Criminal Law Commons^™

Digital Privacy Rights And Cloud Act Agreements, Tim Cochrane

Brooklyn Journal of International Law

The United States (US) and United Kingdom (UK) will soon bring into force a new international law enforcement data sharing ‘CLOUD Act agreement’ (US-UK Agreement), the first of its kind under the Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD Act). These agreements enable law enforcement in one state to directly request data from service providers based in the other state. They respond to long-standing concerns with the main mechanism for obtaining overseas data, mutual legal assistance (MLA). The US and UK claim the US-UK Agreement will significantly speed up data access relative to MLA while “respecting privacy and …

Suspicionless Policing, Julian A. Cook

Scholarly Works

The tragic death of Elijah McClain—a twenty-three-year-old, slightly built, unarmed African American male who was walking home along a sidewalk when he was accosted by three Aurora, Colorado police officers—epitomizes the problems with policing that have become a prominent topic of national conversation. Embedded within far too many police organizations is a culture that promotes aggressive investigative behaviors and a disregard for individual liberties. Incentivized by a Supreme Court that has, over the course of several decades, empowered the police with expansive powers, law enforcement organizations have often tested—and crossed—the constitutional limits of their investigative authorities. And too often it …

"Hey, Hey! Ho, Ho! These Mass Arrests Have Got To Go!": The Expressive Fourth Amendment Argument, Karen Pita Loor

Faculty Scholarship

The racial justice protests ignited by the murder of George Floyd in May 2020 constitute the largest protest movement in the United States. Estimates suggest that between fifteen and twenty-six million people protested across the country during the summer of 2020 alone. Not only were the number of protestors staggering, but so were the number of arrests. Within one week of when the video of George Floyd’s murder went viral, police arrested ten thousand people demanding justice on American streets, with police often arresting activists en masse. This Essay explores mass arrests and how they square with Fourth Amendment …

The Second Amendment In A Carceral State, Alice Ristroph

Northwestern University Law Review

No abstract provided.

Antiracism In Action, Daniel Harawa, Brandon Hasbrouck

Washington and Lee Law Review

Racism pervades the criminal legal system, influencing everything from who police stop and search, to who prosecutors charge, to what punishments courts apply. The Supreme Court’s fixation on colorblind application of the Constitution gives judges license to disregard the role race plays in the criminal legal system, and all too often, they do. Yet Chief Judge Roger L. Gregory challenges the facially race-neutral reasoning of criminal justice actors, often applying ostensibly colorblind scrutiny to achieve a color-conscious jurisprudence. Nor is he afraid of engaging directly in a frank discussion of the racial realities of America, rebuking those within the system …

Visible Policing: Technology, Transparency, And Democratic Control, Hannah Bloch-Wehba

Faculty Scholarship

Law enforcement has an opacity problem. Police use sophisticated technologies to monitor individuals, surveil communities, and predict behaviors in increasingly intrusive ways. But legal institutions have struggled to understand—let alone set limits on—new investigative methods and techniques for two major reasons. First, new surveillance technology tends to operate in opaque and unaccountable ways, augmenting police power while remaining free of meaningful oversight. Second, shifts in Fourth Amendment doctrine have expanded law enforcement’s ability to engage in surveillance relatively free of scrutiny by courts or by the public. The result is that modern policing is not highly visible to oversight institutions …

(Re)Framing Race In Civil Rights Lawyering, Anthony V. Alfieri, Angela Onwuachi-Willig

Articles

This Review examines the significance of Henry Louis Gates, Jr.'s new book, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow, for the study of racism in our nation's legal system and for the regulation of race in the legal profession, especially in the everyday labor of civil-rights and poverty lawyers, prosecutors, and public defenders. Surprisingly, few have explored the relevance of the racial narratives distilled by Gates in Stony the Roa - the images, stereotypes, and tropes that Whites constructed of Blacks to deepen and ensure the life and legacy of white supremacy-to the practice …

Bitcoin Searches And Preserving The Third-Party Doctrine, Christine A. Cortez

St. Mary's Law Journal

Abstract forthcoming.

Preview—United States V. Cooley: What Will Happen To The Thinnest Blue Line?, Jo J. Phippin

Public Land & Resources Law Review

The Supreme Court of the United States ("Supreme Court") will hear oral arguments in this matter on Tuesday, March 23, 2021. This case presents the narrow issue of whether a tribal police officer has the authority to investigate and detain a non-Indian on a public right-of-way within a reservation for a suspected violation of state or federal law. The lower courts, holding that tribes have no such authority, granted James Cooley’s motion to suppress evidence. The Supreme Court must decide whether the lower courts erred in so deciding. While the issue before the Supreme Court is itself narrow, it has …

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 …

The Power Of The Dissent And Writing The Future Of Justice: Maat, Aristotle's Rhetoric, And Justice Ginsburg's Dissent In Kentucky V. King, Livan Davidson

Intercultural Human Rights Law Review

This article explains why Ginsburg's dissent in King is rhetorically superior to the majority opinion. It evaluates, by way of comparing and contrasting, the persuasiveness of the dissent and majority opinions in King. This article examines the opinion through the lens of Aristotle's rhetorical model and the ancient tenet of Maat. It analyzes Ginsburg and Justice Alito's (Alito) use of rhetorical devices that appeal to persuasion, including logos (appeal to logic), ethos (appeal to credibility), pathos (appeal to emotions), and Maat (rightness in the world). This article concludes that Ginsburg's use of rhetoric has a superior appeal to fairness and …

The Fourth Amendment’S Forgotten Free-Speech Dimensions, Aya Gruber

Publications

No abstract provided.

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 …

Let's Make Some "Scents" Of Our Fourth Amendment Rights: The Discriminatory Truths Behind Using The Mere Smell Of Burnt Marijuana As Probable Cause To Search A Vehicle, Alessandra Dumenigo

St. Thomas Law Review

This Comment addresses the negative effects that have resulted and will continue to result if police officers are encouraged by jurisprudence to conduct a warrantless search of an entire vehicle based on the smell of burnt marijuana. Warrantless searches of an entire vehicle based merely on the smell of burnt marijuana grant officers unlimited power that will likely result in police misconduct, an increase in racially profiled traffic stops, and a distrust between police officers and the Black community amid the nationwide outrage over the death of George Floyd. Part II of this Comment discusses the history of the Fourth …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani

Seattle University Law Review

In the wake of George Floyd’s murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread “security” measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective—and constitutionally compliant—alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …