Pay no mind to the man behind the curtain.

The Guantánamo Bay trial proceedings for alleged terrorist mastermind Khalid Sheikh Mohammed hit a speed bump on Monday:

The courtroom is set up so that spectators behind sound-proof glass can listen to an audio feed with a forty-second delay. As Carol Rosenberg of the Miami Herald describes it, “A red emergency light spins in court when a censor at the judge’s elbow hits the mute button to prevent someone from spilling national security secrets.” At just before 2:30 P.M., David Nevin, one of the defense lawyers, who was addressing a brief having to do with C.I.A. secret prisons, said he understood that “we are going to do this in a 505 and that some portion of this will turn out to be closed or secret.” As he pronounced “secret,” the light began to flash and white noise filled the audio feed, as if it had been a trigger word—even though neither the security officer or the judge had touched the button. That’s when the judge, James Pohl, realized that he was not, as he’d thought—given the trappings and the job title—running his own courtroom. Some unknown person in another room was, and was apparently able to turn the audio off or on, or, for all anyone knew, pipe in the soundtrack to “Zero Dark Thirty.”

Judge Pohl, who is also an Army colonel, was confused and angry.

“If some external body is turning the commission off under their own view of what things ought to be, with no reasonable explanation because I—there is no classification on it, then we are going to have a little meeting about who turns that light on or off,” the judge said.

Apparently “baby killing” is not such an effective scare tactic anymore

Today marks the 40th anniversary of Roe v. Wade, and a new poll reveals that the ruling is more popular now than it’s ever been before:

Seven in 10 adults say the Supreme Court should not overturn its landmark decision establishing abortion rights, according to a new Wall Street Journal/NBC poll.

That is the highest level of support for Roe v. Wade in the poll’s 24 years of tracking the question. Only about one in four said the court should overturn its verdict.

Michael Tomasky zooms out:

Same-sex marriage approval. Marijuana legalized. Now this. It continues to amaze me how the country has flipped culturally. I think this is probably Obama’s biggest impact, more than health care or anything else. He’s changed the political culture of the country. In some senses by doing particular things–repealing don’t ask, don’t tell. But in other senses just by being Barack Obama.

In accepting him as their president (which 70 percent of Americans happily do, even when they may disagree with this or that policy), Americans appear also to have accept in some internal way that it’s a different time and a different country now. It seems natural that that psychic change would first manifest itself in certain shifting cultural attitudes, as these are low-hanging fruit compared to the big policy changes that face ferocious opposition in Washington.

It may also be that it’s not really Obama who made these changes, that they were well in formation when he just happened to come along and embody them. I think here of the Beatles as an analogy. They certainly changed the culture and the world and led a revolution, but many societal factors were lined up in harmony just waiting for someone to come along and pop the cork: the rise of the teenage demographic, the end of conscription (in Britain, which gave young males more freedom), and so on. Everything came together and boom it all went. Same kind of thing here.

Forget Clarence Thomas: In Louisiana, You Can Be Guilty Before Proven Guilty

Why you should care about Boyer v. Louisiana: Criminal defendants without the money to pay for their defense are being imprisoned for years without trial, subverting the basic tenet of “Innocent Before Proven Guilty.” (Picture via:

Why you should care about Boyer v. Louisiana: Criminal defendants without the money to pay for their defense are being imprisoned for years without trial, subverting the basic tenet of “Innocent Before Proven Guilty.” (Picture via:

As the dust settles from Monday’s Boyer v. Louisiana oral argument before the Supreme Court, the major news takeaway is undoubtedly Justice Clarence Thomas’ breaking of a nearly seven-year silence from the bench to crack what may or may not have been a joke about the competence of either Harvard or Yale-trained lawyers (the full transcript of the argument is here).  Much hay has been made in the press over what Thomas’ joke could have meant–see the near-breathless coverage analyzing the Justice’s mindset here, here and here–but the actual arguments behind Boyer, which explores the limits of the state’s obligation to provide a speedy trial for an indigent death penalty defendant, are interesting enough to merit a second glance as well.

