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Rob Johnson

@FreeRangeLawyer

Feb 20

Justice Thomas put out an important message on today's Supreme Court orders list. For those who are paying attention, the opinion may mark the beginning of the end for the nation's rent control laws.

On some level, the opinion is a nothingburger. The Supreme Court denied a petition for certiorari, which is par for the course. Most cert petitions get denied.* This particular cert petition was a constitutional challenge to New York's rent control laws.

But this cert denial came with an explanation from Justice Thomas. And the explanation conveys important information about the Court's thinking. (Take it with a grain of salt - Justice Thomas is ultimately speaking just for himself. But we have no reason to think he would want to mislead anybody on this score.)

Specifically, Justice Thomas says that the constitutionality of rent control meets the standard for cert. It is an "important and pressing question," and it's also one on which "the Courts of Appeals have taken different approaches." That's game, set, match. In other words, this issue is ripe for Supreme Court review.

*Note for nonlawyers: A cert petition is a request for the Supreme Court to hear and decide a case. Unlike most courts, the Supreme Court gets to decide what cases it wants to decide. The Court only grants cert in cases where it thinks there's an important question that merits its attention.

Justice Thomas says this particular case wasn't granted because the petitioners didn't do a good enough job framing the issues. (Note he uses the word "our," signaling this isn't just his idiosyncratic view.) He says it wasn't clear exactly what regulations were at issue, who they affected, or how. But that's something that's easily fixed in a future case.

So why would rent control be unconstitutional? Simple answer: The Supreme Court has said that an important part of the right to property is the "right to exclude." And a regulation that limits the right to exclude is a per se taking. Rent control is just such a restriction on the right to exclude.

Read 7 tweets

Rob Johnson

@FreeRangeLawyer

Jan 24

https://twitter.com/FreeRangeLawyer/status/1749911997104136292

Okay, tomorrow is here, so, as promised, I'm going to offer thoughts on the decision. First the substance of the decision, then some thoughts on what happens next.

(I have meetings coming up, so if I get interrupted mid-thread may pick this up again this evening.)

https://twitter.com/FreeRangeLawyer/status/1749911997104136292

The decision has three parts, and each part has important implications for the Fourth Amendment.

First : All three judges on the panel agree that the search was not a valid "inventory" because it did not follow standardized procedures.

Remember that the government's theory was that it was allowed to break open hundreds of safe deposit boxes without any probable cause because--having taken possession of the vault itself--it necessarily had to "inventory" the contents of the boxes. There are a lot of reasons that doesn't make sense, and the panel here picked up on what is basically the easiest and most straightforward way through the argument.

The Supreme Court has upheld "inventory" searches in situations where law enforcement is applying routine, standard procedures. Every time they seize a car, they "inventory" it the same way. Same thing with every person they book into jail.

By contrast, the search here wasn't a standard inventory. In fact, it was unprecedented! There was no routine policy for inventorying safe deposit boxes, and instead the government just made up procedures to follow in this case.

So why does this matter? It matters because it confines the "inventory" exception to a narrow set of situations where the government has established, routine procedures to regularly inventory property. That puts a significant barrier in front of the government if it wants to expand the inventory doctrine to new types of searches.

This part of the opinion also includes my favorite paragraph, where the panel notes that the government's contrary arguments could allow the inventory doctrine to expand to encompass the "very abuses of power ... that led adoption of the Fourth Amendment in the first place."

Second: Two judges agree that the government here exceeded the scope of the warrant.

Remember, the warrant specifically stated that it did not authorize a "criminal search or seizure" of the contents of the safe deposit boxes.

The court in this part of the decision goes in detail through the record and explains why the government's conduct here was absolutely a criminal search.

So why does this matter? This part of the decision firmly establishes that the FBI here misled the magistrate in order to get the warrant for the raid. The FBI itself wrote the "criminal search or seizure" limitation into the draft warrant that it gave the magistrate; and yet, when the FBI executed the warrant, it blew right past the warrant.

So the first part of the decision draws a legal line that will prevent expansion of the inventory doctrine in the future. The second part, meanwhile, addresses the facts here and finds that the FBI's conduct was---to use a legal term of art---pretty fucking dirty.

And note, the third judge on he panel didn't disagree with this part of the opinion, he just thought there was no reason to reach it.

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Rob Johnson

@FreeRangeLawyer

Jan 19

There is a fascinating lawsuit currently pending in district court, challenging a regulation that will impact tens of millions of small businesses across the country. The case has not gotten nearly enough attention.

The regulation imposes new reporting requirements on over 36 million corporations/LLCs nationwide. Small businesses everywhere will have to file reports with FinCEN---an intelligence agency located within the Department of Treasury--disclosing information about who owns the business. Failure to comply triggers penalties up to $10,000 or two years in jail.

