ARIZONA ANTI-IMMIGRATION LAW LIKELY TO END UP BEFORE US SUPREME COURT

In a major setback for Arizona and Gov. Jan Brewer, the 9th Circuit Court of Appeals recently concluded there was sufficient evidence to believe that provisions of SB 1070 are an unconstitutional infringement on the exclusive power of the federal government to regulate immigration. The Ninth Circuit upheld a lower court's block of much of Arizona's controversial SB 1070 law aimed at illegal immigration.

The judges agreed with U.S. District Court Judge Susan Bolton, who issued a preliminary injunction in July preventing sections of SB 1070 from being enforced. The three-judge panel ruled that the lower court "did not abuse its discretion" in blocking parts of the law from taking effect last year.

The court specifically rejected Arizona’s argument that it could make it a state crime for an undocumented worker to seek employment in Arizona. The judges noted that Congress, in approving federal regulations, chose not to make looking for work a criminal act.

The court found that the relevant provisions of S.B. 1070 facially conflict with Congressional intent. The decision rejected Arizona's contention that it could enact a state law against undocumented workers seeking employment, citing Congress' affirmative choice not to criminalize work as a method of discouraging unauthorized immigrant employment. By imposing mandatory obligations on state and local officers, the court held that Arizona interferes with the federal government's authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents. The opinion stressed that the question was not, as Arizona claimed, whether state and local law enforcement officials can apply the statute in a constitutional way. The court found that there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and therefore is preempted by the Supremacy Clause.

The court also upheld Bolton's injunction against Arizona law enforcement arresting suspected illegal immigrants without warrants based on a belief that they could be subject to civil removal from the United States.

The decision, a victory for the Obama administration and immigration activists who filed suit to block the law, means the SB 1070 case will likely find its way to the Supreme Court.

GPS and the Fourt Amendment - Is it 1984 or 2010?

GPS and the Fourth Amendment - Is it 1984, or 2010?

Did you know that government agents can sneak onto your property in the middle of the night, attach a GPS device to your car and keep track of everywhere you go? This doesn't violate your Fourth Amendment rights, because you do not have any reasonable expectation of privacy in your own driveway — and no reasonable expectation that the government isn't tracking your movements.

That is the rule that now applies in California and eight other Western states. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, which covers this vast jurisdiction, in January of thus year decided that the government can monitor you in this way virtually anytime it wants — with no need for a search warrant. U.S. v. Pineda-Moreno (9th Cir. - Jan. 11, 2010).

More disturbingly, a larger group of judges on the circuit, who were subsequently asked to reconsider the ruling, last month decided to let it stand.

In 2007, Drug Enforcement Administration (DEA) agents decided to monitor Juan Pineda-Moreno, an Oregon resident who they suspected was growing marijuana. They snuck onto his property in the middle of the night and found his Jeep in his driveway, a few feet from his trailer home. Then they attached a GPS tracking device to the vehicle's underside.

He was arrested and charged with drug sales. Pineda-Moreno pleaded guilty conditionally to conspiracy to manufacture marijuana and manufacturing marijuana while appealing the denial of his motion to suppress evidence obtained with the help of GPS.

In affirming the denial of the motion to suppress, the judges justified their decision by saying that Pineda-Moreno's driveway was not private. It was open to strangers, they said, such as delivery people and neighborhood children, who could wander across it uninvited.

Chief Judge Alex Kozinski, who dissented from the decision refusing to reconsider the case, pointed out whose homes are not open to strangers: rich people's. The court's ruling, he said, means that people who protect their homes with electric gates, fences and security booths have a large protected zone of privacy around their homes. People who cannot afford such barriers have to put up with the government sneaking around at night.

The government violated Pineda-Moreno's privacy rights in two different ways. For starters, the invasion of his driveway was wrong. The courts have long held that people have a reasonable expectation of privacy in their homes and in the "curtilage," a legal term for the area around the home. The government's intrusion on property just a few feet away from his home was clearly in this zone of privacy.

The court went on to make a second terrible decision about privacy: that once a GPS device has been planted, the government is free to use it to track people without getting a warrant. There is a major battle under way in the federal and state courts over this issue, and the stakes are high. After all, if government agents can track people with secretly planted GPS devices virtually anytime they want, without having to go to a court for a warrant, we are one step closer to a classic police state.

Fortunately, other courts are coming to a different conclusion from the Ninth Circuit's — including the influential U.S. Court of Appeals for the District of Columbia Circuit. That court recently ruled that tracking for an extended period of time with GPS is an invasion of privacy that requires a warrant. The issue is likely to end up in the Supreme Court.

This is a dangerous decision — one that could turn America into the sort of totalitarian state imagined by George Orwell. It is particularly offensive because the judges added insult to injury with some shocking class bias: the little personal privacy that still exists, the court suggested, should belong mainly to the rich.