Jonathan Boyer and the state of Louisiana disagree over almost every aspect of what happened on the night of February 3, 2002, when Bradlee Marsh was shot three times and killed as he sat in his pickup truck. While Louisiana maintains that Boyer was responsible–a conclusion bolstered by Boyer’s subsequent confession and the testimony of Boyer’s brother–Boyer claims that his “confession” was fake and that someone else was behind the killing. Regardless of the perpetrator’s identity, all sides agree that after his arrest and indictment for first-degree murder, Jonathan Boyer waited over five years in prison for his trial to begin after Louisiana appointed but did not have the money to fund the two requisite attorneys assigned to defend his death penalty case. (The federal Constitution does not mandate two defense lawyers in capital cases, but Louisiana state court rules do.)  It was only after the state decided to drop the first-degree murder charge–a move which took the death penalty off the table and made his case less expensive to defend–in favor of lesser charges that adequate funds were freed up and trial began. By this time, several witnesses had died or otherwise become unavailable. Boyer was convicted of second degree murder and armed robbery and sentenced to life imprisonment without parole. He now argues that Louisiana’s failure to fund his lawyers in the years it spent pursuing the death penalty led to a violation of his Sixth Amendment right to a speedy trial–the remedy for which requires a reversal of his murder conviction.

The Supreme Court outlined in 1972’s Barker v. Wingo a four-factor balancing test for determining whether a Sixth Amendment infringement has taken place: (1) the length of delay, (2) the reason for the delay, (3) whether and how the defendant asserted his right to a speedy trial, and (4) the prejudice that the defendant suffered due to the delay. Depending on the facts of the case, each factor is weighed against either the defendant or the state. In 2009’s Vermont v. Brillon, the Court found that a “systemic breakdown” in the public defender system leading to a delay of trial could be counted against the state. The main question in Boyer is whether a five-year failure to provide funding for the indigent’s appointed defense should similarly be held against the state. A “Yes” to that question doesn’t automatically mean that Boyer’s speedy trial rights were violated, but it does help his case in the Barker balancing.

Unsurprisingly, Louisiana argues that the delay in funding should not be held against the state so long as the state did not purposely withhold the money to avoid trial. Though Louisiana’s prosecutorial offices routinely received surpluses (of hundreds of thousands of dollars) to try cases in the same period of time that Boyer awaited trial from prison, the state maintains that the lack of funds for his defense resulted from other factors beyond its control, like Hurricane Katrina cleanup and the available monies being used up in other capital cases. Louisiana insists that it already dealt Boyer a more-than-fair hand by even bothering to appoint two counsel for him, which was enough to safeguard Boyer’s Constitutional rights.

At Monday’s lively oral argument, the Justices split over whether the delay was actually attributable to Boyer or to the state. Justice Scalia agreed with Louisiana that the state had already been very “generous” in naming multiple Ivy League-educated attorneys for Boyer (which is where Justice Thomas stepped in with his now-infamous four-word joke concerning their competence). Rather than putting the onus on Louisiana to fund the two lawyers required under its own state procedure, Scalia postulated that had Boyer truly cared about getting a speedy trial, he would have waived his state right to two attorneys and proceeded with just the one lawyer required by the federal Sixth Amendment. Justice Ginsburg questioned whether Boyer, a man with an eighth-grade education, knew that this option was available to him. Justice Kagan pointed out that even Louisiana seemed unaware that Boyer could move forward with only one attorney, since it had previously explained the delay by saying it could not “ethically or legally bring [Boyer] to trial” because he had been “without properly funded counsel for so long.” Meanwhile, Justice Sotomayor, who has worked as a prosecutor in New York, repeatedly pressed Louisiana to explain how a state’s choice to fund prosecutors’ investigations (or anything else) over capital defendants’ lawyers could not be attributed to the state.

