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Panel II: Criminal Justice
Cato Institute — 25th Annual Constitution Day Conference
Panelists:
- Mike Fox, Legal Fellow, Cato Institute
- John Wrench, Assistant Director of the Center for Judicial Engagement, Institute for Justice
- Jonathan Wroblewski, Lecturer on Law, Harvard Law School
Moderated by Laura Bondank-Harmon, Manager of Legal Programs and Managing Editor of the Cato Supreme Court Review, Cato Institute
Panel Introduction
Laura Bondank-Harmon: Thank you all for joining us today, and thank you to our panelists for being here and participating in today’s conversation. Before I introduce our esteemed panelists, I want to let the audience know that we’ll have time at the end for audience Q&A, both in person and online, so start thinking about your questions.
This panel, as you can probably tell from the title, is about criminal justice. Last term, the Supreme Court ran the gamut on cases regarding the rights of criminal defendants. It decided cases implicating police search authority, common plea bargaining practices, and the government’s power to prosecute a marijuana user for owning a firearm. Our panelists here will discuss those three cases today.
First, I’d like to introduce the person directly to my right, John Wrench. John is Assistant Director of the Center for Judicial Engagement at the Institute for Justice. His work focuses on educating the public about the role of courts in enforcing constitutional limits on government. His Fourth Amendment scholarship examines the relationship between history and modern doctrine, and his article, “The Original Meaning of ‘Searches,’ ” is forthcoming in the University of Pennsylvania Journal of Constitutional Law. Wrench was counsel of record on IJ’s amicus brief supporting the petitioner in Chatrie v. United States. Previously, Wrench spent five years litigating constitutional cases at IJ, including a challenge under the Iowa Constitution to suspicionless rental home inspections. His writing has appeared in SCOTUSblog and The Dispatch, and he hosts IJ’s Unpublished Opinions podcast. Wrench received his JD from Case Western Reserve School of Law.
Next is Jonathan Wroblewski. He is a lecturer at Harvard Law School and directs its Semester in Washington program. From 2008 to 2024, he served as Director of the Office of Policy and Legislation in the Criminal Division of the Department of Justice. In that capacity, he oversaw a team of attorneys and policy experts in developing and evaluating national crime, sentencing, and corrections policy. He has also served on the U.S. Sentencing Commission, the Judicial Conference of the United States’ Advisory Committee on Criminal Rules, various other policy boards, and as Acting Assistant Attorney General for the Office of Legal Policy. He began his legal career as a public defender, then later served as a prosecutor for the Department of Justice’s Civil Rights Division. He has taught as an adjunct professor at George Washington and George Mason law schools, and he manages the Sentencing Matters Substack and serves as co-managing editor of the Federal Sentencing Reporter.
And last but not least is Mike Fox. Mike is a legal fellow in the Cato Institute’s Project on Criminal Justice. His areas of interest include the role of juries, overcriminalization, police accountability, and coercive plea bargaining. Before joining Cato, Fox served as a Colorado public defender and worked for the Senate Committee on Homeland Security and Governmental Affairs Subcommittee on Government Operations and Border Management. He received his BS in political science from Northeastern University and his JD from Suffolk University Law School.
Welcome, you guys, and thank you again for being here. Now, John, I’d like to start with you — you’re here to talk about the Supreme Court’s decision in Chatrie v. United States.
Chatrie v. United States — Geofence Warrants
John Wrench: Yeah, so thanks, Laura, and thanks to Cato Institute. It’s great to be here to celebrate Constitution Day. I’m going to be discussing the Court’s decision in Chatrie. Chatrie was a significant Fourth Amendment decision that came down in the last couple days of the Court’s term, and the question there was whether police officers violated the Fourth Amendment by accessing, through a geofence warrant, a Google user’s location history information. There’s a lot packed into that, and I’ll touch on it as I dig into the case. I’ve written a piece in connection with this that’s in the Cato Supreme Court Review — if anyone’s interested, I go into some of the nitty-gritty there in more detail. It’s titled “Chatrie and the Roberts Court’s New Cats.”
So Chatrie arose out of a 2019 robbery of a credit union in Midlothian, Virginia. A guy walked in, brandished a firearm, and walked out with a little bit less than $200,000. Detectives hit a dead end after a few weeks, but they noticed there was some video surveillance footage outside the credit union that appeared to show the man talking on a cell phone as he walked up. So they thought, “We’ll apply for a geofence warrant.” A geofence warrant is a unique kind of warrant designed to compel companies like Google to produce their users’ location history information.
A little bit about what Google location history is: it’s an optional service Google users can activate — you have to opt in on your device — and once you do, it tracks your movements about every two minutes and places you within about 20 meters of the device. Google users could access their own location history to look it up and review it — for various reasons, like “I went to a restaurant, I want to see what restaurant that was, I forgot the name,” things like that. Once activated, though, everybody’s location history information was stored, at the time (until about July of 2025), in a centralized database on Google’s servers called SensorVault. SensorVault contained every user’s location history information — so you can see why a detective might be keen on accessing a centralized, searchable database containing hundreds of millions of users’ precise location history information. And that’s exactly what geofence warrants were designed to do.
The thing with geofence warrants is they have a multi-step process that’s quite unusual for a warrant. Law enforcement officers started serving Google with geofence warrants; Google was the only company known to respond to them, and as they started receiving them, Google worked with law enforcement to create a three-step process. I won’t go into too much detail on the steps, but here’s what you need to know: the warrant in Chatrie was based on this three-step template. Essentially, law enforcement draws a circle around where the crime occurred — in this case centered on the credit union. The circle, the “geofence,” can be different sizes; this one encompassed the credit union, a nearby church, its parking lot, and a nearby wooded area. The multiple steps of the warrant compel Google to produce increasingly identifying information. At step one, officers get every device that fell within the geofence during a particular date and time — so you’re starting broad and narrowing from there to identify a suspect. In Chatrie, the geofence warrant covered half an hour before the robbery and half an hour after; nineteen devices fell within it, and at that first step, the information is anonymized. At step two, the officer has discretion — which might sound strange — to pick through the devices that came back at step one and ask for more information on some of them; here, they got more location information for nine devices. At step three, officers can compel Google to produce identifying information for a further subset of users — in Chatrie’s case, three different users whose names were revealed, one of whom was Okello Chatrie. He was charged with robbery and related firearms offenses and entered a conditional guilty plea.
