The Fourth Amendment continues to decline in popularity in some federal circuits. The Third Circuit has ruled that you can be forced to submit to a taking of your hair so that a drug test for cocaine usage may be performed. Even if it means that police have to shave your head to get it.*

After acknowledging the difference between snipping a few strands of hair and seizing a hair root, which is under the skin, not visible to the public and a living structure, the court found forced shaving to be more akin to a snip:

"The fact that Coddington had very short hair on his head, requiring the police officers and the beautician to shave some of his hair to the skin in order to obtain a sufficient quantity for the drug test, does not alter the fact that the only hair that was taken was above the body surface and on public display, and that hair was taken in a proper manner."

Judge Michael Chertoff, a Bush appointee, concurred in the opinion.

_________________
*The justification for snipping hair for a drug test was established in a prior case which held,

We conclude that there is no greater expectation of privacy with respect to hair which is on public display than with respect to voice, handwriting or fingerprints. In the case of blood samples and fingernail scrapings, the bodily seizure requires production of evidence below the body surface which is not subject to public view."

by TChris

The Georgia Supreme Court declared the state's hate crimes law unconstitutional today on the ground of vagueness. The court ruled that the law's broad language "fails to comport with the ascertainable standards required by the due process rights guaranteed by our state and federal constitutions."

The hate crime law enhances a criminal sentence when it is determined beyond a reasonable doubt that a defendant intentionally selected a victim or the victim's property as the object of an offense "because of bias or prejudice." "We recognize that persons of ordinary intelligence may understand the dictionary definition of the words 'bias' and 'prejudice,'" the ruling said. "However, because of the broad signification of these words and the absence of any specific context in which a person's bias or prejudice may apply in order to narrow the construction of these concepts, we find that [the hate crime law] fails to provide fair warning of the conduct it prohibits."

The court apparently declined to give the law a limiting construction by attaching the word "racial" to the word "bias." The state senator who sponsored the law intends to introduce a clearer version in the next legislative session.

by TChris

The Supreme Court will decide whether a criminal defendant's right to a fair death penalty hearing is violated by forcing him to appear before a jury in shackles. Carmen Deck was convicted of two murders. During the six hour death penalty phase of his trial, Deck was handcuffed to a belly chain and he was kept in leg irons.

Deck's public defender, Rosemary Percival, has it right:

"Shackles and other restraints tacitly communicate to the jury that the court believes the defendant is still so dangerous that he must be restrained even in the confines of the courtroom," she said.

The shackling of a defendant during a trial has long been understood to be unfair. It is no less prejudicial to force a man to fight for his life while binding him in chains.

by TChris

A unanimous panel of judges on the Eleventh Circuit struck down a city policy that required protestors to pass through a metal detector. The policy instructed the police to search protestors who made the machine beep. The City of Columbus, Georgia approved the policy in 2002, before an annual protest against the Western Hemisphere Institute for Security Cooperation at Fort Benning.

The decision includes a stirring rejection of the claim that individual liberty must give way to security needs after 9/11.

"We cannot simply suspend or restrict civil liberties until the war on terror is over, because the war on terror is unlikely ever to be truly over," the 11th Circuit said in a ruling issued late Friday. "Sept. 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country."

The privacy interests protected by the Fourth Amendment outweigh the City's desire to engage in mass searches for weapons in the absence of a legitimate reason to suspect that each protestor is armed. The court bravely and correctly refused to trade liberty for safety.

It is quite possible that the demonstrations would be safer if the city were permitted "to engage in mass, warrantless, suspicionless searches," Tjoflat said. "Indeed, it is quite possible that our nation would be safer if police were permitted to stop and search anyone they wanted, at any time, for no reason at all." But the Constitution, [Judge Gerald] Tjoflat wrote, allows for "searches based on evidence — rather than potentially effective, broad, prophylactic dragnets — as the constitutional norm."

Received from a reliable source:

On September 8, oral arguments were offered in the case of Griffin v. Roupas before the 7th Circuit Court of Appeals. The plaintiffs argued that the way the absentee ballot system works in Illinois (a) discriminates against people like working mothers, and (b) makes it easier for a well organized machine to defraud the system.

Yesterday, with BLINDING SPEED--ie, in time for the election--Judge Richard Posner handed down the following decision, rudely, curtly, missing the plaintiff's arguments by a mile.

The briefs can be downloaded here (type 03 in first bank, 3770 in second). The oral arguments can be heard here:

Bottom line: The broad langauge of Judge Posner's precedent will make it harder to challenge states when they take actions to restrict voting opportunities, especially working people and low-income voters.

Watch the games begin November 3.

Bump and Update: Just received an e-mail from TChris, TalkLeft's sole contributing blogger to date, who is arguing one of the two sentencing guideline cases in the Supreme Court tomorrow. His portion of the argument is 30 minutes. He says he's ready. Good luck, TChris!

"The sentencing procedure used in this case violated [Booker's] constitutional rights because the judge inflicted punishment that the jury's verdict alone does not allow," says T. Christopher Kelly, a Madison, Wis., lawyer in his brief on behalf of Booker.

Background on his case is here. It was just three months ago that his case (Booker v. U.S.) was the first in the country in which a federal appeals court ruled the sentencing guidlines unconstitutional after the Supreme Court decision in Blakely. And now he goes before the 9 Supreme Court Justices on the first day of the new term. Very, very exciting.

