The Justice Department has accused the Albuquerque Police Department of “a pattern or practice of use of excessive force that routinely violated people’s constitutional rights.” Fernanda Santos at The New York Times reports on the 16-month investigation which found that “too often, the officers kicked, punched and violently restrained nonthreatening people … many of whom suffered from mental illnesses,” while other victims “were disabled, elderly or drunk.”
Last week, the U.S. Court of Appeals for the Tenth Circuit heard oral arguments in Kitchen v. Herbert, a case challenging Utah’s ban on same-sex marriage. State officials filed an appeal after the U.S. District Court for the District of Utah held the ban to be unconstitutional last December. Writing for Jost on Justice, Kenneth Jost comments on the legal and “unmistakably personal” implications of the case.
The Federal Trade Commission won an important victory in a case that challenged its authority to “regulate data security under the FTC Act.” Daniel Solove at Concurring Opinions breaks down Federal Trade Commission v. Wyndham Worldwide Corporation, et al.
In a study conducted by the Center for American Progress, Jenny DeMonte and Robert Hanna reveal that in some areas, impoverished students are “less likely to receive highly effective teaching.” In their report, DeMonte and Hanna provide ways to combat this troubling inequality.
In an excerpt from Six Amendments: How and Why We Should Change the Constitution highlighted in The Washington Post, former Supreme Court Justice John Paul Stevens discusses the recent shooting massacres, the influence of the National Rifle Association and “the five extra words that can fix the Second Amendment.”
by Harley Geiger, Senior Counsel and Deputy Project Director, Center for Democracy & Technology
The police are at your door. They say they want to search the papers you keep in your house. What do you tell them? “Show me your warrant.”
But what if the police come a-knocking at your email service provider, your online social network, or your cloud storage provider? The police say they want to search your private digital communications, which together add up to much more content than the papers you keep in your house. The service provider may demand a warrant, and the government could respond “We don’t need a warrant. Under ECPA, we only need a subpoena.”
This morning, the Supreme Court heard oral arguments in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. Adam Liptak of The New York Times provides a helpful analysis of the cases while Robert Barnes at The Washington Post breaks down the “vocally devout justices” and the role religion may play in their decision. For more discussion, watch an ACS briefing on the dual challenges known as the “contraception mandate cases.”
Twenty-three years ago, Anita Hill accused then-Supreme Court nominee Clarence Thomas of sexual harassment. In an interview with Hill, DahliaLithwick at Slate reviews the new documentary Anita and describes how “Hill’s testimony had a huge impact on sexual harassment law, and in the public discourse.”
Officials in Mississippi are waiting for approval from the state supreme court to execute Michelle Byrom, a mentally ill woman accused of murdering her husband. Andrew Cohen at The Atlantic explains why “the case of Michelle Byrom contains the unholy trinity of constitutional flaws sadly so common in these capital cases.”
The Obama administration is expected to propose “an end to the [National Security Agency’s] mass collection of Americans' phone call data.” The Guardian’s Spencer Ackerman has the story.
Karen Tani at Legal History Blog reviews The Crusade for Equality in the Workplace: The Griggs v. Duke Power Story by the late Robert Belton.
In a potentially significant ruling, Judge Richard Leon of the U.S. District Court for the District of Columbia has found that the National Security Agency’s (NSA) bulk collection of phone metadata program likely violates the Fourth Amendment.
In Klayman et al. v. Obama et al., Plaintiffs Larry Klayman (founder of the conservative Judicial Watch and Freedom Watch) and Charles Strange (father of a Michael Strange, a slain Cryptologist Technician with Navy SEAL Team VI, who has been a vocal opponent of President Obama) allege, in part, that the NSA collection program violates the First, Fourth and Fifth Amendment of the U.S. Constitution. They sought a preliminary injunction that would prohibit the NSA from collecting the plaintiff’s call records under the existing collection program, require the destruction of all records already collected, and prohibit the “querying” of any metadata already collected.
Judge Leon has found that plaintiffs have standing to challenge the NSA’s program, regardless of whether the program was in accordance with the rulings of the Foreign Intelligence Surveillance Court (FISC), and that the plaintiffs have shown both “a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief.” Therefore, Judge Leon granted, in part, plaintiff’s motion for a preliminary injunction; but recognizing the “significant national security interests at stake . . . and the novelty of the constitution issues” the injunction is stayed pending an appeal. Finding sufficient evidence to grant the preliminary injunction on Fourth Amendment grounds, Judge Leon did not address either the First or Fifth Amendment arguments.
In analyzing the Fourth Amendment question, Judge Leon notes that the scope and technological sophistication of the NSA program far surpasses any other governmental surveillance program previously examined by the judiciary. In 1979, the Supreme Court ruled in Smith v. United States that an individual had no legitimate expectation of privacy in the numbers they dialed on their phone, for they were voluntarily submitting them to the telephone company. Therefore, a pen register installed by the police without a warrant was not barred by the Fourth Amendment as it did not constitute a “search.”
Significant reforms are not far off for the NYPD’s stop-and-frisk program, but you might not know that from headlines of late. Most press has focused on “l’affaire Scheindlin,” but the newspapers have buried the lead: The present and future status of the right of New Yorkers to be free from unconstitutional stops and seizures.
The same cannot be said for the current stop-and-frisk regime. The Second Circuit’s order denying vacatur explicitly contemplates the possibility of an “application to us for a return of the cases to the District Court for the purpose of exploring a resolution,” and every indication is that the case is headed for such a resolution in the New Year. Practically, this will mean that the plaintiffs in Floyd (stop-and-frisk writ large), Ligon (concerning practices in and around “Clean Halls” buildings) and Davis (concerning practices in and around public housing) will seek to reach consensus with the City on needed reforms.