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Orin Kerr Profile picture
Orin Kerr
@OrinKerr
Law professor at Cal @BerkeleyLaw. https://t.co/YtnBrArHj3
Ross Grayson, MPH, CIH Profile picture Prof. Eleanor Brown Profile picture Sue Strong @strong_sue@mastodon.sdf.org 🇺🇦 Profile picture Jeffrey Rubinoff Profile picture Diana Roby Profile picture 16 subscribed
Apr 19 • 6 tweets • 2 min read
Among the new demands issued by student "Berkeley Law for Palestine" group after Chemerinsky/Fisk dinner: Correct Erwin Chemerinsky's understanding of the First Amendment. Image Some UC Assistant General Counsel goes to library, gets First Amendment book for an expert's view... Image
Dec 13, 2023 • 4 tweets • 2 min read
NOTABLE: Google announces dramatic changes to its "location history" function that should nullify all geofence warrants going forward—and I wouldn't be surprised if that is the point. Code is law, as they say.
(h/t ) blog.google/products/maps/…
fourthamendment.com
Image As I read this, Google will no longer keep geolocation data even for the subset of users that turn on location history. The data will only be stored locally. Geofence warrants are used when the govt has no suspects, to get some leads, so this will likely defeat the technique.
Aug 16, 2023 • 16 tweets • 6 min read
I'm reading the newly-released transcript of Twitter's proceedings before Judge Howell on Twitter's compliance with the warrant for Trump's account. Here are thoughts as I go.
dcd.uscourts.gov/sites/dcd/file… First, this should be good. The lawyers are experienced lawyers from WilmerHale, and Judge Howell knows more about the Stored Communications Act than any other district judge. This is no one's first rodeo.
Aug 3, 2023 • 5 tweets • 2 min read
“A lot of times he’ll tell me that he lost, but he wants to keep fighting it, and he thinks that there might be enough to overturn the election." -- Mark Meadows on Trump, November 18, 2022, according Cassidy Hutchinson. One interesting thing about the latest Trump indictment is that it doesn't detail reports that Trump admitted he lost, leading some to suggest that they have no such evidence. But it not being detailed doesn't mean it doesn't exist. cnn.com/2023/06/06/pol…
Jul 26, 2023 • 11 tweets • 2 min read
Is access to Automated License Plate Reader info a 4th Amendment Search? Oral argument on this in US v. Mapson, 21-13668, see here, 2nd link.

A few thoughts on the argument.

ca11.uscourts.gov/oral-argument-… Defendant's side, 1st 25 minutes, didn't have much 4A discussion. There are three co-defendants, and only the 2nd defendant is making the ALPR argument. And it's being made in a very tentative way.
Jul 14, 2023 • 7 tweets • 2 min read
Yesterday, at the 8th Circuit judicial conference, Justice Kavanaugh gave a talk that included two interesting pieces of advice for Supreme Court advocates—one explicit, the other implicit. Tne talk isn't online, so I thought I would tweet about them. #appellatetwitter

🧵 First, he said that several Justices, himself included, believe that the two-minute uninterrupted opening time they now give advocates is a really critical time for advocates. You should use it well.
Jun 9, 2023 • 6 tweets • 2 min read
The Trump indictment allegations are bananas. With that said, if Judge Cannon is presiding, I'm not sure how much the facts will matter. Based on her decisions in the litigation over the warrant, Cannon may do whatever she can to protect Trump. And there's a lot she can do. (I hope my skepticism is unwarranted, but Cannon's decisions in the warrant case were astonishing. I find it hard to imagine a judge who would sign those opinions giving a fair shake to both sides now. But we'll see.)
Jun 8, 2023 • 6 tweets • 3 min read
A significant crim law case, Dubin v. US, is out, taking a narrow view of the Aggravated Identity Theft statute, 18 U.S.C. 1028A. Statute is limited to what is ordinarily considered identity theft; ID misuse has to be "at the crux" of the crime.
supremecourt.gov/opinions/22pdf… #N Image Opinion per Sotomayor, unanimous as to result, with 8 Justices joining majority opinion. Gorsuch concurs in the judgment, concluding the statute is vague and that the Court's attempt to narrow it doesn't end the vagueness. Image
Jun 5, 2023 • 5 tweets • 2 min read
Maybe the Ma-a-Lago pool-flooding story will turn into something, but the more closely I read it, the less I think that is likely.

🧵
edition.cnn.com/2023/06/05/pol… Caveat: This a fast-moving story, and I am reacting to the initial version of what was posted at CNN. By the time you read this, there may be more facts that need to be considered. But here's my take based on the initial story.
Jun 5, 2023 • 6 tweets • 3 min read
Officer watches video w/image below, in which suspect brings object into home, & gets warrant to search "based on my training and experience as a police officer" that object is a gun.

