Search and Seizure

  • October 12, 2016
    Guest Post

    by Matthew Stanford,  Senior Law Student at the University of California, Berkeley School of Law; Articles & Essays Editor of the California Law Review and President of the ACS Student Chapter at the University of California, Berkeley School of Law

    To the surprise of no one, the first presidential debate was short on substance, long on bluster. But one real issue that emerged from the spin-induced haze was the constitutionality of “stop-and-frisk.”

    During the debate, moderator Lester Holt suggested that the controversial and long used police practice of stopping people on the street and patting them down for weapons had been deemed “unconstitutional in New York, because it largely singled out black and Hispanic young men.”

    An onslaught of Trump and Clinton surrogates followed with their respective positions on the constitutional upshot of U.S. District Court Judge Shira A. Scheindlin’s 2013 decision.

    Prognostications about the narrow ruling’s certain demise on appeal––that is, if the appeal had continued to fruition––inevitably led to accusations of moderator bias. Most notably, former New York Mayor Rudy Giuliani penned an op-ed suggesting that the Second Circuit’s removal of Judge Scheindlin from the case amounted to a reversal of her underlying ruling. To be sure, that logic is flawed: removing a judge is an administrative decision, not a ruling on the merits.

    But a more disturbing trend has emerged from the week’s stop-and-frisk chatter. Far from discussing the merits of the decades-old doctrine that allows police discretion to stop people on the street, the campaigns prefer instead to carry on with the punch and parry about moderator bias and candidate performance––sacrificing yet another critical discussion on the altar of media ratings that has come to define contemporary electoral culture.

  • October 3, 2016
    Guest Post

    by Shira Scheindlin, former Senior Judge of the United States District Court for the Southern District of New York, of Counsel, Stroock & Stroock & Lavan LLP

    The issue of policing arose during the recent presidential debate. This issue is one of great importance throughout the country – particularly in light of a number of recent and documented shootings by police of unarmed African American and Hispanic victims. As the former federal judge who ruled on the constitutionality of stop and frisk as used in New York City, I write to clarify a number of the misstatements or misconceptions that have tainted this debate.

    Based on the evidence of racial bias presented during the 2013 trial in Floyd v. New York City, over which I presided, I found that stop and frisk – as practiced in New York – was unconstitutional. In a separate opinion, I directed a series of remedies to address the problem. It ordered very specific reforms that would result in the constitutional use of stop and frisk.

    There is no question that the use of stop and frisk is permitted by the Constitution as interpreted by the United States Supreme Court in Terry v.Ohio. The Court held that a stop can be made when an officer has “reasonable suspicion” that a person has committed, is committing or is about to commit a crime. The Court later held that in order to conduct a frisk, the officer must have reasonable suspicion that a person is armed and dangerous. If a stop and frisk is done in accordance with these principles then it will pass constitutional muster.

    But this is not what happened in New York, when the numbers of stops and frisks began to climb dramatically from approximately 2004 to 2012. In those years more than 4.4 million stops were made and it appears that most were not based on the required reasonable suspicion. This conclusion was reached by an examination of (1) the uncontested statistical evidence; (2) the testimony of experts who analyzed more than 4.4 million stops to determine whether there was racial bias; (3) institutional evidence of deliberate indifference (including the unconscious racial biases or indirect racial profiling exhibited by police officers) and (4) the examples of individual stops by selected plaintiffs who were members of the Floyd class.

  • August 12, 2016
    Guest Post

    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department 

    On Wednesday, August 10, the Department of Justice (DOJ) released the findings of its investigation into the Baltimore City Police Department (BPD) that followed troubling allegations raised in the aftermath of the death of Freddie Gray at the hands of the BPD in April of 2015. At that time (as well as long before and continuing to the present), there were consistent and hauntingly similar reports that the department had repeatedly and pervasively engaged in practices and policies that infringed upon the First and Fourth Amendment rights of community residents in Baltimore, and particularly residents in communities of color.

    The investigation by the DOJ found that the BPD “makes stops, searches and arrests without the required justification; uses enforcement strategies that unlawfully subject African Americans to disproportionate rates of stops, searches and arrests; uses excessive force; and retaliates against individuals for their constitutionally-protected expression.” The DOJ report found that the BPD engages in “pattern and practice” violations of the Fourth Amendment, specifically in “focusing enforcement strategies on African Americans, leading to severe and unjustified racial disparities in violation of Title VI of the Civil Rights Act and the Safe Streets Act.”

