The Criminal Justice of Amy Coney Barrett – Washington Monthly

For all the scrutiny of soon-to-be Supreme Court Justice Amy Coney Barrett and her writings on abortion rights, gun rights, and Obamacare, little attention has been paid to her rulings on the rights of criminal defendants and prisoners. She has issued opinions in 34 such cases and signed on to other opinions in her three years on the 7th Circuit Court of Appeals, a relatively thin record, yet one demonstrating a willingness to rule both for and against police, prosecutors, and trial judges.

At times she conveys compassion for the convicted and robust regard for the Fourth Amendments restrictions on police searches. She is occasionally willing to strip officers of their qualified immunity from lawsuits. But she can also adopt extremely narrow interpretations language in the Constitution, statutes, and court precedents to uphold questionable convictions and heavy sentences.

In the area of criminal justice and related civil suits, she has issued only five dissents. Four of them were to the detriment of inmates and defendants, and one argued that a non-violent felon should be allowed to own firearms, which current federal law prohibits. In another dissent, in Sims v. Hyatte, she opposed the exoneration of a man whose attempted murder conviction relied entirely on his identification by the victim, who turned out to have been hypnotized before his trial testimonya fact not disclosed to the defense. Two of the three judges overturned the conviction, and the man was released after 26 years in jail.

Otherwise, she has written for unanimous three-judge panels, putting her in the mainstream of the Chicago-based 7th Circuit. Most of her opinions in criminal cases have been slam dunks, not even close calls given the facts and precedents. Some appeals that reached the 7th Circuit seemed like stretches by defense attorneys; others exposed such egregious behavior by authorities that a contrary ruling would have shocked the conscience.

She has ruled several times against qualified immunity, which precludes civil lawsuits against police officers and other government employees unless their actions would be clearly understood by a reasonable official to violate established constitutional or legal norms. The doctrine, which was invented by the Supreme Court, has created a Catch-22: If the use of force, even deadly force in certain situations, has not been deemed a violation in the past, then it cannot be argued that a reasonable officer would regard it as such now. Hence, police officers as individuals can rarely be sued successfully, even as large judgements and settlements have led to payouts by local governments to victims families in New York City, Chicago, and elsewhere.

Barrett has not addressed the concept itself but has applied it for and against officers depending on the cases specific issues. On the one hand, she dissented from a majority opinion in McCottrell v. White, allowing two inmates to sue guards who wounded them by firing shotguns inside a prison cafeteria. On the other hand, in Rainsberger v. Benner, she cast aside qualified immunity, for an Indianapolis homicide detective who lied in an affidavit to get an arrest warrant; the charges were dropped, and the defendant sued. She also joined opinions rejecting immunity for a prison guard in Wisconsin (Howard v. Koeller)who retaliated against a jailhouse lawyer by falsely labeling him a snitch and guards in an Illinois jail (Broadfield v. McGrath) who were sued for using excessive force against a suicidal prisoner. She ordered a new trial in another prisoners unsuccessful lawsuit (Walker v. Price) against guards he claimed had beaten him because the court had denied his repeated requests to help him find a lawyer. She wrote sympathetically of the inmates unsuccessful struggle to represent himself before the jury by video link, given his IQ of 76 and a grade-school level of comprehension.

She has both upheld and overturned tough sentences, usually with close readings of the law and the federal sentencing guidelines. But she also used fussy grammatical nitpicking about the present-perfect tense to dissent from United States v. Uriarte, a 12-3 opinion of the entire 7th Circuit. The case applied the First Step Act, a new reduced-sentencing law, to a convict awaiting a revised sentence after his first was overturned.

In light of calls by Democrats to recuse herself from any election case that might reach the Supreme Court, its worth noting that Barrett ordered a reduced sentence because Judge Colin S. Bruce, a former federal prosecutor, had failed to recuse himself after having chummy, private conversations about other cases with prosecutors from his old office. (United States v. Atwood)

She also rejected a prison sentence that was lengthened based on an unproven assumptionthat a man convicted of stealing guns had sold them to people he supposedly knew were prohibited from having firearms. Nothing in the record suggests that he knew the buyers legal status, she wrote for a unanimous three-judge panel. The court plainly crossed the line that separates permissible commonsense inference from impermissible speculation. (United States v. Moody)

A man with both drugs and guns in his house was unduly given an enhanced sentence, she found in United States v. Briggs, for possessing a firearm in connection with another felony offense, as the federal sentencing guidelines provide. But because the district court made essentially no factual findings connecting the guns and the drug possession, she wrote for a unanimous court, the case was sent back down for resentencing.

Barretts several opinions and comments on the constitutional right to be secure against government searches offer the possibility that she might be willing to rescue the Fourth Amendment from near oblivion. Largely because of the war on drugs, the proliferation of warrantless searches of vehicles and frisks of pedestrians led Federal District Judge Paul L. Friedman to tell me a decade ago: I dont think that theres much left of the Fourth Amendment in criminal law. Since 9/11, digital surveillance rationalized by anti-terrorism policies has swept the country as well.

The amendment requires a warrant from a judge, backed by probable cause that evidence of a specific crime will be found in a particular place. But the courts have devised so many exceptions in allowing warrantless searches in so many situations that the right of the people to be secure in their persons, houses, papers, and effects, in the amendments words, has been severely undermined.

At her confirmation hearing, Barrett gave this significant response to Republican Senator Ben Sasses question about how the Fourth Amendment would deal with cell phones and other technology that didnt exist when the Bill of Rights was ratified in 1791:

No, the Fourth Amendment, so the Constitution, one reason why its the longest-lasting written constitution in the world is because its written at a level of generality thats specific enough to protect rights, but general enough to be lasting so that when youre talking about the constable banging at your door in 1791 as a search or seizure, now we can apply it, as the Court did in Carpenter versus the United States, to cell phones [requiring a warrant to get phone location records]. So, the Fourth Amendment is a principle. It protects against unreasonable searches and seizures, but it doesnt catalog the instances in which an unreasonable search or seizure could take place. So, you take that principle, and then you apply it to modern technology like cell phones. Or what if technological advances enable someone with Superman x-ray vision to simply see in your house, so theres no need to knock on the door and go in? Well, I think that could still be analyzed under the Fourth Amendment.

Although Barrett calls herself an originalist akin to her mentor, the late Antonin Scalia, for whom she clerked, her answer did not sound very different from what a liberal judge supporting a living constitution would offer. The proof always lies in how the principle is applied to the specifics of a case. But her respect for the Constitutions level of generality, enough to be lasting, suggests that she might not join the most conservative justices who dissented in Carpenter.

Writing for unanimous panels, she overturned two convictions that relied on unconstitutionally seized evidence. In one, United States v. Terry, she ruled that a woman in a bathrobe who answered the door to federal agents did not have authority to consent to a search of a male suspects apartment. The agents had arrested the man, did not have a warrant, and did not ask the woman who she was until well into the search. (She was the mother of his son but did not live there.) They found four cell phones and a drug-dealing ledger. Barrett wrote, A bathrobe alone does not clothe someone with apparent authority over a residence, even at 10:00 in the morning.

In another, United States v. Watson, she threw out a judgment based on a guilty plea because the police, acting on a 911 call from a 14-year-old boy on a borrowed phone, lacked reasonable suspicion to block a car matching his description of boys playing with guns. A passenger with a felony conviction was found to have a gun. Barrett called the 911 call not sufficiently reliable and concluded that his sighting of guns did not describe a likely emergency or crimehe reported gun possession, which is lawful.

Barrett has such a well-schooled intellect that all her opinions are intricately woven out of existing case law and statutory text, soin the criminal justice arena, at leastshe has not departed wildly from the web of precedent that confines her. She said more than once at her hearing that a judge is obliged to rule where the law takes her, which may violate her personal views. But once shes on the Supreme Court and freer to chart her course, then what?

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The Criminal Justice of Amy Coney Barrett - Washington Monthly

A guide to the statewide constitutional amendments on the ballot in November 2020 – Yellowhammer News

In this Novembers general election, voters will get to decide the fate of six statewide amendments to the Constitution of Alabama.

Yellowhammer News has prepared a guide to each statewide amendment and its impact on Alabama if enacted.

The six amendments mentioned will be on every ballot handed to an Alabamian on Election Day. Other local amendments may appear on the ballot in certain counties.

How the first amendment will appear on the ballot:

Proposing an amendment to the Constitution of Alabama of 1901, to amend Article VIII of the Constitution of Alabama of 1901, now appearing as Section 177 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, to provide that only a citizen of the United States has the right to vote.

More directly, the Alabama constitution would be changed to say only a citizen of the United States who meets certain qualifications has the right to vote

It currently says every citizen of the United States who meets certain qualifications has the right to vote.

The change that would occur if Amendment 1 passes is primarily technical; legal scholars agree current Alabama law permits only citizens to vote. Proponents of the amendment say the change is a needed clarification.

Alabama Senate Pro Tem. Del Marsh (R-Anniston) sponsored Amendment 1, and it passed the upper chamber unanimously. Marsh told Yellowhammer News at the time that his goal was to affirm that only citizens can vote in Alabamas elections.

How the second amendment will appear on the ballot:

Proposing an amendment to the Constitution of Alabama of 1901, to increase the membership of the Judicial Inquiry Commission and further provide for the appointment of the additional members; further provide for the membership of the Court of the Judiciary and further provide for the appointment of the additional members; further provide for the process of disqualifying an active judge; repeal provisions providing for the impeachment of Supreme Court Justices and appellate judges and the removal for cause of the judges of the district and circuit courts, judges of the probate courts, and judges of certain other courts by the Supreme Court; delete the authority of the Chief Justice of the Supreme Court to appoint an Administrative Director Courts; provide the Supreme Court of Alabama with authority to appoint an Administrative Director of Courts; require the Legislature to establish procedures for the appointment of the Administrative Director of Courts; delete the requirement that a district court hold court in each incorporated municipality with a population of 1,000 or more where there is no municipal court; provide that the procedure for the filling of vacancies in the office of a judge may be changed by local constitutional amendment; delete certain language relating to the position of constable holding more than one state office; delete a provision providing for the temporary maintenance of the prior judicial system; repeal the office of circuit solicitor; and make certain nonsubstantive stylistic changes.

The Fair Ballot Commission summarized in plain language the six primary changes that would be made by Amendment 2:

1. It provides that county district courts do not have to hold city court in a city with a population of less than 1,000.

2. It allows the Alabama Supreme Court, rather than the chief justice, to appoint the administrative director of courts.

3. It increases from nine to 11 the total membership of the Judicial Inquiry Commission and determines who appoints each member (the Judicial Inquiry Commission evaluates ethics complaints filed against judges).

4. It allows the governor, rather than the lieutenant governor, to appoint a member of the Court of the Judiciary (the Court of the Judiciary hears complaints filed by the Judicial Inquiry Commission).

5. It prevents a judge from being automatically disqualified from holding office simply because a complaint was filed with the Judiciary Inquiry Commission.

6. It provides that a judge can be removed from office only by the Court of the Judiciary.

Amendment 2 also changes the statutes governing Alabamas constables; these changes are opposed by the Alabama Constables Association.

The amendment was sponsored by State Senators Arthur Orr (R-Decatur) and Cam Ward (R-Alabaster).

Amendment 2 is the result of work done by a task force comprised of legislators and members of the judicial branch of government.

Advocates for the amendment say it simplifies several administrative procedures that govern Alabamas judicial system, which they argue is needed since many of the current procedures were written several decades ago and are no longer relevant.

Opponents of the measure argue that removing municipal courts from small towns with less than 1,000 residents will inconvenience the people who live there.

They also say that removing the legislatures ability to impeach judges the amendment makes the Judicial Inquiry Commission the only institution that can do so takes away the ability of the peoples representatives to get rid of bad judges.

More information on what the Judicial Inquiry Commission is and what it does can be found here.

How the third amendment will appear on the ballot:

Proposing an amendment to the Constitution of Alabama of 1901, to provide that a judge, other than a judge of probate, appointed to fill a vacancy would serve an initial term until the first Monday after the second Tuesday in January following the next general election after the judge has completed two years in office.

Most simply, the amendment would extend the time that judges who are appointed to fill an empty seat may serve.

If Amendment 3 is approved, appointed judges would run for reelection in the first general election after they have served two years in their appointed job.

Currently, appointed judges run in the first general election to occur after they have served for one year.

Tom Spencer of the Public Affairs Research Council of Alabama (PARCA)authored a report on the proposed amendments.

He noted with regards to Amendment 3, This change might make it more attractive for nominees to accept a judicial appointment. At the same time, this change gives the appointee longer to build up the advantage of incumbency before running for a full term.

Judgeships come open when a sitting judge dies, resigns, retires or is removed. The amendment would not apply to probate judges.

Amendment 3 was sponsored by State Representative David Faulkner (R-Mountain Brook) and co-sponsored by State Representative Matt Fridy (R-Montevallo).

How the fourth amendment will appear on the ballot:

Proposing an amendment to the Constitution of Alabama of 1901, to authorize the Legislature to recompile the Alabama Constitution and submit it during the 2022 Regular Session, and provide a process for its ratification by the voters of this state.

If Amendment 4 is passed, state legislators would have permission to rearrange the state constitution to do four things, per the Fair Ballot Commission:

1. Remove racist language.2. Remove language that is repeated or no longer applies.3. Combine language related to economic development.4. Combine language that relates to the same county.

Only changes in those four categories could be made.

The proposed changes would be submitted during the 2022 legislative session for approval by both chambers of the legislature.

If the updated constitution is approved by the legislature, it would then be voted on by the people of Alabama in the 2022 general election.

Only if the legislature and the people of Alabama give the updated constitution their approval in 2022 would the changes become permanent. Amendment 4 could be thought of as permission for lawmakers and legislative staff to get started on the process.

As such, Amendment 4 will not affect how the state is governed; it only permits cosmetic changes and even those have to be approved by the public in two years.

Proponents say removing racist and redundant language is a worthy change to the states primary governing document.

Amendment 4 comes from a bipartisan place; it was sponsored by State Representative Merika Coleman (D-Birmingham) and co-sponsored by State House Speaker Mac McCutcheon (R-Monrovia), among others.

How the fifth and sixth amendments will appear on the ballot:

Relating to Franklin County, proposing an amendment to the Constitution of Alabama of 1901, to provide that a person is not liable for using deadly physical force in self-defense or in the defense of another person on the premises of a church under certain conditions.

Statewide Amendment 6 reads in full:

Relating to Lauderdale County, proposing an amendment to the Constitution of Alabama of 1901, to provide that a person is not liable for using deadly physical force in self-defense or in the defense of another person on the premises of a church under certain conditions.