Judge: Um, that's a bouquet of flowers. Motion to suppress granted.
drive.google.com/file/d/13bCndn… #N Image The case is U.S. v. Cerda in the EDNY, per Judge Gary Brown.

cc: @Anna_Lvovsky
May 16, 2023 • 5 tweets • 1 min read
Different people value intellectual diversity in legal academia differently, which is natural. But one of its benefits is that a lot of law profs write scholarship with an eye to what people around them think, using that as a proxy for what the debate is more broadly. If the... ..,people around you all think the same way, it's easy for that to seem like "the way everyone thinks," even if it's just one of many different views. Hearing a wider range of views can replicate that broader debate in ways that better recognize which premises are contested.
May 11, 2023 • 7 tweets • 2 min read
Suspect, stopped by an officer in front of his mom's house, tosses his jacket over a fence on to his mom's property. Officer later grabs jacket and finds gun in pocket. Divided 5th Circuit: This violated the 4A, as suspect did not abandon the jacket.
ca5.uscourts.gov/opinions/pub/2… #N Image Judge Ho, dissenting: The suspect had abandoned his jacket. Image
May 11, 2023 • 4 tweets • 1 min read
Trump in a "town hall" is just him lying, lie after lie after lie after lie, while the host tries to interject that this is false but Trump just starts talking over her and she can't be heard and it makes no difference. All of which I assume makes Trump opponents wonder how anyone could support him and Trump supporters think how awesome he is.
May 9, 2023 • 21 tweets • 5 min read
Colorado Supreme Court oral argument, from 5/4, in State v. Seymour, on the constitutionality of reverse keyword search warrants served on Google. Might have some comments after I listen, but for now here's the link:
youtube.com/live/EbBp6BO2M… Related decision and thread here, btw.
May 2, 2023 • 5 tweets • 3 min read
Recently filed CA9 appeal asks court to answer whether compelled biometric access is "testimonial" and therefore triggers the 5th Amendment privilege.
US v. Payne, 22-50262.

This one has a clear answer: No.

Thread below.

drive.google.com/file/d/1XU4rER… #N Image In the case, officers took Payne's hand, "grabbed [his] thumb and unlocked the phone." I read that to mean that they took his thumb and placed in on the biometric reader. Later, the officer asked/ordered him to give the code to not have to use the thumb every time. Image
May 2, 2023 • 4 tweets • 1 min read
lol
nytimes.com/2023/05/02/us/… Image To explain the "lol," we have been having many conversations recently about the role of novel constitutional arguments to achieve policy goals. During the Trump era, the Trump admin's reliance on such arguments to get what it wanted was a subject of much-deserved criticism. /1
Apr 30, 2023 • 19 tweets • 5 min read
Keep returning in my mind to this 8th Circuit 4th Amendment case from yesterday, US v. Forjan. Three judges each went different ways, ultimately affirming the conviction 2-1 but on different grounds. Let's take a look.

🧵
ecf.ca8.uscourts.gov/opndir/23/04/2… Quick facts: This is a drug case with narcotics officers watching a trailer they suspect is being used to distribute meth. An officer decides to investigate by conducting pretextual traffic stops of cars leaving the trailer.
Apr 24, 2023 • 9 tweets • 2 min read
I'm no expert in judicial ethics, but if it were up to me, I'd consider a Supreme Court ethics rule that you might call the "pay your own way and no awards" rule.

It would go like this. 🧵 1st, no one can give you anything that has a pecuniary value. If it has a pecuniary value, you have to pay market for it. If your best friend wants to have you over for dinner, you pay them for it, or bring your own meal. If you meet a friend out for a drink, you each pay.
Apr 6, 2023 • 8 tweets • 2 min read
A number of efforts at social change seem to implicate the question of whether, if you take an existing institution that has current influence because of its prestige or history, and change the institution, that institution will continue to have influence or will lose it. Related thread.
Apr 5, 2023 • 7 tweets • 2 min read
Haven't studied this closely, but don't think I get the preemption argument re the Trump case (assuming they're based on fed law). When states use "intent to commit another crime" enhancements, why should fed campaign finance crimes be exempted from that?
nytimes.com/2023/04/05/opi… I realize that even speculating about this is weird; we don't know if that's the theory NY plans to proceed on. But if NY law says it's a felony to submit a false business record with intent to commit another crime, it's not clear to me why campaign finance preemption acts...
Mar 31, 2023 • 4 tweets • 1 min read
More craziness at America’s law schools. What do we want? Replevin!
When do we want it? Before the end of Michaelmas Term!