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David H. Gans, Opinion contributor Published 7:44 p.m. ET March 22, 2021

The footprint of American policing is vast.

And policeofficersrespond toa host ofproblems that have nothing to do with catchingpeople suspected of crimes. Fundamental questions about just how far police power should extendare at the core of acritically important case,Caniglia v. Strom, thatthe Supreme Court is slated to hear Wednesday.

This case has gone unnoticed so far among a Supreme Court docket loaded with important cases concerning everything fromhealth care, voting rightsandreligious exemptionsto anti-discrimination laws.But the issue inCaniglia whether policeofficersmayinvadea personshomewithout a warrantor without suspicionof criminal activity,simply becausetheyare pursuing a community caretakingfunction could notbe more important.

The questionthe justices must answeris far reaching:Is our home still our castle?

The Supreme Court(Photo: J. Scott Applewhite/AP)

"When it comes to the Fourth Amendment,the home is first among equals,as Justice Antonin Scaliaput itin a2013 ruling. If police canentera persons home without any suspicion of criminal wrongdoingsimply because they claim to be taking care of the community,the Fourth Amendment would be close to a dead letter.Ourright to be securewould existonly at the whim of the police.

The police officerswho broke into the home of Edward Canigliaareurging the court, with therather surprisingsupport of the Biden administration,tobless a massive expansion in the power of policeto enter the home.They claim that police officers may invade the hometo protect thepurportedsafetyofthecommunityifthe police actedreasonably. As a fallback, they argue that the police officersareprotected by qualifiedimmunity, a doctrine that prevents holding police officers and otherslegallyaccountable.

Embracingsuch an open-ended formulawould grant police officers theunbridleddiscretion the Fourth Amendment was designed to prevent.The Fourth Amendment promised to end indiscriminate searches and seizures of the home.Canigliatests whether the justices are willing to enforce the central idea at the heart of the Fourth Amendment: the need for strict limits on excessive police discretion.

In theory,communitycaretakingsoundslike areasonablejustification.But the difficulty is that it lacks any coherent limiting principleand wouldallow the police to invade the privacy and sanctity of the homein a startling array of circumstances. Expanding the power of the police to break into a persons home particularlyforpetty matterssuch asinvestigatingnoise complaints opensthe door tohorrificpoliceabuse andviolence.These fears are hardly theoretical.In recent years,police have killeda number ofinnocent Black people in their homes. Expanding opportunities forwarrantlesspolice entryinto the homehas the potential to end in even moreloss of life.

In the wake of the killing of George Floyd, who died after an officer put a kneeon the unarmed Black man's neck,Americans have been reckoning with the scourge of police violence that has resulted in the taking of so many innocent lives in communities of color.One of the most important lessons we have learnedin the past yearisthatthepolice are engaged in many tasks that have little to do with crime fighting and do not require the use of force. We need to findways to limit the circumstances in which we rely on the police, who are given immense powers by the state touse force and inflictharm.

Sanctioning a massive expansion in the power of the policeto invadethe homebasedona nebulous interest in "community caretaking" would move the law in the exact opposite direction. It would place the Supreme Courts imprimatur on the broadest possible conception of the power of the police toviolateour security and privacy in the home.To be sure, such unbridled police authority would fall hardest on the poorest and most marginalized communities, but the threat cuts across ideological linesin unexpected ways.Amicus briefsfiled in support of Canigliarangefrom Gun Owners of America, the Second Amendment Law Center, Institute for Justiceand the Cato Instituteto the American Civil Liberties Union, the National Association of Criminal Defense Lawyersand my organization,theConstitutional Accountability Center.

TheFounding generation considered the hometo bea place of perfect security.Thequestion now is whether the Supreme Court will respect the text and history of the Fourth Amendment, or invent a new exception that would open the floodgates to police entry of the home.

Thejusticesshould make clear that policeneed a warrant and probable cause of criminal wrongdoing or emergency circumstances before theyentera personshome.