The Justices also sparred over the scope of the question to be decided. In addition to laying out the four-factor balancing test, Barker v. Wingo holds that speedy trial challenges must be considered on a case-by-case basis, which allows for a far more fact-intensive inquiry than the Supreme Court is used to handling. Several members of the Court, led by Justice Breyer, mentioned repeatedly that the Court’s only job is to consider the general question of whether the failure to fund counsel should weigh against the state in a speedy trial challenge. (If so, they are content to send the case back down to the Louisiana courts for the case-specific reconsideration of whether such a violation occurred.)  Justice Scalia, however, believes the Supreme Court should both answer the general question AND perform the case-specific four-factor reanalysis for Boyer. To that end, Scalia spent a significant part of the oral argument focusing not only on the reason for the delay but on whether Boyer and his legal team properly brought up the speedy trial issue in the lower courts, whether he actually suffered prejudice due to the delay, and whether a reversal of his murder conviction would still leave him with a 99-year concurrent sentence for his armed robbery conviction.

If the oral argument is any indication, Justices Alito, Ginsburg, Sotomayor and Kagan agree with Breyer’s general reading of the question presented. These Justices also seem receptive to the idea that the lack of indigent defense funding is attributable to the state. This would constitute the five-Justice majority needed to remand the case to the state court for re-analysis.  It’s possible that Boyer could still lose his battle there–notwithstanding a SCOTUS ruling that the failure to fund should be weighed against Louisiana, Louisiana could still win the overall Barker balancing back in the lower court. But even if this happens, the Supreme Court will have (at the very least) sent a clear message to the states that if they keep shunting indigent defendants to the back of the line, they will be held responsible for such decisions.

As for Clarence Thomas’ thoughts on the fundamental questions of the case: who really knows? He hasn’t asked a substantive question at oral argument since 2006, and he certainly didn’t start on Monday. (I’m inclined to agree with Tom Goldstein of SCOTUSblog and Andrew Cohen of The Atlantic when they say the hoopla over the joke was a case of much ado about nothing.) Given the issues at stake, it’s too bad that Justice Thomas’ offhand remark ended up overshadowing the interesting points coming from both sides.*  The depressing truth about death penalty cases is that they take an extraordinary amount of effort and resources to defend–money and time must be spent for thorough investigation and expert witnesses, for both the trial and the sentencing phases–and as Justice Sotomayor pointed out, only a very small group of lawyers in this country are even qualified to argue death penalty cases. A defendant with money may be able to hire such a lawyer and pay for the investigation, but the indigent’s court-appointed counsel cannot be expected to pay such expenses out of pocket. And while it’s not unforeseeable that very cash-strapped states acting in good faith may simply not have enough money some years to try or defend all their capital cases, it is brutally unfair to make the indigent defendant bear the brunt of those funding decisions by waiting out that time in prison.

In other words, Louisiana for over five long years subjected an untried Jonathan Boyer to a philosophy of “guilty before proven guilty,” a situation he was powerless to avoid because he had no means of his own to mount a defense and no authority to change the state’s funding decisions. Regardless of Boyer’s culpability for the murder of Bradlee Marsh, the Supreme Court needs to remember that the Constitution guarantees a speedy trial for those found innocent and those ultimately found guilty, for those who can afford to defend themselves and those who cannot. Louisiana needs to be held accountable for its choice.

*I do wonder what Justice Thomas himself thinks of all the media attention surrounding his comment, particularly when he opined publicly in April 2012 that his fellow Justices should listen more and refrain from interrupting lawyers so frequently during oral argument.