Just to pause there — because you’re starting from a place and capturing everybody in it, if you were sitting in that nearby church, or in the parking lot, you were swept up in this investigation, and your location history was handed to law enforcement simply because you were in a particular place at a particular time.
So Chatrie argued that accessing his location history information violated his Fourth Amendment rights, in essentially three layers. First, that he has a constitutionally protected interest in his location history — under two theories, a property interest in it, and a reasonable expectation of privacy in it. Second, that because the government needed a warrant, and this warrant lacked probable cause and particularity, the warrant was invalid under the Fourth Amendment. And third, that the evidence obtained through it should be suppressed under the exclusionary rule.
I won’t trace Chatrie’s full path to the Supreme Court, though it’s extremely interesting and I’d encourage you to look at it — it was not clean, with lots of different rationales along the way. But I’d note that his case eventually reached the Fourth Circuit, which went en banc — meaning, for the non-lawyers, instead of being heard by a three-judge panel, it was heard by all the judges on that circuit — and the Fourth Circuit split seven to seven on whether accessing location history constituted a Fourth Amendment search. That split was largely due to disagreement over how to interpret the Supreme Court’s 2018 decision in Carpenter.
Carpenter looms large in the background of what the Supreme Court will ultimately say in Chatrie. In Carpenter, in 2018, the Court had held that people have a reasonable expectation of privacy in the whole of their physical movements, and that the government had invaded that interest by accessing seven days’ worth of historical cell-site location information — a different kind of cell phone location data. The Court in Carpenter also declined to apply the “third-party doctrine,” which, as a general rule, means you lose an expectation of privacy whenever you expose information to a third party — a bank, a phone company, or, the government would later argue in Chatrie, Google. Carpenter was a big deal, but it also left some things open. The Court called the decision “very narrow” and left open whether accessing less than seven days of cell phone location history would still implicate the Amendment — creating a bit of a puzzle: how many grains of sand does it take before you have a pile of sand? People came to call this the “mosaic theory,” which is very confusing, and Carpenter left it open without resolving it. The other thing Carpenter left open is what happens when someone takes an affirmative act — like activating a service — that results in sharing that information. Chatrie raised both of those problems.
The Court granted review and limited it to one of the questions presented: whether executing the warrant violated the Fourth Amendment. They didn’t take up the question of whether the exclusionary rule applies, which made it a bit of a cleaner case. The Court answers part of that question in its decision — whether accessing his location history information was a Fourth Amendment search — but remands to the Fourth Circuit the question of whether this particular warrant violated the Fourth Amendment.
The majority opinion is authored by Justice Elena Kagan and joined by Chief Justice Roberts and Justices Kavanaugh, Sotomayor, and Jackson — five votes for the rationale — although Justice Gorsuch files a concurrence in the judgment: he agrees with the outcome but for different reasons.
I think there are three big takeaways from Chatrie. It’s a deceptively simple decision — the Court presents it as just an application of Carpenter, but I think there’s much more going on than that.
The first big takeaway is methodological. Before the Court even gets to the Fourth Amendment analysis, it explains that it will apply Katz’s “reasonable expectation of privacy” analysis to determine whether Chatrie had a constitutionally protected interest in his location history. What’s important here is subtle — it’s something that first appeared in Carpenter eight years ago: in describing how it determines whether someone has a reasonable expectation of privacy, the Court in Carpenter, and now again in Chatrie, says, “We are going to look to founding-era principles that have always guided that analysis” — principles the Court describes as “protecting the privacies of life against arbitrary power” and “putting obstacles in the way of a too-permeating police surveillance.” The Court then points to a kind of growing canon of cases illustrating that approach in practice: Kyllo, a case about thermal imaging; Riley, which is actually not a reasonable-expectation-of-privacy case, but a different area of Fourth Amendment doctrine; and Chatrie adds Carpenter to that list. I think the interesting thing about the methodology is that the Court points to these cases as standing for the idea that it is confronting precedents and doctrine containing rationales the Court has declined to mechanically apply to new situations, because mechanically applying them would conflict with these founding-era principles it says are infused into the reasonable-expectation-of-privacy test. I find a lot of that laudable. I also think that when the Court says, in a footnote, that it’s been “faithfully applying Katz” for some sixty years, that’s maybe a little too clean. I think what’s actually going on is that the Court is, in a subtle but potentially seismic way, giving a slightly different account of how courts should determine whether someone has a reasonable expectation of privacy — nudging away from what’s often been criticized as an open-ended, subjective balancing test used to strike some perfect balance between constitutional rights and the needs of the police, toward something more like how the Court handles constitutional adjudication in other contexts: figuring out what your constitutional right is, without treating it as the Court’s job to determine whether that right makes the government’s job harder.
The second takeaway, which influences the rest of the opinion and I think will have a major impact on doctrine, is in how the Court answers what Chatrie has a reasonable expectation of privacy in. Instead of saying, as in Carpenter, “You have a reasonable expectation of privacy in the whole of your movements,” which seven days of CSLI invades, the Court says Chatrie has a reasonable expectation of privacy in location history information as a category. That’s a big deal, because it means that whether you accessed a minute of location history, or eighteen minutes, or two hours, or seven days is irrelevant — location history is protected by the Fourth Amendment as a category. This is a pretty big shift from how Carpenter described the interest, and it helps us understand Carpenter in retrospect too — it makes Carpenter more understandable as actually being a case about CSLI being protected as a category of information. One of the government’s main arguments was that accessing only two hours of location history didn’t rise to the level of “the whole of your physical movements” — but once you’ve defined the protected interest as being in the category of location history, it doesn’t matter how much you accessed; you needed a warrant in the first place. The Court isn’t playing a durational line-drawing game — was it a minute, is a minute constitutionally relevant, is ten minutes, is an hour? It says that’s not the question; the question is whether you have a protected interest in that kind of information. That will have a significant impact, especially on the fallout from Carpenter, where courts and litigants have been puzzling over what to make of it.