Both amendments would create special stand your ground laws for the churches in their respective counties.

Alabama Attorney General Steve Marshall already interprets Alabamas statewide stand your ground law as applicable to churches.

Local legislators in both Franklin and Lauderdale counties believe an additional measure stating the stand your ground law applies to churches in their counties is needed as a form of clarification.

The passage of Amendment 5 and Amendment 6 requires a majority of Alabama voters and a majority of the voters in the relevant counties.

The Fair Ballot Commissions breakdown, in plain language, of all six amendments is available here, and the full analysis from PARCA is available here.

The Fair Ballot Commission is an independent state entity that receives technical assistance from several agencies, but primarily the secretary of states office.

Sample ballots for each of Alabamas 67 counties can be found here.

Yellowhammer received guidance from Jason Isbell, a lawyer in Montgomery and a member of the Fair Ballot Commission, in putting this guide together.

Henry Thornton is a staff writer for Yellowhammer News. You can contact him by email: henry@yellowhammernews.comor on Twitter@HenryThornton95

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A guide to the statewide constitutional amendments on the ballot in November 2020 - Yellowhammer News

RUTHS HOSPITALITY GROUP, INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an…

Item 1.01 Entry into a Material Definitive Agreement

On October 26, 2020, the Company entered into a Fifth Amendment to CreditAgreement (the "Fifth Amendment") which amends its existing Credit Agreement,dated as of February 2, 2017, as amended by the First Amendment thereto, datedas of September 18, 2019, the Second Amendment thereto, dated as of March 27,2020, the Third Amendment thereto, dated as of May 7, 2020 (the "ThirdAmendment"), and the Fourth Amendment thereto, dated as of May 18, 2020, withcertain direct and indirect subsidiaries of the Company as guarantors, WellsFargo Bank, National Association, as administrative agent, and the lenders andother agents party thereto.

The Fifth Amendment extended the term of the agreement by one year to February2, 2023, reduced the revolving credit facility to $120.0 million, adjusted themonthly liquidity covenant, added a provision to allow for non-maintenancecapital expenditures based on quarterly EBITDA performance and added provisionsto the Credit Agreement to address the contemplated phase out of LIBOR. Aftergiving effect to the Fifth Amendment, the credit facility will continue toprovide for a $5.0 million subfacility of letters of credit and a $5.0 millionsubfacility for swingline loans. The Fifth Amendment did not change theConsolidated Leverage Ratio and Fixed Coverage Charge Ratio requirements. TheConsolidated Leverage Ratio and Fixed Coverage Charge Ratio requirements fromthe Third Amendment remain in effect through February 2, 2023.

The Fifth Amendment requires the Company and its subsidiaries to meet minimumaggregate cash holding requirements through March 2021 in an amount equal to thefollowing amount for each month set forth below:

The Fifth Amendment also removes the requirement that the Company use 50% of theaggregate net cash proceeds from equity issuances after May 7, 2020 in excess of$30.0 million to repay loans outstanding until the Company could demonstratecompliance with certain financial covenants.

The Fifth Amendment now allows for non-maintenance capital expenditures when theLeverage Ratio is 2.50 to 1.0 or greater with 75% of consolidated EBITDA earnedduring a fiscal quarter in excess of $7.5 million ("Excess EBITDA"). The Companyand its subsidiaries may make non-maintenance capital expenditures with ExcessEBITDA at any time after such Excess EBITDA is earned until the Leverage Ratiohas been reduced to less than 2.50 to 1.0. Prior to the Fifth Amendment, theCredit Agreement had prohibited all non-maintenance capital expenditures whenthe Leverage Ratio was 2.50 to 1.0 or greater. As was also the case before theFifth Amendment, the credit agreement provides that the Company and itssubsidiaries may make capital expenditures in any fiscal year in an amount equalto 75% of consolidated EBITDA for the immediately preceding fiscal year when theLeverage Ratio is equal to or greater than 1.50 to 1.0 but less than 2.50 to1.0. When the Leverage Ratio is less than 1.50 to 1.0, the Company and itssubsidiaries may make capital expenditures in an unlimited amount.

In connection with the closing of the Fifth Amendment, the Company repaid $20.2million in loans so that a total of $115.0 million (excluding $4.8 million inletters of credit) is currently outstanding under the credit facility. Thecurrent interest rate for borrowings under the revolving credit facility is3.75%.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under anOff- Balance Sheet Arrangement of a

Registrant

The discussion of the Fifth Amendment to Credit Agreement set forth underItem 1.01 of this Current Report on Form 8-K is incorporated herein by referencein this Item 2.03.

Item 9.01. Financial Statements and Exhibits

--------------------------------------------------------------------------------

Edgar Online, source Glimpses

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RUTHS HOSPITALITY GROUP, INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an...

Assembly Committee Clears Verrelli & Benson Bill Protecting Employees from Employer Tracking Device Violations – InsiderNJ

Assembly Committee Clears Verrelli & Benson Bill Protecting Employees from Employer Tracking Device Violations

(TRENTON) To protect workers privacy, Assembly Democrats Anthony Verrelli (D-Mercer, Hunterdon) and Daniel Benson (D-Mercer, Middlesex) sponsor legislation, advanced Friday by the Assembly Labor Committee, to ensure that employers provide written notice before using a tracking device in an employees vehicle.

The bill (A-3950) would provide regulation declaring companies using a tracking device in an employees personal vehicle, or the use of tracking devices in a company-provided vehicle without a written notice to an employee, as a crime of the fourth degree. A crime of the fourth degree includes potential imprisonment up to 18 months, a fine up to $10,000, or a combination of the two punishments.

There are currently no federal privacy laws barring businesses from tracking employees with GPS systems. Under the current legal landscape, companies do not always have to inform their employees of tracking devices, which was evident in a recent survey where more than 22 percent of employees claimed to be unaware they would be tracked when first starting a job.

This bill would further the rights of New Jersey employees under the U.S. Constitutions Fourth Amendment which protects against unreasonable searches and seizures by prohibiting tracking devices in an employees personal vehicle and only allowing such devices in a company-provided vehicle after issuing a written notice.

Assemblymen Verrelli and Benson issued the following joint statement after committee approval of the legislation:

In order for the FBI or other law enforcement agencies to track the location of our cars, a judge must first approve a warrant. Currently, if an employer wants to track an employees vehicle, there is no clear regulation prohibiting them from doing so.

As long as companies do not have to disclose the use of tracking devices in employee vehicles, or provide a written notice for the use of such devices in company-provided vehicles, employees privacy will remain at risk. Our goal is to protect the citizens of New Jersey and the privacies included in the Fourth Amendment. This bill will help accomplish that.

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Assembly Committee Clears Verrelli & Benson Bill Protecting Employees from Employer Tracking Device Violations - InsiderNJ

The tyranny of the experts – Leader & Times

GUEST COLUMN, Jason Garshfield, townhall.com

In recent weeks, Joe Biden has made his willingness to listen to the scientists a central pillar of his campaign and a major point of contrast between himself and Donald Trump. He has even said that he would shut down the nations economy again to stop the coronavirus if scientists recommended it.

Unsurprisingly, Biden has since been endorsed by Scientific American and Nature, as well as 81 Nobel laureates, who praised him for his willingness to listen to experts.

All told, this represents a startling readiness on Bidens part to cede much of his decision-making power to a small, unelected intellectual caste.

We live in a nation where citizens are given, at least nominally, a voice in public policy matters that directly affect them, and where the powers of government are restrained by the rule of law. All of this stands in stark contrast to the notion of rule-by-expert.

Indeed, if Biden sees himself as a mere conduit for the policy recommendations of experts, perhaps we should do away with the middleman. Instead of our three current branches of government, let us be ruled openly by an all-powerful council of experts, who shall issue their proclamations from on high with no check or balance on their authority. Perhaps the Iranian model will provide a useful blueprint, with the scientists standing in for the ayatollahs. Theocracy and technocracy are not so far off from each other.

If the experts truly aspire to call the political shots, then it ill-becomes them to hide behind a veneer of representative government. Permit us at least the dignity of honest tyranny.

Lest this sound extreme, it is worth taking a look at exactly what some of the experts are recommending. In a recent article, the oft-vaunted Dr. Fauci made calls for radical changes to the infrastructures of human existence, with the goal of living in greater harmony with nature. These are sweeping policy proposals, and the American people surely deserve some chance to debate them before they are implemented.

Although most experts are bright and well-intentioned people, this does not inoculate them from the human proclivity to be mistaken or corrupt as attested to by countless historical examples, from the decades-long promotion of a deeply flawed Food Pyramid in the United States to the tragic legacy of Lysenkoism in the Soviet Union.

More to the point, the expert perspective is inherently limited. The lifetime pursuit of specialized competence within a narrowly defined subfield does not prepare experts for the sort of holistic big picture thinking of which a leader must be capable.

Even the very intelligent are susceptible to the phenomenon of inattentional blindness. In one famous psychological experiment, participants who were asked to count the ball passes in a video of two teams playing ball became so focused on the task at hand that they missed the gorilla walking through the scene. Our vision literally changes based on where we focus. This is the hamartia of expertise, and it is why no one should be in any hurry to appoint a scientist as supreme leader.

An expert criminologist, for example, could theoretically recommend abandoning the Fourth Amendment or diverting our entire national budget to policing in order to catch more violent criminals. It is not the job of a leader to listen to the experts here without taking all other considerations into account.

Similarly, an epidemiologist who recommends widespread lockdowns and other extreme measures to slow the ball passes of coronavirus transmission may miss the gorillas of economic devastation, suicide, drug overdoses, and deaths from cancer and other medical issues gone untreated not to mention violations of our civil liberties, which should never, ever be dismissed lightly. Life is far more than a great game of whack-a-mole against infectious disease.

As Henry Hazlitt wrote, economists must look not merely at the immediate but at the longer effects of any act or policy, and trace its consequences not merely for one group but for all groups.

A good policymaker, in other words, must see both the ball passes and the gorilla. This is what Joe Biden will be called on to do if elected president, and a deferral of his duty to the experts will ill suit him. Experts ought to be given a fair but skeptical hearing, but final policy decisions should be based on an array of competing imperatives, within the bounds of government set for us by the Constitution.

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The tyranny of the experts - Leader & Times

Mike R. Galli is recognized by Continental Who’s Who – PRNewswire

SUNNYVALE, Calif., Oct. 26, 2020 /PRNewswire/ --Mike R. Galli is being recognized by Continental Who's Who as a Top Attorney for his outstanding contributions in the field of Law in acknowledgment for his commitment as Prosecutor Deputy District Attorney with the Office of the District San Jose California.

Having accrued 38 years of vast knowledge and professional experience in the field of criminal law, Attorney Galli has also garnered a well-deserving reputation for his contributions. To prepare for his career, he obtained his Doctor of Juris Prudence degree from Santa Clara University and is passionate about continuing education. He is devoted to educating attorneys and police officers on the practice of criminal law, especially search and seizure issues.

Since 1984, Mr. Galli has excelled as a deputy district attorney for the Santa Clara County Office of the District Attorney, where he currently reviews police reports from eight different police agencies, files felony and misdemeanor criminal charges, reviews non-narcotic misdemeanor citations to determine eligibility for a pre-filing diversion program, and answers legal questions regarding search and seizure issues from police officers and other deputy district attorneys throughout the State of California. Additionally, he serves as a unit member of the Criminal Complaint Unit at the District Attorney's Office and for the last 15 years as an instructor at the Peace Officer's Standards and Training (POST) Robert Presley Institute of Criminal Investigation.

Over the years, Mr. Galli has also worked within numerous units as a unit member and supervisor. He has been assigned to the misdemeanor DUI unit, juvenile unit, felony narcotics, asset forfeiture, economic crimes, preliminary examinations and motions, writs and appeals units. He has been the assistant supervisor of the narcotics unit twice, was the first supervisor of the narcotics asset forfeiture unit, and supervised the welfare fraud and restitution services units before his current assignment.

Throughout his extensive career, Mr. Galli is proud to have remained at the forefront of his field. He is the creator and sole author of the California District Attorney's (CDAA) Search Warrant Law and Practice Manual, now in its fifth edition, and has written it since 2009. He has also authored many articles and works on search and seizure law. These have included an article on the California Electronic Communication Privacy Act published by Police Technical in 2016, a 2014 book entitled Warrantless Searches, also published by Police Technical, a 2012 article for CDAA'S Firewall (High-Technology Crimes Newsletter) entitled People v. Diaz: Right Result, but Wrong Rationale, a 2009 article entitled Cell Phone Searches for CDAA'S Firewall, Chapter II, Search and Seizure, in CDAA'S High Technology Crimes Manual published in 2008, an article entitled Tracking Devices and the Fourth Amendment, for CDAA'S Firewall 2008, Search Warrant sections of the Santa Clara County Superior Court Judge's Duty Manual in 1994 and updated in 2007, Chapter IV, Search Warrants, in the first & second editions of CDAA's Hate Crime Monograph (1999 and 2006 editions), and an article on Drafting Narcotics Search Warrants, for CDAA'S Prosecutor's Brief in 1988. Mr. Galli has also served as the editor for the book High-Technology Crime, by Kenneth S. Rosenblatt (KSK Publications, 1995).

In recognition of his professional excellence, Mr. Galli was presented with a Commendation Letter from the San Jose Police Department (SJPD) Burglary Prevention Unit and a Commendation Letter from the SJPD Narcotics Unit in 1989, the Santa Clara County Employee of the Month Award in 1990, an SJPD Excellence Award in 1992 and the CDAA Author of the Year Award in 2009. More recently, he accepted the California Narcotics Officers Association (CNOA) Region One Prosecutor of the Year Award in 2016.

Contact: Katherine Green, 516-825-5634, [emailprotected]

SOURCE Continental Who's Who

http://www.continentalwhoswho.com

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Mike R. Galli is recognized by Continental Who's Who - PRNewswire

Mail Voting Litigation in 2020, Part II: Submission of Mail-In Ballots – Lawfare

This post is the second of a five-part series on litigation about mail voting during the 2020 general election. This series is part of Lawfare's collaboration with the Stanford-MIT Healthy Elections Project.

As the coronavirus pandemic has wrought unprecedented change on the U.S. election system in general and on mail voting in particular, voters and advocates have challenged nearly every aspect of the vote-by-mail process. This post surveys litigation brought since March 2020, challenging vote-by-mail ballot submission rules and procedures that voting rights advocates argue burden the right to vote.

