Thursday, October 6, 2016

Doe v. Milward & Fourth Amendment Intent

There is a post over at the Volokh Conspiracy on a new 11th Circuit ruling raising an interesting fourth-amendment question in a rather delicate factual context. The dispute is, in essence, whether, for purposes of the fourth amendment, the government has to be looking for something before a given undertaking constitutes a search.

Judge Pryor, writing for the 11th Circuit, says "no." The case involves a fourth-amendment claim by state-school sonography students who claim they were coerced into undergoing transvaginal ultrasounds. Judge Pryor writes:
Inserting a probe into a woman’s vagina is plainly a search when performed by the government. Where the government physically intrudes on a subject enumerated within the Fourth Amendment, such as a person, a search “has undoubtedly occurred.” United States v. Jones, 132 S. Ct. 945, 950–51 & n.3 (2012). The Supreme Court has long recognized that compelled blood and urine tests implicate the Fourth Amendment. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989) (citing Winston v. Lee, 470 U.S. 753, 760 (1985); Schmerber v. California, 384 U.S. 757, 767–68 (1966)). Even under the broader test that a “search” is “any governmental act that violates a reasonable expectation of privacy,” O’Rourke v. Hayes, 378 F.3d 1201, 1207 (11th Cir. 2004), each ultrasound clearly constituted a search. “[I]t is obvious” that the “compelled intrusio[n] into the body . . . infringes an expectation of privacy that society is prepared to recognize as reasonable.” Skinner, 489 U.S. at 616 (internal quotation marks and citations omitted). 
Doe v. Milward, --- F.3d ---, No. 15-15240, slip op. at  10 (11th Cir., Oct. 4, 2016).

Professor Ker does not expressly disagree, but he is not convinced:
... I think there is a sort of Fourth Amendment intent requirement under Footnote 5 of United States v. Jones. Here’s the key language from Jones with my emphasis added:
The concurrence notes that post-Katz we have explained that “‘an actual trespass is neither necessary nor sufficient to establish a constitutional violation.’ ” Post, at 6 (quoting United States v. Karo, 468 U. S. 705, 713 (1984)). That is undoubtedly true, and undoubtedly irrelevant. Karo was considering whether a seizure occurred, and as the concurrence explains, a seizure of property occurs, not when there is a trespass, but “when there is some meaningful interference with an individual’s possessory interests in that property.” Post, at 2 (internal quotation marks omitted). Likewise with a search. 
Trespass alone does not qualify [to be a search], but there must be conjoined with that what was present here: an attempt to find something or to obtain information.
Related to this, and similarly irrelevant, is the concurrence’s point that, if analyzed separately, neither the installation of the device nor its use would constitute a Fourth Amendment search. See ibid. Of course not. A trespass on “houses” or “effects,” or a Katz invasion of privacy, is not alone a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy.
Is it possible to square Jones with Soldal['s statement that the reason an officer might enter a house is irrelevant]? I think so, because a government agent can have a purpose to obtain information without a broader investigative or administrative purpose. The question of investigative or administrative purpose is arguably more an issue of motive than intent. It asks, “Why did the officer want to obtain the information?” That is distinct from whether the officer intended to obtain information at all.
Respectfully, Professor Kerr has missed the distinction, although he may have done so because there is a missing term in Judge Pryor's opinion. "Inserting a probe into a woman's vagina," without more, is not plainly a search. It is plainly a trespass. In order for the act to be a search, probe, or the circumstances of its use, must be such as naturally tend to reveal something that is otherwise unknown. On balance, the more useful opinion is probably Florida v. Jardines, rather than Jones. There, the Court held that information-gathering conducted during a trespass was an unreasonable search, while noting its opinions "holding that the subjective intent of the officer is irrelevant." Florida v. Jardines, 569 U.S. 1, __ (2013).

An ultrasound, by its nature, is inquisitive: it reveals something otherwise concealed from view. The fourth amendment does not protect persons from unreasonable investigation, but from unreasonable searches. The fact that the government might not care what it finds in the search in no way alters the inherent character of the act. Officers who enter a dwelling and empty all the drawers simply to harass the homeowner have "searched" the premises, even if they never had any intention of locating or carrying away evidence.