The third and final thing is how the Court deals with the third-party doctrine — the idea that what you expose to a third party, you lose a reasonable expectation of privacy in — and that’s quite significant. You might ask what’s left of the third-party doctrine after Chatrie, because the Court’s rationale isn’t “well, this information was automatically generated,” which was one of the rationales in Carpenter. Instead the Court says, essentially, “Look, it’s a phone, it has apps on it, I want to use the service, so I activated it.” Does that in itself provide some kind of knowing, voluntary consent that Google — let alone the government — is going to look through all of your information? The Court is operating from what a reasonable user believes they’re doing, and essentially saying: don’t overread what someone is doing by activating an app or engaging in a commercial transaction with a business. Often it’s for a limited purpose, and it’s certainly not someone surrendering all of their location history, potentially for years, to the government for any purpose. It’ll be interesting to see what’s left of the third-party doctrine after that.
And then, just in closing — I think one of the most interesting things about Chatrie, and really Chatrie and Carpenter together, if you zoom out, is that these cases give you an example of the Court thinking about the Fourth Amendment maybe a little more as it’s written — some might think that ironic if you don’t like the Katz test — thinking of the idea that the Fourth Amendment protects “the right of the people to be secure,” which is not limited to criminal investigations. It’s easy to think of Fourth Amendment cases as all being about motions to suppress, since that’s how most of them are litigated. But these cases draw you out of that, and I think what they show is that, especially in an era of mass surveillance, the Court is dealing with surveillance techniques that threaten the security of ordinary people going about their day — sitting at church, next to a credit union, or things like that. I think the Court is increasingly concerned that many of the decisions that predate the Roberts Court, if extended, are a threat to that right to be secure. My piece explores a lot of this in more depth, but I think the Court is going to keep exploring it over the next several years.
Laura Bondank-Harmon: Thank you, John. Now, Jonathan — we just heard a lot about what the police are allowed to do during the investigation part of a criminal case. But what happens after the defendant’s charged? How much power does the government have, especially in terms of something like plea bargaining? Can you tell us a little bit about what the court said?
Hunter v. United States — Plea Bargaining and Appeal Waivers
Jonathan Wroblewski: Yeah, I’m thrilled to be here, and happy to do that. But let me say first — thank you, Laura.
Laura Bondank-Harmon: Oh, of course.
Jonathan Wroblewski: And thank you to everyone at Cato for inviting me to be part of this conference, and to write for the Review — it’s a genuine honor.
I’m going to talk about a case called Hunter v. United States. It was decided in mid-June by the Supreme Court, eight to one. That looks like a pretty simple, straightforward, nearly unanimous case — I think it’s much more complicated than that. The folks at SCOTUSblog and lots of other commentators see this as, some have said, the most important criminal case of the term. Even they would say that’s not because of what was actually decided, but for what it tells us about what’s likely to happen going forward with the entire criminal justice process. Candidly, I’m not so sure it’s all that important, and I’m not so sure what these commentators say will happen will actually come to fruition — I’ll explain why over the next five or ten minutes. But first, a little about the case.
It involves a man named Munson Hunter, charged in the Southern District of Texas — Houston, which runs from Houston to Brownsville. The case itself is quite ordinary — nothing unusual about charging a man with fraud. He was charged with ten counts of fraud. Also not unusual: when prosecutors bring charges in the federal system, they rarely bring just one count — they’re always looking for more, since ten counts sounds a lot worse than one. There was one scheme Mr. Hunter was involved with, but they charged him with ten counts of bank and wire fraud. And, also not unusual, Mr. Hunter agreed to plead guilty. For those who don’t know much about the federal system: almost everyone pleads guilty. About sixty-five thousand people are charged with felonies and Class A misdemeanors in the federal system every year, and ninety-seven percent of them plead guilty. There are very few trials — a lot of people justify the plea bargaining process because we can’t have too many trials. In fiscal year 2025, there were a total of about fifteen hundred trials in the federal system. To give you a sense of what that means: there are around a thousand federal district court judges, active and senior. So every judge tried about one or two cases a year — not a month, not a week, a year. Our system is mostly about plea bargaining.
Mr. Hunter pled guilty, and there was a plea agreement — a typical one: “We will drop nine of the ten charges if you plead guilty to one of those charges.” Again, not unusual, and it included something called an appeal waiver. Part of the appeal waiver makes a lot of sense, and part of it is controversial — that’s what the Supreme Court ultimately took up. What’s not controversial: he’s admitting guilt, so he’s saying “I’m not going to file an appeal about my conviction.” That’s uncontroversial to me. But the appeal waiver also said he wouldn’t appeal anything related to his sentence. Remember, the guilty plea happens before the sentence — you don’t know what’s going to happen at sentencing, and you agree to give up your right to appeal it anyway. In years past that wouldn’t have been a big deal, because there wasn’t much law around sentencing. But over the last forty years, there’s now a lot of law around sentencing — the Constitution, of course, and it was actually involved in Mr. Hunter’s case; there’s the Sentencing Reform Act; the First Step Act; the Federal Sentencing Guidelines, which, if you haven’t seen them, run about 600 pages full of algorithms about criminal history and offense severity. There’s a lot of law and a lot of complexity at the sentencing phase. And Mr. Hunter agreed, again as part of a usual plea agreement, not to appeal what happened at sentencing.
But something happened at sentencing that he wasn’t happy with. He was sentenced to prison — again, very typical; 80 to 85 percent of federal defendants are sentenced to prison. But for those released from prison, you’re typically placed on a term of “supervised release” — you’re supervised by a probation officer, under conditions meant to help you behave, avoid trouble, and reintegrate into the community. When the judge was setting those conditions, he asked the probation officer what they should be. It turned out Mr. Hunter had a history with anxiety and depression — not unusual — and the probation officer noted that sometimes he doesn’t like to take his medication. So the probation officer, wanting things to go smoothly and wanting Mr. Hunter to get his treatment, asked the judge to order him to take his medication. The judge did. That didn’t sit well with Mr. Hunter — he objected vigorously at sentencing, the judge imposed the condition anyway, and he appealed to the Fifth Circuit.
