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Who Guards the Guardians Themselves? By: Stephen McKitt

Who Guards the Guardians Themselves?

By: Stephen McKitt

            “Who guards the guardians themselves” or as it was originally written in Latin “Quis custodiet ipsos custodies” is a phrase from the Roman poet Juvenal’s Satires.[1] The line has come to be more popularly recited as “who watches the guardians” and is used modernly as a commentary on abuses of power and lack of oversight amongst those that are charged with governing or protecting citizens.[2] In The Republic Plato suggests that these so called guardians would police themselves and be beyond reproach.[3] Plato goes so far as to say “Yes it would be absurd that a guardian should need a guard”[4]. Of course in this day and age the public understands that authority without oversight leads to corruption and abuses of power, and at least in this respect Plato was mistaken.

In the weeks following the shooting death of eighteen year old Michael Brown by police in Ferguson, Missouri[5] the phrase “who guards the guardians themselves” seems especially relevant.  It forces us to wonder who, if anyone should be held accountable for this tragedy? And if someone should be held accountable, who will be the ones to hold them accountable?

By now the events of Michael Brown’s death have been well documented by numerous sources, but a brief account of what is thought to have happened is necessary to frame this issue. On Sunday August 9, 2014 a police officer, later revealed to be Darren Wilson, responded to a 911 call about a convenience store robbery.[6] While in route to the store, Wilson encountered Michael Brown who was walking with a friend. The encounter resulted in Wilson shooting Brown to death by Wilson.[7] There are conflicting reports concerning the events that led to Wilson shooting Brown. The police allege that Brown assaulted Wilson and Wilson’s actions were purely in self-defense.[8] While some witnesses on the other hand have come forward and stated that Brown had his hands up and said “don’t shoot” before Wilson shot him.[9] The only undisputed facts of this incident are that an unharmed eighteen year old boy was shot to death by a police officer.

This leads back to the phrase “who watches the guardians”, the guardians in this instance being the police officers in the Ferguson community. In a situation like this, the obvious answer would be that the chief of police would provide oversight and if not him, then the mayor of Ferguson would do so. Sadly, there has not been much done by these two individuals in terms of reconciling what Wilson said happened with what eye witnesses are saying, or easing the concerns of the Ferguson community. So far the Chief of police’s response to the incident has been to allow his officers to turn the city into what could fairly be described as a police state. The Ferguson police force has deployed armored vehicles, tear gas, rubber bullets and made numerous arrests in an effort to, as the mayor phrased it “have and maintain peace”[10]. To be fair, there have been legitimate occurrences of looting and crime in Ferguson following the incident, but even with these instances it is not difficult to consider the Ferguson police’s actions as excessive and in fact there is pending litigation on the issue.[11] Eventually the Governor of Ferguson decided that it would be best to place the State Highway Patrol in charge of the protection of Ferguson.[12]

If the mayor and the Ferguson Police Chief cannot be trusted to provide oversight into the incident, then the next body that would be expected to provide such oversight would be the courts. In theory the district attorney would launch an investigation and if there was sufficient evidence of wrongdoing Darren Wilson would be on trial in criminal court for negligent homicide and he would be possibly civilly liable for his alleged use of excessive force. Putting aside the possible criminal case, the civil case against Wilson would be very difficult to win.[13] This is because officers like Wilson are protected from liability in excessive force cases in two ways.[14] First, qualified immunity absolves government agents of liability unless their actions violate a clearly established right that a reasonable person would have known of.[15] Second, the government agent would be free from liability under the Fourth Amendment if the amount of force he used was found to be what a reasonable officer under the circumstances would have used.[16]Together these two test “result in overprotection” of defendants like Wilson from civil liability.[17] Discounting possible criminal charges being brought against Wilson (although a grand jury has been convened to decide if he should be indicted he is still as of now on paid leave), the courts are unlikely to provide punishment for the abuse of power or lack of oversight spring from Brown’s death.

So again, the question arises “who watches the guardians.” In this instance this task has fallen to the ones the police are tasked with protecting. The normal citizens have taken on the responsibility of holding the police responsible for Brown’s death. They have done this through vigils, marches, social media outrage, and even attempting to block a highway.[18]The normal citizens, feeling that no one else would, have taken action to voice their displeasure with the way the entire incident has been handled.[19] There is no need to recount the countless times throughout history the people themselves have had to hold the guardians accountable, even in this country.[20] With the mayor and police failing them and things like qualified immunity providing powerful protection to defendants like Wilson in the courts, the people have no other recourse than to protest how this incident has been handled. This is the appropriate and necessary response to Brown’s death and how the police handled the subsequent events following it. There have been some cases of looting and violence, but for the most part the citizens of Ferguson have done well in letting the world know that the actions of their “guardians” have so far been unacceptable. Elsewhere in this blog, Ms. Smith argues that things like qualified immunity for police and the tactics used by the officers to “maintain peace” are a necessary evil in order to ensure that communities do not fall apart from the sheer outrage that accompanies events like Brown’s death. If those things are necessary evils to ensure decorum within the community, then the citizen’s of Ferguson’s protest are also necessary. Their actions are necessary to display to the rest of the world that if there is no one else to hold the “guardians” accountable then the people themselves will.

[1]  Juvenal, Satire VI, lines 347-48.

[2] Leonid Hurwicz. But Who Guards the Guardians. American Economic Review. Vol. 98. Jun 2008.

[3] Plato, The Republic, 265 (1991).

[4] Id.

[5]Timeline: Michael Brown Shooting in Ferguson, Mo., usatoday.com (August 14, 2014), http://www.usatoday.com/story/news/nation/2014/08/14/michael-brown-ferguson-missouri-timeline/14051827/

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11]Police used Excessive Force to Quell Ferguson Unrest:Suit, newyorkpost.com (August 29,2014), http://nypost.com/2014/08/29/police-used-excessive-force-to-quell-ferguson-unrest-suit/

[12] Id.

[13]  See generally, Diana Hassel, Excessive Reasonableness, 43 Ind. L. Rev. 117 (2009).

[14] Id. at 117

[15] Id.

[16]Id.

[17] Id.

[18]Wesley Lowery, Ferguson Protest Tries to Shut Down I-70, as Calls Continue for McCulloch to Step Down, Washingtonpost.com (Sep. 10, 2014),  http://www.washingtonpost.com/politics/ferguson-protest-tries-to-shut-down-i-70-as-calls-continue-for-prosecutor-to-step-down/2014/09/10/2cb3a97c-37b4-11e4-8601-97ba88884ffd_story.html

[19]Timeline: Michael Brown Shooting in Ferguson, Mo., supra note 5.