Specifically, this post discusses four types of legal battles playing out across the country aimed at removing barriers for voters who cast their ballots by mail. The lawsuits challenge Election Day ballot receipt deadlines for mail-in ballots, the requirement that ballots be returned in a secrecy sleeve, the cost of postage required to mail ballots, and the lack of accommodations for voters with disabilities who seek to send ballots by mail. The claims are largely constitutional, but plaintiffs have also employed statutory arguments. Plaintiffs have had little success on ballot postage and voter assistance claims, as well as in Pennsylvanias highly publicized secrecy sleeve litigation, but have seen mixed results in Election Day receipt deadline and accessibility challenges.

Ballot Receipt Deadlines

A central category of vote-by-mail litigation concerns ballot receipt deadlines. Some states, such as Florida, Oklahoma, Georgia, Maine and Texas, mandate that mail ballots be received by election officials no later than Election Day in order to be counted. Other states require that mail ballots be postmarked no later than Election Day and received by election officials within some specified number of days after, typically two to seven days. In practice, Election Day ballot receipt deadlines result in tens of thousands of rejected ballots. In the 2020 primaries, more than 50,000 ballots were rejected for arriving late, including more than 20,000 in Florida alone. According to data from the 2018 and 2016 Election Administration and Voting Survey, late receipt is the number one cause of rejected mail ballots.

Plaintiffs have brought four main types of federal law challenges to Election Day mail ballot deadlines, three under the U.S. Constitution and one under the Voting Rights Act. The constitutional claims are that Election Day deadlines constitute an undue burden on the right to vote under the Anderson-Burdick test, violate the Fourteenth Amendment by denying procedural due process and violate the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs initially saw some success on the constitutional claims, with district courts granting plaintiffs requests for preliminary injunctions in Georgia and Wisconsin. However, appellate courts subsequently stayed these injunctions. As shown in the discussion of DNC v. Wisconsin State Legislature below, the Supreme Court has so far largely supported these appellate court stays.

The New Georgia Project case, filed in May, illustrates the undue burden and procedural due process arguments in operation. For their undue burden claims, plaintiffs relied on what is known as the Anderson-Burdick test. Developed out of two separate U.S. Supreme Court rulings, the test calls for balancing the burden imposed on the electorate by a voting regulation against the states interests in relying on that regulation. Plaintiffs argued that Georgias requirement that all mail-in ballots be received on or before Election Day posed a severe burden on the right to vote by requiring voters to learn the deadline, receive their ballots with enough time to complete and return them, and guess how many days it would take their ballots to reach election officials through the mail service. Plaintiffs further argued that even those voters who meet the deadline suffer a burden on their right to vote because they are deprived of the ability to consider their choice of candidate until Election Day due to the requirement that their ballot be in the mail soon enough to reach election officials by the Election Day ballot receipt deadline.

In addition, plaintiffs argued that Georgias Election Day ballot receipt deadline violates the Due Process Clause under the Mathews test. The Mathews test calls for balancing an individuals interest in not being deprived of a right without certain procedural protections against the governments interest. Plaintiffs argued that Georgias failure to count ballots received after Election Day and its requirement that mail voters cast their votes early deprived the voters of their protected interests to vote and have that vote count and to cast a meaningful and informed vote, since they would have incomplete information when they had to mail it. Plaintiffs also argued that additional or substitute procedural safeguards were available by counting mail-in votes postmarked by Election Day and received within five business days of the election, which would be allowed under Georgia law.

In other cases, plaintiffs have argued that Election Day ballot receipt deadlines violate a third constitutional provision: the Fourteenth Amendments Equal Protection Clause. Plaintiffs in Lewis, for example, argued that Texass Election Day receipt deadline resulted in disparate treatment of voters because different counties enforce the deadline with differing degrees of strictness.

Some federal district courts have been receptive to plaintiffs constitutional claims, but federal appellate courts have subsequently stayed district courts injunctions. For instance, the court in New Georgia Project granted the relevant part of a preliminary injunction on Aug. 31, effectively extending Georgias receipt deadline. But in early October, the U.S. Court of Appeals for the Eleventh Circuit stayed the injunction. The appeals panel found that the district court erred on two analytical fronts: first, in finding that Georgias Election Day deadline severely burdened the right to vote; and second, in improperly weighing the States interests against this burden. The Eleventh Circuit also criticized the district court for accepting the plaintiffs novel procedural due process argument, noting that, even if we could choose to innovate a new approach (which we cannot), we would see no reason to do so.

Similarly, in DNC v. Bostelmann, in response to a challenge to Wisconsins Election Day ballot receipt deadline during the states primary elections, a federal district court ordered the state to accept all ballots postmarked within six days of the election. However, the U.S. Supreme Court stayed this order, reasoning that it was issued too close to the election and was, therefore, likely to cause confusion among voters. Five months later, in late September, the district court granted a preliminary injunction in four consolidated lawsuits, including DNC v. Bostelmann. The injunction extended the deadline for the receipt of absentee ballots until Nov. 9, provided the ballots were postmarked by Election Day, Nov. 3. But the U.S. Court of Appeals for the Seventh Circuit stayed the district courts injunction in early October, agreeing with the Wisconsin legislatures contentions that a federal court should not change rules so close to an election and that political, not judicial, officials should decide when a pandemic justifies changes to otherwise valid rules.

On Oct. 26, the U.S. Supreme Court, in a 5-3 vote, rejected Democrats and voting rights groups request to strike down the Seventh Circuits stay. The court did not issue a majority opinion, but in multiple concurrences, Chief Justice John Roberts and Justices Neil Gorsuch and Brett Kavanaugh criticized the federal courts intervention in state election procedures. Roberts leveled criticism not only at the federal district court that ordered an extension of Wisconsins receipt deadline but also at district courts more broadly. In describing the courts deadline extension as improper, Roberts noted that [i]n this case, as in several this Court has recently addressed, a District Court intervened in the thick of election season to enjoin enforcement of a States laws. Gorsuch similarly found the district courts order inappropriate on the basis of both separation of powers and voter confusion concerns. Under the Constitution, according to Gorsuch, judges cannot improvise with their own election rules in place of those the peoples representatives have adopted. He stressed the measures already taken by the Wisconsin legislature to respond to the pandemic and argued that the district court was simply complaining that the state hasnt done enough. Here, Gorsuch voiced concern that there were no clear rules for a judge to use in determining exactly when a ballot receipt deadline would be acceptable. Additionally, Gorsuch raised the possibility that [l]ast-minute changes to election procedures run the risk of confusion and chaos and eroding public confidence in electoral outcomes.

Concurring, Kavanaugh articulated three reasons why the district courts injunction was unwarranted. First, the injunction violated the Purcell principle by altering state election laws close to an election. Kavanaugh explained that the Purcell principle serves to ensure that the rules of the road are clear leading up to the election, reducing voter and election official confusion, promoting efficiency, and giving citizens confidence in the election result. He noted further that it would turn Purcell on its head to interpret the principle as stated that a federal appellate court should not overturn a district court order close to the election. Instead, he saw the federal circuit courts intervention here as correcting the district courts violation of Purcell. Second, Kavanaugh stated that the district courts injunction misapprehended the limited role of the federal courts in COVID-19 cases, because it is the role of the state legislature to address the health and safety of the people. While asserting that federal courts lack the expertise needed to make changes to election laws due to the pandemic, he listed cases in which the Supreme Court has recently stayed federal court injunctions that second-guessed state legislative judgments about whether to keep or make changes to election rules during the pandemic.

Third and finally, Kavanaugh wrote that the District Court did not sufficiently appreciate the significance of election deadlines. Under the Anderson-Burdick test, he said, a states reasonable deadlines for election processes do not raise constitutional issues because a State cannot conduct an election without deadlines. In particular, he claimed that states with Election Day receipt deadlines want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flop the result of an election. He further stated that quick election results help to preserve the stability of elections. Kavanaugh endorsed in a footnote Chief Justice William Rehnquists view in Bush v. Gore that state courts are limited in their ability to rewrite state election laws for federal elections because Article II states that rules in presidential elections are to be established by state legislatures.

Justice Elena Kagan, in dissent, took issue with what she deemed Kavanaughs and the Seventh Circuits misunderstanding of Purcells message. Purcell instructs courts to consider all relevant factors, not just the calendar. While an autumn injunction could confuse voters, there is not a moratorium on the Constitution as the cold weather approaches. The federal district court was correct in issuing its order, Kagan argued, since an extension of the ballot receipt deadline would not confuse voters about how to cast their ballots or discourage Wisconsinites from exercising their right to vote. Kagan also emphasized what she viewed as the detrimental effects of the courts decision on Wisconsin voters enfranchisement. Tens of thousands of Wisconsinites, through no fault of their own, may receive their mail ballots too late to return them by Election Day, Kagan wrote. Without the district courts order, they must opt between brav[ing] the polls, with all the risk that entails, and los[ing] their right to vote.

In addition to claims arising under federal constitutional law, plaintiffs have challenged ballot receipt deadlines under Section 2 of the Voting Rights Act. For example, plaintiffs in Middleton v. Andino asserted that South Carolinas ballot receipt deadline abridge[s] and in some cases entirely den[ies] the rights of African American voters, due in part to socioeconomic differences between racial groups in South Carolina that exacerbate the coronaviruss effects. The district court denied plaintiffs motion for a preliminary injunction extending the receipt deadline. Plaintiffs in Yazzie v. Hobbs were also unsuccessful in bringing a challenge under the Voting Rights Act. On appeal, the U.S. Court of Appeals for the Ninth Circuit ruled that plaintiffssix members of the Navajo Nation who reside on the reservation in Apache County, Arizonalacked standing because they failed to plead a concrete and particularized injury. The Ninth Circuit also found that a favorable decision would not redress plaintiffs alleged injury because it would be infeasible for election officials to identify and separate mailed ballots cast by on-reservation Navajo Nation members from those cast by other voters.

In two somewhat unusual cases from the 2020 primaries, county boards of elections in Pennsylvania petitioned state courts to allow them to extend their own receipt deadlines. In one instance, the sheer volume of mail-in ballots that had to be sent to voters resulted in some voters receiving their ballots too late to return them by the deadline. In the other case, a design flaw for a website to request a mail-in ballot in another Pennsylvania county resulted in apartment numbers being left off of voters addresses, preventing mail-in ballots from reaching them in time to be returned by the receipt deadline. A state court granted the first petition, while another state court denied the latter.

For the general election, plaintiffs in Pennsylvania have secured a vote-by-mail ballot deadline extension. In Pennsylvania Democratic Party v. Boockvar, the Pennsylvania Supreme Court extended the states receipt deadline and adopt[ed] the Secretarys informed recommendation of a three-day extension of the absentee and mail-in ballot received-by deadline to allow for the tabulation of ballots mailed by voters via the USPS and postmarked by 8:00 p.m. on Election Day to reduce voter disenfranchisement. In late September, Republican state legislators, as well as the Republican Party of Pennsylvania, filed applications for a stay of the Pennsylvania Supreme Courts order at the U.S. Supreme Court. But in mid-October, the Supreme Court denied Republicans request, permitting Pennsylvania officials to count ballots received up to three days after the election. It takes five votes to issue a stay, but the court was tied on whether to grant Republicans request. Neither side of the court explained its position.

At the U.S. Supreme Court, Republican state legislators had argued that the receipt deadline extension granted by the Pennsylvania Supreme Court violates federal law that requires holding all elections for Congress and the Presidency on a single day throughout the Union and violates the Elections Clause of the U.S. Constitution by seizing the authority to set the times, places, and manner of federal elections from the state legislature. The legislators argued that the Elections Clause grants direct authority to Pennsylvanias General Assembly to regulate federal elections in Pennsylvania and that only Congress, not the Supreme Court of Pennsylvania, can alter the General Assemblys election regulations. While the legislators request for review acknowledged the coronavirus context of the Pennsylvania Supreme Courts decision, it noted that the Supreme Court of Pennsylvanias own special master found that COVID-19 is not likely to disrupt the November General Election ballot receipt deadline.

In early October, Secretary Kathy Boockvar and Pennsylvania Democrats filed briefs in response to legislators and Republicans requests for review. Boockvar argued that the legislators stay request raised concerns of federalism. This Court should not second-guess the Pennsylvania Supreme Courts straightforward construction of the Commonwealths constitution, Boockvar stated in her brief. The secretary urged that state courts be left free and unfettered by [this Court] in interpreting their state constitutions. In addition to federalism implications, a decision by the U.S. Supreme Court to grant legislators stay request could have resulted in the rejection of thousands of ballots. Such an outcome could have had an outsize impact on the results of the 2020 presidential election, since at least 3 million votes are expected to be cast by mail alone in Pennsylvania this year and because President Trump won Pennsylvania by a narrow margin of 44,000 votes in 2016. However, as previously noted, the U.S. Supreme Court has allowed the Pennsylvania Supreme Courts decision to stand.

Plaintiffs have also brought state law claims mirroring federal undue burden claims, and the results have been mixed. For instance, plaintiffs in Alliance for Retired Americans challenged Maines ballot receipt deadline as an undue burden under both the U.S. Constitution and the Maine Constitution. The court, in denying plaintiffs motion for a preliminary injunction, found this argument unavailing, stating that even in 2020, [the ballot deadline] imposes only a modest burden on the right to vote.

Michigan state courts have been all over the place on this issue. Plaintiffs in League of Women Voters of Michigan v. Benson unsuccessfully petitioned the Michigan Court of Appeals for a writ of mandamus ordering the secretary of state to accept ballots postmarked by the election date, with claims under the Michigan Constitution. The Michigan Supreme Court denied plaintiffs leave to appeal. In Michigan Alliance for Retired Americans v. Benson, plaintiffs initially saw a better outcome, as a Michigan state court granted plaintiffs preliminary injunction enjoining enforcement of Michigans Election Day ballot receipt deadline. The court held that, as applied to plaintiffs under the facts and evidence presented in this case, the ballot receipt deadline violates plaintiffs constitutional rights under Article II, Section 4, of the Michigan Constitution. It ruled that an absent voter ballot that is postmarked by no later than November 2, 2020, and received within 14 days after the election, is eligible to be counted. However, in mid-October, a state appellate court reversed that ruling, holding that under League of Women Voters of Michigan v. Benson, it is constitutional to require that ballots be received by the close of polls on Election Day to be counted.

Finally, a notable case arising out of New Yorks June 23 primary, Gallagher v. N.Y. State Board of Elections, illustrates the interplay between ballot deadlines and postal service operations. In response to the coronavirus pandemic, the New York State Legislature modified existing law to require that absentee ballots postmarked on or before Election Day be counted. Ballots were to be counted if they arrived before the close of polls on June 23 or were postmarked by June 23 and arrived by June 30. For some reason, thousands of absentee ballots for the June 23 Primary were not postmarked, even though they were mailed in. Evidence reviewed by the court indicated that a large number of ballots, especially in New York City, were invalidated because they lacked a postmark. Plaintiffs brought suit in the Southern District of New York, claiming violations of their First and Fourteenth Amendment rights, as well as corresponding rights under the New York Constitution.