The same principle applies under the Milward facts: a state agent who performs a transvaginal ultrasound conducts a search of the subject's abdominal cavity, even if the agent remains indifferent to its contents. The result would be different if the subject were merely imposed upon with a disconnected probe: that activity would not be revelatory either in nature or effect. It would simply be a trespass. Judge Pryor would have strengthened his opinion if he had captured the distinction in the excerpted language.

Thursday, June 23, 2016

Monday, April 6, 2015

In re Iconography

We, therefore, following the royal pathway and the divinely inspired authority of our Holy Fathers and the traditions of the Catholic Church (for, as we all know, the Holy Spirit dwells in her), define with all certitude and accuracy that, like the figure of the precious and life-giving Cross, so also, venerable and holy images of our Lord God and Savior Jesus Christ, of our spotless Lady, the Mother of God, of the honorable angels, of all saints and of all the just, whether painted or made of mosaic or another suitable material, are to be set forth in the holy churches of God, on the sacred vessels, on the vestments, on walls and panels, in houses, and on streets.  For the more frequently they are seen in artistic representation, the more readily men are lifted up to the memory of their prototypes and to longing after them; and to these should be given due greeting and honorable reverence, not indeed that adoration (latreia) which pertains to the divine nature alone, but incense and candles may be offered to these, as to the figure of the precious and life-giving Cross, the Book of the Gospels, and other holy objects, according to ancient and pious custom.  For the honor that is paid to the image passes on to what the image represents, and he who reveres the image reveres in it the subject represented.
(2d Council of Nicea, A.D. 787)

The images of Christ, of the Virgin Mother of God, and of other saints are to be kept and preserved, in places of worship especially, and to them due honor and veneration is to be given, not because it is believed that there is in them anything divine or any power for which they are revered, nor in the sense that something is sought from them or that a blind trust is put in images as once was done by the gentiles who placed their hope in idols, but because the honor that is shown to them is referred to the original subjects that they represent. Thus, through these images that we kiss and before which we kneel and uncover our heads, we are adoring Christ and venerating the saints whose likeness these images bear.
(Council of Trent, Session XXV, December 1563)

The same subject, continued.

Monday, March 9, 2015

Reform of the Reform?

Rorate Caeli writes:
Intentionally celebrating the Mass facing the people, displacing the altar from the sanctuary (and in fact doing away with a tangible "sanctuary" in the traditional sense), covering up or removing the high altar, the use of a "table-altar", communion no longer received while kneeling ... we are often assured by "conservative" writers that these had nothing to do either with Paul VI or Vatican II, and in fact became widespread only years later, and against the express will of both. However, the records of this Mass and of Masses publicly celebrated by Paul VI in the years immediately after 1965 show that he was at the vanguard of these changes. This is ironic given the tendency in some Reform of the Reform circles to point to the "1965 Missal" as the way to resacralization and the return to tradition for the wider Church -- a Missal whose very birth was attended by many of the innovations now deplored by these same circles.

Equally of note is that these innovations, which many in the Reform of the Reform camp assert have nothing to do with Vatican II because these are not mentioned in the actual text of Sacrosanctum Concilium, were already taking place in Rome itself, with the Pope's own endorsement and in his presence, long before the Council ended on December 8, 1965. 
(emphasis in original). I think Rorate is both wrong and right here. Obviously the record is as they describe it: Paul VI, Bugnini, and the lot were engaged in shenanigans that presaged (or reinforced) what happened around the world. But the argument that so-called conservatives make is narrower. That is, essentially, a textualist argument against the dynamic interpretative hermeneutic of the 1960s: Sacrosanctum Concilium does not say X, Y, or Z, and so one cannot be compelled to regard the presence of X, Y, or Z in the Mass as necessary or needful, nor can one legitimately be portrayed as opposing the Second Vatican Council's request for liturgical reforms* by saying otherwise.
"[W]hen  upon a point of ritual or of dedication or special worship a man talks to you of the Spirit and Intention, and complains of the dryness of the Word, look at him askance. He is not far removed from Heresy."
Everyone knows what actually happened, and everyone knows that Paul VI was, more or less, culpable for it. The debate over whether or not the texts can support the authentic reform that did not happen (a debate I do not enter here on the merits) is simply another matter.