DavidH.Gans is civil rights director at Constitutional Accountability Center, a public interest law firm and think tank dedicated to promoting the progressive promise of the Constitutions text, history and values.

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In wake of Floyd, Taylor killings, should police have power to enter your home without a warrant? - USA TODAY

A federal appeals court has granted qualified immunity to a school resource officer who escorted a 16-year-old high school student to a school office to be questioned by two city police officers who were investigating an off-campus sexual assault.

The ruling by a panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, reverses a federal district judge who had ruled that the SRO had conducted an unreasonable seizure of the student in violation of the Fourth Amendment.

The SROs involvement in the alleged seizure was relatively minimal and ministerial, the unanimous 8th Circuit panel said in its March 18 decision in L.G. v. Columbia Public Schools.

The case stems from a day in May 2019 at Rock Bridge High School in Columbia, Mo., when city police officers were investigating an alleged sexual assault of a female student at a house. They asked to question the student identified as L.G. because they believed she may have had information about the alleged crime, court papers say.

L.G. is described in court papers as a straight-A student who suffers from anxiety disorder and other conditions. She was taking a final exam in her geometry class when she was summoned to the school office, though her teacher had her finish the exam first.

When L.G. reported to the office, SRO Keisha Edwards escorted the student to another office where the city police officers were waiting. Edwards shut the door and left the student with the city police officers, who did not have a warrant to question L.G. They asked her about the alleged off-campus assault, but L.G. told them she was not aware of it.

The questioning took 10 to 20 minutes, during which L.G. did not feel free to leave. She became distraught, and she called her mother right after, court papers say. L.G. suffered longer-term anxiety and her schoolwork suffered following the incident, her suit says.

The family sued Edwards, the school principal, the school district, the city, and the two city police officers. In a ruling last year, the federal district judge dismissed some claims and allowed others to proceed.

The judge declined qualified immunity to the SRO, ruling that Edwards had unconstitutionally seized L.G. by calling her out of class, escorting her to the room with the city officers, and closing the door. The district judge further held that the right of a student not to be seized in school without a warrant had been clearly established by 8th Circuit precedent.

Edwards appealed her denial of qualified immunity, and the 8th Circuit court panel took a different view than the district judge.

Edwards merely escorted L.G. to a room and closed a door, the appeals court said. The students suit does not allege that Edwards positioned herself to limit L.G.s movements, displayed a weapon, touched L.G., used language or tone indicating compliance was necessary, or retained L.G.'s property, the panel added.

The 8th Circuit court also suggested that while constitutional protections against a seizure without probable cause generally apply to students as well as to others, the school setting presents some unique considerations.

Even though students have some Fourth Amendment protection, an officer in Edwardss situation would not know, without more guidance, whether her escorting L.G. to a room with other officers and closing a door constitutes a seizure, the court said. [T]he answers to Fourth Amendment questions in cases like these are not so obvious as to put an officer in Edwardss situation on notice that her actions would violate L.G.'s constitutional rights.

The 8th Circuit opinion dealt only with the SROs appeal of the denial of qualified immunity. With the reversal, the SRO cannot be held personally liable for any violations of L.G.'s rights stemming from the incident.

When it comes to the two city police officers and the other defendants, it appears that the district courts May 12, 2020, opinion denied L.G.s claim for an injunction barring Columbia police officers from interrogating students in school without a warrant or probable cause or outside presence of a parent or guardian.

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Appeals Court Rules for School Resource Officer on Role in Police Interrogation of Student - Education Week

When he went for a ride, his wife hid the gun between the mattress and box spring, packed a bag, and stayed at a hotel for the night. She called the Cranston police the next day, saying she was worried about her husband. The police accompanied her back to the house, and the ranking officer concluded that her husband posed a danger to himself or others.

An ambulance took Edward Caniglia to Kent Hospital for a psychiatric evaluation, and officers seized two of his handguns while he was gone. Caniglia said he agreed to go to the hospital because the officers promised not to take his guns. Officers acknowledged no such agreement. He was not admitted to the hospital, nor charged with a crime. Though the police eventually returned the guns, Caniglia sued, claiming the police had violated his Fourth Amendment rights against unreasonable searches and seizures.