Applying Anderson-Burdick, the U.S. District Court for the Southern District of New York found the burden on plaintiffs right to vote to be exceptionally severe because a large number of ballots will be invalidated ... based on circumstances entirely out of voters control. Having found a severe burden, the court applied strict scrutiny, finding that the states interest in ensuring ballots were cast before polls closed on Election Day was valid but that the postmark requirement was grossly overinclusive, covering ballots that cannot possibly have been put in the mail later than June 23.

In assessing plaintiffs Equal Protection Clause claim, the court also examined whether the postmark requirement created a voting process where the state by later arbitrary and disparate treatment, value[s] one persons vote over that of another. The court found that votes were valued differently in two ways. First, the U.S. Postal Service handled the postmark issue for ballots differently across the state. Second, because ballots travel through the mail at different speeds, ballots mailed at the same time on the same day might, by chance, be treated differentlyone might be counted and the other might not.

Having found a substantial likelihood of success on the merits, as well as a strong public interest in granting an injunction, the court determined that the equities tipped in plaintiffs favor. In early August, the court granted a preliminary injunction requiring local elections boards to count otherwise valid absentee ballots which were (1) received by June 24, 2020 without regard to whether such ballots are postmarked by June 23, 2020 and (2) received by June 25, 2020, so long as such ballots are not postmarked later than June 23, 2020.

Ballot Secrecy Sleeve Requirements

Another salient category of vote-by-mail litigation concerns ballot secrecy sleeve rules, which require voters to place completed ballots in paper envelopes before enclosing those envelopes in outer, or return, envelopes. The purpose of secrecy sleeves is to separate the voters identifying information from the ballot itself in order to protect the voters privacy. At least 15 states have laws requiring election officials to provide absentee voters with secrecy sleeves but, in many of those states, use of the secrecy sleeve is optional, and failure to use it is not grounds to reject the ballot.

In a high-profile case in Pennsylvania, Pennsylvania Democratic Party v. Boockvar, plaintiffs argued that failure to use the secrecy sleeve should not result in rejection of the ballot. In fact, most Pennsylvania counties accepted naked ballots, those not placed in secrecy envelopes, during the states June 2020 primary. Plaintiffs argued that the language of Pennsylvanias secrecy sleeve statute did not require rejection of naked ballots. On Sept. 17, the Pennsylvania Supreme Court held that naked ballots must be rejected in the November general election. After determining that the language of the statutory secrecy sleeve requirement is neither ambiguous nor unreasonable, the court came to the inescapable conclusion that a mail-in ballot that is not enclosed in the statutorily-mandated secrecy envelope must be disqualified.

According to Philadelphias city commissioner, Lisa M. Deeley, more than 100,000 ballots across the state could be rejected for missing secrecy sleeves. The Pennsylvania Supreme Courts decision has sparked a flurry of voter education efforts from nonprofit organizations and political campaigns to highlight the now-required secrecy envelope.

Cost of Postage for Mailing Ballots

Another set of legal challenges targets states failure to cover the costs of mailing completed mail-in ballots. While about a dozen statesincluding Hawaii, Oregon, and Washington, which regularly conduct all elections by maildo provide voters with prepaid ballot return envelopes, most states do not.

Plaintiffs have brought suit in several states, including Georgia, Florida, Oklahoma, Maine, South Carolina, North Carolina, Texas and Pennsylvania, alleging two constitutional violations. First, plaintiffs argue that requiring voters to pay for postage to cast their votes or apply for ballots constitutes a poll tax in violation of the Fourteenth and Twenty-Fourth Amendments. Second, plaintiffs assert that forcing voters to pay for stamps is an impermissible burden under the Anderson-Burdick test. As of mid-October, plaintiffs have had little success in ballot postage litigation. Courts have largely denied plaintiffs motions for preliminary injunctions on both their poll tax and Anderson-Burdick ballot postage claims, generally finding that paying for postage is not a poll tax and that burdens on voters do not outweigh state interests.

The case of Black Voters Matter Fund v. Raffensperger provides an illustrative example of the postage-as-poll-tax argument. Georgia law allows voters to vote absentee for any reason after applying for an absentee ballot. Plaintiffs sued Georgias secretary of state because voters must provide postage to apply for absentee ballots via mail and to return completed ballots. Plaintiffs contend the cost of stamps is tantamount to a poll tax, even though there are no statutes or regulations that require government officials to charge voters postage on absentee ballot applications. The federal district court dismissed plaintiffs poll tax claim in early August. Although the court recognized that in-person voting is potentially a difficult option for many voters, particularly during a pandemic, the court held that because in-person voting theoretically remains an option, stamps are not poll taxes under the Twenty-Fourth Amendment prism. In September, plaintiffs appealed the district courts poll tax ruling to the U.S. Court of Appeals for the Eleventh Circuit.

Other plaintiffs challenging postage requirements as poll taxes have seen mixed, but largely negative, results. For instance, in Nielsen v. DeSantis, the court summarily dismissed plaintiffs claim that a Florida statute requiring voters to pay postage for mail ballots constituted a poll tax, simply stating that [r]equiring a voter to pay for postage to mail a registration form or ballot to a Supervisor of Elections is not unconstitutional or otherwise unlawful. In Alliance for Retired Americans, the Supreme Judicial Court of Maine denied plaintiffs motion for a preliminary injunction in late September, and similarly concluded that requiring postage on a mail-in ballot is not a poll tax. A federal district court in Oklahoma reached the same conclusion in DCCC v. Ziriax. While plaintiffs have seen minimal success on poll tax claims, the U.S. District Court for the Western District of Texas declined in Lewis v. Hughs to dismiss plaintiffs challenge to a Texas law requiring voters to pay for ballot postage. The court held that it was sufficient at the motion-to-dismiss stage for plaintiffs to have alleged that postage constituted a fee that must be paid if voters wished to avoid risking harming their health to vote in person. The Fifth Circuit summarily affirmed the district courts opinion in early September and then withdrew its opinion in early October.

Plaintiffs have also brought claims that postage requirements are an impermissible burden under the Anderson-Burdick test. Parties allege a variety of burdens, many of which are exacerbated by the coronavirus. Plaintiffs in Black Voters Matter Fund, for instance, alleged that a failure to provide prepaid postage burdened the right to vote by requiring those least able to afford stamps to pay, those who lack internet access or credit cards to risk their safety by going to the post office during a pandemic, and those who have no means to do so to travel to the post office. Plaintiffs in Lewis, Alliance for Retired Americans and New Georgia Project made similar arguments, asserting that government interests are insufficient to justify these burdens.

As with poll tax claims, plaintiffs have generally seen negative results for their Anderson-Burdick claims. In denying plaintiffs motion for a preliminary injunction in Black Voters Matter Fund, the federal district court in Atlanta noted that plaintiffs failed to demonstrate a substantial likelihood of success on their argument that the burden of the postage requirement outweighs the cost to the state of the requested relief. While plaintiffs appealed the courts poll tax ruling to the Eleventh Circuit, they declined to appeal the courts Anderson-Burdick holding. The federal district court in Oklahoma, ruling in DCCC v. Ziriax and denying plaintiffs motion for injunctive relief, stated that paying for postage is a light burden on voters and that the states fiscal interests are sufficient to justify its not allocating funds to prepay for postage for absentee ballots. Similarly, in Alliance for Retired Americans, a superior court in Maine denied a preliminary injunction finding that paying for postage to return an absentee ballot by mail represents, at most, a moderate burden and, more likely, only a slight burden that is outweighed by the States interest.

Finally, in addition to federal constitutional law claims, plaintiffs have brought postage requirement suits grounded in state constitutional law. For example, plaintiffs in Stringer v. North Carolina alleged that a postage requirement for mail ballots violates the Free Elections Clause of the North Carolina Constitution, which states that [a]ll elections ought to be free. As of mid-October, the case has not progressed significantly.

Failure to Provide Accomodations for Voters With Disabilities

Plaintiffs in some states have challenged the lack of accessibility of mail voting procedures, alleging that absentee voters with disabilities face unnecessary obstacles. Generally, these cases are brought by or on behalf of visually or manually impaired individuals who are unable to transmit, mark and/or return mail-in ballots in accordance with state procedures.

Voting by mail typically entails filling out a paper ballot by hand and placing the completed ballot in the mail. While existing mail voting processes may allow nondisabled individuals to vote secretly and independently, voters with visual or manual disabilities are likely to need assistance to read and mark their paper absentee ballots, stripping them of the privacy available to nondisabled voters. Thus, plaintiffs describe their dilemma as having to make the unconscionable choice of either leaving their homes in order to receive in-person assistance with voting at the closest polling placethereby facing the threat of severe illness or death [during the pandemic]or staying home and foregoing the right to vote privately and independently (if third-party assistance is available), or the right to vote entirely (if it is not).

These cases have largely been brought in federal court, asserting violations of Title II of the Americans with Disabilities Act (ADA) or Section 504 of the Rehabilitation Act. Both claims center on the failure of states to offer reasonable accommodations to voters with disabilities in the provision of public services and federally funded programs. Plaintiffs assert the existence of a variety of logistically and financially feasible accommodations that would enable disabled voters to request, receive, complete and even return their absentee ballots electronically. For instance, Maryland has designed, implemented and made freely available to other states its ballot marking system that allows a disabled voter to receive and complete an online ballot. For voters who are blind or deaf-blind, electronic ballots permit the use of text-to-speech or braille translation software that obviates the need for assistance. In August, Pennsylvania implemented an online ballot tool, OmniBallot, which allows for the electronic delivery and marking of ballots via a link sent to eligible voters. Pennsylvania expanded accessibility after a state court ruled that its mail-in ballot process violated the ADA and Rehabilitation Act. After the ruling, the federal district court in a case challenging Pennsylvanias accessibility limitationsDrenth v. Boockvargranted defendants motion for summary judgment, agreeing with defendants argument that because a remote ballot marking system will be in place for the November 2020 general election and all future elections, there is no longer a case or controversy for the court to resolve. The court further granted defendants motion for summary judgment with respect to any claim arising from the return or submission of mailed ballots because Plaintiffs complaint did not raise such a claim.

Some plaintiffs have sought a different accommodation for blind voters: an electronic ballot delivery system that some states have created to comply with Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) obligations. Michigan, for example, voluntarily entered into a consent decree to make its UOCAVA PDF ballots available to blind voters for the states May primary election. Although Michigan does not currently permit the electronic transmission of completed ballots, voters with disabilities benefit from the increased technological accessibility to electronic ballots.

Conclusion

In recent months, voters have brought a wave of challenges to mail-in ballot submission deadlines and restrictions that they believe infringe on the publics right to vote. Plaintiffs have, thus far, seen largely negative results. Even where plaintiffs have won preliminary injunctions at the lower court level, the appellate courtsin both state and federal contextshave typically reversed rulings that would have extended ballot deadlines and relaxed limitations on voter assistance.

It remains to be seen whether additional rulings on vote-by-mail cases will be issued and implemented before November. As the coronavirus pandemic rages on, vote-by-mail will remain a crucial method of electoral participation, and voters are likely to continue to challenge state rules that they view as burdening their right to vote.

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Mail Voting Litigation in 2020, Part II: Submission of Mail-In Ballots - Lawfare

City of Pierre among South Dakota towns ordered to pay a total of $440000 because of forced catheterizations – Drgnews

The towns of Pierre, Sisseton and Wagner and former South Dakota Highway Patrol officer Adam Woxland have agreed to collectively pay a total of $440,000 in damages, legal costs and attorneys fees from a case involving the use of forced catheterizations to obtain urine samples from suspects.

A federal judge has ruled the practice of forced catheterizations is unconstitutional.

The ACLU of South Dakota and attorney Jim Leach of Rapid City filed the Fourth Amendment case on behalf of several individuals against the city of Pierre and the Pierre Police Department, the city of Wagner and the Wagner Police Department, the city of Sisseton and the Sisseton Police Department and the South Dakota Highway Patrol.

In the case, the plaintiffs said they were held down and subjected to involuntary catheterization after police obtained search warrants for urine samples to detect the presence of drugs. However, none of the search warrants obtained by police specifically authorized forced catheterization as a means of obtaining evidence.

In his April ruling, US District Judge Roberto Lange said the mere suspicion of low-level drug crimes did not justify the procedure. He says the plaintiffs were not smuggling drugs or weapons in their urethras and bladders and the catheterizations would only provide evidence of drug ingestion rather than the more serious crime of drug trafficking. Lange continued saying ingesting drugs is one of the least serious drug crimes a person can commit.

South Dakota is the only state in the nation that imposes a felony for ingestion of a controlled substance.

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City of Pierre among South Dakota towns ordered to pay a total of $440000 because of forced catheterizations - Drgnews

Former Torrington officer seeks to have evidence suppressed before trial – Scottsbluff Star Herald

A former Torrington Police Officer accused of sexual assault is seeking to suppress evidence in the case.

Attorney for Anthony John Scoleri, filed a motion on Aug. 5, to suppress evidence based on the State of Wyoming not providing evidence during discovery.

Scoleri, a former Torrington Police Department (TPD) officer, has been charged with five felony counts: One count of first-degree sexual assault, three counts of sexual abuse of a minor in the first degree, and one count of incest.

Scoleris attorney, Donna D. Domonkos, claims the state attained a search warrant on Feb. 23, 2020, for the home of Scoleri. The warrant, she said, describes the location to be searched, but does not give any particularity to what the officers were seeking. The warrant merely states that Sgt. Joel Sandlian has reason to believe there is property being concealed at the home, property that is designed or intended for use or has been used in committing a criminal offense, or tends to show a particular person committed the offense.

According to Domonkos, the search warrant in this case is invalid and the defendant was unlawfully searched and seized under the Fourth Amendment under the Constitution. The warrant for search and seizure of the property of the defendants residence did not describe any property to be seized and was left blank.

His attorney claims he was not given a copy of the search and seizure papers at the time of the search. When officers arrived, he was also told he could not go into the house while it was being searched. After the search, Scoleri found the warrant with items taken attached, in the home.

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Former Torrington officer seeks to have evidence suppressed before trial - Scottsbluff Star Herald

In its 4th revision to the SEC, Palantir tries to explain what the hell is going on – TechCrunch

For a company vaunted for its clandestine government work and strong engineering culture, you cant help but wonder if the governments bureaucratic norms and paperwork pushing are starting to flood into the Shire.

When most companies go public, they file a Form S-1 with the SEC, wait a few weeks through the investor road show, then submit an amended filing with the final details of the offering before trading commences. Simple, easy, effective. No one wants to mess with the SEC, and so top securities law firms work diligently to ensure that everything is in order when that initial form is filed.

