Supreme Court Says You Can’t Sue the Corporation that Wrongly Marked You A Terrorist

In a 5-4 decision, the Supreme Court late last week barred the courthouse door to thousands of people who were wrongly marked as “potential terrorists” by credit giant TransUnion. The Court’s analysis of their “standing” —whether they were sufficiently injured to file a lawsuit—reflects a naïve view of the increasingly powerful role that personal data, and the private corporations that harvest and monetize it, play in everyday life. It also threatens Congressional efforts to protect our privacy and other intangible rights from predation by Facebook, Google and other tech giants.

Earlier this year, we filed an amicus brief, with our co-counsel at Hausfeld LLP, asking the Court to let all of the victims of corporate data abuses have their day in court.

What Did the Court Do?

TransUnion wrongly and negligently labelled approximately 8,000 people as potential terrorists in its databases. It also made that dangerous information available to businesses across the nation for purposes of making credit, employment, and other decisions. TransUnion then failed to provide the required statutory notice of the mistake. The Supreme Court held this was not a sufficiently “concrete” injury to allow these people to sue TransUnion in federal court for violating their privacy rights under the Fair Credit Reporting Act. Instead, the Court granted standing only to the approximately 1,800 of these people whose information was actually transmitted to third parties.

The majority opinion, written by Justice Kavanaugh, fails to grapple with how consumer data is collected, analyzed, and used in modern society. It likened the gross negligence resulting in a database marking these people as terrorists to “a letter in a drawer that is never sent.” But the ongoing technological revolution is not at all like a single letter. It involves large and often interconnected set of corporate databases that collect and hold a huge amount of our personal information—both by us and about us. Those information stores are then used to create inferences and analysis that carry tremendous and often new risks for us that can be difficult to even understand, much less trace. For example, consumers who are denied a mortgage, a job, or another life-altering opportunity based upon bad records in a database or inferences based upon those records will often be unable to track the harm back to the wrongdoing data broker. In fact, figuring out how decisions were made, much less finding the wrongdoer, has become increasingly difficult as an opaque archipelago of databases are linked and used to build and deploy machine learning systems that judge us and limit our opportunities.

This decision is especially disappointing after the Court’s recent decisions, such as Riley and Carpenter, that demonstrated a deep understanding that new technology requires new approaches to privacy law.

This decision is especially disappointing after the Court’s recent decisions, such as Riley and Carpenter, that demonstrated a deep understanding that new technology requires new approaches to privacy law. The Court concluded in these cases that when police collect and use more and more of our data, that fundamentally changed the inquiry about our Fourth Amendment right to privacy and the Court could not rigidly follow pre-digital cases. The same should be true when new technologies are used by private entities in ways that threaten our privacy.

The majority’s dismissal of Congressional decision-making is also extremely troubling. In 1970, at the dawn of the database era, Congress decided that consumers should have a cause of action based upon a credit reporting agency failing to take reasonable steps to ensure that the data they have is correct. Here, TransUnion broke this rule in an especially reckless way: it marked people as potential terrorists simply because they shared the same name as people on a terrorist watch list without checking middle names, birthdays, addresses, or other information that TransUnion itself undoubtedly already had. The potential harms this could cause are particularly obvious and frightening. Yet the Court decided that, despite Congress’ clear determination to grant us the right to a remedy, the Court could still bar the courthouse doors.

Justice Thomas wrote the principal dissent, joined by Justices Breyer, Sotomayor, and Kagan. As Justice Kagan explained in an additional dissent, the ruling “transforms standing law from a doctrine of judicial modesty into a tool of judicial aggrandizement.” Indeed, Congress specifically recognized new harms and provided a new cause of action to enforce them, yet the Court nullified these democratically-enacted rights and remedies based on its crabbed view that the harms are not sufficiently “concrete.”

What Comes Next?

This could pose problems for a future Congress that wanted to get serious about recognizing and empowering us to seek accountability for the unique and new harms caused by modern data misuse practices, potentially including harms arising from decision-making based upon machine learning and artificial intelligence. Congress will need to make a record of the grievous injuries caused by out-of-control data processing by corporations who care more for their profits than our privacy and expressly tie whatever consumer protections it creates to those harms and be crystal clear about how those harms justify a private right of action.

