​The Supreme Court will consider whether to hear the Project for Privacy and Surveillance Accountability’s petition in Torcivia v. Suffolk County on Nov. 10.
 
The Second Circuit Court of Appeals ignored the obvious application of a SCOTUS ruling in Caniglia against the police for entering the home of a New York man to confiscate his guns on the basis of the “community caretaking” exception to the Fourth Amendment. The Second Circuit affirmed the right to do the same to another man in New York State on a similar, but more malleable “special needs” doctrine – which is essentially any priority the government deems important.
 
PPSA hopes the Supreme Court grants its petition and takes this opportunity to reinforce the plain meaning of its ruling and the Fourth Amendment.

​Is a “special needs exception” to the Fourth Amendment much different from a “community caretaking exception?” PPSA filed a brief before the U.S. Supreme Court demonstrating that it is not.
 
The U.S. Supreme Court ruled in 2021 in Caniglia that the police acted improperly by entering a man’s home and confiscating his guns under the “community caretaking” doctrine – in which the police are making a “welfare check” rather than acting as law enforcement officers. The High Court saw through this precedent from the 1970s and ruled that supposedly “non-investigative” intrusions into a home are what they seem to be – plain violations of the Fourth Amendment.
 
To the astonishment of many legal observers, the Second Circuit Court of Appeals ignored this unanimous Supreme Court opinion in a nearly identical case. In Torcivia v. Suffolk County, the Second Circuit applied a flexible “special needs exception” to the Fourth Amendment. One familiar example of this exception is when authorities decide that some local requirement, such as curbing drunk driving with spot checks, is necessary. But this case did not involve a car on the highway: it involved warrantless entry into a home and the confiscation of a citizen’s lawfully-owned firearms.
 
The government responded to our petition for the Court to hear Torcivia with the straight-face argument that the community caretaking exception is not the special needs exception. No one claimed it was. But we told the Court that the “logic underlying the special needs exception is indistinguishable from the logic this Court rejected in Caniglia.”
 
Our brief demonstrates to the Court that absent emergency circumstances or consent, if the “government can overcome the warrant requirement that has traditionally protected the home merely by pointing to an interest that the government feels is sufficiently strong, then the Fourth Amendment no longer serves as a meaningful limit on government power.”
 
We added:
 
“Respondents cannot escape that the Second Circuit applied the special needs exception to a seizure of firearms located in the home of a person not on probation or parole. That extension cannot be squared with this Court’s precedents or with the text, history, and tradition of the Fourth Amendment.”

New amicus briefs supporting the petition for certiorari filed by PPSA in Torcivia v. Suffolk County urge the U.S. Supreme Court to hear the case. The Torcivia case asks whether the police can, citing a special need, gain warrantless access to a home. One of the briefs is a clear statement of principle, the other a fascinating history of the ancient, colonial, and early U.S. law upholding the inviolability of the home.
 
The case involves a New York State man, Wayne Torcivia, who was sent for a psychiatric evaluation after a domestic disturbance call. Torcivia had no history of mental illness, violence, or suicide attempts, but was nevertheless sent to a hospital for a psychological evaluation. When he was cleared to return home by psychiatrists, Torcivia had to negotiate with police to give them warrantless access to his gun safe.
 
The Second Circuit Court of Appeals upheld the warrantless entry under a “special needs exception.”
 
The amicus brief from the New Civil Liberties Alliance neatly summarizes the essence of this case. The NCLA brief notes that the Second Circuit distinguished the “special needs exception” from the similar “community caretaker” warrant exception in Caniglia v. Strom. Late last term, the Supreme Court in a 9-0 decision struck down that justification. NCLA writes:
 
“As in Caniglia, officers have made home entries and seizures when there was time to obtain the review, and authorization, of a magistrate.”
 
NCLA noted there was no “exigency” or emergency circumstances. Torcivia was in the hospital and his guns were locked in his safe, posing no immediate danger to himself or to others. NCLA concludes:
 
“The ‘special needs’ concept is unnecessary and the source of confusion. The rule consistent with the Fourth Amendment’s right of the people to be secure in their homes is straightforward and clear: absent exigency or homeowner consent, the executive may not enter a home and seize property without a warrant—which ensures authorization from a neutral and detached magistrate.”
 
Another brief, from the Firearms Policy Coalition and FPC Action Foundation, offers a review of the history of the concept of the sanctity of the home, starting with the Roman lawyer and political philosopher Marcus Tullius Cicero. Cicero asked: “What is more sacred, what more inviolably hedged about by every kind of sanctity, than the home of every individual citizen?”
 
FPC traces the Castle Doctrine to a case in 1499, the first decision to assert that a man’s home is his castle. The brief goes on to trace colonial resistance – sometimes violent – to the intrusions of sheriffs, constables, and British tariff officials. And it documents the intense debate by the framers of the Constitution of the need for a Bill of Rights, including what we now call the Fourth Amendment.
 
Together, the two briefs combine to make a perfect argument. One upholds the immediate and logical conclusion that the Second Circuit’s decision flies directly in the face of Caniglia, while the other details the philosophical underpinnings of the Fourth Amendment.

​In a 6-3 decision today, the U.S. Supreme Court granted U.S. Customs and Border Patrol agents who violate the Fourth Amendment and other provisions of the U.S. Constitution almost total immunity from lawsuits. This ruling shrinks the scope of Bivens v. Six Unknown Agents (1971), in which the Court held that a “violation of [the Fourth Amendment] by a federal agent acting under color of his authority gives rise to a cause of action for damages.”
 
In January, PPSA had filed an amicus brief on behalf of Robert Boule in his quest to obtain justice after being warrantlessly searched and manhandled by Border Patrol Agent Erik Egbert near the Canadian border.

PPSA had noted that since the Magna Carta, the right to sue the Crown for a violation of one’s rights has been a basic principle of English law. Shortly after the American Revolution, U.S. federal courts recognized a common-law right of individuals to sue government officials for damages to remedy violations of foundational law. As English jurist William Blackstone noted, it would be an “absurdity in any system of positive law, to define any possible wrong, without any possible redress.”

Similar logic appears in the sharp, though partial dissent of Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan. She noted the extent to which Bivens has been narrowed. Justice Sotomayor wrote:
 
“Respondent Robert Boule alleges that petitioner Erik Egbert, a U.S. Customs and Border Patrol agent, violated the Fourth Amendment by entering Boule’s property without a warrant and assaulting him. Existing precedent permits Boule to seek compensation for his injuries in federal court …
 
“The Court goes to extraordinary lengths to avoid this result: It rewrites a legal standard it established just five years ago, stretches national-security concerns beyond recognition, and discerns an alternative remedial structure where none exists. The Court’s innovations, taken together, enable it to close the door to Boule’s claim and, presumably, to others that fall squarely within Bivens’ ambit.”
 
Justice Sotomayor was clear that she does not believe that today’s ruling overrules Bivens. But, she wrote, “it nevertheless contravenes precedent and will strip many more individuals who suffer injuries at the hands of other federal officers, and whose circumstances are materially indistinguishable from those in Bivens, of an important remedy.”
PPSA will remain alert to other efforts to curtail Americans’ ability to protect their rights by suing law enforcement officers when they violate the law.