Friday, August 18, 2017

Congratulations to Judge Robert Scola for being named to the Defender Services Committee.

Congratulations to Judge Robert Scola for being named to the Defender Services Committee.

Defender Services Committee
Chief Justice John G. Roberts, Jr. appointed the following new members to the Defender Services Committee.  Their terms begin October 1, 2017.

New Members:
Hon. Micaela Alvarez (5th Circuit representative - TX-S)
Hon. Judith Ellen Levy (6th Circuit representative - MI-E)
Hon. Robert N. Scola, Jr. (11th Circuit representative - FL-S)
Hon. Ketanji Brown Jackson (DC Circuit representative - DC)
There is another Miami connection to the committee -- Judge Brown Jackson is a Miami native and went to Palmetto High.

Thursday, August 17, 2017

11th Circuit vs. then-Judge Gorsuch

The 11th Circuit, per Judge Dubina, issued an opinion today disagreeing with then-Judge Gorsuch in United States v. Games-Perez. 667 F.3d 1136, 1142 (10th Cir. 2012) (Gorsuch, J., concurring in judgment). The Gorsuch opinion was defendant friendly on the issue of mens rea. Unsurprisingly, the 11th Circuit opinion is not:
As Rehaif points out, the strongest argument in favor of requiring proof of mens rea with respect to the status element is laid out in then-Judge, now Justice Gorsuch’s concurrence in United States v. Games-Perez. 667 F.3d 1136, 1142 (10th Cir. 2012) (Gorsuch, J., concurring in judgment). Acknowledging that prior precedent dictated that the mens rea requirement does not apply to the status element, then-Judge Gorsuch concluded that the plain language of the statute compelled the opposite conclusion. Id. (“[Prior precedent] reads the word “knowingly” as leapfrogging over the very first § 922(g) element and touching down only at the second. This interpretation defies linguistic sense—and not a little grammatical gravity.”). In drawing such a conclusion, then-Judge Gorsuch noted that, “Congress gave us three elements in a particular order. And it makes no sense to read the word “knowingly” as so modest that it might blush in the face of the very first element only to regain its composure and reappear at the second.” Id. at 1144. He also pointed out that “[t]he Supreme Court has long held that courts should presum[e] a mens rea requirement attaches to each of the statutory elements that criminalize otherwise innocent conduct.” Id. at 1145 (quotations omitted) (alteration in original).
While then-Judge Gorsuch opined that § 922(g) “is a perfectly clear law as it is written, plain in its terms, straightforward in its application,” id., there is evidence to suggest otherwise. The fact that § 924(a)(2) only punishes defendants who “knowingly violate” § 922(g) begs the question “what does it mean to knowingly violate the statute?” Does the statute proscribe merely conduct, or both conduct and the surrounding circumstances that make the conduct a federal crime? See United States v. Langley, 62 F.3d 602, 613 (4th Cir. 1995) (en banc) (Phillips, J., concurring in part and dissenting in part) cert. denied, 516 U.S. 1083, 116 S. Ct. 797 (1996). While the defendant’s status might be inextricably tied to the violation, the actual violation occurs when the defendant knowingly possesses a firearm.

Tuesday, August 15, 2017

Interesting amicus briefs on cell site case (Carpenter) before SCOTUS

The Supreme Court will hear the cell site case (Carpenter) sometime this winter.  Amicus briefs in support of Carpenter were filed yesterday.  Here is one by EFF and NACDL,* among others.  The Cato Institute brief is also worth a read.

Perhaps the most interesting brief is this one filed by "tech companies."  Although they don't take a position on this specific case, which argues that the third party doctrine is no longer workable in this modern era
The Internet and Internet-connected devices have revolutionized nearly every facet of our lives. Ameri-cans rely daily on services made possible by networked technologies—from email, smartphones, and web-based social media the Court has already encountered to new and evolving products and applications in the “Internet of Things,” such as smart-home devices that can be used to control room temperature and lighting, order groceries, and perform a multitude of other tasks. These devices and services not only confer immense value on users and society, but in many instances are considered practical necessities of modern life.

