The National Association of Criminal Defense Lawyers provides amicus assistance on the federal and state level in those cases that present issues of importance to criminal defendants, criminal defense lawyers, and the criminal justice system as a whole. A selection of NACDL's amicus briefs that address the Fourth Amendment are offered below. 

NACDL National Security Amicus Curiae Briefs

Brief of the National Association of Criminal Defense Lawyers as amicus Curiae in Support of Petitioner (on petition for writ of certiorari).

Argument: This Court’s cases, which make clear that a defendant’s right to due process is implicated when the government orchestrates an unreliable identification procedure. Most recently, the Court held in Perry v. New Hampshire, 565 U.S. 228 (2012), that no due process check is required where there isn’t any state action. But Perry made clear that a due process check does apply where there is state action and also strong reason to doubt the reliability of an identification. Both of those circumstances are present in cases like this one, where government agents control and manipulate every step of the identification procedure. This Court should grant certiorari to resolve a clear post-Perry split on the question presented and reverse the decision below. Four courts have correctly held that a due process check applies in cases like this one. Eleven courts have wrongly held that a due process check does not apply in cases like this one. Perry was about more than police. Perry is not limited to identifications that result from official misconduct. The identifications here at issue pose unique due process risks. First-time in-court identifications are highly suggestive and error prone. Ordinary trial safeguards cannot remedy the risks inherent to these identifications.

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner (on petition for writ of certiorari).

Argument: It is emphatically the province and duty of the judicial branch to say what the law is, not what the law was. But in the Eleventh Circuit, petitioner and scores of other defendants like him have their cases decided on the basis of law otherwise recognized as repudiated by intervening precedent from this Court. Alone among the circuit courts, the Eleventh Circuit requires direct instruction from the Supreme Court to revisit its prior precedent; without it, rationale widely considered clearly erroneous in light of subsequent Supreme Court case law is still applied to defeat defendants’ appeals. Because the Eleventh Circuit’s internal rules require Supreme Court precedent to be “directly on point” to allow reconsideration of its past case law, it takes a narrower view of Supreme Court rationale than does this Court. Where, as in this case, a court acknowledges that the Supreme Court’s intervening rationale is “at odds with” its binding precedent and yet forecloses argument on the issue, a defendant’s due process right to a meaningful appeal is violated. Review is warranted because the Eleventh Circuit's practice is impermissible and inconsistent with all other circuits. The problem is important, recurring, and squarely presented. For this reason, and those in the petition, the Court should grant certiorari.

Brief of National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

Argument: A Rule 59 motion is "part and parcel" of a habeas petitioner's "one full opportunity" to litigate a first federal habeas petition. The Fifth Circuit's rule leads to inefficient judicial administration of habeas petitions and unfair results for habeas petitioners. Rule 59 motions allow district courts to correct their own errors before judgment becomes final, thus avoiding unnecessary reversals and unfair results. Rule 59 motions also allow district courts to clarify their own orders even where they continue to deny relief, thus avoiding unnecessary remands. Eliminating Rule 59 motions would create additional burdens for the court of appeals. Recharacterizing Rule 59 motions as unauthorized second or successive petitions would deprive many petitioners of the opportunity to appeal in their first federal habeas proceedings.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

Argument: A state government's right to regulate traffic flow does not qualify as "money or property" under this Court's applications of the mail fraud statute. The deception charged in this case -- lying about the motivation for state governmental policy -- is not cognizable as fraud under the mail fraud statute.

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Plaintiffs-Appellants.

Argument: The government's mass interception and scanning of Americans' Internet communications is a search and seizure, triggering the Fourth Amendment's warrant requirement. The "special needs" exception to the warrants requirement cannot justify the government's surveillance program. Foreign Intelligence is not the "primary purpose" of the NSA's dragnet surveillance program. The impact of the intrusion from the NSA's Internet surveillance outweighs the government's need. The privacy interests harmed by upstream surveillance outweigh the government's interest in the program. Indiscriminately seizing and searching communications will include attorney-client communications and therefore impact individuals' Sixth Amendment rights.

Brief for Amici Curiae National Association of Criminal Defense Lawyers, Pretrial Justice Institute, and Center for Legal and Evidence-Based Practices in Support of Plaintiffs-Appellees and Affirmance.

Argument: Well-established constitutional law requires that individuals detained by the government receive an individualized bond hearing. The procedural safeguards imposed by the district court for bond hearings are constitutionally required and routinely guaranteed by federal and state law in analogous contexts. Hearings on the need for detention must be prompt. The government must bear the burden of proof. An accurate, contemporaneous record with particularized findings must be kept. Vastly greater numbers of individuals have individualized bond hearings in state pretrial systems. Modern pretrial practices demonstrate that categorical detention of individuals seeking asylum is not necessary to ensure they appear at their hearings. Asylum seekers are likely to appear for their court dates. Risk assessment tools are available to guide the government in deciding which asylum seekers should be released pending immigration proceedings.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent.

