Orin Kerr

Florida court: We think the enactment of medical marijuana at the state level, and perhaps legalization of hemp at the federal level, means the smell of cannabis no longer generates probable cause, and we certify the question to the state supreme court.
flcourts-media.flcourts.gov/content/down...

CONCLUSION For the above reasons, this Court GRANTS Plaintiffs' Motion for Temporary Restraining Order, ECF 6, and temporarily enjoins Defendants' September 28, 2025, Memorandum ordering the federalization and deployment of Oregon National Guard service members to Portland. The TRO expires in fourteen days on October 18, 2025, and the parties are ORDERED to comply with the attached TRO. The Defendants' request to stay or administratively stay the Temporary Restraining Order, see Defendants' Opposition to Plaintiffs' Motion for Temporary Restraining Order, ECF 35 at 41, is DENIED. IT IS SO ORDERED DATED this 4th day of October, 2025 at 3:40 p.m. pacific daylight time. /s/ Karin J. Immergut Karin J. Immergut United States District Judge

NEW: Judge Immergut BLOCKS Trump's federalization of the Oregon National Guard, writing that the govt has "made a range of arguments that, if accepted, risk blurring the line between civil and military federal power—to the detriment of this nation." storage.courtlistener.com/recap/gov.us...

Just the timeline cleanse I needed.

The reply brief in Case v. Montana, the pending Supreme Court case on the standard of cause for entry under the emergency aid exception, has been filed. Oral argument is October 15th; blogging at Volokh coming soon.
supremecourt.gov/DocketPDF/24...

YouTube video by quintupla Joe Henderson - Y todavia la quiero

Joe Henderson, "Y Todavia La Quiero," from Relaxin' at Camarillo (recorded 1979), with Henderson on tenor, Chick Corea on piano, Tony Dumas on bass, and Peter Erskine on drums.
www.youtube.com/watch?v=5t-s...

MEMORANDUM OPINION By way of context, a federal prosecutor is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all. The obligation to govern impartially concerns, above all, the state's exercise of coercive power-meaning its power to deprive its subjects of life, liberty, or property... As a representative of the state, a prosecutor's exercise of coercive power must be impartial ... [in] that prosecutorial power may not be exercised vindictivelymeaning that the prosecutor may not punish a defendant for exercising a protected statutory or constitutional right. United States v. Zakhari, 85 F.4th 367, 384-85 (6th Cir. 2023) (Kethledge, J., concurring) (citations and quotations omitted). This context frames review of Defendant Kilmar Armando Abrego Garcia's ("Abrego") motion to dismiss his indictment for vindictive and selective prosecution. (Doc. Nos. 104-05). The Government opposes the motion (Doc. No. 121), and Abrego has replied (Doc. No. 127). Abrego's motion is not ripe for decision because he seeks discovery and an evidentiary hearing because there is some evidence of vindictiveness here. For the reasons that follow, the Court holds that the totality of events creates a sufficient evidentiary basis to conclude that there is a "realistic likelihood of vindictiveness" that entitles Abrego to discovery and requires an evidentiary hearing before the Court decides his motion. United States v. Andrews, 633 F.2d 449, 457 (6th Cir. 1980) (en banc), cert. denied, 450 U.S. 927 (1981).

NEW: Judge Crenshaw finds that the Trump admin's criminal prosecution of Kilmar Abrego Garcia may well be vindictive—and greenlights discovery and an evidentiary hearing. storage.courtlistener.com/recap/gov.us...

I think this was a successful paper academically, but it's a bit disappointing that, given its obvious doctrinal importance, it has been cited in a published judicial opinion only once.

From the paper.

This was published 10 years ago, and I believe it's still the leading article on the topic.
papers.ssrn.com/sol3/papers....

BREAKING: A second Trump-appointed U.S. attorney has been disqualified after a federal judge ruled her appointment invalid.

Sigal Chattah is out as US attorney in Nevada, just like Alina Habba in NJ: storage.courtlistener.com/recap/gov.us...

Quote of the day.
“This is going to be a big thing for the people in this room, because it's the enemy from within, and we have to handle it before it gets out of control. We should use some of these dangerous cities as training grounds for our military.”

Donald Trump to the assembled top brass.

