3. COURTS THAT CAN’T JUDGE

0.    Thomas ex rel. Thomas v. Roberts, 261 F.3d 1160, 1163 (11th Cir. 2001).

0.    Id. at 1164.

0.    Id. at 1168–69. One judge did note, however, that the search only “probably went too far,” and urged caution in interpreting the scope of constitutional protection in the school environment too broadly. Id. at 1177 (Roney, J., concurring specially) (emphasis added).

0.    Id. at 1170–77 (majority opinion); Jenkins ex rel. Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 825–26 (11th Cir. 1997) (“In the absence of detailed guidance, no reasonable school official could glean … what constitutes an infraction great enough to warrant a constitutionally reasonable search or, conversely, minor enough such that a search of property or person would be characterized as unreasonable.”).

0.    D.H. ex rel. Dawson v. Clayton Cty. Sch. Dist., 904 F. Supp. 2d 1301, 1304 (N.D. Ga. 2012); Complaint at paras. 11, 13, 15, D.H. ex rel. Dawson, 904 F. Supp. 2d 1301 (No. 1:12-CV-00478-AT).

0.    Billingslea eventually was fired, though not so much for the search as for claiming that he had not been penalized for his conduct in an interview with the local paper. Thomas v. Clayton Cty. Bd. of Educ., 94 F. Supp. 2d 1290, 1298 (N.D. Ga. 1999). The investigators found that Billingslea had violated departmental policy and existing law, searched without probable cause, acted unprofessionally in dropping his pants in front of the students, and improperly used threatening tactics to get the kids to pull down their pants. Id. at 1297, n. 9.

0.    Hearring v. Sliwowski, 806 F.3d 864, 865 (6th Cir. 2015) (first grade); Phaneuf v. Fraikin, 448 F.3d 591 (2d Cir. 2006) (twelfth grade); Dubbs v. Head Start, Inc., 336 F.3d 1194, 1200 (10th Cir. 2003) (preschool); Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999) (kindergarten); S.S. ex rel. Sandidge v. Turner Unified Sch. Dist. # 202, 12-CV-02346-CM, 2012 WL 6561525, at *1 (D. Kan. Dec. 14, 2012) (strip search by two school officials); Bellnier v. Lund, 438 F. Supp. 47, 50 (N.D.N.Y. 1977) (strip search by multiple school officials in front of other students in search of missing $3); Cornfield ex rel. Lewis v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1319 (7th Cir. 1993) (“well-endowed”).

0.    Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 368–69, 378–79 (2009); id. at 380 (Stevens, J., concurring in part and dissenting in part) (quoting N.J. v. T.L.O., 469 U.S. 325, 382n25 (1985) (Stevens, J. concurring in part and dissenting in part)).

0.    Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009), 270–77.

0.  Herbert L. Packer, “Policing the Police: Nine Men Are Not Enough,” New Republic, Sept. 4, 1965, at 19.

0.  See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980), 73–75 (describing the Warren Court as largely motivated by a concern with correcting racial injustice); Burt Neuborne, “The Gravitational Pull of Race on the Warren Court,” Sup. Ct. Rev., 2010: 85–86 (“It is hard to overstate the sense of urgency driving the [Warren] Court’s concern over racial discrimination in the enforcement of the criminal law.”).

0.  Friedman, The Will of the People, supra note 9, at 271–75 (quoting Governor Farris Bryant of Florida and describing the contemporaneous popularity of a number of the Warren Court’s seminal criminal procedure decisions); Corinna Barrett Lain, “Countermajoritarian Hero or Zero? Rethinking the Warren Court’s Role in the Criminal Procedure Revolution,” U. Pa. L. Rev. 152 (2004): 1383, 1389–99 (quoting Anthony Lewis and discussing Gideon).

0.  Friedman, The Will of the People, supra note 9, at 276.

0.  Id. at 276–77.

0.  Id. at 283.

0.  See Daryl J. Levinson, “Rights Essentialism,” Colum. L. Rev. 99 (1999): 904–905 (“At least since Legal Realism, no one has missed the point that the value of a right is a function of the consequences that will be brought to bear when the right is violated.”); Barry Friedman, “When Rights Encounter Reality: Enforcing Federal Remedies,” S. Cal. L. Rev. 65 (1992): 735–36 (describing the legal realist insight that “[w]ithout an available and enforceable remedy, a right may be nothing more than a nice idea”).

