This isn’t normal. Federal judges don’t usually air their grievances about the Supreme Court in open court. The fact that an entire appeals court panel—including respected conservative judges—turned their oral argument into what Politico called “a remarkable, 80-minute venting session” tells you everything about how broken the system has become.
The immediate catalyst was trying to figure out what to do with a case about DOGE’s access to Social Security data after the Supreme Court issued one of its trademark unexplained emergency orders. But the real issue was much bigger: how are lower courts supposed to function when the highest court in the land operates like it’s playing Calvinball?
“They’re leaving the circuit courts, the district courts out in limbo,” said Judge James Wynn… “We’re out here flailing. … I’m not criticizing the justices. They’re using a vehicle that’s there, but they are telling us nothing.They could easily just give us direction and we would follow it.”
Judge Wynn didn’t stop there:
“They cannot get amnesia in the future because they didn’t write an opinion on it. Write an opinion,” Wynn said. “We need to understand why you did it. We judges would just love to hear your reasoning as to why you rule that way. It makes our job easier. We will follow the law. We will follow the Supreme Court, but we’d like to know what it is we are following.”
I’ve been writing about the law for almost three decades. I’ve never seen anything like this. Ever. Not even in the same zip code as this. These are judges crying out for help under a completely lawless Supreme Court.
And, no, this wasn’t just liberal judges complaining. Judge J. Harvie Wilkinson III—a Reagan appointee and one of the most respected conservative jurists in the country—was right there with them:
“The Supreme Court’s action must mean something,” said Judge J. Harvie Wilkinson III, a Reagan appointee. “It doesn’t do these things just for the kicks of it.”
Even Wilkinson can’t figure out what the hell the Supreme Court is doing. When you’ve lost Harvie Wilkinson—a judge so conservative and institutionally minded that he’s basically judicial royalty—you’ve completely broken the system.
The specific case that triggered this judicial revolt involves the Supreme Court’s typical shadow docket bullshit. In June, the Court overruled the Fourth Circuit’s decision and lifted an injunction against DOGE’s use of Social Security data. But they did so in the most bizarre and troubling way. After sending the case back to the Fourth Circuit for more review, it said that even if the Fourth Circuit rules that DOGE is breaking the law, the stay will remain in place.
By an apparent 6-3 vote, the justices went further, saying that no matter what the appeals court decided, the injunction would remain on hold until the case returned to the Supreme Court. Yet, the high court’s majority offered no substantive rationale for the lower court to parse.
So the Supreme Court basically said: “We’re overturning you, and also whatever you decide doesn’t matter anyway, but we’re not going to tell you why.” This left the entire Fourth Circuit panel wondering what the fuck they’re even supposed to do.
That left many of the 15 4th Circuit judges on hand for Thursday’s unusual en banc arguments puzzling at their role. One even suggested the appeals court should simply issue a one-line opinion saying the injunction is lifted and kick the case back to the Supreme Court to resolve.
Some judges thought they should just give up entirely and punt the case back to SCOTUS since SCOTUS has already said whatever they decide here doesn’t actually matter. Others insisted they had a constitutional duty to actually do their jobs:
“It sounds like some of my colleagues think that there’s no work to be done, that we’re done because the Supreme Court has told us what the answer is,” said Judge Albert Diaz, an Obama appointee.
Judge Robert King said punting on the case would be a mistake.
“We each have a commission and we have a robe and we have an oath to abide by,” said King, a Clinton appointee.
This perfectly captures the impossible position the Supreme Court has created. Lower court judges literally don’t know if they’re supposed to do their jobs or just rubber-stamp whatever vibes they think they’re getting from the shadow docket.
The whole mess stems from a series of recent Supreme Court shadow docket rulings (without much explanation) basically telling lower courts they have to follow SCOTUS shadow docket rulings (also without much explanation) as binding precedent. But as we’ve written about extensively, these aren’t reasoned legal decisions—they’re often unexplained orders issued with minimal briefing, no oral arguments, and little to no explanation of any reasoning.
This has created a situation where experienced federal judges—people who’ve spent decades interpreting legal precedent (often longer than the Justices themselves)—literally can’t figure out what the Supreme Court wants them to do.
What we’re witnessing is the breakdown of the federal judiciary as a functioning institution. When Reagan and Obama appointees are united in open revolt, and Harvie Wilkinson can’t figure out what the Supreme Court wants, the system has collapsed.
The three liberal Justices have been warning about this in dissent after dissent, while the conservative majority just keeps issuing more unexplained orders and then getting pissy when lower courts can’t read their minds. This isn’t jurisprudence. It’s government by judicial decree, where constitutional law operates on vibes and the only consistent principle is “give Trump whatever he wants.”
When federal judges with decades of experience are reduced to public pleading for basic guidance during oral arguments, we’ve crossed into judicial authoritarianism. The Supreme Court has effectively told the entire federal judiciary: “Follow our orders, but we won’t explain what they mean, and if you guess wrong, we’ll scold you for defying us.”
That’s not how precedent works. That’s not how courts work. That’s not the rule of law. It’s just nine people in robes demanding deference to their unexplained whims.
Last July, the Fourth Circuit Appeals Court handled a geofence warrant case, marking the first time this issue had been handled at the appellate level. The robbery suspect, Okello Chatrie, challenged the constitutionality of the warrant, arguing that its non-particular nature placed it outside the bounds of the Fourth Amendment.
A half-decade ago, this argument wouldn’t have worked. But the Supreme Court’s Carpenter decision — which followed from its warrant requirement for device searches in Riley — changed all of that. Gone were the routine assumptions about the Third Party Doctrine. If cell phones needed connections to towers (and were filled with far more information than could be found in the search of a house), then the Fourth Amendment needed to be extended to cover these utilitarian computers everyone now carries with them everywhere they go.
The problem with geofence warrants is that they work backwards. Unlike the cell site location info (CSLI) cited in the Carpenter case, investigators were still searching for suspects, rather than tracking the movements of known suspects. Similar to cell tower dumps, geofence warrants ask Google to provide location data and device info on everyone in a certain area at a certain times, even though investigators know going into this that 99.9% of the people being “searched” aren’t actually criminal suspects.
The Fourth Circuit ultimately ruled that geofence warrants were constitutional. And, even if they weren’t, the subject matter was novel enough that investigators should be granted the good faith exception. Its reasoning, however, focused on Chatrie himself and the data he “shared” with Google.
[W]e find that the government did not conduct a Fourth Amendment search when it obtained two hours’ worth of Chatrie’s location information, since he voluntarily exposed this information to Google.
That’s where Carpenter factors in. Is it really “voluntary” when certain functions, services, and apps simply won’t work unless device owners “opt in” to location sharing? That rhetorical question was answered by the Fifth Circuit a month later: there’s not much about this that’s actually “voluntary.” To make that point, it quoted one of Chatrie’s submissions to the Fourth Circuit Appeals Court:
[T]he fact that approximately 592 million people have “opted in” to comprehensive tracking of their locations itself calls into question the “voluntary” nature of this process. In short, “a user simply cannot forfeit the protections of the Fourth Amendment for years of precise location information by selecting ‘YES, I’M IN’ at midnight while setting up Google Assistant, even if some text offered warning along the way.”
The Fifth Circuit said searching the data of all Google users to produce a list of those matching the criteria of the geofence warrant specifications was nothing more than a “general warrant,” the sort of non-specific government rummaging that’s specifically prohibited by the Fourth Amendment.
Five months after its original decision was handed down, the Fourth Circuit Appeals Court announced it was going to rethink its first take on geofence warrants, a reconsideration no doubt prompted by the Fifth Circuit’s rejection of geofence warrants.
Unfortunately, putting this in front of all 15 Appeals Court judges hasn’t changed anything. The entirety of the official decision [PDF] reads thusly:
PER CURIAM: The judgment of the district court isAFFIRMED.
But it’s not quite that simple. It’s followed by 122 pages of opinions from the en banc crew. While there are some objections to geofence warrants from several judges, almost every judge issuing a concurring or dissenting opinion have decided that whether or not the warrants are constitutional doesn’t really matter — at least as this point.
[I]f I’m counting the votes correctly, there is a 7-7 split on whether a search occurred—with the 15th judge, Judge Diaz, not expressing a view either way. So there is no majority opinion, but instead just a crazy amount of uncertainty. What is the law now, after all this? I haven’t a clue.