The Fifth Circuit disposed of the case rather easily, with a flip of the hand: “Look, you promised you wouldn’t appeal — I’m holding you to the terms of your agreement. You can’t appeal.” Mr. Hunter said, “But it was an unconstitutional condition — I have a right to bodily integrity, a judge can’t force me to take medication.” The Fifth Circuit said, “I don’t care. Even if it was unconstitutional, the most important principle is that you agreed, and we’re going to hold you to your agreement.”
So Mr. Hunter took the case to the Supreme Court, which decided, eight to one, that the Fifth Circuit was wrong — not wrong that the condition was unconstitutional, but wrong that contract terms are the only thing that determines whether an appeal waiver will be enforced. Justice Kagan, writing for eight justices, said the courts themselves have an interest in whether to enforce an appeal waiver and in whether a case ultimately gets decided by an appellate court. Only Justice Thomas disagreed — he agreed with the Fifth Circuit: you made an agreement, there’s a contract, we have to abide by its terms. The other eight said no, there are other principles involved, and Justice Kagan wrote around the principle that the integrity of the courts — which are involved in the plea process from beginning to end — matters.
But then the decision took an interesting turn. Even though the integrity of the courts is at stake in deciding whether to enforce an appeal waiver, Justice Kagan said not every illegal sentence should cause the waiver to give way — only, in her terms, a “miscarriage of justice.” Which of course begs the question: what is a miscarriage of justice? She said, on behalf of those eight justices, that it’s not mere illegality — an illegal sentence doesn’t necessarily equate to a miscarriage of justice. What is one, then? We don’t know — it’s a very murky line. Is Mr. Hunter’s case one? The Court didn’t decide that either; it sent the case back to the Fifth Circuit.
So — pretty straightforward, kind of murky line, not particularly interesting on its face. Why do these commentators think it’s such an important case? Because of a concurring opinion by Justice Gorsuch, which is a must-read and, I’d argue, the most important part of the Court’s decision. He opens with a sentence I think frames not just the debate over appeal waivers but lots of other issues around plea bargaining and how our criminal justice process has moved: “In our times, the jury trial has given way to a conveyor belt of plea bargaining” — and a lot of the responsibility for that, he says, lies with the Supreme Court. From there, and through the rest of the opinion — which traces the history of plea bargaining, and the fact that, applying originalist principles, plea bargaining was unheard of at the founding and is now basically the entire federal criminal justice system and large parts of state systems — he points to all kinds of concerning things about the plea process and criminal justice practice more generally. From that, a lot of commentators say, “Okay, we’re going to really look at some of the fundamental aspects of the criminal justice process.”
Now, the reason I’m a little more skeptical is that he only got two other justices to join his concurrence — Justice Sotomayor and Justice Jackson. There was another concurring opinion by Justices Kavanaugh, Alito, and Barrett, who basically say, in just a few sentences, “We just need to react to Justice Gorsuch — okay, the opinion is narrow, it should remain narrow, we don’t think there are many cases that are going to meet this miscarriage-of-justice standard, calm down everybody.” So that’s three justices. Justice Kagan has the majority opinion; Chief Justice Roberts doesn’t write separately; Justice Thomas disagrees with the decision altogether. So really we have three justices very troubled by how criminal practice has developed — the “conveyor belt of pleas,” as Justice Gorsuch put it — and, at least in my view, three, or really four if you include Justice Thomas, who are not particularly concerned. And then there’s Justice Kagan and Chief Justice Roberts, where we don’t know what’s going to happen.
So it’s possible this will be the beginning of a real reexamination of criminal justice practice and plea bargaining — but it’s possible it won’t be. Here’s a little reason why I think it won’t be: Mr. Hunter’s case was decided in June; we’re sitting here in September. In those few months, the case went back to the Fifth Circuit, and within one month — by the end of July — the Fifth Circuit had already decisively ruled that what happened to Mr. Hunter, and that supervision condition the judge imposed over his objection, was not a miscarriage of justice. They disposed of it quickly. And there have been other cases decided since Hunter came down saying the same thing. I think it’s likely there will be relatively few cases that meet that standard, unless a case goes back up and that murky line becomes more defined and more inclusive, as Justice Gorsuch, Sotomayor, and Jackson would suggest.
Together with Lucian Dervan — a professor at Belmont University College of Law in Nashville, Tennessee — I wrote an article in the Review, and we make a number of points, a couple of which I want to raise now, because I think there’s a role for another entity beyond the courts in helping define what this miscarriage-of-justice standard really means: the U.S. Sentencing Commission. The Sentencing Reform Act gave the Commission a role in reviewing court decisions. The Supreme Court, in a very famous case called Booker v. United States — which found the sentencing guidelines unconstitutional as they were being applied — said the Commission has a very important role in reviewing appellate court decisions. So we argue in the Review that the Sentencing Commission should go through the lower courts’ decisions on what constitutes a miscarriage of justice, and should itself weigh in through its guidelines and policies about what it believes qualifies. In the opinion itself, Justice Kagan says clearly that the federal sentencing system is very complicated, with a lot of factors, and — this says a lot, and not a lot of very good things, about the system — that errors are “common” and “standard fare,” and don’t meet the miscarriage-of-justice standard very often. I think that’s an incredible statement about what she believes about the federal sentencing system. But which errors should or might meet that standard is something I think the Sentencing Commission should weigh in on. We also discuss in the article the history and research around plea bargaining generally, which we think is important as the lower courts — following up on Hunter — and then the courts more generally, review plea bargaining practices against both constitutional and statutory challenges.
So I think it’s an important case. I’m not sure it’s quite as important as SCOTUSblog and others think — but we’ll see, because the litigation is already happening in the lower courts over what meets the miscarriage-of-justice test. Thank you so much again, Laura, for having me be part of this.
Laura Bondank-Harmon: Thank you. That was extremely informative. Now, switching gears a little bit, Mike — your case is a little different. You’re covering United States v. Hemani, which is a case involving a recreational marijuana user and his ability to own a firearm without being prosecuted. Can you tell us a little bit about that case?