    In addition to engaging in repeated practices of using excessive force, the DOJ investigation reported that the BPD also “interact(s) with individuals with mental health disabilities in a manner that violates the Americans with Disabilities Act.” The BPD was also found to have engaged in a pattern and practice of repeatedly violating the rights of individuals and groups that are protected under the First Amendment, including freedom of speech and freedom of assembly.

  • October 20, 2015
    Guest Post

    by Brad Smith, president and chief legal officer, Microsoft

    *This piece first appeared at Microsoft on the Issues

    When people who care about technology look back at the year 2015, they will remember October as the month when the EU-U.S. Safe Harbor collapsed. An international legal agreement that has been in place for 15 years was invalidated in a single day. On Oct. 6, the Court of Justice of the European Union struck down an international legal regime that over 4,000 companies have been relying upon not just to move data across the Atlantic, but to do business and serve consumers on two continents with over 800 million people.

    The decision made clear what many have been advocating for some time: Legal rules that were written at the dawn of the personal computer are no longer adequate for an era with ubiquitous mobile devices connected to the cloud. In both the United States and Europe, we need new laws adapted to a new technological world.

    As lawyers and officials scurry to assess the situation, it’s apparent that both a variety of smaller steps and a more fundamental long-term change will be needed. We need to focus on both of these aspects.

    It’s important to focus on a wide variety of steps, especially given the potentially drastic ripple effects caused by the collapse of the U.S.-EU Safe Harbor. Government officials in Washington and Brussels will need to act quickly, and we should all hope that Congress will enact promptly the Judicial Redress Act, so European citizens have appropriate access to American courts. In addition, companies like our own that have put in place additional safeguards such as the EU Model Clauses will rely on and add to them, even while everyone discusses additional measures.

    But for the sake of the long-term we should also recognize some obvious and fundamental facts. We need solutions that will work not just for large tech enterprises but for small companies across the economy, and for consumers most of all. If we’re going to ensure that data more broadly can move across the Atlantic on a sustainable basis, we need to put in place a new type of trans-Atlantic agreement. This agreement needs to protect people’s privacy rights pursuant to their own laws, while ensuring that law enforcement can keep the public safe through new international processes to obtain prompt and appropriate access to personal information pursuant to proper legal standards.

  • September 4, 2015
    Guest Post

    by Anupam Chander, Director of the California International Law Center and Professor of Law at the University of California, Davis. He is the author of The Electronic Silk Road: How the Web Binds the World Together in Commerce, published by Yale University Press.

    *This post is part of ACSblog’s symposium examining proposed reforms to the Electronic Communications Privacy Act (ECPA).

    My parents grew up in a pen and paper world, where most of their writings and records were kept at home, in their offices, or with close confidantes. I grew up in a world of computers, but even my writings were mostly kept at home on hard drives and floppy disks (for today’s students, many of whom have never seen a floppy disk, a history of the floppy disk). My first writings were kept, astonishingly, on a cassette recorder, which stored what I typed on my TRS-80, a computer made by Radio Shack. That computer had a total memory of 16K, roughly 16,000 characters (not even words) of text.

    My children are growing up in the cloud, where their writings and their records are being stored in remote computers. Because those computers are managed by Dropbox, Google, Microsoft, and their peers, their writings are far more secure than I ever managed when I stored my files on a floppy or a hard drive, both of which failed with remarkable regularity and maximally devastating timing.

    But even if our kids never know the pain of losing a week’s work to faulty computing or an accidental deletion, they face a world where their writings are far more subject to government scrutiny than mine ever were. Not only are their writings subject to government searches, but also their whereabouts, through the tracking of smartphones. This is because while the Fourth Amendment clearly protects homes from searches and seizures without a warrant, it is not so clear that it protects writings and the records about us stored on a remote computer.

    Do our children deserve less protection from government snooping because they are relying on cloud services? Right now, the law says that if the government wants to read what’s on my home computer, it has to get a warrant to do so. But if the government wants to read what our kids are storing privately online, they may not. (For a more detailed account of when the government can access information online without a warrant, see this ProPublica summary, updated as of June 2014, but not including Riley v. California, described below.)