[20] See generally http://www.ushistory.org/

Why We Give Cops Guns: What America Has Forgotten in Light of the Ferguson Shooting By: Shalyn Smith

Why We Give Cops Guns

What America Has Forgotten in Light of the Ferguson Shooting

By: Shalyn Smith

Michael Brown, an unarmed 18-year old black teenager, was shot and killed by police officer Darren Wilson in Ferguson Missouri on August 9, 2014.[1] Brown’s death subsequently caused upheaval in many American communities including Ferguson.[2] After all, it is understandable that people would be outraged by the death of a young man who seemed to have many more years ahead of him.[3] Beyond the protests, and civil unrest however, the true disappointing effect of this tragedy is the shooting has caused many Americans to lose their trust in the police force.[4] Even Michael Brown’s mother, who is now a face for the Ferguson community, has lost her faith in the authority figures[5] that city governments employ for the purpose of providing protection and assistance to Americans daily.[6]

The lack of trust that developed in response to the Ferguson shooting (justified or not) has essentially caused many to forget why police officers are given such deadly tools to execute their job tasks. Specifically, Michael Brown’s death is national news that motivates people to wonder if law enforcement personnel are given “special rights.” [7]

“Special Rights”—The Qualified Immunity Doctrine

The question: “do police officers have special rights?” stems from the fact that Officer Wilson has not been arrested for his actions. [8] The “inaction” of Ferguson prosecutors baffles the grieving community.[9] However, since a DOJ investigation is underway, the community must realize that a grand jury has already decided to hear evidence on this issue.[10]

Elsewhere in this blog, Stephen McKitt also suggests that “special rights” exists. He asks: “Who Guards the Guardians?” and claims that the Ferguson community has responded properly to the shooting. State and federal law simply does not support this assertion even though it is supported by a wealth of passion that is warranted in light of the situation. The federal government has long established that an officer’s use of force is essentially a necessary evil when the force is reasonable. The establishment of the qualified immunity doctrine exempts officers from civil actions in these cases.[11] Case law has defined qualified immunity stating that: “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[12] While the doctrine does not apply in criminal court, it is evidence that state governments are opposed to the idea of permitting lawsuits every time a police officer exerts force on a citizen.

The Ferguson community would likely ask: “why shouldn’t the government want to allow lawsuits?” This is a fair question considering that even the Missouri governor states that Michael Brown’s family deserves justice.[13] The policy behind the government providing qualified immunity for government officials is that immunizing them from the plethora of suits they would surely face; protects government resources.[14] If every person the police apprehended had the ability to sue, taxpayer money would be used primarily for litigating these issues. This reasoning is logical because every day, someone in our politically charged society is likely to disagree with the decisions that government officials make. It is difficult to find issues that everyone in society agrees on.

However, the doctrine of qualified immunity does provide for exceptions. An officer must have some form of reasonable fear to use force, and if he does, the force must not be excessive.[15] These are all determinations that would be made if Brown’s family initiated a civil suit against officer Wilson. Additionally, if the DOJ investigation finds a civil rights violation, the Ferguson Police force could face even more sanctions.[16]

 

Solution—Fight The Right Issues

So, in response to Mr. McKitt’s question: “Who Guards the Guardians,” the answer is that Michael Brown’s death cannot be fought as an excessive force issue until other factual determinations are made. The real issue in Ferguson is that the city is facing the threat of a crumbling community. The city has lost hope, and the correct question to ask in Ferguson is “Who Trusts the Guardians?”

Recently, Birmingham Police Chief A.C. Roper suggested that communities can avoid situations like the Ferguson shooting by establishing partnerships between the police force and the community.[17] He states that “once [these problems] start, it is hard to wrap your arms around [them], and so now we’re seeing that [in Ferguson] and it is spinning out of control.”[18] Chief Roper is completely correct. Other communities have seen situations similar to Ferguson lead to great disaster. Most notably, the Rodney King Riots in Los Angeles 22 years ago claimed the lives of 53 people, and Los Angeles citizens viewed LAPD officers as an “occupying army.”[19] Ferguson is not far behind. Police officers have pointed guns at protestors and used tear gas to “quell” demonstrations.[20] In Los Angeles however, the city’s decision to accept the assistance of the federal government enabled it to make steps towards positive change.[21]

Alternatively, some argue that the lack of gun control in the country has caused police officers to naturally assume each suspect is armed.[22] While this view is interesting, the gun control issue is of little concern in Ferguson because even if Officer Wilson was warranted in his use of force, the lack of trust between Ferguson police and the community remains a major issue.

A Beacon of Hope for Ferguson

However, the Rodney King Riots have taught us that cities can change. Just as Los Angeles survived Rodney King’s brutal assault and the acquittal of the officers who harmed him[23], Ferguson can rebuild from Michael Brown’s tragic death. Even if Officer Wilson never enters a courtroom, if the people in Ferguson can trust police officers in the future, the city is better off. It is terrifying to believe that the guns cities provide police officers could result in the death of an innocent young man. What is even more terrifying is that as a result of that gun use, society could stop calling on the police for help in serious matters. True civil unrest and chaos are the fears we hope to avoid when we entrust officers with deadly weapons.

[1] Rachel Clarke and Christopher Lett, What happened when Michael Brown Met Officer Darren Wilson, CNN (Aug. 26, 2014, 5:00 PM), http://edition.cnn.com/interactive/2014/08/us/ferguson-brown-timeline/. See also The Editorial Board, The Death of Michael Brown Racial History Behind the Ferguson Protests, N.Y. TIMES (Aug. 12, 2014), http://www.nytimes.com/2014/08/13/opinion/racial-history-behind-the-ferguson-protests.html?_r=0.

[2] See The Editorial Board supra note 1(discussing the racial history behind the protest).

[3] Michael Brown’s death occurred only days before he was planning to leave for college. Id.

[4] Erin McClam and Aaron Mermelstein, Eric Holder Opens Broad Probe Into Ferguson Police, NBC News (Sept. 4,  2014, 1:14 PM), http://www.nbcnews.com/storyline/michael-brown-shooting/eric-holder-opens-broad-probe-ferguson-police-n195886 (explaining Attorney General Holder’s announcement that the federal investigation of the shooting is a reaction to the “deep mistrust” between officers and the people who live there).

[5] Michael Brown’s mother told CNN: “Just hearing the words come directly from [Holder's] mouth, face-to-face, he made me feel like, one day, I will [trust police officers] . . . . I’m not saying today, or yesterday, but one day, they will regain my trust.” Greg Botelho, Michael Brown’s mother on authorities ‘One day, they will regain my trust’, CNN U.S. (Aug. 21, 2014, 11:14 PM), http://www.cnn.com/2014/08/21/us/michael-brown-parents/.

[6] Pendleton Police Department, Job Description: Police Officer available at http://ppd.pendleton.or.us/jobdes_policeofficer (setting out the duties of one city police department); see also USA Today infra note 7.

[7] Periodicvideos, Michael Brown Supporters want Darren Wilson Arrested, USA Today (Sept. 9, 2014), http://www.usatoday.com/videos/news/2014/09/09/15333377/ (suggesting that “law enforcement is not held to the same standard as everyone else,” and questioning if police have “different laws that apply them”).

[8] Id.

[9] Id.

[10] Missouri gov calls for ‘vigorous prosecution’ of Ferguson shooting case, FoxNews.com (Aug. 20, 2014), http://www.foxnews.com/us/2014/08/20/missouri-gov-calls-for-vigorous-prosecution-ferguson-shooting-case/.

