Restriction on publishing officials’ home addresses blocked on First Amendment grounds

(Bigstock)

California Government Code § 6254.21 restricts publishing the home addresses and telephone numbers of certain California government officials. If someone publishes this information, “those officials may demand that it be removed,” by sending a letter “describ[ing] the threat or fear for safety the official feels personally or for his or her family who reside at the official’s home address.”

Anyone who receives such a demand must remove it within 48 hours, must takes steps to ensure it is not reposted, and may not communicate the information to anyone through any medium…. If [a] court finds that the individual who posted the information online failed to comply timely with the official’s demand, [and the official therefore sues to enforce the prohibition,] … then the court must award attorney’s fees to the official ….

Yesterday, a federal district court (Publius v. Boyer-Vine) issued a preliminary injunction blocking the enforcement of this law. (Note that Brad Benbrook, Steve Duvernay, and I were hired by the Firearms Policy Coalition to be the lawyers for the plaintiffs, so I’m reporting on this in my capacity as a lawyer, not as an academic.) The court concluded that the law was likely unconstitutional, which is one aspect of the preliminary injunction inquiry. But its reasoning strongly suggested that the judge thought that the law was actually unconstitutional, and wasn’t just making a judgment about probabilities based on uncertain facts.

There are a lot of interesting elements to the case, but in this post I wanted to pass along the court’s First Amendment analysis; I hope to post about some other aspects of the case soon. (The quotes above and below all come from the court’s decision.)

First, the facts:

On July 1, 2016, California Governor Jerry Brown signed several gun control bills into law. One of those bills established a database tracking all ammunition purchases in California. The database includes the driver’s license information, residential address and telephone number, and date of birth for anyone who purchases or transfers ammunition in California. Publius [a pseudonym] maintains a political blog under the name, “The Real Write Winger.” On July 5, 2016, in response to the California legislature’s gun control legislation, he posted the following blog entry, titled “Tyrants to be registered with California gun owners”:

If you’re a gun owner in California, the government knows where you live. With the recent anti gun, anti Liberty bills passed by the legisexuals in the State Capitol and signed into law by our senile communist governor, isn’t it about time to register these tyrants with gun owners?

Compiled below is the names, home addresses, and home phone numbers of all the legislators who decided to make you a criminal if you don’t abide by their dictates. “Isn’t that dangerous, what if something bad happens to them by making that information public?” First, all this information was already public; it’s just now in one convenient location. Second, it’s no more dangerous than, say, these tyrants making it possible for free men and women to have government guns pointed at them while they’re hauled away to jail and prosecuted for the crime of exercising their rights and Liberty.

These tyrants are no longer going to be insulated from us. They used their power we entrusted them with to exercise violence against us if we don’t give up our rights and Liberty. This common sense tyrant registration addresses this public safety hazard by giving the public the knowledge of who and where these tyrants are in case they wish to use their power for violence again.

So below is the current tyrant registry. These are the people who voted to send you to prison if you exercise your rights and liberties. This will be a constantly updated list depending on future votes, and if you see a missing address or one that needs updating, please feel free to contact me. And please share this with every California gun owner you know.

To be fair, the only way for a tyrant to have their name removed from the tyrant registry is to pass laws which repeal the laws that got them added to the list, or upon the tyrant’s death. Otherwise, it is a permanent list, even after the tyrant leaves office. The people will retain this information and have access to it indefinitely.

Through searching public records for free on zabasearch.com, Publius compiled the names, home addresses, and phone numbers of 40 California legislature members who had voted in favor of the gun control measures. He then posted that information on his blog. In the days that followed, several legislators received threatening phone calls and social media messages that appeared to have been prompted by Publius’s blog entry. Specifically, there were reports from at least four different State Senators that either they or one of their family members had received a phone call at their residence from an unidentified male speaker saying, “I know your address and don’t you wish you knew who I am?”

