Oren Kerr

Thank you.

Thank you.

Well, first of all, thanks for having me on the show. As you mentioned, a big, big fan, longtime listener. So happy to be here. Well, we can only speculate. We don't know, obviously. But I think there are a couple possible clues or a couple possible reasons. One might be that the good faith exception has expanded so far.

Well, first of all, thanks for having me on the show. As you mentioned, a big, big fan, longtime listener. So happy to be here. Well, we can only speculate. We don't know, obviously. But I think there are a couple possible clues or a couple possible reasons. One might be that the good faith exception has expanded so far.

You actually don't have that many merits rulings on big Fourth Amendment issues in the courts of appeals anymore. So I follow published courts of appeals opinions in the Fourth Amendment space. There actually aren't that many. And any really notable ruling is going to be followed by a backup ruling that says, oh, and by the way, the good faith exception applies. There's really no remedy here. So –

You actually don't have that many merits rulings on big Fourth Amendment issues in the courts of appeals anymore. So I follow published courts of appeals opinions in the Fourth Amendment space. There actually aren't that many. And any really notable ruling is going to be followed by a backup ruling that says, oh, and by the way, the good faith exception applies. There's really no remedy here. So –

I realize there's a risk of that. But yeah, Davis is decided in 2011 and then it takes four or five years and then the cases really dry up. And so there just aren't – there are preexisting splits, but you don't have many cases where lower courts say, well, here's this deep split. We're going to pick a side and gosh darn it, that's the remedy. Like the bad guy goes free and that's it.

I realize there's a risk of that. But yeah, Davis is decided in 2011 and then it takes four or five years and then the cases really dry up. And so there just aren't – there are preexisting splits, but you don't have many cases where lower courts say, well, here's this deep split. We're going to pick a side and gosh darn it, that's the remedy. Like the bad guy goes free and that's it.

That naturally leads to a cert petition. Instead, you have almost everything is kind of advisory litigation if it's anything novel or anything like that. cutting edge, that's kind of where you end up.

That naturally leads to a cert petition. Instead, you have almost everything is kind of advisory litigation if it's anything novel or anything like that. cutting edge, that's kind of where you end up.

So, yes, this is another possibility that there's either they're fine with that or or maybe and I think this is a suggestion, Will, you've had on the show that that they're not sure of what they want to do with the exclusionary rule. So that maybe they avoid merits rulings because they don't want to open the door to the question of what the remedies for the Fourth Amendment might be.

So, yes, this is another possibility that there's either they're fine with that or or maybe and I think this is a suggestion, Will, you've had on the show that that they're not sure of what they want to do with the exclusionary rule. So that maybe they avoid merits rulings because they don't want to open the door to the question of what the remedies for the Fourth Amendment might be.

It's also possible, if you go back and read the Davis case from 2011, Justice Alito says, Davis argues that this will dry up Fourth Amendment case law. If that happens, we might carve out an exception to our exception, allowing challenges to go forward.

It's also possible, if you go back and read the Davis case from 2011, Justice Alito says, Davis argues that this will dry up Fourth Amendment case law. If that happens, we might carve out an exception to our exception, allowing challenges to go forward.

The actual person whose case is granted at Supreme Court and who wins, maybe they get the exclusionary rule. But I don't know exactly when they would know that their rule has led to that result. It's kind of a mystery passage, but at least there's a possibility. But Yeah, I think it's uncertainty over the exclusionary rule.

The actual person whose case is granted at Supreme Court and who wins, maybe they get the exclusionary rule. But I don't know exactly when they would know that their rule has led to that result. It's kind of a mystery passage, but at least there's a possibility. But Yeah, I think it's uncertainty over the exclusionary rule.

The scope of the good faith exception are probably significant influences on this. And it may just be, you know, the originalist turn in Fourth Amendment law generally is sort of started to happen or waited to happen. And really, if you look historically back. The justices have always been interested in the original – in the common law history and the enactment of the Fourth Amendment.

The scope of the good faith exception are probably significant influences on this. And it may just be, you know, the originalist turn in Fourth Amendment law generally is sort of started to happen or waited to happen. And really, if you look historically back. The justices have always been interested in the original – in the common law history and the enactment of the Fourth Amendment.

But there may just be uncertainty or – and this pains me the most, a lack of interest among the justices in this particular area of law. So who knows? But those are all possible.

But there may just be uncertainty or – and this pains me the most, a lack of interest among the justices in this particular area of law. So who knows? But those are all possible.

Thank you for that opportunity. Appreciate it. Yeah, so it's a book, The Digital Fourth Amendment, and it's basically how the court should respond to the digital age, taking as a starting point that courts tend to respond to new technologies and craft new rules for these new technologies. And we've seen this already with Riley.