Robert Bork’s America

The 85-year-old former judge died today, and Jeffrey Toobin — breaking from punditocratic tradition — went for the jugular:

Robert Bork, who died Wednesday, was an unrepentant reactionary who was on the wrong side of every major legal controversy of the twentieth century. The fifty-eight senators who voted against Bork for confirmation to the Supreme Court in 1987 honored themselves, and the Constitution. In the subsequent quarter-century, Bork devoted himself to proving that his critics were right about him all along…

It was said, in later years, that Bork was “borked,” which came to mean treated unfairly in the confirmation process. This is not so. Bork was “borked” simply by being confronted with his own views—which would have undone many of the great constitutional landmarks in recent American history. As Senator Edward Kennedy put it in a famous speech on the Senate floor, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, [and] writers and artists would be censored at the whim of government.”

Was Kennedy too harsh? He was not—as Bork himself demonstrated in the series of intemperate books he wrote after losing the Supreme Court fight and quitting the bench, in 1987. The titles alone were revealing: ”The Tempting of America,” “Slouching Towards Gomorrah: Modern Liberalism and American Decline,” and “Coercing Virtue: The Worldwide Rule of Judges.” One of his last books may have summed up his views best. Thanks in part to decisions of the Supreme Court—decisions that, for the most part, Bork abhorred—the United States became a more tolerant and inclusive place, with greater freedom of expression and freedom from discrimination than any society in history. Bork called the book, accurately, “A Country I Do Not Recognize.”

Marriage equality and the Supreme Court

David Cole reminds us that the upcoming Supreme Court cases on same-sex marriage are important, but nevertheless remain just a part of a much longer, inevitable march towards full marriage equality:

Whatever the Court does will affect gay marriage only in the short term. The political tide has turned decisively in the direction of marriage equality, and nothing the Court does can stop it. Polls show that two-thirds of Americans today support recognition of gay marriage or civil unions for gay couples, and young people favor marriage equality by especially large margins. In the 2012 elections, marriage equality proponents prevailed in all four states where gay marriage was on the ballot, and President Obama’s announcement in May that he had (finally) decided to support gay marriage appears to have cost him no votes. The statistician Nate Silver has predicted, based on state-by-state demographic poll results, that by 2016, the only states that do not have a solid majority in favor of gay marriage will be in the Deep South, and that by 2024, a majority will support gay marriage even in Mississippi, which he predicts will be the longest hold-out. Gay marriage is an inevitability.

But if the Court’s decisions in the gay marriage cases may not have lasting consequences for gay marriage, they are likely to have historic significance for the legacy of the Roberts Court. If it upholds the laws at issue, its decisions will almost certainly come to be viewed as the Plessy v. Ferguson of the twenty-first century, defending and reinforcing a deeply discriminatory practice without good constitutional reason. If, by contrast, the Court rules, as it should, that marriage equality is constitutionally required, its decisions will be celebrated in the history books alongside Brown v. Board of Education. Which side would you want to be on?

Supreme Court to Hear Prop 8, DOMA case

Photo by: J. Emilio Flores for the New York Times

Photo by: J. Emilio Flores for the New York Times

SCOTUSblog is reporting that the Supreme Court has granted certiorari to both Hollingsworth v. Perry, the California Proposition 8 case, and United States v. Windsor, a Defense of Marriage Act challenge. The Court will hear arguments in the two cases when it reconvenes in 2013.

Lyle Denniston has a preliminary breakdown of the order on SCOTUSblog’s live blog:

Prop. 8 is granted on the petition question — whether 14th Am. bars Calif. from defining marriage in traditional way. Plus an added question: Whether the backers of Prop.. 8 have standing in the case under Art. III.

[With regards to United States v. Windsor]: In addition to the petition question — whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the [Second Circuit] decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.

There is a good deal of complexity in the marriage orders, but the bottom line is this: the Court has offered to rule on Prop. 8 and on DOMA Section 3, but it also has given itself a way not to decide either case. That probably depends upon how eager the Justices are to get to the merits; if they are having trouble getting to 5 [justices] on the merits, they may just opt out through one of the procedural devices they have offered up as potentials.

More coverage of this development can be found here, here, here and here.