One of the calls was received by the step-son of a Senator who was alone in the home while the Senator and his wife were away. At least two other Senators had reported receiving (and forwarded to the [California Senate] Sergeant-at-Arms) threatening social media messages; one warned: “You have no right to pass laws to take my constitutional rights away. (2nd & 1st amendments) Let alone pass a bill that makes you exempt from the very same laws. I’ve have [sic] shared your home address in the Internet. The People will be acting on this.”

The Senate Sergeant-at-Arms sent the Office “a request to seek the removal of the legislators’ home addresses from the internet pursuant to section 6254.21©.” In response, on July 8, 2016, Deputy Legislative Counsel Kathryn Londenberg sent a written demand to WordPress.com, who hosted Plaintiff’s blog. The demand stated:

My office represents the California State Legislature. It has come to our attention that the home addresses of 14 Senators and 26 Assembly Members have been publically posted on an Internet Web site hosted by you without the permission of these elected officials. Specifically, the user on your platform by the name of “therealwritewinger” posted the home addresses of these elected officials on his or her Web site ….This letter constitutes a written demand under subdivision © of Section 6254.21 of the Government Code that you remove these home addresses from public display on that Web site, and to take steps to ensure that these home addresses are not reposted on that Web site, a subsidiary Web site, or any other Web site maintained or administered by WordPress.com or over which WordPress.com exercises control. Publicly displaying elected officials’ home addresses on the Internet represents a grave risk to the safety of these elected officials. On the “therealwritewinger” blog site, the user describes the listed legislators as “tyrants,” encourages readers to share the legislators’ home addresses with other gun owners, and threatens that the home addresses will not be removed unless the legislator repeals specified gun laws or “upon the tyrant’s death.” The Senators and Assembly Members whose home addresses are listed on this Web site fear that the public display of their addresses on the Internet will subject them to threats and acts of violence at their homes. To comply with the law, please remove the home addresses of these elected officials from your Web site no later than 48 hours after your receipt of this letter. You are also required to continue to ensure that this information is not reposted on that Web site, any subsidiary Web site, or any other Web site maintained by you …. If these home addresses are not removed from this Web site in a timely manner, we reserve the right to file an action seeking injunctive relief, as well as associated court costs and attorney’s fees.

WordPress immediately removed Publius’s entire blog entry….

Hoskins, a resident of Massachusetts, owns and moderates the website Northeastshooters.com, “a popular New England online forum for discussing firearms issues and shooting sports activities.”… One commenter, under the name “headednorth,” reposted Publius’s compiled list of names, addresses, and home addresses of the California legislators. Legislative Counsel Londenberg immediately emailed Hoskins, noted that headednorth had reposted the legislators’ personal information removed from Publius’s blog on Northeastshooters.com, and demanded that Hoskins remove it immediately via a takedown demand that was “materially identical” to the one sent to WordPress. Hoskins complied.

Now the court’s First Amendment reasoning. First, the court concluded that the law was content-based:

Section 6254.21©(1)(A) states, “[n]o person, business, or association shall publicly post or publicly display on the Internet the home address or telephone number of any elected or appointed [California] official” if the official makes a written demand that his or her personal contact information be removed. An enforcing official could not determine whether § 6254.21©(1) applies to particular speech without determining if (1) the speech contains a home address and/or phone number of (2) a covered official.

The statute is therefore content-based on its face: it applies only to speech that contains certain content — the “home address or telephone number of any elected or appointed [California] official.” See Reed v. Town of Gilbert (2015) (“Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” (citations omitted)); see also S.O.C., Inc. v. Cty. of Clark (9th Cir. 1998) (holding that regulations that require officials to examine content of speech to determine whether regulation applies are content-based (collecting cases)).

Then the court concluded that the speech forbidden by the law was speech on “a matter of public significance” (often also labeled speech on a matter of public concern):

For decades, the Supreme Court has broadly held that “[p]ublic records by their very nature are of interest to those connected with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media.” Thus, several cases demonstrate that the First Amendment protects the right to publish highly personal information of private individuals, such as the names of rape victims and juveniles involved in legal proceedings, when they relate to matters of public concern. [Footnote: See, e.g., Florida Star B.J.F. (1989).]