After all of this time and a full reconsideration, the Fourth Circuit Appeals Court has managed to leave the law unsettled. Most of the judges who feel a Fourth Amendment search did occur (meaning the Third Party Doctrine does not apply) would still give the government a good faith pass because… the law is unsettled.
Nearly half the judges went the other way, deciding geofence warrants are a Third Party issue, rather than a Fourth Amendment issue, which means the government doesn’t even need the good faith exception to deploy general warrants.
The five judges who chose to discuss the Fifth Circuit’s take on the issue all agreed the Fifth Circuit was wrong, which means there’s definitely a circuit split that will need to be resolved in the future.
And, because the good faith exception was applied by most of the judges, the Fourth Circuit Appeals Court still has yet to rule definitively on the constitutionality of geofence warrants, which means yet another case must hit this level before the Appeals Court might be forced to issue a ruling on the merits, rather than duck out through the “warrant exception” side door.
We’re back to where we started, at least in the Fourth Circuit. The Fifth Circuit’s take has yet to be overruled by the Supreme Court. And the Fourth Circuit doesn’t even have solid take on the issue, other than it’s probably going to give cops a pass, rather than give the general public better protections against warrants that work their way backwards from “search ’em all” to probable cause.
“This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”
Those words came not from a liberal jurist or a civil liberties activist, but from Judge J. Harvie Wilkinson III, a Reagan appointee to the 4th Circuit Court of Appeals and one of the most respected conservative jurists in America. In a blistering opinion released yesterday, Wilkinson laid bare what’s at stake in the Abrego Garcia case: nothing less than the rule of law itself.
What triggered this extraordinary rebuke? The government “asserting a right to stash away residents of this country in foreign prisons without the semblance of due process.” For weeks now, the Trump administration has played a dangerous constitutional game with Kilmar Abrego Garcia, who was illegally trafficked to a Salvadoran prison despite a court order explicitly barring his deportation. When three separate courts — including the Supreme Court — ordered them to facilitate his return, administration officials mocked the very idea they could help and have since defied judicial commands with increasingly brazen contempt.
Over the last few days they ratcheted up the rhetoric, falsely claiming that (1) he wasn’t just a member of MS-13 but a “top” member who was also somehow “a terrorist,” (something for which multiple Article III courts have said there is no evidence to support) that (2) he was “arrested with rolls of cash and drugs” when he was simply wearing a sweatshirt that had an image with cash on it and someone else who was arrested with him had a small bag of weed in a pocket (3) that he was engaged in “human trafficking” (just completely made up bullshit).
In her statement to CNN, Vasquez Sura said she sought a civil protective order in 2021 after a disagreement with Abrego Garcia. Vasquez Sura noted she had survived a previous relationship that included domestic violence. She did not appear at a court hearing and the matter did not proceed.
“Things did not escalate, and I decided not to follow through with the civil court process,” she said in the statement. “We were able to work through this situation privately as a family, including by going to counseling. Our marriage only grew stronger in the years that followed. No one is perfect, and no marriage is perfect.”
“That is not a justification for ICE’s action of abducting him and deporting him to a country where he was supposed to be protected from deportation,” she added. “Kilmar has always been a loving partner and father, and I will continue to stand by him and demand justice for him.”
Of course, even if all the smears against Garcia were true, none of it justifies violating the legal order that prevented him from being deported to El Salvador without any due process. That’s all that matters.
And if being accused of domestic violence means you deserve to be sent to a concentration camp with no due process, this administration is going to run out of people working for it very, very soon, because so many of them have faced similar accusations at one time or another.
It’s the standard Fox News playbook: when confronted with a victim of government overreach, pull out the “he’s no angel” template and fill in whatever blanks you can, evidence be damned. But no matter how many accusations they hurl, the fundamental fact remains unchanged: Abrego Garcia has never been convicted of a crime, and the U.S. legal system had explicitly barred him from being sent to El Salvador, let alone to a concentration camp.
But why let pesky facts get in the way of a good character assassination?
Which brings us back to Judge Wilkinson’s extraordinary opinion. After Judge Xinis scolded the DOJ for ignoring her order, the administration appealed yet again to the Fourth Circuit, where the panel had already rebuked them once. This time, Judge Wilkinson — a Reagan appointee once considered for the Supreme Court under George W. Bush — decided enough was enough.
Wilkinson is a famously right-wing Republican judge. He also, somewhat famously, is quite often willing to bless executive government overreach. Hell, he authored the (later overturned!) opinion that it was okay for the US government to seize and lock up an American citizen at Guantanamo with no charges or due process when he was found fighting with the Taliban in Afghanistan.
It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.
This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.
As Wilkinson points out, no matter what the administration accuses him of, in the US he still deserves due process:
The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order. See 8 C.F.R. § 208.24(f) (requiring that the government prove “by a preponderance of evidence” that the alien is no longer entitled to a withholding of removal). Moreover, the government has conceded that Abrego Garcia was wrongly or “mistakenly” deported. Why then should it not make what was wrong, right?
He also completely dismantles the claim made by Stephen Miller and Pam Bondi that the Supreme Court’s decision allows the White House to do nothing. That’s just bullshit:
The Supreme Court’s decision does not, however, allow the government to do essentially nothing. It requires the government “to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” Abrego Garcia, supra, slip op. at 2. “Facilitate” is an active verb. It requires that steps be taken as the Supreme Court has made perfectly clear. See Abrego Garcia, supra, slip op. at 2 (“[T]he Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”). The plain and active meaning of the word cannot be diluted by its constriction, as the government would have it, to a narrow term of art. We are not bound in this context by a definition crafted by an administrative agency and contained in a mere policy directive. Cf. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400 (2024); Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000). Thus, the government’s argument that all it must do is “remove any domestic barriers to [Abrego Garcia’s] return,” Mot. for Stay at 2, is not well taken in light of the Supreme Court’s command that the government facilitate Abrego Garcia’s release from custody in El Salvador.
From there, Wilkinson makes abundantly clear he knows that the Trump administration is playing games. He notes that they’re obviously frustrated with the rulings against them, but that does not give them the ability to simply ignore those rulings. He talks about the separation of powers, and how the judiciary clearly has the power to tell the executive branch when it is violating the laws or the Constitution. And he warns of what will happen if the Trump White House decides it can just ignore the courts:
Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.
And he closes with a clear statement directed at the White House that going down the road they clearly wish to go down will do great damage to the concept of America:
It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.
When a renowned conservative jurist — one who previously ruled it was legal to detain American citizens without charges at Guantanamo — warns a Republican president that he is threatening to destroy the rule of law and wreck “the American ethos,” that’s more than a legal opinion. It’s a desperate attempt to pull the country back from the brink.
As if to immediately test Wilkinson’s warning about the “public perception of lawlessness,” the very same day brought a stunning development that would expose the administration’s claims as hollow. Despite earlier being denied, Maryland Senator Chris Van Hollen was suddenly given the opportunity to meet with Abrego Garcia, proving that he was still alive and accessible (and allowing him to learn that many people are fighting for his basic rights).
I said my main goal of this trip was to meet with Kilmar. Tonight I had that chance. I have called his wife, Jennifer, to pass along his message of love. I look forward to providing a full update upon my return.
The timing couldn’t have been more revealing. On the same day a federal judge warned the administration about a constitutional crisis over its claim that accessing Garcia was impossible, a U.S. Senator managed to do exactly that.
Salvadoran President Nayib Bukele, who had previously denied he even had the ability to release Garcia, posted some images of Garcia and Van Hollen meeting, though (of course) with a snarky bit of commentary, very much giving off “I’m not mad at all” vibes:
The claim that they were “sipping margaritas” was revealed to be completely staged nonsense, as apparently Bukele aids showed up with the props solely for the misleading photoshoot:
Mr. Bukele, in a social media post, even crowed that “Kilmar Abrego Garcia, miraculously risen from the ‘death camps’ & ‘torture,’” was “now sipping margaritas with Sen. Van Hollen in the tropical paradise of El Salvador!” But according to a person familiar with the situation,a Bukele aide placed the two glasses with cherries and salted rims on the table in front of Mr. Van Hollen and Mr. Abrego Garcia in the middle of their meeting in an attempt to stage the photo.
