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In Mondays morning links, I noted the story of Andrew Scott, a Florida man who was shot and killed by a police officer who came to his home, pounded on his door and never identified himself as law enforcement. Scott wasnt suspected of any crime and did nothing illegalduring the altercation. What he did do is grab his own gun, which he held pointed at the floor after he was understandably startled by the banging on the door to his apartment. Scott opened the door, saw a figure with a gun and then attempted to closethe door. The officer fired six shots, three of which struck Scott, killing him. Last week, the U.S. Court of Appeals for the 11th Circuit threw out the lawsuit filed by Scotts family, finding that the officer who killed Scott is protected by qualified immunity, the court-invented doctrine that makes it nearly impossible to sue police officers, even for egregiously over-the-top use of force that ends in death.

As Slates Mark Joseph Stern points out, this is something that should worry not just Fourth Amendment advocates, but also those who care about the Second Amendment. Citing the dissent written by 11th Circuit appeals court Judge Beverly Martin, Stern writes:

The most fascinating part of Martins analysis centered around Sylvesters insistence that the shooting was justified because Scott opened the door while holding a firearm. This conclusion that deadly force was reasonable here, Martin noted, plainly infringes on the Second Amendment right to keep and bear arms. Citing the Supreme Courts decision in D.C. v. Heller, which affirmed an individual right to handgun ownership under the Second Amendment, Martin wrote, If Mr. Scott was subject to being shot and killed, simply because (as the District Court put it) he made the fateful decision to answer a late-night disturbance at the door to his house, and did so while holding his firearm pointed safely at the ground, then the Second Amendment (and Heller) had little effect.

That seems exactly right to meand it raises an important point: The 11thCircuit has now effectively found an individuals FourthAmendment rights are diminished whenever he chooses to exercise his Second Amendment right to possess a firearm. Unfortunately, the 4th Circuit reached the same conclusion in a dreadful ruling handed down in January. The Supreme Court should step in soon to remedy the contradiction by clarifying that the exercise of one constitutional right cannot diminish the protection of another. This is an area where liberals and conservatives should be in agreement.

One would think. Over at National Review, David French made a similar point.

On Wednesday, the Supreme Court will hear oral arguments in L.A. County v. Mendez, a case that could give them just such anopportunity to address the issue. The case stems from a 2010 confrontation between Angel and Jennifer Mendez and L.A. County deputies Christopher Conley and Jennifer Pedersonin the couples home.

In October 2010, thetwo deputies were looking for a rogue parolee. According to the deputies, a confidential informanttold them that a man who fit the description of the parolee had beenspotted riding a bicycle in front of a house owned by a woman named Paula Hughes. Acting only on that tip (note, the man wasnt spotted on a parked bike at the house; he was seen ridingbyit), the deputies searched the house without a warrant. Before the search, the deputies had also been told that Hugheshad let a down-on-his-luck high school friend named Angel Mendez and his pregnant wifebuild a little shack and live in her back yard. After not finding their fugitive parolee in the house, DeputyPedersonannounced that she was going to clear the back yard. Conley joined her. They still hadnt bothered trying to obtain a warrant.

Knowing that the shack in the yard was a residence, the two entered it without knocking or announcing themselves, as theyre required to do by law. Angel Mendez kept a BB gunnear his bed to shoot away pests. When the police entered his home without knocking or announcing, he was startled and reached for the gun. Deputies Conley and Pederson then opened fire, sending 15 bullets toward Angel Mendez and his wife. Jennifer Mendez was struck in the back. Angel Mendez was hit in the back, right arm, right hip, right shin and left foot. His right leg had to be amputated below the knee.

The case turns on a long-standing problem created by the consistently deferential way the courts treat police officers. Absent clear evidence to the contrary, cops who violate laws or constitutional rights are assumed to have done so inadvertently. But what happens when those violations of law or constitutional rights cause a suspect to take (also justified) actions that then cause police officers to reasonably fear for their lives and to then use lethal force? In this case, the deputies clearly violated the Fourth Amendment, several times over. But after they did so, Mendez reached for what probablylooked like a real gun. Under the law, once he did, the deputies were justified in using lethal force. But Mendez was also justified in his own actions, given that the deputies had violated his own Fourth Amendment rights, and he quite reasonably feared for his safety.

The cops cant be criminally charged for the shooting. In theory they could be sued, but inevery circuit in the country but the 9th, federal appeals courts have ruled in favor of the police in such instances. But the 9th Circuit has adopted a doctrine of provocation. That doctrine says that if unconstitutional police actionscreate a chain of events resulting in theuse of force,the initial violations make the police civilly liable for harm caused by that force, even if other circumstances transpired to make the use of force itself reasonable. So far, because of the provocation doctrine, both the district court and the U.S. Court of Appeals for the 9th Circuit have ruled in favor of the Mendezes. Los Angeles County appealed to the Supreme Court late last year, and the court granted cert.

Conceivably, theSupreme Court could go a number of different ways. It could adopt the provocation doctrine for the entire country, strike it down completely or find some way to resolve the case without doing either. Defense attorney and legal blogger Scott Greenfield isnt optimistic:

The grant of cert directly calls into question whether the provocation doctrine should be upheld or overruled. This isnt to say which way the Supremes will go, or whether they will ultimately rule on it at all, but it bodes poorly for the rule given that the Ninth Circuit hasnt fared particularly well in the Supreme Court, and that the doctrine hasnt been adopted by other circuits.

Noting that this doesnt affect the propriety of the conduct, the shooting, which was held reasonable and is not up for review, but rather whether the deputies will enjoy qualified immunity for their constitutional violations, a win for the Mendezs at the Supreme Court would be enormously significant, bringing a huge dose of reason to the latitude given police officers to create, then exploit, unconstitutional conduct. Perhaps the Court will make this the law of the land, but then, smart money is on the death of the provocation doctrine. It just makes too much sense.

If the court ends up striking down the provocation doctrine,gun owners in particular ought to be concerned.Because police departments arent required to keep such data, its difficult to say just how often they raid the wrong house or the right house based on information that turns out to have been wrong. Police advocates will say such mistakes comprise only a tiny percentage of overall raids, but given that criminologist Peter Kraska has estimated that there are somewhere between 50,000 and 100,000 door-breaching raids per year in the United States, and if even 1 percent of those are on the wrong residence, that would result in 500 to 1,000 such mistakes per year.In the documentary Do Not Resist, a Richland County, S.C., SWAT commander said that drug raids are about 50-50, meaning that about half the time they find drugs, and about half the time they dont. Again, due to lack of data, its impossible to say how representative this is. And certainly in some of those cases where the police dont find drugs, its not because they got the wrong house, but because the dealers moved their supply.