Viewed in isolation, the legislators’ home address and phone numbers may not, in and of themselves, constitute “a matter of public significance.” But when considered in the specific context of Plaintiffs’ speech — political protest, which is “core political speech,” with First Amendment protection “at its zenith” — the information takes on new meaning.

Publius searched publicly available documents and compiled, and headednorth reposted, the legislators’ personal information specifically in response to legislation that required the government to maintain a database with the personal information of individuals who buy firearms and ammunition in California. When viewed in that context of political speech, the legislators’ personal information becomes a matter of public concern…. “Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community[.]” … [S]ee also Org. for a Better Austin v. Keefe (1971) (holding injunction on dispersing pamphlets with realtor’s home phone number and urging recipients to call him to urge certain political stance was prior restraint that violated First Amendment).

Four cases on which Plaintiffs primarily rely support this proposition well: Florida Star; Brayshaw v. City of Tallahassee (N.D. Fla. 2010); Sheehan v. Gregoire (W.D. Wash. 2003); and Ostergren v. Cuccinelli (4th Cir. 2010).

Florida Star involved a challenge to a Florida statute (“§ 794.03”) that made “it unlawful to ‘print, publish, or broadcast … in any instrument of mass communication’ the name of the victim of a sexual offense.” A sheriff’s department investigating a reported rape “prepared a report, which identified [the victim] by her full name, and placed it in the Department’s press room,” which was open to the public. A reporter for The Florida Star “copied the press report verbatim, including [the victim’s] full name,” and subsequently published her full name in an article about the reported crime and the department’s investigation of it….

The Supreme Court … held the First Amendment prohibited imposing liability on The Florida Star for publishing the victim’s name under the circumstances of the case. The Court held that “the article generally, as opposed to the specific identity contained within it, involved a matter of paramount public import: the commission, and investigation, of a violent crime which had been reported to authorities.” The Court therefore concluded that, under its precedent, the article concerned “a matter of public significance.”

In Brayshaw, the plaintiff truthfully posted the personal information of a peace officer, including her personal address, phone number, and email, all of which was publicly available. The plaintiff was charged with a misdemeanor for violating a Florida statute that provided:

Any person who shall maliciously, with intent to obstruct the due execution of the law or with the intent to intimidate, hinder, or interrupt any law enforcement officer in the legal performance of his or her duties, publish or disseminate the residence address or telephone number of any law enforcement officer while designating the officer as such, without authorization of the agency which employs the officer, shall be guilty of a misdemeanor of the first degree.

The court rather summarily rejected the government’s argument that the plaintiff’s speech was unprotected because it was not a matter of public significance. The court found that the issue of police accountability was “of legitimate public interest,” and the “publication of truthful personal information about police officers is linked” to that interest “through aiding in achieving service of process, researching criminal history of officers, organizing lawful pickets, and other peaceful and lawful forms of civic involvement that publicize the issue.”

Sheehan involved an overbreadth challenge to a Washington statute that provided:

A person or organization shall not, with the intent to harm or intimidate, sell, trade, give, publish, distribute, or otherwise release the residential address, residential telephone number, birthdate, or social security number of any law enforcement-related, corrections officer-related, or court-related employee or volunteer, or someone with a similar name, and categorize them as such, without the express written permission of the employee or volunteer unless specifically exempted by law or court order.

The plaintiff removed from his website the personal information of numerous officials covered by the statute, then challenged it as overbroad. As in Brayshaw, the court found the officials’ personal information to be a matter of public concern because it was related to the issue of police accountability and could be relevant “to achieve service of process, research criminal history, and to ‘organize an informational picket [at individual officers’ homes] or other lawful forms of civic involvement to force accountability.’”

Ostergren, a case Plaintiffs characterize as “closely analogous” to this one, is particularly illustrative here. In that case, the plaintiff brought an as-applied challenge to a Virginia statute that prohibited “[i]ntentionally communicat[ing] another individual’s social security number (‘SSN’) to the general public.” “Calling attention to Virginia’s practice of placing land records on the Internet without first redacting SSNs, [the plaintiff] displayed copies of Virginia land records containing unredacted SSNs on her website.” By doing so, she sought “to publicize her message that governments are mishandling SSNs and generate pressure for reform.” The information the plaintiff posted on her website was publicly available for a nominal fee, but her website made the public records “more accessible to the public than they [we]re through Virginia’s [records] system.”