The Court’s opinion does provide some paths forward, however. Most importantly, the Court expressly confirmed that intangible harms can be sufficiently concrete to bring a lawsuit. Doing so, the Court rejected the cynical invitation from Facebook, Google, and tech industry trade groups to deny standing for all but those who suffered a physical or economic injury. Nonetheless, we anticipate that companies will try to use this new decision to block further privacy litigation. We will work to make sure that future courts don’t overread this case.

The court also recognized that the risk of future harm could still be a basis for injunctive relief—so while you cannot seek damages, you don’t have to wait until you are denied credit or a job or a home before seeking protection from a court from known bad data practices. Finally, as the dissent observed, the majority’s standing analysis only applies in federal court; state courts applying state laws can go much further in recognizing harms and adjudicating private causes of action because the federal “standing” doctrine does not apply. The good work being done to protect privacy in states across the country is now all-the-more important.

But, overall, this is a bad day for privacy. We have been cheered by the Supreme Court’s increasing recognition, when ruling on law enforcement activity, of the perils of modern data collection practices and the vast difference between current and previous technologies. Yet now the Court has failed to recognize that Congress must have the power to proactively protect us from the risks created when private companies use modern databases to vacuum up our personal information, and use data-based decision-making to limit our access to life’s necessities. This decision is a big step backwards for empowering us to require accountability from today’s personal data-hungry tech giants. Let’s hope that it is merely an anomaly. We need a Supreme Court that understands and takes seriously the technology-fueled issues facing us in the digital age.    

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June 28, 2021 at 01:50PM

Clarence Thomas Suggests Marijuana Laws Are Outdated

Supreme Court Justice Clarence Thomas on Monday said that federal laws against the sale and cultivation of marijuana are inconsistent, making a national prohibition unnecessary, reports CNBC. The court’s decision not to hear a new case related to tax deductions claimed by a Colorado medical marijuana dispensary prompted Thomas to issue a statement that more broadly addressed federal marijuana laws. Thomas stated that a 2005 ruling in Gonzales v. Raich in particular, which determined that the federal government could enforce the prohibition against marijuana possession, may be outdated.

Thomas referred to several policies that conflict with the 2005 ruling. Among them are memorandums issued by the Department of Justice in 2009 and 2013 that indicated the government would not intrude on state marijuana legalization schemes or prosecute individuals for marijuana activity if it complies with state law. He added that since 2015, Congress has repeatedly prohibited the Justice Department from using federal money to interfere in the implementation of state medical marijuana laws. With 36 states permitting the use of medical marijuana and 18 allowing recreational use, Thomas asserted that marijuana businesses do not experience “equal treatment” under the law.

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June 29, 2021 at 10:14AM

Supreme Court Weighs in on Warrantless Searches of Phones, Laptops at Border

A lawsuit has been brought before the Supreme Court by eight plaintiffs challenging warrantless searches of phones and other devices at the U.S. border, reports USA Today. U.S. Customs and Border Protection reports it performed 40,913 so-called basic searches of electronic devices in 2019, a 22 percent increase from the prior fiscal year. Those searches involve an officer looking through a phone – reading emails, texts and calendar items – without the help of third-party software. Varying opinions by different appeals courts on border officials authority in these circumstances around the country means that an international passenger entering the United States at Boston Logan International Airport faces a different set of rules than if that same passenger touches down in Los Angeles.

The government told the high court in May that federal agencies “enforce a wide range of federal laws at the border” and said that the court’s past precedents permit the device searches while the Biden administration said that the plaintiffs have not established what happened when agents seized their phones. In a statement, U.S. Customs and Border Protection said searches have helped to detect terrorist activity and thwart international crimes. The American Civil Liberties Union, argues that phones, computers and other devices chock full of personal information should be subject to a higher standard than a passenger’s luggage.

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June 22, 2021 at 11:06AM

Supreme Court Finds Cops Cannot Simply Barge into a Home in Pursuit of Someone Suspected of a Misdemeanor

The Supreme Court ruled 9-0 on Wednesday in Lange v. California that the police are not universally authorized to make warrantless entries into private homes based on an officer’s suspicion that a person has committed a misdemeanor-level offense.

The case presented a tough question for the Court, and it became clear during oral arguments that justices were loathe to create a categorical rule would extend an exception to the warrant rule to every case involving a suspected misdemeanor.

The facts are as follows.  A police officer followed Arthur Gregory Lange one night as Lange drove home listening to loud music and honking his horn. As Lange approached his own driveway, the officer (who had, at that point activated his signal lights), continued to trail him. Lange opened his own garage door, pulled into the garage, and tried to close the electric garage door before the officer could follow him.