Yet given that about 36 percent of U.S. households own a gun, even if we assume that just 1 in 100 police raids target the wrong house or are based on bad information, that works out to180 to 360 gun owners and possibly their families who are wrongly raided by police each year. This is admittedly a crude estimate again, its due to the fact that police departments arent required to keep track of their mistakes. But the general point here is that given the frequency of these raids and the frequency of gun ownership, there will inevitably be some overlap. Such incidents likely happen on a fairly regular basis. And given that these raids are designed to disorient and confuse everyone in the targeted residence, thats a lot of incidents in which things could go horribly wrong.

Those are just the cases in which police raid someone who actually possesses a gun.There have been plenty of other cases in which courts have found that police acted reasonably whenshooting someone during one of these raidsafter mistaking something harmless for a gun, be it ablue cup, a T-shirt or the glint off a wristwatch (all are real incidents). Courts tend to be pretty forgiving of cops in such circumstances, owing to the danger and volatility of these raids. (Never mind that the police are the party that created the danger and volatility and that courts tend to be less forgiving of suspects who make similar mistakes.)In these cases too, absent a provocation doctrine, the shooting would likely be deemed justified even if the initial entry into the house were ruled unconstitutional.

In theory, though the people who get shot in such cases cant sue for the shooting itself, they could sue (or in the cases of those who dont survive, their families could sue) if there was aninitial Fourth Amendment violation. But any damages would be limited to only the harm caused bythe initial entry. Its a safe bet that such cases would see very little payout at all not enough to serve as a deterrent, and probably not even enough to persuade most civil rights attorneys to take the case in the first place.

One other thing: There are only a few tools availableto enforce the Fourth Amendment. One is the exclusionary rule (the rule that evidence seized due to an illegal search is inadmissible at trial). Another is civil liability for police officers. The only real remaining deterrent is professional discipline. InHudson v. Michigan, the Supreme Court refused to apply the exclusionary rule when police fail to properly knock and announce themselves before breaking down a door. If the Supreme Court dispenses with the provocation doctrine too, the only possible remaining deterrent to enforce the knock-and-announce requirement the rule that says the police have to knock, announce themselves and give you time to peacefully answer the door before subjecting you to the violence of a forced entry will be professional discipline. In other words,our sole protection from cops barging into our homes unannounced will be the hope thatother cops will discipline their colleagues for failing to knock and announce and discipline them severely enough that it serves as an effective deterrent. If you read this blog with any regularity, youll know why that isnt exactly encouraging.

Okay, onemorething: Even if theSupreme Courtends the provocation doctrine in the 9th Circuit, it doesntneed to be the death of the doctrine. As is often the case, the court would only be settingthe upper limits ofstate conduct. If they wanted to, Congress or any state legislature could still pass a law to codify the provocation doctrine. That, of course, would take some political will. But its important to remember that when it comes to the powers we grant to police, the Supreme Court neednt always be the last word.

More:
On Wednesday, the Supreme Court will hear a case with major implications for the Second and Fourth amendments - Washington Post

By Laurie Chapman

March 20, 2017

Following on the heels of the Third Amendment, and enforcing the notion that each mans home is his castle, the Fourth Amendment has been the basis for many opinions regarding appropriate law enforcement and governmental procedures. Again, we are looking at an individuals right to privacy and freedom from governmental intrusion.

The following is a transcription of the Fourth Amendment to the Constitution in its original form.

Amendment IV

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.

Numerous court decisions have further clarified the definition of a reasonable search and seizure. To date, decisions have been reached regarding searches of homes, persons, cars and schools.

The earliest case was decided in 1946, Davis vs. United States, and stated a warrantless search can be made if an officer is given consent by a homeowner. The most recent cases were both decided in 2009, and both involve vehicle searches Arizona vs. Gant and Arizona vs. Johnson.

Following is a summary of decisions relating to the Fourth Amendment:

Payton vs. New York, 1980, search and seizure in a home without a warrant are presumptively unreasonable. It also states warrantless searches may be made if there is probable cause or when lives are in imminent danger or belief exists that evidence will be destroyed. Other court cases define exceptions to warrantless searches;

Davis vs. United States, 1946, consent by homeowner;

United States vs. Robinson, 1973, search is permissible in relation to a lawful arrest;

Maryland vs. Macon, 1985, when evidence is in plain view;

Terry vs. Ohio, 1968, when an officer observes an individuals unusual behavior he can be compelled to confirm or dispell his suspicions by searching the person;

New Jersey vs. TLO, 1985, school officials have authority to search students without warrant if reasonable suspicion exists;

Arizona vs. Gant, 2009, an officer may search a vehicle if probable cause exists it contains evidence;

United States vs. Arvizu, 2002, traffic stops are permissible if a violation has been observed or suspicion is aroused that a crime is imminent;

Arizona vs. Johnson, 2009, officers have authority to pat down drivers and passengers during a traffic stop without reasonable suspicion of criminal activity;

Illinois vs. Cabales, 2005, drug-sniffing dogs may search the exterior of a vehicle during a valid traffic stop without the requirement of suspicion;

United States vs. Montoya de Hernandez, 1985, border agents are authorized to conduct routine stops and searches;

Illinois vs. Lidster, 2004, checkpoints are permissible to allow law enforcement to gather information from motorists;

Michigan Department of State Police vs. Sitz, 1990, like the above case this decision allows the use of highway sobriety checkpoints; and

City of Indianapolis vs. Edmond, 2000, interestingly to the contrary a state may not use a highway checkpoint to discover illegal narcotics.

The one case I expect to see more prominently tested in the coming years is the Terry vs. Ohio case. Commonly referred to as the stop-and-frisk approach, its use has been frequently publicly debated, even recently during the past election debates.

Law enforcement agencies must engage delicately in this tactic to avoid racial profiling. Determining the line between our personal right to privacy and public safety can be tricky. Especially when a criminal element refuses to conform to legal standards and will manipulate the system to his advantage.

Resources: http://www.uscourts.gov, supreme.justia.com

Laurie Chapman publishes Political Broad bi-monthly and takes an informative, opinionated peek at the functions of government. If you have a suggestion for the author, e-mail her at lchapman@idahocountyfreepress.com or call her at 208-983-1200.

More here:
Fourth Amendment addresses search procedures - Idaho County Free Press (blog)

During his nearly 30 years on the Supreme Court, the late Justice Antonin Scalia was perhaps best known for his commitment to originalism the idea that the Constitution should be interpreted as it would have been understood by the Founders. Scalias dedication to originalism extended to the Fourth Amendment, which protects against unreasonable searches and seizures by the government. And it often meant that a justice whom many regarded as conservative reached pro-defendant results. For example, Scalia wrote the courts 2012 decision in United States v. Jones, holding that a search took place when police officers attached a GPS device to the car of a suspected drug dealer and then used the device to track the cars movements. Scalia and four other justices agreed that the installation and use of the device were no different, for constitutional purposes, than if the government had gone onto Joness property to collect information to use against him.This kind of trespassing would have been a search when the Fourth Amendment was first adopted in the 18th century, and so it is still a search today.

