"41 states prohibit same-sex marriage. But only 20 of those 41 states have filed briefs in support of the constitutionality of Proposition 8."

"Indiana is the lead party on a brief for 19 states, and Michigan filed a brief of its own."

Compare this level of state participation with, for example, the amicus brief filed by all 49 other states in Maryland v. King (to be argued February 26), in support of Maryland’s argument that a state does not violate the Fourth Amendment by collecting and analyzing the DNA of persons who have been arrested for, but not convicted of, a criminal offense....

It is further significant, I think, that in 12 of those 21 non-filing states, constitutional amendments prevent the recognition of same-sex marriage via the ordinary political process.  All but one of those amendments was ratified from 2002 through 2008, in anticipation that popular majorities might soon support a change in state law... 

"New Justice Department Documents Show Huge Increase in Warrantless Electronic Surveillance."

The ACLU reports on "documents, handed over by the government only after months of litigation."

"Police Stop, Handcuff Every Adult at Intersection in Search for Bank Robber."

ABC News reports:

Police said they had received what they called a “reliable” tip that the culprit in an armed robbery at a Wells Fargo bank committed earlier was stopped at the red light.

“We didn’t have a description, didn’t know race or gender or anything, so a split-second decision was made to stop all the cars at that intersection, and search for the armed robber,” Aurora police Officer Frank Fania told ABC News.

Officers barricaded the area, halting 19 cars.

The search went on for about 2 hours, and when they got to the last car, they found was a person they arrested for the crime. 

It's very odd that they would have the tip in that form, with absolutely no detail other than the person was stopped at a particular red light. And the evidence found — according to the article — was 2 loaded firearms.

"Nice police department you got there, Mayor Barrett."

Says Instapundit, linking to my post about the man with the pro-Walker sign who was arrested by the Milwaukee police today. He adds:

There’s also some sort of scandal involving the Milwaukee police, isn’t there? Oh, yes, there is: Milwaukee Police Accused Of Performing Illegal Body Cavity Searches.

Oh, and there’s the crime statistics book-cooking scandal.

Plus a policy favoring illegal assaults on gun owners.

Then there’s that whole vote-fraud business.

When "the Government trespassorily inserted the information-gathering device" on a car, it was a search within the meaning of the 4th Amendment.

Says the Supreme Court, this morning, in United States v. Jones. Scalia writes the privacy-protecting opinion, joined by Roberts, Kennedy, Thomas, and Sotomayor.

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information....

The text of the Fourth Amendment reflects its close connection to property...

Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century....

Our later cases, of course, have deviated from that exclusively property-based approach. In Katz v. United States, 389 U. S. 347, 351 (1967), we said that “the Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan’s concurrence in that case, which said that a violation occurs when government officers violate a person’s “reasonable expectation of privacy”....

Despite the deviation — which worked to protect people using public phones and so forth — the Court rejects the Government's argument that Jones had no "reasonable expectation of privacy" with respect to the underside of his Jeep and where the Jeep was when it was driving about on the public roads. The Katz test was about extending the scope of an individual's privacy, not cutting back on traditional property-based protections.

There's no dissent, but Alito writes a concurring opinion which is joined by Ginsburg, Breyer, and Kagan. Alito characterizes the majority of using "18th-century tort law" to interpret the 4th Amendment and says the question should be analyzed in terms of reasonable expectations of privacy.

"Former Walker aide shaken, embarrassed following FBI raid, denies any wrongdoing."

"[Cynthia] Archer said law enforcement has ordered her to not discuss the case, and officials with the FBI and the Milwaukee County district attorney's office are not saying anything either. The information vacuum has led to a minor media frenzy, with reporters trying to figure out if this has anything to do with Walker."

Sorry I've failed to contribute to the frenzy. I don't like to post to say hey, look at that. I feel like I have to add some value. So I'll just say... what's with the secrecy combined with conspicuousness? The woman's reputation is besmirched by the conspicuous raid, and the governor of our state is collaterally damaged. But she's supposed to keep quiet, why?

"I'm not worried," Archer said. "I don't even have a lawyer. I don't need a lawyer. I did nothing inappropriate."

Why not? The FBI search your house for hours and you don't need a lawyer? Just because you think you've done nothing wrong doesn't mean you don't need a lawyer! Assuming Cynthia Archer is not an idiot, on what theory does she not need a lawyer?

A law authorizing police to enter a private home whenever they can see a keg inside.

