Feb. 2, 2012

The Supreme Court has decided "Antoine Jones v U.S." You won and The State lost, 9-0. The High Court ruled unanimously that police must have a warrant before they can attach GPS tracking devices to your vehicles.

This is an historic decision and DC Downsizers merit much of the credit. You've helped fund many previous Supreme Court briefs, but never before has your influence been so clear. We had an impact with two different briefs at two different stages of the case . . . 

• First, we filed the ONLY brief asking the court to hear the case.
• Then we filed a brief making a uniquely principled argument. 

In the Petition brief, we urged the court to take the case, re-examine its Fourth Amendment jurisprudence, and restore the property basis of the Fourth Amendment. We wrote, "The original objective, property-based text and purpose of the Fourth Amendment should be revived and applied."

The Court responded directly. "Petition GRANTED. In addition... the parties are directed to brief... Whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent." (Emphasis added) 

That's YOUR victory.

But the second victory was even better. It may change judicial reasoning far into the future.

Our briefs asked the Justices to restore the 4th Amendment's protection of your property rights. For the past 43 years the Court's 4th Amendment decisions have been based on a right to privacy, NOT property. But the privacy protection is a much weaker standard. Our briefs, and ONLY our briefs, specifically aimed to restore the property right protection. 

 

Our argument prevailed! Look at what Justice Scalia wrote in his majority opinion . . .  

"The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to 'the right of the people to be secure against unreasonable searches and seizures'; the phrase 'in their persons, houses, papers and effects' would have been superfluous."

This was our point exactly.

Four other briefs mentioned property in passing. Ours majored in it. Only we asked the Court to make a fundamental course correction. Our strategy prevailed. As a result, the Jones decision even includes a frank admission of how far the Court has strayed from the Constitutional text:

"Our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century (but) our later cases... have deviated from that exclusively property-based approach" in favor of a more flexible, modernist analysis based upon the Court's perceptions of a "reasonable expectation of privacy."

This too shows the influence of our briefs. We explained the history of 4th Amendment jurisprudence and specifically argued for a return to the original text. This "history lesson" contributed to the majority decision:

"The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the Fourth Amendment when it was adopted."

In addition, we ALONE asserted the valiant proposition that it was NEVER possible for the government to attach a GPS to an automobile for the purpose of gathering general evidence. The Fourth Amendment does not permit "fishing expeditions." The author of another brief told me our position was "extremist." At this link you'll see why I thanked him for the compliment. 

Here's the key issue . . .

Throughout history, The State has been fond of issuing general warrants. Such "warrants" were fishing expeditions designed to quell and intimidate potential opposition. That's why the Framers specifically wrote the 4th Amendment to prohibit general warrants. Instead, warrants must be based on a specific and probable cause. They must also be particular about where the police can look and what is being sought.

Our brief made these points by focusing on a crucial English case from 1765, Entick v Carrington. This case was well-known to the Founders. It's been cited in two previous Supreme Court cases. Justice Scalia's majority opinion celebrates Entick as a "monument of English freedom," that explains "in plain terms the significance of property rights in search and seizure analysis."

Scalia continued: "Our law holds the property of every man so sacred, that no man can set his foot upon his neighbor's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbor's ground, he must justify it by law."

Scalia is echoing our UNIQUE historical argument based on Entick v. Carrington.  

Would the Court have returned to the property-based approach without our briefs? Who knows? All we know is that we were the only group to submit all the fundamental arguments that most guided this landmark ruling. Our fingerprints, YOUR fingerprints, are all over this decision.

And that stoked us to send a press release, touting your success.

You see, the Downsize DC Foundation took a lead role in funding this effort. Your contributions made this possible.

But we need to be ready to jump on other opportunities as they come up (e.g., we're hearing rumors of another opportunity in the Obamacare case).

Plus, hard-hitting legal briefs aren't the only thing the Foundation does. We also do educational work that is just as unique as the legal briefs we support. You can read it at our DownsizeDCFoundation.org blog.

I've already told you that we're going to be much more aggressive this year. We have a very modest goal -- average monthly income need to equal in dollars the number of subscribers to this list. With 32,119 subscribers, our goal is $32,119.

As January ended the combined income for the Downsize DC Foundation and DownsizeDC.org, Inc. was $12,596, which was not only short of our goal, but also shy of our budget.

To do better this month, some DC Downsizers could make generous one-time, TAX-DEDUCTIBLE contributions to the Downsize DC Foundation. Last year's largest donor gave $15,000, but lots of individual contributions of other amounts all combined to make a difference.  

To reach the goal in future months, please consider making a monthly pledge.   

Are you as inspired as I am by this landmark win? If so, please support this work, even if it's a $1 per month pledge. As you can see, we do a lot with a little.

Thank you to everyone who made this resounding victory possible,

Jim Babka

President

Downsize DC Foundation

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