[11] Sheppard, White, & Kachergus, Michael Brown: The Protests in Ferguson and the Doctrine of Qualified Immunity in Excessive Force Cases, SheppardWhite.com (Aug. 21, 2014, 4:50 PM), http://www.sheppardwhite.com/blog/michael-brown-the-protests-in-ferguson-and-the-doctrine-of-qualified-immunity-in-excessive-force-cases/.

[12] Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

[13] FoxNews.com supra note 10.

[14] Harlow v. Fitzgerald, 457 U.S. at 807-10.

[15] Patrik Jonsson, Mike Brown death, Ferguson riots raise questions about poice immunity, Alaska Dispatch News (Aug. 12, 2014), http://www.adn.com/article/20140812/mike-brown-death-ferguson-riots-raise-questions-about-police-immunity.

[16] FoxNews.com supra note 10.

[17] Periodicvideos, Birmingham Police Chief A.C. Roper on Ferguson, Fox 6 WBRC (2014), http://www.myfoxal.com/Clip/10494259/birmingham-police-chief-ac-roper-on-ferguson.

[18] Id.

[19] Monica Alba, What Ferguson Cops Can Learn From LAPD Response to Rodney King Riots, NBCNews (Sept. 8, 2014, 4:53 AM), http://www.nbcnews.com/storyline/michael-brown-shooting/what-ferguson-cops-can-learn-lapd-response-rodney-king-riots-n197071.

[20] Id.

[21] Id.

[22] BlueKing, Police With No Guns, Daily Kos Blog (Aug. 13, 2014, 8:48 AM), http://www.dailykos.com/story/2014/08/13/1321257/-Police-With-No-Guns#.

[23] Alba supra note 19.

Developments in Voting Rights Jurisprudence: Alabama Legislative Black Caucus v. Alabama By Jason “Jay” Malone

Developments in Voting Rights Jurisprudence: Alabama Legislative Black Caucus v. Alabama

By Jason “Jay” Malone

An interesting case is set to be argued before the United States Supreme Court in October 2014. The case, Alabama Legislative Black Caucus v. Alabama, concerns the practice of “packing” so called minority-majority voting districts with more minority voters.[1] The Supreme Court will decide whether the practice of “packing” violates any portions of the United States Constitution or the Voting Rights Act of 1965.[2]

            The original lawsuit was filed in the Middle District of Alabama by a coalition of black Alabama lawmakers, the Alabama Democratic Conference, and other plaintiffs.[3] The defendants named in the lawsuit include Robert Bentley, Governor of Alabama, and Jim Bennett, Secretary of State of Alabama.[4] The lawsuit alleged that Alabama Republican lawmakers, upon establishing a super majority in both the Alabama Senate and House of Representatives, redrew voting districts in a manner that violates § 2 of the Voting Rights Act and  the Fourteenth and Fifteenth Amendments of the United States Constitution.[5] Specifically, the plaintiffs alleged that the districts redrawn in accordance with the 2010 Census were created in order to dilute the influence of minority voters throughout the state.[6]

            The plaintiffs presented testimony of several Alabama Democratic lawmakers as evidence against the defendants.[7] The Democratic lawmakers testified that the reapportionment had a negative effect on the voting strengths of minorities in their districts and across the state.[8] To counter, Representative Jim Bennett and Senator Gerald Dial, Chairpersons of the Permanent Legislative Committee on Reapportionment of the State of Alabama, testified about the guidelines that the committee used in reapportionment in accordance with the 2010 Census.[9] Senator Dial testified regarding six guidelines the committee followed:

First, the Committee wanted to comply with the requirement of one person, one vote by making the districts as equally populated as possible. Second, the Committee wanted to avoid future litigation about compliance with the requirement of one person, one vote. Third, the Committee wanted to comply with the Voting Rights Act. Fourth, the Committee wanted to comply with section 5 of the Voting Rights Act, which it understood to require that it not reduce the number of majority-black districts or the approximate levels of black population within those districts. Fifth, the Committee wanted to draw districts to avoid incumbent conflicts. Sixth, the Committee wanted to preserve communities of interest when possible.[10]

The committee’s guidelines were structured in light of several Supreme Court rulings in regards to reapportionment. The Supreme Court’s long standing “one person, one vote” principle controlled the committee’s guidelines.[11]As the name of the principle suggests, the court stated that reapportionment should be conducted in a manner that one person’s vote in a state or congressional election is counted equally as that of another person’s vote in a different part of the state.[12] Another case that influenced the committee found that a population deviation of ten percent in a given voting district could violate the principle of “one person, one vote.”[13]

            Ultimately, a divided three-judge panel dismissed the claims of the plaintiffs.[14] In addressing the vote dilution claim made by the plaintiffs, the court used principles set forth by the Supreme Court in Thornburg v. Gingles.[15] In order to establish a prima facie case, a plaintiff must: “the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district, the minority group must be able to show that it is politically cohesive, and the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate.”[16] “After the plaintiff has established the three Gingles elements, the plaintiff must also establish that the totality of the circumstances supports a finding that the voting scheme is dilutive.”[17]

            The trial court found that the plaintiffs did not meet the first Gingles element because “they failed to prove that an additional majority-black district could be created anywhere in the State.”[18] The court also found that the plaintiff’s dilution claim failed as well because the record established otherwise.[19] The court found that the plaintiff’s failure to show that the legislature could have drawn the map with a smaller population deviation was critical to their claim.[20] The court also found legislature’s ability to keep the amount of “minority-majority” Senate and House districts the same persuasive.[21] Furthermore, the court found that even if the plaintiffs had satisfied all three of the Gingles elements, the totality of the circumstances would still support a finding that voting dilution did not occur.

            In trying to convince the court to hear the case, the appellants argued that “packing of the majority black districts necessarily increases the political segregation of African-Americans and reduces their ability to influence the outcome of legislative elections in the rest of the state.”[22] The appellants also believe that the new voting districts were drawn “based on race to an unconstitutional and unjustified degree.”[23] The appellees believe they drew the districts in accordance with all of the relevant legal precedents.[24] It will be interesting to see the Court’s ruling on this issue as the Court continues to work in the area of voting rights with notable cases such as the one at hand and Shelby County v. Holder

[1] Ala. Legislative Black Caucus v. Alabama, 989 F. Supp. 2d 1227, 1236 (M.D. Ala 2013).

[2] Lyle Denniston, New Ruling Due on Racial Gerrymandering, SCOTUSblog (Jun. 2, 2014, 3:22 PM), http://www.scotusblog.com/2014/06/new-ruling-due-on-racial-gerrymandering.

[3] Ala. Legislative Black Caucus v. Alabama, 989 F. Supp. 2d at 1236. 

[4] Id.

[5] Id.

[6] Id.

[7] Id. at 1259.

[8] Id. at 1259 – 1265.

[9] Id. at 1276.

[10] Id. at 1273.

[11] Id.

[12] Reynolds v. Sims, 377 U.S. 533, 560 (1964).

[13] Larios v. Cox, 300 F. Supp. 2d 1320, 1340 -1341 (N.D. Ga. 2004), aff’d, 542 U.S. 947 (2004).