Chief US District Court Judge John J. McConnell Jr. rejected the claim of a Fourth Amendment violation, citing the community caretaking exception to the warrant requirement. He said the gun seizure was reasonable considering the officers legitimate safety concern for Caniglia and his wife.

Caniglia appealed, and three judges from the Boston-based 1st US Circuit Court of Appeals heard the case, including former US Supreme Court Justice David H. Souter and Senior US Circuit Court of Appeals Judge Bruce M. Selya, a Rhode Islander who wrote a decision upholding the lower court.

There are widely varied circumstances, ranging from helping little children to cross busy streets to navigating the sometimes stormy seas of neighborhood disturbances, in which police officers demonstrate, over and over again, the importance of the roles that they play in preserving and protecting communities, Selya wrote in March 2020.

He noted that in the 1973 case of Cady v. Dombrowski, the US Supreme Court ruled that in some circumstances, police may search a motor vehicle without first getting a warrant if they are engaged in a community caretaking function rather than investigating a crime.

The 1st Circuit ruling extended that exception to peoples homes.

The community caretaking doctrine is designed to give police elbow room to take appropriate action when unforeseen circumstances present some transient hazard that requires immediate attention, Selya wrote. Understanding the core purpose of the doctrine leads inexorably to the conclusion that it should not be limited to the motor vehicle context. Threats to individual and community safety are not confined to the highways.

By extending the exception to homes, the 1st Circuit differed from other federal courts, leading to Wednesdays Supreme Court hearing.

The ruling butts up against the legal maxim that a mans house is his castle, and it has drawn objections from groups ranging from the American Conservative Union Foundation to the American Civil Liberties Union of Rhode Island.

The home is considered to be the place where privacy rights and the guarantees of the Fourth Amendment are at their peak, Rhode Island ACLU executive director Steven Brown said Tuesday.

The police already have the ability to go into homes without warrant when there are exigent circumstances, meaning true emergencies, Brown said. But to come up with another excuse in the absence of an emergency to allow police to waltz into your home should be of concern to anyone who values privacy, he said.

In a legal brief, the ACLU said that extending the community caretaking exception to warrantless searches of homes would let the police bypass Fourth Amendment protections in a startling array of circumstances.

These are not theoretical concerns, the ACLU wrote. In both state and federal courts, everything from loud music to leaky pipes have been used to justify warrantless invasion of the home.

The Second Amendment Foundation filed a legal brief, saying the term community caretaking might sound therapeutic and roll off the tongue in a paternalistic patter that makes one think of good neighbors and sanctuary from harsh realities.

But as a constitutional doctrine, it means law enforcement officers, with no oversight from the legislature or judiciary, are empowered, on their own initiative, to deprive a law-abiding citizen of the means of exercising the Second Amendment in their home, the group said.

Make no mistake, the community caretaking exception is a Trojan horse abrogation of the Fourth Amendment, designed to undermine the Second Amendment at the retail level of governance, the foundation wrote.

But the US Department of Justice filed a legal brief defending the actions of the Cranston police, saying the officers confronted a specific, credible, and reasonably impending threat of suicide or domestic violence.

Faced with an unenviable choice about how or whether to intervene, the officers reasonably decided not to leave petitioner agitated, ostensibly suicidal, and with two handguns at his fingertips, the federal lawyers wrote.

Marc DeSisto, a lawyer for the Cranston officials who were sued, said ruling acknowledges two competing interests: the need for the caretaking activity and the affected individuals interest in freedom from government intrusions. But courts have long recognized the difficult position police officers face when responding to calls for help, rather than reports of crime, he said. Especially when self-harm is threatened, decisions must be made with an eye towards deescalating and calming the situation.

Society demands and deserves that first responders, including police, protect and serve their communities, DeSisto wrote. Whether it is preventing suicide, protecting domestic partners, responding to natural disasters, or helping children and the elderly, such functions can be and have been performed for over two centuries consistent with the Fourth Amendment.

