Law Commons^™

The Black Fourth Amendment, Charisma Hunter

Washington and Lee Law Review Online

Policing Black bodies serves at the forefront of the American policing system. Black bodies are subject to everlasting surveillance through institutions and everyday occurrences. From relaxing in a Starbucks to exercising, Black bodies are deemed criminals, surveilled, profiled, and subjected to perpetual implicit bias when participating in mundane activities. Black people should have the same protections as white people and should possess the ability to engage in everyday, commonplace, and routine activities.

The Fourth Amendment was not drafted with the intention of protecting Black bodies. In fact, Black bodies were considered three-fifths of a person at the drafting of the …

The Unconstitutional Police, Brandon Hasbrouck

Scholarly Articles

Most Fourth Amendment cases arise under a basic fact pattern. Police decide to do something--say, stop and frisk a suspect. They find some crime--say, a gun or drugs--they arrest the suspect, and the suspect is subsequently charged with a crime. The suspect--who is all too often Black--becomes a defendant and challenges the police officers' initial decision as unconstitutional under the Fourth Amendment. The defendant seeks to suppress the evidence against them or perhaps to recover damages for serious injuries under 42 U.S.C. § 1983. The courts subsequently constitutionalize the police officers' initial decision with little or no scrutiny. Effectively, the …

Presumed Punishable: Sentencing On The Streets And The Need To Protect Black Lives Through A Reinvigoration Of The Presumption Of Innocence, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Following the police killing of George Floyd in the summer of 2020, there has been a renewed focus on protecting Black people in America from excessive police violence. While the images of George Floyd were shocking to the public, that level of extreme violence and disregard for life has been a common aspect of the lives of Black Americans throughout history. In America, Black people are "pre­sumed punishable." Due to the historical and persistent biases against Black people, Black people find themselves subject to false assumptions about their criminality and presumptions that they are deserving of punishment. This stands …

Police Brutality And State-Sanctioned Violence In 21st Century America, Itohen Ihaza

Journal of Race, Gender, and Ethnicity

No abstract provided.

Detention By Any Other Name, Sandra G. Mayson

All Faculty Scholarship

An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice.

This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and …

Secret Searches: The Sca's Standing Conundrum, Aviv S. Halpern

Michigan Law Review

The Stored Communications Act (“SCA”) arms federal law enforcement agencies with the ability to use a special type of warrant to access users’ electronically stored communications. In some circumstances, SCA warrants can require service providers to bundle and produce a user’s electronically stored communications without ever disclosing the existence of the warrant to the individual user until charges are brought. Users that are charged will ultimately receive notice of the search after the fact through their legal proceedings. Users that are never charged, however, may never know that their communications were obtained and searched. This practice effectively makes the provisions …

The Next Step In Civil Asset Forfeiture Reform: Passing The Civil Asset Forfeiture Reform Act Of 2014, Daniel Reed

Catholic University Law Review

Civil asset forfeiture is an operation of legal fiction that enables the government to seize property without an underlying conviction of the property owner. Federal authorities bring thousands of civil asset forfeiture cases annually, often against the property of owners who have not been charged with a crime. Such cases can result in unjust outcomes and denials of due process to property owners. To address this controversy, Representative Tim Walberg proposed several reforms to federal civil asset forfeiture laws known as the Civil Asset Forfeiture Reform Act of 2014 (CAFRA 2014).

After discussing the history of civil asset forfeiture, this …

Procedural Due Process Claims, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Illegal Stops And The Exclusionary Rule: The Consequences Of Utah V. Strieff, Emily Sack

Law Faculty Scholarship

No abstract provided.

Illegal Stops And The Exclusionary Rule: The Consequences Of Utah V. Strieff, Emily J. Sack

Roger Williams University Law Review

No abstract provided.

“Criminal Records” - A Comparative Approach, Sigmund A. Cohn

Georgia Journal of International & Comparative Law

No abstract provided.

Procedural Due Process Claims, Erwin Chemerinsky

Touro Law Review

No abstract provided.

Constitutional Law—Fourth Amendment And Seizures— Accidental Seizures By Deadly Force: Who Is Seized During A Police Shootout? Plumhoff V. Rickard, 134 S. Ct. 2012 (2014)., Adam D. Franks

University of Arkansas at Little Rock Law Review

No abstract provided.

Foreword: Private And Public Revisited Once Again, Mark A. Graber

Maryland Law Review

No abstract provided.

Section 1983 Cases In The October 2004 Term, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Book Review: Psychiatric Justice, Alice M. Batchelder

Akron Law Review

In an era in which extensive judicial emphasis has been placed on "due process of law" in criminal proceedings, both in the federal courts and in the state courts, Dr. Szasz's book serves as a jarring reminder that in at least one vital area of the concept of due process, much remains to be done. The emerging definition of due process has enunciated the rights guaranteed the individual by the Fourth, Fifth, Sixth, and Fourteenth Amendments; and viewed within that framework, this book, although published in 1965, remains particularly timely, for Szasz, speaking as a psychiatrist, endeavors to demonstrate how …

A Legal Note On The Nixon Pardon: Equal Justice Vis-À-Vis Due Process, Luis Kutner

Akron Law Review

THE FIRST TWO MAJOR ACTS of the Ford Presidency-the offer of earned amnesty (at least insofar as draft resisters in the Vietnam conflict are concerned) and the pardon granted to former President Richard M. Nixonwere charitable, wise and just. This article, of course, will discuss the presidential pardon for Mr. Nixon.