[14] Ala. Legislative Black Caucus, 989 F. Supp. 2d at 1237. 

[15] Id. at 1279.

[16] Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).

[17] Ala. Legislative Black Caucus, 989 F. Supp. 2d at 1280.

[18] Id. at 1281.

[19] Id. at 1284.

[20] Id.

[21] Id. at 1285.

[22] Adam Liptak, Justices Enter Into Dispute Over Districts Alabama Set, The New York Times, June 2, 2014, http://www.nytimes.com/2014/06/03/us/politics/supreme-court-to-hear-challenge-to-alabama-redistricting.html?_r=0.

[23] Id.

[24] Id.

Toeing the Line Between Racist and Race-Savvy: A Post-Sterling Scandal Hits the NBA with Bruce Levenson’s Email By Michael Pepper

Toeing the Line Between Racist and Race-Savvy: A Post-Sterling Scandal Hits the NBA with Bruce Levenson’s Email

By Michael Pepper

            On the morning of September 7, 2014, Adrian Wojnarowski broke the news that yet another NBA owner was going down for racist comments.[1] In July, 2014, Bruce Levenson, majority owner of the Atlanta Hawks, voluntarily revealed to NBA investigators an email he sent in 2012 that contained racist comments about his fan base.[2] This revelation occurred during the NBA’s investigation of the Donald Sterling scandal.[3] In the email, Levenson discusses his observations of the Hawks in-game fan base and ideas to increase ticket sales and diverse attendance.[4] Levenson says that the audience is predominately black and that arena practices are targeted towards black people, which in turn hurts ticket sales.[5] Notable quotes include: “My theory is that the black crowd scared away the whites and there are simply not enough affluent black fans to build a significant season ticket base,” and, “I have told them I want some white cheerleaders and while i don’t care what the color of the artist is, i want the music to be music familiar to a 40 year old white guy if that’s our season tixs demo. i have also balked when every fan picked out of crowd to shoot shots in some time out contest is black. I have even bitched that the kiss cam is too black.”[6] Levenson will sell his controlling interest in the team because of the email.[7]

            Obviously, another racist scandal in the wake of the Donald Sterling fiasco is the last thing the NBA needs. However, the similarities, differences, and proximity to the Sterling comments compel some observations and concerns. First, it is likely that the language of Levenson’s email will not lead it to be considered as offensive as the recorded rant of Sterling. Observations of the Hawks’ fan base, written as almost matters of fact, are likely not as enraging as Sterling’s words of “walking with black people” in “lousy f**ing Instagrams.”[8] Second, the contexts of the two owners’ statements are totally different. Sterling’s rant was recorded in private and served no other purpose for Sterling other than to express his racist distaste with his girlfriend associating herself with black people.[9] Levenson’s email, on the other hand, was sent to promote diversity in attendance.[10] Obviously, knowledge of your target market is key to success in business and Levenson could be seen as doing nothing more than noting the demographics of his market and making suggestions on how to expand the Hawks’ reach. Thirdly, Levenson’s revelation and pending sale comes just a month after the Los Angeles Clippers were sold for a record $2 billion.[11] Many are already suggesting that Levenson’s voluntary revelation is a ploy on his part to cash in on the value of scandal and sell high.

            Maybe if the Sterling scandal never happened, Levenson would not have revealed his email (by the way, Levenson publicly supported the forced ouster of Sterling).[12] Maybe without Sterling fresh in the public’s mind there would not be any consideration of whether Levenson’s statements are really that bad. Yet, here Levenson is, facing public scrutiny for racism just months after his contemporary shocked the world. No matter how offensive or inoffensive you find his comments, it should be downright maddening to NBA fans and Americans everywhere that two owners left a league of which 76.3% is comprised of black athletes for reasons relating to race.[13]

            Beyond that, the frustration with the Levenson situation grows more complicated. The history of civil rights in the United States illuminates a tension between being “colorblind” and taking race-conscious measures.[14] Responses typically find themselves in one of these camps as well.[15] There are two general propositions: Levenson was a savvy owner by being aware of the disparities in wealth between blacks and whites, or, 2) Levenson is racist for stereotyping black people.[16]  Regarding the first idea, Levenson’s comments, rather than being Sterling-esque or blatantly offensive to minorities, are race-conscious comments related to the state of his business. It would be naïve to assume that no other high-profile businessmen and women tailor their business to attract different racial demographics. Some might suggest it would also be naïve to not realize that Levenson is correct in suggesting that the black population of Atlanta could not support a profitable season ticket base.[17] The estimated median income for black households in Atlanta is $40,550 a year.[18] Assuming the observations Levenson discussed in his email to be true, it would be a valuable business move to try and bring in more white people to Hawks games.

            The second general response that Levenson’s comments are blatantly racist finds none of the preceding suggestions persuasive for multiple reasons. First, one can be race-savvy in making business decisions without assuming that black people scare off white people. The suggestion that a wealthy white NBA fan would not buy tickets just because they play hip-hop inside the arena or a black fan takes a half-court shot during halftime is so blatantly stereotypical and offensive that any business evidence cannot justify it. Second, Levenson assumes that the black fans are the problem, although he could make the opposite point: what is wrong with the white fans? State Senator Vincent Fort from Atlanta takes this position, and additionally says, “It is clear that [the email] was written by a guy imprisoned by his white male privilege.”[19] Third, for a leader to put the blame on black fans for his poor attendance, and do so in so much depth, reveals how quick he is to revert to racial stereotypes, rather than blame the attendance on any of the other factors that contribute to the relatively lacking NBA fervor in the south in general. If you’re an NBA team in the southeast, unless your team can contend for the championship or boast LeBron James and Dwyane Wade, you’re going to face an uphill battle in attendance for a multitude of reasons.[20] Finally, Levenson himself admits that the statements were “inappropriate and offensive” and “inflammatory nonsense,” which he revealed in response to the idea that “the NBA should have zero tolerance for racism.”[21] The Atlanta community seems to agree, as the Mayor said, “we will be clear and deliberate in denouncing and repudiating [the statements].”[22] The argument that Levenson is saying all the right things just to drive up the cost of his franchise after seeing Sterling’s go for $2 billion is possibly nonsensical because there is no way that a voluntary revelation of arguably not-as-bad-as-Sterling comments can compare with the recording that forced Sterling out.

            Maybe Levenson’s mindset is shared by many business owners of all races and relevant to the progress of growing a fan base. But maybe, as civil rights leader Charles Steele said, “This type of mindset is irrelative to the progress to which we are embarking on.”[23] The question that begs answering as public reaction grows in the near future is: which is more important?

[1] Adrian Wojnarowski (Sept. 7, 2014, 8:20 AM), https://twitter.com/WojYahooNBA/status/508635959705886720.

[2] Adam Silver, NBA Commissioner Adam Silver Statement Regarding Atlanta Hawks Owner Bruce Levenson, (Sept. 7, 2014, 8:21 AM), https://twitter.com/NBA/status/508636146146889728.