Palantir has done nothing of the sort. It filed a confidential draft registration statement back in July. It filed an amendment. It filed another amendment. It filed its official S-1. Then an amendment, and an amendment, and an amendment, and an amendment. And its still not trading, so another amendment is in the offing.

Palantir is not a complicated business. Its a software business (mostly) today with 125 customers, making real revenues, and with a decent story to tell investors. And yet, you cant help but look agog at the level of complication and paperwork the company has created for itself by just trying to be a little bit different from everyone else.

One part of that complication was its invention of a direct listing with a lockup. When a company directly lists on a stock exchange, recent tradition holds that insiders are not locked up, which means that they will be allowed to start buying and selling their shares as soon as the company hits the market. For reasons that are known only to Palantir, the company decided to mostly block employee trading, limiting the float that can be expected when it begins trading.

So in todays 4th amendment to its S-1, we have some updated figures of what the lockup will look like. Palantir will lock up about 80% of shares in the company, allowing about 380 million shares to trade on opening day. Eight million more shares will come on the market in November when certain restricted stock units vest for company employees, and other vested RSUs will also not be beholden to the lockup agreement as they come next year.

In addition to those figures, the company noted that it is pushing back its target opening day from September 23rd to September 29th. So about a week delay, although nothing particularly notable (such changes are often made in these processes).

The direct listing with lockup was complication number one. Complication number two is the absolute byzantine ownership structure that Palantir has selected for itself. In a note added this morning in its filing, the company admits that This is a novel capital structure that differs significantly from those of other companies that have dual or multiple class capital structures. Thats quite an understatement.

In Palantirs governance structure, it will have three classes of shares. Class A shares have 1 vote, Class B shares have 10 votes and Class F shares (for Founder) have a variable number of votes that will ensure that Palantirs founders Alex Karp, Stephen Cohen and Peter Thiel maintain 49.999999% control of the company essentially in perpetuity (or at least until they want to give it up by selling).

Today, the company provided a handy table on exactly what that all means, as its not simple at all. Lets take a look at a cleaned-up version of their voting table, based on which founders are employed at Palantir at a specific time:

The key here is that so long as the three founders are all actively working at Palantir, their ownership is meant to be capped at 49.999999% of the company. In other words, any other shares they own of the Class A and Class B varietals are included within that ownership number. This is something I have gotten wrong, so mea culpa, although frankly, if you need to file a half dozen amendments to the SEC to explain what you are doing, I feel like I am in good company.

Where it gets bizarre is if one of the three founders leaves. In those scenarios, the three of them collectively will have even more power than if they all actually work at the company simultaneously. For instance, if Thiel leaves the company (which in his case means resigning from the board), the three founders actually increase their voting power collectively from 49.999999% to 64.999999%, assuming Thiel doesnt sell any of his own shares. What do those calculations ultimately mean? Well, Palantir was gracious enough to put an explanation in its fourth amendment on exactly what it all boils down to:

While the Board retains the power to hire and remove members of our management, which currently includes two of our Founders, the Founders would continue to beneficially own shares of Class F common stock and Class B common stock and be able to exercise control over matters submitted to a vote of our stockholders so long as our Founders who are then party to the Founder Voting Agreement and certain of their affiliates collectively meet the Ownership Threshold on the applicable record date, even if one or more of our Founders resigns from the Company or is terminated. (Emphasis mine)

In other words, if you strike them down, they shall become more powerful than you can possibly imagine, Shareholder.

Palantir in this filing also made clear that there is at least some floor by which the three founders have to collectively own the company. With all three of them onboard, they have to maintain ownership over 100 million shares of the company, or slightly less than 5%. So they cant, say, own 0.0001% of the company and control 49.999999% of the vote. What a relief!

Look, founder control is a mainstay of modern Silicon Valley tech IPOs. But weve never seen such an extensive, interlocking set of systems designed to make a company absolutely impregnable to any form of external governance. I can understand the concerns with Palantir, given its work, its controversies and the extreme media attention it receives. It probably needs some form of governance that provides it stability amidst the maelstrom. But all of this sets such a bad precedent for the rest of Silicon Valley that I hope its recognized in their share price.

Updated September 18 to add Palantirs delay of its opening day to September 29.

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In its 4th revision to the SEC, Palantir tries to explain what the hell is going on - TechCrunch

Council To Have One-Day Session To Learn About Police – The Rhino TImes

Greensboro City Councilmember Marikay Abuzuaiter is finally going to get a long time request granted.

For months Abuzuaiter has been pushing for a mini-police academy course for members of the City Council.

Abuzuaiter is a proud graduate of the Police Citizens Academy, which is a program to teach citizens about the Police Department, and has long advocated for the City Council to spend a few hours in a similar setting learning about police policies and procedures.

The City Council has been focused on police procedures this year and during just about every discussion Abuzuaiter has advocated for a mini-police academy class for councilmembers. At one point, Abuzuaiter had given up on the idea of ever having a mini-police academy and suggested that the City Council simply have a work session on the Police Department rather than looking at the issue of the day in isolation.

At the City Council virtual work session on Tuesday, Sept. 15, City Manager David Parrish confirmed that a mini-police academy session would be provided for councilmembers who wished to participate and it would last for less than a day.

Assistant City Manager Trey Davis said it would be a short course based on the Police Citizens Academy model and would cover things like use of force, procedural justice, traffic stops, the early warning system, the Fourth Amendment and other topics. Abuzuaiter said, A lot of these questions that keep arising would be handled in a course like that.

Councilmember Sharon Hightower said, We dont need to learn how to be a police officer. She added, I think we already know what they do.

Mayor Nancy Vaughan said that she did a similar one-day course with the fire department, learned a lot and had a lot of fun.

Vaughan also said that the media was invited to the fire department class.

Councilmember Goldie Wells said that police were under attack all over the country and would benefit the council in its decision making to know and understand more about the day-to-day life of a police officer.

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Council To Have One-Day Session To Learn About Police - The Rhino TImes

Justice Ruth Bader Ginsburgs Lasting Impact on U.S. Traffic Laws – The Art of Gears

Justice Ginsburg was involved in several seminal traffic stop cases.

In honor of the passing of Justice Ruth Bader Ginsburg of the Supreme Court of the United States, we are covering a topic thats slightly different from the norm today.

Ginsburg is nothing short of a monumental figure in the history of the American legal system. She served for 27 years on the nations highest court, the culmination of a long and storied career as a jurist and judge.

What car enthusiasts might not know is that Ginsburg tackled automotive-related legal issues throughout her time on the bench. Ginsburg, along with her Supreme Court colleague Antonin Scalia, authored numerous opinions addressing the rights of Americans as drivers and passengers of wheeled vehicles.

Consider, for example, the Supreme Courts recent ruling inKansas v. Glover. That case involved a legal question of whether a police officer, who runs a vehicles license plate, can assume that the car is being driven by the registered owner and conduct a traffic stop. In the specific case, the registered owner of the car had a revoked drivers license, which the officer used as a basis for pulling over the car.

The Supreme Court ruled that the vehicle owners revoked license was basis enough for a traffic stop to occur, even if the officer may not know who is actually driving the car. Ginsburg, at oral argument, questioned attorneys for the state about whether they believed that a driver with a revoked license would subsequently break the law. Ginsburg subsequently sided with the majority, which ruled that such a traffic stop was constitutional and thus permissible.

Rodriguez v. United States Length of traffic stops

Ginsburgs focus on personal liberties was more fully realized in thecase ofRodriguez v. United States, which concerned the question of how long traffic stops may last.

Rodriguez concerned the question of whether a traffic stop, occurring on the basis of a traffic violation, could be extended to cover additional law enforcement measures, such as the use of a drug-sniffing dog.

Ginsburg wrote the eloquent majority opinion, stating that a traffic stop will become unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation. Ginsburg reasoned that because the initial purpose of the stop was to investigate why the driver in question had swerved out of his lane, the scope of the traffic stop was limited to investigation of that question.

Notably, Scalia joined in the majority opinion, despite the well-publicized differences in opinion between himself and Ginsburg.

Ginsburg joined the majority inBrendlin v. California, which held that both passengers and drivers are seized under the Fourth Amendment during a traffic stop.

This ruling matters because evidence discovered by police as a result of anunreasonable traffic stop is not admissible in court, due to the Fourth Amendments protection against unreasonable searches and seizures.

Justice Ginsburg is a legendary judge, and her legacy lives on in how traffic laws are enforced in America. While Ginsburgs personal feelings on cars are unknown, her impact will forever be felt when drivers are detained for traffic violations.

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Justice Ruth Bader Ginsburgs Lasting Impact on U.S. Traffic Laws - The Art of Gears

Things to Know Before Your Neighborhood Installs an Automated License Plate Reader – EFF

Every week EFF receives emails from members of homeowners associations wondering if their Homeowners Association (HOA) or Neighborhood Association is making a smart choice by installing automated license plate readers (ALPRs). Local groups often turn to license plate readers thinking that they will protect their community from crime. But the truth is, these cameraswhich record every license plate coming in and out of the neighborhoodmay create more problems than they solve.

Some members of a community think that, whether theyve experienced crime in their neighborhood or not, a neighborhood needs increased surveillance in order to be safe. This is part of a larger nationwide trend that shows that peoples fear of crime is incredibly high and getting higher, despite the fact that crime rates in the United States are low by historical standards.

People imagine that if a crime is committed, an association member can hand over to police the license plate numbers of everyone that drove past a camera around the time the crime is believed to have been committed. But this will lead to innocent people becoming suspects because they happened to drive through a specific neighborhood. For some communities, this might mean hundreds of cars end up under suspicion.

Also, despite what ALPR vendors like Flock Safety and Vigilant Solutions claim, there is no real evidence that ALPRs reduce crime. ALPR vendors, like other surveillance salespeople, operate on the assumption that surveillance will reduce crime by either making would-be criminals aware of the surveillance in hopes it will be a deterrent, or by using the technology to secure convictions of people that have allegedly committed crimes in the neighborhood. However, there is little empirical evidence that such surveillance reduces crime.

Like all machines, ALPRs make mistakes

ALPRs do, however, present a host of other potential problems for people who live, work, or commute in a surveilled area.

ALPRs are billed as neighborhood watch tools that allow a community to record which cars enter and leave, and when. They essentially turn any neighborhood into a gated community by casting suspicion on everyone who comes and goes. And some of these ALPR systems (including Flocks) can be programmed to allow all neighbors to have access to the records of vehicle comings and goings. But driving through a neighborhood should not lead to suspicion. There are thousands of reasons why a person might be passing through a community, but ALPRs allow anyone in the neighborhood to decide who belongs and who doesnt. Whatever motivates that individual - racial biases, frustration with another neighbor, even disagreements among family members - could all be used in conjunction with ALPR records to implicate someone in a crime, or in any variety of other legal-but-uncomfortable situations.

The fact that your car passes a certain stop sign at a particular time of day may not seem like invasive information. But you can actually tell a lot of personal information about a person by learning their daily routinesand when they deviate from those routines. If a persons car stops leaving in the morning, a nosy neighbor at the neighborhood association could infer that they may have lost their job. If a married couples cars are never at the house at the same time, neighbors could infer relationship discord. These ALPR cameras also give law enforcement the ability to learn the comings and goings of every car, effectively making it impossible for drivers to protect their privacy.

These dangers are only made worse by the broad dissemination of this sensitive information. It goes not just to neighbors, but also to Flock employees, and even your local police. It might also go to hundreds of other police departments around the country through Flocks new and aptly-named TALON program, which links ALPRs around the country.

HOAs and Neighborhood Associations are rarely equipped or trained to make responsible decisions when it comes to invasive surveillance technology. After all, these people are not bound by the oversight that sometimes accompanies government use of technology--theyre your neighbors. While police are subject to legally-binding privacy rules (like the Fourth Amendment), HOA members are not. Neighbors could, for instance, use ALPRs to see when a neighbor comes home from work every day. They could see if a house has a regular visitor and what time that person arrives and leaves. In San Antonio, one HOA member was asked what they could do to prevent someone with access to the technology from obsessively following the movements of specific neighbors. He had never considered that possibility: "Asked whether board members had established rules to keep track of who searches for what and how often, Cronenberger said it hadnt dawned on her that someone might use the system to track her neighbors movements.

Like all machines, ALPRs make mistakes. And these mistakes can endanger peoples lives and physical safety. For example, an ALPR might erroneously conclude that a passing cars license plate matches the plate of a car on a hotlist of stolen cars. This can lead police to stop the car and detain the motorists. As we know, these encounters can turn violent or even deadly, especially if those cars misidentified are being driven by Black motorists.

This isnt a hypothetical scenario. Just last month, a false alert from an ALPR led police to stop a Black family, point guns at them, and force them to lie on their bellies in a parking lotincluding their children, aged six and eight. Tragically, this is not the first time that police have aimed a gun at a Black motorist because of a false ALPR hit.

Though police have used these tools for decades, communities have only recently had the ability to install their own ALPR systems. In that time, EFF and many others have criticized both ALPR vendors and law enforcement for their egregious abuses of the data collected.

Police abuse this technology regularly. And unfortunately, neighborhood users will likely do the same.

A February 2020 California State Auditors report on four jurisdictions use of this tech raised several significant concerns. The data collected is primarily not related to individuals suspected of crimes. Many agencies did not implement privacy-protective oversight measures, despite laws requiring it. Several agencies did not have documented usage or retention policies. Many agencies lack guarantees that the stored data is appropriately secure. Several agencies did not adequately confirm that entities they shared data with had a right to receive that information. And many did not have appropriate safeguards for users accessing the data.

California agencies arent unique: a state audit in Vermont found that 11% of ALPR searches violated state restrictions on when cops can and can't look at the data. Simply put: police abuse this technology regularly. And unfortunately, neighborhood users will likely do the same.

In fact, the growing ease with which this data can be shared is only increasing. Vigilant Solutions, a popular vendor for police ALPR tech, shares this data between thousands of departments via its LEARN database. Flock, a vendor that aims to offer this technology to neighborhoods, has just announced a new nationwide partnership that allows communities to share footage and data with law enforcement anywhere in the country, vastly expanding its reach. While Flock does include several safeguards that Vigilant Solutions does not, such as encrypted video and 30-day deletion policies, many potential abuses remain.

Additionally, some ALPR systems can automatically flag cars that dont look a certain wayfrom rusted vehicles to cars with dents or poor paint jobsendangering anyone who might not feel the need (or have the income required) to keep their car in perfect shape. These vehicle fingerprints might flag, not just a particular license plate, but a blue Honda CRV with damage on the passenger side door and a GA license plate from Fulton County. Rather than monitoring specific vehicles that come in and out of a neighborhood via their license plate, vehicle fingerprint features could create a trouble drag-net style of monitoring. Just because a person is driving a damaged car from an accident, or a long winter has left a persons car rusty, does not mean they are worthy of suspicion or undue police or community harassment.