Mill's Theory Of Liberty In Constitutional Interpretation, Wilson Ray Huhn

Akron Law Review

I wish to apply Justice Thompson's discussion of the nature of liberty in a more general context in addressing fundamental questions of constitutional interpretation. Justice Thompson's essential inquiry is, "Should the enforcement of morals be the concern of the law?" I take the liberty of slightly rephrasing that question: "Is the enforcement of traditional moral norms per se constitutional?" I suggest that the answer to this question is "no." Courts and scholars have often confused our moral traditions with our traditions of liberty and equality. My central premise is that it is for the legislature to enact morality into law, …

Off Duty, Off The Wall, But Not Off The Hook: Section 1983 Liability For The Private Misconduct Of Public Officials, Douglas S. Miller

Akron Law Review

The language quoted in the previous paragraph, employing as it does the metaphor of causation, represents one model for determining when a person has acted under color of law. Other models have also been used. In Part II of this Article, I note briefly the inconsistency of outcome that has marked this area, and identify the various models used, relying in part on the efforts of other commentators to describe the models that might be available from a theoretical standpoint. In the course of identifying these models, I note that many, if not all, lack authority either in the history …

Twelve Angry Hours: Improving Domestic Violence Holds In Tennessee Without Risk Of Violating The Constitution, Daniel A. Horwitz

Daniel A. Horwitz

Confessions, Criminals, And Community, Sheri Lynn Johnson

Sheri Lynn Johnson

No abstract provided.

The Case For Rational Basis Review Of General Suspicionless Searches And Seizures, Richard C. Worf

Touro Law Review

This article examines the constitutional status of suspicionless searches and seizures of groups- an exceedingly important question in the age of terror, and a subject recently brought back to the forefront by the searches of subway passengers in New York City. It draws on process theory to argue that when a legislature has authorized a group search or seizure, courts should generally apply rational basis review.

First, other areas of constitutional doctrine exhibit deep trust in the power of groups to protect their interests in political process, and there is no reason why fourth amendment doctrine should not do the …

Due Process In American Military Tribunals After September 11, 2001, Gary Shaw

Gary M. Shaw

The Authorization for Use of Military Force ("AUMF") provides broad powers for a president after September 11, 2001. President Bush, under the AUMF, claimed he had the power to hold "enemy combatants" without due process. This gave rise to two questions that the article addresses: "Could they be held indefinitely without charges or proceedings being initiated? If proceedings had to be initiated, what process was due to the defendants?"

California And Uncle Sam's Tug-Of-War Over Mary Jane Is Really Harshing The Mellow, Daniel Mortensen

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Due Process In American Military Tribunals After September 11, 2001, Gary Shaw

Touro Law Review

The Authorization for Use of Military Force ("AUMF") provides broad powers for a president after September 11, 2001. President Bush, under the AUMF, claimed he had the power to hold "enemy combatants" without due process. This gave rise to two questions that the article addresses: "Could they be held indefinitely without charges or proceedings being initiated? If proceedings had to be initiated, what process was due to the defendants?"

The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar

Articles

There has been a good deal of talk lately to the effect that Miranda1 is dead or dying-or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing. This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4

From Privacy To Liberty: Sharing After Lawrence, Thomas P. Crocker

Studio for Law and Culture

From Privacy to Liberty addresses the failure of the Constitution to protect shared social aspects of ordinary life. Under the Supreme Court’s third-party doctrine, if I reveal information to another person, I no longer have an expectation of privacy, and thus, I no longer have Fourth Amendment protection in that information. This much-maligned doctrine has been criticized by many, and defended only once recently in the pages of the Michigan Law Review. The effect of this doctrine is to leave most aspects of ordinary life shared in the company of others constitutionally unprotected. For example, revealing one’s location to …

‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson

Stephen E Henderson

If a police officer orders one to move on, must the recipient comply? This article analyzes whether there is a federal constitutional right to remain, and in particular whether a police command to move on constitutes a seizure of the person for purposes of the Fourth Amendment. Although it is a close question, I conclude that the Fourth Amendment typically does not restrict a move on (MO) order, and that substantive due process only prohibits the most egregious such orders. It is a question of broad significance given the many legitimate reasons police might order persons to move on, as …

Rethinking The Substantive Due Process Right To Privacy: Grounding Privacy In The Fourth Amendment, Mary H. Wimberly

Vanderbilt Law Review

Little in the jurisprudence of the Supreme Court has spurred as much controversy as the Court's recognition of a constitutional right to privacy. While implicitly acknowledging that such a right is not listed in the text of the Constitution, in Griswold v. Connecticut the Court found that the right existed in the "penumbras" of the amendments to the Constitution.' According to the Court, the right to privacy was present in "emanations" from the guarantees of the Bill of Rights. This reasoning was notoriously extended to abortion in Roe v. Wade. In order to invalidate state regulation of abortion, the Roe …

Section 1983 Cases In The October 2004 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.