It’s also pretty clear that the government gave Garcia fresh clothes (different from every other photograph of anyone in CECOT) as well as a baseball cap to cover up the shaved head that the guards at CECOT give to every prisoner sent into the concentration camp.
Bukele later posted, “I love chess,” pretending that this was all a strategic move, rather than one that makes him look incredibly weak. Bukele caved here, as the pressure on him has been increasing, and even he has to realize he’s losing this battle massively. Bukele tried to recover by then posting that Garcia “gets the honor of staying in El Salvador’s custody.”
But now he’s revealed that he absolutely can produce Garcia when a US government official shows up asking for him.
Even leaving aside the basic “what crime was he convicted of in which court” question that should accompany him “staying in El Salvador’s custody,” the fact of this meeting completely undermines the claims made by both Bukele and the Trump White House regarding their supposed inability to return Garcia to the United States.
If anyone was playing chess here, it appears those on the side of due process and rule of law have a much stronger position. They’ve shown that it is entirely possible for Bukele to produce Garcia, especially under political pressure from the United States. That bodes poorly for the Trump administration that earlier in the day had filed yet another “status report” in Judge Xinis’ court again failing to abide by her order and again professing that its hands were tied.
The meeting exposes a damning reality: for all of Trump’s boasts about being the ultimate dealmaker, a Democratic Senator accomplished what his administration claimed was impossible. The administration’s entire defense — that they had no ability to access Garcia — collapsed in an embarrassing instant.
Judge Wilkinson’s ruling called back to President Eisenhower, who was willing to set aside his “personal opinions” to abide by the laws of the United States, as defined by the courts.
It is in this atmosphere that we are reminded of President Eisenhower’s sage example. Putting his “personal opinions” aside, President Eisenhower honored his “inescapable” duty to enforce the Supreme Court’s decision in Brown v. Board of Education II to desegregate schools “with all deliberate speed.” Address by the President of the United States, Delivered from his Office at the White House 1-2 (Sept. 24, 1957); 349 U.S. 294, 301 (1955). This great man expressed his unflagging belief that “[t]he very basis of our individual rights and freedoms is the certainty that the President and the Executive Branch of Government will support and [e]nsure the carrying out of the decisions of the Federal Courts.” Id. at 3. Indeed, in our late Executive’s own words, “[u]nless the President did so, anarchy would result.”
With Van Hollen’s visit, we now have definitive proof of what Judge Wilkinson suggested: it is absolutely possible for the US to secure access to Abrego Garcia. The district court, the appeals court, and the Supreme Court have all said — unanimously — that the White House must take affirmative steps to facilitate Garcia’s return to face the basic due process owed to everyone under our Constitution.
We now stand at that precise precipice Eisenhower warned about. Will the Trump administration continue defying the courts, pushing us toward what Eisenhower called “anarchy”? Or will the rule of law prevail?
The coming days will reveal whether this administration recognizes what Judge Wilkinson called its “unique chance to vindicate” the rule of law “while there is still time.” But with each passing day of defiance, the damage to our constitutional order grows deeper.
There is a disquieting update to my last post about a district court victory in Does 1-26 v. Musk that had enjoined DOGE, given its likely unconstitutional exercise of power, particularly in the context of its dismemberment of USAID. The Fourth Circuit has now stayed enforcement of that injunction, which raises a few issues worth commenting on.
First, on substance, the most alarming issue with its decision is that two judges on the Fourth Circuit found the arguments that Musk and DOGE were acting with an unconstitutional power unpersuasive. For example:
And as to Musk, the evidence before us creates a strong likelihood that he functioned as an advisor to the President, carrying out the President’s policies of shrinking government and reducing spending, not as an Officer who required constitutional appointment. The current evidence in the record indicates that Musk’s actions did not involve the exercise of authority of an office granted by law but rather the implementation of Executive policies. In order to be an Officer, he must (1) be “exercising significant authority pursuant to the laws of the United States” and (2) be “occupying a continuing position established by law.” Lucia v. SEC, 585 U.S. 237, 245 (2018) (cleaned up). Based on the current record, it appears that Musk’s role satisfies neither criterion. [p. 8]
As discussed in the last post, the district court judge carefully walked through each of those elements pertinent to determining whether Musk, as well as DOGE, were behaving within constitutional parameters before concluding that the answer was likely not. For the appeals court to simply cast all that analysis to the side was itself troubling, and the dissenting concurrence called it out:
The Majority questions this characterization of the results of Defendants’ actions. Maj. Order at 7. But, in doing so, it improperly meddles in factual determination properly left to the discretion of the district court. Second guessing factual findings of a district court in an emergency stay posture where the applicant has not even asserted that such findings were erroneous, let alone clearly so, is entirely inappropriate. As we have long held, a party seeking reversal of a district court’s injunction order must “overcome a deferential standard of appellate review.” Pierce v. N.C. State Bd. of Elections, 97 F.4th 194, 210 (4th Cir. 2024). We evaluate a district court’s decision to grant a preliminary injunction under an abuse of discretion standard and only review the district court’s factual findings for clear error. Id.; see also Roe v. Dep’t of Def., 947 F.3d 207, 219 (4th Cir. 2020). Indeed, “[w]here there are two permissible views of the evidence, the [district court’s] choice between them cannot be clearly erroneous.” Id. (citing Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)). [p. 17]
For its part the majority defends its dubious read of the record:
Our concurring colleague claims the Majority “improperly meddles in factual determination properly left to the discretion of the district court,” in violation of our standard of review. Conc. Op. at 17–18 n.1. He is right to emphasis the importance of those standards. We are duty bound to apply them. But we apply our standard of review here in the context of our precedent that instructs that preliminary injunctions should be granted “sparingly and in limited circumstances” because of their implication of “very far-reaching [judicial] power,” Direx Israel, Ltd., 952 F.2d at 816, and that “ambiguity is simply insufficient to support a finding that success on the merits is ‘likely’ rather than merely ‘possible’ . . . .” Di Base v. SPX Corp., 872 F.3d 224, 235 (4th Cir. 2017). In that context, our conclusion is consistent with our standard of review. [p. 8]
It’s a flimsy defense of the majority’s analysis of the government’s “likelihood of success” on the merits, but for the moment the larger issue with this stay is what has been an issue in this and other cases: the difficulty in being able to obtain usable and immediate injunctive relief.
Because even the “dissenting” judge on this appeals court panel, who spent 24 pages on the “likelihood of success” factor explaining why Musk and DOGE were likely behaving with unconstitutional power [p. 17-40], found himself having to concur with the result in setting aside the injunction “because the proper defendants were not before” the courts in this case. [p. 40].
After the district court found that Musk and DOGE were responsible for dismantling USAID, the question then became: what’s next? The Majority correctly identifies, the constitutional violation and the remedy cannot go both ways: if Musk and DOGE lack the authority to order USAID officials to do anything, enjoining Musk to direct USAID officials to restore employment, building access, and security services, among other relief, also cannot stand. Plaintiffs did not name defendants with the proper authority to effectuate the relief that Plaintiffs seek. Suing Musk and DOGE constrained the court’s ability to redress their constitutional claims, which I have noted above, and as the district court found as a matter of fact, were quite strong. [p. 41-42]
So one issue emerging from this case is that DOGE challenges, at least those seeking injunctions, do need to be hybrid, with the agency and its officials running it named as co-defendants, because even if the argument is successfully made that what DOGE is doing is unconstitutional, an injunction telling them to “stay out” also needs to include an order on the agency to “keep them out.”
And one reason it is important that the injunction be so broad is because, now that Trump has had a chance to install his own cronies in agency leadership, the DOGE and “official” leadership are blurring together. In this case they explicitly blurred together, because Trump tried playing musical chairs, moving out the “official” person and replacing him with someone who had himself been DOGE. The district court called shenanigans, because it would mean that the new person, now “official,” could just ratify everything that DOGE had “recommended.” The injunction appeared to assume that by removing DOGE only independent agency judgment would be left, and that judgment would be exercised consistent with whatever lawful authority it had. But such a view appears naïve, because the blurring is inevitable, as a Trump toady in a DOGE hat may be no different than a toady in an official agency hat—they are both committed to the same constitutionally destructive mission, and both need to be stopped from completing it, under whichever auspices they claim to be using as they do it.
