Petition of the day

By on Aug 2, 2017 at 1:02 pm

The petition of the day is:


Issue: Whether a federal law enforcement officer is “convicted” within the meaning of 5 U.S.C. § 7371 when a guilty plea has been entered but no sentence has been imposed, no judgment has been issued, and the plea can still be withdrawn.

Jennifer Lynch is a senior staff attorney for the Electronic Frontier Foundation, which filed an amicus brief in support of Timothy Carpenter’s petition for certiorari in Carpenter v. United States.

This summer, the Supreme Court granted certiorari in Carpenter v. United States, a case that offers the court another chance to address just how far the Fourth Amendment’s protections against warrantless searches and seizures extend to cover information generated by the modern technologies we rely on every day.

In Carpenter, the FBI accessed location data linked to Timothy Carpenter’s and his co-defendant’s cell phones in its attempt to place the suspects at the sites of several robberies. But the data the FBI asked for and received weren’t limited to the days and times of the known robberies – they also included months of records that could reveal everywhere the defendants were every time they made or received a phone call. And the FBI got all of this information without a warrant.

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David LaBahn is president and CEO of the Association of Prosecuting Attorneys.

As people have become more reliant on cellular devices, so too has law enforcement become more reliant on using the information contained on, or generated by, these devices to investigate crime. Increasingly, routine law-enforcement practice has been to request incidental-transmittal-cellphone data from cell-service providers. The Washington Post recently reported that requests under 18 U.S.C. § 2703(d) have increased dramatically since 2014 in the District of Columbia alone. AT&T received over 75,000 requests from law enforcement between 2015 and 2016. Inevitably, the collection of such data by law enforcement has led to the introduction of the data as evidence in criminal trials.

In Carpenter v. United States, the government used historic cellphone-location-site information (CLSI), obtained pursuant to a Section 2703(d) order, for a period of 127 days to place the defendant, Timothy Carpenter, within a half-mile to two-mile area near the scene of the multiple robberies for which he was charged and later convicted. Carpenter filed an appeal claiming that the collection of his call location under Section 2703(d) violated his Fourth Amendment protection against unreasonable searches. His appeal was denied by the U.S. Court of Appeals for the 6th Circuit, and the Supreme Court agreed to review his case.

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Wednesday round-up

By on Aug 2, 2017 at 7:08 am


  • At The Narrowest Grounds, Asher Steinberg argues that the court’s opinion in Advocate Health Care Network v. Stapleton, which held that a pension plan maintained by a church-affiliated group qualifies for ERISA’s church-plan exemption no matter who established the plan, “exhibits three textualist pathologies that we textualists should cure ourselves of:  conflating literal meaning with legal meaning, overconfidence about what a statute literally means, and overaggressive application of the anti-surplusage canon.”
  • In The University of Pennsylvania’s Regulatory Review, law student Justin Daniel discusses the court’s decision this term in Kokesh v. Securities and Exchange Commission, which held that a five-year statute of limitations on SEC actions imposing penalties also applied to actions seeking disgorgement.
  • In Nassau Lawyer, Laura Ferrugiari and Timothy Mahoney consider the practical implications “for school districts and parents alike” of the Supreme Court’s decision this term in Endrew F. v. Douglas County School District, in which the justices raised the bar for what constitutes an educational benefit for children with disabilities.
  • For the Associated Press, Sharon Cohen and Adam Geller report on how “several big [Supreme Court] cases over the last dozen years [that] have narrowed the instances in which those who commit offenses under age 18 can be subject to the harshest penalties” have affected the sentences of the defendants in those cases.
  • In The Washington Post, Justin Moyer reports that, “[i]nspired by a recent Supreme Court ruling, two entrepreneurs offended by the n-word filed to trademark the epithet to keep it out of the hands of racists.”

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at]

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John Castellano is Deputy Executive Assistant District Attorney and Chief Appellate Attorney in the office of Richard A. Brown, District Attorney of Queens County, New York.

