Notice & Comment

D.C. Circuit Review – Reviewed: Wilco, Trunk Monkey, ThunderCats, Cass Sunstein, Ghostbusters, Katy Perry, Judge Randolph, and Qualified Immunity

Reader, no doubt you have come to appreciate just how much nicer the new Notice & Comment looks compared to the old site. (Indeed, the old Notice & Comment looked a lot like this or even this.) To be sure, the transition has not been seamless; I’ve noticed a hiccup now and then. But on the whole, the change has been a great success. The text is cleaner; you can read the site on handheld devices; and the site is much smoother to navigate. Plus one more thing: it is easier to post comments.

My post this week is about those comments. Now I love a good blog comment. (For instance, in response to my recent post on Judge Easterbrook, Albert Alschuler* replied.) Yet with the new platform, I am now regularly asked via an automated email to approve comments. The purpose of this review is obvious: to prevent spammers from clogging up the site with irrelevant comments.

I’ve noticed something interesting, however. Almost all nonsense comments directed at me—I would guess about 90% of them—spring from one post: Culture Rot … Or “The Dusty SCOTUS Pop-Culture References of Yore.” This is curious. At this point, I’ve written scores of blog posts, yet that one stands out.

So this week I went back to look to see if I could figure out what it is about that particular post that attracts so many stray comments. Culture Rot, of course, addresses Justice Kagan. But another post—that doesn’t attract comments—does too, so that can’t be it. Culture Rot also addresses Noah Feldman, but that also can’t be the explanation. Perhaps the reference to Citizens United? Nope. Hmmm—it has to be something else.

Here are some other possibilities from Culture Rot: “Zoolander,” “Star Wars,” “The Wizard of Oz,” “Severus Snape,” “Guy Fawkes,” “fruit-of-the-poisonous-tree” (do spammers know that there is not an actual poisonous tree?), “V for Vendetta,” “military grade ammunition,” “subject matter jurisdiction” (I kid), or perhaps “See Parts XV, XX, XXII-XXV, XXVIII, XXX, infra” (the roman numeral right before infra may be a problem).

I’m not sure what term is the trigger. So I’m going to experiment by listing a bunch of random buzzwords to see if this post also attracts spam. (Note: this is not a great application of the scientific method.) Here goes: monkey wrench; Inigo Montoya; Julianne Moore; the French Open; Norm MacDonald; Space Jam; George Sutherland; Saoirse Ronan; the Clemson Tigers; raspberry vinaigrette; The Pokey Little Puppy; Margaret Thatcher; Madeline Bassett; Pete’s Dragon; Tegan and Sara; Seminole Rock; Eddie “Cleanhead” Vinson; Fenton Hardy; Seven Nation Army; Sir Francis Drake; hot-air balloons; Becky Sharp; Robert Duvall; a .38 Special; Kublai Khan; Teen Wolf Too (featuring, yes, Jason Bateman); ossification; Katie Ledecky; fresh apricots; Will Baude; Rumpole of the Bailey; “loaded” tater tots; Days of Our Lives; Bette Davis; Liberty Valance; BleachBit; Don’t Download This Song; David Bazelon; Chevron Step Two; Lobster Quadrille; Lady Gaga.

I’ll report back.

(By the way, for those who think that regulation is a dirty word, remember the Do Not Call List. Well done FTC; it is not perfect, but who likes unsolicited telemarketing? That said, it is really hard to prevent rogue actors from placing phone calls or sending spam emails. If the probability of being caught is low, perhaps the punishment should be harsher . . . a long ocean voyage on a leaky ship seems fair.)

This week, at last, was a quiet one at the D.C. Circuit: Just one case. So I’m going to focus at length on Jones v. Kirchner. This is a qualified-immunity case authored by Judge Ginsburg (joined by Judge Wilkins), with a dissent by Judge Randolph. (The D.C. Circuit doesn’t have that many qualified-immunity opinions. Indeed, Chris Walker and I excluded the D.C. Circuit from parts of our empirical analysis of qualified immunity because they are so uncommon.)