An outrageous ordinance proposed in Madison, Wisconsin:

Downtown Alcohol Policy Coordinator Mark Woulf said police wanted the ability to enter house parties with visible kegs, especially in situations where kegs could entice more people to come and make parties "even more out of control."

"You’re good to go, but first I have to pat your hair."

"I’m like, pat my hair? O.K., I guess.... Is it just African-American women with natural hair who get the hair search?"

"A senior Egyptian general admits that 'virginity checks' were performed on women arrested at a demonstration this spring..."

"... the first such admission after previous denials by military authorities," CNN reports:

"The girls who were detained were not like your daughter or mine," the general said. "These were girls who had camped out in tents with male protesters in Tahrir Square, and we found in the tents Molotov cocktails and (drugs)."...

"We didn't want them to say we had sexually assaulted or raped them, so we wanted to prove that they weren't virgins in the first place," the general said. "None of them were (virgins)."

IN THE COMMENTS: Freeman Hunt said:

That sounds like he's saying that they did assault and rape them.

Can the police break down your door and burst in on you if they smell marijuana burning?

They don't have a warrant, but no warrant is needed under "exigent circumstances," such as when there is evidence of destruction of evidence. In the case argued in the Supreme Court today, after the police knocked and announced themselves, they heard a toilet flushing. Is that enough?

Kennedy uses this opportunity to ask why the smoking of marijuana itself doesn't constitute the destruction of evidence.

Matt Bai identifies "the central theme of Mr. Obama’s presidency: America’s faltering confidence in the ability of government to make things work."

He begins with the example of the the new get-naked-or-groped TSA policy and goes on:

From stimulus spending and the health care law to the federal response to oil in the Gulf of Mexico, Mr. Obama has continually stumbled...

I add my longtime blog tag "Obama stumbles" to this post.

... blindly, it seems — into some version of the same debate, which is about whether we can trust federal bureaucracies to expand their reach without harming citizens or industry....

Bai notes that during the Reagan and Clinton years, America turned away from "the era of big government," but then:

[T]he unraveling of the second Bush administration and the 2008 election... persuaded a lot of long-dispirited liberals that their philosophy, and not simply their party, had been restored. 

What a delusion!

"It is not comfortable to come to work knowing full well that my hands will be feeling another man’s private parts, their butt, their inner thigh."

"Even worse is having to try and feel inside the flab rolls of obese passengers and we seem to get a lot of obese passengers!"

Ron Paul on the TSA: "This one is just such an affront, so much out in the open, and government being so bold as to molest in public..."

"... and say they're doing it for our interest. If we tolerate this, there's something wrong with us. I mean something wrong with it. It's almost like... It's probably not fair to say this, because so many people don't deserve it. We deserve some of this stuff. If we don't do something about it. And hopefully, the American people will do something. They'll eventually have to boycott the airlines or whatever. Or throw more of the bums out. Maybe the Congress will get off their duff and do something in January and insist we rein in the TSA."

"Ahmed Ghailani's trial shows that courts should admit all reliable evidence."

Writes lawprof Akhil Reed Amar:

For more than a century after the Declaration of Independence, no court in America excluded evidence in a case like Ghailani's. Indeed, the very point of a public trial was to enable the members of the public to bring forth their evidence and have it heard by the jury and the gallery: "That's the man! And here's my proof." In 1783, an English court famously confronted a situation in which a suspect had in effect been coerced into leading the government to find a cache of stolen goods. The idea that evidence about the cache should be suppressed at trial was dismissed by the court as "novel in theory," "dangerous in practice," and "repugnant to the general principles of criminal law." A later court tartly summarized the traditional Anglo-American rule about procuring evidence: "It matters not how you get it; if you steal it, even, it would be admissible in evidence." In 1822, early America's most learned jurist, Supreme Court Justice Joseph Story, wrote emphatically: "In the ordinary administration of municipal law the right of using evidence does not depend … upon the lawfulness or unlawfulness of the mode, by which it is obtained. … The evidence is admissible on charges for the highest crimes, even though it may have been obtained by a trespass upon the person, or by any other forcible and illegal means."

The Founders' Fifth Amendment did operate as a rule of exclusion: It excluded the government from introducing the defendant's own involuntary testimony. But it did so precisely because such testimony was viewed as unreliable.

Amar isn't saying Judge Kaplan misunderstood the existing case law on the subject. He wants the Supreme Court to change it:

[T]he high court could categorically hold that even if physical evidence must sometimes be suppressed, live witnesses, who, after all, speak based on their own free will, should never be muzzled....