[3] Adi Joseph, Bruce Levenson Will Sell Atlanta Hawks After Releasing Racist E-Mail, USA TODAY Sports (Sept. 7, 2014), http://www.usatoday.com/story/sports/nba/hawks/2014/09/07/bruce-levenson-racist-email-atlanta-owner-sell-team/15241591/.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Kevin Conlon, NBA Team Owner in Hot Water Over Racist Comments Attributed to Him, CNN (April 27, 2014), http://edition.cnn.com/2014/04/26/us/nba-team-owner-alleged-racist-remarks/.

[9] Id.

[10] Joseph, supra.

[11] Maury Brown, $2 Billion Sale Of Los Angeles Clippers To Steve Ballmer Now Official, Forbes (Aug. 12, 2014), http://www.forbes.com/sites/maurybrown/2014/08/12/2-billion-sale-of-los-angeles-clippers-to-steve-ballmer-now-official/.

[12] Adi Joseph, Hawks Owner Bruce Levenson Would Approve Donald Sterling Ouster, USA TODAY Sports (April 29, 2014), http://www.usatoday.com/story/sports/nba/clippers/2014/04/28/owners-vote-possibility-donald-sterling-out-los-angeles/8441375/.

[13] Richard Lapchick, The 2013 Racial and Gender Report Card: National Basketball Association, The Institute for Diversity and Ethics in Sport (June 25, 2013), http://www.tidesport.org/RGRC/2013/2013_NBA_RGRC.pdf.

[14] See, e.g., Eduardo Bonilla-Silva, Racism Without Racists: Color-Blind Racism and the Persistence of Racial Inequality in the United States (2d ed. 2006).

[15] Beth Sawicki, NBA, Reed React To Levenson’s Decision To Sell Hawks, 11Alive (Sept. 7, 2014), http://www.11alive.com/story/sports/nba/atlanta-hawks/2014/09/07/levenson-reactions/15247477/.

[16] See id.

[17] Joseph, Bruce Levenson Will Sell, supra.

[18] Black Demographics, http://blackdemographics.com/cities-2/atlanta/.

[19] Michael Kanell and Ernie Suggs, Atlanta Leaders React To Hawks Owner’s Exit Over Email, Atlanta Journal-Constitution (Sept. 7. 2014), http://www.ajc.com/news/news/breaking-news/atlanta-leaders-react-to-hawks-owners-exit-over-em/nhHjN/.

[20] See http://espn.go.com/nba/attendance (Hawks, Hornets, Magic, Pelicans, Heat).

[21] Bruce Levenson, Hawks Owner Bruce Levenson Statement Regarding Team Sale, Atlanta Hawks (Sept. 7, 2014), http://www.nba.com/hawks/hawks-owner-bruce-levenson-statement-regarding-team-sale.

[22] Sawicki, supra.

[23] Karnell, supra.

Medical Care for Prisoners – A Brief Look at the Legal Standard and Current Litigation

Medical Care for Prisoners – A Brief Look at the Legal Standard and Current Litigation

 By Joel Schneider

            The Alabama Department of Corrections (ADOC) has had a particularly bad year in the news: a Federal investigation confirmed rampant sexual abuse and harassment at Tutwiler Correctional Facility,[i] a string of inmate murders at St. Clair Correctional Facility,[ii] occupancy rates of prisons around the state remain close to double their design capacity,[iii] and the few programs that are points of pride for the ADOC are struggling to maintain funding.[iv] Predictably, especially in light of the overcrowding issue, the ADOC has also failed to provide adequate medical care for its inmates and is now facing a class action law suit. Initially filed in June of this year by the Southern Poverty Law Center (SPLC) on behalf of over forty plaintiffs representing the class, the complaint alleges the ADOC has violated the 8th Amendment’s prohibition on “cruel and unusual punishment” (among other constitutional violations) by “failing to provide constitutionally adequate medical care…[and] mental health care.”[v] And although the complaint and the facts alleged make for an intuitively strong case against the ADOC, the plaintiffs and the cause they further face real challenges in maintaining this suit.

The first and most daunting of these challenges is the fairly unforgiving legal standard the plaintiffs must meet in order to prove a violation of the 8th Amendment. The jumping off point is the case Estelle v. Gamble, wherein the Court upheld the logical conclusion that incarceration must include medical care for inmates, as the inmates have no ability to independently seek out medical care, and the denial of which would lead to the “unnecessary and wanton infliction of pain” the 8th Amendment is designed to prevent.[vi] The Court went on to establish a constitutional floor of acceptable levels of medical care, stating that a “deliberate indifference to serious medical needs of” a prisoner would violate the 8th Amendment.[vii] Essentially, the Estelle test is two-fold: the plaintiff must meet the objective requirement of a “serious medical need” and must also meet a subjective requirement by showing the defendant “acted with an attitude of ‘deliberate indifference’ to that…need.”[viii] The Court in Estelle was very clear, however, that the focus of this constitutional protection was not the quality of the medical care – neither mistake nor even medical negligence can form the basis of a claim of “medical mistreatment.”[ix]

The threshold question then for medical mistreatment claims is whether or not the medical need of the inmate is a serious one. A serious medical need, at least in the 11th Circuit, is defined as “one diagnosed by a physician as mandating treatment” or a need that is “so obvious that a lay person” would recognize the need for treatment.[x] Furthermore, the ailment must present a “substantial risk of serious harm” if left unattended.[xi]  Case law has filled in the blanks of the definition with a discernible spectrum of what can and can not be a serious medical need, with broken bones and severe, symptomatic asthma on one end and shaving bumps on the other.[xii] The second prong of the Estelle test is noticeably more complicated. To meet the requirement of deliberate indifference, the plaintiff must satisfy three “components” by showing the defendant had a “subjective knowledge” of the “risk of serious harm,” that he disregarded that risk, and did so in a manner that exceeds negligence.[xiii] The court has held that a variety of scenarios satisfy the the deliberate indifference requirement: where the prison official flat out refuses to address an inmate’s serious medical need, delays the treatment, (although the court tempers this by noting the reason for the delay and extent of need are relevant), offers treatment “so grossly inadequate” or “cursory as to amount to no treatment at all,” or where the prison official chooses a “less efficacious” form of treatment.[xiv]

A brief look at the complaint filed by the SPLC yields the impression that the plaintiffs have satisfied the first prong of the Estelle test. Embedded in the formal language of the complaint are stories of inmates who are grossly under-treated or never treated at all. The subjective requirement, on the other hand, is likely to be the more intensely litigated issue in the SPLC suit. However, given the systemic nature of the ADOC’s failure to provide adequate medical care as alleged in the complaint, it seems, at the very least, plausible the SPLC could win on this issue as well.