Some ALPRs are even designed to search for certain bumper stickers, which could reveal information on the political or social views of the driver. While they arent in every ALPR system, and some are just planned, all of these features taken together increase the potential for abuse far beyond the dangers of collecting license plate numbers alone.

Unfortunately, ALPR devices are not the first piece of technology to exploit irrational fear of crime in order to expand police surveillance and spy on neighbors and passersby. Amazons surveillance doorbell Ring currently has over 1,300 partnerships with individual police departments, which allow departments to directly request footage from an individuals personal surveillance camera without presenting a warrant. ALPRs are at least as dangerous: they track our comings and goings; the data can indicate common travel patterns (or unique ones); and because license plates are required by law, there is no obvious way to protect yourself.

If your neighborhood is considering this technology, you have options. Remind your neighbors that it collects data on anyone, regardless of suspicion. They may think that only people with something to hide need to worrybut hide what? And from who? You may not want your neighbor knowing what time you leave your neighborhood in the morning and get back at night. You may also not want the police to know who visits your home and for how long. While the intention is to protect the neighborhood from crime, introducing this kind of surveillance may also end up incriminating your neighbors and friends for reasons you know nothing about.

You can also point out that ALPRs have not been shown to reduce crime. Likewise, consider sending around the California State Auditors report on abuses by law enforcement. And if the technology is installed, you can (and should) limit the amount of data thats shared with police, automatically or manually. Remind people of the type of information ALPRs collect and what your neighbors can infer about your private life.

If you drive a car, youre likely being tracked by ALPRs, at least sometimes. But that doesnt mean your neighborhood should contribute to the surveillance state. Everyone ought to have a right to pass through a community without being tracked, and without accidentally revealing personal details about how they spend their day. Automatic license plate readers installed in neighborhoods are a step in the wrong direction.

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Things to Know Before Your Neighborhood Installs an Automated License Plate Reader - EFF

Attorney argues Haynes and his brother bribed witness to recant his testimony in 1999 murder case – Kankakee Daily Journal

KANKAKEE The attorney representing several people and government agencies being sued by Terrence Haynes argued in a motion Haynes and his brother, Jemiko Bates, bribed a witness in order to get his release from state prison and murder charges dropped from a 1999 case.

Haynes had served 20 years of a 45-year sentence, but the Illinois Appellate Court ruled in May 2018 he should be tried again when it was learned a key witness recanted his testimony and as other facts came to light.

The latest motion in the case was filed Wednesday in U.S. District Court in Urbana by Chicago attorney James Sotos.

Sotos represents the City of Kankakee, Kankakee police officers Kenneth Lowman, Samuel Miller and Susan Wagner, Kankakee County, and former Kankakee County Assistant States Attorneys Frank Astrella and Michael Jeneary.

Lowman, Miller and Wagner investigated the case, while Astrella and Jeneary prosecuted it.

In his new filing, Sotos argued that tapes of phone calls Haynes made with family members, including Bates, show he and his brother conspired to pay $1,000 to Marcus Hammond, the states key witness at his August 2000 trial.

According to Sotos filing, Haynes discussed in early 2015, a $1,000 payment from his brother to Hammond in exchange for his testimony.

Those calls demonstrate that [Haynes] actively approved of and offered money to fund the bribe, according to the filing.

Plaintiff has benefited tremendously from the bribery, including through the dismissal of criminal charges and receipt of a Certificate of Innocence. But Plaintiffs use of the bribe to manufacture and advance this lawsuit in discovery now places him in the crosshairs of this Courts broad remedial powers.

Hammond recanted his earlier testimony that Murrell did not have a gun when Haynes fired two shots, hitting Murrell. Hammond was 10 years old when the shooting occurred on the porch of his brothers (Gary Hammond) house.

According to court documents, Hammond told investigators Murrell was armed and going for his gun. Hammond said prosecutors told him to say he did not see Murrell with a gun.

Michael Jeneary and Marcus Hammond are cousins. This fact was brought up when Haynes filed a motion in 2008 that his due process rights were violated.

The 43-year-old Haynes is represented by Chicago attorneys Andrew M. Hale and Shawn W. Barnett of the firm Hale & Monico. They filed the lawsuit in October 2019.

Haynes and Bates are currently out on bail after both were arrested in July in Coles County and charged with drug trafficking.

Haynes lawsuit seeks compensatory damages, punitive damages, attorneys fees, costs and for any additional relief that is just and proper.

They argue that Haynes constitutional rights were violated, including the Fourth Amendment (unreasonable search and seizures) and 14th Amendment (due process).

The other four counts deal with Illinois state law in regard to malicious prosecution, intentional infliction of emotional distress, legal malpractice and compensation.

In June 2019, Haynes had all charges dropped against him from a 1999 arrest for the homicide of May 1999 shooting and killing of Cezaire Murrell.

Murrell and Haynes were involved in a fight prior to the shooting, according to court documents. Haynes was convicted in August 2000 and was sentenced to 45 years by Kankakee County Judge Kathy Bradshaw Elliott.

After the Illinois Appellate Court ruled in May 2018 he should be tried again, Kankakee County States Attorney Jim Rowe dismissed the charges rather than try Haynes for a third time.

Rowe also agreed with a motion filed by Haynes attorneys for the court to grant a Certificate of Innocence. The certificate can remove the conviction from a persons record. If granted, a wrongly convicted person can bring a claim for damages against the state.

According to the motion filed Wednesday by Sotos, the amount paid by the state was $236,095.

At Haynes hearing in regards to the Certificate of Innocence, Jeffrey R. Kivetz, an attorney with Sotos firm, was escorted from the courtroom after trying to get Judge Michael Sabol to allow him to speak.

Kivetz said he wanted to speak about the certificate. Rowe and Barnett both said Kivetz had no connection with this case.

As Kivetz was being escorted out he said, I wasnt trying to be rude. I just was trying to give our opinion.

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Attorney argues Haynes and his brother bribed witness to recant his testimony in 1999 murder case - Kankakee Daily Journal

Editorial, August 10, 2020: Your cellphone might be "Big Brother" – Richmond.com

You might not know geofencing, but it knows you.

Geofencing is defined as a technology that draws a virtual line around a physical area so that a signal can be sent to a mobile electronic device, such as a cellphone, that has passed through that area.

If youve ever walked into a store, spoken to no one and then very shortly gotten an email or text from that store, youre familiar with the practice if not the word.

Geofencing also is a law enforcement tool, at least until and unless the courts decide otherwise.

Last year, a man robbed a Richmond-area bank of $195,000. A search warrant led to Google opening its cellphone accounts to focus on everyone near the bank at the time of the robbery. With a little sleuthing, the cops narrowed their search down to one man whose phone was inside the bank when it was robbed. He was caught with $100,000 and he confessed.

Now the mans lawyers claim that the Google search violated the Fourth Amendment, which guarantees citizens protection against unreasonable searches and guards our expectation to privacy.

His attorneys say finding the location of every cellphone near that bank is like searching every home in a neighborhood because of a nearby robbery. The federal court in Richmond will decide whether theyre right.

Freeing a man who pretty obviously did the crime on a technicality would be a hard pill to swallow. However, the way he was caught is problematic.

If you have an Android phone or iPhone, and Location History is enabled, the data from that phone is tracked and stored.

Many of us do not like the idea that our every move is being recorded. That seems invasive, not to say irritating.

A man in Florida learned that police were seeking information on his Google account. He coincidentally was in the same area where a home was burglarized and was a suspect. He spent thousands clearing his name.

An Arizona man spent six days in jail after a geofence search showed him at a place where a crime was committed. Turns out, hed given his old cellphone to another man, who did the deed.

New York state is considering a bill that would ban geofence warrants there. The federal ruling in Richmond will help determine their legality nationwide.

Geofencing is no doubt valuable in catching criminals, but the amount of privacy every citizen gives up seems like a high price to pay for making crime prevention a little easier.

If the police came knocking on your door, demanding to search your house because somebody on your block committed a crime, you likely would feel violated. Geofencing is like that, except you dont even know youre being searched. That makes it even scarier.

Adapted from The Free Lance-Star, Fredericksburg

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Editorial, August 10, 2020: Your cellphone might be "Big Brother" - Richmond.com

Legal Brief: Surveillance and the Fourth Amendment – SecurityInfoWatch

Timothy J. Pastore, Esq., is a Partner in the New York office of Saul Ewing Arnstein & Lehr LLP (www.saul.com), where he is the Chair of the Security Systems Practice Group. Before entering private practice, Mr. Pastore was an officer and Judge Advocate General (JAG) in the U.S. Air Force and a Special Assistant U.S. Attorney with the U.S. Department of Justice. Reach him at (212) 980-7204 or by e-mail at timothy.pastore@saul.com.

Are you a homeowner? Do you value your privacy?

Do me a favor stand inside your front door. Do you expect that your conduct is private in your home? Now, step immediately outside your front door, just a few feet from where you stood inside. How about now?

You may be surprised to learn that the law may treat these two spots very differently.

It could be that you have a reasonable expectation of privacy inside your home, but no such reasonable expectation immediately outside your home. This appears to be the ruling of the United States Court of Appeals for the First Circuit (an intermediate federal appeals court) in a case known as United States v. Moore-Bush, 2020 WL 3249060 (1st Cir. 2020).

In this recently decided case, the court considered whether the governments warrantless use of a pole camera to continuously record the front of the defendants home infringed on the defendants reasonable expectation of privacy in and around their home and, thereby, violated the Fourth Amendment of the U.S. Constitution. The appellate court reversed the trial court and determined that the warrantless use of the camera was permissible and not a violation of the defendants fourth amendment rights.

As a former prosecutor, I agree with the decision, and I am glad that the drug and gun dealing defendants were caught and are subject to punishment; however, the decision is nevertheless thought-provoking and controversial.

The principal defendant an attorney and magistrate operated a side business dealing in illegal drugs and guns. Not a good idea.

She and her boyfriend lived with her mother in a quiet residential neighborhood. After a confidential informant bought four guns illegally at the residence, officers installed a pole camera across the street that viewed one side of the house.

The pole camera took continuous video recording for approximately eight months; focused on the driveway and the front of the house; had the ability to zoom in so close that it can read license plate numbers; and created a digitally searchable log.

The police also conducted physical surveillance of the residence seeing what anyone on the street could see.

Based, in part, on evidence gathered by the pole camera, the police obtained a series of other search warrants related to the investigation. Eventually, the principal defendant, her boyfriend and the principal defendants mother were charged with drug trafficking.

In advance of the presentation of evidence, the trial court ruled that the use of the pole camera for an extended period, coupled with the ability to zoom and to search the recordings, constituted an illegal search under the Fourth Amendment, leading to suppression of critical evidence in the case.

The government appealed the ruling of the trial court that the use of the pole camera violated the defendants rights. The appellate court reversed holding that the pole camera revealed nothing more than could be lawfully viewed by officers on the street; and therefore, no warrant was required, and the evidence gathered by the camera and other warrant-based evidence gathered subsequently was admissible and could be used against the defendants in their criminal trial.

Among other things, the appellate court held that what one knowingly exposes to public view does not invoke reasonable expectations of privacy protected by the Fourth Amendment.

The majority opinion in the Moore-Bush case was accompanied by what is known as a concurring opinion where one or more appellate judges agree with the conclusions of the majority of the court, but for different reasons. In this case, one of the appellate judges separately wrote a concurring opinion that began by acknowledging the logic of defendants arguments. In particular, the judge analogized the case to sign stealing in baseball, where it is acceptable that a base runner might steal a sign from the other team, but using a hidden camera to continuously record all signs throughout a game is not.

The concurring opinion also raised a concern that, given the pace of innovation, law enforcement will have license to conduct a degree of unchecked criminal investigatory surveillance that the Fourth Amendment could not possibly have been intended to allow. Nevertheless, the concurrence did not disagree with the result.

What is interesting is that the police officers investigating the defendants could have sought a warrant from a court at any time for the use of the camera essentially mooting the issues ultimately raised in the appeal. For whatever reason, they did not. Maybe they did not want to risk being denied a warrant, maybe they were worried about bias because one of the defendants was a magistrate judge, maybe they deemed it totally unnecessary because, in their view, it did not rise to the level of an unreasonable search and seizure otherwise prohibited by the Fourth Amendment.

We may never learn the motivation of these investigating officers, but, at a minimum, we can thank them for getting guns and drugs off the street. The issue, of course, is whether they violated the Constitution in the process. I believe not and the United States Court of Appeals for the First Circuit agrees.

How about you? Do you agree? I suggest you think about it maybe out on your front porch and be sure to smile for the camera.

Timothy J. Pastore, Esq., is a Partner in the New York office of Saul Ewing Arnstein & Lehr LLP (www.saul.com), where he is the Chair of the Security Systems Practice Group. Before entering private practice, Mr. Pastore was an officer and Judge Advocate General (JAG) in the U.S. Air Force and a Special Assistant U.S. Attorney with the U.S. Department of Justice. Reach him at (212) 980-7204 or by e-mail attimothy.pastore@saul.com.

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Legal Brief: Surveillance and the Fourth Amendment - SecurityInfoWatch

Common Ways to Fight Against a Drug Possession Charge – Student Assembly of the State University of New York

Drug possession is the most common type of drug charge there is. Possession can fall under either a felony or a misdemeanor, and the category of crime it will fall under hinges on the type of controlled substance involved and how much of it there is.

Getting arrested for drug possession can be frightening, but you have less to worry about if your case is in the hands of an experienced drug possession attorney. Depending on the nature of your charges and your arrest, you and your attorney have a number of defenses to use to fight against your charge.

Here are the most common defenses you can expect to use for your case.

Entrapment is a defense that is built on the interaction you had with the arresting officers before or during the alleged crime. Illegal entrapment occurs when the arresting officer lures you into committing a crime that you wouldnt perpetrate otherwise. Police officers have every right to set up a string operation, but its illegal for them to compel you to do something you wouldnt have anyway. For example, if an officer forces you to consume a drug or offer to them to someone else, this can be considered illegal entrapment.

In the case of unwitting possession, your defense is that you werent aware the substances were in your person. This could happen if perhaps you were borrowing your friends car or watching their house for them while they were away and the police find the drugs in these locations and pin the crime on you.

Lack of possession means that there is a lack of evidence that establishes beyond a reasonable doubt that the controlled substance actually belonged to you. You cant be found guilty on the basis of mere proximity to the item since there is no sufficient proof to demonstrate that its yours.

