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The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures conducted by law enforcement personnel. This right is protected in part by the requirement that law enforcement officers obtain search warrants prior to searching for and seizing evidence. Searches conducted without a warrant are generally unreasonable. This warrant requirement is not absolute, however, as the Supreme Court recognizes exceptions when certain exigent circumstances exist. Exigent circumstances exist when there is no time to obtain a warrant and the police are compelled to act quickly. Under such circumstances, searches may be reasonable despite the absence of a warrant.
Though the Supreme Court has upheld warrantless searches where the exigency was related to police action, in each instance, the police conduct involved a response to an exigency, not proactive conduct that created one. When police actions create exigent circumstances, as opposed to merely encountering them during an investigation, courts must determine whether the police action permissibly or impermissibly created the exigency. While this permissibility inquiry may appear straightforward, courts differ on the standard to apply when weighing the propriety of police actions. Circuit courts seem to agree that the basis for any review is the reasonableness of police action but disagree over the role the police officers’ subjective intent should play. . . .
The purpose of this Article is to advance three propositions as worthy of consideration by courts when deciding cases involving a conflict between the First Amendment and the Fourteenth Amendment’s Equal Protection Clause.
The first proposition is that cases brought under the First Amendment should take as their core concern the inherently private nature of mental life, as distinguished from political and social interactions. This is a departure from the more traditional view that First Amendment protection is necessary to guarantee truth and democracy. My goal is not to suggest that mental life is under some sort of direct attack, but rather to suggest a natural privacy essential to individual liberty that mental life affords. In this sense, the purpose is to protect the a priori conditions of liberty as a precondition to the protection of liberty itself.
The second proposition is that cases brought under the Fourteenth Amendment’s Equal Protection Clause should focus on the status of individuals within society and should be concerned, at least in the first instance, with significant departures from legal equality or serious cultural impairments to full equality of opportunity that arise from the operations of government or the laws of the state. The use of the words “significant” and “serious” here is not only meant to avoid debates over issues properly designated as de minimus, but, more importantly, to suggest that not all impairments will affect individual life prospects to the same degree. In this sense, the Equal Protection Clause may operate more at the empirical level in the way society’s institutions treat its citizens. . . .
The irregular process under which the Fourteenth Amendment was adopted has long been the source of controversy among legal historians. The Thirty-Ninth Congress, which met during the two years directly following the end of the Civil War and the assassination of President Lincoln, amended the Constitution pursuant to its responsibility to “guarantee to every State in [the] Union a Republican Form of Government.” One historian, Bruce Ackerman, argues that the adoption of the Fourteenth Amendment did not conform to the requirements of Article V of the Constitution. Article V, however, is properly read in the context of the Republican Guarantee Clause. Furthermore, as articulated by Akhil Reed Amar, the Republican Guarantee Clause is properly understood against the backdrop of a “geostrategic vision.”
This Article promotes a “republican” reading of Reconstruction, including the Fourteenth Amendment, during the Thirty-Ninth Congress. The reading invokes not only what I call “republicanism on the inside”—equal citizenship, popular sovereignty, and other traditional republican principles—but also what I call “republicanism on the outside”—the structural stability and geostrategic security that flow from republican government. The Reconstruction Congress viewed the Republican Guarantee Clause not solely as a vanguard of individual political rights, but also, and perhaps more importantly, as a guardian of the United States itself. Under the republican reading, Congress did its best to follow the Constitution, not to subvert it.
The “central value of the Fourth Amendment” is the protection of the sanctity of the home from unjustifiable intrusion by law enforcement officials. It is settled law that before law enforcement officers may enter a home to conduct a search or make an arrest they must, absent consent or exigent circumstances, first procure a valid warrant from a neutral and detached magistrate. The entire beneficial nature of the warrant requirement, however, rests upon the necessary assumption that in each case the law enforcement officer’s warrant application affidavit faithfully provides to the magistrate a truthful rendition of the underlying facts and circumstances necessary for an independent judicial determination. The Fourth Amendment “is no barrier at all if it can be evaded by a policeman concocting a story that he feeds a magistrate.”