The officer, however, exited his squad car, stuck his foot under Lange’s garage door, and stopped the door from closing. When the officer got close to Lange, the officer allegedly smelled alcohol on Lange’s breath. The officer then ordered Lange out of the garage for a DUI investigation.

All this was done without a warrant. The officer maintained that under the Fourth Amendment, no warrant was necessary given that he had been in hot pursuit of Lange — an example of “exigent circumstances” that justify a warrantless search under a long-recognized exception to the constitutional requirement of a warrant as a general matter of law.

The case was complicated by the nature of the crime upon which the officer had based his warrantless search; the officer maintained that he believed Lange had committed misdemeanor violations of the California Vehicle Code by playing music and honking.

The Supreme Court decided that while suspicion of some misdemeanors might form the basis of a proper warrantless search, the rule is not absolute across all misdemeanors.

Justice Elena Kagan wrote for the Court, explaining the rationale behind the long-standing rule which allows warrantless searches in certain more serious circumstances:

One important exception is for exigent circumstances. It applies when “the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.” The exception enables law enforcement officers to handle “emergenc[ies]”—situations presenting a “compelling need for official action and no time to secure a warrant.

Misdemeanors, however, range in seriousness from the violent to the trivial; therefore, the court ruled that the commission of a misdemeanor should not trigger any across-the-board right for police to enter a home without a warrant. Rather, Kagan explained, the gravity of the offense and the surrounding circumstances must be examined on case-by-case basis in order to determine whether the police are justified in departing from the usual Fourth Amendment requirement that a warrant be issued by a neutral magistrate upon a showing of probable cause prior to any police search.

Although the Court’s ruling was a win for Lange, it is by no means a basis to invalidate an entire class of warrantless searches. Moreover, Lange’s win may be short-lived, as the case is remanded for the lower court to determine whether the officer’s entry had been appropriate.

Kagan explained that the ruling declined to create a categorical rule applicable to all suspected misdemeanants:

When the totality of circumstances shows an emergency—such as imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home—the police may act without waiting. And those circumstances, as described just above, include the flight itself. But the need to pursue a misdemeanant does not trigger a categorical rule allowing home entry, even absent a law enforcement emergency.

Kagan concluded:

On many occasions, the officer will have good reason to enter — to prevent imminent harms of violence, destruction of evidence, or escape from the home. But when the officer has time to get a warrant, he must do so — even though the misdemeanant fled.

While all the justices agreed with the outcome in the Lange case, several justices opted to pen their own concurrences, elaborating on their reasoning.

Chief Justice John Roberts wrote his own opinion, which was joined by Justice Samuel Alito — and it sounded more like a dissent than a concurrence. Specifically, Roberts and Alito took issue with the Court’s holding that flight itself is insufficient to trigger an exception to the warrant requirement.

“Suppose a police officer on patrol responds to a report of a man assaulting a teenager,” Roberts hypothesized. He laid out the hypothetical problem as follows:

Arriving at the scene, the officer sees the teenager vainly trying to ward off the assailant. The officer attempts to place the assailant under arrest, but he takes off on foot. He leads the officer on a chase over several blocks as the officer yells for him to stop. With the officer closing in, the suspect leaps over a fence and then stands on a home’s front yard. He claims it’s his home and tells the officer to stay away. What is the officer to do?

Roberts reasoned that both the Fourth Amendment and common sense support the officer’s right to proceed without a warrant. Requiring the police to obtain a warrant in this situation would cause delay such that “the suspect may stroll into the home and then dash out the back door,” or perhaps worse, that the suspect could “get a gun and take aim from inside.”

According to Roberts, the issue isn’t whether the suspect may have committed a misdemeanor or a felony, but rather, that the person fled. “It is the flight, not the underlying offense, that has always been understood to justify the general rule” which excuses the need for a warrant, explained the Chief Justice.  “The Court errs by departing from that well-established rule.”

Justice Brett Kavanaugh penned his own concurrence highlighting his agreement with Roberts’ point, but Kavanaugh took a distinct “there’s more that unites us than divides us” approach to the case.

“[I]n my view,” Kavanaugh wrote, “there is almost no daylight in practice between the Court’s opinion and THE CHIEF JUSTICE’s opinion concurring in the judgment.”