Also, the question of agency ratification is proving to be a bigger issue that needs to be dealt with directly. In part to address it itself and ensure that agency officials cannot somehow launder illegitimate DOGE “recommendations” into legitimate agency action, and in part because what irretrievably taints these “recommendations” is also what shows how what DOGE was doing is so unconstitutional—and also why there is no possibility of irreparable harm to the government if its own actions, including implementation of DOGE’s “recommendations,” is stopped.
In a universe where there were no DOGE, no agency official in their right mind would try to do what DOGE is “recommending” and cancel these contracts, fire these people, freeze this funding, or close down the agency altogether. Perhaps via some lawful path the agency could do some of these things but it could not do such things via this path because taking these drastic actions would, at minimum, seem to violate the APA’s prohibition against arbitrary and capricious decisions by the agency. It’s a big reason why these cases seeking injunctions need to be hybrid, so that even if agency officials claimed to be doing these things via their own independent judgment they still could be enjoined because of how that judgment violates the law. But also, if these decisions would have been wrong in a universe without DOGE telling them to make them, they are no less wrong when made in the wake of DOGE “advising” them to be made. It would be absurd if agency officials could “ratify” and somehow legitimize a DOGE “recommendation” that the agency could not make itself, and especially not when DOGE arrived at the “recommendation” via its own unlawful behavior. Two wrongs cannot make a right.
Because even if agency officials could make such decisions in a vacuum, no such vacuum exists here. It goes back to the idea raised earlier that DOGE’s hack is the harm, as well as the evidence of the harm. In other words, it was DOGE’s initial invasion of the computer systems that is both evidence of the abuse of power—that it was able to occur—and the vehicle used to cause the damage, as any “recommendation” they made stemmed from that illicit access. As a result that illicit access irredeemably taints any “recommendation” they made and thus makes it impossible for any official to ratify any of what they “proposed.” That usurpation of power, to force access to those systems, also undermines any claim that its “recommendations” were just “suggestions” that agency officials were free to refuse, and not the unconstitutional demands, like the demand to be given their illicit access to the computer systems in the first place, that they were. It would also independently offend the APA to ratify any action DOGE demanded—sorry, suggested—DOGE had made because it had made them, especially given how unlawfully it arrived at the instruction.
In fact, the more the government claims that it would suffer “irreparable harm” if these DOGE recommendations are not adopted, or that any further DOGE action within the agency be stopped, the more it shows how unconstitutional the entire enterprise is. The government’s only possible defense in these challenges is that the agency could somehow lawfully do what it is doing—cancel these contracts, fire these people, freeze this funding, shut down the agency—independent of DOGE. As discussed above it’s a dubious argument given how drastic these effects are, which laws like the APA would probably prohibit, but if the government can show that the agency could lawfully do any of the things that DOGE is charged with causing to happen according to their own independent judgment and authority then the challenges would fail.
But that argument, that the agency could do these things on its own, would mean that it could do them on its own, without DOGE. And the more the government claims that it would be harmed if DOGE were benched, the more it undermines any claim to the agencies’ independence. Removing DOGE from the equation should just leave the agency back where it was supposed to be, and if that’s now a problem for the government, then it’s a problem for the Constitution that these unappointed people now have such power over agency action. DOGE cannot cause something to be done that lawfully could not have been done without it, but the more the government argues that it is being harmed by excluding DOGE from agency activities, the more it shows how unlawful its activities are.
And it is why the irreparable harm factor needs to carry a lot more weight for challengers to anything DOGE has done (or Trump generally, even in instances without DOGE involvement). If it turns out that everything DOGE is doing is lawful, it can still be done via lawful means. Perhaps it can’t be done as quickly, but the government has yet to make a non-frivolous argument for why there is any true exigency requiring fast action—if there is any emergency it is the one it itself created, a fact that cuts the other way for why there should be relief afforded to challenging plaintiffs immediately in order to truly preserve the status quo.
Because if it turns out, as many district courts are finding, as well as the dissenting judge here, that DOGE is acting unlawfully and indeed unconstitutionally, then then the harm to the challengers, and the public beyond them, if relief isn’t afforded is immense. The majority in this case here dismisses the harm potential as potentially being easily remediated by money later, [p. 12], but their math seriously underestimates the amount of harm being done even in financial terms, the incalculable harm that comes from such a severe Constitutional violation being tolerated, which no amount of money can ever compensate, and the fact that it will be taxpayers—or, in other words, the plaintiff victims themselves—who will have to pay whatever compensation might eventually be ordered. Everything DOGE has been doing amounts to irreparable harm, and far beyond any sort of harm the Executive could experience if his and Musk’s power were carefully tested before letting it loose on the country.
Last July, the Fourth Circuit Court of Appeals appeared to have shut the door on constitutional discussions of geofence warrants. These so-called warrants operate from a point of ignorance. Investigators have no idea who they’re looking for. So, they ask Google to do some of the work for them.
Casting a small dragnet around a certain location at certain times sounds like a good start. Unfortunately, the reality is that Google has to search its entire repository of location data to find the data investigators are seeking. That turns probable cause into fishing expeditions that affect all users of Google services. Even if the search is narrowed past this first exploratory request, the damage has already been done.
Okello Chatrie has been challenging this search since it first was revealed in his criminal case, where’s he facing federal charges for robbing a bank. The trial court upheld the search. While it found the implications of geofence warrants disturbing — especially in light of the Supreme Court’s Carpenter decision that instituted warrant requirements for location data searches — it ultimately decided good faith applied to this unsettled area of the law.
The Fourth Circuit upheld this ruling, reasoning that the Third Party Doctrine covered location data “willingly” shared with Google, rather than the normal warrant requirements that require more than law enforcement assertions that the data the seek is most likely located on Google servers.
About four months later, the Fourth Circuit announced that it would be taking a second pass at this decision. Now, this en banc review (involving all 15 appeals court judges) is underway. But early reporting from Joe Dodson of Courthouse News seems to indicate the judges are more likely to affirm their previous ruling that subject geofence warrants to long-held probable cause standards. (h/t FourthAmendment.com)
One judge appears to believe that if he can navigate the difference between involuntary and voluntary data sharing with Google, surely anyone — even an accused criminal — should immediately know that what they’ve agreed to will allow the government to access their location info at will, provided they have a warrant in hand that lists Google as the place to be searched, rather than data stored on their own phones.
“Everybody is not that ignorant about cell phones,” U.S. Circuit Judge Paul Niemeyer, a George H.W. Bush appointee, said when speaking about phone settings that block location tracking. “I’ve done it, and I’m a Luddite.”
Niemeyer pointed out that only roughly a third of Google users opted in.
“If this bank robber was a thinking bank robber, he’d leave behind no evidence, no fingerprints, no cell data,” Niemeyer said. “He just wasn’t a thinking criminal.”
There’s the defense of the Third Party Doctrine the Supreme Court’s Carpenter decision at least partially dismantled. Combined with the Riley decision (the one that created warrant requirements for phone searches), this logic simply doesn’t make sense. The Supreme Court warned against the government’s ability to turn personal devices into always-on tracking devices simply because decades of precedent never foresaw people carrying powerful computers in their pockets at all times as a necessity, rather than a luxury.
The conclusion drawn here by this judge is antithetical to constitutional rights. Just because a person has agreed to certain things to provide them access to apps and services they’d like to use is not the same thing as agreeing the government can browse their data without showing more probable cause than geofence warrants appear to require.
Then there are appeals court judges like Harvie Wilkinson, who appears to believe it’s fine to allow the ends to justify the means.
“Next time, it’s not going to be just a bank robber. It could be a murder. It could be a terrorism attack,” the Ronald Reagan appointee said. “I don’t think you realize just how much you’re taking off the table in terms of the tools that law enforcement can use in the most serious of situations.”
Well, bring back the general warrants, I guess. The only way to handle serious cases is to put the Fourth Amendment on mute until cops get what they want, no matter what they have to do to obtain it. These are the words of someone who should probably retire and start writing their memoirs, rather than continue to be treated as capable of contributing valuable jurisprudence going forward.
