On July 6, 2015, Judge Matthew Kennelly of the U.S. District Court for the Northern District of Illinois entered an order finding that a Cook County Jail policy banning newspapers in the jail violates the First Amendment rights of prisoners at the jail. The Jail policy completely banning inmates from possessing newspapers, newspaper articles, or newspaper clippings has been in place since 1984.

Judge Kennelly wrote that a complete ban on all newspapers was “an exaggerated and therefore unreasonable response” to the jail’s security concerns, which included an alleged risk of fires, the use of newspapers as weapons, and sanitation problems resulting from inmates’ using newspapers to clog toilets.

Attorneys Mark Weinberg and Adele Nicholas brought the case on behalf of Gregory Koger, who was an inmate in the jail for three months in 2013. Koger claimed that the jail’s ban on newspapers violated the First Amendment rights of inmates to read, receive information, and stay abreast of the news.

Cook County Jail is the largest single-site county jail in the United States. It houses roughly 100,000 detainees per year and has an average a daily population of 9,000 detainees.

The case is Koger v. Sheriff Thomas Dart, et al., 13 C 7150.

You can read more about the decision from Reason, The Chicago Reader and The Chicago Sun-Times.

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Despite its 1974 pronouncement in Wood v. Strickland, 420 U.S. 308, 321 (1975) that an action that violates a citizen’s rights cannot be “justified by ignorance or disregard of settled, indisputable law,” the Supreme Court ruled 8-1 in Heien v. North Carolina, No. 13–604, that police officers do not violate the Fourth Amendment when they make a stop or arrest based on a “reasonable mistake of law.”

The December 15, 2014, decision arose from a quotidian scenario: cop wants to investigate a “suspicious” car; cop pulls car over when he sees that it has one brake light out, which the cop believes to be a violation of North Carolina law; motorist’s “nervous” behavior during the ensuing stop gives cop some further suspicion; cop asks for and receives permission to search the car; drugs found; motorist arrested and charged.

Then there’s a twist. It turns out that North Carolina law requires only one working brake light, which the motorist had, meaning that the cop curbed the car for something that did not violate any law. Must the drugs be suppressed as the fruit of an unreasonable seizure?

No, says the Supreme Court. Just like a seizure based on a reasonable mistake of fact does not violate the Fourth Amendment (the Court gives the good example of cop pulling over a driver who appears to be driving solo in a high-occupancy lane when it turns out that driver had two kids slumped over sleeping in the back seat) neither does a cop’s “objectively reasonable” mistake of law violate the Fourth Amendment.

Here, the Supreme Court says it was reasonable for the cop to (mistakenly) believe that the North Carolina vehicle code in question required all brake lights to be operational. Therefore, the stop was reasonable and the drugs are not suppressed.

Obviously, the biggest beef people have with the decision is that it seems to fly in the face of the age-old principle that knowledge of the law is imputed to the general public. In other words, that “ignorance of the law is no excuse.” See e.g., Bryan v. United States, 524 U.S. 184, 195, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (“ignorance of the law is no excuse” for criminal conduct). Indeed, some courts have pointed out that permitting an ignorance of the law defense in the qualified immunity context “might foster ignorance of the law or, at least, encourage feigned ignorance of the law.” Glasson v. City of Louisville, 518 F.2d 899, 909-10 (6th Cir.1975). See also, e.g., Pritchard v. Hamilton Township Board Of Trustees, 2011 WL 2039066, No. 09-4594, (6th Cir., May 25, 2011) (“Knowledge of the statute is imputed to the police officers. … We see no reason to hold that it would be reasonable for an officer to be ignorant of the very statute that he is enforcing.”)

I’m not entirely convinced by Justice Roberts’ attempt to explain these problems away:

Contrary to the suggestion of Heien and amici, our decision does not discourage officers from learning the law. The Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law— must be objectively reasonable. We do not examine the subjective understanding of the particular officer involved. Cf. Whren v. United States, 517 U. S. 806, 813 (1996). And the inquiry is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation. Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.

Finally, Heien and amici point to the well-known maxim, “Ignorance of the law is no excuse,” and contend that it is fundamentally unfair to let police officers get away with mistakes of law when the citizenry is accorded no such leeway. Though this argument has a certain rhetorical appeal, it misconceives the implication of the maxim. The true symmetry is this: Just as an individual generally cannot escape criminal liability based on a mistaken understanding of the law, so too the government cannot impose criminal liability based on a mistaken understand- ing of the law. If the law required two working brake lights, Heien could not escape a ticket by claiming he reasonably thought he needed only one; if the law required only one, Sergeant Darisse could not issue a valid ticket by claiming he reasonably thought drivers needed two. But just because mistakes of law cannot justify either the imposition or the avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop. And Heien is not appealing a brake-light ticket; he is appealing a cocaine-trafficking conviction as to which there is no asserted mistake of fact or law.