There are plenty of substances that only simulate the appearance of drugs, but are actually made up of a completely different material. For example, talcum powder may resemble a drug like cocaine, even though they have completely different chemical make-ups. If the crime lab analysis shows that the controlled substance is not an illegal narcotic or if the lab makes an error in their investigation, then its likely that you can use this defense to get your case dismissed.

As an American citizen, you have the right to due process under the Fourth Amendment to the U.S. Constitution. This law protects you from illegal search and seizure procedures made by the police. Youre required to give your full consent for them to be able to do so, or they must have a search warrant or establish probable cause to legally conduct a search. Any piece of evidence against you that had to be obtained illegally cant be used in a trial which increases the chances of your case being dismissed.

This defense works much like the entrapment defense in that it claims that a police officer is forcing you to commit a crime you wouldnt normally commit. The only difference is that in this particular case, the drugs were planted on you by the arresting officers without your knowledge.

If you or someone you know is currently facing drug possession charges, an experienced attorney may use any of these defenses to help you get the most favorable results for your case.

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Common Ways to Fight Against a Drug Possession Charge - Student Assembly of the State University of New York

Trump Judge Casts Deciding Vote to Grant Qualified Immunity on First Amendment Retaliation Claim: Confirmed Judges, Confirmed Fears – People For the…

Confirmed Judges, Confirmed Fears is a blog series documenting the harmful impact of President Trumps judges on Americans rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Sixth Circuit judge Chad Readler cast the deciding vote to reverse a district court and rule that a government security officer had qualified immunity and could not be sued for excessive use of force in responding to a persons protest against government officials. The July 2020 decision is Sevy v Barach.

Anthony Sevy went to a Michigan state courthouse to pay a $10 parking ticket. When he tried to pay with a debit card, he was told he would have to pay an additional $1.75 processing fee. He refused and later returned with $10 worth of pennies as a form of protest, which officials refused to accept. Things escalated and two security officers became involved. According to Sevy, one of those officers, Philip Barach, grabbed him as he was leaving, threw him to the ground, and choked him until he lost consciousness while he was placed under arrest. When he awoke, he was handcuffed and taken to an elevator where, Sevy explained, Barach threw him to the ground and knocked his head against the side of the elevator. Sevy was charged with disorderly conduct, to which he pleaded no contest, and was allowed to go home.

Sevy then proceeded to sue the officers in federal court, claiming Fourth Amendment excessive force and First Amendment retaliation. The district court granted qualified immunity to the other officer but denied it to Barach, who then appealed.

All three judges ruled against Barach on the Fourth Amendment immunity claim, either based on the merits or for lack of jurisdiction. In a 2-1 vote with Readler providing the deciding vote, however, the majority reversed the district court and ruled that Barach should get immunity on the First Amendment claim. In order to overcome qualified immunity, a person must show that clearly established constitutional rights were violated. The majority maintained that Sevys First Amendment claim was not clearly established because he could point to no caselaw establishing a right to recover on a First Amendment retaliation theory for excessive use of force in executing an arrest.

Judge Karen Nelson Moore strongly dissented. Sevys First Amendment right to protest and criticize government officials, Moore explained, is clearly established such that a reasonable officer would know that he could not use any force to retaliate against an individual for the exercise of that speech. Moore continued that [a]mple precedent supports the clarity of Sevys rights, and that a reasonable officer cannot claim that they would be surprised to learn that the use of physical force in retaliation for the exercise of those First Amendment rights was a constitutional violation. A previous decision addressing identical action, as the majority seemed to be demanding, was simply not necessary according to Moore, and the decision should have been affirmed.

As a result of Readlers deciding vote, however, Sevy will not be able to pursue his First Amendment retaliation claims. The case is yet another example of an appeals court decision made possible by a Trump nominee that reversed a lower court and dismissed a claim without trial against a law enforcement official for excessive use of force, in this case in retaliation for the exercise of a First Amendment right to protest.

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Trump Judge Casts Deciding Vote to Grant Qualified Immunity on First Amendment Retaliation Claim: Confirmed Judges, Confirmed Fears - People For the...

Did Judge Reeves Reach the Correct Result in Jamison v. McClendon? – Reason

As many readers know, District Judge Carlton Reeves recently published a blistering opinion about the injustice of qualified immunity law in Jamison v. McClendon. In the case, Judge Reeves argues that its factsinvolving a Black driver allegedly badgered, lied to, and searched by a white police officershine a light on why justice demands that qualified immunity must be overturned. The officer violated the Constitution, Judge Reeves concludes, but he cannot be held liable thanks to the "unsustainable" doctrine of qualified immunity that in "real life . . . operates like absolute immunity." Judge Reeves writes: "Just as the Supreme Court swept away the mistaken doctrine of separate but equal, so too should it eliminate the doctrine of qualified immunity." He concludes: "Let us waste no time in righting this wrong."

There's a lot going on in the Jamison case, and there are many aspects of the case that are very interesting and very much worth reading. As most readers know, there's an ongoing national conversation about whether qualified immunity should be abolished. I gather Jamison was designed to be (and already is) part of that public conversation. That's a hugely important debate that has often been discussed here at the blog, in particular with respect to Will Baude's important scholarship.

As a Fourth Amendment nerd, though, I wanted to focus on a doctrinal part of the case that has not been discussed: Was Judge Reeves correct that the officer was entitled to qualified immunity under current law?

I'm skeptical. It seems to me that that Judge Reeves likely was wrong, and that the officer was not entitled to qualified immunity. In particular, I worry that Judge Reeves may have misunderstood the relevant Fourth Amendment doctrine. That misunderstanding may have led Judge Reeves to treat the constitutional violation as a close call that required ruling in favor of the officer on qualified immunity grounds. It seems to me, though, that the officer's constitutional violation was obvious. It therefore violated clearly established law, and the officer should not be entitled to qualified immunity.

Let me be the first to add: Yes, I realize that, if it turns out I'm right, it doesn't undermine the case against qualified immunity. Most of Judge Reeves's opinion is addressed to a public debate about whether the Supreme Court should overturn its qualified immunity cases. My post is on a really small-scale issue. I'm only talking about how current law should apply to this one case. And to the extent it's relevant to some readers, I oppose qualified immunity, too, I would like to see it overturned. (At least as long as that change wouldn't lead to eliminating the exclusionary rule or create other systematic changes in Fourth Amendment law, which is entirely possible. But that's a complicated question for another day. )

Nonetheless, given that this opinion is already getting a lot of attention, I thought it might be interesting to explain why I think the result in this particular case was likely incorrect. It shouldn't change the national debate, but it does lead me to wonder if Judge Reeves picked the wrong case to demonstrate qualified immunity's problems. It's a small point, I concede, but perhaps of interest to the fellow Fourth Amendment nerds reading.

I'll start with the facts; turn to the Fourth Amendment analysis; next turn to the qualified immunity question; and conclude with my own take.

I. The Basic Facts

The plaintiff, Jamison, was stopped for a license plate tag violation. The defendant, Officer McClendon, pulled him over. Jamison is Black. McClendon is white. McClendon became suspicious that Jamison had something illegal in the car. However, McClendon had zero actual legal suspicion to think Jamison had anything illegal in the car. It was purely a hunchand one, we can assume, was based in part on Jamison's race.

Eventually, Jamison expressed consent to search the car . An extremely thorough search of the car followed. After almost two hours, absolutely zero evidence was found. McClendon then allowed Jamison to leave, although Jamison's car was damaged as a result of the search.

Jamison later sued McClendon. The Jamison opinion is focused on the first of Jamison's claims, brought under the Fourth Amendment. In particular, the new decision focuses on a specific part of the traffic stop. In their depositions, Jamison and McClendon gave starkly different recollections of what happened in this part of the stop. But because Jamison involves a motion for summary judgment filed by McClendon, we have to accept Jamison's version of the facts as true.

According to Jamison's deposition, McClendon repeatedly badgered him into consenting. McClendon pleaded with Jamison to consent five times before Jamison finally gave up and permitted the search. To pressure Jamison to consent, McClenson lied multiple times to him about a report that there were massive amounts of cocaine in the car.

And this next part is particularly important. According to Jamison, while McClendon was trying to get Jamison's consent, McClendon "placed his hand into the car, and patted the inside of the passenger door," and then "moved his arm further into the car . . while patting it with his hand."

For what it's worth, McClendon denies all of this happened. His story is just that he asked Jamison for consent and Jamison simply consented. But McClendon's conflicting version of events is not relevant at this stage because McClendon is the moving party. Where the facts conflict, we have to accept Jamison's version of events as true.

II. The Intrusion Into the Car

Now let's turn to the Fourth Amendment claim. Just to make this super-long post more manageable, I want to focus specifically on Jamison's claim that McClendon violated the Fourth Amendment by placing his hands inside the car and patting the inside of the passenger door.

Was that an unconstitutional search? Judge Reeves reasons that it was. First, it was obviously a search. McClendon's body physically intruded into the car. The next question is whether it was an unreasonable search.

And here Judge Reeves makes a critical assumption. Judge Reeves assumes that whether an officer's physical intrusion into a car is reasonable is governed by a Fifth Circuit case, United States v. Pierre, 958 F.2d 1304, 1309 (5th Cir. 1992), that involved a border check point.

In Pierre, a border patrol agent stuck his head inside a car at a border check point to speak with a passenger about his citizenship. Upon poking his head in the car, he smelled marijuana. The Fifth Circuit analyzed the constitutionality of the officer sticking his head into the car using a totality of the circumstances analysis that looked to the extent of the privacy right, how much the border agent needed to see the passenger, and officer safety concerns.

Pierre in turn relied on New York v. Class, 475 U.S. 106 (1986), a case in which an officer, during a traffic stop, reached into the passenger compartment of the car to move papers that had obscured the car's VIN. The Court subjected that search to a general reasonableness analysis, holding that the search "was sufficiently unintrusive to be constitutionally permissible in light of the lack of a reasonable expectation of privacy in the VIN and the fact that the officers observed respondent commit two traffic violations."

In Jamison, Judge Reeves applies the totality of the circumstances inquiry from Pierre and Class to McClendon's search into the car. Applying the Pierre factors, Judge Reeves concludes that Officer McClendon's search of the car was on balance unreasonable and therefore unconstitutional.

III. The Qualified Immunity Analysis

Judge Reeves then concludes that McClendon is nonetheless entitled to qualified immunity. Because the reasonableness of searching the car is based on a totality of the circumstances, he reasons, we need factually similar caselaw telling us how the totality of the circumstances test should apply before the violation is clear.Here's how Judge Reeves frames the question:

The question in this case is whether it was clearly established that an officer who has made five sequential requests for consent to search a car, lied, promised leniency, and placed his arm inside of a person's car during a traffic stop while awaiting background check results has violated the Fourth Amendment. It is not.

It was not clearly established, Judge Reeves reasons, because there was no factually similar caselaw that could establish how the totality of the circumstances test applied. In particular, neither Pierre nor Class clearly established that the search here was unreasonable:

While it has been clearly established since at least 1986 that an officer may be held liable for an unreasonable "intrusion into the interior of a car," this is merely a "general statement of the law." Clearly established law must be particularized to the facts of the case.

In Pierre, the officer could not see into the suspect's back seat and had to put his head inside to speak to the suspect. In Class, the suspect had been removed from his car and the officer put his hand inside to move papers so that he could see the car's VIN. Neither case considered a police officer putting his arm inside a car while trying to get the driver to consent to a search. Both cases also found the officer's conduct to be reasonable, thus not providing "fair and clear warning" of what constitutes an unreasonable intrusion into a car.

"Given the lack of precedent that places the Constitutional question beyond debate," Judge Reeves concludes, "Jamison's claim cannot proceed." Officer McClendon is entitled to qualified immunity.

IV. Why I Think Judge Reeves Likely Was Mistaken

That brings me, finally, to why I think Judge Reeves was likely wrong. By focusing on Pierre (the check point case), and Class (the VIN case), Judge Reeves concluded that the constitutionality of an officer reaching into a car must be analyzed in the Jamison case using a totality-of-the-circumstances test. That created lots of room for qualified immunity because vague standards can't provide the clear notice to the police of a bright-line rule. You need similar cases before the vague standard becomes clear.

But I think that framing was problematic. Pierre and Class were specific kinds of Fourth Amendment cases that fit into a specific doctrinal box. Pierre was a border check point case. Class was a case about finding a VIN to check for traffic violations. Both are examples of non-law-enforcement so-called "special needs"-type searches. In that doctrinal box of Fourth Amendment law, the doctrine relaxes the usual probable cause requirement and instead applies a more relaxed reasonableness test given the non-law-enforcement interests (such as border inspections or traffic safety) advanced by the search.

But Jamison is not a special needs case. McClendon does not claim that he physically intruded into the car and patted the inside of the door for reasons of officer safety. He doesn't claim he did that to inspect Jamison's car for safety violations. There was no border checkpoint. McClendon's claim, as I understand it, is just that it didn't happen at all. Once we accept Jamison's claim that it did happen, as I believe we must at this stage of the case, we have a clear search (McClendon placing his hands in the car and patting down the inside of the door) that has absolutely zero legal justification and that is not subject to a general reasonableness test.

Outside the special-needs context, the Fourth Amendment law of searching a car is a clearly established bright-line rule. Because it's a bright-line rule, the violation becomes obvious even if there is no factually identical or closely similar case.

Consider how the Fifth Circuit stated the rule, citing cases, in Emesowum v. Cruz, 756 Fed.Appx. 374 (5th Cir. 2018): "It has long been clearly established that police may not search a car for evidence absent probable cause or consent." There's considerable Fifth Circuit caselaw not just establishing that rule, but also saying the rule is clearly established. See, e.g., Mack v. City of Abilene, 461 F.3d 547 (5th Cir. 2006) ("Appellees' search of a car in an open parking lot without a search warrant, without probable cause, without a concern for officer safety, and without consent violates clearly established law. A reasonable officer would not think the Constitution allows a random search of a vehicle where none of the above justifications apply.").

To be sure, qualified immunity can still apply if there are fair questions about how that clearly-established rule applies. For example, imagine an officer searched a car but was just slightly short of probable cause. Qualified immunity will apply because how the clearly established doctrine applies is tricky: the officer might reasonably believe that there was probable cause even if a court later disagrees. But when it's clear that the clearly established rule was violated, then qualified immunity can't apply.

My sense, then, is that McClendon did violate clearly established law. Sticking his arm inside the car and patting down the inside of the door was obviously a search. It was governed by the rule, long recognized in the Fifth Circuit as clearly-established law, that the officer needed some justification for that searchprobable cause, or a warrant, or a safety concern, or a special needs concern. But there's no plausible argument I am aware of that any of those justifications could apply. To use the Fifth Circuit's language in Mack, this was "a random search of a vehicle where none of the above justifications apply."