While some judges pushed back against Wilkinson’s sidelining of the Fourth Amendment, others suggested kicking this can further down the road and just say the cops were wrong, but not wrong enough to lose their unconstitutionally-obtained evidence.
Chief U.S. Circuit Judge Albert Diaz, another Obama appointee, wondered if the best course of action was to leave the constitutional questions for another day and instead find that the warrant was a good faith exception to the Fourth Amendment.
While this en banc hearing is still underway and there’s really no way to predict how the majority will rule when the decision is finally handed down, these early indicators suggest the most likely outcome is an affirmation of the decision released last November. Worse, it suggests the upcoming decision might even be worse than the one the court originally released last summer. Judge Diaz suggests a Third Party Doctrine affirmation backed by the court’s refusal to address the underlying constitutional questions by deferring to the good faith exception. If that ends up being the final conclusion in this case, it will be years before this circuit is willing to entertain geofence warrant challenges again.
I apologize in advance for the non-specific nature of this headline. But there’s too much going on here to be summed up pithily in a few hundred words or less. No one here gets paid by the word, but we’re going to need a whole lot of them to get to the bottom of this one, which details exactly what’s promised by the headline: tons of cop fuckery. (h/t Gabriel Malor)
Here’s how the ball of fuckery got rolling, as recounted in the Fourth Circuit Appeals Court decision [PDF]:
In January 2020, Brandon Williams was detained by Norfolk, Virginia, police officer John D. McClanahan on a misdemeanor trespassing charge. Williams recorded his interaction with McClanahan. At trial on the trespassing charge, McClanahan testified falsely and Williams was convicted.Williams appealed his conviction and used his recording to show that McClanahan had lied under oath. The appeals court heard Williams’ argument and dismissed the charges against him on September 15, 2020, recognizing that he never should have been prosecuted.
Lesson one: always record cops, especially when you’re the subject of their attention. Cops can’t be trusted to record themselves, even if they’re carrying the gear to do so. When it’s “your word against ours,” a camera might be the only thing standing between you and falsified criminal charges.
That should have been enough to warn Norfolk, Virginia police officers from engaging in misconduct and/or lying about it while on the stand. But some cops can’t be taught — which always means there’s no one above them who wishes to see them learn anything from experiences like these.
So, it happened again. And the way it happened is so utterly insane, it’s impossible to encapsulate in the 10-12 words that lend themselves to eye-grabbing headlines.
See, the cops that worked with Officer John McClanahan were less concerned with his perjury and more concerned with punishing the person who outed McClanahan’s lies. So, when Brandon Williams’ car was struck by a drunk driver, this is how things went for the victim of this crime:
On September 30, 2020, Williams was seriously injured in a car accident in Norfolk, Virginia. Williams was operating his vehicle carefully when he was hit by Rex Aman, who was driving over seventy-five miles per hour and swerving outside his lane. When various Norfolk police officers including McClanahan arrived at the scene to investigate the accident, they pointed at and talked about Williams. Officer Rodney Van Faussien said, while pointing to Williams, “[t]his is the guy that gave McClanahan a ration of shit,” referring to Williams’ defense of his trespassing charge. Aman’s blood alcohol level was .30––well above the legal limit––and the officers learned of Aman’s high speed from eyewitnesses.
Despite information from eyewitnesses, a debris field showing a high-impact accident, and Aman’s blood alcohol level, police officers falsely stated on the accident report that Aman was driving the speed limit, had not been drinking, and that his car had suffered a steering defect. This was allegedly done with the intent to deny Williams his rights by minimizing the accident and deflecting blame from Aman.
Hey, cops? This is what people mean when they say All Cops Are Bastards (ACAB). It’s not that all cops are. It’s that so many of them are that it hardly makes sense to treat each cop as a wholly divisible part of the Bastard whole.
These cops rolled up on a crime scene and did whatever they could to prevent the victim from pressing charges or even suing the drunk driver in civil court solely because he had previously exposed one of their own for lying in court. In normal jobs, people ostracize co-workers who lie to save their own asses. In Cop World, it’s the reverse: cops lie to cover up lies told by other cops and engage in vindictive actions against citizens who’ve done nothing more than defend themselves against bogus criminal charges.
In other words: fuck all of these cops. Fortunately, the Fourth Circuit Appeals Court agrees. Somehow, the lower court allowed this lawsuit to be dismissed, but the Appeals Court isn’t quite as willing to give this pack of lying cops a free ride.
Here’s how the Fourth sums up most of the pertinent allegations (emphasis in the original):
Here, there is a significant power imbalance in Williams’ relationship with the police, as he is a Black man who had recently exposed an officer’s perjury. We must also account for the additional context. The police had previously lied to charge and convict Williams with misdemeanor trespassing, and then at the accident scene, the officers allegedly pointed at him, talked about him, and lied again with the intent of depriving him of his rights, despite his being severely injured and traumatized in the immediate aftermath of a high-speed crash. Finally, we must also consider the nature of the retaliatory acts. The adverse action here is not the mere misrepresentation of facts on an accident report. It is the officers’ intentional misrepresentation––the falsity of the report plus the animus motivating it.
The key here is — beyond all the lying — the power imbalance. Any citizen getting railroaded by cops is expected to suffer through the railroading and sue after everything else in their lives disintegrates because a bunch of lying cops conspired to deprive them of their rights. At no point in this interaction are citizens free to grab lying cops and drag them into the station to be booked for violating constitutional rights. The consequences of their actions are so remote and so theoretical, cops feel extremely comfortable pulling this kind of shit, even while in front of other eyewitnesses.
What never should have happened in the lower court has now been undone. There’s enough in this pleading — especially when coupled with the plaintiff’s previous exposure of cop lies — to move this forward. Williams will hopefully be seeing a sizable settlement in the near future. If the state decides to appeal this, it’s basically arguing that cops should be able to lie with impunity, whether on the stand or in their accident reports. And if it goes to bat for these cops, it’s giving its explicit blessing of their multiple rights violations.
The end result is, at the very least, a win for Brandon Williams. All of his claims, ranging from First Amendment retaliation to intentional infliction of emotional distress, are back in play. With any luck, the settlement that’s almost inevitable will be followed by the Norfolk PD parting ways with the cops involved in this repeated violation of rights. No one involved in this deserves to be employed as a public servant, not when there are dozens of criminal enterprises seeking a goon or two completely devoid of a moral center.
Back in 2022, a federal court responded to a challenge of a geofence warrant with some good questions. But its ultimate ruling was a shrug. A geofence warrant obtained by investigators searching for a bank robbery suspect covered a whole lot of ground, subjecting hundreds of innocent people to a search of their geolocation records.
In this decision, the court actually arrived at the conclusion that the search was probably illegal and unsupported by probable cause to effect the search. That the search was performed by Google and not law enforcement itself didn’t matter.
The original geofence warrant covered 17.5 acres in Midlothian, Virginia — an area that included not only the robbed bank but a nearby church and its parking lot.
After getting the warrant approved, the investigators served it to Google. Google did a little pushing back and the final version shrunk the area a bit, but it still covered a whole lot of non-bank robbers, considering the request was for all geolocation data generated in this area between 4:20 and 5:20 pm.
The lower court said the good faith exception salvaged the search, even if it was illegal, because how were investigators supposed to know that casting a 1.75-acre, one-hour dragnet might implicate the privacy rights enshrined by the Fourth Amendment. The court had enough problems with its own ruling that it raised these valid points about the questionable constitutionality of geofence warrants:
[T]he Court is disturbed that individuals other than criminal defendants caught within expansive geofences may have no functional way to assert their own privacy rights. Consider, for example, a geofence encompassing a bank, a church, a nearby residence, and a hotel. Ordinarily, a criminal perpetrator would not have a reasonable expectation of privacy in his or her activities within or outside the publicly accessible bank. See United States v. Knotts, 460 U.S. 276, 281 (1983) (“A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”). He or she thus may not be able to establish Fourth Amendment standing to challenge a time-limited acquisition of his location data at the bank.
But the individual in his or her residence likely would have a heightened expectation of privacy. Silverman v. United States, 365 U.S. 505, S11 (1961) (“At the very core[of the Fourth Amendment] stands the right ofa [person] to retreat into his [or her] own home and there be free from unreasonable government intrusion.”). Yet because that individual would not have been alerted that law enforcement obtained his or her private location information, and because the criminal defendant could not assert that individual’s privacy rights in his or her criminal case, United States v. Rumley, 588 F.3d 202, 206 n.2 (4th Cir. 2009), that innocent individual would seemingly have no realistic method to assert his or her own privacy rights tangled within the warrant. Geofence warrants thus present the marked potential to implicate a “right without a remedy.”