United States v. Hemani — Drug Use and the Second Amendment
Mike Fox: Yeah, certainly. So — this is guns and drugs. It’s hard to imagine a more libertarian-coded topic to discuss here.
Let’s start with the statute. There’s a statute called 922(g), which has numerous provisions prohibiting certain segments of people from owning firearms. One of them, 922(g)(3) — which I’ll read verbatim — prohibits “an unlawful user of, or one addicted to, a controlled substance” from possessing firearms. There’s a lot of words there that we don’t really know the meaning of, and that’s part of the problem with this case.
The case started in Dallas, Texas, where a gentleman named Ali Hemani was being investigated by the feds, who alleged he and his family were involved in some terrorism-related activity. I don’t know what happened with that, but it clearly failed, because the best thing they could get him on was drug user in possession of a firearm. Mr. Hemani was super cooperative — he straight up admitted to federal investigators that he had a nine-millimeter handgun and that he used marijuana about every other day. They decided to charge him under the statute. He never actually went to trial — before trial, his attorney filed a motion to dismiss the indictment, arguing it violated the Second Amendment. The district judge agreed, and dismissed it. Occasionally the Fifth Circuit does get things right — this is one of those cases; they affirmed the dismissal.
Eventually the case reached the Supreme Court, and it’s difficult to envision a nine-zero ruling by a Court everyone likes to say is super political, in furtherance of Second Amendment rights — but that’s precisely what happened. The Court ruled that the federal firearms ban in Section 922(g)(3) is unconstitutionally overbroad, vague, and ahistorical, and affirmed that the Second Amendment right cannot be forfeited on account of someone simply using recreational marijuana. The government can regulate active impairment and immediate dangerousness, but it can’t use ambiguous, status-based categories to disarm people in their own homes. That’s an important distinction, because Mr. Hemani wasn’t using the firearm — he wasn’t even alleged to have touched it. It was simply in his home. It’s not as though he was going to the range while high, or doing anything involving impairment and firearms.
Rewind a couple of years, to 2024: the Supreme Court decided a case called Rahimi, which was a bit different. The issue there was whether Section 922(g)(8), which applies to people with active restraining orders — typically arising from domestic violence cases — could be used to disarm them. The Court held that it could, but there’s a key distinction: there was a judicial finding in those cases that the person was a danger to their intimate partner, and that’s why the restraining order was issued and why they could be disarmed. A judge made that finding. Whereas under 922(g)(3), the government just alleges, “You used drugs at some point” — so, “you can never own a firearm until you stop.” That’s logically not similar to Rahimi at all.
And in 2022, the Supreme Court decided Bruen, invalidating New York’s licensing requirement that you show “proper cause” to carry a concealed handgun. In striking that down, the Court also created a framework analyzing “text, history, and tradition” — whether the regulation at issue aligns with the nation’s historical regulation of firearms. This is where things get interesting in Hemani: the government relied on “habitual drunkard” statutes — note, habitual drunkard, not habitual drinker; there’s a substantial difference. Those statutes, at the founding and afterward, weren’t meant to go after people who’d come home from work (or the farm) and have a glass of whiskey — they targeted people who couldn’t stand up, couldn’t function in society, and were a danger to themselves, their families, and their finances. A habitual drinker is very different — if I went home tonight and had a drink, and again tomorrow night, under the government’s interpretation of the statute I’d be a “habitual drinker,” barred from owning firearms until I stopped drinking — provided, of course, that alcohol were illegal, which it was not at the founding.
And if you look at today: marijuana is still on Schedule I, still federally banned, but we’re living in a country where 24 states have legalized recreational marijuana in some form and 40 have some type of medicinal marijuana scheme.
Laura Bondank-Harmon: Mike, I actually just want to point something out — I do think the Supreme Court mentioned in their opinion that it was actually downgraded from Schedule I to Schedule III.
Mike Fox: That’s right. Yes — yeah, it was recently downgraded, so it’s still federally prohibited, but under a different section.
So, arguably, this decision — if it had gone the other way — would have swept in millions of Americans who simply, say, once a year — because the federal regulation defining “user” says it can be just one time in a calendar year — smoke marijuana once, on 4/20, and then simply possessing a firearm in their home (not while smoking) would be a federal crime. That’s categorically insane. Justice Gorsuch’s majority opinion explains how these drunkard statutes don’t align with the historical tradition of regulating drunkards at and after the founding, as applied to Mr. Hemani.
I also want to talk a bit about Justice Thomas’s concurrence, which is of particular interest to me as someone really interested in the doctrine of enumerated powers — the idea that the federal government has finite lawmaking authority; it doesn’t have plenary, general police powers like state governments do, and can’t just regulate anything at any time. The government here never alleged that Mr. Hemani sold the gun or moved it across state lines — it was just in his home; I don’t think they even knew or cared where it came from, since that wasn’t the issue before the Court. But Justice Thomas’s concurrence raises the point that federal power to regulate firearms under the Commerce Clause depends on the gun having, at some point, been offered for sale or moved across state lines — something that didn’t actually involve Mr. Hemani at all. That wasn’t the issue before the Court, but I found it really interesting, with potential future implications.
