Fourth Amendment Commons^™

Public Protest And Government Immunities, Timothy Zick

Faculty Publications

This Article presents the findings of a quantitative and qualitative study of the application of qualified immunity and other governmental immunities in the context of public protest. Relying on three unique datasets of federal court decisions examining First Amendment and Fourth Amendment claims, the Article concludes that public protester plaintiffs face an array of obstacles when suing state, local, and federal officials for constitutional injuries. Quantitative findings show that protesters’ claims are frequently dismissed under qualified immunity doctrines and that plaintiffs also face strict limits on municipal liability, new restrictions on First Amendment retaliation claims, and the possible extinction of …

The Unconstitutional Conditions Vacuum In Criminal Procedure, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro

Faculty Articles

For more than a century, the Supreme Court has applied the unconstitutional conditions doctrine in many contexts, scrutinizing government efforts to condition the tradeoff of rights for benefits with regard to speech, funding, and takings, among others. The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to—and often do—surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit. Despite its insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, the Court’s jurisprudence demonstrates that the doctrine …

Pyrrhic Victories: The Mirage Of Winning At The Supreme Court, Tonja Jacobi, Clare G. Willis

Faculty Articles

We conduct in-depth archival research of landmark constitutional criminal procedure cases and find two ways in which the declarations of the vindication of rights they contain are misleading. First, most defendants who successfully establish police violations of their constitutional rights before the highest court in the land nonetheless remain in prison for years or decades subsequently. The multitude of ways in which the state can convict the individual defendant even in the face of one or more constitutional violations means that the Supreme Court precedents that bear their names seldom translate to genuine wins for the defendants. Second, there are …

My Body, My Choice, My Data: Information Privacy After Dobbs, My Kim Ong

University of San Francisco Law Review

No abstract provided.

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

A Loophole In The Fourth Amendment: The Government's Unregulated Purchase Of Intimate Health Data, Rhea Bhatia

Washington Law Review Online

Companies use everyday applications and personal devices to collect deeply personal information about a user’s body and health. While this “intimate health data” includes seemingly innocuous information about fitness activities and basic vitals, it also includes extremely private information about the user’s health, such as chronic conditions and reproductive health. However, consumers have no established rights over the intimate health data shared on their devices. Believing that these technologies are created for their benefit, consumers hand over the most intimate aspects of their lives through health-related applications relying on the promise that their data will remain private. Today, the intimate …

A Wolf In Sheep’S Attire: How Consent Enfeebles Our Fourth Amendment, Stephen E. Henderson, Guha Krishnamurthi

Faculty Articles

The Fourth Amendment is a mirage. On paper—in the rules studied by law students, analyzed by scholars, and proclaimed by jurists—its limitations are many and, oftentimes, significant. Yet the experience of large numbers of Americans is entirely to the contrary, thanks to the rights-annihilating, under-theorized exception of “consent.” Under its guise, law enforcement officers routinely conduct what would otherwise be constitutionally-restrained searches and seizures, and they do so without meaningful explanation or assent. Fortunately, change—whether legislative or (ideally) constitutional—could be straightforward. Thanks to other sufficient triggers, consent could be replaced by a narrow, rights-protective doctrine under which law enforcement could …

State V. Joseph, 297 A.3d 490 (R.I. 2023)., Erica Whaley

Roger Williams University Law Review

No abstract provided.

Curing Terry's Colorblindness, Ilan Friedmann-Grunstein

Publications

Scholars, policymakers, and advocates have long bemoaned the Supreme Court's colorblind Fourth Amendment jurisprudence. The Court has alternatively ignored or condoned racially discriminatory searches and seizures, allowing government agents to engage in widespread racial profiling. Proposed reforms have typically focused on doctrinal solutions that would limit police discretion or called for the reversal of Terry v. Ohio.

This Article provides a comprehensive doctrinal, regulatory, and legislative solution to racial discrimination in police investigations. It proposes a novel solution: adopting recent jury selection reforms aimed at preventing racism injury selection to combat racial profiling in searches and seizures. Several states, …

The Harms Of Heien: Pulling Back The Curtain On The Court's Search And Seizure Doctrine, Steven M. Goldstein --

Vanderbilt Law Review

In Heien v. North Carolina, the Supreme Court held that individuals can be seized on the basis of reasonable police mistakes of law. In an opinion authored by Chief Justice Roberts, the eight-Justice majority held that the Fourth Amendment’s prohibition of “unreasonable” seizures does not bar legally mistaken seizures because “[t]o be reasonable is not to be perfect.” Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be “exceedingly rare.” In a solo dissent, Justice Sotomayor fairly “wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized …

The Harms Of Heien: Pulling Back The Curtain On The Court's Search And Seizure Doctrin, Wayne A. Logan

Vanderbilt Law Review

In Heien v. North Carolina, the Supreme Court held that individuals can be seized on the basis of reasonable police mistakes of law. In an opinion authored by Chief Justice Roberts, the eight-Justice majority held that the Fourth Amendment's prohibition of "unreasonable" seizures does not bar legally mistaken seizures because "[t]o be reasonable is not to be perfect." Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be "exceedingly rare." In a solo dissent, Justice Sotomayor fairly "wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

​Thinking Outside Of The "White Box": An Afrofuturistic Critique Of Terry Stops, Nina-Simone Edwards

Library Scholarship

What would the future look like if the privacy invasions that Black Americans are currently subjected to were not so normalized? This Note brings an Afrofuturistic perspective to the analysis of Terry stops, putting forward an alternative legal paradigm that uplifts Black Americans, their privacy, and their experiences, rather than police practices. Part I of this Note looks to the past, drawing on Afrofuturism’s tenant of reclamation, and assesses the development of vagrancy laws. Under these laws, vague legal standards allowed law enforcement to criminalize Black people after the end of slavery, punishing those who fell outside of the “white …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Constitutionalizing Racism, Jonathan Feingold