Thank you for that opportunity. Appreciate it. Yeah, so it's a book, The Digital Fourth Amendment, and it's basically how the court should respond to the digital age, taking as a starting point that courts tend to respond to new technologies and craft new rules for these new technologies. And we've seen this already with Riley.

versus California and Carpenter versus United States, which you guys know very well. And so it's basically taking that methodology and saying, here's how we might get kind of a digital specific rules in Fourth Amendment law. What's a search? What's a seizure? How should warrants be executed?

versus California and Carpenter versus United States, which you guys know very well. And so it's basically taking that methodology and saying, here's how we might get kind of a digital specific rules in Fourth Amendment law. What's a search? What's a seizure? How should warrants be executed?

Exceptions to the warrant requirement, kind of playing out these methodologies and looking broadly at how the law should

Exceptions to the warrant requirement, kind of playing out these methodologies and looking broadly at how the law should

should appear and as you say that it's currently unavailable i like to think it's because you know it's no doubt going to be a bestseller but whether that's true or not i think there's a very small first printing and it should should be available in about two or three weeks okay they're doing another couple hundred thousand it sounds like okay i pre-ordered months ago and i still haven't got my copy i have never seen a copy myself so

should appear and as you say that it's currently unavailable i like to think it's because you know it's no doubt going to be a bestseller but whether that's true or not i think there's a very small first printing and it should should be available in about two or three weeks okay they're doing another couple hundred thousand it sounds like okay i pre-ordered months ago and i still haven't got my copy i have never seen a copy myself so

Yeah, I think that's right. Exactly what was the question that the court was deciding was a big issue at the oral argument because there was – you had the very narrow issue they ran a cert on and then everybody wanted to jump into other issues especially as it became clear that there was probably a rough consensus as to the actual question presented.

Yeah, I think that's right. Exactly what was the question that the court was deciding was a big issue at the oral argument because there was – you had the very narrow issue they ran a cert on and then everybody wanted to jump into other issues especially as it became clear that there was probably a rough consensus as to the actual question presented.

So how far are they going to rule is probably – is open but it's not open as to – after the argument at least as to which side ultimately they're going to come down on.

So how far are they going to rule is probably – is open but it's not open as to – after the argument at least as to which side ultimately they're going to come down on.

You should reject the moment of the threat doctrine. As Justice Gorsuch pointed out at the arguments, no one seemed to want to endorse that approach. And then the question is, what do you say beyond that? Do you say just we send it back totally the circumstances or do you start giving some guidance as to timing and how to think about this and how to think about officer sort of created threats?

You should reject the moment of the threat doctrine. As Justice Gorsuch pointed out at the arguments, no one seemed to want to endorse that approach. And then the question is, what do you say beyond that? Do you say just we send it back totally the circumstances or do you start giving some guidance as to timing and how to think about this and how to think about officer sort of created threats?

And it wasn't obvious that there was really any shared view, at least among more than two or three justices for what to say beyond that.

And it wasn't obvious that there was really any shared view, at least among more than two or three justices for what to say beyond that.

The justices seem to want to say everything is objective, even when they introduce subjectivity into the tests. It's almost like they have some commitment. No, no, we're definitely following the old rules, even when they seem to sneak past that. I was also a little bit unsure of the negligence and subjective objective part of this.

The justices seem to want to say everything is objective, even when they introduce subjectivity into the tests. It's almost like they have some commitment. No, no, we're definitely following the old rules, even when they seem to sneak past that. I was also a little bit unsure of the negligence and subjective objective part of this.

I think the challenge here is that usually in Fourth Amendment law, everything is kind of rule-ified. Like there's a big rules versus standards backdrop to this whole case. So in Fourth Amendment law, usually it's clear rules. Like, you know, the stop is a seizure. And to do the stop, you need to have this cause. And to search, that's this cause. And sort of everything is very sequential.

I think the challenge here is that usually in Fourth Amendment law, everything is kind of rule-ified. Like there's a big rules versus standards backdrop to this whole case. So in Fourth Amendment law, usually it's clear rules. Like, you know, the stop is a seizure. And to do the stop, you need to have this cause. And to search, that's this cause. And sort of everything is very sequential.

Everything is very rule-based. There's like a rule structure. And what makes excessive force cases different is that it's just They have these gram factors. It's reasonableness. And sometimes that leads to a rule like Tennessee versus Garner, the fleeing felon case where there's a little bit more of a rule. But otherwise, it's just a standard.

Everything is very rule-based. There's like a rule structure. And what makes excessive force cases different is that it's just They have these gram factors. It's reasonableness. And sometimes that leads to a rule like Tennessee versus Garner, the fleeing felon case where there's a little bit more of a rule. But otherwise, it's just a standard.

And so it's like they wanted to do more than just send it back and say, just do the gram factor standard. But they weren't sure what, if anything else to say. And it wasn't really the case to bring it in because they just ran a cert on this narrow question.