Calling Roberts’ concurrence “thoughtful,” Kavanaugh explained that in his view, fleeing misdemeanants “will almost always also involve a recognized exigent circumstance — such as a risk of escape, destruction of evidence, or harm to others,” and that therefore, Kagan’s and Roberts’ approaches may contain distinctions without meaningful differences.

Justice Clarence Thomas authored a concurrence of his own, which was joined in part by Justice Kavanaugh. Thomas wrote:

I write separately to note two things: the general case-by-case rule that the Court announces today is subject to historical, categorical exceptions; and under our precedent, the federal exclusionary rule does not apply to evidence discovered in the course of pursuing a fleeing suspect.

Justice Thomas detailed some examples of relevant “historical, categorical exceptions,” such as a person escaping after having been arrested, or a person en route to committing a felony.

On another topic entirely, Justice Thomas took the opportunity to make a point with which Justice Kavanaugh agreed: “even if the state courts on remand conclude that the officer’s entry here was unlawful, the federal exclusionary rule does not require suppressing any evidence.”

If the court below ultimately finds that entering Lange’s home was illegal, Lange might have some remedy at law — but that remedy does not require that evidence the officer obtained be suppressed.

[image via Erin Schaff/pool/AFP via Getty Images]

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June 23, 2021 at 12:19PM

Supreme Court Sides with High School Cheerleader Who Posted ‘F*** School F*** Softball F*** Cheer F*** Everything’ on Snapchat

The justices of the Supreme Court, except for Justice Clarence Thomas, sided with Brandi Levy, a high school cheerleader who was suspended from the junior varsity squad for a year after dropping multiple F-bombs on Snapchat.

The teen, frustrated that she did not make the varsity team, posted a picture of herself and a friend in a Snapchat story. The picture showed both girls with middle fingers extended and the caption “Fuck school fuck softball fuck cheer fuck everything.” A second post said, “Love how me and [another student] get told we need a year of jv before we make varsity but that’s [sic] doesn’t matter to anyone else?”

When the post came to the school’s attention, Levy was suspended from the junior varsity team. Levy’s parents appealed the school’s decision on her behalf, but the athletic director, school principal, district superintendent, and school board all sided with the Mahanoy Area School District in Pennsylvania. Levy’s parents then filed a First Amendment lawsuit, and they won both in district court and at the Third Circuit. Levy had previously only been identified as B.L., but she has appeared on the news and given her name.

The Supreme Court faced the question of how to protect the free speech rights of kids while not entirely stripping schools of all power to regulate disruptive behavior like harassment and bullying. In this case, the high court sided with Levy’s free expression. The holding:

While public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B. L.’s interest in free expression in this case.

The majority opinion concluded that the school violated Levy’s First Amendment rights.

“A public high school student used, and transmitted to her Snapchat friends, vulgar language and gestures criticizing both the school and the school’s cheerleading team. The student’s speech took place outside of school hours and away from the school’s campus. In response, the school suspended the student for a year from the cheerleading team. We must decide whether the Court of Appeals for the Third Circuit correctly held that the school’s decision violated the First Amendment,” Justice Stephen Breyer’s majority opinion began. “Although we do not agree with the reasoning of the Third Circuit panel’s majority, we do agree with its conclusion that the school’s disciplinary action violated the First Amendment.”

“Consider B. L.’s speech. Putting aside the vulgar language, the listener would hear criticism, of the team, the team’s coaches, and the school—in a word or two, criticism of the rules of a community of which B. L. forms a part. This criticism did not involve features that would place it outside the First Amendment’s ordinary protection. B. L.’s posts, while crude, did not amount to fighting words,” the opinion continued. “And while B. L. used vulgarity, her speech was not obscene as this Court has understood that term. To the contrary, B. L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.”

The court noted that the speech occurred outside of a school setting and was not targeted at any individual, thereby diminishing the school’s interest in punishing Levy:

Consider too when, where, and how B. L. spoke. Her posts appeared outside of school hours from a location outside the school. She did not identify the school in her posts or target any member of the school community with vulgar or abusive language. B. L. also transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snapchat friends. These features of her speech, while risking transmission to the school itself, nonetheless (for reasons we have just explained, supra, at 7–8) diminish the school’s interest in punishing B. L.’s utterance.

Breyer said that although “[i]t might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections,” sometimes it is “necessary to protect the superfluous in order to preserve the necessary.”