This possible outcome introduces the second, more puzzling challenge the class of plaintiffs (and any interested Alabamian) must face: even if the lawsuit is won, will the relief be effectual? The SPLC complaint states the plaintiffs seek a declaratory judgment and injunctive relief. It has been roughly forty years since a class of Alabama prisoners has sought the same relief on the same grounds in Newman v. State of Ala., a case in which the plaintiffs did prevail.[xv] The Court of Appeals upheld the district court’s grant of injunctive relief and extensive decree aimed at remedying the constitutional violation,[xvi] and that injunction remained in effect for a decade.[xvii] Nevertheless, a generation later, the prisoners of the State of Alabama are again required to turn to the courts in an effort to secure their right to adequate medical care. If the court awards an injunction in the current lawsuit, what will stop the Alabama Department of Corrections from returning to its unconstitutional ways?

[i]     Kim Severson, Troubles at Women’s Prison Test Alabama, The New York Times (March 1, 2014), http://www.nytimes.com/2014/03/02/us/troubles-at-womens-prison-test-alabama.html?_r=0

[ii]                  Casey Toner, Prison reform group calls for new St. Clair warden, citing third inmate homicide in 10 months, al.com (June 12, 2014), http://www.al.com/news/index.ssf/2014/06/top_alabama_prison_reform_grou.html

[iii]   The Research and Planning Div., Monthly Statistical Report for June 2014, Alabama Department of Corrections (June 6, 2014), http://www.doc.state.al.us/docs/MonthlyRpts/2014-06.pdf

[iv]   Dan Carsen, Budget Cuts Threaten a Unique Alabama Prison Program, NPR (August 23, 2014), http://www.npr.org/2014/08/23/342249911/budget-cuts-threaten-a-unique-alabama-prison-education-program

[v]    First Amended Complaint at 2, Joshua Dunn, et al. v. Kim Thomas, et al, Civil Action No. 2:14-cv-00601-WKW-TFM, available at http://www.splcenter.org/sites/default/files/downloads/case/first_amended_complaint.pdf

[vi]                 Estelle v. Gamble, 429 U.S. 97, 103 (1976)

[vii]  Id.

[viii] Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003)

[ix]   429 U.S. 97 at 105-106.

[x]    Farrow, 320 F.3d at 1243

[xi]   Id.

[xii]  Id. at n.14.

[xiii] McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)

[xiv] Id.

[xv]  Newman v. State of Ala., 349 F. Supp. 278, 286 (M.D. Ala. 1972) vacated in part, 522 F.2d 71 (5th Cir. 1975) and aff’d in part, 503 F.2d 1320 (5th Cir. 1974)

[xvi] Newman v. State of Ala., 522 F.2d 71 (5th Cir. 1975)

[xvii]         Sterling v. Riley, 2:10-CV-117-TMH, 2010 WL 921067 (M.D. Ala. Mar. 11, 2010)

Donald Sterling’s Views on Race May Not be the Most Disturbing Thing About the Recent Clippers Scandal

Donald Sterling’s Views on Race May Not be the Most Disturbing Thing About the Recent Clippers Scandal

 By Jack O’Dowd

            In late April reports surfaced that Donald Sterling, the owner of the Los Angeles Clippers basketball team, had been taped making disparaging remarks about black people. The tape reflects a conversation had by Sterling and his girlfriend V. Stiviano. During the conversation Sterling relates to his girlfriend that he is upset that she is posting pictures of herself with black people onto her Instragram account. He says, “In your lousy f**ing Instagrams, you don’t have to have yourself with — walking with black people.”[1] The black person who was the subject of the remark was none other than NBA great Magic Johnson.

As if that weren’t bad enough, Stiviano continued to goad Sterling into making more objectionable comments about Johnson. Stiviano told Sterling that Magic Johnson was someone she admired. Sterling responded “I think the fact that you admire [Magic] — I’ve known him well, and he should be admired — and I’m just saying that it’s too bad you can’t admire him privately. And during your entire f***ing, your whole life, admire him — bring him here, feed him, f**k him, I don’t care. You can do anything. But don’t put him on an Instagram for the world to see so they have to call me. And don’t bring him to my games.”[2]  Stiviano was apparently the subject of a lawsuit filed by Sterling’s wife, and she vowed revenge.[3] Regardless of Stiviano’s motivations, it is shocking that an owner in a league comprised almost entirely of black athletes could have these views about blacks.

In the wake of the statements numerous players voiced their strong disapproval of Sterling and his comments. For instance, LeBron James, probably the most famous current player in the NBA, said he may not have played had his team’s owner made those remarks and that “There’s no room for Donald Sterling in the NBA — there is no room for him.”[4] The players on Sterling’s Clippers team staged a silent protest by wearing their warm-up uniforms inside-out so that the Clippers logo was not visible.[5] Similar acts showing disapproval were made by other teams around the league.

The league took drastic measures against Sterling, strongly condemning his remarks. The league’s commissioner, Adam Silver, empowered by a provision in the league’s constitution giving the commissioner nearly unbridled authority, handed down a harsh punishment. The specific provision reads “Where a situation arises which is not covered in the Constitution and By-Laws, the Commissioner shall have the authority to make such decision, including the imposition of a penalty, as in his judgment shall be in the best interests of the Association.” Pursuant to this, Silver banned the embattled owner from the league, stripping Sterling of any authority or management relationship with his team and barring him from going to games. Further, Silver imposed a $2,500,000 fine, the maximum authorized by the NBA constitution.

Sterling, who still owns the team despite not being able to associate with the league in any way, may also be stripped of his ownership interest in the Clippers. Silver said he would urge the other owners to force a sale of the Clippers. The league’s constitution provides for such a sale if three-fourths of the other owners vote to kick out an owner.[6] More specifically, the NBA constitution provides that an owner may be forced to sell his team for engaging in conduct such as gambling on games, fixing games, and the like. Another provision says an ouster may result should an owner “fail or refuse to fulfill its contractual obligations . . . in such a way as to affect the Association or its Members adversely.” [7] Thus, it does not appear that the NBA’s constitution directly provides for a forced sale in this situation.

Because the NBA’s constitution, a contract between owners, does not seem to provide for a forced sale in this instance, I would be troubled should Sterling be forced to sell this sizable asset. What I really find troubling is that private conversations made in confidence to his girlfriend could be the reason that he would lose his basketball team. I am not alone in this view. Another NBA great Kareem Adbul-Jabbar wrote in an op-ed in Time Magazine, “Shouldn’t we be equally angered by the fact that his private, intimate conversation was taped and then leaked to the media? Didn’t we just call to task the NSA for intruding into American citizen’s privacy in such an un-American way?”[8]

Further, regardless of whether he is forced to sell, I am troubled by the “mob-rule” mentality that characterizes the opposition to Sterling ownership. As mentioned earlier, notable NBA players, cultural figures, and even President Barack Obama have condemned Sterling, and many have called for him to divest his ownership interest in the Clippers. However, public outcry should not be enough to force someone to sell his property. If people want to boycott Clippers games, so be it. But forcing a sale of a multi-million dollar basketball team based on private comments coaxed out of an old man by his spiteful young girlfriend is bad policy. Sterling should reserve the right to “go down with his ship” and hold onto his team regardless of the financial consequences. The loss should be his to bear.

