The Second Amendment In A Carceral State,
2021
Northwestern Pritzker School of Law
The Second Amendment In A Carceral State, Alice Ristroph
Northwestern University Law Review
No abstract provided.
Note: The "Border" Of Constitutional Electronic Privacy Rights: Electronic Searches And Seizures At The United States' Territorial Limits,
2021
Notre Dame Law School
Note: The "Border" Of Constitutional Electronic Privacy Rights: Electronic Searches And Seizures At The United States' Territorial Limits, Ryan Garippo
Notre Dame Journal on Emerging Technologies
In the recent challenge brought before the First Circuit, the court was not required to directly answer what level of particularized suspicion is required for a forensic search. Although, its holding is consistent with the jurisprudence set forth by both the Fourth and Eleventh Circuits. Furthermore, it is important to note that there have been legal challenges brought on this issue in the Fifth, Seventh, and Tenth Circuits. However, in each of these cases, the court chose not to decide the constitutional question because it was not outcome determinative for the litigants in question. This disagreement between the federal circuit …
Covid-19 Sewage Testing As A Police Surveillance Infrastructure,
2021
University of California, Davis School of Law
Covid-19 Sewage Testing As A Police Surveillance Infrastructure, Elizabeth E. Joh
Notre Dame Journal on Emerging Technologies
This essay argues that sewage testing will outlive the pandemic and become a part of a general policing surveillance infrastructure. We risk adopting this surveillance method without taking care to assess the legal and policy questions raised by its use. Wastewater can provide early clues not just for COVID-19 outbreaks, but also for the presence (and assumed use) of opioids, methamphetamines, and other illegal drugs. Sewage testing at the University of California, San Diego, recently led to an alert that an infected person was “someone who used a restroom [at a specified residence hall] from 6 a.m. and 9:30 a.m. …
Note: Home-Sharing, Ride-Sharing, And Data-Sharing: Fourth Amendment Hurdles For Local Governance Of The Sharing Economy,
2021
Harvard Law School
Note: Home-Sharing, Ride-Sharing, And Data-Sharing: Fourth Amendment Hurdles For Local Governance Of The Sharing Economy, Matthew J. Disler
Notre Dame Journal on Emerging Technologies
Cities’ attempts to regulate the sharing economy reveal a conflict between local governance interests and Fourth Amendment doctrine. Although sharing economy industries present local problems, from housing affordability and land-use regulations to traffic congestion and sidewalk safety, cities attempt to effectuate their policies through data reporting requirements that are vulnerable to Fourth Amendment challenge. Businesses have successfully argued that cities’ reporting requirements are unconstitutional searches because they have an unreasonably broad scope and lack an opportunity for pre-compliance review. This Article argues that this impasse results from recent developments that have lent additional confusion to the Fourth Amendment’s administrative search …
Note: Facial Recognition Technology And The Constitution,
2021
Notre Dame Law School
Note: Facial Recognition Technology And The Constitution, Mark Simonitis
Notre Dame Journal on Emerging Technologies
Over the past several years, we have seen an increase in the adoption and use of facial recognition technology (FRT). Both private corporations and government organizations have increasingly used this technology over the past several years, and law enforcement agencies have been just as eager to utilize FRT in their operations. The potential uses for this technology in a law enforcement capacity are numerous. For example, FRT could be used to identify criminals whose faces were caught on surveillance footage, or it could be used to help identify citizens during border crossings. However, it is easy to imagine how an …
Antiracism In Action,
2021
Washington University in St. Louis School of Law
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 …
Frankly, It's A Mess: Requiring Courts To Transparently "Redline" Affidavits In The Face Of Franks Challenges,
2021
William & Mary Law School
Frankly, It's A Mess: Requiring Courts To Transparently "Redline" Affidavits In The Face Of Franks Challenges, Diana Bibb
William & Mary Bill of Rights Journal
Part I provides a brief overview of the Fourth Amendment, probable cause, and the exclusionary rule. Part II discusses Franks v. Delaware, the development of the challenge’s framework, and subsequent expansions to the doctrine made by the lower courts. Next, Part III argues that, despite the aforementioned expansions, courts have consistently weakened Franks. Notably, the Supreme Court refuses to consider Franks issues, including the multitude of splits over which standard of review is applicable. Moreover, some circuits have developed their own minute rules that have chiseled away at the effectiveness of a Franks challenge. Part IV proposes that …
Thompson V. Clark: Brief Of Amici Curiae Current And Former Prosecutors, Department Of Justice Officials, And Judges In Support Of Petitioner,
2021
University of Michigan Law School
Thompson V. Clark: Brief Of Amici Curiae Current And Former Prosecutors, Department Of Justice Officials, And Judges In Support Of Petitioner, Barbara L. Mcquade
Appellate Briefs
Amici are current and former federal, state, and local prosecutors, Department of Justice officials, and judges with experience prosecuting and establishing policy for prosecuting crimes at various levels of the criminal justice system. Amici recognize that prosecutors and judges must always conduct their duties in the interests of justice. Prosecutors therefore exercise their discretion to seek dismissal of criminal charges—and judges grant dismissal— where there is insufficient evidence to prove the case beyond a reasonable doubt or when other compelling circumstances call for dismissal. Amici have an interest in ensuring that prosecutors’ decisions whether to pursue criminal charges are not …
Border Searches For Investigatory Purposes: Implementing A Border Nexus Standard,
2021
University of Michigan Law School
Border Searches For Investigatory Purposes: Implementing A Border Nexus Standard, Brenna Ferris
University of Michigan Journal of Law Reform Caveat
