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The petition of the day is:
Docket: 11-782
Issue(s): Whether courts can properly award attorney’s fees and costs under fee-shifting statutes that limit such awards to “appropriate” circumstances when, as here, the matter becomes moot on appeal, the judgment of this district court is vacated and undone, and the plaintiff ultimately accomplishes nothing?
John Elwood reviews Monday’s relisted and held cases.
Last Monday brought bad news for respondents in Ryburn v. Huff, 11-208, as we finally got the predicted opinion in that four-time-relisted case. The Court summarily reversed the Ninth Circuit’s decision, holding that police officers were entitled to qualified immunity for their entry into the Huffs’ house while there to investigate a suspected school-shooting plot.
Last week’s decision in United States v. Jones, the GPS tracking case, remained a popular topic for commentators over the weekend. In an op-ed for the New York Times, Barry Friedman contends that in an age of lives lived online, Jones “may turn the Fourth Amendment into a ticking time bomb, set to self-destruct – and soon – in the face of rapidly emerging technology.” Renée Hutchins strikes a similar chord in an op-ed for the Baltimore Sun, describing the majority’s focus on trespass as “miss[ing] a momentous opportunity to speak clearly in a brave new world.” The editorial boards of the Salt Lake Tribune and Dallas Morning News similarly emphasized the opinion’s lack of guidance, while the New York Daily News expresses concern that the decision “will make it hard for cops to get bad guys.”
Others commentators struck a more positive note. Daniel Solove of Concurring Opinions observes that the “concurring opinions indicate five votes for a broader[,] more progressive view of the Fourth Amendment, one which breaks from some of the Court’s antiquated notions of privacy.” The editorial boards of the Buffalo News and Burlington Times News praise the decision as drawing a line in defense of privacy from government intrusion, while Mark Fitzgibbons – in an op-ed for the Washington Examiner – applauds the decision as an “important Fourth Amendment win for conservatives.”
Other commentary on the decision comes from Lior Strahilevitz in an op-ed for the Chicago Tribune, Berin Szoka and Charlie Kennedy of CNET, the editorial board of the Boston Globe, and Kenneth Jost of Jost on Justice. Finally, NPR’s On the Media interviewed Orin Kerr about the opinion.
I want to return to Jones for what will probably be my final thoughts on the case for a while. In earlier posts here and here, I explained why the widespread initial reaction that the Court’s decision in Jones requires the police to get a warrant to install a GPS tracking device was incorrect.
Having reflected more on the decision, I now think that in some respects Jones is still less of a pro-privacy ruling than many people initially thought. Many early reactions seem to have projected onto the decision what the writer wanted it to hold, rather than what the opinion actually concludes.
In this post, I explain why I think that is true, and address some comments and suggestions that readers have thoughtfully sent me in reaction to my earlier posts. And because some disagree with my reading of the decision, I’ve departed from the traditional blog approach and included citations throughout. This is going to take a while.
The Court is on winter recess until the Justices reconvene for the Conference of February 17. Our “Petitions to watch” for that Conference will be available soon.
The February sitting begins February 21.
The petition of the day is:
Docket: 11-770
Issue(s): Whether, pursuant to Michigan v. Summers, police officers may detain an individual
incident to the execution of a search warrant when the
individual has left the immediate vicinity of the premises
before the warrant is executed.
Today’s clippings include further commentary on the Court’s decision in the GPS tracking case, United States v. Jones, as well as continuing coverage of the challenge to the Affordable Care Act.
Writing for the Huffington Post, Susan Landau argues that the Jones decision is merely “one small step for privacy,” given that private companies can still collect sensitive information with few restrictions. Editorials in the Vallejo (Cal.) Times Herald and the Beaufort (N.C.) Observer take a similar view. Continue reading »
The petition of the day is:
Docket: 11-748
Issue(s): (1) Whether search warrants for a business that shares multi-occupancy buildings with others violate the particularity requirement of the Fourth Amendment where the warrants fail to identify the offices, floors or areas to be searched or the specific items to be seized, despite the officer’s knowledge of the business’s location within the buildings and the limited portion of the business under investigation; and (2) whether the Eleventh Circuit properly ruled that a lead officer with actual knowledge of a business’s operations and location within multi-occupancy buildings is entitled to qualified immunity where the officer prepared and obtained search warrants authorizing the unfettered search of the entire buildings and seizure of all business records and items, including those unconnected to the investigation.
Commentary on the Court’s decision in the GPS tracking case, United States v. Jones, continues for a third day. The editorial boards of the New York Times, the Washington Post, the Philadelphia Inquirer, and the Baltimore Sun all weigh in, while in the blogosphere Orin Kerr (at the Volokh Conspiracy), Jacob Sullum (of Reason), and Paul Larkin (at the Heritage Foundation’s Foundry Blog) also have coverage. Conor covered additional news on the decision yesterday. Discussing the decision at Scientific America, John Villasenor criticizes the Court’s opinion as resting “on technology assumptions that are rapidly becoming irrelevant,” while at Wired’s Threat Level blog, David Kravets discusses whether the government needs a warrant to monitor someone in real time via his mobile phone.
The petitions of the day are:
Docket: 11-741
Issue(s): Whether the Due Process Clause prohibits the
use of issue preclusion to establish elements of a
plaintiff’s claims where it cannot be shown that the
issues being given preclusive effect were actually decided
in a prior proceeding.
Awarded for fostering the American public’s understanding of the law and the legal system.