Sidney Wordell, executive director of the Rhode Island Police Chiefs Association, noted that in 2018 Rhode Island enacted red flag law that allows courts to disarm individuals who are believed by law enforcement to represent a violent threat to themselves or others.

DeSistos legal brief noted that the red flag law took effect three years after the incident involving Caniglia, so it wouldnt apply in this case. But Wordell said the law now provides a means of removing weapons from volatile domestic situations, and it provides a process for returning guns after a cooling down period.

Law enforcement doesnt have the luxury of determining what didnt happen, Wordell said. But we do know data around use of weapons in domestic violence situations is that someone who threatens violence or is prone to violence is probably going to carry that out.

While the high court arguments will focus on the concept that a mans house is his castle, Wordell said, That is a shared home she lives there, too.

Edward Fitzpatrick can be reached at edward.fitzpatrick@globe.com. Follow him on Twitter @FitzProv.

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US Supreme Court to hear R.I. case involving warrantless seizure of guns - The Boston Globe

This is especially concerning because within the executive branch, OLC opinions are considered binding unless the president or attorney general overrules them. That gives OLC tremendous influence in setting the parameters of how the government acts. In fact, officials who act in accordance with an OLC opinion typically have immunity from punishment if their actions are later determined to be illegal.

Even worse, much of OLCs work goes on in secret. The office takes the position that its opinions are exempt from open records laws, and while it does proactively publish a certain number of them, there is often a substantial delay before the public sees OLCs justifications for government actions.

The offices tendency to expand presidential power has led to executive actions that have directly harmed people, undermined rights, and stifled Congresss efforts to oversee the executive branch.

The offices failings are best illustrated by its most notorious opinions. It advised the CIA that torture was permissible, despite federal and international law that explicitly prohibited it. The office approved warrantless surveillance of Americans communications despite the clear requirements of the Fourth Amendment. More recently, it signed off on a drone strike against a U.S. citizen abroad, despite serious constitutional concerns stemming from due process rights.

An exhaustive list of harmful OLC opinions would be far too long to print, but an additional smattering illustrates the massive scope of the offices damage. It has approved military action without congressional approval; barred the Food and Drug Administration from regulating the drugs used for lethal injections; blocked an inspector general from reporting to Congress the misconduct that led to former President Donald Trumps first impeachment; effectively nullified the laws governing succession of leadership at federal agencies; and in a line of opinionsdating back to the 1980s, blocked Congressfrom carrying out its constitutionally mandated oversight function at nearly every turn.

What measures are necessary to ensure the office consistently respects the rule of law? A good place to start is the recommendations in our recently published policy agenda for Congress and the new administration. There, we set out four categories of commonsense reforms to bring the office in line: increased transparency, a review of past opinions, process improvements within OLC, and congressional pushback.

First, Congress should require OLC to release all of its non-classified opinions. Increasing transparency at OLC has long been a Project On Government Oversight (POGO) priority, and has enjoyed support from both sides of the aisle in Congress in the past. If the public and Congress dont know how the executive branch is interpreting the law, they cannot hold it accountable or fix laws that are too vague. OLC, for its part, has said that such a requirement would be unconstitutional, but Congress, and if necessary the courts, have a say in that as well.

Visit link:
Rubber Stamp or Rule of Law? - Project On Government Oversight

The Supreme Court of the United States issued an order list on Monday morning which contained an increasingly common occurrence: Justices Sonia Sotomayor and Neil Gorsuch banding together in order to opine on what they view as the need for criminal justice reform.

The underlying case concerns Martin Longoria, who, in 2018, was indicted for the crime of being a felon in possession of several firearms, according to the U.S. Court of Appeals for the Fifth Circuit.

Longoria challenged the government on Fourth Amendment grounds by noting that the FBI had searched his apartment without a warrant. The defense moved for suppression as a remedy for the alleged constitutional violation but the district court denied the motion because it found that Longorias wife had consented to the search.

