Computers, Privacy & the Constitution

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ShianneWilliamsFirstPaper 6 - 08 Jun 2024 - Main.EbenMoglen
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  The National Guard is a branch of the US military that serves both state and federal governments. At the state level, Governors have the authority to use the National Guard when responding to domestic emergencies. In other words, Governors can call on the National Guard to address a range of issues, from natural disasters to “civil unrest.” For example, during Hurricane Katrina in 2005, Louisiana’s governor deployed the National Guard to assist the disaster response and provide aid. Conversely, following the protests against systematic racism and police brutality in 2020, several Governors deployed the National Guard to "restore order” in their respective cities.
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<		 Furthermore, the United States Supreme Court has ruled that checkpoint searches are not inherently unconstitutional. More specifically, in Michigan v. Sitz, the Court held that police sobriety checkpoints aimed at combating drunk driving do not violate the 4th Amendment’s protection against unreasonable searches and seizures. The Court reasoned that the state's interest in preventing drunk driving was substantial and that the effectiveness of the checkpoints in achieving this goal justified the intrusion on an individual's privacy. After employing a balancing test weighing the state's interest and effectiveness of the checkpoints against the degree of intrusion, the Court ultimately found that the checkpoints were constitutional.
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You should have shown the statutory authorities involved, both federal and state,

Furthermore, the United States Supreme Court has ruled that checkpoint searches are not inherently unconstitutional. More specifically, in Michigan v. Sitz, the Court held that police sobriety checkpoints aimed at combating drunk driving do not violate the 4th Amendment’s protection against unreasonable searches and seizures.

Butt these aren't checkpoint searches, and you haven't explained what the actual orders to the Guard are.

The Court reasoned that the state's interest in preventing drunk driving was substantial and that the effectiveness of the checkpoints in achieving this goal justified the intrusion on an individual's privacy. After employing a balancing test weighing the state's interest and effectiveness of the checkpoints against the degree of intrusion, the Court ultimately found that the checkpoints were constitutional.

  However, in City of Indianapolis v. Edwards, SCOTUS clarified that these checkpoint searches cannot be used for general crime control. In a 6-3 decision, the Court held that roadblocks established for the sole purpose of detecting illegal narcotics were unconstitutional under the 4th Amendment. The Court explained that the relationship between these roadblocks and public safety concerns was too attenuated to be constitutionally permissible. This case emphasized that any kind of checkpoint searches must be closely tied to immediate public safety concerns rather than general law enforcement crime deterrence objectives.
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 Lastly, the Posse Comitatus Act prohibits the use of federal military forces to enforce domestic policies within the United States except when specifically authorized by the Constitution or Congress. While the National Guard operates under the authority of state governors when not federalized, concerns may arise if their role in law enforcement blurs the lines set by this act. The deployment of the National Guard in civilian contexts is subject to scrutiny to ensure it does not overstep into areas traditionally managed by local law enforcement. While state activation of the National Guard for disaster relief and emergency response is well-established, using them in routine law enforcement roles, such as subway bag checks, could be legally contentious if perceived as an overreach.
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This is where clear statutory analysis was required. Why no reference to statements by relevant civil liberties groups in NY? What's the history of such uses of the Guard in NYC?

 

Conclusion

While ostensibly aimed at enhancing public safety, Hochul's deployment of the National Guard raises serious concerns regarding its legality and potential for unintended consequences. The intersection of state emergency powers, constitutional protections under the Fourth Amendment, and federal statutes like the Posse Comitatus Act create a unique legal landscape that has the potential for scrutiny and 4th Amendment challenges. The deployment must be clearly justified as necessary for immediate public safety, with strict adherence to protocols and transparency to prevent abuses of power and ensure compliance with the law.
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What's the conclusion here, really?

A good first draft. There's way more that you can do in unearthing the law, and perhaps even in explicating the legal history.

 

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Revision 6r6 - 08 Jun 2024 - 17:24:43 - EbenMoglen
Revision 5r5 - 04 Jun 2024 - 04:25:55 - ShianneWilliams
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