Those concerns aren’t shared by the Fourth Circuit Appeals Court. It has responded [PDF] to Okello Chatrie’s appeal with an affirmation of the lower court’s (limited and reluctant) blessing of the investigative dragnet. And it goes further than that, claiming the location data gathered by Google doesn’t come with an expectation of privacy attached.
[W]e find that the government did not conduct a Fourth Amendment search when it obtained two hours’ worth of Chatrie’s location information, since he voluntarily exposed this information to Google.
But that assumption runs contrary to the points raised by the US Supreme Court in the Carpenter decision. In that case, it held that collecting long-term cell site location data required the use of a warrant. It also pointed out the base assumption contained in the Third Party Doctrine (that anything shared voluntarily with third parties has no expectation of privacy) doesn’t always apply. While people understand they’re sharing information with their bank in order to avail themselves of bank services, they don’t always understand that cell towers and service providers like Google are collecting information on them hundreds of times a day. None of that is affirmative, so it’s a bit misleading to call something no one has any power to stop (not if they want access to cell service or other third party services) “voluntary.”
The Fourth Circuit says Google location data collection, however, is voluntary. That’s because several steps must be taken to allow Google to collect this data. (This has not always been the case and, in the past, Google has been known to collect this data even when users have opted out of this data collection.) It says the Third Party Doctrine applies, denying Chatrie’s challenge of the warrant.
The third-party doctrine therefore squarely governs this case. The government obtained only two hours’ worth of Chatrie’s location information, which could not reveal the privacies of his life. And Chatrie opted in to Location History on July 9, 2018. This means that he knowingly and voluntarily chose to allow Google to collect and store his location information. In so doing, he “t[ook] the risk, in revealing his affairs to [Google], that the information [would] be conveyed by [Google] to the Government.” He cannot now claim to have had a reasonable expectation of privacy in this information. The government therefore did not conduct a search when it obtained the data.
So, in the eyes of the majority, the government doesn’t even really need a warrant to collect this data. It could have just sent Google a request for the information without having to run it by a judge first. As the dissent points out, that’s because even the government believes this is the sort of search that necessitates the use of a warrant.
At the heart of this appeal, the majority opinion concludes that the government has a virtually unrestricted right to obtain the Location Data History of every citizen. But I believe the government needs a warrant to obtain such Location History data. And that’s something the government itself apparently believed at the time it conducted the respective intrusion, since it sought and obtained a warrant in this matter.
That, of course, does nothing for Chatrie. But it does show the government thinks there’s an expectation of privacy in this data, even though the Fourth Circuit claims there isn’t.
But the bigger point is the problem courts generally don’t address because they don’t have to: the intrusions created by geofence warrants that cannot possibly be supported by probable cause, which means the warrants will almost always be deficient. But the thousands or millions of people whose records are searched have no standing to challenge the search because they never even know it happened.
[G]eofence intrusions are even broader than the intrusion in Carpenter because there is no limit on the number of users police can include in a geofence. With CSLI, police at least had to provide a specific phone number to search, so they had to identify a criminal suspect before they could pry into his or her historical CSLI data. By stark contrast, geofence intrusions permit police to rummage through the historical data of an unlimited number of individuals, none of whom the police previously identified nor suspected of any wrongdoing. Indeed, the very point of the geofence intrusion is to identify persons whose existence was unknown to police before the search.
Both the majority and the dissent make good points. I’d argue the dissent makes the better points. But in the end, it’s the majority ruling that matters. And, in this circuit, the ruling seems to say investigators don’t even need warrants to perform these searches. There’s one option left for Chatrie and it’s the Supreme Court. The nation’s top court is going to need to deal with this issue and its relation to Carpenter eventually and Chatrie’s case is as good as any to serve that purpose.
The ultimate lesson here is one that’s been taught over and over again by the government of a free nation: if you attempt to bypass government revenue generation mechanisms, expect to get put in your place, citizen.
Back in 2021, North Carolina resident Michael Jones — with the assistance of the Institute for Justice — sued the state for preventing him from operating his business. Jones is a drone operator and photographer. The service he offers is the photography of a property owner’s land. The drone photography is then processed by Jones to offer a basic overhead map of the property. And it’s not as though it’s mistakable for the work product of licensed surveyors who have access to better tools. According to the court decision, this “processing” was little more than stitching shots together with Photoshop and hand-drawing rudimentary “property lines.”
The state says Jones can’t do this — not without a surveyor’s license. Acquiring a surveyor’s license means shelling out money to get certified. This is clearly ridiculous since Jones’ business only conveys facts about the land being photographed, something that could be ascertained by anyone with access to the same tools.
But because the North Carolina Board of Examiners isn’t collecting fees from Jones, it has declared his actions illegal. And it has said this despite Jones making it clear to customers he is not offering surveying services and instructing them that any information he produces for them cannot be used for legal purposes, including the establishment of property lines.
If landowners want legally useful info, they’ll still have to approach government-licensed surveyors, even though a lot of this information (elevation, geographical coordinates) can be obtained simply by using free services like Google Maps.
Unfortunately, trying to prove that drone photography of people’s property is protected speech, rather than something strictly controlled by state regulators hasn’t worked out for Jones. He lost at the district court level. And, as the Institute for Justice reports, the Fourth Circuit Appeals Court has reached a similar conclusion.
Yesterday, a three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that North Carolina may ban the creation of aerial maps by everyone except licensed land surveyors. The ruling strips away the First Amendment rights of Michael Jones, a Goldsboro, North Carolina, drone operator—along with many other innovative entrepreneurs in the state. Michael, along with the Institute for Justice (IJ), will seek further appellate review of the court’s decision with the goal of restoring Michael’s right to communicate with clients without government interference.
The decision [PDF] explains its reasoning, but you’re not going to learn too much from its rationalization of a state’s bizarre claim that it’s entitled to regulate certain forms of aerial photography — even if the aerial photographs were obtained with the explicit consent of the owners of the land being photographed.
The ruling at least takes the time to explain that obtaining a surveyor’s license is a “rigorous process” with multiple steps and several (apparently arbitrary) requirements, including the demand that people in this business possess at least a bachelor’s degree in surveying or, failing that, nine years of practical experience.
While I can understand the government might want to deter non-experts from sending a drone skyward and pretending they’re in the surveying business, at no time did Jones ever claim to be licensed surveyor and made it explicitly clear to his customers that his offerings were not the legal equivalent of those produced by those with a government-issued surveying license.
But that wasn’t enough for the state and its regulation board. So, it has fought Jones’ lawsuit, presumably because doing otherwise might mean missing out on some of this presumable trickle of income from surveyor licensing.
Jones’ lawsuit emphasized the First Amendment right to gather and present information — something that covers everything from journalists seeking information from sources to people publishing photographs of Barbra Streisand’s house. Unfortunately, two courts in a row — now including one capable of setting circuit precedent — have said otherwise. The state’s insistence that unlicensed surveying might cause problems at some point is all that’s needed to declare Jones’ I-have-literally-told-everyone-I-am-not-a-surveyor non-surveying business more illegal than constitutionally protected.
According to the Fourth Circuit, drone photography of property (which may or may not later be modified into something approaching a licensed surveyor might produce) isn’t subject to the rigorous examination required of statutes that affect stuff most people would assume to be protected by the Constitution. Instead, it’s the other thing.
Because the Act is a regulation of professional conduct that only incidentally impacts speech, our precedent requires that we apply a more relaxed form of intermediate scrutiny that mandates only that the restriction be “sufficiently drawn” to protect a substantial state interest.
Oh, OK. So if the court says it’s conduct and not speech, screw all the speech stuff, I guess. Then it compares it to previous precedent that doesn’t seem all that applicable (like the unlicensed practice of law or medicine) to arrive at the conclusion that favors the government and its desire to ensure it can extract licensing fees from people who explicitly warn potential customers that they are not in the business the government is trying to regulate.