Another thing worth discussing is a different provision, 922(g)(1). That statute isn’t before the Court — I hope one day it will be, and I wonder if, after Hemani, the impetus for cert might be higher; my colleague Matt Cavanaugh has filed amicus briefs urging the Court to take up this issue, and I believe we’ll be filing another one soon. That statute says anyone ever convicted of a crime carrying a year or more in jail — not that they even served a year, just that they could have — is categorically banned for life from owning or possessing firearms. If you think about what the Court said in Hemani — that there has to be some kind of rationale, you can’t just say “this person used drugs at some point, so we’re stripping their Second Amendment right for the rest of their life” — there are largely two ways this could work. One, Congress could make a finding that some particular drug is really detrimental, really impairing, really dangerous — maybe PCP; I’m not a pharmacologist, but I could see that being a valid argument. The other is an individualized determination, like in Rahimi, where a court actually finds the person dangerous and unable to function safely with a firearm. The same, in my view, should apply to 922(g)(1)‘s categorical felon ban. Look — if my felony conviction involved a firearm, say several armed robbery convictions, I think the government has every right to prevent me from owning one. But look at the case of Brian Range in the Third Circuit — which, after the Third Circuit got it right, he’d been convicted of something like food stamp fraud thirty years ago, and was categorically banned for life from owning firearms. Thankfully the Third Circuit said, “This is unconstitutional, we’re not having this.” But there’s a circuit split, and I think, similar to the drug-user question, there has to be an individualized determination for felons too: is this person dangerous because they committed a serious violent crime, and if they’re still dangerous, why are they out? My view of the criminal justice system is: if someone’s dangerous, they should be locked up; if they’re out, they should be out with all their rights restored. Same with drugs — is this someone who smokes a joint every other day and isn’t impaired, or someone in psychosis, high out of their mind, smoking joints at the range? There are distinctions that need to be made, and painting everything with a broad brush, as the Court said in Hemani, doesn’t work — and I hope the same will be true for felon-in-possession cases eventually.
Panel Discussion
Laura Bondank-Harmon: Thank you, Mike. Before I ask some of my questions, I wanted to open up the discussion for you three — do you guys have any comments about the other two cases, or any questions for your fellow panelists?
Jonathan Wroblewski: Can I jump in?
Laura Bondank-Harmon: Yeah, of course.
Jonathan Wroblewski: So I’m very interested in Chatrie and the Court’s seeming reluctance to want to be — or to be seen as — too civil-libertarian. They really go out of their way to say, “We’re not doing anything here, we’re just applying precedent, Katz still applies, nothing to see here.” But at the same time, it seems like they’re doing something really significant, and in some ways doctrinally changing how courts are supposed to analyze Fourth Amendment protections. I’m curious if you see that, and why you think they might be going out of their way to frame it that way.
John Wrench: Yeah, so I think that’s a super interesting question, especially when you hold Carpenter and Chatrie up next to each other. Carpenter, as I mentioned, is self-described as very incremental — “nothing is happening here, maybe a little bit is happening here.” With the third-party doctrine: “no, we’re not overruling it, just making a narrow exception,” and “we’re not really inventing” a reasonable expectation in the whole of your physical movements — there were five justices you could pull together from the Jones opinions who’d said something like that already. So I think there is something going on in Carpenter that’s actually much more cautious. I’ll give it to Justice Alito here, in his Chatrie dissent — I don’t agree with him on the merits, but his view is that the majority is doing quite a lot, especially in Chatrie. So I’d say if Carpenter was self-described as an incremental, minimalist opinion, Chatrie has kind of dropped that mask. You could view Carpenter as a toe in the water, a signal of something to come — a lot of people viewed it, after it was decided, as potentially seismic, or as just this weird, particularly invasive set of facts. In retrospect, I think we can say Carpenter was a beachhead, and Chatrie shows that’s where the Court is going to keep working from, pushing the doctrine forward.
As for why: Chatrie still doesn’t formally overrule any cases, and I think that’s one of the reasons the Court applied Katz instead of doing something more like what Justice Gorsuch’s concurrence suggests — “blow up Katz,” which is what he said the Court should do in his Carpenter dissent, and what Justice Thomas has said before too. Even Justice Alito’s concurrence in Jones acknowledges that Katz is tough to apply, and sometimes it looks like courts are just applying their own intuitions about what’s reasonable. Despite that, the majority in Carpenter and Chatrie keeps applying Katz. Why, when there’s an alternative that could look to text or history, something more tangible? I think part of what’s going on is that if you’re the majority and your priority is “we’d really like to not overrule something unless we have to” — that’s a big one — you can narrow cases like Miller and Smith (the third-party doctrine cases) and Knotts (about tracking a vehicle) down to their facts, instead of treating them as the broad rationales they’ve been read as for decades. So the Court is saying, in effect, “to the extent these cases are problematic when applied to new situations, we can just narrow them down so they aren’t doing damage to the principles we think are at play.” I think the other reason the Court has stuck with Katz, and wants to signal that nothing too new is happening, is that Carpenter applied Katz — and if you want to say you’re basically extending Carpenter, you probably need to rely on the same methodology. If you’re a court that wants to be able to reach as many new surveillance techniques as possible, the majority’s approach is probably better suited to that than Justice Gorsuch’s — not that his approach couldn’t get there, it would just require more work and more cases to nudge the law along. I do think Chatrie is an opinion designed with a lot of new technology looming in the distance — geofence warrants, as such, can’t even be served on Google anymore by the time the Court decides the case — the Court is well aware that technology develops very quickly and can escape judicial review. So I think they wrote a decision that’s very oriented toward the future while still trying to say, “We’re not doing too much that’s new.”
Jonathan Wroblewski: Mm-hmm. Can I just —
Laura Bondank-Harmon: Oh, yeah.
Jonathan Wroblewski: It just strikes me that, since Jones — that was the case where law enforcement put a device on a car to track its location — it seemed like the Court sort of said, “Okay, the expectation-of-privacy thing doesn’t quite work, but we don’t know what to replace it with.” Justice Scalia says trespass; others have said trespass, but that doesn’t quite work either. So they’re not quite sure what to do. The only problem with this sort of doctrinal fuzziness we’ve been in — and it’s not just a few years, it’s been decades — is that these technologies, as you say, keep evolving. Now law enforcement is deploying AI, combining lots of different databases to track people, and it’s clearly freaking out the public — states are taking down Flock cameras everywhere. But how do you apply Fourth Amendment doctrine to AI analysis of a variety of different databases that weren’t connected before, but now miraculously can be, letting you track people and identify things that used to be private? I think that’s part of the problem with this “okay, we’re not quite sure, we’re moving forward” approach. Do you have any reaction to that?