Judge Neil Gorsuch, the presidents nominee to succeed Scalia on the court, also describes himself as an originalist. And he too has adhered to originalist principles in reaching pro-defendant results in several cases, all implicating privacy issues. In one such case, United States v. Carloss, a federal agent and a local police officer went to Carloss house to speak with him. The house had several no trespassing signs scattered around the property, including one on the front door. Carloss allowed the officers to enter the house, where they saw drug paraphernalia and residue that appeared to be methamphetamines, but would not permit them to go any further. When the officers later returned with a warrant, they found multiple methamphetamine labs, a loaded gun and more drug paraphernalia.

When Carloss was prosecuted on drug and weapons charges, he moved to suppress the evidence found in the house. On appeal, two of the three judges affirmed the trial courts ruling denying Carloss motion. Despite the no trespassing signs, the majority concluded, the general public and police officers had an implied right to enter the homes curtilage the area immediately around the house protected by the Fourth Amendment from unreasonable searches and seizures to knock on the door and seek to speak with the homes occupants.

Gorsuch filed a lengthy dissent from the ruling. He began by observing that, when the officers went to Carloss door to investigate a possible crime, they were indisputably conducting a search. The only question, in his view, was whether Carloss had, as the majority ruled, impliedly agreed to allow the officers to approach his front door and knock on it. Under the governments rule, Gorsuch suggested, law enforcement officials would effectively have a permanent easement to enter a homes curtilage for a knock and talk whatever the homeowner may say or do about it.

But this line of reasoning, Gorsuch continued, seems to me difficult to reconcile with the Constitution of the founders design. The protections provided by the Fourth Amendment, he explained, parallel the protections available under the common law at the time of the founding. And at that time, the common law allowed government agents to enter a home or its curtilage only with the owners permission or to execute legal process. There was no permanent easement, he emphasized, for the state. If anything, he added, the Supreme Courts decision in Florida v. Jardines holding that the use of a drug-sniffing dog on a homeowners porch was a search for purposes of the Fourth Amendment reaffirmed the fact that the implied license on which the knock and talk depends is just that a license, not a permanent easement, and one revocable at the homeowners pleasure.

In United States v. Ackerman, the defendant was indicted on child pornography charges after an automatic filter on his Internet service provider identified images attached to his email as pornography and then notified (as required by law) the National Center for Missing and Exploited Children, which reviewed the images to confirm that they contained pornography and then in turn notified the police. The district court denied Ackermans motion to suppress the evidence against him, ruling both that NCMEC could not violate the Fourth Amendment because it is not a government actor and that its search had not gone beyond the ISPs.

On appeal, the U.S. Court of Appeals for the 10th Circuit, in an opinion by Gorsuch, reversed. First, the court determined that NCMEC was either a government actor or, at the very least, acting as a government agent. On the latter point, Gorsuch noted that, since time out of mind the law has prevented agents from exercising powers their principals do not possess and so cannot delegate. That is a rule of law the founders knew, understood, and undoubtedly relied upon when they drafted the Fourth Amendment.

Turning to the question whether NCMECs actions constituted a search for purposes of the Fourth Amendment, the federal government pointed to the private search doctrine the idea that there is no search when the government would not have learned anything significant beyond what the private actor had already told it. But even if that doctrine applied (and Gorsuch expressed doubt that it did), the Supreme Courts 2012 decision in United States v. Jones also pointed to NCMECs actions being a search. In Jones, Gorsuch emphasized, the court explained that government conduct can constitute a Fourth Amendment search either when it infringes on a reasonable expectation of privacy or when it involves a physical intrusion (a trespass) on a constitutionally protected space or thing to obtain information.

Ackermans case, Gorsuch reasoned, involved the warrantless opening and examination of (presumptively) private correspondence that could have contained much besides potential contraband for all anyone knew. And that seems pretty clearly to qualify as exactly the type of trespass to chattel that the framers sought to prevent when they adopted the Fourth Amendment. The court of appeals therefore sent the case back to the lower court.

And in United States v. Krueger, a three-judge panel of the 10th Circuit upheld the district courts order granting Kruegers motion to suppress evidence child pornography found on a computer seized pursuant to a warrant issued by a magistrate judge in a different state. The majority relied on the governments violation of the federal criminal procedure rule governing searches and seizures, without addressing whether the problems with the warrant violated the Fourth Amendment.

Gorsuch agreed with the majoritys conclusion, but he took on what he described as the governments phantom warrant argument: the idea that the warrant was valid even if it did not comply with the law. Here Gorsuch once again relied on originalist principles. He noted that looking to the common law at the time of the framing it becomes quickly obvious that a warrant issued for a search or seizure beyond the territorial jurisdiction of a magistrates powers under positive law was treated as no warrant at all. It did not matter, Gorsuch stressed, whether for example another judge in the appropriate jurisdiction would have issued the same warrant if asked.

Gorsuch also rejected the idea that enforcing territorial boundaries on the effectiveness of warrants is inefficient and arbitrary. Citing (among other authorities) The Federalist, he reasoned that our whole legislative system is predicated on the notion that good borders make for good government, that dividing government into separate pieces bounded in both their powers and geographic reach is of irreplaceable value when it comes to securing the liberty of the people.

To be sure, although Gorsuch has sometimes relied on originalist principles to reach pro-defendant results, most of the opinions he has written rule or, when he dissents, would rule in favor of the government (often affirming a district court ruling) without specifically relying on originalism. For example, in United States v. Nicholson, a police officer believed (erroneously, it turned out) that a driver had violated a traffic ordinance. When the officer stopped the driver and smelled marijuana, he issued a traffic citation and seized the car, in which the police found (among other things) methamphetamines, a loaded gun and marijuana seeds. The driver argued, and the majority of a three-judge panel agreed, that the Fourth Amendment required the evidence to be suppressed because the police officers mistake was objectively unreasonable.

Gorsuch dissented. He acknowledged that, in many cases, searches and seizures initiated because of an officers mistake about the law should be held unreasonable and therefore unconstitutional. But here, he continued, the court did not have enough information to determine whether the officers mistake was reasonable with any degree of confidence. Moreover, he added, the rigid rule that the rest of the panel had adopted was contrary to the normal Fourth Amendment practice of being sensitive to the totality of the circumstances.

A little over a year later, in Heien v. North Carolina, the Supreme Court largely agreed with Gorsuch. By a vote of 8-1, in a decision by Chief Justice John Roberts, the court ruled that an objectively reasonable mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment.

In United States v. Rochin, a traffic stop prompted a police officer to pat down the driver. When the officer felt something in the drivers pocket, but couldnt identify it, he pulled the drivers pockets out and found glass pipes containing drugs. Rochin, the driver, moved to suppress the drugs, arguing that the officer violated the Fourth Amendment when he removed the pipes without knowing what they were. The district court denied that motion, and the 10th Circuit affirmed.

