Search

INTRODUCTION 3 I. HEIEN V. NORTH CAROLINA 5 II. STUDY RESULTS 8 A. General Findings 8 B. Particular Findings 12 1. Requiring and Determining Legal Ambiguity 12 2. Determining Objective [...], In Heien v. North Carolina, the Supreme Court held that individuals can be seized on the basis of reasonable police mistakes of law. In an opinion authored by Chief Justice Roberts, the eight-Justice majority held that the Fourth Amendment's prohibition of "unreasonable" seizures does not bar legally mistaken seizures because "[t]o be reasonable is not to be perfect." Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be "exceedingly rare." In a solo dissent, Justice Sotomayor fairly "wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized whenever the law may be susceptible to an interpretive question." This Article provides the first empirical study of state and lower federal court cases applying Heien (from the day it was decided in mid-December 2014 through mid-June 2023). Of the over 270 cases examined, a large majority (over two-thirds) deemed unlawful police seizures reasonable, belying Justice Kagan's expectation that such cases would be "exceedingly rare." Moreover, the study makes clear that Heien is being applied well beyond the context in which it arose--an auto stop for a suspected equipment violation. Courts regularly rely on Heien to justify unlawful stops for a broad array of other, often more serious offenses and to justify unlawful arrests of individuals, far more significant intrusions on physical liberty that allow officers to conduct searches. Courts also forgive police mistakes of law regarding Fourth Amendment doctrine, such as the contours of consent and the permissibility of warrantless blood draws. Finally, the study demonstrates that courts lack any consistent analytic rubric for assessing whether a police mistake of law is reasonable, including the critically important foundational question of who (judges, laypersons, or police) should serve as the benchmark "audience" when assessing whether a mistake of law is reasonable. In addition to exploring the study's results, the Article uses Heien to assess the adverse real-world consequences of what would appear an uncontroversial decision by a near-unanimous Court. Heien not only augmented the already troublingly expansive police discretionary authority to seize individuals without warrants; it also significantly undermined the rule of law and undercut separation of powers. By condoning police mistakes of law, the Court at once weaponized statutory ambiguity for use against citizens and encouraged rational ignorance among police, lessening their incentive to learn the scope of the laws they enforce.

Among the beliefs Americans hold most dear is that they have never been required to carry government-issued personal identification documents. The belief, however, is incorrect. Over time, select subpopulations have in fact been required to carry documents, including free-born and emancipated African Americans until after the Civil War. This article examines the targeting of yet another sub-population: individuals convicted of sex offenses. Today, several states require that convicted sex offenders obtain and carry identification cards or driver's licenses declaring their status. Often, the branding is overt, such as a stamp of "SEXUAL PREDATOR" in brightly colored lettering. At other times, it is more subtle, such as use of a "U," denoting "Sexual Deviant" status. The documents must be produced to police upon demand, under threat of punishment, as well as when requested by myriad individuals in daily life, such as bank tellers and pharmacy staff. The federal government, for its part, requires that passports display a "unique identifier" stamped in a "conspicuous location," which must be shown to airport and customs officials, as well as to various individuals during transactions when traveling abroad. To date, the few courts addressing challenges have condoned branding in principle, yet required less graphic signifiers, based on First Amendment government-compelled speech grounds. While important, the decisions have failed to address other constitutional concerns, such as the right of free association. Even more important, the decisions have ignored the many troubling ramifications of governments forcing individuals to self-stigmatize and facilitate their own surveillance, perhaps for their lifetimes, which the article illuminates. [ABSTRACT FROM AUTHOR]

The article focuses on examining the limitations of the "Alito Hypothesis" in light of recent political shifts. Topics include the Court's reliance on state legislative preferences for determining federal constitutional norms, Florida's recent legislative actions defying Supreme Court precedent on capital punishment, and the potential national implications of states enacting unconstitutional laws.

"The operation of a double system of conflicting laws in the same state is plainly hostile to the reign of law. Janus was not a god of justice." (1) Despite [...]

After a thirty-year punitive binge, the nation is in the process of awakening to the vast array of negative effects flowing from its draconian crime control policies. (1) The shift [...]

Despite their many differences, Americans have long been bound by a shared sense of constitutional commonality. Federal constitutional rights, however, can and do often vary based on geographic location, and [...]

Today, low-level state and local criminal provisions figure critically in federal prosecutions, serving as the initial bases for police seizures that yield evidence leading to more serious federal charges (usually [...]

Today, the promise long ago heralded by Clarence Gideon's successful appeal (1) goes unfulfilled, as public indigent defense systems nationwide operate in perpetual crisis mode. (2) A key difficulty has [...]

ABSTRACT Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to [...]

The author examines the imposition of a legal duty to report to police information useful to criminal investigations. Topics discussed include the Bad Samaritans laws in several states in the U.S. that impose a duty to report criminal activity, private party information sources, and the downsides of imposing a duty to report.

TABLE OF CONTENTS INTRODUCTION I. THE SPREAD OF INDIGENT DEFENSE FEE LAWS A. Extent and Variety of Application Fees B. The Application Fee Trend II. POLITICAL ORIGINS OF APPLICATION FEE [...]

WHEN THE STATE KILLS: CAPITAL PUNISHMENT AND THE AMERICAN CONDITION. By Austin Sarat. Princeton: Princeton University Press. 2001. Pp. xii, 324. Cloth, $29.95. For opponents of capital punishment, these would [...]