Finally, I think it would be unwise for owners to force a sale here. Who knows what skeletons they may have in their own closets? Who knows what future technologies may make those skeletons known to the public? It may be a dangerous precedent for the owners to decide that private statements, no matter how hateful or moronic, should be used against an owner to force him to sell his team. Rather, the owner should be free to hang onto the team and bear the financial cost. While I don’t think any owner would actually hold onto a team that is being boycotted, I believe he should at least have the right to.

 

[1] Kevin Conlon, NBA Team Owner in Hot Water Over Racist Comments Attributed to Him, CNN (April 27, 2014), http://edition.cnn.com/2014/04/26/us/nba-team-owner-alleged-racist-remarks/

[2] Id.

[3] V. Stiviano, Rochelle Sterling legal battle at heart of scandal, LA Times (April 29, 2014), http://www.latimes.com/local/lanow/la-me-ln-v-stiviano-rochelle-sterling-donald-lawsuit-20140429-story.html

[4] Shaundel Richardson, LeBron on Donald Sterling: “There’s no room for him” Sun Sentinel (April 27, 2014), http://articles.sun-sentinel.com/2014-04-27/sports/fl-charlotte-bobcats-news-0427-20140426_1_lebron-james-donald-sterling-los-angeles-clippers.

[5] Bruce Golding, Clippers stage silent protest over Donald Sterling’s racist rant, New York Post (April 28, 2014)http://nypost.com/2014/04/28/clippers-stage-silent-protest-over-donald-sterlings-racist-rant/.

[6] Jeff Zilgitt, Can Donald Sterling best thorough NBA constitution?USA Today (May 2, 2014) http://www.usatoday.com/story/sports/nba/2014/05/02/donald-sterling-lifetime-ban-constitution-bylaws-owners-los-angeles-clippers-forced-sale/8626843/.

[7] Id.

[8] Melissa Rohlin, Kareem Abdul-Jabbar offers a different perspective on Donald Sterling, LA Times (May 1, 2014), http://www.latimes.com/sports/sportsnow/la-sp-sn-kareem-abdul-jabbar-donald-sterling-20140501-story.html.

Warrantless Cellphone Searches: Ripe for Review

Warrantless Cellphone Searches: Ripe for Review

 By Robert Peel

I. Introduction          

The Fourth Amendment to the United States Constitution reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[i] While courts have generally held that the Fourth Amendment protects privacy rights when an individual is in a situation that he would legitimately have an expectation of privacy,[ii] recent events such as the terrorist attacks of September 11, 2001, technological advances, and the failure of the United States’ laws and the judicial system have contributed to the erosion of the Fourth Amendment right to privacy.[iii]

Before 9/11, a legitimate expectation of privacy was defined when a person genuinely believed a place to be private and if a reasonable person would expect the same location under the same circumstances to be private as well.[iv] However, a person in a public space would have a reduced expectation of privacy, even when visiting a person in a jail, if the purpose of the monitoring of the conversation was reasonably related to prison security.[v] Although the same privacy rules still nominally apply today, The USA PATRIOT Act and several United States Supreme Court decisions such as Clapper v. Amnesty International have dramatically reduced the expectation of privacy of individual citizens in the United States.[vi] More recently, the revelations by Edward Snowden, the National Security Agency whistleblower, have cast doubts on the realistic expectation of privacy in today’s world. [vii]

II. An Overview of the History of Electronic Surveillance

Two main types of electronic surveillance exist, wiretapping and electronic surveillance.[viii] The first type of electronic surveillance is the traditional wiretap, where a wire line of communication such as a phone line or cable is “tapped” and a voice transmission is captured.[ix] The second type, the broader electronic surveillance, is when data, information, or sounds are transferred electronically from one device to another and are intercepted, including communications such as emails.[x] Law enforcement is required to obtain a warrant under the Fourth Amendment because of the similarity of electronic surveillance and wiretaps to search and seizures.[xi] Congress has attempted to keep pace with the electronic surveillance by passing several laws that grant law enforcement authorities the power to enter homes to “bug” them while also trying to protect the right of individuals.[xii] One such law is the Electronic Communications Privacy Act (ECPA), which was later updated with an addition called The Communications Assistance for Law Enforcement Act of 2006.[xiii]

In June 2013, NSA whistleblower Edward Snowden revealed that the NSA had been collecting phone records and Internet records of American citizens as well as allied foreign leaders, most notably German Chancellor Angela Merkel.[xiv],[xv] Also alarming for privacy advocates was the fact that major Internet and telecommunications companies including Apple, Microsoft, Facebook, Twitter, Verizon, and AT&T were complicit in collecting this information for the NSA.[xvi] As recently as January 17, 2014, President Obama sought to alleviate the fears of the American people with a speech outlining new restrictions on the use and collection of phone and Internet records by the NSA, but generally defended the practice.[xvii] Both critics and proponents of the NSA program like to point out that only a few arrests have been made as result of the surveillance with proponents of the surveillance claiming that this shows that the information is not being abused, with critics of the program saying that since the surveillance is not even very useful it should be discontinued.[xviii]

Additionally, Congress passed the Foreign Intelligence Surveillance Act (FISA), which lowered the evidentiary threshold needed for surveillance for foreign intelligence gathering, as well as Americans accused of spying.[xix] After the terrorist attacks of 9/11, Congress passed the USA PATRIOT Act, which greatly broadened the authority of law enforcement agencies to fight terrorism, but also limited the privacy rights of individuals in the United States.[xx] In 2005, news organizations reported that the National Security Agency began intercepting phone calls and Internet communications of American citizens without warrants in 2001 following the terrorist attacks of 9/11.[xxi]

III. Circuit Court Decisions on Privacy of Electronic Surveillance

While federal courts have continually expanded the tools available to law enforcement agencies for catching criminals (including some that are arguably illegal),[xxii] there have been some noticeable victories for privacy advocates.[xxiii] In U.S. v. Wurie, the defendant was accused and convicted of trying to sell cocaine, in part from electronic data seized from his cell phone after he was lawfully arrested.[xxiv] After he was arrested, the defendant’s phone kept ringing with the same contact showing on the screen.[xxv] After going through the call log, the police officers found the address associated with the phone number, went to the address, and found a large amount of cocaine, large enough for distribution which allowed the defendant to be convicted for a higher crime.[xxvi] Though the First Circuit Court of Appeals ruled that the police officers had the right to seize the cell phone, the court in a split decision held that the police did not have the right to search the cell phone without a warrant.[xxvii] The First Circuit’s analysis stems largely from the fact that a modern cell phone is essentially like a computer today because of the large storage capacity and multifunctional uses.[xxviii]

While First Circuit agreed that “search-incident-to-arrest” is a valid doctrine for specific limited searches, because of the breadth of data on a cell phone, the Fourth Amendment precludes such a search because the it would be a general search.[xxix] Additionally, any exception, such as the need to preserve evidence that the defendant could destroy is irrelevant in a case where the police seize a cell phone, because the police would have time to obtain a warrant to search the item before the defendant could access the seized item and destroy the evidence.[xxx] The court also did not fear the “remote wipe” technology as they had mentioned technology that could easily prevent, or at least alleviate the problems caused by “remote wipe” apps including solutions as easy as turning off the phone until the warrant could be obtained and the memory copied.[xxxi]