Before she could be prosecuted for posting the SSNs on her website, the plaintiff challenged the Virginia statute as applied to her website on First Amendment grounds. As a threshold matter, the Fourth Circuit rejected the government’s position that unredacted SSNs are entirely unprotected speech under the First Amendment. The court reasoned that, in the plaintiff’s case, the unredacted SSNs “are integral to her message,” and, in fact, “they are her message” because her “[d]isplaying them proves Virginia’s failure to safeguard private information and powerfully demonstrates why Virginia citizens should be concerned.” Although the plaintiff could have redacted the SSNs, the First Amendment protected the plaintiff’s “freedom to decide how her message should be communicated.” The Fourth Circuit therefore concluded that the plaintiff’s speech “plainly concern[ed] a matter of public significance … because displaying the contents of public records and criticizing Virginia’s release of private information convey political messages that concern the public.

Florida Star, Brayshaw, Sheehan, and Ostergren thus show that highly personal information has public significance when inextricably associated with political speech. That principle applies here.

Plaintiffs oppose, among other things, California legislation that requires the creation and maintenance of a database run by the California Department of Justice that compiles the residential address and telephone number of anyone who purchases or transfers firearms ammunition in California. Plaintiffs’ means of protesting the legislation is by compiling their own “database” of the legislators’ residential addresses and phone numbers. Like the plaintiff in Ostergren, that information is not just “integral to [Plaintiffs’] message,” it is their message.

At its core, Plaintiffs’ speech is a form of political protest. The Court therefore finds that the legislators’ home address and telephone number touch on matters of public concern in the context of Plaintiffs’ speech.

And the court then held that the law failed the “strict scrutiny” applicable to such content-based laws:

“As a general matter, ‘state action to punish the publication of truthful information seldom can satisfy constitutional standards.’” Bartnicki v. Vopper (2001). “More specifically, [the Supreme Court] has repeatedly held that ‘if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need … of the highest order.’” [Footnote: Individuals who use the internet to disseminate their speech, such as Plaintiffs, are entitled to full First Amendment protections. Cases that concern other forms of media (e.g., newspapers) therefore apply with full force to speech on the internet.]

a. The legislators’ personal information is a matter of public significance

b. § 6254.21© is not narrowly tailored

There is no dispute that Plaintiffs lawfully obtained and truthfully published information that was readily available online. When lawfully obtained, the truthful publication of that information falls within the First Amendment’s ambit. And as [the cases above] demonstrate, when an individual’s personal information is relevant to issues of public significance, its truthful dissemination — particularly when already in the public domain and lawfully obtained — triggers exacting First Amendment scrutiny under Supreme Court precedent.

Specifically, Defendant does not suggest Publius’s speech was a threat or otherwise not protected by the First Amendment. The Court is not suggesting that the truthful dissemination of an individual’s personal information is always entitled to First Amendment protections under any circumstance, even if it is already in the public domain…. [But a law restricting such speech must pass strict scrutiny.] …

The Court assumes that the interest underlying § 6254.21© — protecting the personal safety of covered officials and their families — is a state interest of the highest order. But the Court need not decide whether it is because the statute is not narrowly tailored to further that interest. The logic of Florida Star, Ostergren, Brayshaw, and Sheehan applies here, and shows that there are a number of reasons why § 6254.21© is not narrowly tailored.

First, § 6254.21© makes no attempt to prohibit or prevent true threats. Under the statute, a covered official need only subjectively fear for his or her safety (or that of his or her family) due to his or her home address or telephone number being online. To make a compliant request that the information be removed, the official need only send the publisher of the information a “statement describing a threat or fear for the safety of that official or of any person residing at the official’s home address.” If the official does so, the recipient must comply or face a lawsuit. An official can therefore make an effective takedown demand by informing someone who has posted the official’s home address or phone number that doing so has made the official fear for his or her safety.

