words Find the Perfect Gift. A web address on the ad led to information about Roman Catholic beliefs and activities.

The Washington Metropolitan Area Transit Authority, operated by Maryland, Virginia and the District of Columbia, rejected the ad, citing a 2015 policy barring political, religious and advocacy advertising. The agency said it had adopted the policy after it received complaints about ads showing graphic images of animal cruelty, opposing discrimination based on sexual orientation and criticizing the Catholic Churchs position on using condoms.

The archdiocese sued, saying the policy violated the First Amendments prohibition of government discrimination against speech based on its viewpoint. A trial judge ruled for the agency, and a two-judge panel of the United States Court of Appeals for the District of Columbia Circuit agreed.

Justice Brett M. Kavanaugh, then a judge on the appeals court, was the third member of the panel and heard arguments in the case. Though he did not participate in the appeals courts decision, he disqualified himself from the Supreme Courts consideration of the case, Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, No. 18-1455.

Because the full court is unable to hear this case, it makes a poor candidate for our review, Justice Neil M. Gorsuch, joined by Justice Thomas, said in a statement. But they said the transit system had engaged in viewpoint discrimination forbidden by the First Amendment.

The First Amendment requires governments to protect religious viewpoints, not single them out for silencing, Justice Gorsuch wrote.

In urging the Supreme Court to hear the case, the archdiocese argued that the agency had plainly discriminated against religious viewpoints. If Amazon or Macys had wanted to run an advertisement with the same text and graphics or with reindeer instead of shepherds, there is no question that W.M.A.T.A. would have readily accepted the advertisement, Paul D. Clement, a former solicitor general in the Bush administration, wrote in a petition seeking review.

The agency, represented by Donald B. Verrilli Jr., a former solicitor general in the Obama administration, responded that the archdioceses argument depends on treating advertisements for toys or beverages not as what they are efforts to sell commercial products but as a form of social commentary on the meaning of Christmas.

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Law Review: Police fail to inform drunk driver of loss of license for refusing blood test – Sierra Sun

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If you are unfortunate enough to be pulled over for suspicion of being under the influence of alcohol or drugs, are you required to submit to a breath or blood test? What if you refuse? Read People v. Peter Balov.


After Peter Balov was arrested for suspected drunk driving, the arresting officer advised him that per California law he is required to submit to a chemical test, either a breath or a blood test.

Understanding he had to take a test, Balov chose a blood test, which showed a blood alcohol level above the legal limit.

Balov argued the results of the blood test should be suppressed in court, arguing his consent was invalid because the officer had not explained the consequences of refusing breath or blood testing as required by Vehicle Code section 23612. That section requires a driver to be told that his or her failure to submit to a test will result in a fine and loss of their drivers license.


A blood draw is a search subject to the Fourth Amendment requiring a search warrant or the drivers voluntary consent to be searched.

To address that dilemma and prevent every driver from refusing to be tested, section 23612 provides that A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood That is the so-called implied consent law. By driving on Californias roads, you consent to be tested if you are lawfully arrested for drunk driving.



Most importantly for Balov, section 23612, as noted, also requires that the driver be told that his or her failure to submit to a test will result in a fine, loss of drivers license (one year for first conviction) and mandatory imprisonment if convicted of driving under the influence. The gist of this case is that Balov was not informed of those consequences, he was merely told that he must take a test, either blood or breath.

Is Balov entitled to have the results of his blood test thrown out because he was not told of the consequences of refusing to be tested?

For example, if he had known of the consequences of refusing a test, Balov might have refused to take a test figuring his odds of convincing a jury that he was not driving under the influence would improve if the blood test was not entered into evidence.


The Fourth District Court of Appeal upheld the trial courts finding that the officer correctly told Balov he was required to submit to a breath or blood test, and while the statement was incomplete because Balov was not informed of the consequences of his refusal, the officer did not intend to deceive Balov. To be honest, I find whether the officer intended to deceive Balov irrelevant. He did not tell him of the consequences of refusing to take one of the tests which the law required.

Balovs conviction of driving under the influence is upheld as he did not object to taking a test, even though the officer did not inform him of the consequences of refusing a test required.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jims practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at or

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Ain’t no party like a South Boston St. Patrick’s party, cuz it don’t stop, no, it don’t stop – at least until the cops show up, and sometimes not even…

Posted: at 7:37 pm

A federal appeals court ruled yesterday that Boston police officers did nothing wrong when they walked through an open door into a boisterous party at East 6th and O streets on St. Patrick's Day in 2013 in response to a noise complaint - and wound up arresting several partygoers after a shoving match broke out.

The decision overturns a lower-court ruling that Boston police officers Harry Jean, Keith Kaplan and Daran Edwards, who initially walked into Christopher Castagna's apartment should not have done so - and means the Castagna and his brother Gavin won't get the settlement ordered by that judge: $1.

At issue was whether three officers - the Castagnas initially sued some 20 officers, but the suits against most were dismissed - should have just walked into Christopher Castagna's apartment without a warrant or his permission after responding to a noise complaint, spotting one seemingly underage lad come outside whirl around and vomit and seeing other apparent pre-21ers through a window. Castagna was not in a position to grant permission since he was, according to the court's summary of the case - in a rear bedroom, drinking and possibly toking up, while his guests grooved to the loud music in the living room, which made it impossible for him to hear the cops shouting "Boston Police!" as they approached and then entered his open apartment door.

In its ruling, the US Court of Appeals for the First Circuit said that the officers were protected by "qualified immunity" - basically, they were doing their job, and more specifically by a "community caretaking" exception to the Fourth Amendment that lets police take certain actions to safeguard the public even in the absence of the sort of serious crime that is normally required for warrantless searches - in this case, the loud music blaring from the apartment and the apparent presence of several underage drinkers, at least one of them literally sick to his stomach.