0.  Ann Woolhandler, “Patterns of Official Immunity and Accountability,” Case W. Res. L. Rev. 37 (1987): 414–16 (describing the prevalence of damages actions against state agents throughout the nineteenth and early twentieth centuries, including the role of good-faith reliance in precluding punitive damages); Coryell v. Colbaugh, 1 N.J.L. 77, 77 (1791) (describing punitive, or exemplary, damages as “damages for example’s sake, to prevent such offences in future”).

0.  Little v. Barreme, 6 U.S. (2 Cranch) 170, 170–72, 175–79 (1804). For the model used to calculate present value, see Robert C. Sahr, Consumer Price Index (CPI) Conversion Factors for Years 1774 to Estimated 2026 to Convert to Dollars of 2015 (2016), http://liberalarts.oregonstate.edu/sites/liberalarts.oregonstate.edu/files/polisci/faculty-research/sahr/inflation-conversion/pdf/cv2015.pdf.

0.  Katharine A. Wagner, “Little v. Barreme: The Little Case Caught in the Middle of a Big War Powers Debate,” J. L. Soc’y 10 (2008): 78; Thomas Y. Davies, “Recovering the Original Fourth Amendment,” Mich. L. Rev. 98 (1999): 588–89 (explaining that a peace officer was liable if he was the complainant in a specific warrant, while the magistrate or the peace officer could be liable if the warrant was general).

0.  David E. Engdahl, “Immunity and Accountability for Positive Government Wrongs,” U. Colo. L. Rev. 44 (1972): 21–56 (describing the gradual elimination of effective remedies in suits against state actors, and arguing that the breakdown was an “inadvertent” result of “pragmatic case-by-case adjudication”); Mapp v. Ohio, 367 U.S. 643, 651–52 (1961) (describing the states’ experience of “other remedies hav[ing] completely failed to secure compliance with the constitutional provisions” (quoting People v. Cahan, 282 P. 2d 905, 911 (1955))); Cahan, 282 P. 2d at 906 (discussing police testimony in which “forcible entries and seizures were candidly admitted”).

0.  Mapp, 367 U.S at 644; Carolyn Long, Mapp v. Ohio: Guarding Against Unreasonable Searches and Seizures (2006), 2, 7 (“cunning” and “audacious”).

0.  Long, Mapp v. Ohio, supra note 21, at 5–6; Mapp, 367 U.S at 667, 669 (Douglas, J., concurring).

0.  Long, Mapp v. Ohio, supra note 21, at 6–8, 66. The government still maintained throughout litigation that it did have a warrant, just not one that covered the evidence obtained. Supplemental Brief of Appellee on the Merits, Mapp v. Ohio, 367 U.S. 643 (No. 60-236), 1961 WL 101784, at *3. Delau, however, admitted twenty years later that there was no warrant at all. Long, Mapp v. Ohio, supra note 21, at 13.

0.  Long, Mapp v. Ohio, supra note 21, at 8, 15.

0.  Id. at 9, 13, 21.

0.  Id. at 29, 63, 68.

0.  Weeks v. United States, 232 U.S. 383, 393 (1914) (adopting the exclusionary rule); Wolf v. Colorado, 338 U.S 25 (1949).

0.  Mapp, 367 U.S at 654–55.

0.  Akhil Reed Amar, “Fourth Amendment First Principles,” Harv. L. Rev. 107 (1994): 785–800 (describing the exclusionary rule as an “awkward and embarrassing remedy”); Richard A. Posner, “Rethinking the Fourth Amendment,” Sup. Ct. Rev. 1981: 49 (critiquing the exclusionary as an often clumsy deterrence mechanism); Potter Stewart, “The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases,” Colum. L. Rev. 83 (1983): 1393 (“technicality”).

0.  Michael J. Murphy, “Judicial Review of Police Methods in Law Enforcement: The Problem of Compliance by Police Departments,” Tex. L. Rev. 44 (1966): 941; Sidney E. Zion, “Detectives Get a Course in Law,” N.Y. Times, Apr. 28 1965, at A50 (Riesman).

