Although I wasn’t planning to post any more on the Fifth Circuit cell-site case, I happened to notice that Magistrate Judge Smith recently posted a new essay on SSRN that is in significant part a response to my amicus brief and my criticisms of his decision. I thought it only fair to point readers to his paper and explore Smith’s argument in some detail. I’ll then offer my thoughts in response at the end.
In his essay, Standing Up for Mr. Nesbitt, forthcoming in the University of San Francisco Law Review, Smith argues that magistrate judges must “stand up” and protect ordinary citizens from “an increasingly surveillance-happy state” because “Congress and the Supreme Court have yet to do so.” None of the three branches of government are standing up to protect the ordinary citizen, Smith argues. The Executive Branch can’t regulate itself, and Congress has not addressed some important issues effectively. The Supreme Court has failed to step in, too, as it has hardly touched electronic privacy and it has expressed caution about its own role in recent decisions. With all three branches failing to protect the ordinary citizen, Smith argues, magistrate judges must step in and “play goalie for the missing side.” That is, magistrate judges must correct for the failures of the three branches by representing the side of the target of the investigation. He explains:
Almost by default, then, these matters have been left to the lowest limb of the Judicial Branch, the magistrate judge. Unlike the Supreme Court we don’t have the luxury of picking and choosing our cases, waiting until various appellate courts have weighed in with their considered judgment on difficult or novel issues of law. We are on the front lines, grappling hand to hand with the various, novel, and creative surveillance technologies deployed by law enforcement. . . . Under these circumstances, it necessarily falls to the magistrate judge to ensure that the target’s legal rights are respected. [The magistrate judge’s] role is not that of an umpire calling balls and strikes, but more like a referee in a one-sided soccer match forced to play goalie for the missing side.
Smith acknowledges that it is difficult to to decide cases in ex parte proceedings with no actual factual record, but he reasons he can do so under the legislative fact doctrine. The Supreme Court has relied on legislative facts outside the record in its major rulings on applying the Fourth Amendment to new technologies such as Berger v. New York, Smith v. Maryland, and Kyllo v. United States. If the Supreme Court can rely on legislative facts outside the record, Smith reasons, then magistrate judges should be able to create a record in an ex parte proceeding by doing their own Internet research and announcing the results of their research as “the facts”:
A magistrate judge forced to decide such questions as a matter of first impression need not hesitate to use the same tools, extra record or not, that appellate courts regularly employ for the same task. And the digital revolution has made that tool more powerful than ever, with massive amounts of information “just a Google search away.”
Smith then turns directly to my criticism of his decision. He begins by saying that I argued that “magistrate judges are never permitted, much less forced, to decide constitutional questions unless a statute expressly confers such authority.” I haven’t made such an argument, so I’m not sure exactly what he has in mind. Smith then directly addresses my argument that the issues are not ripe at the time of the application. Although Smith calls this argument “profoundly misguided,” he unfortunately does not address any of the case law or mention the Fifth Circuit’s ripeness standard. Instead, Smith makes three broader arguments for why he believes he has the power to rule on the constitutionality of the execution of the search at the time of the application for a 2703(d) order.
First, Smith argues that warrant applications are inherently prospective, so the fact that magistrate judges can rule on probable cause and particularity in warrant applications implicitly confers power to rule prospectively in Fourth Amendment cases generally. Second, Smith argues that the Supreme Court’s scheme of remedies are inadequate to protect privacy if magistrate judges don’t rule prospectively: Supreme Court doctrines limiting the scope of the exclusionary rule mean that appellate courts are not in a place to adequately protect privacy. Third, Smith argues that the absence of any other legal actor and the judicial oath requires magistrate judge to “stand up” for targets of investigations:
Magistrate judges swear an oath to uphold the Constitution, the same judicial oath taken by Article III judges. When a federal agent walks into our chambers to request an electronic surveillance order, there is nobody there but us to make sure the Constitution is followed. If we sign a warrant that in our considered opinion violates the Fourth Amendment, then we have violated our solemn oath.