Chief Justice John Roberts, and Justices Samuel Alito, Sonia Sotomayor, Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch and Elena Kagan all joined Breyer. Alito also filed a concurrence that Gorsuch joined.

But Justice Thomas said his colleagues ignored the “historical rule” for situations like this and reached a wrong result that stands on an unstable foundation.

“The Court transparently takes a common-law approach to today’s decision. In effect, it states just one rule: Schools can regulate speech less often when that speech occurs off campus. It then identifies this case as an ‘example’ and ‘leav[es] for future cases’ the job of developing this new common-law doctrine. But the Court’s foundation is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the Court’s opinion today means,” Thomas dissented. “Perhaps there are good constitutional reasons to depart from the historical rule, and perhaps this Court and lower courts will identify and explain these reasons in the future. But because the Court does not do so today, and because it reaches the wrong result under the appropriate historical test, I respectfully dissent.”

UPenn Professor Sigal Ben-Porath has written a book titled “Free Speech on Campus” and teaches in the university’s Graduate School of Education and is an affiliated member of the University of Pennsylvania Carey Law School’s Institute for Law and Philosophy. She said that the Supreme Court’s decision sends a “strong statement” in support of the First Amendment.

“The court sided with the cheerleader, with Thomas the sole justice dissenting, suggesting that the vulgarity is reason enough for punishment. The school, Justice Breyer’s opinion states, sometimes has a special interest in regulating speech that consists of ‘fighting words’ or obscenities. But the school also has an interest in protecting her speech, because public schools are ‘the nurseries of democracy,’” Ben-Porath said in a statement to Law&Crime. “This is a strong statement by the court in support of student speech rights, and advocates of free speech should welcome it, no matter their stance on 4-letter words.”

The professor backed an amicus brief in the case.

Elura Nanos contributed to this report.

[image via ABC 6 screengrab]

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June 23, 2021 at 10:59AM

SCOTUS will hear case involving FBI surveillance of Muslim community and state secrets privilege

The U.S. Supreme Court on Monday agreed to consider the government’s ability to invoke the state secrets privilege to defeat a lawsuit accusing the FBI of illegally spying on the Muslim community.

The Supreme Court agreed to hear FBI v. Fazaga, a case brought by three Muslim men in California who claim that the government spying was based solely on their religion, SCOTUSblog reports here and here.

The plaintiffs allege that the FBI told a confidential informant to target Muslims who appeared more devout because they were more suspicious.

The government contends that the case must be dismissed under the state secrets privilege, which allows the United States to withhold evidence that would damage national security. When litigating a case without the evidence could nonetheless pose an unacceptable risk of disclosing state secrets, the suit must be dismissed.

The plaintiffs contend that a provision of the Foreign Intelligence Surveillance Act displaces the privilege, allowing the court to conduct a review of government evidence derived from electronic surveillance to determine whether it was legally collected.

A federal judge had ruled for the government, holding that the FBI would have to rely on privileged material to defend the lawsuit, the Lawfare blog previously reported. The 9th U.S. Circuit Court of Appeals at San Francisco reversed, holding that a federal judge should use the FISA law to consider evidence, in camera and ex parte, relating to electronic surveillance.

The SCOTUSblog case page for FBI v. Fazaga is here.

CNN and the Hill reported on the cert grant.

The Supreme Court previously agreed to review a second state secrets case involving Abu Zubaydah, a former associate of Osama bin Laden being held at Guantanamo Bay. Zubaydah is seeking discovery about interrogation techniques and details of his treatment at a black site in Poland from two CIA contractors.

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June 7, 2021 at 01:33PM

Supreme Court Allows Tribal Police to Detain Non-Indians

A Ninth Circuit decision, which limited tribal police authority on public highways within reservation boundaries, has been overturned by the U.S. Supreme Court, allowing tribal police the ability to detain non-Indian suspects. Previously, the Supreme Court held that tribal police had little authority over non-Indians, reports AP News.

The unanimous decision Tuesday was a turning point for Native American law cases at the High Court, amounting to a break from a reliance on “racist precedents” for guidance,  Mary Kathryn Nagle of Pipestem Law LLC, counsel for amicus National Indigenous Women’s Resource Center told Law360.

“Non-Indians…have had this expectation that they can go onto tribal lands and commit crimes with impunity, because the tribe won’t have criminal jurisdiction to prosecute them,” said Nagle, a citizen of the Cherokee Nation of Oklahoma.