Check out what Peter Goldberger, criminal appellate whiz (Ardmore, PA) and frequent commenter on TalkLeft had to say about TChris and his case in the comments here:

Let me be the first to say, "TChris rocks!" The brief is elegantly written, thoughtfully argued, and highly persuasive. Mr. Booker should be thanking his lucky stars that a lawyer as brilliant and dedicated as Chris happened to be appointed as his counsel. (Congrats also to Dean Strang, the federal court public defender for western Wisconsin, who serves as Chris's volunteer co-counsel.) TL readers should know that for what amounts to more than a month of full time work, the Supreme Court will pay Chris a few thousand dollars -- maybe the equivalent of $12/hr -- plus his expenses in traveling to DC for the oral argument on October 4. Taking a historic case like this is a public service, not a way to make a living. TChris, best of luck at argument. Maybe I'll see you in Washington.

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Original Post 10/2/04, 11:00 a.m.

This just in via e-mail:

The United States Supreme Court will review the Ninth Circuit Court of Appeals' December 16, 2003 ruling in Ashcroft v. Raich. The case, is scheduled before the high court on November 29, 2004 at 10:00 am. It will set a national precedent by weighing whether or not patients have the legal right to treat their illnesses by medicating with cannabis when recommended by their doctors.

You can download the major pleadings here or here. TalkLeft coverage is here and here.

The ACLU won an important victory in federal court in New York today.

U.S. District Judge Victor Marreo ruled in favor of the American Civil Liberties Union, which challenged the power the FBI has to demand confidential financial records from companies as part of terrorism investigations.

The ACLU sued the Department of Justice, arguing that part of the Patriot legislation violated the constitution because it authorizes the FBI to force disclosure of sensitive information without adequate safeguards. The judge agreed, stating that the provision "effectively bars or substantially deters any judicial challenge." Under the provision, the FBI did not have to show a judge a compelling need for the records and it did not have to specify any process that would allow a recipient to fight the demand for confidential information.

[hat tip to TL reader Mike S.]

Update: the ACLU's statement on the decision is here.

The Supreme Court brief we've all been waiting for has been filed. You can read it here.(50 pages, pdf.)

It is the brief written by contributing TalkLeft blogger TChris in the case of United States vs. Freddie J. Booker, which along with United States v. Fan Fan, well may decide the future of the U.S. Sentencing Guidelines following the Court's decision last term in Blakely v. Washington.

The case will be argued October 4 in the Supreme Court--the first day of the new term. You can post some good luck messages to him in the comments. After that, TChris promises to return to blogging at TalkLeft. He's been missed.

Law Prof. Doug Berman of the Sentencing Law and Policy blog, the go-to place for all things Blakely, has links to the Fan Fan brief, and the amici briefs of FAMM, NACDL, The Washington Legal Foundation and the National Association of Federal Defenders. For the non-lawyers among you, the purpose of amici briefs filed as "friends of the court" to Booker and Fan Fan is to bring in collateral information that these outside groups uniquely may be able to present and that the parties don't have room to include in their briefs. According to our sources, the Federal Defenders' brief (pdf.)really shines.

Here are TChris's arguments on behalf of Mr. Booker:

Attorney General John Ashcroft is not having a good month. First, the Detroit terror convictions come undone. Then, the First Circuit rules that the Bureau of Prisons cannot make federal inmates do 90% of their time in a jail before being allowed to go to a half-way house. Now, a federal judge in Pennyslvania has thrown out a state law requiring internet service providers to block child porn sites.

Enacted in 2002, the law gave Pennsylvania's attorney general the power to require that companies like America Online Inc. block customers from viewing Web sites that had been identified by the state as containing illegal content.... Over two years, the groups said, ISPs trying to obey blocking orders were forced to cut access to at least 1.5 million legal Web sites that had nothing to do with child pornography, but were part of the same Internet cluster as the offending sites.

In finding the law unconstitutional, the Judge ruled:

.... [the] current state of technology meant the law "cannot be implemented without excessive blocking of innocent speech in violation of the First Amendment."

The text of the decision is available here (pdf.) The suit was brought by the Center for Democracy and Technology.

Roderick Johnson, whom we've written about a few times, won a big round in the 5th Circuit Court of Appeals. The court upheld his right to sue seven prison officials for the rapes he says he was subjected to on a daily basis while in prison.

a unanimous federal appeals court has ruled that seven ranking Texas prison officials can be sued for damages due to discrimination based on sexual orientation. The ruling by the Fifth Circuit Court of Appeals was in response to a lawsuit filed by the American Civil Liberties Union on behalf of a gay man who was repeatedly raped by prison gangs and whose pleas for help were ignored by officials.

The Court ruled:

"We conclude that Johnson's grievances were sufficient to give prison officials fair notice that there might have been a sexual orientation-related aspect to Johnson's problem," the judges wrote in the ruling. Judges, citing a 1994 Supreme Court decision that officials have a duty to protect inmates from violent prisoners, also ruled that the case can proceed under the Eighth Amendment's protection against cruel and unusual punishment.

In December, 2002, the Bureau of Prisons changed its policy and began refusing to let inmates go to halfway houses until they completed 90% of their sentences. Today, the first federal appellate court to issue a decision on the policy, struck it down. Via e-mail from defense attorney Todd Bussert of New Haven, Conn:

The U.S. Court of Appeals for the First Circuit published the first appellate decision on the merits concerning the BOP halfway house litigation that has been ongoing since January 2003. In Goldings v. Winn, the Court of Appeals roundly rejected the government's statutory interpretation, finding that 18 USC 3621 vests BOP with the authority to use halfway houses, which are properly viewed as "places of imprisonment" under that provision, at any point in a prisoner's sentence that it deems appropriate.