Cases presenting the issue of allegedly falsified warrant affidavits arise routinely in the lower courts throughout the United States. The United States Supreme Court, however, has not addressed the issue in almost thirty years. The Court not only left many important doctrinal questions unanswered in its 1978 decision in Franks v. Delaware, but no scholarly examination of the problem of police perjury in warrant affidavits has since occurred. This absence of guidance for lower courts is especially acute because Franks predates both the Supreme Court’s revolutionary reinterpretation of the Fourth Amendment and the development of most modern civil rights law. Thus, it is not surprising that lower courts have been unable to formulate coherent and consistent legal standards in this important area of the law. Unfortunately, the only area where lower courts have been consistent exists in erecting inappropriate barriers to the vindication of the serious wrongs perpetrated by perjured warrant affidavits. . . .
On February 25, 1999, an explosion erupted at the Jahn Foundry in Springfield, Massachusetts, causing extensive damage to the building and sending twelve foundry workers to the hospital with severe burns. Three of the workers later succumbed to their injuries. The injured parties, together with the heirs of the deceased, brought personal injury and wrongful death actions against one of Jahn’s chemical suppliers, Borden Chemical, Inc. (Borden), alleging that a shipment of resin supplied by Borden had caused the explosion. In response to the allegations, Borden brought a third-party indemnification suit against Jahn Foundry, Inc. (Jahn), the owner of the foundry and purchaser of the resin, based on a clause in the resin sale contract.
To adjudicate the dispute, the trial court applied Article 2 of the Uniform Commercial Code (U.C.C. or Code) because the contract at issue constituted a sale of goods. The court granted summary judgment in favor of Jahn, holding that the indemnification provision was not part of the agreement between the parties. On appeal, Borden argued that the contract incorporated the indemnification clause because the same clause had appeared in previous contracts between the parties. According to Borden, Jahn failed to object to the clause each time it appeared in Borden’s invoices over the course of four years and dozens of separate transactions. Thus, Borden contended that Jahn’s silence over this period of time equated to implied acceptance of the additional terms or, at the very least, established that the terms did not constitute a material alteration to the contract. . . .
In April 1998, Zacarias Moussaoui received extensive training at an al Qaeda terrorist camp in Afghanistan. In September 2000, Moussaoui, then an al Qaeda trained operative, inquired about training at a flight school in Norman, Oklahoma via a Malaysian email account. A few months later, Moussaoui arrived in Chicago, effortlessly passed through United States customs after declaring $35,000 in cash, and proceeded to Oklahoma City, Oklahoma, where he attended flight-school classes. In August 2001, Moussaoui paid almost $9,000 for flight simulator training on a Boeing 747 at Pan Am Flight School in Eagan, Minnesota. Typical qualifications for flight training on a Boeing 747 flight simulator include a FAA Airline Transport Pilot rating or the foreign equivalent, employment by a commercial airline, and several thousand flight hours; Moussaoui had none. After Moussaoui’s behavior at flight school raised a veteran airline pilot and flight instructor’s suspicions, the Federal Bureau of Investigation (FBI) field office in Minneapolis initiated an intelligence investigation on August 15, 2001, which eventually led to Moussaoui’s arrest for immigration violations the next day. Twenty-five days later, on the morning of September 11, 2001, al Qaeda members hijacked four passenger commercial airplanes and crashed them into various targets, including the World Trade Center Towers in New York and the Pentagon in Washington, D.C., killing thousands of innocent men, women, and children.