Colette Routel of the Mitchell Hamline School of Law, counsel for amici Native American law and policy professors, called the 9-0 decision “pretty rare” for Native American cases.

“The court had the opportunity to decide this case on narrow grounds that may not have applied to all of Indian Country,” Routel told Law360.

“But the Supreme Court decided to render a decision that was broader than that and applies to all of Indian Country by deciding for the first time ever that the second Montana exception was satisfied.”

The original case concerns former highway safety officer James Saylor of the Crow Tribe of Montana who was prevented from temporarily detaining and search Joshua James Cooley, a non-Indian. Cooley was later arrested by county law enforcement and indicted on drug trafficking and firearm charges.

Explaining the decision, Supreme Court Justice Stephen Breyer cited a precedent from a 1981 case, Montana v. United States, in which the court ruled tribes couldn’t regulate hunting and fishing on reservations unless conduct threatens or directly impacts the health or wellbeing of the tribe.

“To deny a tribal police officer authority to search and detain for a reasonable time any person he or she believes may commit or has committed a crime would make it difficult for tribes to protect themselves against ongoing threats,” Breyer said.

“We see nothing in these provisions that shows that Congress sought to deny tribes the authority at issue, authority that rests upon a tribe’s retention of sovereignty as interpreted by Montana, and in particular its second exception.”

This summary was prepared by TCR Justice Reporting intern Gabriela Felitto

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June 2, 2021 at 07:31AM

US Supreme Court declines to hear appeal by death row inmate who sought to die by firing squad

The US Supreme Court declined to hear an appeal Monday from a death row inmate who sought to have his sentence carried out by firing squad because he believes it would be less painful than the state’s preferred method of execution.

Ernest Johnson, a death row inmate in Missouri, suffers from epilepsy as a result of a brain tumor and damage caused by significant brain surgery. In a complaint filed in 2016, Johnson alleged that he will experience excruciating seizures if Missouri executes him by lethal injection of the drug pentobarbital. However, the US Court of Appeals for the Eighth Circuit pointed to the Supreme Court’s decision in Bucklew v. Precythe, holding that an inmate who wants to challenge the use of a method of execution in his particular case must identify a feasible alternative that will “significantly reduce a substantial risk of severe pain,” to reject Johnson’s request.

In her dissent, Justice Sonia Sotomayor found “the Eighth Circuit’s decision punishes Johnson for failing to anticipate significant changes in the law brought about by Bucklew. Worse, it ensures that Johnson’s claim will never be heard on the merits.” “Missouri,” Sotomayor concluded, “is now free to execute Johnson in a manner that, at this stage of the litigation, we must assume will be akin to torture given his unique medical condition.”

The Supreme Court will meet again for another private conference on Thursday, May 27, and orders from that conference are expected on Tuesday, June 1.

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May 24, 2021 at 06:59PM

How Far Does ‘Hot Pursuit’ Go? Justices Uncertain

While the Supreme Court has decided that a police officer does not need a warrant to enter someone’s home while in pursuit of a fleeing felon, justices appear conflicted over whether the decision should allow officers the same access for petty crimes, reports the New York Times. The debate began around a case concerning Arthur Lange, a California man who was pursued by a police officer after driving with the windows down, playing loud music, and honking his horn at random. As Lange pulled into his driveway and garage, the officer flashed his lights and then stopped the garage door from lowering with his foot, forced it open, and confronted Lange, who appeared intoxicated. A blood test later showed that his blood-alcohol level was more than three times the legal limit and Lange was charged with driving under the influence, a misdemeanor, and playing music too loudly, an infraction. He moved to suppress the evidence against him, arguing that Officer Weikert’s entry into his home had violated the Fourth Amendment, which prohibits unreasonable searches and seizures.

When the case reached the Supreme Court,  several justices said that line separating felonies from misdemeanors was a murky one that varied by state and did not reflect the risks to police officers. Justice Elena Kagan said that labeling a crime a felony or a misdemeanor says little about whether the suspect was dangerous. Most domestic violence offenses are misdemeanors, she said, while most white-collar frauds are felonies. Justice Breyer said the case may not present a “cruel trilemma” after all and that a fourth option was to “almost always” allow warrantless entries in hot pursuit but to leave open the possibility that some intrusions are unreasonable.

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February 25, 2021 at 10:15AM