The GOP: always watchful of that UN takeover

Today, the Republican Party in the Senate rejected a United Nations treaty to protect the rights of the disabled:

Former Senator Bob Dole of Kansas sat slightly slumped in his wheelchair on the Senate floor on Tuesday, staring intently as Senator John Kerry gave his most impassioned speech all year, in defense of a United Nations treaty that would ban discrimination against people with disabilities.

Senators from both parties went to greet Mr. Dole, leaning in to hear his wispy reply, as he sat in support of the treaty, which would require that people with disabilities have the same general rights as those without disabilities. Several members took the unusual step of voting aye while seated at their desks, out of respect for Mr. Dole, 89, a Republican who was the majority leader.

Then, after Mr. Dole’s wife, Elizabeth, rolled him off the floor, Republicans quietly voted down the treaty that the ailing Mr. Dole, recently released from Walter Reed National Military Medical Center, so longed to see passed.

A majority of Republicans who voted against the treaty, which was modeled on the Americans With Disabilities Act, said they feared that it would infringe on American sovereignty.

Among their fears about the disabilities convention were that it would codify standards enumerated in the United Nations Convention on the Rights of the Child — and therefore United Nations bureaucrats would be empowered to make decisions about the needs of disabled children — and that it could trump state laws concerning people with disabilities. Proponents of the bill said these concerns were unfounded.

The measure, which required two-thirds support for approval, failed on a vote of 61 to 38.

Joshua Keating notes the surprising influence of homeschoolers in ensuring the treaty’s failure to be ratified:

In addition to groups like the Heritage Foundation — which opposes nearly any U.N. treaty on sovereignty grounds — and anti-abortion politicians like Rick Santorum who argue, inaccurately, that the law could lead to abortion being mandated for disabled children, the politically powerful, but usually under-the-radar U.S. homeschooling movement has been one of the most pivotal lobbies working against U.S. Senate ratification of the treaty. The Homeschool Legal Defense Association claims to have sent anywhere from 8,000 to 20,000 letters and emails to lawmakers urging them to oppose the treaty:

“I think the homeschool movement was more mobilized on this issue than any issue in the last decade,” Estrada said, noting that a large population of homeschooling families had at least one child with a disability.

“They realized this wasn’t about disabilities issue, this was about who was going to make decisions for children with disabilities,” he said.

Keating explains:

Groups like the HLDA argue that the treaty could allow the U.N. to mandate that parents who home school their disabled children to send them to government-run schools. (It says nothing of the sort.)  They may also be worried that adoption of the law could set a precedent for the United Nations Convention on the Rights of the Child, which they oppose on equally specious, but perhaps slightly more comprehensible grounds

It is indeed sad that a perfectly reasonable treaty was just rejected based on a complete misreading of it, but it’s yet more evidence of how influential a small group can be when it gets very organized and very loud.

Almost There: Supreme Court to Decide Whether to Hear DOMA, Prop 8 Cases

Karen Golinski, a federal employee in California, and her wife Amy Cunninghis.  Golinski is one of the plaintiffs challenging the Defense of Marriage Act. (Photograph by Jim Wilson/The New York Times.)

Tomorrow, the Supreme Court is expected to decide whether to hear a same-sex marriage case this term. While the Court has an array of petitions to choose from–five Defense of Marriage Act (DOMA) cases, the California Proposition 8 challenge, and an Arizona state benefits case are all on deck–it looks likely that at least one DOMA case will get the nod if it does tackle the issue. (And not just because Justice Ruth Bader Ginsburg predicted it would earlier this year.) The Proposition 8 case, Hollingsworth v. Perry, may be flashier, but it concerns a constitutional amendment that affects only same-sex marriages in California. On the other hand, DOMA creates a conflict between the federal government and any state that recognizes same-sex marriage, a group that has now grown to nine (plus the District of Columbia) and counting. As the number of legally married gay couples continues to climb, it is in the interests of the Supreme Court to decide DOMA’s constitutionality sooner rather than later.