0.  See, e.g., Herring v. United States, 555 U.S. 135, 139 (2009) (“[The exclusionary rule] is ‘designed to safeguard Fourth Amendment rights generally through its deterrent effect.’” (quoting United States v. Calandra, 414 U. S. 338, 348 (1974))); Mapp, 367 U.S at 656 (“[T]he purpose of the exclusionary rule ‘is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.’” (quoting Elkins v. United States, 364 U.S. 206, 217 (1960))).

0.  Oren Bar-Gill and Barry Friedman, “Taking Warrants Seriously,” Nw. U. L. Rev. 106 (2012): 1623.

0.  Id. at 1623–24 (describing the general problem of the biased sample); Murray v. United States, 487 U.S. 533, 535–36 (1988). In the kind of truly twisted logic that gives lawyers a bad name, Justice Scalia wrote that because the police didn’t tell the magistrate who gave them the warrant that they’d already broken in and seen drugs, the warrant they did get was still valid. Murray, 487 U.S. at 542–43.

0.  Murray, 487 U.S. at 544 (Marshall, J., dissenting).

0.  Tia Mitchell, “Drug Agents Prowl City Bus Stations,” Fla. Times-Union, Oct. 20, 2002, http://jacksonville.com/tu-online/stories/102002/met_10741892.shtml.

0.  See Nix v. Williams, 467 U.S. 431 (1984) (announcing the “inevitable discovery” exception to the exclusionary rule); Herring, 555 U.S. at 147 (holding that good-faith reliance on another police department’s error meant evidence was admitted); United States v. Leon, 468 U.S. 897, 926 (1984) (holding that good-faith reliance on a warrant issued with insufficient probable cause meant evidence was admitted); Davis v. United States, 564 U.S. 229, 237 (2011) (citation omitted).

0.  See, e.g., Amar, “Fourth Amendment First Principles,” supra note 29, at 785–800 (“On efficiency grounds, money damages are often far superior to exclusion. Money is infinitely divisible; exclusion is clunky.”); Posner, “Rethinking the Fourth Amendment,” supra note 29 (advocating for money damages as a more natural and effective remedy).

0.  See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (holding that federal officers may be sued for damages directly under the Fourth Amendment); Monroe v. Pape, 365 U.S. 167 (1961) (interpreting 42 U.S.C. § 1983 to provide a cause of action against officials acting under color of state law for violations of constitutional rights).

0.  See Bar-Gill and Friedman, “Taking Warrants Seriously,” supra note 32, at 1626–34 (describing the challenge of properly calibrating money damages).

0.  See Harlow v. Fitzgerald, 457 U.S. 800, 818–19 (1982) (“[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”).

0.  Mattos v. Agarano, 661 F.3d 433, 448 (9th Cir. 2011) (internal quotation marks omitted) (Malaika Brooks); Miller v. Idaho State Patrol, 252 P.3d 1274, 1279 (Idaho 2011); Steen v. City of Pensacola, 809 F. Supp. 2d 1342, 1344–45, 1353 (N.D. Fla. 2011) (internal quotation marks omitted); S.S. ex rel. Sandidge, 2012 WL 6561525, at *1, *4 (Kansas).

0.  Alden v. Maine, 527 U.S. 706 (1999) (prohibiting Congress from abrogating state sovereign immunity in state court); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (prohibiting Congress from abrogating state sovereign immunity in federal court); Hans v. Louisiana, 134 U.S. 1 (1890) (interpreting the Eleventh Amendment to prohibit a citizen of a state from suing any state in federal court); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978) (requiring an official policy to hold a local government or police force liable).

0.  Maryland v. Wilson, 519 U.S. 408 (1997) (ordering everyone out of the car); Atwater v. Lago Vista, 532 U.S. 318 (2001) (arresting the driver); United States v. Robinson, 414 U.S. 218 (1973) (conducting a search incident to the arrest); Florence v. Board of Chosen Freeholders 132 S. Ct. 1510 (2012) (conducing a strip search and visual cavity search upon placing a person into a facility).