On its face, § 6254.21©(1) does not require that the threat be credible or that a third-party review whether the official’s request is well-founded. The statute makes no distinction between those who publish a covered official’s home address or phone number online for wholly lawful reasons and those who do so for wholly unlawful reasons. So long as an official subjectively feels threatened, the official may make a takedown request under § 6254.21©(1). And if the publisher fails to comply with an official’s takedown request within 48 hours, then he or she has violated § 6254.21©(1), which will entitle the official to bring suit in which attorney’s fees would be awarded automatically to the official. This lack of case-by-case oversight and effective per se liability suggests that § 6254.21© is not narrowly tailored….

Section § 6254.21©(1) is not narrowly tailored for the additional reason that it does not differentiate between acts that “make public” previously private information and those that “make public” information that is already publicly available. There is no dispute that the information Publius compiled and posted, and a member of Hoskins’s forum re-posted, was publicly available and readily accessible online. “[P]unishing [Plaintiffs] for [their] dissemination of information which is already publicly available is relatively unlikely to advance the interests in the service of which the State seeks to act.” When “the government has failed to police itself in disseminating information, it is clear … that the imposition of damages against the press for its subsequent publication can hardly be said to be a narrowly tailored means” to further the state’s interests. Because the information Plaintiffs published came from freely available public records, § 6252.21©(1) is not narrowly tailored to protecting the safety of covered officials and their families.

Third, § 6254.21©(1) is underinclusive. See Florida Star (holding that statute was not narrowly tailored in part because it was underinclusive on its face). A statute is underinclusive when it affects “too little speech,” such that there are “doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.” Plaintiffs also point out that the voter registration affidavit of any voter, which includes his or her “home address, telephone number, [and] email number” “[s]hall be provided with respect to any voter … to any person for election, scholarly, journalistic, or political purposes.” So, even if the legislators’ personal information was not freely available online, Plaintiffs potentially could have obtained it through lawful means.

“The Supreme Court has looked skeptically on statutes that exempt certain speech from regulation, where the exempted speech implicates the very same concerns as the regulated speech.” In Florida Star, for instance, the challenged statute only prohibited the publication of information identifying a rape victim on “an instrument of mass communication.” That the statute did not prohibit the same information being spread by other means raised “serious doubts” as to whether the statute was serving the interests it purportedly served.

Section 6254.21©(1) is similarly underinclusive. It proscribes the dissemination of a covered official’s home address and phone number only on the internet, regardless of the extent to which it is available or disseminated elsewhere. That the statute does not prohibit a major newspaper15 or television channel from publishing the information, but would potentially prohibit an online blog with a limited audience from doing so, raises serious questions about whether it is serving its intended goals. “[A] law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction upon truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited.”

The Court therefore concludes § 6254.21©(1) is not narrowly tailored to serve its underlying interests. In addition, because the statute is content-based, Defendant had to show that it is “the least restrictive means to further a compelling interest.” Defendant has failed to do so. In fact, Defendant made no attempt to explain how § 6254.21 is the least restrictive means to further the statute’s goal of protecting covered officials. As noted above, the statute could be less restrictive in that it could proscribe only true threats, or it could require a neutral third-party to determine if the official’s fear is objectively sound, or it could permit an objective case-by-case determination for liability instead of permitting a covered official to trigger its protections due to the official’s subjective concerns. In summary, the Court finds that Plaintiffs are likely to succeed on their claim that § 6254.21©(1) is unconstitutional as applied to them.

It will be interesting to see whether the state appeals the decision.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/28/restriction-on-publishing-officials-home-addresses-blocked-on-first-amendment-grounds/

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Sen. Udall’s Gorsuch-Garland plan for the Supreme Court

CNN reports that Sen. Tom Udall (D-N.M.) is floating a plan that would send both Judge Neil Gorsuch and Judge Merrick Garland to the Supreme Court.