Using these technologies often involves transmit-ting highly personal information through the networks and applications of digital service providers. That in-cludes transmission of metadata—
i.e., data about da-ta—generated by automated processes that are part of the background operation of digital devices and applica-tions. Such transmissions are inherent features of how the Internet and networked devices work. Short of forgoing all use of digital technologies, they are una-voidable. And this transmission of data will only grow as digital technologies continue to develop and become more integrated into our lives. Because the data that is transmitted can reveal a wealth of detail about people’s personal lives, however, users of digital technologies reasonably expect to retain significant privacy in that data, notwithstanding that technology companies may use or share the data in various ways to provide and improve their services for their customers. Fourth Amendment doctrine must adapt to this new reality. Although amici do not take a position on the outcome of this case, they believe the Court should refine the application of certain Fourth Amendment doctrines to ensure that the law realistically engages with Internet-based technologies and with people’s ex-pectations of privacy in their digital data. Doing so would reflect this Court’s consistent recognition that Fourth Amendment protections, governed as they are by reasonable expectations of privacy, must respond to changes in technology that implicate privacy. Indeed, in declining to extend the search-incident-to-arrest ex-ception to searches of cell phones in Riley v. California, 134 S. Ct. 2473 (2014), this Court has already signaled that digital information deserves special consideration, largely because Internet-connected devices such as smartphones “are not just another technological con-venience,” but are necessary to participate in the mod-ern world, and “hold for many Americans ‘the privacies of life.’” 2494-2495.

In the digital context, inflexible doctrines that cat-egorically foreclose any protection for data automatical-ly generated by ordinary digital activity—or that will be generated by the yet-to-be-conceived technologies of tomorrow—are not sustainable. In particular, the analog-era notion that transmission of data to a third party is necessarily “voluntary” conduct that precludes Fourth Amendment protection should not apply in a world where devices and applications constantly transmit data to third parties by dint of their mere op-eration. No constitutional doctrine should presume that consumers assume the risk of warrantless government surveillance simply by using technologies that are beneficial and increasingly integrated into modern life. Similarly, the fact that certain digitally transmitted information might have been traditionally classified as “non-content” should not unconditionally bar Fourth Amendment protection, as this data can of-ten be highly revealing of the intimate details of a us-er’s life. Rather than adhere to rigid Fourth Amendment “on/off” switches developed in the analog context, courts should take a more flexible approach that realis-tically reflects the privacy people expect in today’s dig-ital environment. Consistent with the general reasona-ble-expectation-of-privacy inquiry, courts should focus on the sensitivity of the data at issue and the circumstances of its transmission to third parties. That approach would better reflect the realities of today’s digital technologies and accommodate the technologies of the future.

*Full disclosure -- I am counsel for NACDL in this brief.

Monday, August 14, 2017

SDFLA seeks two Magistrate Judges

The Southern District of Florida is seeking two Magistrate Judges -- one for West Palm Beach and one for Miami.  Here's the court announcement:

The U.S. District Court for the Southern District of Florida anticipates appointing two full-time Magistrate Judges in the coming months, one for the Miami Division and one for the West Palm Beach Division.  A full public notice for the Miami position is posted on the Courts Internet website at:  Application forms are also available on the website. The application deadline for the Miami position is September 11, 2017 at 5:00 p.m.  Final approval to fill the West Palm Beach position is pending at this time.  Once approval is received, a full public notice will be posted on the website and the application deadline for that position will be set.  Those interested in the West Palm Beach position should continue to check the Court's website for updates.    
In addition, the Court is seeking comment on the reappointment of Magistrate Judge Lurana S. Snow in Fort Lauderdale and Magistrate Judge Jonathan Goodman in Miami.  Information regarding the reappointment process and how to submit comments may found on the Court's website:  The deadline for submitting comments is September 11, 2017 at 5:00 p.m.
Interested persons should consult the Court's website for further details.  The Clerk of Court may also be contacted for additional information or forms at (305) 523-5001 or