The Limits of Fourth Amendment Injunctions

7 Journal on Telecommunications and High Technology Law 127 (2009).

12 Pages Posted: 19 Jun 2008 Last revised: 1 Oct 2019

See all articles by Orin S. Kerr

Orin S. Kerr

University of California, Berkeley School of Law

Date Written: 2009

Abstract

When is injunctive relief appropriate in Fourth Amendment cases? Should courts feel free to craft wide-ranging injunctive relief to avoid Fourth Amendment defects? Or is there something wrong, either as a matter of doctrine or policy, with crafting broad injunctions in Fourth Amendment cases?

This brief essay will suggest answers to these questions. The first part argues that as a matter of history and practice, injunctive relief has been used narrowly as an on-off switch for carefully-defined practices. The most significant doctrinal hook for this limitation is Article III standing: Injunctive relief requires a real and immediate threat of future injury to establish a case or controversy. The precise meaning of that requirement remains murky, but it arguably means that a plaintiff must show a real and immediate threat of a highly specific set of facts occurring.

The second part argues that as a matter of normative policy, any ambiguity in the current state of the law should be resolved against imposing broad Fourth Amendment injunctions. Crafting broad injunctive relief forces courts to assume duties that they are not competent to handle. Fourth Amendment doctrine is tremendously fact-specific: every fact pattern is different, and even the exceptions to the exceptions have their own exceptions. Courts are poorly suited to design broad injunctive relief in this setting. Courts should therefore decline to craft Fourth Amendment injunctions covering classes of facts instead of individual facts.

Keywords: fourth amendment, injunction, courts

JEL Classification: K10, K14

Suggested Citation

Kerr, Orin S., The Limits of Fourth Amendment Injunctions (2009). 7 Journal on Telecommunications and High Technology Law 127 (2009). , Available at SSRN: https://ssrn.com/abstract=1147798

Orin S. Kerr (Contact Author)

University of California, Berkeley School of Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States

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