[T]he Act in this case protects the professional integrity of surveyors: a surveying license is not easy to obtain, and there is a public interest in ensuring there is an incentive for individuals to go through that rigorous process and become trained as surveyors. Further, the Act protects consumers from potentially harmful economic and legal consequences that could flow from mistaken land measurements. Tellingly, when asked how a client would be “protected” in the absence of the Act “against somebody who really doesn’t know what they are doing but is [offering] the client services in the field of photogrammetry,” Plaintiffs’ expert responded, “That’s up to the client”—meaning, he agreed, “buyer beware.” We agree with the Board that the First Amendment doesn’t require the State to accept this caveat-emptor view of regulating surveying.
I understand the rationale a bit, at least the part about protecting the public from people who don’t have the expertise in the subject presenting themselves as experts. But that would only make sense if that’s what Jones had done. He didn’t. And the court’s spinning Jones’ warning to customers that he (1) wasn’t licensed as a surveyor, and (2) anything he produced had no legal weight into something equivalent to “buyer beware” is a bit disingenuous. The buyer has been warned, but it is on the buyer if they choose to use Jones’ photographs and maps to do things they’ve been told they can’t be used for.
This leaves Jones in a pretty unenviable position. The business he performs can no longer operate in the state he resides without him being fined or sued by the state government. He can appeal this (and the IJ plans to keep fighting this) to the Supreme Court, but getting a case picked up by that court means appealing to the sensibilities of certain judges with ideological axes to grind. This case doesn’t have that sort of hook. For now, drone photography (and subsequent conversions to maps) by non-licensed North Carolina residents remains illegal, rather than what it should be: protected expression that just happens to be something people might want to pay money for.
No matter how you might feel about constitutional rights or which ones are your favorites, the fact remains that it’s often people with the least amount of cultural cachet and/or the most to lose who make the best case law.
And so it is here, where we’re dealing with a sex offender who tried to follow both the letter and spirit of the law just to find himself arrested by the same people who defined the letter of the law for him.
However you may feel about sex offenders (and keep in mind this list includes teens who sexted other teens), there’s no denying they’re subject to some very extreme restrictions. These restrictions make it almost impossible for them to find housing. They certainly make it impossible for them to find anything but the worst forms of employment. And, in many states, paying for your crimes with jail time means nothing. Offenders (and not even those suspected to be prone to re-offending) are saddled with years — if not decades — of work/life restrictions that far surpass those handed to people convicted of violent crimes.
But, as long as offenders comply with these restrictions, they can continue whatever’s left of their lives in (very restricted) freedom. But the rules are complex, subject to change, and subject to broad interpretation by the government employees tasked with enforcing them.
This decision [PDF], issued by the Fourth Circuit Appeals Court, calls out cops for actions one usually expects from corrupt government employees doing the bidding of their totalitarian masters. The US is — at least until the next presidential election — still a democratic republic. The sorts of things detailed here simply should not be happening. (h/t Short Circuit)
North Carolina resident David Thurston sued after he was pretty much railroaded by local law enforcement officers who arrested him for (supposedly) violating his sex offender registration requirements. Thurston pleaded guilty to sexual assault of a minor charges in 1992. He served his time in Montana. He moved to North Carolina more than thirty years later, in 2015. He contacted Sheriff Kevin Frye and Deputy Lee Buchanan to make sure he complied with his new home’s offender registration requirements.
He complied with the state’s restrictions. A year after moving to North Carolina, Thurston contacted the sheriff to inform him he was planning to attend his nephew’s wedding in Spokane, Washington the following month. He asked for guidance on how to handle this temporary exit from the state, as well as what he needed to do to ensure compliance during this visit as well as after his return from the wedding.
Sheriff Frye was understanding, even if he wasn’t all that much help.
After they exchanged texts, Sheriff Frye told Thurston on August 11 that he could “[g]o on” because the Sheriff’s Office was “working on it.” All Thurston needed to do, Sheriff Frye explained, was email a copy of Thurston’s Washington visitor-registration form within ten days of his arrival.
Having seemingly been given permission to attend this wedding and stay in Washington until he decided to return to North Carolina, Thurston left town. But his trip was immediately interrupted by Sheriff Frye, who now seemed a bit more concerned with keeping tabs on Thurston’s whereabouts. He asked Thurston for the address where he would be staying and to contact him after he arrived in Washington. Thurston immediately provided the address and promised to reach out after his arrival.
Once in Washington, Thurston contacted local law enforcement to register as a “visitor” in order to remain in compliance with his sex offender obligations. Thurston stayed in Spokane for the next month, during which he made a couple of trips to Seattle to visit a friend.
The sheriff and his office should have known Thurston was still in Washington. But they either forgot about the trip he had informed them about or simply didn’t care. Either way, the deputy charged with handling sex offenders began making things worse for Thurston, who was still in full compliance with the Sheriff’s demands and North Carolina law.
On September 9, while Thurston was away, the Sheriff’s Office mailed his verification form. Thurston’s sister, who lived with him in North Carolina, told him about the form, prompting Thurston to contact Sheriff Frye for guidance. But Sheriff Frye never responded, so Thurston decided to “let it lie,” given their prior interactions.
The Sheriff’s Office, however, did not “let it lie.” Instead, Deputy Buchanan began investigating Thurston. Three times after Thurston’s September 12 verification deadline, Deputy Buchanan stopped by Thurston’s residence. Of course, Thurston was not there.
Roughly six weeks after his arrival in Spokane, the Spokane Sheriff’s Department contacted Thurston to inform him that (North Carolina) deputy Lee Buchanan was “looking for him.” Thurston called Deputy Buchanan, who told him his “absence” was “causing problems back home.” The deputy also (incorrectly) informed Thurston that it was “illegal” for him to be out of the state for more than 30 days. Then the deputy said this:
[I]n the same breath, [Deputy Buchanan] also said that he had spoken with Sheriff Frye and had decided that, as long as Thurston was back in North Carolina by October 19, “there would be no problem.”
Thurston returned on October 19th. It didn’t matter, at least not to Deputy Buchanan.
Even so, Deputy Buchanan discussed potential criminal liability with an assistant district attorney, who recommended that Deputy Buchanan pursue charges against Thurston. And on October 19—knowing that he and Sheriff Frye had given Thurston until that day to return to the state—Deputy Buchanan obtained a warrant from a local magistrate alleging three different criminal violations committed from September 19 to October 18: (1) “being out of state for thirty (30) + days,” (2) willfully failing to return his verification, and (3) willfully failing to report in person to the Sheriff’s Office.
And the trap was set. Thurston went to the Avery County Sheriff’s Office (completely unprompted by law enforcement visits or calls) to deliver his verification form. In return for this, he was arrested. The charges were later dropped, with the prosecutor explaining it away as “a misunderstanding with regard to how to comply with technical requirements.”
Well, the only “misunderstanding” was on the part of Deputy Buchanan, who managed to “misunderstand” direct communications with his sheriff so poorly (whether deliberately or not) that he had a man arrested for doing exactly what he had been instructed to do both by Sheriff Frye and Deputy Buchanan.
That dog won’t hunt, says the Fourth Circuit. It cites the lower court’s findings, which it upholds here:
Deputy Buchanan and Sheriff Frye therefore needed some reason to believe that Thurston either purposefully violated the law or acted with some other improper purpose. But the district court’s order forecloses any argument that they believed this. Viewing the evidence in the light most favorable to Thurston, the district court accepted that both defendants “definitely knew that . . . Thurston was eager to comply with the law.” And the district court accepted that the officers knew that Sheriff Frye gave Thurston permission to travel and that Thurston followed every instruction the Sheriff’s Office gave him. In so concluding, the district court not only accepted the facts alleged about Thurston’s actions but also accepted that the officers had concluded, based on those actions, that Thurston was eager to comply with the law throughout his sojourn.
This sort of ruling means nothing if it’s not followed by a denial of qualified immunity. After all, officers are free to violate rights so long as they can credibly (lol) argue their clear violations of established rights were differentenough from standing case law they could not have possibly known their actions were unconstitutional (even if it’s immediately obvious to everyone else). That doesn’t work here because (1) the rights violation is pretty fucking obvious and (2) the circuit has some precedent that aligns with the current case.