I think Judge Smith’s perspective is fascinating, and I appreciate his response and attentiveness to academic criticism. At the same time, I think his perspective is deeply misguided. Judge Smith assumes that if none of the three branches of government created by the Constitution are protecting privacy in ways that he finds sufficient, then he has an inherent power to intervene and restore balance. He thus envisions magistrate judges as a kind of Fourth Branch that can and should step in when the other three branches of government are not doing enough. They can “stand up” for privacy when the three branches of government haven’t acted yet. I have a lot of respect for the hard-working magistrate judges in our federal system, but Smith’s understanding flips the tripartite scheme of the United States Constitution on its head. Magistrate judges are only adjuncts to Article III judges. They don’t have the power to enact corrective rules in response to Supreme Court decisions that they personally find inadequate or statutes that they don’t think have been amended by Congress with appropriate speed.
I’ll go into more detail on the problems with Judge Smith’s analysis below the fold…
First, Judge Smith appears to misunderstand the difference between legislative facts and adjudicative facts. In Judge Smith’s telling, adjudicative facts are facts about a particular case, while legislative facts are “generalized facts about the world.” Smith thus uses the ex parte nature of the application process to take the adjudicative facts as to how the Fourth Amendment will apply and to just re-label all the facts as legislative facts. That is, since Smith doesn’t actually know the facts of this particular case, he applies the law to a generalized set of facts that he images are the usual facts. Because the generalized set of facts are not based on any specific case, he calls those facts “legislative facts” and he applies the law to the legislative facts to reach his holding. But this is just sleight of hand, not legal analysis. Under Fifth Circuit precedent on the distinction, legislative facts are facts that are universally true, while adjudicative facts are facts that can vary from case to case. See United States v. Bowers, 660 F.2d 527, 531 (5th Cir. 1981). By denying the order because the Fourth Amendment will be violated based on the facts he has announced, Judge Smith is obviously treating those facts as adjudicative facts — that is, facts that are being taken as the facts in this case but that might be different in other cases. Because then facts he announces are treated as the factual record in the case, and the facts over which the law is applied, they are adjudicative facts rather than legislative facts.
Second, Judge Smith’s argument about search warrants being prospective is also erroneous. Smith ignores the critical difference between the facial validity of an application for an order and the lawfulness of the order’s execution. See United States v. Grubbs, 547 U.S. 90, 97–99 (2006) (holding that ex ante restrictions on searches pursuant to warrant must be limited to the facial requirements of particularity and probable cause, with an ex post right “to suppress evidence improperly obtained and a cause of action for damages” based on the unlawful execution of the search). Facial validity is an ex ante check of the government’s interest in the case that is clear from the four corners of the application. In contrast, the lawfulness of an order’s execution requires an ex post fact-specific analysis of specifically what the police did in when they carried out the order. See Kerr, Ex Ante Regulation of Computer Search and Seizure, 91 Va. L. Rev. 1241 1291-2 (2010). Of course magisrtrate judges have to ensure that applications are facially valid ex ante. Thus, in the case of a warrant, they need to determine if the affidavit establishes probable cause and the proposed warrant is sufficiently particular; in the case of a 2703(d) order, they need to determine if the application established specific and articulable facts; and in the case of a pen register order, they need to determine if the required certification has been made. But these ex ante checks are not prospective. Rather, they are limited to whether the application satisfies the relevant facial requirements of the order, regardless of how the order will be executed.
Third, Judge Smith’s point about the judicial oath and the need to follow the Constitution misses the point entirely. The limits of Article III are just as much a part of the Constitution as the Fourth Amendment is. Indeed, the limits on Article III are the parts that regulate judges directly: They make it a violation of the U.S. Constitution for judges to rule on disputes that are not ripe. The idea that Judge Smith cannot be cabined by ripeness doctrine in his efforts to protect the Fourth Amendment is akin to arguing that Judge Smith must violate the Constitution in order to save it. Surely that can’t be right.
Anyway, we’ll know soon enough what the Fifth Circuit thinks of this: Oral argument is next Tuesday before Judges Reavley, Dennis, and Clement.