Gorsuch seemed to regard the officer as having a fair amount of leeway in these kinds of protective pat-downs, explaining that the Fourth Amendment isnot a game of blind mans bluff. It doesnt require an officer to risk his safety or the safety of those nearby while he fishes around in a suspects pockets until he can correctly guess the identity of and risks associated with an unknown object. Instead the Fourth Amendment only requires reasonableness, not such potentially reckless punctiliousness.

Although Gorsuch may be willing to give some deference to law enforcement officials, he proved less willing to defer to technology in United States v. Esquivel-Rios. In that case, a state trooper tried to verify a Colorado temporary tag, but the dispatcher told him that the tag wasnt returning. Based on that information, the trooper pulled the car over; a search revealed over a pound of methamphetamine. During a trial for drug charges, the district court rejected Esquivel-Rios motion to suppress the drugs, finding that the trooper had reasonable suspicion that the tag was false.

On appeal, Gorsuch wrote for the three-judge panel that vacated the district courts ruling and sent the case back to the district court for further proceedings. He concluded that the district courts ruling was right as far as it went, but it had failed to account for another, potentially important piece of information: After telling the trooper that the cars tag hadnt returned, the dispatcher also warned that Colorado temporary tags usually dont return which at least suggested that the failure to return was the result of a database shortcoming or snafu, rather than a sign that the tag was false. And that, Gorsuch continued, raised questions about the reliability of the database and whether the officer could have in fact had reasonable suspicion.

Gorsuch acknowledged that the law expects and takes account of human (and computational) frailties. And he conceded that the standard for legally sufficient grounds for a traffic stop are relatively low. But because the state trooper relied on exclusively on the database report to stop Esquivel-Rios, and because so little information is available about how the database operates and how reliable it might be in these circumstances, he concluded, the district courts ruling cannot stand as issued. The court thus ordered the district court to reconsider whether the trooper had the reasonable suspicion required by the Fourth Amendment. And if he did not, the court continued, the district court should also consider what the remedy for the violation of the Fourth Amendment might be specifically, whether exclusion is an appropriate remedy.

Posted in Nomination of Neil Gorsuch to the Supreme Court, A close look at Judge Neil Gorsuchs jurisprudence, Featured

Recommended Citation: Amy Howe, Gorsuch and the Fourth Amendment, SCOTUSblog (Mar. 17, 2017, 1:35 PM), http://www.scotusblog.com/2017/03/gorsuch-fourth-amendment/

Excerpt from:
Gorsuch and the Fourth Amendment - SCOTUSblog (blog)

On Wednesday, March 22, the eight-justice court will hear argument in County of Los Angeles v. Mendez, a Fourth Amendment civil action filed by two people shot by Los Angeles County sheriffs deputies. If Judge Neil Gorsuch is confirmed in April as Senate Majority Leader Mitch McConnell has promised, this will be one of the last eight-justice arguments in the year since the death of Justice Antonin Scalia. This is a case in which a ninth justice could matter, as well as one for which Scalia will be missed, as he had strong Fourth Amendment views.

While looking for a missing parolee, two sheriffs deputies opened the door of an occupied shack without a warrant and without knocking or announcing. When Angel Mendez moved a BB gun to respond, the deputies immediately shot him and his pregnant companion. Both were awarded $4 million after a bench trial (Mendezs leg was amputated below the knee; his companion delivered a healthy baby).

Like many Fourth Amendment cases, this one involves detailed and nuanced facts that can generate limitless hypotheticals. Legally, it presents interesting questions about proximate cause as well as about what law is clearly established for official-immunity purposes. There appears to be some analytical confusion in the briefing, which mixes together these very different concepts. And a preliminary ruling of the U.S. Court of Appeals for the 9th Circuit that the knock and announce rule was not clearly established for separate searches of curtilage areas after an earlier announcement has been made may conflict with that courts denial of official immunity for the later shooting. (Recall that under the doctrine of qualified immunity, an officer is not liable for damaging conduct if the law was not clearly established at the time that the officers conduct constituted a constitutional violation.)

The court granted review in this case primarily to consider a provocation theory of Fourth Amendment liability used by the 9th Circuit, which other courts of appeal have either rejected or applied differently. In an opinion written by then-Judge Samuel Alito ten years before he joined the Supreme Court, the U.S. Court of Appeals for the 3rd Circuit criticized a broad version of the 9th Circuits provocation theory, and Alito noted two terms ago in City and County of San Francisco v. Sheehan that the theory has been sharply questioned. A broadly stated provocation doctrine may therefore be on the way out. But whether the Mendezes damages award can survive on a more traditional proximate cause ground presents a more difficult question that seems likely to divide the court.

Compelling (if still somewhat disputed) facts

The Mendezes, a homeless couple who married after the shooting, present undoubtedly sympathetic facts. Because Fourth Amendment cases must be evaluated on a totality of the circumstances basis, factual nuances can make a difference. Here is my best distillation (based on detailed findings made by the district judge after a five-day bench trial):

In October 2010, officers were searching for a parolee-at-large who allegedly had been spotted bicycling in front of a suspected drug-trafficking house in suburban Los Angeles. Officers, who had no warrant to search or arrest, went to the house, announced themselves to the owner, and gained entry by threatening to force their way in. (The parolee was not there.)

Meanwhile, officers Christopher Conley and Jennifer Pederson went to clear the backyard. After entering the yard and checking some small metal storage boxes, the two officers came to a dilapidated wooden shack that (as the district court found) they could not reasonably have believed to be unoccupied. The shack had various signs of occupancy, and a lead officer testified that he had advised the deputies that a man named Angel lived in a shed in the yard with his pregnant girlfriend. (The district judge found that both deputies had heard this advisement, and that if they had not then they had unreasonably failed to pay attention.) With his gun drawn, Conley pulled open the door of the shack.

The Mendezes were resting on a futon; Angel kept a BB gun next to his bed to shoot pests. When he heard the deputies entry, he picked up the BB gun to move it so he could get up. (Whether the gun was pointed at the deputies remains disputed, but the trial judge found Mendez was moving it innocently, merely to help him sit up.) Conley shouted gun, and the deputies fired 15 bullets at the two occupants. Mendez, severely injured, exclaimed, I didnt know it was you guys. It was a BB gun.

The rulings below

The rulings of the trial and appeals courts present a somewhat complicated web of doctrine. The Mendezes filed a civil rights suit against Los Angeles County and the two deputies, alleging three Fourth Amendment violations: entry without a warrant, entry without knock and announce, and excessive force. The trial judge found for the Mendezes on all counts. However, the court awarded only nominal $1 damages for the warrantless entry and knock-and-announce violations, and also concluded that at the moment of shooting the deputies use of deadly force was objectively reasonable because they reasonably believed a man was holding a firearm rifle threatening their lives. Still, the court concluded, the county was liable because the deputies had recklessly provoke[d] a violent confrontation by not having a search warrant and by not knocking and announcing, and had thus creat[ed] the situation which caused the injuries.

