Orin Kerr Profile picture
22 Feb, 12 tweets, 3 min read
The Supreme Court will hold argument in Lange v. California, a 4th Amendment case on the hot-pursuit exception, on Wednesday morning.

I haven't focused much on this case, but here are some tentative thoughts for those interested. supremecourt.gov/search.aspx?fi…
And my apologies: I know this will be hard to follow for those not already steeped in 4th Amendment law, but it's 3am and I don't have the time to bring everyone up to speed on the context. On the theory it's better to speak to a small audience than not speak at all, here goes.
Lange considers the "hot pursuit" exception to the warrant requirement applies to a misdemeanor crime. Is it it judged on a case-by-case basis, or should there be a bright line rule that hot pursuit searches of a dwelling where a misdemeanant has entered is reasonable?
The interesting conceptual question, I gather, is how to think about hot pursuit versus exigent circumstances: Is hot pursuit just an application of exigent circumstances, or is it its own discrete rule?
Some treat hot pursuit as its own exception, and see felony hot pursuit as a bright line rule: To them, the question is whether the felon hot pursuit bright line rule should be extended to misdemeanors.
Others treat hot pursuit as just an application of the broad concept of exigent circumstances, which is pretty much always case-by-case. So they say hot pursuit is case-by-case, too, and this should be.
Whichever way you approach it, the case is largely about rules vs. standards: Should hot pursuit be a rule or a standard, or a rule for felons and a standard for misdemeanants?
I haven't spent a lot of time with the cases to have a super strong view, but I've tended to think of hot pursuit as just part of exig circ. It's all a standard. Yes, felon hot purs will generally be reasonable, but I haven't read the cases as imposing a bright line rule on that.
For example, Warden v. Hayden makes it seem pretty fact-specific -- the analysis was framed as being based "on the circumstances of this case," not some kind of bright line rule.
Similarly, United States v. Santana emphasized the facts of its case as compared to the facts in Warden -- to me, that sounds pretty fact-specific.
Given that, my instinct would be to say that hot pursuit is just a spinoff of exigent circumstances, and it's case by case for both felon pursuit and misdem pursuit. The serious of the crime then just becomes a factor on the balance, Cf. Welsh v. Wisc, without a specific rule.
Oh, and if it's a case by case test, I don't have any particular views of whether the entry here would be reasonable; I would think that's more an issue for a lower court on remand after a full factual hearing. But who knows what SCOTUS will do. As always, stay tuned.

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More from @OrinKerr

20 Feb
For anyone familiar with "true threat" doctrine under the First Amendment, I'm interested to know if you think the video below amounts to a "true threat."

I'll put up a poll so you can vote mediately below this tweet.
Is this a true threat?
After 670 votes, a perfectly divided response. Image
Read 4 tweets
25 Jan
Minor question about the Jeffrey Clark DOJ story: Does it matter to our assessment of Clark's culpability if he genuinely believed the conspiracy theories of the 2020 election?

A thread.

Like a lot of readers, I was astonished by the Clark story. My immediate reaction is to think (a) Clark is obviously smart enough to realize that the conspiracy theories were total BS, and (b) using them as cover was an outrageous affront to the rule of law.
And maybe it's that simple. But I wonder about another possibility.
Read 10 tweets
10 Jan
If you're wondering if the Senate has the power to order social media to preserve online accounts in response to the Capitol Riot, I have just the article for you:

Here Warner seems to be acting as a single Senator, though, not as an agent of the Senate as a whole. Can he do that? The 2703(f) authority is granted to any "governmental entity," defined in relevant part as "a department or agency of the United States." Can 1 Senator do that?
As I read Warner's letter, though, he's probably not trying to formally invoke 2703(f): It's more an informal request to help the (likely already issued) formal requests from law enforcement.
Read 4 tweets
9 Jan
A few thoughts on Twitter's suspension of Trump's account, a thread.
Twitter is a private company and it can do what it wants. Twitter is selling a product in a free market, and it's up to Twitter what the product is like. If they want to enforce certain rules, even unfairly, that's their call. They're a company, not the government.
True, companies like Twitter impact what today's media
environment is like. As a citizen, it's easier to reach a large audience if you play by the rules of the big tech companies. So the inevitable editorial decisions of the providers will shape that media environment.
Read 5 tweets
5 Jan
By next week Trump will be claiming he has won every Presidential election since 1936, when he beat FDR and Alf Landon in a wipeout.
This claim will divide Republicans in Congress, with some supporting the President but others raising objections.
The fact that the MSM for some reason never reported on these victories will be recited as definitive proof that they did actually happen.
Read 4 tweets
3 Jan
The incredible part, as always, is not that Trump did this. It's who he is and has always been. Rather, the incredible part is how many Americans will think this is totally fine, if not pretty awesome. washingtonpost.com/politics/trump…
Read 4 tweets

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