Border searches are a commonly used exception to the Fourth Amendment’s probable cause and warrant requirements. Using a border search, the government can conduct searches of individuals without any kind of individualized suspicion. Border searches pose a concerning risk to privacy when they are used as a tool for criminal investigations. The Supreme Court has never ruled on searches used in this way, but lower courts are addressing the technique and reaching conflicting decisions. Courts need to take an approach that will protect the privacy interests of individuals while allowing the government to advance its interests in protecting its borders …
(Re)Framing Race In Civil Rights Lawyering,
2021
University of Miami School of Law
(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 …
Visible Policing: Technology, Transparency, And Democratic Control,
2021
Texas A&M University School of Law
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 …
The Genetic Panopticon: Genetic Genealogy Searches And The Fourth Amendment,
2021
Northwestern Pritzker School of Law
The Genetic Panopticon: Genetic Genealogy Searches And The Fourth Amendment, Genevieve Carter
Northwestern Journal of Technology and Intellectual Property
As consumer DNA testing gains widespread popularity, so has law enforcement’s interest in leveraging genetic databases for criminal investigations. Consumer DNA testing products like 23andMe and Ancestry allow private individuals access to their genetic data on private databases. However, once coded, genetic data is free to be downloaded by users and uploaded to public databases. Police identify suspects by uploading cold case DNA to public genetic databases and find familial matches. If they identify a familial match, they narrow the field of suspects using traditional methods of investigation, which often includes extracting suspect DNA from a piece of their abandoned …
The Current State Of Students’ Fourth Amendment Rights: How Implicit Bias Goes Unchecked In A Subjective Framework,
2021
Barry University, Dwayne O. Andreas School of Law
The Current State Of Students’ Fourth Amendment Rights: How Implicit Bias Goes Unchecked In A Subjective Framework, Christian Williams
Child and Family Law Journal
No abstract provided.
Comment: Doe V. Woodard And Its Impact On The Circuit Split Surrounding Social Workers’ Inspections Of Suspected Victims Of Child Abuse,
2021
University of Kansas School of Law
Comment: Doe V. Woodard And Its Impact On The Circuit Split Surrounding Social Workers’ Inspections Of Suspected Victims Of Child Abuse, Mary Kate Workman
Child and Family Law Journal
No abstract provided.
Fitbit Data And The Fourth Amendment: Why The Collection Of Data From A Fitbit Constitutes A Search And Should Require A Warrant In Light Of Carpenter V. United States,
2021
William & Mary Law School
Fitbit Data And The Fourth Amendment: Why The Collection Of Data From A Fitbit Constitutes A Search And Should Require A Warrant In Light Of Carpenter V. United States, Alxis Rodis
William & Mary Bill of Rights Journal
No abstract provided.
The Fourth Amendment Stripped Bare: Substantiating Prisoners' Reasonable Right To Bodily Privacy,
2021
Northwestern Pritzker School of Law
The Fourth Amendment Stripped Bare: Substantiating Prisoners' Reasonable Right To Bodily Privacy, Meher Babbar
Northwestern University Law Review
Prisoners’ rights to bodily privacy under the Fourth Amendment are limited, allowing detention officials to strip-search them for contraband. The extent to which the Fourth Amendment protects prisoners, however, is uncertain. Questions regarding whether strip searches require reasonable suspicion and the manner in which officials may conduct strip searches have troubled courts for decades. In the absence of clear guidance from the Supreme Court, courts have reached inconsistent conclusions, imperiling the human rights and dignity of prisoners. This Note argues that courts should define and apply prisoners’ rights to bodily privacy with reference to international human-rights law, specifically the United …
Police Perceptions, Knowledge, And Performance: Traffic Stops And The Use Of K-9 Units,
2021
The Catholic University of America, Columbus School of Law
Police Perceptions, Knowledge, And Performance: Traffic Stops And The Use Of K-9 Units, Christopher D. Totten, Gang Lee, Daniel Ozment
Catholic University Law Review
This empirical (survey) study of law enforcement officers aims to shed light on police conduct and knowledge concerning traffic stops, vehicle searches and the use of canine (K-9) units. This context is particularly relevant in light of a recent United States Supreme Court case in this area, Rodriguez v. United States, which held that when the mission of a routine traffic stop has been or reasonably should have been completed (i.e., the officer has issued a traffic ticket or a warning after having checked license, registration, insurance, and/ or warrants), the officer may not in general detain the vehicle …
Law Enforcement's Lochner,
2021
Brooklyn Law School
Bitcoin Searches And Preserving The Third-Party Doctrine,
2021
St. Mary's University School of Law
Bitcoin Searches And Preserving The Third-Party Doctrine, Christine A. Cortez
St. Mary's Law Journal
Abstract forthcoming.
The Qualitative Fourth Amendment: The Case For A Refined, Information-Focused Approach To Fourth Amendment Cases Involving Non-Trespassatory Government Surveillance,
2021
William & Mary Law School
The Qualitative Fourth Amendment: The Case For A Refined, Information-Focused Approach To Fourth Amendment Cases Involving Non-Trespassatory Government Surveillance, Joshua L. Wagner
William & Mary Law Review
In his 2001 majority opinion for Kyllo v. United States, Justice Scalia adopted his characteristic chiding tone to gently reproach what he saw as a notably liberal departure from the original textual interpretation of the Constitution. The Katz test for Fourth Amendment violations, to Scalia, was plainly “circular, and hence subjective and unpredictable.” That it was one of the most influential and oft-discussed decisions the Supreme Court has ever handed down made little difference; regardless of whatever Justice Harlan and his successors had said, the Fourth Amendment was, at its heart, a protection against government interference with property and had …