And so it's like they wanted to do more than just send it back and say, just do the gram factor standard. But they weren't sure what, if anything else to say. And it wasn't really the case to bring it in because they just ran a cert on this narrow question.

I thought it was hard because the lawyer from the SG's office was clear. He's like, well, you know, there's sort of two questions. Like what will the Fourth Amendment allow and then what is a good idea?

I thought it was hard because the lawyer from the SG's office was clear. He's like, well, you know, there's sort of two questions. Like what will the Fourth Amendment allow and then what is a good idea?

And obviously if the officer is going to put the officer's own life at risk, it's a really bad idea to take a step even if you can come up with a doctrine that says this is constitutional to do this. It's dumb. So it's a bad idea. So – This wasn't really the case in which to get into those questions, I thought, even though a bunch of them obviously were interested in that.

And obviously if the officer is going to put the officer's own life at risk, it's a really bad idea to take a step even if you can come up with a doctrine that says this is constitutional to do this. It's dumb. So it's a bad idea. So – This wasn't really the case in which to get into those questions, I thought, even though a bunch of them obviously were interested in that.

Excessive force cases are a little bit grafted onto Fourth Amendment law. It's one of those things that you can see how it ultimately can be deemed, you know, the idea is that the use of force is a seizure in that, you know, especially in Tennessee versus Garner, which starts this, the shooting and killing somebody obviously is seizing them in that sense.

Excessive force cases are a little bit grafted onto Fourth Amendment law. It's one of those things that you can see how it ultimately can be deemed, you know, the idea is that the use of force is a seizure in that, you know, especially in Tennessee versus Garner, which starts this, the shooting and killing somebody obviously is seizing them in that sense.

But I think a little bit, it's like a constitutional tort that seems to fit and that makes a lot of policy sense that kind of gets squeezed into the doctrine. So it's a little bit uncomfortable in that they don't quite know, like, how do you take what ultimately you'd think of is a jury question of the excessiveness of the force and put it into a rule structure, which has primarily been

But I think a little bit, it's like a constitutional tort that seems to fit and that makes a lot of policy sense that kind of gets squeezed into the doctrine. So it's a little bit uncomfortable in that they don't quite know, like, how do you take what ultimately you'd think of is a jury question of the excessiveness of the force and put it into a rule structure, which has primarily been

enacted for application by judges in the context of motions to suppress. And then even in the civil setting, you have qualified immunity, which is also in the backdrop of the Barnes v. Felix case. Like, usually you're not going to get a jury question. And then what does the jury actually decide? There's some discussion of this in the Barnes

enacted for application by judges in the context of motions to suppress. And then even in the civil setting, you have qualified immunity, which is also in the backdrop of the Barnes v. Felix case. Like, usually you're not going to get a jury question. And then what does the jury actually decide? There's some discussion of this in the Barnes

It's a great question. I was thinking about this actually a few months ago. I'd love to see like jury instructions that are used in excessive force cases once you get past qualified immunity, right? So it'd have to be a case where there's disputed facts. They say we can't do this on qualified immunity. It goes to the jury. I don't know if they're pattern jury instructions or standard ones.

It's a great question. I was thinking about this actually a few months ago. I'd love to see like jury instructions that are used in excessive force cases once you get past qualified immunity, right? So it'd have to be a case where there's disputed facts. They say we can't do this on qualified immunity. It goes to the jury. I don't know if they're pattern jury instructions or standard ones.

That's exactly what ends up being decided by judge.

That's exactly what ends up being decided by judge.

Well, you'll have some cases where the court decides to read – Pearson versus Callahan gives them the discretion to either decide on QI or reach the merits. And so you'll have some number of cases where they reach the merits and presumably some where they say it's excessive force.

Well, you'll have some cases where the court decides to read – Pearson versus Callahan gives them the discretion to either decide on QI or reach the merits. And so you'll have some number of cases where they reach the merits and presumably some where they say it's excessive force.

And then you start getting case law established as to where the line is and you get the typical qualified immunity analysis. So you can very slowly create cases on this. But I agree that to the extent you leave open the time period and that becomes a huge uncertainty – then the Fourth Amendment standard becomes really uncertain.

And then you start getting case law established as to where the line is and you get the typical qualified immunity analysis. So you can very slowly create cases on this. But I agree that to the extent you leave open the time period and that becomes a huge uncertainty – then the Fourth Amendment standard becomes really uncertain.

And then a lot of the cases will get resolved on qualified immunity, presumably.

And then a lot of the cases will get resolved on qualified immunity, presumably.

Agreed. It would be one thing if they – were strong on the good faith exception and then rejected qualified immunity or vice versa. But instead, they are weak on both. I think basically the current justices are just not really comfortable with remedies in Fourth Amendment cases, or at least they have the same instincts in the civil and criminal setting.