Applying this provocation theory, which has been followed in the 9th Circuit since at least 2002, the 9th Circuit affirmed the damages award. Significantly, however, the court of appeals first ruled that although entering the shack without a search warrant was a clearly established Fourth Amendment violation, the deputies failure to knock and announce was not, because it was not clearly established that a law enforcement team that has announced itself at the front door of a house must then re-announce before entering a separate residence on the curtilage.

The 9th Circuit affirmed the damages award on two theories. First, the court of appeals applied its provocation precedents to hold that the deputies had creat[ed] a situation which led to the shooting and required the officers to use force that might have otherwise been reasonable. In the view of the court of appeals, the clearly established Fourth Amendment violation of entering without a warrant necessarily indicates that the deputies acted recklessly or intentionally.

Second, the court concluded that even without relying on our circuits provocation theory, basic notions of proximate cause supported the judgment. The court noted a point made by the district judge: that because homeowners have a constitutional right to possess a firearm for protection, it is reasonably foreseeable that a startling entry into a bedroom will result in tragedy. (Justice Robert Jackson, joined by Justice Felix Frankfurter, made the same point in a concurrence some seven decades ago, a detail likely come up next Wednesday.) Thus, said the 9th Circuit, the deputies are liable for the shooting as a foreseeable consequence of their unconstitutional entry even though the shooting itself was not unconstitutionally excessive force.

The county/deputies arguments

A threshold procedural issue crops up here: Although the county and the deputies presented three questions in their petition for certiorari, their merits brief (and the solicitor generals friend of the court brief filed in their support) now lists only two questions. The original questions had not expressly asked for review of proximate cause, but their restated second question now explicitly does. The court has previously expressed displeasure with parties altering the questions presented when they get to the merits stage, and the Mendezes now argue that the proximate cause question is not squarely before the court. This may attract some attention at oral argument, although the objective of reviewing the 9th Circuits provocation theory is likely paramount.

On to the merits. At bottom, the countys argument is simple: The courts 1989 opinion in Graham v. Connor said that a Fourth Amendment excessive force claim should be objectively evaluated at the moment of the application of force. Here, the lower courts have concluded that at the moment the deputies fired, their reaction to a raised rifle was objectively reasonable. Although its reply brief backs off a little, the county argues that the officers actions before [the shooting] are not relevant.

The Mendezes respond that, in fact, the court has suggested (in a different Fourth Amendment context, Kentucky v. King) that the conduct of the police preceding the exigency must be considered; only if the police did not create the exigency by violating the Fourth Amendment is their conduct reasonable. The Mendezes read the courts prior excessive-force decisions not as finding such conduct irrelevant, but rather as examining the conduct to determine whether it is factually unpersuasive on the particular record presented. (It might also be argued that the courts at the moment phrase in Graham was dictum rather than essential to its holding.)

These arguments will set the stage for the court to examine, and ultimately to either define or reject, a Fourth Amendment provocation theory of law enforcement liability. Certainly the court will narrow the theorys confines, if not reject the label entirely. But after reams of briefing, and a likely (almost perfunctory) rejection of the 9th Circuits prior broad statements, provocation will probably not be the ultimate focus of the courts attention in this case.

Instead, the crux of the argument is now likely to shift to considering the deputies liability as simple question of proximate cause. And here, I think there is analytical confusion. Simply put, causation is a very different question from qualified immunity.

Cutting through many pages of briefing, the countys key argument is that the deputies failure to knock and announce cannot be considered in determining their liability for damages, because the 9th Circuit held that it was not a clearly established violation on the specific facts presented. If that legal factor is omitted, then it is difficult to say that shooting here was a foreseeable result of the failure to secure a search warrant. That is, even if the deputies had had a warrant in their back pockets, the same scenario would have resulted. It was the failure to knock and announce, not the failure to get a warrant, that led to the shooting here.

Causation, however, is a fact-dependent inquiry, requiring consideration of the totality of the circumstances, as the court has often noted. Such factual analysis does not allow for ignoring facts that are actually present; and it is analytically quite separate from the legal question of qualified immunity. The mash-up of the two concepts is perhaps best displayed in the solicitor generals brief, in which the argument that the deputies did not proximately cause Mendezs injuries concludes by saying that it was not clearly established that the officers had to knock and announce in this situation. The latter assertion may be true; it might even preclude liability. But that legal conclusion does not eliminate the fact of the failure to knock and announce a fact that, as all parties and the lower courts seem to agree, led directly to Angel Mendezs reaction and the deputies shooting.

Thus, while it seems unarguable that the failure to knock and announce led to Mendezs innocent reaction, as well as to the deputies equally understandable fear and decision to shoot, establishing causation is not the same as establishing a violation of clearly established law. The factual concept of causation (present here) must be separated from the very different legal concept of a clearly established Fourth Amendment violation (perhaps not present here).

Conclusion

This case presents many different points of entry for questioning at oral argument. If the justices are willing to go beyond consideration of the provocation theory, I would expect an extremely active free-for-all of questioning. But given Justice Alitos repeatedly expressed skepticism towards a broad reading of the 9th Circuits provocation doctrine, such a reading seems likely to be rejected here.

Nevertheless, the Mendezes brief effectively defends the commonsense view that the deputies failure to knock and announce their warrantless search caused the violence that followed. The countys arguments that the deputies actions did not constitute proximate cause, or that Mendezs innocent response to unknown intruders should be held to be a superseding event, seem stretched. On proximate cause, the justices seem likely to be divided. Indeed, once the provocation theory is disposed of, the eight-justice court might find it easier to remand for reconsideration under the clearer standards that its opinion will announce.

But its a bit premature to predict the result before the oral argument. At bottom, this is a qualified-immunity case, not one of simple Fourth Amendment violation or causation. Or, as the countys effective (if at times hyperbolic) brief concludes, rather than a reckless shooting, this might be described as a tragic confluence of reasonable misperceptions on both sides. By holding that the failure to knock and announce was not a clearly established violation of the Fourth Amendment, the 9th Circuit undercut its later finding of damages liability against the county. Well see if the justices are able to untangle these two ideas causation versus qualified immunity at oral argument next Wednesday.

Posted in County of Los Angeles v. Mendez, Featured, Merits Cases

Recommended Citation: Rory Little, Argument preview: Mixing concepts of causation, provocation and qualified immunity in the Fourth Amendment context, SCOTUSblog (Mar. 15, 2017, 10:38 AM), http://www.scotusblog.com/2017/03/argument-preview-mixing-concepts-causation-provocation-qualified-immunity-fourth-amendment-context/

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Introduction

Before Justice Scalia, pragmatic balancing tests dominated the Courts Fourth Amendment doctrine. 1Open this footnote Close this footnote 1 See David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739, 1739-43 (2000). Open this footnote Close But by 2008, Justice Scalia had succeeded in reframing the Courts analysis. In an opinion joined by seven other Justices, he wrote: In determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve. 2Open this footnote Close this footnote 2 Virginiav. Moore, 553 U.S. 164, 168 (2008). Open this footnote Close

Like Justice Scalia, Judge Gorsuch has advocated an originalist interpretation of the Fourth Amendment. But he has not applied that originalist approach to all Fourth Amendment questions. This Essay traces Judge Gorsuchs jurisprudence in two areas of Fourth Amendment doctrine. PartI considers his decisions regarding searches of homes and personal property, where he has adopted and extended Justice Scalias common law approach. PartII contrasts that approach with Judge Gorsuchs decisions regarding Terry stops, where he has proven even more willing than many of his peers to employ the sort of totality of the circumstances inquiry that Justice Scalia so eschewed. In each Part, we also consider how Judge Gorsuchs particular brand of originalism might impact Fourth Amendment issues looming on the Courts horizon.