The Supreme Court’s grant of certiorari in United States v. Carpenter highlights the clash between established Fourth Amendment doctrines and what many argue are the heightened privacy concerns of a digital era. The court will consider the scope of the Fourth Amendment’s protection of information contained in a cellular carrier’s records that reflects the location of cell towers used to complete customers’ phone calls and convey their texts. At stake will be at least two traditional notions underlying the court’s Fourth Amendment jurisprudence. The first is the general understanding that information voluntarily exposed to others is not protected by the Fourth Amendment, and the second is the more specific “third-party doctrine,” which holds that government access to information collected by a private business in order to provide a service to a customer does not constitute a search.

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Petition of the day

By on Aug 1, 2017 at 12:28 pm

The petition of the day is:


Issue: Whether, under Federal Rule of Civil Procedure 4(m), a district court has discretion to extend the time for service of process even without a showing of good cause, as the U.S. Court of Appeals for the 2d, 3d, 5th, 7th, 8th, 9th, 10th, 11th, and D.C. Circuits have held, and as the Supreme Court has interpreted, or whether the district court lacks such discretion, as the U.S. Court of Appeals for the 4th Circuit has squarely held and as the U.S. Court of Appeals for the 6th Circuit has repeatedly suggested.

Jim Harper is vice president of the Competitive Enterprise Institute. As a senior fellow at the Cato Institute, he filed an amicus brief for the institute in support of Timothy Carpenter’s petition for certiorari in Carpenter v. United States.

The outcome of Carpenter v. United States will turn on how granular the Supreme Court is in analyzing what happens when government agents require telecommunications providers to disgorge data about their customers. If the court carefully thinks through the application of the Fourth Amendment to cell site location information (CSLI) sought by the government – if the court treats it as a careful legal exercise – the result will be good for privacy and for the administration of the Fourth Amendment. If the court retreats to doctrine and examines the case in terms of “reasonable expectations of privacy,” the outcome and value of the case will be less clear.

Recent Fourth Amendment history offers examples to illustrate the difference between fuzzy and granular analysis.

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Tuesday round-up

By on Aug 1, 2017 at 7:09 am

In The New York Times, Adam Liptak reports on the latest public comments of the Supreme Court’s “most outspoken member,” noting that “[i]n a pair of recent appearances, Justice [Ruth Bader] Ginsburg critiqued the Trump Administration’s travel ban, previewed the coming court term, predicted an end to capital punishment and suggested that other branches of government are in disarray.” In The Salt Lake Tribune, Jessica Miller reports that at the Utah State Bar convention, Ginsburg “had this advice for young lawyers: ‘Do something outside of yourself. Something that will make a difference.’”

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Petitions of the day

By on Jul 31, 2017 at 12:22 pm

The petitions of the day are:

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether, and when, a party is properly held to be “alleging” a “misrepresentation or omission of a material fact” within the meaning of the Securities Litigation Uniform Standards Act of 1998, 15 U.S.C. § 78bb(f)(1)(A).


Issue: Whether the Securities Litigation Uniform Standards Act of 1998, 15 U.S.C. § 78bb(f)(1)(A), requires dismissing with prejudice a class action complaint for breach of contract and breach of fiduciary duty under state law, when the plaintiff’s claims are not predicated on a “misrepresentation or omission of material fact.”

In 1976, in United States v. Miller, the Supreme Court ruled that the bank records of a man accused of running an illegal whiskey-distilling operation were not obtained in violation of the Fourth Amendment, even though law-enforcement officials did not have a warrant, because the bank records contained “only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.” Three years later, in Smith v. Maryland, the justices ruled that no Fourth Amendment violation had occurred when, without a warrant and at the request of the police, the phone company installed a device to record all of the phone numbers that a robbery suspect called from his home, leading to his arrest.

These cases are often cited as examples of the “third-party doctrine” – the idea that the Fourth Amendment does not protect records or information that someone voluntarily shares with someone or something else. But does the third-party doctrine apply the same way to cellphones, which only became commercially available a few years after the court’s decisions in Miller and Smith? Justice Sonia Sotomayor, at least, has suggested that it should not: In 2012, she argued that the doctrine is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” That question is at the heart of Carpenter v. United States, in which the justices will hear oral argument this fall.

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