While the government only used the cell phone to search the call logs, the government admitted in their case that they would be able to commit a more general search, and further that they could search any seized mobile device including tablets, iPads®, and laptops.[xxxii] This overly broad general search requires search warrant pursuant to the Fourth Amendment because cell phones contain so much information, including personal information, “photographs, videos, written and audio (text, email, and voicemail), contacts, calendar appointments, web search and browsing history, purchases, and financial and medical records.”[xxxiii] Furthermore, the court reasoned, a phone search could even conceivably become a house search with the various phone applications and programs that allow a person to view home security cameras through their mobile phone screen.[xxxiv]

The First Circuit seemed to fear in its ruling that even cracking the door for even minor infractions of privacy would lead to a deluge of information which would infringe upon the rights of individuals.[xxxv] The First Circuit was prepared to err on the side of individual liberty at the expense of law enforcement.[xxxvi] Additionally, the court believed that the amount of data obtainable from a phone is far greater than the amount of data that one could store in a wallet, briefcase, or address book, which are the traditional containers that the government has been able to invoke in the search-incident-to arrest doctrine.[xxxvii]

Despite the apparent gains for privacy advocates for electronic surveillance with the First Circuit’s ruling, the First Circuit’s ruling appears to be the minority position with the Fourth, Fifth, Seventh, and Tenth Circuits, all allowing warrantless cellphone searches in several unanimous opinions.[xxxviii] In Judge Posner’s opinion for the Seventh Circuit in U.S. v. Flores-Lopez, he analogized the looking through a seized cell phone to the opening of a diary to verify its owner’s name and address which has been shown to be a valid use of the warrantless search-incident-to-arrest doctrine.[xxxix] In Flores-Lopez, the defendant was convicted for large-scale crimes involving methamphetamine, and part of the evidence that was used for the conviction came from when the police officer searched a cell phone from the defendant to discover the defendant’s cell phone number so that law enforcement could subpoena telephone records to find more evidence from the crime.[xl]

IV. The Supreme Court is currently deliberating on the issue

            Given the circuit split and the uproar over warrantless surveillance in general, the Supreme Court has wisely decided that the issue is ripe for review.[xli] Many have argued that the founding fathers would have never considered such an expansive view of the Fourth Amendment.[xlii] Several of the conservative Justices, including Chief Justice John Roberts, seemed to wonder what the value of the obtaining a warrant would be since the warrant would likely be granted. Despite the need for a fast response for law officials, it is scary to think that the Chief Justice may not believe that a warrant is needed to search such an expansive item. However, the liberal justices, including Sonia Sotamayor, seemed to be more willing to protect the public from such unreasonable searches.[xliii] Interestingly, Antonin Scalia, usually a bastion of the right, seemed to be willing to at least search for a moderate ground in the cell phone searches.[xliv]  He may be the one who actually casts the deciding vote, instead of the usual Anthony Kennedy, and the Supreme Court will likely make its decision some time in early June.  However, despite the oral arguments, it is often wise not to read too much into what the Justices ask during the oral portion of the case, as that does not necessarily predict how they will vote. Hopefully, when the Supreme Court decides the outcome, the Justices will choose to protect the right of American citizens from unreasonable searches of potentially intimate property as was guaranteed by the Bill of Rights.

 

 

[i] U.S. Const. amend. IV

[ii] Electronic Surveillance, Legal Information Institute (Oct. 21, 2013, 3:30 PM), http://www.law.cornell.edu/wex/electronic_surveillance

[iii]Hina Hamshi, Alex Abdo, Privacy and Surveillance Post-9/11, American Bar Association (Oct. 21, 2013, 4:00 PM), http://www.americanbar.org/publications/human_rights_magazine_home/human_rights_vol38_2011/human_rights_winter2011/privacy_and_surveillance_post_9-11.html

[iv]Electronic Surveillance, supra note 2

[v]Id.

[vi]Hamshi, supra note 3

[vii]Doyle Murphy, Edward Snowden says NSA spying worse than Orwell’s ‘1984’ in his ‘Alternative Christmas Message’, New York Daily News, Dec. 25, 2013, available at http://www.nydailynews.com/news/world/edward-snowden-nsa-spying-worse-orwell-nineteen-eighty-four-article-1.1558183

[viii]Electronic Surveillance, supra note 2

[ix]Id.

[x]Id.

[xi]Id.

[xii]Id.

[xiii]Id.

[xiv]The NSA Files, The Guardian (Dec. 20, 2013, 1:00 PM), http://www.theguardian.com/world/the-nsa-files

[xv]Paul Owen, NSA files – Edward Snowden’s letter to Angela Merkel, The Guardian, Nov. 1, 2013, available at http://www.theguardian.com/world/2013/nov/01/nsa-files-edward-snowdens-letter-to-angela-merkel-live-coverage

[xvi]Kevin Bankston, Bad Connection, Slate, Nov. 21, 2013, available at http://www.slate.com/articles/technology/future_tense/2013/11/telcos_like_verizon_and_at_t_are_silent_on_nsa_surveillance.html

[xvii]Transcript of President Obama’s Jan. 17 speech on NSA reforms, The Washington Post, Jan. 17, 2014, available at http://www.washingtonpost.com/politics/full-text-of-president-obamas-jan-17-speech-on-nsa-reforms/2014/01/17/fa33590a-7f8c-11e3-9556-4a4bf7bcbd84_story.html

[xviii]Ed Pilkington, Nicholas Watt, NSA surveillance played little role in foiling terror plots, experts say, The Guardian, Jun. 12, 2013, available at http://www.theguardian.com/world/2013/jun/12/nsa-surveillance-data-terror-attack

[xix] Electronic Surveillance, supra note 2

[xx] Id.; Hamshi, supra note 3

[xxi] NSA Spying on Americans, Electronic Frontier Foundation (Dec. 20, 2013, 1:30 PM), https://www.eff.org/nsa-spying

[xxii]See Hamshi, supra note 3

[xxiii]United States v. Wurie, 728 F.3d 1, 1-2 (1st. Cir. 2013)

[xxiv] Id.

[xxv]Id.

[xxvi]Id.

[xxvii]Id. at 14.

[xxviii]Id. at 7-8.

[xxix]Id. at 8-9, 13.

[xxx]Id. at 11-12

[xxxi]Id.

[xxxii]Id. at 8-9, 13.

[xxxiii]Id.

[xxxiv]Id.

[xxxv]Id.

[xxxvi] See generally id.

[xxxvii]Id. at 9.

[xxxviii]Id. at 16.

[xxxix]United States v. Flores-Lopez, 670 F.3d 803, 805 (7th Cir. 2012)

[xl]Id. at 803-804

[xli] See Nina Totenberg, Supreme Court Considers Limits on Warrantless Cellphone Searches, NPR (Apr. 29, 2014, 4:03 PM), http://www.npr.org/2014/04/29/308068253/supreme-court-considers-where-lines-drawn-in-cell-phone-searches

[xlii] Id.

[xliii] Id.

[xliv] Id.

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