Monthly Archive: January 2026

Emergency Entry and the Fourth Amendment

by · Jan 14, 2026 2:24 pm

Here is a bit deeper dive on Case v. Montana, the U.S. Supreme Court emergency entry case that I noted briefly this morning. Although the high court affirmed the judgment of the Montana Supreme Court, it did so with a more limiting standard than the state court used. Three standards have been used by various courts, and the U.S. Supreme Court chose the middle one. The standard is unique to emergency cases, rejecting both looser and more restrictive standards derived from criminal investigation cases.

The emergency in this case was created when Case’s former girlfriend reported that Case had said during a phone call that he intended to kill himself. This was followed by a click that may have been a gun being cocked, a pop that may have been a discharge, and then dead air. This information, combined with Case’s history, make it hard to see how the state could have lost this case under any standard. The strong possibility that he had already shot himself but might be still alive and in need of emergency aid to save his life seems compelling.

The Montana Supreme Court thought that the “community caretaking” function of the police permits entry of a home in emergency situations “when ‘objective, specific and articulable facts’ would lead an ‘experienced officer [to] suspect’ that a person inside ‘is in need of help or is in peril.’ ” That is the minimal standard needed for the police to briefly detain someone on the street, known as a “Terry stop” for the 1968 case of Terry v. Ohio. The defendant wanted the much more restrictive standard needed for search warrants: probable cause. He cited cases from the D.C., Second, and Eleventh Circuits supporting that view.

In the 2006 case of Brigham City v. Stuart, the Supreme Court set out a rule for entry to a home in an emergency: “Police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.” Is the Brigham City standard equivalent to either the Terry standard or the probable cause standard? Continue reading . . .

SCOTUS Decides Double Punishment and Emergency Entry Cases

by · Jan 14, 2026 8:54 am

The U.S. Supreme Court decided two criminal cases today. In Barrett v. United States, the court decided that if a single act violates two provisions of a notoriously complex federal firearms statute the defendant can only be punished for one of them. In Case v. Montana the court confirmed that entry into a home for the purpose of emergency assistance requires only “an “objectively reasonable basis for believing that someone inside needs emergency assistance.” Probable cause is not required. “The probable-cause requirement is rooted in, and derives its meaning from, the criminal context, and we decline to transplant it to this different one.”

Both decisions are unanimous, although Justice Gorsuch declines to join one subpart of the Barrett opinion.

SCOTUS Softens Limits on Repeat Petitions by Federal Prisoners (But Not Much)

by · Jan 9, 2026 9:03 am

In the landmark Antiterrorism and Effective Death Penalty Act of 1996, Congress cracked down hard on repeated attacks on criminal judgments by state prisoners. It also cracked down on such attacks by federal prisoners, but whether the rules for federal prisoners are quite as severe as those for state prisoners is not clear from the language of the statute. Today the U.S. Supreme Court decided two lingering questions on the state-federal distinction in Bowe v. United States. The defendant won on both points.

The outcome is not too surprising. The Government agreed with the defendant on one of the points, and the court had to appoint an amicus to argue in support of the lower court decision. It is an honor to receive this kind of appointment, but victory is rare.

The crackdown on state prisoners is found in 28 U.S.C. 2244(b). Subdivision (1) flatly bars any do-over of a claim made in a previous habeas corpus petition. Subdivision (2) allows new claims, not previously made, only under very limited circumstances. Subdivision (3) requires a state prisoner seeking to file a second or successive petition to first get permission from the court of appeals, and paragraph (3)(E) forbids petitions for rehearing (by either the panel or full court of appeals) or certiorari (in the Supreme Court) to review the decision on whether to grant it.

Federal prisoners file under a different statute, 28 U.S.C. 2255. Subdivision (h) is the repeated attack crackdown. It requires a second or successive motion to be “certified as provided in section 2244 by a panel of the appropriate court of appeals to contain” either newly discovered evidence proving innocence or a new, retroactive rule of constitutional law. The distinction between do-overs and new claims in section 2244(b)(1) and (2) is absent. Does the language “as provided in section 2244” incorporate that section’s flat bar on all do-overs? Does it incorporate the bar on Supreme Court review of the certification decision? No and no. Continue reading . . .

Autism’s Crime

by · Jan 2, 2026 10:40 am

The news is full of stories of rampant fraud surrounding autism treatment programs. A former AUSA, has covered it on X, noting that prosecutions have been ongoing for some time.  But are there larger lessons to be learned?

Well, one question that ought to be asked is whether there is an autism epidemic.  It’s funny how the media operates these days.  With President Trump in the White House, Scientific American published an article back in April of last year that lays out many good reasons to question the numbers, given that Secretary Kennedy made autism a priority.  It notes, correctly, that the diagnostic criteria have broadened considerably over the years.  These changes also included allowing simultaneous diagnoses of ADHD with autism, which was previously disallowed.  It also reports on a study that observes a decline in the diagnosis of intellectual disability while the rates of autism soared.  But then there’s this:

Another piece of evidence for changes in diagnosis explaining a large difference in the prevalence of autism is that autism rates vary widely from state to state in the U.S. The state with the highest prevalence of autism is California, with a rate of 53.1 per 1,000 eight-year-olds, while the one with the lowest prevalence is Texas, with a rate of 9.7 per 1,000 eight-year-olds. That’s a huge difference. But according to the CDC’s own report, it’s likely linked to California’s intense push for early screening and assessment.

The upshot: When the government puts money on the table, we get more of it.