I. Trespassory Searches of Personal Property

Between 2001 and 2013, Justice Scalia resurrected the Supreme Courts pre-1967 trespass test for Fourth Amendment searches. Over three opinionsKyllov. United States, 3Open this footnote Close this footnote 3 533 U.S. 27 (2001). Open this footnote Close United States v. Jones, 4Open this footnote Close this footnote 4 132 S. Ct. 945 (2012). Open this footnote Close and Florida v. Jardines 5Open this footnote Close this footnote 5 133 S. Ct. 1409 (2013). Open this footnote Close he developed an alternative to Katzs reasonable expectations of privacy test 6Open this footnote Close this footnote 6 United States v. Katz, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Open this footnote Close rooted in eighteenth-century tort law. When Justice Scalia passed away in 2016, many commentators thought this strain of doctrine might die with him. 7Open this footnote Close this footnote 7 See, e.g., Lawrence Rosenthal, The Court After Scalia: Fourth Amendment Jurisprudence at a Crossroads, SCOTUSblog (Sept. 9, 2016, 5:31 PM), https://shar.es/1UYXYc. Open this footnote Close But Judge Gorsuch, as his opinions in United Statesv. Carloss 8Open this footnote Close this footnote 8 818 F.3d 988 (10th Cir. 2016). Open this footnote Close and United Statesv. Ackerman 9Open this footnote Close this footnote 9 831 F.3d 1292 (10th Cir. 2016). Open this footnote Close show, is likely not just to preserve Justice Scalias trespass test, but to expand it.

A. United States v. Carloss

In Jardines, the Court explained that even though a homes curtilage is a Fourth Amendment protected space, police are permitted to walk up to your door and knock on it based on an implied licensethe same implied license granted to Girl Scouts selling cookies. 10Open this footnote Close this footnote 10 Jardines, 133 S. Ct. at 1415-16. Open this footnote Close In Carloss, the Tenth Circuit addressed whether that implied license persists when a homeowner places three No Trespassing signs along the path from the street to the door and a fourth on the door itself. 11Open this footnote Close this footnote 11 Carloss, 818 F.3d at 1003-04 (Gorsuch, J., dissenting). Open this footnote Close Judge Gorsuch, dissenting, argued that it does not.

Relying on Justice Scalias originalist reasoning in Jardines, Judge Gorsuch observed that the implied license enjoyed by police is the same as that enjoyed by private visitors. 12Open this footnote Close this footnote 12 Id. at 1006 (describing the implied license as one entitling the officers to do no more than any private citizen might (quoting Jardines, 133 S. Ct. at 1416)). Open this footnote Close At common law, that implied license could be revoked at will by the homeowner. 13Open this footnote Close this footnote 13 Id. Open this footnote Close And once revoked, police as well as private visitors were liable for trespass. 14Open this footnote Close this footnote 14 Id. Open this footnote Close Because the No Trespassing signs communicated the homeowners intent to revoke this license, Judge Gorsuch argued, police violated the Fourth Amendment when they entered the homes curtilage without a warrant. 15Open this footnote Close this footnote 15 Id. at 1005-06. Open this footnote Close

B. United States v. Ackerman

Whereas Carloss dealt with physical property, in Ackerman, Judge Gorsuch applied Justice Scalias trespass theory to searches of digital property: e-mails. In Jones, the Court held that the government conducts a search when it obtains information by physically intruding on a constitutionally protected areaincluding when, as in Jones itself, police place a GPS tracking device on the underside of suspects car. 16Open this footnote Close this footnote 16 United Statesv. Jones, 132 S. Ct. 945, 948, 950 n.3 (2012). Open this footnote Close In Ackerman, Judge Gorsuch applied Jones to e-mail searches for child pornography, writing that the warrantless opening and examination of... private correspondence... seems pretty clearly to qualify as exactly the type of trespass to chattels that the framers sought to prevent when they adopted the Fourth Amendment. 17Open this footnote Close this footnote 17 United Statesv. Ackerman, 831 F.3d 1292, 1307-08 (10th Cir. 2016) (citing Ex parte Jackson, 96 U.S. 727, 733 (1878)). Open this footnote Close

In applying the trespass test to digital searches, Judge Gorsuch takes Jones further than Justice Scalia himself was willing to go. In Jones, Justice Scalia had written that [s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis, not the Jones trespass test. 18Open this footnote Close this footnote 18 Jones, 132 S. Ct. at 953 (emphasis omitted). Open this footnote Close But Judge Gorsuch concluded differently in Ackerman. True, he conceded, the Framers had been concerned with physical, not virtual, correspondence. 19Open this footnote Close this footnote 19 Ackerman, 831 F.3d at 1308. Open this footnote Close Nevertheless, he wrote, a more obvious analogy from principle to new technology is hard to imagine. 20Open this footnote Close this footnote 20 Id. Open this footnote Close

C. Implications

In Jones, Justice Scalia explained that the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. 21Open this footnote Close this footnote 21 Jones, 132 S. Ct. at 952 (emphases omitted). Open this footnote Close Katz and Jones, then, are alternative theories of Fourth Amendment protection. But because Jones was not decided until 2012, it is in tension with portions of the Courts doctrine decided between 1967 (Katz) and 2012 (Jones). Judge Gorsuch, relying on Jones, might look to resolve that tension in at least two areas of Fourth Amendment lawsearches of open fields and testing of potential contrabandand to expand Joness approach into a third (digital searches).