The Digital Fourth Amendment: Privacy and Policing in Our Online World The Digital Fourth Amendment: Privacy and Policing in Our Online World [Kerr, Orin] on Amazon.com. *FREE* shipping on qualifying offers. The Digital Fourth Amendment: Privacy and Policing in Our Online World

"I've written about the 4th Amendment regularly for 45 years, all the while practicing law full time. Kerr gave me insights that got by me before. To this criminal defense lawyer, it is a new way of looking at 4th Amendment issues...."—John W. Hall, reviewing my book.
www.amazon.com/Digital-Four...

they were deemed equivalent in the law of assault, as I read it.

The reason it mattered what was an arrest at common law in Torres is that everyone agreed that an "arrest" was a seizure. So the technical common law meaning of arrests mattered. But why does that extend to assaults?

This is interesting, but I'm not sure I agree with it. The issue under Torres is what was an arrest. Touching the person with intent to arrest was an arrest. But I'm not sure why it matters what counted as an assault, as what is an assault is different from what is an arrest.

Firing bullets that hit a car is a seizure of its driver, even if the driver isn't stopped, CA11 holds, extending Torres v Madrid. Torres says we look to the common law, and back then, assaulting a horse or horse-drawn carriage was an assault on its rider.
media.ca11.uscourts.gov/opinions/pub...

It's interesting, when I was a law student, "make it up as you go SC" was taught as the smart person's ideal of Supreme Court decisionmaking. Perhaps that only applies to the Hawaii Supreme Court these days, tho. (I don't like it in any context, but I have little company.)
reason.com/volokh/2024/...

“Like this” is doing a lot of uncertain work in this reply. I think a better response is that the Hawaii Constitution and state law of procedure is entirely different than the federal system.

Creating a new right on an issue not even briefed by the parties, if I follow the opinion correctly— and then holding the unargued legal claim was plain error. Fascinating.

Officers get a warrant to search the residence at an address for evidence, and only on-site do they learn suspect lived in one of several apartments in the back of the residence. CA11, per J. Branch: The warrant was still valid under MD v. Garrison. media.ca11.uscourts.gov/opinions/pub...

Additional opinions:

Wecht, J., concurring and dissenting:
pacourts.us/assets/opini...

Donohue, dissenting:
pacourts.us/assets/opini...

Pa SCT: We're not going to adopt a special test for when courts can deem an area "high crime" to make flight from the scene more suspicious in the totality of the circumstances test, but courts should be cautious about the label and not invoke it lightly.
www.pacourts.us/assets/opini...

Trial Separation: Courtroom Lawyers Are Breaking Up With Big Law Top litigators are leaving elite firms to start boutique firms, a trend that is accelerating in the Trump era.

"Trial Separation: Courtroom Lawyers Are Breaking Up With Big Law," a very interesting WSJ story on prominent biglaw litigation partners starting boutique firms. Gift link:
www.wsj.com/us-news/law/...

Understood! Thanks.

No idea if this is right, but it’s pretty interesting speculation.

Samuel Alito and his Hot Five

Ah, from Chuck Rosenberg running E.D. Va. to self-appointed Smithsonian auditor running E.D. Va. in just 17 years.

Donald J. Trump # ¢ @realDonaldTrump Pam Bondi is doing a GREAT job as Attorney General of the United States. She is very careful, very smart, loves our Country, but needs a tough prosecutor in the Eastern District of Virginia, like my recommendation, Lindsey Halligan, to get things moving. What we don't need is a Democrat Endorsed "Republican." I will be nominating Lindsey Halligan to be the United States Attorney in this very important part of our Great Country. She will be Fair, Smart, and will provide, desperately needed, JUSTICE FOR ALL! 269 ReTruths 947 Likes 9/20/25, 7:51 PM A

Trump says he will be nominating one of his former personal defense lawyers, Lindsey Halligan, to serve as United States Attorney for the Eastern District of Virginia

Critical part of the President's new $100,000 charge for H1-B visas: The Administration can also offer a $100,000 discount to any person, company, or industry that it wants. Replacing rules with arbitrary discretion.

Want visas? You know who to call and who to flatter.

YouTube video by Freddie Hubbard - Topic Nostrand And Fulton (Remastered 2006/Rudy Van Gelder Edition)

Freddie Hubbard, "Nostrand and Fulton," from Here to Stay (recorded 1962, released 1976), with Wayne Shorter on tenor, Cedar Walton on piano, Reggie Workman on bass, and Philly Joe Jones on drums. What a band. www.youtube.com/watch?v=Xtdx...