Ownership is defined broadly. Anyone who "exercises substantial control" over the business counts as a "beneficial owner" and has to be disclosed.

The effect of the regulation is to create a new database that can be mined by law enforcement for information about small businesses.

And we really are talking about small businesses. The regulation exempts publicly traded corporations, as well as businesses with more than 20 employees or more than $5 million in gross receipts. This is a rule targeted directly at small businesses.

In addition to identifying "beneficial owners," companies will be required to provide detailed information on names, addresses, birthdays, and other identifying info.

And make no mistake--the point of this is to target small businesses for enforcement.

Just last month, FinCEN put out a rule that will determine who has access to this new database. Federal agencies will have basically blanket access, without any requirement obtain a warrant.

A variety of businesses, organizations, and others raised privacy concerns with that blanket access and urged FinCEN to require a court order to access information. Even members of Congress expressed concern.

FinCEN blew past those concerns--rejecting the requirement to get a warrant or court order as "unworkable" because it would make the database less "useful to law enforcement."

Read 8 tweets

Rob Johnson

@FreeRangeLawyer

Jan 4

Update about this case: Still no decision, but it has been a big month in other ways. And the government has gotten up to some interesting hijinks. I'll explain.

For starters, oral argument was fantastic. The judges called the government's conduct "egregious" and "outrageous." One of the judges even compared the FBI's search to the kinds of broad, general searches that sparked the Revolutionary War.

It should go without saying, but the FBI and the DOJ typically don't like being compared to King George.

So the government does something interesting: It files one of the more peculiar filings I've ever seen, which my colleague described as a "Motion to Lose Without Published Opinion." The basic gist is that the government now supports a court order to provide our clients "the maximum remedy available." The government doesn't actually admit that it violated the Fourth Amendment, but it says we should win.

Now, maybe this sounds great. Winning is good! But there's a hitch. Obviously, we want to get a remedy for our clients; we want a court to order the FBI to destroy records generated during its illegal search. But we also want a decision that will stop the FBI from doing this again. That's how constitutional litigation works: When a court finds the government violated the Constitution, that becomes a precedent that binds the government going forward.

The government's motion is effectively trying to short-circuit that process. By agreeing that our clients should win, it's hoping to avoid a decision that will bind its conduct in the future.

Read 5 tweets

Rob Johnson

@FreeRangeLawyer

Dec 5, 2023

Tomorrow, I'm flying to Los Angeles for oral argument in what may be the most important Fourth Amendment case pending in the United States today. The basic facts: The FBI broke open and searched hundreds of safe deposit boxes without any reason to think the boxholders did anything wrong.

U.S. Private Vaults, a business in Beverly Hills, offered a private and secure place where people could store their most valued, sensitive possessions. In March 2021, the FBI raided USPV, broke open every single box in the vault, and looked through all the contents. The FBI ran all cash in the vault by drug dogs, opened envelopes and photographed the contents, and ultimately sent everything worth over $5,000 to asset forfeiture---initiating proceedings to keep that property forever.

The FBI did all that pursuant to a warrant, but, critically, the warrant specifically said that it did not "authorize a criminal search or seizure of the safety deposit boxes." That was an important limitation: The FBI had reason to think that USPV, the business, had violated the law, but the FBI had no basis for any individualized probable cause as to any of the boxholders.

The FBI, though, had what must have seemed like an evil genius plan. The warrant allowed the FBI to seize the "nest" of safe deposit boxes -- the metal shell in which all the boxes were housed -- and then, having seized the nest, the FBI decided that it would have to "inventory" all the contents.

The inventory doctrine is a Fourth Amendment doctrine that allows for routine administrative searches of arrestees or impounded automobiles. It has never, in the history of the country, been applied to a sweeping search of hundreds of safe deposit boxes. But, no doubt, the FBI figured there's a first time for everything.

Read 7 tweets

Rob Johnson

@FreeRangeLawyer

Oct 7, 2020

@IJ

This is a big deal: New York City has entered a settlement resolving @IJ's challenge to the NYPD's "nuisance" eviction program--or what I like to call the City's no-fault eviction program.

And the settlement is nothing short of a complete and utter capitulation by the City.

I would love to take credit for the settlement, but I can't. I haven't touched the case for the last two years, and my colleague Sam Gedge has been leading up the charge since then. All the applause goes to him and his team.

BUT, that being said, I helped file the case and ...

I can say that this is just an amazing result.

Sam and team have taken all the work done by a horrible draconian NYPD program and, with the sweep of the pen, have basically torn it all up. They came to the NYPD's house and they tore it down.

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