John Wrench: Yeah. So one thing you said, which I think is looming in the background of all this — you could draw this back to Jones, the 2012 case, and say the Court is clearly trying to figure this out, testing ways of dealing with the problem. You could go back even earlier, to Kyllo, a case about using a thermal imager outside a home — a Justice Scalia majority opinion applying Katz, which I believe is the last time he was ever in an opinion applying Katz; I don’t think he joined one applying it again after that. What does he do? He formally applies Katz, but really narrows it, bobs and weaves around precedent — “yeah, these precedents’ rationales don’t really apply here, we have to adapt to new technology.” That’s one approach I discuss in my piece: use Katz to fix Katz-based decisions. Another approach was in Jones — “we’re actually going to circumvent all these decisions and have a parallel test looking at trespass or physical invasion.” And then you have what Justice Gorsuch has been pushing for in Carpenter and Chatrie — using Jones as a building block for something else, looking more at positive law rather than just physical invasions of property.
The reason I think Chatrie is such a big deal methodologically is that the Court has been looking at all these options — Carpenter was a selection of one, or synthesized them into one, using Katz to fix the areas of law it wants to fix — and Chatrie is a big deal because it formalizes a lot of that; it repeats what Carpenter says, it’s built on Carpenter. There are five votes for it, and only one for Justice Gorsuch’s opinion. It makes me wonder whether the next several years of Fourth Amendment doctrine will be the Court incrementally doing that, with Justice Gorsuch on the sideline saying, “You’re kind of doing what I’ve been saying you should do, but you’re maybe not acknowledging it,” which is basically what he said in his Chatrie concurrence.
Laura Bondank-Harmon: Speaking of where the justices fall on these three cases — I think all three are really good examples of interesting breakouts among different justices. Mike, for instance, your case is the only one up here with a unanimous decision, and it was on guns and drugs. And Jonathan, you described a very interesting split, where Gorsuch sided with Sotomayor and Jackson, and the dissenting justices were also an interesting mix. Can you both talk a little about what you think that signals, if anything?
Mike Fox: Yeah, I mean — if you look at the last case, Rahimi, it was eight-one, with just Justice Thomas dissenting, and his rationale was that the surety laws at the founding didn’t align well — in his view — with the ban, under 922(g)(8), on people with active restraining orders owning firearms. Obviously, that’s not the law, since the Court said otherwise. But this case was unanimous, and I think if you look at the framework Bruen adopted, the justices are simply applying the facts of the case to the framework and coming out with an outcome — it’s not hard to do that, and I think you largely see it in these cases. The reason I mentioned Justice Thomas’s concurrence isn’t just because it’s an interest of mine, which it certainly is — I’d go so far as to argue this entire statutory scheme, 922(g), is unconstitutional; it’s not something the federal government has the power to regulate at all. There was no commerce here, let alone interstate commerce, so the idea that the statute could even be sustained is crazy to me. But I think, had that been the issue actually before the Court, the case would have gone the other way, and certainly wouldn’t have been unanimous. So I think the Bruen framework just lets the justices plug the facts into the framework and come out with a conclusion — that’s what they did here.
Jonathan Wroblewski: Maybe one day. To me, what the Hunter opinion, and to some extent Chatrie and the discussion we were just having, bring to light is this notion — which lots of other people have talked about — of the division on the Court between institutionalists and those much more willing to throw things out and start anew, get it right as they see it. You see that in Hunter: Justice Gorsuch, who’s written about the jury trial right many times — and by the way, there’s another jury trial right case coming this term, about whether a twelve-person jury is required under the Constitution — he’s written about the jury right in the civil context, in administrative law, and he’s a passionate believer in it, ready to get to his answer today; he doesn’t need to go about it incrementally. Then you see the institutionalists on the Court much more inclined to say, “Let’s go slowly, one case at a time — we can all agree on a murky line, call it ‘miscarriage of justice,’ leave it to another day to figure out what that means, send it to the lower courts, take little steps.” I think they’re doing the same thing with the Fourth Amendment — “we’re not going to throw out Katz, we’re just making little incremental steps” — even though it’s pretty clear that the technologies we all carry in our pockets, and now AI and the ability to do all kinds of things with databases, really change things in a way that makes it hard to look back to the eighteenth century for answers. So that, to me, is the takeaway — I think those commentators who’ve talked about institutionalists versus the others are right, and I think that’s a lot of what this shows.
Jonathan Wroblewski: Can I ask Mike one question?
Laura Bondank-Harmon: You may ask.
Jonathan Wroblewski: So the thing I’m really interested in is your analysis of 922(g)(1), and what you think the Court should do. In the world I live in — sentencing — a number of academics and scholars have made the point that when the legislature says a particular crime carries a mandatory minimum sentence, that implicates a fundamental right, just like 922(g) does — the right to liberty. These scholars have suggested that sometimes a mandatory minimum will be appropriate, as you said — if you’re convicted of a violent crime, maybe you shouldn’t have a gun; if you’re convicted of fraud, maybe not. If you’re the armed robber, maybe you get the mandatory five years; but if you’re the girlfriend who drove the guy to the bank, maybe you shouldn’t. That kind of individualized analysis of individual cases is really interesting to me, and I’m curious whether you think the Court will actually go that route — suggest it has to be individualized — or take a simpler approach and just get rid of the whole thing because it’s overbroad.
Mike Fox: Well, if they got rid of the whole thing, that would be phenomenal, but I don’t think they’re going to do that. Just to back up, in case people forgot — 922(g)(1), which Jonathan just asked me about, is the categorical ban on anyone who’s a felon, or who was eligible for over a year in jail or prison, from ever owning a firearm. I’d love the Court to strike down the entire statute — maybe even on Commerce Clause grounds, that would be fantastic — but we don’t live in a world where that’s going to happen, or probably not. If they even grant cert — which we don’t know; they’ve rejected this several times, though there’s a circuit split, and I’m wondering if the impetus is higher now in light of Hemani — I think it’d be something like an individualized determination. And going back to the point about juries we were just discussing — I know Matt’s panel is going to talk about Erlinger later today — these are findings that should be made by juries, and juries should be informed of the sentence a defendant faces, and that should factor into whether they convict someone charged with a crime. Look, if I’m going to stick someone up at gunpoint, I think there’s a pretty reasonable argument I shouldn’t be able to own a gun. But say I was sitting in the car with my best friend, who I thought was just going in to get us both a coffee, and it turns out he pulls out a gun — should I really be banned from owning a firearm for the rest of my life because I was charged in relation to that? I don’t think so.