V. Conclusion

For these reasons, I tend to think Judge Reeves was mistaken to confer qualified immunity on McClendon as to that particular part of the case.

As always, I have posted my best sense of things, but I may be wrong. If you think I'm mistaken, I'd appreciate it if you could explain why so I can consider the argument and post a correction if I've erred. And there are lots of other fascinating doctrinal parts of the opinion to talk about, as well as of course the underlying policy debate over whether the Supreme Court should overturn qualified immunity.

Go here to read the rest:

Did Judge Reeves Reach the Correct Result in Jamison v. McClendon? - Reason

The Police Lie. All the Time. Can Anything Stop Them? – Slate

Police patrol outside of a Manhattan courthouse on Jan. 9, 2015, in New York City.Spencer Platt/Getty Images

Christopher Parham was grocery shopping for his boss when Henry Daverin, a plainclothes NYPD officer, approached him. Daverin accused Parham of driving recklessly on an illegal scooter without a helmet; a few minutes later, Parham was writhing in pain on the sidewalk outside. What happened during those few minutes was a matter of dispute. The NYPD said that Parham, a Black 19-year-old, had violently resisted arrest. Daverin and his colleagues said that they did not use force against him even though Parham had gruesome Taser burns all across his back.

Then surveillance video of the episode emergedand proved that nearly every detail of the NYPDs account was false. Parham had immediately cooperated with Daverin; he did not resist arrest. Nonetheless, Daverin and his colleagues had assaulted Parham, tackling him to the ground, then Tasing him over and over again. After Parhams attorneys released the videoand his local representatives raised concernsthe district attorney dropped all charges. Daverin, who had been named in at least 10 other misconduct lawsuits, was never disciplined, either for brutalizing Parham or for lying about it. Two years later, he remains on the force.

The police reaction to George Floyds murder, as well as the resulting nationwide protests, introduced many Americans to the fact that law enforcement officers lie. After officer Derek Chauvin killed George Floyd, the Minneapolis Police Department issued a statement falsely claiming that Floyd physically resisted officers and excluding the fact that Chauvin knelt on Floyds neck for nearly nine minutes. When Buffalo police officers violently shoved a peaceful 75-year-old man, their department falsely asserted that the victim tripped and fell during a skirmish involving protesters.

This tendency to lie pervades all police work, not just high-profile violence, and it has the power to ruin lives. Law enforcement officers lie so frequentlyin affidavits, on post-incident paperwork, on the witness standthat officers have coined a word for it: testilying. Judges and juries generally trust police officers, especially in the absence of footage disproving their testimony. As courts reopen and convene juries, many of the same officers now confronting protesters in the street will get back on the stand.

Defense attorneys around the country believe the practice is ubiquitous; while that belief might seem self-serving, it is borne out by footage captured on smartphones and surveillance cameras. Yet those best positioned to crack down on testilying, police chiefs and prosecutors, have done little or nothing to stop it in most of the country. Prosecutors rely on officer testimony, true or not, to secure convictions, and merely acknowledging the problem would require the government to admit that there is almost never real punishment for police perjury.

Officers have a litany of incentives to lie, but there are two especially powerful motivators. First, most evidence obtained from an illegal search may not be used against the defendant at trial under the Fourth Amendments exclusionary rule; thus, officers routinely provide false justifications for searching or arresting a civilian. Second, when police break the law, they can (in theory) suffer real consequences, including suspension, dismissal, and civil lawsuits. In many notorious testilying cases, including Parhams, officers blame the victim for their own violent behavior in a bid to justify disproportionate use of force. And departments will reward officers whose arrests lead to convictions with promotions.

Two major cities are taking two different approaches to the problem. In New York City, prosecutors keep secret databases of unreliable police officers, though only two boroughs actually prohibit those officers from taking the stand. Without further reforms, however, this approach fails to address the underlying problem: Prosecutors are reluctant to accuse officers of lying in the first place, or to investigate an officers claims to learn if they align with reality. As a result, an officer who lies convincingly can evade the list indefinitely. In San Francisco, by contrast, District Attorney Chesa Boudin has sought to eradicate the incentives that lead police to lie in the first place. Both cities are witnessing an experiment play out in real time: What happens when the criminal justice system can no longer rely on its enforcers to tell the truth?

The New York Police Department provides a case study in how the criminal justice system rewards lying. One NYPD officer, David Griecocommonly known as Bulletheadhas been sued at least 32 times, costing the city $343,252, for civil rights violations, including excessive force and fabrication of evidence. Yet Grieco was promoted and prosecutors continued to call him to the stand long after a slew of his victims blew the whistle on his violent and lawless behavior. Judges continued to rely on his word to lock up defendants. And Griecos name did not appear on Brooklyn District Attorney Eric Gonzalezs long-secret list of officers with known credibility problems.

When you have a system of that kind of impunity, it snowballs. It teaches, encourages, and enforces badbehavior. Chesa Boudin, San Francisco district attorney

Grieco is a symptom of a much deeper problem. Widespread lying about Fourth Amendment violations is at least as old as the exclusionary rule itself. The Supreme Court applied this rule nationwide in 1961s Mapp v. Ohio, preventing state prosecutors from relying upon illegally obtained evidence to secure a conviction. Mapp spawned a surge in dropsy cases: Rather than admit to an illegal search, police claimed that defendants simply dropped drugs on the ground in front of them, since evidence found in plain view can be used at trial. Studies of criminal trials in New York City found that, after Mapp, police began lying about arrests to ensure that evidence would be admissible. In the early 1970s, the New York district attorney even told the New York Court of Appeals that, since Mapp, officers lied on the stand in a substantial number of dropsy cases. Two decades later, the Mollen Commissiona famous investigation of the NYPDfound that officers routinely engaged in perjury and falsification of records, the most common form of police corruption.

When NYPD officers are accused of illegal behavior, the department itself usually investigates, then conceals its findings and imposes, at worst, a slap on the wrist, like brief paid leave. Prosecutors could separately investigate, but they have little incentive to question an officers story: If they know an officer is lying, they cannot legally rely on his testimony; if they remain in the dark, they can still use his perjury to clinch a conviction. Moreover, prosecutors and police work together to put defendants behind bars, developing a team mentality that prevents prosecutors from scrutinizing officers testimony with appropriate skepticism. As long as officers lies cannot be proved false, prosecutors have little reason to question their account of events. As a New York assistant district attorney told the Mollen Commission: Taking money is considered dirty, but perjury for the sake of an arrest is accepted. Its become more casual.

Occasionally, the system will catch these lies. Yvette, an Egyptian American who lives in New York City, believes cross-examination of deceitful officers likely secured her acquittal. (Her name has been changed at her request to protect her from retaliation.) In 2017, Yvette witnessed three NYPD officers arresting the owner of a Brooklyn hookah lounge. As the police were detaining him, he handed Yvette his phone and asked her to call his mom. The officers promptly attacked her, she told me, severely damaging her knee. When she begged for an ambulance, the officers ignored her. Yvette eventually called one herself and learned at the hospital that the attack tore her ACL. When two officers visited her bedside, she asked if they were going to take her statement. They explained that they were there to arrest her for allegedly attacking the officers at the hookah lounge.

What these officers did not know was that Yvette had recently recovered from multiple surgeries on her knee, one of which resulted in a staph infection. It had been a mere two weeks since Yvette learned how to walk without a cane again. Now the NYPD was accusing her of a violent assault.

At a three-day bench trial, Yvettes public defender, Theodore Hastings, grilled the cops about their account. Two officers claimed that Yvette had attacked them at the exact same time, a physical impossibility. A third alleged that Yvette had run about 500 feet before lunging at the officers.

Yvette herself also testified. The judge heard my story and understood and felt my pain, she told me. She saw I really wasnt lying. The judge acquitted Yvette of all charges.

But hoping a judge will vindicate the truth is a luxury most wrongfully accused people cannot afford. Not everyone has a medical record or video footage to prove their account. If an individual goes to trial, they have a right to access the arresting officers record of misconduct because it could help prove their innocence. But the vast majority of criminal cases do not go to trial, and until recently, defense attorneys in New York City could not obtain officers disciplinary records due to a notorious shield called Section 50-A. The state repealed this law in June, and Mayor Bill de Blasio has since promised to publish an online database of police disciplinary records. With New York Citys prosecutors still fighting to conceal their do-not-call lists, it will now be left to defense attorneys, activists, and the public to track untrustworthy officers.

Across the country in San Francisco, newly elected District Attorney Chesa Boudin is taking a different approach. Boudin, a former public defender and staunch critic of mass incarceration, confronted testilying head-on. Police are allowed to lie and get away with it over and over and over again in matters big and small, he told me. I can think of dozens of examples where police were either able to get away withor faced no consequences if they were impeached and called out on their dishonesty. When you have a system of that kind of impunity, it snowballs. It teaches, encourages, and enforces bad behavior.

Boudin has minimal control over the SFPD itself. But he has created a robust do not call list of officers whom his office will not call to the stand as a witness. Officers who are caught testilying go on the list, as do those who commit other forms of misconduct. Boudin has also mandated careful assessment of charges like assaulting an officer and resisting arrest. When police use excessive force or brutalize someone, Boudin said, the most common outcome is that the police arrest the person and ask prosecutors to charge that person with resisting arrest or assaulting an officer. He now requires his staff to review video footage of the incident before filing those charges. Its not because we think officers are lying most of the time, he said. We just know that, until we watch video footage, we have no ability to distinguish between a testilying police report to cover up excessive force and legitimate criminal activity of assaulting an officer.

A third reform may have more direct practical consequences for victims of routine testilying designed to avoid the exclusionary rule. Too often, officers find a trivial reason to stop someone, or just make one up, then discover drugs or weapons in the ensuing search. The target of these pretextual stops is usually a person of color. We know driving while black is a reality for far too many people, Boudin said. If you have dark skin, youre more likely to get pulled over, more likely to get searched, and more likely to get arrested. Youre also more likely to have force used during your arrest than if youre white.

To disincentivize this behavior, Boudins office stopped charging any contraband case that grew out of a pretextual stop. As an example, he cited searches initiated after a stop for some minor traffic offense. Our vehicle code makes it possible for police to legally stop any car, Boudin said. We all know that most drivers do not come to complete stops at stop signs and most police dont enforce that law most of the time. If the police do pull over a driver for an incomplete stop, and the encounter results in an arrest for possession of drugs or guns, his office will not bring charges.

Ilona Solomon, a San Francisco public defender and former colleague of Boudins, admires his work but remains skeptical that he has the power to change the citys broken law enforcement apparatus. There is an entrenched culture in the DAs office that is very resistant to reform, Solomon told me. Chesa cant fix all the problems immediately, and some things he doesnt have control over.

Still, in his seven months on the job, Boudin has made headway in the face of sustained opposition from the SFPD. Solomon pointed to two recent cases involving the same officer, Robert Gilson. In 2017, a California judge found Gilson had changed his testimony regarding a search and arrest, deeming him not reliable. Yet prosecutors continued to call him to the stand, and judges continued to paper over his inconsistencies.

In one recent case, Gilson stopped a Samoan man who was holding a bag of marijuana, which is legal in California. After a lengthy search, the officer discovered bindles of cocaine. Gilsons reason for the stop shifted: At the time, he said he wanted to search bulges in the mans pocket; later, he testified that he sought to determine if the man was holding an illegal amount of marijuana. A judge accepted this reasoning and refused to suppress the cocaine. In another case, Gilson stopped a Black man, justifying the action because the man was jaywalking. After Gilson threatened to strip search the man, he let the officer search him, uncovering a small stash of cocaine. A judge refused to suppress the evidence, crediting Gilsons testimony that he believed the man was concealing drugs due to his worried demeanor during the search.

Solomon represented both men. She told Boudin that, in both cases, Gilson had engaged in blatant racial profiling. Boudin agreed and dismissed all charges. Still, Boudins office could not say whether it had placed Gilson on its do not call list, which is not public. The SFPD confirmed Gilson was assigned to field operations but said they could not comment further on personnel matters.

The system cannot exist without it. It would grind to ahalt. Bennett Capers, Fordham Law professor

Kate Levine, a Cardozo Law professor and former public defender who studies police accountability, told me shes skeptical that patchwork solutions like a do not call list can ever stamp out testilying. Maryanne Kaishian, a public defender in Brooklyn, agreed, noting that its easy for clean officers to conceal the involvement of a known dirty cop by keeping his name off all paperwork. Nor do these lists remove officers strong incentive to lie: Police are more likely to get promoted if they effect more arrests that result in successful prosecutions. Promotions come with more prestige and a higher salary. Prosecutors still have an incentive not to question officers blue lies.

To end testilying, Levine said, I would entirely change incentive structures. Officers would be rewarded for reporting on their colleagues lies and scrutinized when their stories do not line up. They would no longer be able to coordinate their stories before testifying, a common procedure that lets them iron out potential inconsistencies. Nor could they watch bodycam footage before providing their version of events, another perk thats not provided to civilians. Prosecutors would be rewarded for rooting out unconstitutional behavior. Officers who lie, and prosecutors who tolerate them, would be terminated immediately. In short, the system would encourage police officers and prosecutors to focus less on winning cases and more on following the rules, even when a constitutional violation stands in the way of a conviction.

What would happen if a city really tried to eliminate testilying? I posed this question to Bennett Capers, a former federal prosecutor and Fordham Law professor who studies police lies. In all honesty, I think my initial reaction would be that the system cannot exist without it, he told me. It would grind to a halt. Capers said that run of the mill policing would have to change. We are doing about 13 million misdemeanor arrests a year. With a lot of those small crimes, theres fudging. Nobodys paying attention.

Police, in other words, would have to stop arresting so many people for minor crimes. Once cities stopped deploying officers to harass misdemeanants, they could shrink their police force, reducing the number of encounters between cops and civilians. Agencies might then dedicate those resources to investigative and detective work in order to build solid cases against suspects, thereby creating a higher bar for which cases to pursue. Prosecutors would be forced to make a more careful calculation about the risk of bringing a case to trial and drop cases that rested on a search of dubious legality. In the short term, the legitimacy of the entire system might take a hitthough only because its participants confronted the illegitimate basis of so many convictions. Over time, however, the system might regain the legitimacy it lost with a preference for punishment over justice.

We all wanted to see justice happen, Capers recalled from his time as a prosecutor. And law enforcement often thinks that, in the interest of justice, the rules get in the way. Im not aware of ever saying, Does this story sound quite right? We benefited from small lies.

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The Police Lie. All the Time. Can Anything Stop Them? - Slate