The facts surrounding the underlying narcotics investigation are complicated and there is more than one claim involved, but I want to focus on a particular issue. It seems that while state and federal officials were investigating Antoine Jones, a federal magistrate signed a warrant to search his home. The magistrate, however, specified that the search could only take place “in the daytime – 6:00 A.M. to 10:00 P.M.” Yet the search allegedly occurred at 4:45 A.M. With these facts, can the officers be liable for damages? Here is what the majority had to say:

• “The district court erred in holding there was no constitutional violation. Jones does not allege the timing of the search was unlawful merely because it took place at night; he alleges it was unlawful because it violated an express limitation on the face of the warrant . . . . In this case the magistrate, as clearly indicated on the face of the warrant, affirmatively denied the Defendants permission to search Jones’s house before 6:00 AM. The plaintiff alleges the Defendants nonetheless executed the warrant at 4:45 AM. Just as a warrant is ‘dead,’ and a search undertaken pursuant to that warrant invalid, after the expiration date on the warrant, a warrant is not yet alive, and a search is likewise invalid, if executed before the time authorized in the warrant.”

• “Our dissenting colleague says that when a ‘state warrant authorized only a daytime search but the officers executed the warrant at night,’ courts have held there is no Fourth Amendment violation. Dissent at 14 n. 7 (emphasis added). That mischaracterizes the cases. In each one, the warrant itself was silent as to timing; any time restrictions derived from a state statute or rule of criminal procedure, which are not incorporated by the Fourth Amendment.”

• “Nevertheless, we agree with the district court that the Defendants are entitled to qualified immunity, albeit for a different reason: It was not clearly established in Maryland in 2005 that the Fourth Amendment prohibits the nighttime execution of a daytime-only warrant.”

• “Until 2009 the Supreme Court ‘required courts considering qualified immunity claims to first address the constitutional question, so as to promote the law’s elaboration from case to case. Today [under Pearson v. Callahan], which part of the qualified immunity analysis to address first is within the ‘sound discretion’ of the court. Where ‘it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right,’ it may make sense to avoid the constitutional question. This is not such a case, however. It seems to us an unremarkable proposition that an officer must respect a time limitation imposed by a magistrate and, indeed, the three other circuits to consider the question reached the same conclusion. In light of the Government’s argument to the contrary, we think it important to clarify this point of law.”

• “Our court has often granted qualified immunity without reaching the constitutional question, but both the constitutional question and the answer are more clear in this case than in any of those. Here we need only follow the teaching of the Supreme Court, as have three other circuits, in order to protect the public from a particular type of unreasonable search. . . . Resolving the constitutional question here ensures that officers will take care to abide by a magistrate’s limitations regardless where in the Washington area the search is executed.”

Here, by the way, is the relevant part of the warrant:


Judge Randolph dissented—with fire. He makes a lot of points that I’m not going to get into here. But boy, you should read his dissent: Randolph is frustrated with the Court. Here, however, is his analysis of qualified immunity:

• “Ever since Pearson, this court has developed not a page, but a volume of history following the Supreme Court’s decision. In these cases, we have almost invariably declined to decide constitutional questions in qualified immunity cases when it was unnecessary to do so. The majority has made no attempt to distinguish the cases embodying our established practice. [Very long string cite omitted.] It is no answer to say that this is a matter within the court’s discretion. In the words of Chief Justice Marshall, ‘This is true. But a motion to [the court’s] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.’ The nearly uniform practice of this court has established such sound legal principles, and the majority has offered no reason to depart from them.”

So there you go: If a blog post referencing Miss Moneypenny, nuclear winter, Coolio, and Strange Brew (“somebody horked our clothes!”) doesn’t get the attention of the spammers, maybe a spirited fight over qualified immunity will.

* An aside: I have followed Professor Alschuler’s work since reading his article on Studying the Exclusionary Rule in Search and Seizure, which was written by Dallin Oaks—someone who matters a great deal to BYU Law. (Here’s a sample: “Oaks’s article is the second most cited of those published by The University of Chicago Law Review in its seventy-five-year history (after Antonin Scalia’s The Rule of Law as a Law of Rules‘).”)

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