0.  New York v. Belton, 453 U.S. 454, 458 (1981) (quoting Dunaway v. New York, 442 U.S. 200, 213–14 (1979)); see also Id. at 458 (“A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be literally impossible of application by the officer in the field.” (quoting Wayne R. LaFave, “‘Case-by-Case Adjudication’ Versus ‘Standardized Procedures’: The Robinson Dilemma,” Sup. Ct. Rev. 1974: 141)); Florence, 132 S. Ct. at 1522 (“Officers who interact with those suspected of violating the law have an ‘essential interest in readily administrable rules.’” [quoting Atwater, 532 U.S. at 347]); Atwater, 532 U.S. at 347 (“[T]he Fourth Amendment has to be applied on the spur (and in the heat) of the moment, and the object in implementing its command of reasonableness is to draw standards sufficiently clear and simple to be applied with a fair prospect of surviving judicial second-guessing months and years after an arrest or search is made.”).

0.  Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) (“totality of the circumstances”); Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (“all-things-considered approach”).

0.  Ohio v. Robinette, 519 U.S. 33, 48 (1996) (Stevens, J., dissenting).

0.  See, e.g., Virginia v. Moore, 553 U.S. 164 (2008) (rejecting the Supreme Court of Virginia’s holding that a search incident to an arrest in violation of state law is a violation of the Fourth Amendment); Robinette, 519 U.S. (rejecting the Ohio Supreme Court’s holding that police must inform motorists that they are free to leave before seeking their consent to search); California v. Greenwood, 486 U.S. 35 (1988) (rejecting the California Court of Appeals’ holding that warrantless searches of people’s trash violates the Fourth Amendment); South Dakota v. Opperman, 428 U.S. 364 (1976) (rejecting the Supreme Court of South Dakota’s holding that a warrantless inventory search of an impounded car violates the Fourth Amendment); Cooper v. California 386 U.S. 58 (1967) (rejecting the California Court of Appeal’s holding that a warrantless glovebox search of an impounded car violates the Fourth Amendment).

0.  Barry Friedman and Maria Ponomarenko, “Democratic Policing,” N.Y.U. L. Rev. 90 (2015): 1871–75.

0.  Christopher Slobogin, “Panvasive Surveillance, Political Process Theory, and the Nondelegation Doctrine,” Geo. L.J. 102 (2014): 1723.

0.  See, e.g., Wyoming v. Houghton, 526 U.S. 295, 299–300 (1999); Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 455 (1990).

0.  T. Alexander Aleinikoff, “Constitutional Law in the Age of Balancing,” Yale L.J. 96 (1987): 972–73 (discussing the incommensurability problem); Tracey Maclin, “Constructing Fourth Amendment Principles from the Government Perspective: Whose Amendment Is It, Anyway?,” Am. Crim. L. Rev. 25 (1988): 669 (arguing that the Fourth Amendment balancing test skews in favor of government interests).

0.  Christopher Slobogin and Joseph E. Schumacher, “Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at Understandings Recognized and Permitted by Society,” Duke L.J. 42 (1993): 733–42; United States v. Place, 462 U.S. 696, 707 (1983) (dog sniff); Bd. of Educ. v. Earls, 536 U.S. 822, 833 (2002) (quoting Vernonia School District 47J v. Acton, 515 U.S. 646, 658 (1995)) (compelled urine test).

0.  Earls, 536 U.S. at 837–38; Pieter S. de Ganon, Note, “Noticing Crisis,” N.Y.U. L. Rev. 86 (2001): 573, 598 (discussing the paperwork submitted by the school district to the federal government). All there was in the way of evidence was teachers who said they had heard students talking about drugs, or had allegedly seen students under the influence, one single incident in which the police had found “drugs or drug paraphernalia in a car driven by a Future Farmers of America member,” and one occasion in which “marijuana cigarettes” were found near a school parking lot—with no idea how they got there. Earls, 536 U.S. at 835. For this, all students involved in extracurricular activities were forced to undergo drug testing. Id.

0.  Earls, 536 U.S. at 834 (school drug testing); Sitz, 496 U.S. at 451–52 (drunk-driving roadblock).

0.  United States v. White, 401 U.S. 745, 756 (1971) (Douglas, J., dissenting).

0.  Bill Status: SB-914 Search warrants: portable electronic devices, http://leginfo.legislature.ca.gov/faces/billStatusClient.xhtml?bill_id=201120120SB914; Bill Status: AB-1327 Unmanned aircraft systems, https://leginfo.legislature.ca.gov/faces/billStatusClient.xhtml?bill_id=201320140AB1327