Faculty Scholarship

Unreasonable is Devon Carbado at his best. Through accessible prose, carefully crafted hypotheticals, effective visualizations, and some cross-examination (for the reader), Carbado reintroduces us to the Fourth Amendment. In arresting detail, Unreasonable" exposes how the Supreme Court has turned the Fourth Amendment against “the people”—and specifically, against people racialized as Black. Part of the “Bill of Rights,” the Fourth Amendment was adopted to protect “the right of the people” from police overreach. Yet over the past half-century, the Supreme Court has systematically repositioned the Fourth Amendment as a weapon of police power. Or as Carbado argues: whereas many assume …

The Automated Fourth Amendment, Maneka Sinha

Emory Law Journal

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible.

Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

More Than Friends: A New Theory For The Third-Party Doctrine, Eang Ngov

Faculty Articles

When a person gives information or something tangible to someone or a business, the Fourth Amendment’s third-party doctrine allows the government to obtain that evidence without a warrant or probable cause. The third-party doctrine is premised on the rationale that we hold no reasonable expectation of privacy when we voluntarily expose information to others, that we assume the risk that the third party would share the information, and that we must deal with the consequences of that misplaced trust. The doctrine originated from a series of cases where law enforcement obtained information revealed by criminals through their mistaken trust of …

A Reasonable And Well-Reasoned Teaching Tool In Unreasonable Times, Jasmine Gonzales Rose

Faculty Scholarship

Devon Carbado’s most recent book, Unreasonable: Black Lives, Police Power, and the Fourth Amendment, is a must-read for anyone studying or concerned with criminal procedure or policing. Unlike some of Professor Carbado’s other work, the brilliance of this book is not necessarily new conceptualizations or theorizations—for which he is well known—but rather centers on accessible pedagogy. If you have studied race and policing, you are not likely to find a new case, study, or reference to scholarship in the book. But, you are going to understand anti-Black racism, policing, the Fourth Amendment, and their intersections better than you did …

Community Caretaking Exception Saves Lives . . . The Supreme Court Disagrees, Gabriella Lorenzo

Touro Law Review

As many are aware, the Fourth Amendment protects the people against unreasonable searches and seizures. A warrant is necessary for said activities. While there are a few exceptions to the warrant requirement, the Supreme Court recently held that the community caretaking exception does not extend to the home. Extending this exception to the home would allow police officers to enter and engage in functions that are unrelated to the investigation of a crime. Essentially, this exception would allow police to aid individuals and prevent serious, dangerous situations to protect the community. This Note discusses why the Supreme Court erred in …

Curing Terry’S Colorblindness, Ilan Friedmann-Grunstein

Oklahoma Law Review

No abstract provided.

Taking Aim At Shotspotter: Gunshot Surveillance, The Fourth Amendment, And An Argument For Sonic Security, Emily A. Fogg

Oklahoma Law Review

No abstract provided.

Bill Of Rights Nondelegation, Eli Nachmany

BYU Law Review

Speculation about the “revival” of the nondelegation doctrine has reached a fever pitch. Although the Supreme Court apparently has not applied the nondelegation doctrine to declare a federal statute unconstitutional since 1935, the doctrine may be making a comeback. The common understanding is that the nondelegation doctrine prohibits Congress from “delegating” legislative power to the executive branch. While the nondelegation doctrine may appear to be about limiting Congress, its ultimate target is delegation. But if the nondelegation doctrine is about policing delegation, then the Court has been regularly — and rigorously — applying the doctrine in a different context: In …

How The 2020 Protests Raises The Issues Of Policing Tactics, Brianna Knibbs

Capstones

With the 2020 Racial protests spreading all across the United States in the wake of the killing of George Floyd, the issues of police tactics used against protesters have raised a lot of questions on how it plays a role into the systematic police racism. In addition to the challenges for those who try to sue police departments.

Wrong Or (Fundamental) Right?: Substantive Due Process And The Right To Exclude, Jack May

Washington Law Review

Substantive due process provides heightened protection from government interference with enumerated constitutional rights and unenumerated—but nevertheless “fundamental”—rights. To date, the United States Supreme Court has never recognized any property right as a fundamental right for substantive due process purposes. But in Yim v. City of Seattle, a case recently decided by the Ninth Circuit, landlords and tenant screening companies argued that the right to exclude from one’s property should be a fundamental right. Yim involved a challenge to Seattle’s Fair Chance Housing Ordinance, which, among other things, prohibits landlords and tenant screening companies from inquiring about or considering a …

Brief Of Fourth Amendment Scholars As Amici Curiae In Support Of Defendant-Appellant On The Good Faith Exception Issue, U.S. V. Holcomb, Ninth Circuit Court Of Appeals Docket No. 23-469, David B. Owens, Rachel Nowlin-Sohl, Averill L. Aubrey, Megan Haygood, Kayleigh Mcniel, Michael C. Orehek

Court Briefs

SUMMARY OF THE ARGUMENT

When the Fourth Amendment is violated by an unconstitutional search, the suppression of wrongfully obtained evidence (the exclusionary rule) is often the only viable remedy that might deter government overreach and provide some redress for the constitutional violation. Though the Supreme Court has long treated remedial mechanisms as separate from their underlying rights, Wolf v. Colorado, 338 U.S. 25 (1949), and while limited exceptions to the suppression requirement have existed for years, recent expansion of the “good faith exception” in the digital age imposes unprecedented threats to privacy and security.

A porous or expansive view …