The sole dissenter, Justice Sotomayor, decried the majority’s “ero[sion of] the Fourth Amendment’s protection of civil liberties” and points out that “the meaning of the law is not probabilistic in the same way that factual determinations are. Rather, ‘the notion that the law is definite and knowable’ sits at the foundation of our legal system.”

She also discusses another practical problem with the decision: that it will have “the perverse effect of preventing or delaying the clarification of the law” by lower courts, which in deciding motions to suppress will no longer need to offer a definitive interpretation of the law, but rather will need only to decide whether the officer’s interpretation of the law–setting right or wrong aside–was a “reasonable” one. Justice Sotomayor writes: “This result is bad for citizens, who need to know their rights and responsibilities, and it is bad for police, who would benefit from clearer direction.”

Is this decision a disaster for the Fourth Amendment? I don’t know. It’s not good. My biggest concern is that leaves so much in the hands of lower court judges, who are now the sole arbiters of whether a mistake of law was “objectively reasonable.” With a favorable judge, Heien is a non-issue. With a judge biased towards the police? It’s a big problem.

Full text of the decision here.

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Judge Maria Valdez sentenced ex Cook County Sheriff’s Deputy Rafael Munoz to a year in federal prison for his unprovoked attack on a shackled prisoner in the lockup at the Maywood courthouse. Federal prosecutors charged Munoz with civil rights violations in the attack, which was captured on video:

Munoz pled guilty to a misdemeanor charge. Valdez reportedly rejected Munoz’s attorneys request that he be allowed to serve his sentence at home without electronic monitoring and chastised him for creating false reports stating that the shackled prisoner had “fallen.”

Sun Times coverage here

Vice Magazine has published this in-depth account of two citizens’ struggle to hold accountable Chicago police officers who attacked them. This story is a sad, but unfortunately all too common, example of the lengths to which the City will go to prevent police misconduct from being discovered and punished.

I am working on a First Amendment lawsuit against the City of Springfield, Illinois concerning its unconstitutional municipal panhandling ordinance and the City’s unconstitutional treatment of people who panhandle.

The suit has received some interesting media coverage this week, including this detailed article from the State Journal Register, and this post on the WSJ Law Blog.

Following in the footsteps of its awful 2010 decision in Berghuis v. Thompkins, the Supreme Court continued to erode suspects’ Fifth Amendment rights with its really bad decision in Salinas v. Texas.

The facts of Salinas are pretty simple. Two guys were shot in Houston. The only evidence collected from the scene were some shotgun casings. Salinas, who’d been at the victims’ house earlier in the night, was a suspect. Cops asked him to come to the station to answer questions. Salinas complied. He wasn’t formally arrested, nor was he read his Miranda rights.

After about an hour of questioning, the cops asked Salinas if the shells at the scene would be a match with Salinas’ shotgun if they tested it. Salinas didn’t answer, but (according to the totally unbiased cops) he acted uncomfortable and started biting his lip and shuffling his feet.

Salinas was charged. As is his right, he did not testify at trial. Nonetheless, cops testified about his supposedly incriminating reaction to their questions. After his conviction, Salinas appealed, arguing that this testimony violated his Fifth Amendment right to remain silent and not have that silence used against him in court.

In a 5-4 decision authored by Justice Alito the court ruled that Salinas’ silence could be used against him because Salinas never invoked his right to remain silent. According to the decision, Salinas should have known (without even being read his rights) that he had to make a formal, affirmative statement invoking those rights in order to avail himself of the Fifth Amendment’s protections. (Justices Thomas and Scalia, who were part of Alito’s majority, would have taken it even a step further — they thought that Miranda didn’t even apply to Salinas because he hadn’t been formally arrested.)

In Berghuis, the Court already made it harder to invoke the right to remain silent by finding that just remaining silent and refusing to answer questions wasn’t an invocation of Miranda rights. Rather, the person needs to “unambiguously” invoke his right to remain silent by stating aloud that he is doing so. There, Justice Kennedy wrote that a suspect who refused to answer questions for nearly three hours despite repeated questioning by police still somehow knowingly and intelligently waived his Miranda rights by finally responding to some questions hours later. Apparently, the suspect is supposed to deliver a short treatise on Miranda and its progeny in order to avail himself of its protections.

The real world implications are pretty much obvious. Police interrogations are inherently unbalanced situations. The police have the power and the experience. Police want suspects to waive Miranda and confess. And they are going to invoke the means available to them to get what they want. The average suspect or arrestee, on the other hand, is not a constitutional scholar, and won’t understand that there is now this requirement of an unambiguous oral statement for him to be entitled to his constitutional rights (rather than those rights just, you know, applying to the people they’re supposed to protect in a way that makes sense). Salinas and Berghuis provide police with a powerful incentive to (a) delay in informing the suspect of his rights; and (b) continue questioning in circumstances where the suspect has indicated an unwillingness to talk to the police, but hasn’t formally stated that he is invoking his constitutional rights. The Supreme Court has countenanced exactly that type of police work.