Should the Court hear a DOMA challenge, what will be at stake for both sides? The five DOMA cases all arise from a dispute between state and federal definitions of marriage, which has been steadily brewing since the 1996 passage of the Defense of Marriage Act. While family law has traditionally been left to the states, Section 3 of DOMA defines “marriage” for federal purposes as a legal union between one woman and one man, and a “spouse” as an opposite-sex husband or wife. In the places that have recognized marriages between two women or two men, however, same-sex spouses find themselves caught in a strange limbo where they are legally married in the eyes of the state but not in the eyes of the federal government. They receive all the state benefits and privileges that marriage affords, but DOMA prevents them from enjoying the many federal benefits of marriage* that their heterosexual counterparts receive, including Social Security survivors’ benefits, joint income tax filings, shorter green card waiting times for non-citizen spouses, freedom from estate taxes on a deceased spouse’s assets, and family coverage on federal employer health insurance plans.

The DOMA challengers from Massachusetts (Gill v. Office of Personnel Management, Massachusetts v. U.S. Department of Health and Human Services), New York (Windsor v. United States), Connecticut (Pedersen v. Office of Personnel Management) and California (Golinski v. Office of Personnel Management) are a sympathetic bunch. They include a federal government employee wishing to enroll her family in her health insurance plan, a senior hit with over $300,000 in federal estate taxes for an inheritance left by her wife, and a veteran denied Family Medical Leave Act time off to take a sick spouse to medical treatments. The challengers argue that the differential treatment between opposite-sex and same-sex married couples violates the Equal Protection Clause, and that the federal government impinges on states’ rights by refusing to recognize same-sex marriage where states have chosen to legalize it. In all five cases, the federal appellate circuit courts agreed with them. On the other hand, the supporters of DOMA maintain that the federal government has a right to its own definition of marriage for the purposes of federal funding and programs, and that DOMA merely reaffirms what the executive and judiciary branches have always believed: namely, that marriage can only be between a “traditional male-female couple.”

Less work for Eric Holder. (Photograph by Brendan Smialowski, AFP/Getty Images)

Adding a wrinkle to this scenario is the fact that the executive branch has actually been doing everything in its power to get the judiciary to step in and resolve the issue in favor of the anti-DOMA side. In February 2011, the Obama administration announced that the Department of Justice would no longer defend DOMA in legal challenges, including the five cases before the Supreme Court now, because it believed Section 3 to be unconstitutional. (The Bipartisan Legal Advisory Group from the House of Representatives now defends DOMA in court.) At the same time, the administration signaled its intention to keep enforcing the law (by continuing to reject federal benefits applications from same-sex married couples) until either Congress repealed the law or the Supreme Court decided its constitutionality. While this may seem counterintuitive, this bifurcated method of enforcing but not defending a federal law ensured that all five cases had a chance to keep moving through the federal appeals system and reach the Supreme Court. Granting the plaintiffs their benefits in the middle of a case would have removed their immediate cause for complaint and mooted their lawsuits before an appellate court could find the underlying law unconstitutional. Keeping the plaintiffs’ injury alive, however, kept the cases in play. Now that they have reached the certiorari stage, the DOJ has explicitly asked the Supreme Court to take at least one case and provide a definitive ruling on the constitutionality of Section 3.

The 2010 Census found that 42,000 same-sex couple households resided in states with same-sex marriage.  That figure doesn’t even include the thousands more in Maine, Maryland and Washington, the three states that legalized same-sex marriage this month. Thanks to the bottom-up, state-by-state legalization approach that marriage equality proponents have been using, nearly one-fifth of the states now allow gay and lesbian couples to marry. The more states that join, the higher the number of couples adversely affected by DOMA will be, and the more challenges we will see in the federal courts. Expect the Supreme Court to accept at least one DOMA petition, and expect the arguments to focus not only on equal protection but also on federalism and states’ rights. I’ll be back next time to talk about the Court’s track record on gay rights and the likely concerns of our resident swing vote, Justice Anthony Kennedy.