In this case, it’s the Fourth Circuit’s 2012 Merchant v. Bauer decision, which involved an officer seeking a search warrant to arrest someone for impersonating an officer. The court held then that the warrant was void and unconstitutional because the officer applying for it was in possession of knowledge that would have exonerated the suspect of the proposed criminal charge.
It’s the same thing here:
In other words, we held that knowledge of sufficiently exculpatory information trumps the inculpatory evidence of the warrant. So too here. The district court found that Sheriff Frye and Deputy Buchanan knew that Thurston was not acting willfully and thus could not satisfy each element of the relevant crimes, yet they sought a warrant and arrested him anyway. After Merchant, no reasonable officer could believe that an arrest in such circumstances was lawful.
If it’s not “reasonable,” it’s not constitutional. And since the standard is “reasonable officer” rather than “regular American,” reasonableness is the operative factor, even when most reasonable non-cops would clearly understand that arresting someone for following specific instructions issued by law enforcement officers is a violation of that person’s rights. There’s no new precedent here. But at least there’s another affirmation that trying to arrest someone for following the law is so far out of the range of “reasonable,” no officer can expect to be immunized for their blatant constitutional violations.
We’ve dealt with plenty of outlandish government behavior here at Techdirt over the years. But, every so often, something clears that high bar — something that hits you square in the jaw and makes you take a step back.
You’ll never know what your government employees feel they’re entitled to do until they actually do it. I can only imagine what Matthew Gibson thought when the judge handling his divorce decided to make things extremely personal.
Trust me, you can’t even imagine what happened next.
On September 26, 2019, Kyle Lusk, the attorney for Mr. Gibson’s soon-to-be-ex-wife, filed a Petition for Contempt, alleging defects in the property disbursement. On March 4, 2020, a hearing was held on this contempt petition. Judge Goldston sua sponte halted the hearing, requested Mr. Gibson’s home address, and ordered the parties to reconvene at Mr. Gibson’s home in ten minutes without explanation as to why the home visit was necessary.
Unusual but not unheard of. Judges have occasionally requested to view scenes of crimes, etc. to gain some perspective on allegations or whatever. What is unusual is the decision to bring both parties to Mr. Gibson’s house, including his ex-wife’s lawyer.
What was even more unusual was what happened after the judge’s arrival at Gibson’s home.
Mr. Gibson informed Judge Goldston that she was not going inside his house without a search warrant; she replied, “oh, yes, I will.” Judge Goldston continued, “let me in that house or [the bailiff] is going to arrest you for being in direct contempt of court.” Judge Goldston admitted to threatening Mr. Gibson with arrest if he refused to allow her and others into his home.
Holy shit.
Oh wait.
Many different items of personal property were seized from Mr. Gibson’s residence without his consent, only some of which were later returned. Law enforcement created no contemporaneous inventory of the items taken or any police report.
That’s not what judges are supposed to do. That’s not even what law enforcement is supposed to do without probable cause a crime has been committed.
Worse, this appeared to be “normal” behavior for this particular judge.
On September 18, 2020, the West Virginia Judicial Investigation Commission issued a Formal Statement of Charges, filed with the Supreme Court of Appeals of West Virginia, which revealed Judge Goldston admitted to conducting similar “home visits” in her capacity as Family Court Judge on at least eleven (11) separate occasions.
The district court — extremely reasonably and rationally — said this was beyond the constitutional pale and stripped the judge of immunity. And that’s not a small thing. Judicial immunity is normally impossible to remove. It takes actions like these for courts to even consider making judges subject to civil rights lawsuits.
Fortunately, the Fourth Circuit Appeals Court has come to the same conclusion. This is definitely not the sort of behavior that should be immunized. It only takes 15 pages for the Appeals Court to drive this point home in its ruling [PDF]. (h/t Short Circuit)
Here are a few highlights of the facts leading to this immunity refusal. This whole interaction would have been recorded but Judge Goldston’s threatened the victim of her rights violations with even more rights violations if he didn’t stop recording the impromptu search of his house.
The above exchange was caught on video, but Judge Goldston soon realized that she was being recorded. She ordered Gibson to stop the recordings on the ground that parties may not record family court proceedings. She told everyone to turn off their phones, warning, “I’ll take you to jail if you don’t turn them off.” When Gibson failed to comply, she ordered him to turn his phone over to the bailiff and again threatened him with arrest. Before the recording stops, Judge Goldston can be heard saying, “I am the judge trying to effect equitable distribution. We’re having a hearing. Now you let me in that house or he [the bailiff] is going to arrest you for being in direct contempt of court.”
These aren’t the actions of a public servant or a person entrusted with acting as a check and balance against government overreach. These are the acts of a thug, one who apparently misused her power multiple times to bully people into unconstitutional searches.
It only gets worse from there. And, unbeknownst to Judge Goldston, some of her further thuggery was recorded by someone she apparently felt was sufficiently under her thumb.
Unbeknownst to Judge Goldston, her bailiff recorded the first part of the search. The video painted a striking picture. Judge Goldston, her list of unproduced assets in hand, directed proceedings. When the ex-wife identified some photos hanging on the wall as being on the list, Judge Goldston told her to “take ‘em.” When the ex-wife opened a closet to reveal some yearbooks, Judge Goldston said, “Get ‘em.” And when the ex-wife said that their old DVD collection was downstairs, Judge Goldston accompanied her down and told her to “go in there and pick the ones you want.” The ex-wife sifted through the DVDs as Judge Goldston sat in a rocking chair, shoes off, supervising and giving orders.
This isn’t quasi-judicial. This is quasi-Stasi. This is also, as subsequent courts noted, standard operating procedure for Judge Goldston.
The record is extremely damning. It is also incomplete.
We lack a record of everything that happened. The bailiff recorded only seven minutes of the twenty-or-thirty-minute search. No one made a contemporaneous record of all that was taken. No police report describing the search was ever filed, even though the backup sheriff’s deputy eventually arrived, entered the home, and helped with the search. After the search, the parties reconvened in the courtroom, where Judge Goldston listed the items that had been recovered for the record. But no written order was ever entered describing or authorizing the search itself.
After admitting she performed these searches herself because she believed law enforcement officers wouldn’t be nearly as thorough in their rights violations, Goldston was hit with sanctions for “serious misconduct.” Please try not to choke on your vomit/incredulous laughter:
The disciplinary proceedings culminated when the West Virginia Supreme Court of Appeals censured Judge Goldston for her “serious misconduct” and ordered her to pay a $1,000 fine.
Jesus. Why even bother. Just because the hand was only slightly bigger than the one used in less vile cases doesn’t mean this isn’t still just a wrist slap.
Fortunately, the Appeals Court says Goldston can’t escape this lawsuit. What happened here (on multiple occasions, apparently and admittedly) falls so far outside this protection, the court simply will not grant Goldston immunity.
Judicial immunity does not protect judges so much as it protects the judicial acts they undertake as part of their public service; it is “defined by the functions it protects and serves, not by the person to whom it attaches.” […] We rest our holding that Judge Goldston is not so protected on the fact that she engaged in a nonjudicial act. Our decision is not grounded in any absence of jurisdiction. Rather, it is based on the fact that the judge clearly exceeded the most common understandings of the proper judicial role.
[…]
The search of someone’s home and the seizure of its contents are executive acts, not judicial ones. We thus hold that her activities are not eligible for the protections of judicial immunity.
The Appeals Court goes on to clarify it’s not establishing some new ground rules for judicial behavior. At this point, it is only making it clear what happened here cannot be covered by judicial immunity. The case goes back to the lower court that made the correct call in its initial decision: judges can’t pull this shit… at least not if they expect immunity to shield them from lawsuits. Goldston went rogue. With any luck it will cost her far more than $1,000. Hopefully — since she’s decided she’s better off in the private sector — it will cost her a considerable amount of her own money to right these wrongs.
And, as if this wasn’t enough to turn your stomach, two of Goldston’s fellow judges are facing judicial discipline for trying to prevent Goldston from being prosecuted. The rot runs deep. Two judges crafted a letter calling for the firing of Judicial Investigation Commission members but lied to investigators later, claiming only one judge was responsible — something that was disproven using the document’s metadata. If the judiciary cares about maintaining its reputation, it will end the careers of all three judges with enough severity they’ll be considered unhireable anywhere else in the nation.