Northern District of Illinois Judge Sharon Johnson Coleman granted a permanent injunction on enforcement of the portion of the Illinois Eavesdropping Act that makes it illegal for a citizen to make an audio recording of law enforcement officials performing their public duties in public places. The case is ACLU v. Alvarez. Read more here.

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Today a Northern District of Illinois jury returned a verdict of $50,000.75 in favor of the plaintiff in the case Ratliff v. Carroll, 10 C 739. The plaintiff, Pares Ratliff, was about to put air in his tires when the police approached him and said they had a warrant for his arrest. Ratliff responded that that wasn’t true. After a back and forth exchange, Ratliff said that he’d go with the officers if they gave him the $.75 he’d just spent to put air in his tires. Predictably, the officers didn’t like this comment. They arrested him for assault (claiming he threatened them) and left his car unattended on the street, where it was stolen. The gas station video contradicted the officers’ version of events.

The jury awarded the plaintiff the wonderfully precise sum of $50,000.75 — comprising $30,000 in compensatory damages, $15,000.75 in punitives against one officer and $5,000 in punitives against another — but not before sending an awesome note to the judge, asking if they could make the officers perform 100 hours of community service!

Congratulations to the plaintiffs’ lawyers Jared Kosoglad, Michael Oppenheimer and Bruce Mosbacher on their great work!


The U.S. Supreme Court heard arguments yesterday in two cases involving drug sniffing dogs.

In Florida v. Jardines, 11-564, the court is considering whether police officers in Miami violated the 4th Amendment when they brought Franky, a dog trained to identify the odor of narcotics, to nose around the exterior of a private home without a warrant. Franky detected the odor of marijuana, and police obtained a warrant to search the house. That led to felony charges against Joelis Jardines. The Florida Supreme Court upheld the decision to suppress the pot, finding that the police tactic of using Franky to smell around a suspected grow house without a warrant amounted to an unconstitutional search. The U.S. Supreme Court accepted review of the case, which tests the outer boundaries of permissible police use of narcotics sniffing dogs.

In 2005, the Supreme Court approved warrantless drug sniffs of cars during routine traffic stops in the case Illinois v. Caballes. However, the sanctity of the home has always been the core concern of 4th Amendment jurisprudence. During oral argument some justices questioned whether a warrantless house sniff passed the smell test. Justice Scalia, in particular, likened the case to Supreme Court precedent which held that police cannot without a warrant, intrude on the “curtilage” (immediately surrounding areas) of a home to see what they could not see from the public sidewalk.

Other justices likened Jardines to the 2001 case Kyllo v. United States, in which the Court put limits on law enforcement’s use of technology, such as thermal imaging devices, to scan the exterior of a home to obtain evidence that the residents were growing marijuana inside.

Justice Kagan was skeptical of Florida’s argument that there was a fundamental distinction between using Franky’s “god-given” nose to conduct the search as opposed to a mechanical device to gain the same information. Kagan asked whether police could walk up to doors with a “smell-o-matic” device that gleaned the same information as a drug sniffing dog.

Justice Ginsburg, likewise, didn’t like where Florida’s arguments led: She questioned whether, under their logic police could in “a neighborhood that’s known to be a drug-dealing neighborhood, just go down the street, have the dog sniff in front of every door, or go into an apartment building?” Gregory Garre, who represented Florida, agreed that would be constitutionally permissible.

In Florida v. Harris, the court will consider whether drug sniffing dogs are sufficiently reliable that an “alert” from such a dog should be considered probable cause to conduct a search. The Florida Supreme Court held that the government must provide evidence to establish the reliability of the dog’s alert including “the dog’s training and certification records, … field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer.” The Supreme Court seemed disinclined to mandate certain qualifications before a dog could be deemed sufficiently reliable.

A decision is expected on both cases by summer.

There is some good news from the Second Circuit Court of Appeals today! In Windsor v. United States, 12-2335, the court struck down section 3 of the Defense of Marriage Act, which bars federal agencies from recognizing same-sex couples. Edith Windsor challenged the IRS’s denial of the spousal deduction under federal estate tax law. She was legally married under New York State law to Thea Spyer, who passed away in 2009. Applying an “intermediate scrutiny” standard (analyzing whether the law was “substantially related to an important government interest”), the court found that DOMA violated the equal protection clause. The court wrote:

Even if preserving tradition were in itself an important goal, DOMA is not a means to achieve it. As the district court found: “because the decision of whether same-sex couples can marry is left to the states, DOMA does not, strictly speaking, ‘preserve’ the institution of marriage as one between a man and a woman. … Law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status–however fundamental–and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.

The full opinion is available from the Second Circuit’s website.

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