His proposal is for Trump to meet privately with Supreme Court justices who are interested in retirement. If one of those justices decided they would be willing to retire, and if Trump promises to nominate Garland, President Barack Obama’s unconfirmed former SCOTUS pick, in their place, then the retiring justice would submit a letter of resignation contingent on that promise.
Then, both Garland and Gorsuch would be voted on simultaneously.

Sound far-fetched? Perhaps because, as CNN reports, the idea parallels the plot of a “West Wing” episode (though a Udall spokesperson denies the senator watches the show, let alone was influenced by it). Then again, if Justices Ruth Bader Ginsburg or Stephen Breyer agreed to step down, perhaps Trump would consider it.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/28/sen-udalls-gorsuch-garland-plan-for-the-supreme-court/

My PragerU video on the Second Amendment

My PragerU video on the Second Amendment is now out, available here. Special bonus: YouTube somehow decided that the video shouldn’t be visible to users who access YouTube in “Restricted Mode” — so it must be extra racy and exciting! If only I could get it banned in Boston… .

If you’re interested in a more thorough analysis, you can see my old congressional testimony on the subject — or, better yet, review Justice Antonin Scalia’s opinion in D.C. v. Heller, which I think does an excellent job of showing that the Second Amendment was originally understood as securing an individual right.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/27/my-prageru-video-on-the-second-amendment/

The used car that came with a special option: A GPS device secretly installed by the police

Are you in the market for a used car? If so, you might not want to buy a car from a drug dealer. Or if you do, you might not want to sell drugs from the car yourself a few days later. In a new case, United States v. Wood, decided by a federal judge in Colorado last week, the court considered how the Fourth Amendment applies when the government has a warrant to install and monitor a GPS device on a car being used by one drug dealer who then sold his car to another drug dealer. The court suppressed the evidence found of the second dealer’s crimes on the ground that the government should have stopped the GPS monitoring when it was put on notice that the car might have been sold. I think the decision is problematic, and I thought I would explain why.

Here are the facts. The government obtained a search warrant to place a GPS device on a car driven by a suspected narcotics dealer known as “S.B.” The warrant allowed the government to monitor the location of the car for 60 days after the device’s installation. On June 7, officers placed the GPS device on the car and began monitoring its location. On June 28, officers watching the car noticed that it had a “for sale” sign in the window. Starting on July 3, the location and driving pattern of the car changed. Instead of being parked and driven in the area of S.B.’s house, the car began to be parked and driven on streets near a house about five miles away. On July 8, officers decided to visit the car in person and to watch it to see whether S.B. was still using it. They saw a man selling drugs from the car in a high school parking lot, and that led to the man’s arrest and prosecution on narcotics and weapons charges.

It turned out, though, that the man selling drugs on July 8 was not S.B. A few days earlier, on July 2 or July 3, S.B. had sold the car to another drug dealer named Wood. It was Wood who was monitored the last 5 or 6 days, and it was Wood who was arrested for selling drugs from the car. Wood was charged in federal court, and he moved to suppress the evidence found of his crimes on the ground that the officers approached him in the parking lot only because they were still carrying out the warrant to monitor the location of S.B.

The district court, per Judge Christine Arguello, suppressed the evidence against Wood. According to Arguello, the officers were required to stop monitoring the car as soon as they had reason to know S.B. had sold it:

In this case, the probable cause undergirding the warrant was founded exclusively in the illicit activities of S.B. On July 2, nearly halfway through the lifecycle of the warrant, S.B. relinquished the possessory interest he had in the vehicle when it was sold and, in doing so, vitiated the probable cause at the heart of the warrant. The Government does not dispute that electronic tracking continued after the sale of the vehicle. If the executing officers knew or had reason to know of the sale, their continued search was “unsupported by probable cause” and violative of the Fourth Amendment.

Arguello relied on the Supreme Court’s decision in Maryland v. Garrison. In Garrison, officers executing a warrant for what they thought was an apartment covering an entire third floor learned mid-search that the third floor was actually two different apartments. The officers were targeting McWebb’s apartment, and without realizing it also searched Garrison’s apartment. The Supreme Court commented:

If the officers had known, or should have known, that the third floor contained two apartments before they entered the living quarters on the third floor, and thus had been aware of the error in the warrant, they would have been obligated to limit their search to McWebb’s apartment. Moreover, as the officers recognized, they were required to discontinue the search of respondent’s apartment as soon as they discovered that there were two separate units on the third floor and therefore were put on notice of the risk that they might be in a unit erroneously included within the terms of the warrant.