Agreed. It would be one thing if they – were strong on the good faith exception and then rejected qualified immunity or vice versa. But instead, they are weak on both. I think basically the current justices are just not really comfortable with remedies in Fourth Amendment cases, or at least they have the same instincts in the civil and criminal setting.

So you end up in both contexts sort of avoiding merits rulings that would clarify the law.

So you end up in both contexts sort of avoiding merits rulings that would clarify the law.

I can imagine, too, some sort of a causation like inquiry, which I guess some of the lower courts had suggested, you know, maybe causation where you have some sort of you treat the issue well that you raised. To what extent is this the officer sort of doing the officer's task versus something maybe that's outside of that task? You can imagine that being relevant to it as well.

I can imagine, too, some sort of a causation like inquiry, which I guess some of the lower courts had suggested, you know, maybe causation where you have some sort of you treat the issue well that you raised. To what extent is this the officer sort of doing the officer's task versus something maybe that's outside of that task? You can imagine that being relevant to it as well.

And maybe some future cases will ultimately resolve that. I just doubt. I'm expecting a very, very short totality of circumstances. Now, go figure this out below kind of opinion.

And maybe some future cases will ultimately resolve that. I just doubt. I'm expecting a very, very short totality of circumstances. Now, go figure this out below kind of opinion.

Yeah. I mean, they were clearly interested in trying to lay out more rules beyond just send it back on a reasonable standard. I didn't think there was any clear alternative that emerged, and just the lack of an alternative... Unless they somehow decide, as we'll suggest, like spend a lot of time on this and really come to some conclusion that was not obvious that the oral argument is possible.

Yeah. I mean, they were clearly interested in trying to lay out more rules beyond just send it back on a reasonable standard. I didn't think there was any clear alternative that emerged, and just the lack of an alternative... Unless they somehow decide, as we'll suggest, like spend a lot of time on this and really come to some conclusion that was not obvious that the oral argument is possible.

But I didn't see the interest in that, at least in the argument.

But I didn't see the interest in that, at least in the argument.

Yeah, there's no shortage of issues, and there's some interesting petitions up there. The court called for response recently on a case involving the standard for emergency entry. Not a tech case, but there's a split on the standard for emergency entry. Issues there, but we don't have signs yet that there's something that they really are – raring to go on right now.

Yeah, there's no shortage of issues, and there's some interesting petitions up there. The court called for response recently on a case involving the standard for emergency entry. Not a tech case, but there's a split on the standard for emergency entry. Issues there, but we don't have signs yet that there's something that they really are – raring to go on right now.

Yes. I guess yes and yes. So I don't think these are the issues that they're going to want to take on. I don't think they feel that – I think there's sort of a hard thing to do, right? You've got to imagine what are the things that a group of nine people or six people or whatever the number is care about and think they really need to make changes on.

Yes. I guess yes and yes. So I don't think these are the issues that they're going to want to take on. I don't think they feel that – I think there's sort of a hard thing to do, right? You've got to imagine what are the things that a group of nine people or six people or whatever the number is care about and think they really need to make changes on.

And I suspect this is just not a set of issues that they – that they want, that they care about, that they, I think that's just not that. Now that's just my prediction could be wrong, but I, I just, I don't see it. Whereas I think it's different too. Like with, with Dobbs, you could see that coming like a mile away. Like,

And I suspect this is just not a set of issues that they – that they want, that they care about, that they, I think that's just not that. Now that's just my prediction could be wrong, but I, I just, I don't see it. Whereas I think it's different too. Like with, with Dobbs, you could see that coming like a mile away. Like,

that was going to be a big issue and you could count the number of votes and you could say, okay, that's, if it doesn't change dramatically, it's going to come awfully close to that.

that was going to be a big issue and you could count the number of votes and you could say, okay, that's, if it doesn't change dramatically, it's going to come awfully close to that.

I just don't see the interest at least beyond one or two justices in, in, in sort of going back on those issues, especially I think an issue we need to think about, you know, they're going to have their hands full with, all the Trump issues that are going to be coming their way. They're going to be major, major cases about major questions of constitutional structure.

I just don't see the interest at least beyond one or two justices in, in, in sort of going back on those issues, especially I think an issue we need to think about, you know, they're going to have their hands full with, all the Trump issues that are going to be coming their way. They're going to be major, major cases about major questions of constitutional structure.

And Trump is going to be putting tons of pressure on them. And some of the time they're going to tell Trump no, and some of the time maybe they'll say Trump yes. But I think that probably becomes the focus over the next four years, probably, rather than those other issues.

And Trump is going to be putting tons of pressure on them. And some of the time they're going to tell Trump no, and some of the time maybe they'll say Trump yes. But I think that probably becomes the focus over the next four years, probably, rather than those other issues.