During those twenty-five days preceding the attacks, FBI agents with knowledge of Moussaoui’s potential terrorist connections and radical ideas attempted, but failed, to secure a warrant to search the contents of Moussaoui’s laptop. Experienced federal agents plead with their superiors to search Moussaoui’s laptop because they anticipated that it contained valuable information. Agents did not obtain the warrant, however, until the September 11th attacks provided additional incentives to search his laptop. A federal district judge eventually issued the search warrant, despite the fact that agents included no new information related to Moussaoui, other than the current terrorist attack on the United States. . . .
The qualified immunity defense shields public officials from liability for civil rights violations committed during the exercise of their official duties. The defense, which the United States Supreme Court deems necessary for officials to perform their duties effectively, has, in practice, caused great confusion in law enforcement. Public officials often confront constitutionally uncertain circumstances while performing their everyday duties, but unfortunately, they often lack the legal guidance to know whether their actions are lawful. Consider a recent Tenth Circuit case, Lawrence v. Reed, in which the Rawlins, Wyoming Police Chief faced an unusual situation.
For years, Rawlins residents had complained to city officials that a certain landowner, Mrs. Lawrence, was storing junk vehicles on her property and creating an eyesore adjacent to the county fairgrounds. After a number of unsuccessful settlement proposals with Lawrence, the city council consulted the derelict vehicle ordinance to lawfully seize and junk the vehicles. Pursuant to the ordinance, the city may give notice of intent to impound after it determines that a vehicle is derelict, and may give the property owner thirty days notice of removal. Thereafter, if the owner does not remove the derelict vehicles within twenty-four hours of the second notice, the city may seize them. The Rawlins Police Chief, with the assistance of the city attorney, undertook each step of the mandated procedure without receiving an adequate response from Lawrence and eventually towed her vehicles to a local landfill. The chief received approval from the city attorney prior to each critical decision he made. . . .
It is well settled that the presumption of mens rea in criminal law applies to federal criminal statutes. It remains debatable, however, whether this presumption applies to sentencing provisions contained within federal criminal statutes. Circuit courts have confronted this issue when deciding whether trial courts should impose the sentencing enhancement for discharging a firearm contained in 18 U.S.C. § 924(c)(1)(A) on a defendant who has accidentally discharged a firearm.
Passed in response to Bailey v. United States, the current version of § 924(c) is the result of a 1998 amendment. The amendment increased the scope of the statute by prohibiting possession of a firearm, whereas the prior version only prohibited the use and carrying of a firearm. Congress went even further, adding additional and harsher mandatory minimum sentences for brandishing or discharging a firearm. Section 924(c) imposes substantial penalties and is a powerful tool for federal prosecutors. This new statutory language broadens the statute’s application and has allowed federal prosecutors to seek a ten-year mandatory sentence for the unintended, accidental discharge of a firearm. The application of this statute subjects criminal defendants to inconsistent prosecution and stiff consecutive sentences that are ineligible for parole. . . .
The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” The United States Supreme Court has interpreted this guarantee to protect the right of a defendant who does not require appointed counsel to choose who will represent him. In United States v. Gonzalez-Lopez, the Supreme Court, faced with a circuit split, considered whether a trial court’s erroneous deprivation of a defendant’s choice of counsel entitles him to an automatic reversal of his conviction. Justice Scalia, writing for a 5-4 Court, held that the denial of a defendant’s right to choose counsel violates the defendant’s Sixth Amendment rights regardless of whether prejudice is shown. . . .
Section 306 of the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act) prohibits states from discriminatorily taxing railroad property. The 4-R Act creates an exception to the Tax Injunction Act (TIA) by granting federal courts jurisdiction to hear cases in which railroad companies allege tax discrimination by states. In CSX Transportation, Inc. v. State Board of Equalization, the Eleventh Circuit Court of Appeals considered whether, under the 4-R Act, a railroad company may challenge the valuation methodologies a state uses for ad valorum tax purposes. The Eleventh Circuit ruled that a party may not challenge a state’s valuation methodologies in federal court because Congress failed to unequivocally demonstrate its intent to allow such a challenge. . . .