Instead of pleading guilty, the defense and the prosecution agreed on a stipulated bench trial. Which, in effect, can often be considered tantamount to a guilty plea. The constitutional right to a jury is waived and, instead of outright pleading guilty, the government and a criminal defendant agree on the facts underlying the case which allows a judge plenary power to determine guilt or innocence.

In Longorias case, the decision to sign off on a stipulated bench trial was made in order to retain his Fourth Amendment-based suppression challenge regarding the FBIs warrantless search.

Longoria was found guilty and, despite the suppression issue, his case now concerns sentencing under the federal guidelines.

The prosecutions pre-sentencing report argued for a base level of 20, which is in the lower level of the highest zone considered by judges when sentencing federal criminal defendants. Additionally, the prosecution argued for various enhancements which, in sum, would have resulted in a lengthy prison sentence of between five and six-and-a-half years in prison. The judge gave Longoria the full sentence available under the guidelines. Longoria appealed.

The discrete legal issue before the nations high court is the proper interpretation of 3E1.1(b) of the guidelines, which is commonly known as the Acceptance of Responsibility section.

This administrative regulation provides that a defendant is eligible to receive an additional point off of their base sentencing level if their offense level is at least 16 and they timely notify the government that they intend to plead guilty (or the effective equivalent) thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently.

The government declined to entertain Longorias request for the one-point reductionwhich can be equivalent to several years in prison depending on the casebecause they had to prepare for his suppression hearing. In the prosecutions argument, preparing for that full-blown suppression hearing was the equivalent of preparing for an actual trial, even though the hearing only lasted one day, and therefore the governments resources were not spent effectively. The government did not argue that Longorias bench stipulation trial should not be considered equivalent to a guilty plea.

The Fifth Circuit agreed with the government. The panel of bipartisan judges (appointed by former presidentsGeorge W. Bush, Barack Obama and Donald Trump) based their reasoning on a former case which held that a suppression hearing [could be] in effect the substantive equivalent of a full trial.

Longoria appealed to the Supreme Court, pointing at a 2013 amendment to the guidelines which says that [t]he government should not withhold [an acceptance of responsibility] motion based on interests not identified in 3E1.1, such as whether the defendant agrees to waive his or her right to appeal.

Notably, Longoria also cited this amendment in his original appealbut the Fifth Circuit chose to ignore the plain language of the text because the amendment does not clearly overrule the conditional precedent cited to deny leniency for criminal defendants in the notoriously conservative circuit.

The justices denied to hear Longorias case as welleffectively agreeing with the Fifth Circuit and leaving the sentence intact. Sotomayor and Gorsuch issued a statement that is not a dissent, but rather a commentary expressing the idea that the Supreme Court should weigh in on the subject for the sake of uniformity at least.

The two reform-minded justices also credited Longorias argument:

This petition implicates an important and longstanding split among the Courts of Appeals over the proper interpretation of 3E1.1(b). Most Circuits have determined that a suppression hearing is not a valid basis for denying the reduction, reasoning that preparation for a motion to suppress is not the same as preparation for a trial, even if there is substantial overlap between the issues that will be raised. A minority of Circuits have concluded otherwise. In this case, for example, the Fifth Circuit accepted the Governments refusal.

So, why not a full dissent?

Because they want the U.S. Sentencing Commission to have an actual chance at clearly overruling the Fifth Circuit first.

The Sentencing Commission should have the opportunity to address this issue in the first instance, once it regains a quorum of voting members, Sotomayor wrote. The present disagreement among the Courts of Appeals means that similarly situated defendants may receive substantially different sentences depending on the jurisdiction in which they are sentenced. When the Commission is able, it should take steps to ensure that 3E1.1(b) is applied fairly and uniformly.

A footnote explains the crux of the matter here: Currently, six of the seven voting members seats are vacant. The votes of at least four members are required for the Commission to promulgate amendments to the Guidelines.

[image via screengrab/CBS]

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Justices Sotomayor and Gorsuch Team Up to Argue for Criminal Justice Reform - Law & Crime