According to the court summary of the case, Boston officers arrived at East 6th and O shortly after 7:30 p.m. on March 17, 2013 - roughly 90 minutes after somebody called 911 to complain about a loud party.

By early evening, many of the guests at the Castagnas' party were intoxicated. Different guests estimated that they drank "between [twelve] and [fifteen] beers," eleven to thirteen beers, "ten beers," and "seven or eight beers" that day, respectively. ...

Jean arrived slightly after his fellow officers. He also heard music, saw that the front door was open, and noticed through the window that the people inside were drinking. He, too, believed that some of the guests were underage. As he approached the apartment, Jean "saw a young male come stumbling outside" onto the public sidewalk. Jean testified that the young man "walked around like -- you know, like a circle or half-circle, and then he hurled over, vomiting, and he did that twice. And then he stumbled back into the address that we were looking at."

Kaplan reached the apartment door and yelled "hello" several times and then "Boston Police." No one answered. According to Kaplan, "[w]hen no one answered, we kind of walked in."

At that point, none of the officers were intending to arrest anyone at the party, for underage drinking or any other crime. Kaplan explained that this response was in line with the police department's normal practice for responding to noise complaints: "Typically, we would just knock on the door, try to see who the owners are and tenants and have them turn the music down, shut the doors, keep the windows up and keep everything inside." Indeed, several of the officers did not have their handcuffs on them, which would have been necessary to make an arrest, explaining that they left them behind to lighten their load during a long day walking the parade route.

The officers explained at trial that there were two reasons for entering the home that evening: (1) to respond to the noise complaint by finding the homeowners and having them lower the volume of their music and (2) to make sure that any underage drinkers were safe, including the young-looking man who had vomited outside the home and returned inside.

The guests were in the middle of a dance competition when the police entered through the open door, and they did not immediately respond. Eventually, when they noticed the officers, the guests turned off the music. Kaplan explained that there had been a complaint of underage drinking and asked for the homeowners. There was a lull in which no one answered. Eventually some of the guests told the police that the owner's name was "Chris," but he was not in the room and was "in the back or the bathroom or something to that effect." Jean and another officer went to look for Christopher while the others stayed in the kitchen with most of the guests. ...

The court continued that the officers eventually found the Castagnas in a rear bedroom, that Christopher Castagna opened the door but that when he saw one of the cops eyeing some pot in the room, he tried to slam the door shut, only the officer's foot was right there, preventing him from closing the door all the way.

In the bedroom, Christopher shoved Jean a second time and the conflict between the officers and the party guests escalated. Other officers were called as back-up. Eventually, several of the guests and both brothers were arrested on various charges.

The brothers eventually sued all the cops who responded in federal court, on a variety of charges, including false imprisonment, assault and battery and malicious prosecution - and violation of their Fourth Amendment rights against unlawful entry and their First Amendment rights.

The case came to trial in 2018. The judge declined to tell the jury about the "community caretaking" exception to the Fourth Amendment, but the jury found for the officers under the "exigent circumstances" exception, which is the one normally used for serious criminal activities - that the officers had probable cause to know they had to act immediately to stop something serious.

The Castagnas' attorney filed for a new trial, calling the entry into the apartment and then Christopher Castagna's bedroom "a miscarriage of justice." Instead of a new trial, however, the judge amended the decision to find that the three specific officers were, in fact, guilty of "unlawful entry" because they had neither a warrant nor Christopher Castagna's permission to enter the apartment.

The court awarded the two brothers one dollar in nominal damages from each of the three officers. The court did not disturb any of the other jury verdicts.

The officers then appealed. In its ruling, the appeals court allowed as how there is some ambiguity about community caretaking - in fact, the appeals court did not directly address it until a case after the officers' trial - but not so much that the trial judge, Indira Talwani, shouldn't have told the jury about it:

The officers' entry into the home was in fact constitutional under the community caretaking exception and it was not clearly established at the time of their entry that the community caretaking exception would not give them an immunity defense.

The court continued:

Here, the function being performed by Edwards, Jean, and Kaplan was a community caretaking one. When the officers arrived at the scene, they saw intoxicated guests who appeared to be underage entering and exiting a party freely through an open door. Jean saw a guest that looked underage leave the house, throw up twice outside, and then reenter the apartment. The party was loud enough to be heard from the street. In their efforts to have the music turned down and make sure any underage guests were safe, they were aiding people who were potentially in distress, preventing hazards from materializing, and protecting community safety. ...

The officers acted reasonably. The officers had an implicit invitation to go up on the porch and knock on the apartment's door. See Florida v. Jardines, 569 U.S. 1, 8 (2013). The officers did not enter the home until announcing themselves and failing to get the guests' attention. They needed to get the attention of the homeowner because he is the person ultimately responsible for the impact of the party on the neighborhood. Because they were responding to a 911 call reporting a noise complaint, the officers knew that people in the neighborhood were disturbed by the party. In addition, underage drinkers pose a safety risk. This is especially true on a holiday known for drinking and one that requires extra police officers to be deployed throughout the city.

Given the open front door, the people coming in and out of that open door at will, the evident lack of supervision by the owner of who entered, and the owner's failure to respond, any expectation of privacy was greatly diminished. It was objectively reasonable for an officer to have on-going concerns about noise complaints and underage drinking and determine that they might be easily resolved by entering through an open door (the same one the guests were coming and going through freely) to bring these complaints to the owner's attention.

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