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* Set aside for the moment whether one may take such a position (it is abundantly evident that one may): opposing things that happen in practice is different, if not per se better, than opposing the actual request for reform articulated by the Council.

Monday, February 23, 2015

They have weekends in Canada, no?

I don't know how scared I'd be of a cease-and-desist letter written by an attorney who used the phrase "end of business on February 22, 2015."

Thursday, February 19, 2015

Well that was not bright

The Apostolic Commissioner, who has never exactly smelled of roses, claims that recent reporting on the status of a lawsuit between himself and the Manelli family contained material misstatements. When one reports on a defamation case, it might behoove one to get the facts straight.

Now, I don't read Italian, so while I can click through the links from Rorate's original post on the topic back to the source at "Don Camillo's" blog, I cannot verify whether the translation of Fr. Volpi's most recent letter on the topic is an accurate summary of the original article. Notably, it does not track what Rorate itself originally posted: the new letter by Fr. Volpi quotes the original writer as claiming he "was sentenced." I do not see this phrase in Rorate's original piece (at least, it's not there now: I'm not digging through caches and the wayback machine to see what was originally there; apparently the original source has admitted that "sentenced" was a mistake, assuming Google Translate gives an accurate sense).

A few thoughts:
  1. In the United States, the truth is an absolute defense to a defamation action.1
  2. Also in the United States, a public figure can prevail in a defamation action only by showing "'actual malice'---that is, [that the statement was made] with knowledge that it was false or with reckless disregard of whether it was false or not."2
  3. European law is less protective of speech in general; the truth has not traditionally been an absolute defense and apparently remains not-a-defense in Italy.3
  4. Thus, one can see why, perhaps, Fr. Volpi might have negotiated a settlement while still maintaining that his statement regarding the Manelli family "was no lie, and could easily be verified."4 In Italy, the truth of the statement is not a guaranty of victory at trial.
  5. At the same time, it would be very unusual for one to enter into a settlement agreement that contained an actual admission of wrongdoing. Most settlement agreements expressly disclaim any such admission.
  6. That the settlement was confirmed by a court order is not implausible, though: even in the U.S. a settlement may be incorporated into a final consent judgment. Since the settlement in the Volpi case was purportedly negotiated in court-ordered mediation, it would not be outside the realm of reasonableness for that to have occurred.
  7. The defamation knife cuts both ways, of course: regarding Fr. Volpi's claim to be preparing a lawsuit of his own and rescission of the settlement agreement, one can say (a) that Rorate, to the extent its writers are situated in the U.S., is probably immune from any liability for its February 16, 2015, post, as Fr. Volpi is almost certainly a public or limited-public figure and Rorate's publication is unlikely to qualify as actually malicious; (b) that Don Camillo's potential liability would be governed by Italian law, which may be less forgiving; and (c) that while mileage may vary in Italy, Fr. Volpi would be unlikely to have grounds to rescind the settlement agreement under American legal principles unless the Don Camillo figure were under the Manelli family's control or he wrote what he did as a result of some conduct by them prohibited under the agreement.
P.S. (Feb. 23, 2015): It might go without saying, but in case it does not, my thoughts here are not on the merits of the Manelli suit against Fr. Volpi, nor of Fr. Volpi's claims against the Manelli family or anyone else. Opining on the merits would require knowledge of the true facts, which I lack. As for the matter in general, Fr. Volpi is the principal agent in what is, from all appearances, the profoundly unjust oppression of the F.F.I., a role for which he deserves opprobrium. That is true regardless of what legal claims he or anyone else might have.



1  See New York Times Co. v. Sullivan, 376 U.S. 254, 271 (1964).
2  Id. at 279--80.
3  International Press Institute, Key Findings: Defences in Defamation Cases, http://www.freemedia.at/ecpm/key-findings/defences-in-defamation-cases.html (last accessed February 19, 2015).
4  Was the statement true? Who knows; I have no way of knowing and it is beyond my purposes here to consider the question.

Friday, January 30, 2015

Millstones

One would prefer to have quotes, rather than paraphrases. But the paraphrases are bad enough. Surely God has given us the leaders we deserve, rather than those we need.

Poscia ch'io v'ebbi alcun riconosciuto,
vidi e conobbi l'ombra di colui
che fece per viltade il gran rifiuto.