The en banc Ninth Circuit today held that government investigators violated the Fourth Amendment when, during a raid on BALCO, they seized the names of 104 MLB players who tested positive for steroids, while acting on a warrant targeted at only ten players. (H/T: Jon Pessah).
The opinion is 63 pages long (I have not had a chance to read it yet); the majority is by Chief Judge Alex Kozinski, one of the sharpest judicial minds on the federal bench and someone on the libertarian/conservative side. There are two partial concurrences/dissents and one full dissent. I would predict Supreme Court review, just because of the high-profile nature of the case.
Update:
Orin Kerr has a series of posts on the case at the Volokh Conspiracy. Orin knows the Fourth Amendment better than most people, so it is worth a read.
-- Posted by Howard Wasserman @ 8/26/2009 03:06:00 PM --
Comments (3) --
Post a Comment
3 Comments:
Allow a question from someone who never attended law school...
IF this decision is upheld by the Supreme Court, that would mean that the prosecutors and agents who siezed those records used an illegal (unconsitiutional?) action that caused damage to the reputations of players whose names were leaked subsequently.
Would those players have the ability to bring a tort case against the prosecutors/agents here - - assuming they could find some link between the prosecutors' possession of the list and the leaking of the list?
They could sue, although my guess is that they would avoid liability and damages on grounds of qualified immunity. That doctrine holds that officers only can be held liable for violations of rights that were "clearly established" in light of applicable law and the factual circumstances, such that no reasonable officer would have believed that this conduct was constitutional. It is a matter of notice--we will not hold officers liable for damages for conduct that they could not be expected to know was unlawful.
Given the dearth of law on how to handle plain-view issues in the context of electronically stored information and the deep division on the en banc panel itself, it seems to me pretty obvious that it was not clearly established at the time that what they were doing violated the Constitution.
I usually don’t leave comments!!! Trust me! But I liked your blog…especially this post! Would you mind terribly if I put up a backlink from my site to your site? Please come visit my site Edmonton Alberta when you got time. Thanks.
View Michael McCann's LinkedIn Profile