Argument: Kansas's bright-line rule is incompatible with the flexible reasonable-suspicion standard. Automated license-plate reader technology highlights the constitutional problems with Kansas's rule. Kansas's rule lets computers, not case-by-case judgments, control the constitutional analysis. The proposed cure for "mistaken stops"--that they will be brief--is no substitute for the Fourth Amendment's protections against unreasonable seizures. Adopting Kansas's rule would create an incentive against investigation. The erosion of privacy would disproportionately affect the poor. A suspended or revoked license indicates economic status, not unsafe driving. ALPR technology unduly affects the poor. 

Memorandum of Law of the New York State Association of Criminal Defense Lawyers, the National Association of Criminal Defense Lawyers, DKT Liberty Project, The Legal Aid Society, Brooklyn Defender Services, The Bronx Defenders, The Chief Defenders Association of New York, The New York State Defenders Association, Robert F. Kennedy Human Rights, and Discovery for Justice as Amici Curiae in Support of Defendant Carl E. Heastie's Cross-Motion for Summary Judgment. 

Argument: The legislature, empowered to regulate state prosecutors, may exercise its policy judgment to hold prosecutors accountable for misconduct or otherwise abrogate traditional immunities. Because existing mechanism fail to hold prosecutors accountable for misconduct, it is unsurprising that the legislature concluded the commission is necessary. That prosecutors rarely face accountability for misconduct is a widespread, long-standing, and well-documented problem. The record in New York is no exception, and prosecutors currently escape any accountability for misconduct. The commission will provide accountability that is currently absent.

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Plaintiff-Appellant.

Argument: For two weeks, the Federal Bureau of Prisons (“BOP”) and Warden Herman Quay denied inmates at the Metropolitan Detention Center in Brooklyn (“MDC”) access to counsel and confined them to their cells with no light, little to no heat in the dead of winter, and no access to essential medical treatments. The District Court held that only the inmates themselves could bring suit to remedy the situation. This case presents a question of prudence not standing. The Federal Defenders should have the ability to enforce the right to counsel. The effective assistance of counsel is central to the functioning of our adversarial system. Assistance of counsel is impossible without attorney-client access. The Federal Defenders have strong incentives to protect the right to counsel. The Federal Defenders are an ideal candidate for enforcing the right to counsel.

Amicus's [NACDL and ACDL-NJ] Memorandum of Law in Opposition to Motion to Enforce Compliance with the Subpoena.

Argument: A subpoena directed to a defendant's lawyer is potentially damaging to the attorney-client relationship and can impinge on the constitutional right to counsel. The State is not entitled to the protected attorney-client communications because the State already has all the information it seeks and has not made a showing that the information cannot be obtained from a less intrusive source. The crime-fraud exception does not permit the intrusive probing questions proffered by the state. 

Brief of Amicus Curiae the National Association of Criminal Defense Lawyers in Support of Petitioner (on petition for a writ of certiorari).

Argument: There is a circuit split over whether an inmate may proceed under § 1983 where he expressly waives any challenge to the loss of good-time credits in order solely to advance claims arising from the other sanctions. The Court should resolve the split and decide the issue in a manner contrary to the Seventh Circuit’s substantive holding because (i) the current circuit split has significant, intolerable practical ramifications for prisoners and the lower courts and (ii) the Seventh Circuit’s decision conflicts with this Court’s Heck jurisprudence and with the Court’s precedents obligating respect for statutory text.

Brief of Amicus Curiae of the National Association of Criminal Defense Lawyers in Support of Petitioner.

Argument: The Court should find Arizona’s independent review as conducted in this case falls under the direct appeal process, and therefore not a final judgement, thus requiring that Petitioner be guaranteed jury resentencing that gives full consideration to any presented mitigation evidence.

Brief for the National Association of Criminal Defense Lawyers in Support of Petitioner (on petition for a writ of certiorari).

Argument: The Maryland Court of Appeals’ decision is the first and only to hold that trial counsel’s failure to investigate an unbiased and credible alibi witness is not prejudicial. Such an unforeseen decision will impact criminal defendants and, in particular, habeas petitioners, far beyond Maryland’s borders. Both state and federal courts across the country have found prejudice from trial counsel’s failure to call a credible, non-cumulative, and neutral, alibi witness. Those courts have found prejudice even when the government relies on evidence that the alibi witness may not rebut. The decision below calls into question this “clearly established” legal precedent, impairing the ability to remedy nationwide these unique and meritorious ineffective assistance of counsel claims.