In addition, the Court could expand an important limitation on the exclusionary rule known as "inevitable discovery." This standard allows the government to use evidence that would have eventually surfaced regardless of any coerced confession or improper search. Courts thus should strongly—perhaps irrefutably—presume that a witness's conscience would have impelled him to come forward on his own.

ADDED: A key fact: The government chose not appeal Judge Kaplan's decision to suppress the evidence.

TSA bumper stickers.

I don't know there original source for this, but it's going around in email:

I'm searching for video of Janet Napolitano doing a decent job of explaining the new TSA procedures.

I'm working on the thesis that such video does not exist. Please disprove it if you can. I came up with this video, which is interesting for a lot of reasons. Napolitano appears at 1:22 and is laughably unconvincing:



(Most of the video is about San Mateo County's Chief Deputy District Attorney Steve Wagstaffe threatening to prosecute for sexual assault. Love the name "Wagstaffe" in this context.)

TSA agent: "What is this?" American citizen: "It's my prosthesis because I've had breast cancer."

TSA agent: "Well, you'll need to show me that."

Obama's big get-out-the-vote-rally in Madison today is "a great experiment."

Says Chris Van Hollen, head of the Democratic Congressional Campaign Committee:

The challenge at the moment is how to get out the vote in Wisconsin and other battleground states...

“We know that first-time voters are difficult to bring out in midterm elections, and this will be a test of the White House’s ability to motivate those voters,” he said. “And the message is simple: Even though Barack Obama’s name is not on the ballot, the future success of his agenda and his presidency is at stake.”

And Obama himself says:

"People need to shake off this lethargy. People need to buck up"... The president told Democrats that making change happen is hard and "if people now want to take their ball and go home, that tells me folks weren't serious in the first place."

What if they were serious and they're not happy with what he did with the power they helped him win? The strong progressive opinion is anti-Obama these days. Don't be thinking that Madison is some kind of hardcore Democratic Party stronghold. It's not. This is a town where, in 2000, people resisted that notion that they should voted for Al Gore so Bush wouldn't win. What difference did it make? That was the argument I heard. "Bore and Gush" — remember that? It was important to vote for Ralph Nader. I heard that again and again. The President has taken his lefty fans for granted.

But I assume there will be a big crowd today — if it's not too hard to get through security. I, myself, will attend and put up with getting searched. I don't get jazzed up about seeing anybody in person, not even the President of the United States — not since 1975. But I am very interested in seeing how the crowd looks, getting some pictures, and talking to the people.

Things that you'd better not have on you if you want to walk through Library Mall on Tuesday afternoon.

"Laptop computers, sharp objects, metal or plastic drink bottles, backpacks and bags or purses larger than a standard sheet of paper, posters, and any food or drink."

President Obama will be speaking on the UW-Madison campus, and obviously, they expect a huge crowd, but I have watched students walk through the mall, the central crossroads of campus, for years, and I think they mostly have their computers, they surely have backpacks or big bags of one kind or another, and there's lots of food and drink. So anyone who wants to go to the event and is paying attention to the rules will need to plan ahead.

You can't just come over after class, because you'll have your backpack and laptop. And if you're just passing through and thinking of hanging out, because you're somewhat interested, you're going to be turned away because you have the stuff you normally have, and suddenly it's a national security threat. The screening process begins at 3:30 and the event goes on for several hours, and you're supposed to get by without anything to drink.

I'm sure they'll get a good crowd here anyway, but it's got to be a big irritation for many students to be rejected simply for having your normal gear. What if you come to campus by bus or a long walk?

Also, obviously, they don't want people with signs. No "posters." But I'm sure UW students know how to concoct signage without getting snagged by any of the restrictions. At the Class of 1995 law school reunion on Friday, I saw a video that included — among other things — the way some law students spelled out "UW Law" on the 50 yard line at the football stadium. With 4 willing souls, one being 2 letters wide, they accomplished the free expression. They can take away your posters, but they can't take away your underpants.

Ah, but you need to be respectful and hear out what the President says, which is — I assume — that you really need to vote for Democrats in November. That's the message. It's nothing loftier than that. It's a big political rally, snarling Madison traffic — on our narrow isthmus — blocking passage through the center of campus, and depriving us of our computers and our freedom of expression.

"A 62-year-old woman visiting a local Culver's sees several restaurant patrons with guns on holsters in plain view."

She thought it was an appropriate time to call the police. She didn't understand Wisconsin. It was time to calmly scarf your butter burger.