Monday, June 27, 2016

A Helluva Town

Maybe it's different in New York.  

I don't know.  I haven't lived in The City (that's Manhattan to you folks not from there, but then I never lived in any other part of New York City -or New York State, for that matter) since - well, I'm old and I was young then and left before I went to college which is decades before I went to law school.  So it's been a long time and what do I know?  As I said, maybe it's different there.

I get it that the buildings are taller and closer together and the streets are more crowded and it's the City That Never Sleeps and Wall Street and the (new) World Trade Center and still the Empire State Building and that gorgeous bit of Art Deco, the Chrysler Building, complete with gargoyles.

And Broadway and "Live from New York, It's Saturday Night."

I mean, sure, it's different that way.

But do they really have Law (note the uppercase) that works the way they teach it in law school? That Rule of Law thing?

Scott Greenfield, who practices there (though he lives out on The Island - which is Long Island beyond Queens, outside New York City), seems to think so. 

I'm talking about the Honorable Henry Coke Morgan, Jr.'s Opinion and Order in United States v. Matish.  No, wait, I'm talking about Greenfield's response to Morgan's opinion. No, that's not exactly right, either.  It's Greenfield's response to the responses of folks, like the Electronic Freedom Foundation's Mark Rumold, to Morgan's opinion.

Skip the complexities.  Morgan's dealing with whether to grant a suppression motion after a search based on a warrant.  He says no.  Then, as lawyers put it, he goes on a frolic, explaining that there's really no need ever for the government to get a warrant to search a computer because everyone knows that sooner or later all computers will be hacked.  And that means that nobody ever has a "reasonable expectation of privacy" in the stuff on the computer.

Which led to apoplexy.  Because 
Which is what Greenfield responds to.  Pointing out that Morgan's frolic is what lawyers call (in Latin to make it sound significant) a dictum -- something said but not technically precedential because not essential to the reasoning of the decision.  And it's not even a dictum, it's an obiter dictum, something even more removed, just an expression of the judge's opinion.  And he's a mere U.S. District Judge so his opinions, even the technically relevant parts, aren't really precedential.  And the By God U.S. Supreme Court says otherwise.  

So take that Rumold.  And you too, Judge Morgan, Jr.

All of that is what they teach in law school.  And maybe in the greener pastures where Greenfield lives (though New York, where he mostly practices, is more concrete than green, but I digress).

So yeah, maybe it's different in New York.

But I don't believe it.  Because Morgan's dumbass reveries (that's English for obiter dictum) will be quoted.  And the FBI and the DEA and the DOJ and Homeland Security and your local constabulary will believe.  And we'll argue about dictum and the obiter dictum and the precedent or lack thereof. Which is what we're trained to do and what we have to do.  And the judges, or at least many of them, will say, 
FUCKIN' A! We got us a good search.
And maybe the appellate courts will reverse after your computer is invaded and you maybe spend a few years in prison.  

Or maybe not.  

Because obiter dicta (that's the plural) or dicta (plural again) or technical precedential value be damned.  This is real world.  And it's the Law of Rule every bit as often as the Rule of Law. 

Except maybe in New York.


  1. Like it's my fault you live in Ohio.

  2. Jonathan EdelsteinJune 27, 2016 at 2:27 PM

    And of course, every search undertaken in reliance on such dicta will now be done in Good Faith (tm).

    1. Is there any sort of faith but the good sort for those dedicated to ridding our communities of miscreants who do not wear badges?