Applying Garrison, Arguello held that the new location pattern put the officers on notice that the car had changed hands and was no longer being used by S.B. At that point, the officers had to stop monitoring. Because they continued monitoring the car after being put on notice that the car might have changed hands, the evidence had to be suppressed:

The Court recognizes that granting a motion to suppress in a case like this is an extraordinary remedy. However, it is the extraordinary duty of law enforcement officers to ensure that they pursue their important work with an appropriate regard for the foundational constitutional rights of those they police. Here, the executing officers had reason to believe that they were prosecuting a search without probable cause, and forged ahead anyway. For that reason, the Court must suppress.

I think this reasoning is problematic for a few reasons. Here’s an overview of why.

1) Before we get to the warrant issue, we need to make sure that Wood was searched. If he wasn’t searched, then he can’t get any evidence suppressed. I don’t think Wood was subject to a “search” under the trespass theory of United States v. Jones, which would focus on the installation of the device. The trespass of installing the GPS device occurred before Wood bought the car. S.B.’s property was trespassed upon, but Jones suggests that the trespass was over after the GPS device was installed. Importantly, Jones distinguished the earlier beeper case of Karo on the ground that the GPS device in Jones was installed after Jones took possession of the car. In Karo, by contrast, Karo took possession of a can of ether with a location tracking device already secretly inside it. The Supreme Court held that Karo couldn’t object to the installation of the tracking device while Jones could: “Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper’s presence, even though it was used to monitor the container’s location.” The facts of Wood seem like the facts of Karo in that regard. Wood bought a car “as it came to him, [GPS device] and all,” so I don’t think he can claim that the installation of the GPS device during the ownership of someone else trespassed onto Wood’s property.

2) There doesn’t seem to be evidence that Wood was searched under the mosaic theory of the Jones concurrences, either, even assuming that the mosaic theory of the Fourth Amendment is viable. As I have explained, the mosaic theory posits that long-term surveillance that begins to reveal very private details about someone eventually becomes a search even if the same surveillance over the short term is not a search. But there’s no indication in the Wood case that the monitoring revealed anything particularly private about Wood. Over five or six days, the monitoring revealed that someone unknown to the government — maybe S.B., maybe someone else — was driving and parking the car in a new neighborhood. The location of the car on July 8 was then used to go see the car in person. The officers then saw someone unknown in the car. Using the doctrinal test offered by Justice Sonia Sotomayor’s mosaic concurrence in Jones, I don’t see how those very limited facts “enable[d] the Government to ascertain, more or less at will, [Wood’s] political and religious beliefs, sexual habits, and so on.”

Arguello’s opinion does include a standing analysis to determine whether Wood has standing to challenge a search of the car. I don’t think the analysis works, though. Arguello asks whether Wood had enough rights in the car to have standing to challenge a physical search of it after he bought it. I think Jones calls for a different analysis. If the alleged search is the placing of the device on the car, the issue is when the car was searched, and did Wood have standing then. If the alleged search is the ongoing monitoring, the issue is whether Wood was monitored sufficiently for him to be searched. For more, see my mosaic theory article at 342 and this 2012 blog post.

3) If you assume that Wood was searched, I’m not sure how Maryland v. Garrison applies. Under Garrison, the officers have to stop searching when they have reason to believe they’re in the wrong place. But it’s not clear to me how that applies to facts like this one. I see the language in Garrison as indicating that officers should pause the search and investigate further, which is what the officers did here. A few days after the traffic pattern changed, they went to visit the car in person to see whether S.B. was still driving it. It’s not clear to me what else they could have done. Should they have cut off all monitoring as soon as the traffic pattern changed, not visiting the car at all to see what explained the shift? That doesn’t make much sense to me.

