Quotes from Erwin Chemerinsky

In a society with a long history of discrimination, there should be a presumption that many laws with a discriminatory impact likely were motivated by a discriminatory purpose.

It is often forgotten today that Plessy v. Ferguson was not an isolated Supreme Court decision. In case after case, the Court reaffirmed and upheld the ability of states to enforce apartheid.

Freedom of speech is essential to freedom of thought; it is essential to democratic self-governance; and the alternative-- government censorship and control of ideas-- has always led to disaster.

But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic. . . . The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." With relatively little elaboration,

Fourth Amendment, which requires a judge-issued warrant for an arrest; the Fifth Amendment, which requires a grand jury indictment before a person is held for trial; and the Sixth Amendment, which says that a person can be imprisoned only after conviction by a jury based on proof beyond a reasonable doubt.

Words can cause real harm and interfere with a person's education. Campuses have a duty to act-- sometimes legally, always morally-- to protect their students from injury.

Campuses can never punish or censor the expression of ideas, however offensive, because otherwise they cannot perform their function of promoting inquiry, discovery, and the dissemination of new knowledge.

My thesis is that through most of American history, the Court has usually refused to impose constitutional checks on police or to provide adequate remedies for police misconduct. Instead, it has created a series of legal rules that fail to protect citizens' constitutional rights and that facilitate and even encourage racist policing.

For almost a century after the Slaughter-House Cases, the Court followed this narrow reading of the Equal Protection Clause and refused to use it to stop other types of discrimination. For example, in 1875, two years after the Slaughter-House Cases, the Supreme Court held that it was constitutional to deny women the right to vote.

In 1977 Justice William Brennan wrote a famous article, published in the Harvard Law Review, that encouraged the use of state constitutions to protect constitutional rights.52 State constitutions, he argued, "are a font of individual liberties.

But the importance of the Supreme Court's silence should not be underestimated. By declining to enforce the Constitutions's limits on police conduct, the Court was empowering the police and letting officers know that they could violate the Constitution with impunity. And by failing to limit racist policing, the Courts allowed it to continue unchecked.

The Supreme Court has created a significant incentive for police to engage in unconstitutional stops without reasonable suspicion. And everything we know about policing in the United States leaves no doubt that people of color are most likely to be subjected to such stops.

States can provide more protection of rights under their constitutions than exists under the U.S. Constitution. To take a simple example, the Supreme Court has held that citizens have no First Amendment right to use privately owned shopping centers for speech purposes.57 But the California Supreme Court interpreted the state constitution to create a right in the state to use shopping centers for expression. The Supreme Court upheld this interpretation as permissible.

if a state supreme court explicitly says that it is relying on state constitutional law for its decision, and there is no federal issue, the Supreme Court cannot review the state court's ruling at all.

In California v. Hodari D. in 1991, the Court held that a person who is being chased by the police is not considered to be seized until he or she is actually tackled by the officer; chasing the individual does not constitute a seizure within the meaning of the Fourth Amendment.63 But fifteen states have rejected this idea and said that under their state constitutions, chasing a suspect is sufficient to constitute a seizure and thus requires at least reasonable suspicion.64

The Fourth Amendment protects people, not property, the Court stressed. A person's Fourth Amendment rights do not depend on where he or she is at the time of the government intrusion, nor on whether a physical trespass occurs.

suspects.85 What legislative reforms of policing are crucial? Five are especially important: (1) expand the liability standards for police officers and the departments that employ them; (2) outlaw particularly dangerous police practices; (3) authorize suits against federal law enforcement officials who violate the Constitution; (4) mandate data collection about policing; and (5) increase transparency as to policing

Fourth Amendment protection against a search has a "twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'"11

The statute also should make clear that an officer is liable, and qualified immunity is to be denied, if the officer had "fair notice" that the conduct was illegal; there need not be a case on point to deny qualified immunity.

Congress should eliminate absolute immunity for prosecutorial misconduct and for police officers who commit perjury.

Congress also should change the federal civil rights statute, 42 U.S. Code Section 1983, to hold cities liable for the misconduct of their police officers.

The Court held that police may obtain cellular location information—information that can be used to determine where a person was at a particular time—only if they have a warrant based on probable cause or if emergency circumstances justify allowing the search without a warrant.

Tracking the location of a cell phone for 127 days "provides an all-encompassing record of the holder's whereabouts, . . . which reveals the familial, political, professional, religious, and sexual associations."15 Roberts stressed once more that location tracking lets police learn the privacies of a person's life.

Despite Riley's efforts to protect his privacy on the ground, the Court said that he had no reasonable expectation of privacy from observation by a helicopter or a low-flying airplane.18