Monthly Archives: October 2016

What’s Up With Hartley v. Sanchez?

It went to the SCOTUS conference on September 26 and there’s no docket entry after that. It wasn’t granted.  It wasn’t denied.

It wasn’t anything.

Does that mean relisted?  Rescheduled?

Limbo?

As we predicted, the Manuel argument was pretty much a disaster.  There seems to be a consensus that there is a consensus of some kind, but we hope they don’t do anything with Manuel.  At least not yet.

The real muddle of Manuel is that it’s trying to fit the square peg of malicious and malevolent government conduct into the round hole of “unreasonable” conduct under the 4th amendment.  The government conduct complained of in Hartley is less egregious (“knew or should have known”) but we think that’s also a poor fit for the 4th amendment.

Malicious and malevolent conduct is worse than “unreasonable” and violates due process. This is a distinction we must recover, and which Manuel threatens to bury further.  We don’t think Hartley is very useful here, either, although maybe in conjunction with another case where things are made a little clearer.

We have some ideas about such a case, but that’s for another time.  In the meantime…

Ugh.

 

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