Audience Q&A
Laura Bondank-Harmon: Now we’ll be taking some questions, both from our online audience and our in-person audience. Please speak clearly and directly into the microphone so everyone in the room and online can hear your questions. Announce your name and affiliation, and please make sure all questions are asked in the form of a question. Yes — John Vecchione, we know John.
Audience member (John Vecchione): Thank you. Do you think that Chatrie could either weaken or eliminate the third-party doctrine?
John Wrench: Yeah, some could say, provocatively, that it did. If you go back to what the third-party doctrine is, and take a step back to how the Court treats it, I think Chatrie is good in two different ways. Doctrinally, I think it’s good because it reorients a lot of what the third-party doctrine, if it exists, should even be asking about. I’d encourage you to try this exercise: take the dissents in Miller and Smith, and put them next to the Chatrie majority opinion — I think you’ll see some glimmers of those dissenting opinions. Chatrie doesn’t accept that mere exposure to a third party triggers the doctrine — that you’ve somehow lost your reasonable expectation of privacy just by that exposure. Which means something else is required. And we also know what the Court says is not sufficient: just doing the kinds of things ordinary phone users do — which suggests that if you’re exposing information to a third party for a particular reason a reasonable person would understand, it would be absurd to say you’ve necessarily exposed it to the public, or the government, to be used against you. So I think what we’re seeing is: Carpenter was a narrowing, and Chatrie is an even more significant narrowing, and the open question is what’s left of the doctrine. It’s notable that Miller and Smith are basically recited as the origin of the third-party doctrine, and then never really engaged with again — you don’t see engagement with the actual facts of those cases after they’re mentioned. That makes me wonder whether the Court is setting them aside for execution, so to speak, or whether we’ll see them narrowed to some other circumstance.
There’s a second thing I like about what the Court did with the third-party doctrine. In these cases, it’s often conflated whether you lack a reasonable expectation of privacy because you never had one — it wasn’t your document or information in the first place — versus whether you lost it because you did something with it. I think Chatrie disentangles those a bit more than in the past — the Court, in its third-party doctrine analysis, points back to how it defined the protected interest, treats it as something more like property someone owns, and then separates that from the kinds of things you could do to lose the reasonable expectation of privacy in it. So I think the Court is doing both doctrinal cleanup and some doctrinal hygiene, which is helpful if you’re a lower court or a litigant dealing with these questions. In that sense — I really don’t know. It’s not clear what the third-party doctrine even is anymore, but I’m not sure what’s left of it either.
Jonathan Wroblewski: Can I jump in? I think that’s spot on. I think the Court’s going to do what it usually does, which is: we’re not really changing anything, but they have no choice but to change things, because every one of us has a phone in our pocket, and everything on that phone is sitting in a backup cloud somewhere. We’ve all given everything of ours to somebody else, and it’s sitting somewhere else. So they’re going to have to say — and they are already saying — “no.” It used to be that when you dialed a number on your phone, you gave Verizon the phone number, and that was it — no expectation of privacy in it. Well, not anymore. I just think they’re making the distinction; they’re just doing it slowly, because that’s the pace at which the Supreme Court works.
Laura Bondank-Harmon: Well — and correct me if I’m wrong — the Supreme Court’s never actually applied the third-party doctrine outside of Smith and Miller, have they?
John Wrench: I believe that’s right, because — this is kind of a funny thing about Carpenter and Chatrie — they always look back at Smith and Miller, and, you can read into this too much maybe, but I think it’s funny when the Court says “the so-called third-party doctrine,” as if it hasn’t been interpreted and applied as a doctrine by lower courts for decades and decades. So maybe you shouldn’t read too much into that, but maybe the Court is already, kind of preemptively, distancing itself, saying, “These are two cases about a specific set of facts — they don’t really stand for a doctrine.”
Just one more quick thing: I think if the Court really wanted to signal that it was staying narrow — that it wasn’t maybe getting rid of, or doing something to, the third-party doctrine — I don’t think it would say, as it does, that location history is like other things reasonable people believe they own, like emails or photos. That’s kind of inviting future cases and comparisons, which I’m not sure a court would do if it were really trying to preserve the doctrine to its full extent.
Laura Bondank-Harmon: All right — now, I think we have time for one more very brief question. Sorry for cutting the Q&A short. Anybody? This one — oh, I think — oh, yeah, in the back. Sorry, the camera was blocking you.
Audience member (Vikram): Thank you so much. My name is Vikram, I’m an undergraduate at Georgetown. My question about the Court’s criminal docket this term is about the remedies it granted. It seems like in every case, the Court decided the remedy was as narrow as possible — like in Hemani, they affirmed, they didn’t affirmatively dismiss. In Chatrie, obviously it’s going to be affirmed on remand on good faith —
John Wrench: I wouldn’t say — I wouldn’t say that’s obvious. Well, I think almost every judge except one on the Fourth Circuit ruled on good faith. I mean, I don’t think the good-faith exception is legitimate, but realistically, I think—
Audience member (Vikram): And then, as was said earlier, the Fifth Circuit has already reaffirmed its decision below, and, you know, this term they’ve denied every death penalty case. Do you think that’s like a new trend on the Court, where they’ll just do doctrinal cleaning but not affirmatively grant relief — and should we be worried about that, or is it not really a big deal?
Laura Bondank-Harmon: Okay, that’s a very good question. However, we are running out of time — so, if anyone would like to give a very quick, one-sentence answer.
John Wrench: Okay, I’ll give a two-word answer: faux modesty.
Jonathan Wroblewski: All right, that’s good, because mine was going to be about a case from last term, and it’s going to take too long — so we’re done.
Mike Fox: Yeah — happy to answer, but come find me after.
Laura Bondank-Harmon: Yeah. Okay — well, thank you again, all of you, for being here and contributing to this conversation. We will now take a brief break. Please join us back at 2:30 for our next panel, “Redistricting, Removals, and Speech Restrictions,” moderated by Thomas A. Berry, director of the Robert A. Levy Center for Constitutional Studies and editor-in-chief of the Cato Supreme Court Review at the Cato Institute.
