Chatrie v. United States, a case about whether the use of a “geofence” warrant violated the Fourth Amendment, will be argued on Monday, April 27. Consistent with several other cases this term, the issue has garnered a large number of amicus, or “friend of the court,” briefs – 31, in fact. But out of those 31, eight are “in support of neither party.”
What does that mean, exactly? If you’re in support of, well, neither party, why even bother to file an (often labor-intensive) amicus brief?
A “neither party” filer often has something to say to the court that doesn’t map onto a clean outcome for either side (e.g., about how to frame the question, what factual or technical context the parties have omitted, how broadly or narrowly to rule, etc.).
This is probably best illustrated through some cases themselves.
Moody v. NetChoice (from the 2023-24 term) produced 13 “neither party” briefs, including one from the Knight First Amendment Institute, which argued that “none of the parties in this case offers a compelling theory of how the First Amendment should apply to the regulation of social media.” Per the Institute, the states’ (there, Florida and Texas) arguments would, among other things, “give governments sweeping authority over the digital public sphere” – while the platforms’ arguments would “make it nearly impossible for governments to enact even carefully drawn laws that serve First Amendment values.” In other words, according to this amicus brief, both parties went too far.
By contrast, in the same term’s United States v. Rahimi, which dealt with whether a federal statute that temporarily disarms anyone subject to a domestic-violence restraining order violates the Second Amendment, only one of the 60 amicus briefs was filed in support of neither party. That filing came from a historian and legal scholar, who wrote that the court should take a “macro approach” when it comes to deciding the constitutionality of certain firearm regulations. Instead, he wrote in a 43-page brief, the parties took a mistaken “micro approach” (i.e., focusing on specific history and tradition elements rather than larger historical trends) that risked “the courts resorting to historical conjecture and speculation in forming judgments.”
Back in Chatrie, the eight “neither party” briefs share (at least) one thing in common: the contention that neither party’s proposed framework or solution is quite adequate for deciding the broader questions raised by geofence warrants. For instance, Microsoft Corporation argues that users “maintain a reasonable expectation of privacy in private information when using the cloud” and that “reverse warrants” must be “sufficiently particular and supported by probable cause that is individualized to each person searched” – which aligns partially with Okello Chatrie’s position, who challenges the geofence warrant as far too expansive. But Microsoft differs from Chatrie in that it does not take a position on whether the specific warrant used in his case “complied with the Fourth Amendment.”
The Policing Project at NYU School of Law is perhaps the most explicit about its reasoning, writing that “[t]his case should be resolved narrowly so as not to embarrass the future.” As Policing Project founder Barry Friedman said when the brief was filed: “Given the technical complexities of these tools, the risks they present to our liberties, and their potential public safety benefits when used responsibly by police, the right fix for this is legislative.”
In sum, such briefs advise the court: “when you make your decision, please do it this way.”