* In January 2004, the United States General Accounting Office counted 1,138 provisions in federal statutes in which “marital status is a factor in determining or receiving benefits, rights and privileges.”

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post here on legal issues.

The real David Petraeus scandal


It’s not the adultery, it’s the invasion of privacy:

The fishing expedition into Broadwell’s emails should, on its face, be considered a violation of the Fourth Amendment—while the FBI apparently had a search warrant, it’s hard to see how this warrant was obtained with the “probable cause” the Constitution requires. But the real scandal here is what’s currently considered to be legal. After a 180-day period has elapsed, private emails are currently considered public and require only a subpeona to a provider to be accessed. Even worse, the government contends that even inside the 180-day window opened emails carry no expectation of privacy. As Adam Serwer of Mother Jones puts it, “If you think the feds need a warrant to start looking at your email, you’re dead wrong.” The standards created by the The Electronic Communications Privacy Act from a time when most emails were downloaded rather than stored on a third-party server remain in place. In the current technological context, these standards are privacy shredding.

The invasions of privacy in this case make the need for major changes in the law clear. First of all, the federal courts should make clear that there is the same Fourth Amendment right to privacy in electronic communication that there is in telephone calls. The government should have access to emails only after obtaining a warrant after the showing of probably cause. Cases like the investigation of Broadwell’s email—in which “evidence” of wrongdoing that would not be considered adequate cause if applied to snail mail was enough to obtain a warrant—should not go forward.

And much more needs to be done to protect the privacy of employees. A recent decision by the Supreme Court of Canada provides a valuable road map. “Canadians may therefore reasonably expect privacy in the information contained [workplace] computers, at least where personal use is permitted or reasonably expected,” wrote Justice Morris Day. This is the right approach. The Fourth Amendment should give government employees a presumptive expectation of privacy in their electronic communications, including those on workplace computers. And the privacy of private employees should have a similar expectation of privacy established by federal statute. The fact that emails and text messages are stored on third-party servers should not be used to immolate the privacy of individuals.

The Seattle Police Department gets cheeky


Taking advantage of Washington’s new marijuana legislation, the Seattle Police blog, the “SPD Blotter,” released a pretty jovial FAQ. My favorite excerpts below:

Can I legally carry around an ounce of marijuana?

According to the recently passed initiative, beginning December 6th, adults over the age of 21 will be able to carry up to an ounce of marijuana for personal use. Please note that the initiative says it “is unlawful to open a package containing marijuana…in view of the general public,” so there’s that. Also, you probably shouldn’t bring pot with you to the federal courthouse (or any other federal property).

Can I grow marijuana in my home and sell it to my friends, family, and co-workers?

Not right now. In the future, under state law, you may be able to get a license to grow or sell marijuana.

Can I smoke pot outside my home? Like at a park, magic show, or the Bite of Seattle?

Much like having an open container of alcohol in public, doing so could result in a civil infraction—like a ticket—but not arrest. You can certainly use marijuana in the privacy of your own home. Additionally, if smoking a cigarette isn’t allowed where you are (say, inside an apartment building or flammable chemical factory), smoking marijuana isn’t allowed there either.

Will police officers be able to smoke marijuana?

As of right now, no. This is still a very complicated issue.

What happens if I get pulled over and I’m sober, but an officer or his K9 buddy smells the ounce of Super Skunk I’ve got in my trunk?

Under state law, officers have to develop probable cause to search a closed or locked container. Each case stands on its own, but the smell of pot alone will not be reason to search a vehicle. If officers have information that you’re trafficking, producing or delivering marijuana in violation of state law, they can get a warrant to search your vehicle.

SPD seized a bunch of my marijuana before I-502 passed. Can I have it back?


December 6th seems like a really long ways away. What happens if I get caught with marijuana before then?   Hold your breath. Your case will be processed under current state law. However, there is already a city ordinance making marijuana enforcement the lowest law enforcement priority.

The SPD also helpfully included the above video.