In Oliver v. United States, a 1984 case, the Court held that police had not violated the Fourth Amendment when they bypassed a No Trespassing sign to enter a suspects farmland. 22Open this footnote Close this footnote 22 See 466 U.S. 170, 176 (1984) (invoking the Fourth Amendments language protecting persons, houses, papers, and effects (quoting Hesterv. United States, 265 U.S. 57, 59 (1924))). Open this footnote Close The Court distinguished open fields from curtilage, which is afforded the same protection as the home. 23Open this footnote Close this footnote 23 Id. at 176-81. Open this footnote Close Judge Gorsuch, for his part, does not dispute that distinction. 24Open this footnote Close this footnote 24 United States v. Carloss, 818 F.3d 988, 1009 (10th Cir. 2016) (Gorsuch, J., dissenting). Open this footnote Close But he nevertheless suggested in Carloss that curtilage historically encompassed a space much larger than just the areas, like the front porch, immediately surrounding the home. 25Open this footnote Close this footnote 25 See id. at 1005 n.1 (At common law the curtilage was far more expansive than the front porch, sometimes said to reach as far as an English longbow shotsome 200 yardsfrom the dwelling house.). Open this footnote Close

In United States v. Jacobsen, another 1984 case, police conducted a field test for cocaine on white powder found in a damaged package. 26Open this footnote Close this footnote 26 466 U.S. 109, 111-12 (1984). Open this footnote Close The Court, invoking Katz, upheld the search, concluding that there could be no reasonable expectation of privacy in contraband. 27Open this footnote Close this footnote 27 Id. at 122-23, 122 n.22. Open this footnote Close But in Ackerman, Judge Gorsuch suggested that Jacobsen was wrongly decided. 28Open this footnote Close this footnote 28 See United Statesv. Ackerman, 831 F.3d 1292, 1307 (10th Cir. 2016). Open this footnote Close Because police destroyed a trace amount of private property to conduct their test, in light of Jones, it seems at least possible the Court today would find a search did take place. 29Open this footnote Close this footnote 29 Id. Open this footnote Close

Judge Gorsuch might also seek to expand the Jones approach to digital searches, as he did in Ackerman. In that case, he applied common law principles to digital searches, relying on the obvious analogy from letters to e-mails. 30Open this footnote Close this footnote 30 Id. at 1308. Open this footnote Close But Ackerman is at odds with the Courts method in Rileyv. California 31Open this footnote Close this footnote 31 134 S. Ct. 2473 (2014). Open this footnote Close a post-Jones decision. In Riley, the government proposed a similar approach to the one employed by Judge Gorsuch, arguing that the Fourth Amendment permits searching cell phone data incident to arrest if [police] could have obtained the same information from a pre-digital counterpart. 32Open this footnote Close this footnote 32 Riley, 134 S. Ct. at 2493. Open this footnote Close But the Riley Court rejected that analogue test because it would launch courts on a difficult line-drawing expedition. 33Open this footnote Close this footnote 33 Id. Open this footnote Close The Court then asked, in a question suggesting that Judge Gorsuchs analogy is not so obvious: Is an e-mail equivalent to a letter? 34Open this footnote Close this footnote 34 Id. Open this footnote Close

Judge Gorsuchs Ackerman opinion came after Riley, so he clearly has not rejected extending Jones through an analogue test. Convincing the Court to adopt that approach, however, will likely prove more difficult.

II. Terry Stops and Frisks

Judge Gorsuchs highly originalist approach to the Fourth Amendment in Carloss and Ackerman is difficult to reconcile with his wholesale acceptance of the stop-and-frisk doctrine under Terry v. Ohio. 35Open this footnote Close this footnote 35 392 U.S. 1 (1968). Open this footnote Close Terry allows an officer to stop and, in some cases, frisk a person on the street if the officer reasonably...conclude[s]...that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous. 36Open this footnote Close this footnote 36 Id. at 30. Open this footnote Close But Terry was a pragmaticnot an originalistdecision. Scholars and judges seeking a historical hook for Terry have uncovered little evidence linking Terrys stop and frisks to police actions at common law. 37Open this footnote Close this footnote 37 See Lawrence Rosenthal, Pragmatism, Originalism, Race, and the Case Against Terry v. Ohio, 43 Tex. Tech L. Rev. 299, 330-37 (2010); Sklansky, supra note 1, at 1804-06. For a tentative originalist explanation of Terrys stops, if not its frisks, see Minnesotav. Dickerson, 508 U.S. 366, 380 (1993) (Scalia, J., concurring). Open this footnote Close

Despite the doctrines shaky originalist footing, Judge Gorsuch has consistently ruled in favor of the government when criminal defendants have challenged the legality of stop and frisks 38Open this footnote Close this footnote 38 See, e.g., United Statesv. Willis, 533 F. Appx 849, 850-51 (10th Cir. 2013) (finding reasonable suspicion to stop and frisk an African American man when a caller reported a disturbance with a gun involving a black man wearing a gray shirt). Open this footnote Close and traffic stops. 39Open this footnote Close this footnote 39 See, e.g., United Statesv. Lopez, 518 F.3d 790, 797-800 (10th Cir. 2008). For a longer discussion of Lopez, see note 54 below. Open this footnote Close As his opinion in United Statesv. Nicholson 40Open this footnote Close this footnote 40 721 F.3d 1236 (10th Cir. 2013). Open this footnote Close makes clear, he is more likely to protect and expand existing stop-and-frisk doctrine than he is to offer a new, originalist critique of Terry.

A. United States v. Nicholson

In Nicholson, a police officer pulled over the defendants vehicle, mistakenly believing that a city ordinance prohibited a left turn he had made. 41Open this footnote Close this footnote 41 Id. at 1237. Open this footnote Close Applying Tenth Circuit precedent, the majority held the officers mistaken understanding of the law rendered the stop categorically unreasonable. 42Open this footnote Close this footnote 42 Id. at 1238, 1241-42; see also United Statesv. Tibbetts, 396 F.3d 1132, 1138 (10th Cir. 2005) ([F]ailure to understand the law by the very person charged with enforcing it is not objectively reasonable.); United Statesv. DeGasso, 369 F.3d 1139, 1144-45 (10th Cir. 2004) (holding that an officers failure to understand the plain and unambiguous law he is charged with enforcing...is not objectively reasonable). Open this footnote Close

Judge Gorsuch dissented, arguing that mistakes of law are per se unreasonable only where the law is unambiguous, [and] the error plain. 43Open this footnote Close this footnote 43 See Nicholson, 721 F.3d at 1248 (Gorsuch, J., dissenting). Open this footnote Close He emphasized that under Terry, the central Fourth Amendment inquiry is whether the government has acted reasonably 44Open this footnote Close this footnote 44 Id. Open this footnote Close whether a reasonable and prudent officer would have acted as [the officer] did in the circumstances. 45Open this footnote Close this footnote 45 Id. at 1249 (quoting Ornelasv. United States, 517 U.S. 690, 695 (1996)). Open this footnote Close He explained this approach will rarely yield...a neat set of legal rules 46Open this footnote Close this footnote 46 Id. at 1248 (quoting United Statesv. Sokolow, 490 U.S. 1, 7 (1989)). Open this footnote Close or bright-line tests. 47Open this footnote Close this footnote 47 Id. (quoting Floridav. Harris, 133 S. Ct. 1050, 1055 (2013)). Open this footnote Close Rather, the analysis will typically favor a case-by-case approach that takes a realistic view of human capacities and limitations. 48Open this footnote Close this footnote 48 Id. Open this footnote Close He concluded, therefore, that an officers mistaken understanding of the law should be assessed based on the totality of the circumstances. 49Open this footnote Close this footnote 49 Id. at 1248-49. Open this footnote Close