4) Finally, I found it odd that there was no good-faith analysis in the court’s opinion. The court went straight from a ruling that Wood’s Fourth Amendment rights were violated to a ruling that the evidence should be suppressed. Given the broad scope of the good-faith exception of the exclusionary rule, it’s not clear to me why it doesn’t apply here. At the very least, the issue needed to be analyzed.

Thanks to Brad Heath of USA Today for the link to the new decision.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/27/the-used-car-that-came-with-a-special-option-a-gps-device-secretly-installed-by-the-police/

My upcoming speaking engagements

For readers who may be interested, here is a list of my upcoming speaking engagements for the next few months, through early June.

March 2, noon to 1:15 PM, Salt Lake City Federalist Society Lawyers Division Chapter: “Reviving Federalism in the Age of Trump,” ( (with commentary by Utah law Professor Wayne McCormack), Salt Lake City, Utah.

March 3, 12 to 1:15 PM, SJ Quinney School of Law, University of Utah, sponsored by the Utah Federalist Society: “Trump, Federal, Power and the Left: Why Liberals Should Help Make Federalism Great Again,” (with commentary by Utah law Professor Wayne McCormack), Salt Lake City Utah. This talk is based in large part on my blog post of the same name.

March 9, 11:40 AM-1 PM, New York University School of Law: “The Libertarian Case Against Trumpist Nationalism (with commentary by NYU Professor Jeremy Waldron, one of the world’s leading legal and political theorists). Sponsored by the NYU Federalist Society.

March 14-15, Exact date and time TBA, University of Hong Kong Faculty of Law, Conference on “Decentralization and Development”: “Foot Voting, Decentralization, and Development” (Sponsored by New York University and the University of Hong Kong). Hong Kong.

March 17, noon-1 PM, Cato Institute: Debate on Murr v. Wisconsin , an important property rights case currently before the Supreme Court, in which I wrote an amicus brief on behalf of nine state governments. Opponent TBA. Washington, DC.

March 23, University of Calgary, noon-1 PM (tentative time): Debate on immigration (with Candice Malcolm of the True North Initiative). I will be defending my pro-immigration position, while Malcolm will advocate a far more restrictionist approach. Calgary, Alberta, Canada.

April 8, Drake University Law School, Constitutional Law Center, Conference on “President Obama’s Constitutional Law Legacy”: I will be presenting my take on Barack Obama’s constitutional legacy, along with several other legal scholars.

April 13, Bowling Green State University, Program on Philosophy, Politics, Economics, and Law, noon-1 PM (tentative time): “Democracy and Political Ignorance in the Age of Trump.” Based in part on the newly expanded and revised edition of my book Democracy and Political Ignorance: Why Smaller Government is Smarter. Bowling Green, Ohio.

April 20, Boston College Law School, noon-1 PM: Debate on same-sex marriage and the Constitution (with BC law professor Ryan Williams or a different opponent TBD). I will advocate the position I outlined in the amicus brief I coauthored in Obergefell v. Hodges, the case where the Supreme Court struck down state laws banning same-sex marriage. Sponsored by the BC Federalist Society.

April 21, American Bankruptcy Institute, Annual Spring Meeting, 8:30 AM-9:30 AM: Debate on how to resolve conflicts between originalism and precedent (with Northwestern law professor Bruce Markell). This event, I believe, is open only to paid participants in the ABI Annual Spring Meeting.

May 4, Columbus Federalist Society Lawyers Division Chapter, 12-1:15 PM: “Federalism and Sanctuary Cities.” I have written about this topic here and here. Columbus, Ohio.

June 4-5, Law Faculty, University of Tel Aviv, Conference on “Judicial Review – Law and Politics” (exact time TBA): “The Debate over ‘Judicial Activism’” (tentative title). This conference will include presentations by well-known legal scholars from both Israel and the United States, including Georgetown University Law Center Dean William Trainor, Frank Michelman (Harvard), Amnon Rubinstein (IDC Herzliya) and Joseph Weiler (NYU), among others. Sponsored by the Cegla Center for the Interdisciplinary Research of the Law.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/27/my-upcoming-speaking-engagements-2/