At the time, the Fifth, Seventh, Ninth, and Eleventh Circuits had all held categorically that an officers mistake of law could not justify a stop. 50Open this footnote Close this footnote 50 See United Statesv. McDonald, 453 F.3d 958, 962 (7th Cir. 2006); United Statesv. Chanthasouxat, 342 F.3d 1271, 1279-80 (11th Cir. 2003); United Statesv. King, 244 F.3d 736, 741 (9th Cir. 2001); United Statesv. Miller, 146 F.3d 274, 279 (5th Cir. 1998). Open this footnote Close Only the Eighth Circuit had held otherwise. 51Open this footnote Close this footnote 51 See United Statesv. Rodriguez-Lopez, 444 F.3d 1020, 1022-23 (8th Cir. 2006). Open this footnote Close But in an 8-1 decision, the Supreme Court ultimately adopted the minority approachJudge Gorsuchs approachin Heienv. North Carolina. 52Open this footnote Close this footnote 52 135 S. Ct. 530 (2014). Open this footnote Close

B. Implications

Legal scholars and advocates have frequently criticized Terry and its amorphous reasonableness standard for granting police too much discretion. 53Open this footnote Close this footnote 53 See Rosenthal, supra note 37, at 300-01, 300 n.7 (collecting literature). Open this footnote Close But Judge Gorsuchs jurisprudence suggests that rather than introducing originalist limits on Terry, he will protect and expand the substantial discretion Terry grants to police officers.

In Nicholson, Judge Gorsuch both emphasized Terrys pragmatic focus on the reasonableness of a stop and encouraged courts to conduct case-by-case analyses. This approach is unlikely to generate new, bright-line rules cabining police discretion under Terry. Judge Gorsuch also appears willing to show officers a great deal of deference when evaluating the reasonableness of their conduct, 54Open this footnote Close this footnote 54 See, e.g., United Statesv. Lopez, 518 F.3d 790, 797-800 (10th Cir. 2008). In Lopez, officers stopped the defendants truck after seeing a man place a cooler in the bed of the truck. Id. at 798. The trial court determined the officers observations were insufficient to create reasonable suspicion that there were drugs in the cooler; they amounted to inchoate suspicions and unparticularized hunches. United Statesv. Lopez, 485 F. Supp. 2d 1226, 1236 (D. Kan. 2007). Judge Gorsuch overturned that finding, emphasizing the officers training and experience in detecting drug sales. See Lopez, 518 F.3d at 792, 797-800. Open this footnote Close suggesting that, as a practical matter, he may not see bright-line rules as useful or desirable.

One specific Terry challenge the Court may soon confront is the tension between more expansive Second Amendment rights 55Open this footnote Close this footnote 55 See, e.g., District of Columbiav. Heller, 554 U.S. 570, 635-36 (2007). Open this footnote Close and broad police discretion to conduct stop and frisks. In an opinion joined by Judge Gorsuch, the Tenth Circuit in United Statesv. Rodriguez 56Open this footnote Close this footnote 56 739 F.3d 481 (10th Cir. 2013). Open this footnote Close held that officers can stop and frisk individuals simply because they are carrying concealed firearms, even if the jurisdiction allows for permitted concealed carry. 57Open this footnote Close this footnote 57 Id. at 486-87, 491 (citing N.M. Stat. Ann. 30-7-2). Open this footnote Close Similarly, the Fourth Circuit recently held in United Statesv. Robinson 58Open this footnote Close this footnote 58 846 F.3d 694 (4th Cir. 2017) (en banc). Open this footnote Close that in concealed-carry jurisdictions, once an officer has legally stopped a person, the officer can frisk him if he is armed. 59Open this footnote Close this footnote 59 Id. at 701. Open this footnote Close But in tension with those holdings, the Sixth, Fourth, and Third Circuits have held that where state law allows open carry of firearms, the police cannot conduct a Terry stop simply because a person visibly carries a gun. 60Open this footnote Close this footnote 60 See Northrupv. City of Toledo Police Dept, 785 F.3d 1128, 1131-33 (6th Cir. 2015); United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013); United Statesv. Ubiles, 224 F.3d 213, 218 (3d Cir. 2000). Open this footnote Close

The Court is likely to confront this growing tension in the coming years. The Robinson dissent urged the court to adopt a rule that officers cannot conduct frisks of armed individuals without evidence that they are not only armed but also dangerous. 61Open this footnote Close this footnote 61 See Robinson, 846 F.3d at 707, 709 (Harris, J., dissenting). Open this footnote Close But as he did in Rodriguez, Judge Gorsuch would likely uphold the legality of the frisk in Robinson. In Rodriguez, the Tenth Circuit reasoned that an officer making a lawful investigatory stop [must have] the ability to protect himself from an armed suspect whose propensities are unknown. 62Open this footnote Close this footnote 62 Rodriguez, 739 F.3d at 491. Open this footnote Close Instead of the dissents rule, Judge Gorsuch is likely to favor an approach that prioritizes officer safety by considering the totality of the circumstances and tak[ing] a realistic view of human capacities and limitations, as he did in Nicholson. 63Open this footnote Close this footnote 63 United States v. Nicholson, 721 F.3d 1236, 1248 (10th Cir. 2013) (Gorsuch, J., dissenting). Open this footnote Close

Conclusion

It is too simple, then, to say that Judge Gorsuch is an originalist or that he will merely preserve Justice Scalias common law approach to the Fourth Amendment. True, Judge Gorsuch has adopted Justice Scalias bright-line trespass test for searches of personal property. But while Justice Scalia never conclusively resolved whether stop and frisks would have been permitted at common law, 64Open this footnote Close this footnote 64 See Minnesotav. Dickerson, 508 U.S. 366, 380 (1993) (Scalia, J., concurring). Open this footnote Close he was always frank regarding his preference for bright-line rules over thol totality-of-the-circumstances. 65Open this footnote Close this footnote 65 See United States v. Mead Corp., 533 U.S. 218, 241 (2001) (Scalia, J., dissenting); see also Justice Antonin Scalia, The Rule of Law as a Law of Rules, Oliver Wendell Holmes, Jr. Lecture at Harvard University (Feb. 14, 1989), in 56 U. Chi. L. Rev. 1175, 1186 (1989). Open this footnote Close Conversely, Judge Gorsuch seems not just to tolerate but to prefer case-by-case reasonableness inquiries when it comes to stop and frisks. 66Open this footnote Close this footnote 66 See United Statesv. Nicholson, 721 F.3d 1236, 1248-49 (2013) (Gorsuch, J., dissenting) (arguing for a case-by-case approach that considers the totality of the circumstances and takes a realistic view of human capacities and limitations). Open this footnote Close So although Judge Gorsuch could, if confirmed, posit an originalist answer to Terry and thereby develop a unified originalist approach to the Fourth Amendment, there is nothing in his record to indicate that such a project interests him.

* Sophie J. Hart, J.D. Candidate, Stanford Law School, 2017. Dennis M. Martin, J.D. Candidate, Stanford Law School, 2018.

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