The Court of Justice of the European Union in Schrems II: The impact of GDPR on data flows and national security – Brookings Institution

The recent Court of Justice of the European Union (CJEU) decision in Schrems II finding that the EU-U.S. Privacy Shield is invalid and its additional findings with respect to standard contractual clauses, closes off key mechanisms for transferring persona data from the EU to the U.S., with important impacts on trade and the development of technologies such as cloud computing and artificial intelligence (AI).

This is the second time the CJEU has found that the General Data Protection Regulation (GDPR) mechanisms for transferring personal data from the EU to the U.S. is invalid.1 The earlier CJEU decision in Schrems I found that the European Commission adequacy decisions with respect to the EU-U.S. Safe Harbor was invalid.2 An adequacy decision is a finding by the European Commission that a third countries privacy laws are essentially equivalent to the rights and obligations under the GDPR.3 The importance of data flows for transatlantic economic relations necessitates that the U.S. and EU engage in a third attempt to develop a mechanism that can enable data flows and pass muster with the CJEU. However, whether this remains a fruitful path forward is uncertain in light of what we now know about the approach of the CJEU to adequacy under GDPR. In particular, the focus on how government agencies access data for national security purposes is becoming the key barrier to data flows between the EU and the US. More broadly, the CJEU decision makes clear that all the key GDPR mechanisms for transferring personal data from the EU to third countries are unstable, namely adequacy decisions, standard contractual clauses (SCCs) and binding corporate rules (BCRs).4 In this respect, the CJEU decision will have ramifications beyond its immediate impact on data flows between the EU and the U.S. The following addresses the explicit CJEU findings on adequacy and SCC as well as the broader issue of how to balance national security and privacy. The paper concludes with observations about the potential impact of the decisions for the U.S. and beyond and suggests some ways forward.

In this column I focus on two key issues at play in this most recent Schrems case: (1) the disconnect between application of EU law to national security agencies in third countries compared with domestic security agencies; and (2) and the severe limits the decision places on existing GDPR mechanisms for transferring personal data from the EU to third countries. I also offer observations on what this will means for data flows, and in particular the implications for small and medium-sized enterprises (SMEs).

A core issue in both Schrems cases was how national security agencies operate to preserve security and also ensure sufficient levels of privacy, and whether this is consistent with GDPR. The attempt by GDPR to extend EU privacy rights and obligations to countries and entities receiving EU personal data reflects a broad dynamic, which is that as the global free flow of data increases the scope for national security agencies to access the personal data of everyone, national privacy standards need to be globalized as well to be effective. Yet, governments often provide different levels of privacy protection and redress depending on whether a person is a citizen and where they are located. Under the Fourth Amendment to the Constitution, the U.S. provides different levels of legal redress to people in the U.S. compared to those outside the U.S., including access to U.S. courts. GDPR in effect seeks to extend the full suite of rights and obligations available in the EU under GDPR, to any country receiving EU personal data.

Underlying the CJEU decision in Schrems I and Schrems II that invalidated the EU-U.S. Safe Harbor agreement and in this most recent case, has invalidated the EU-U.S. Privacy Shield, is a disconnect between the GDPRs international impacts, and its domestic application to member state national security agencies. In both Schrems cases, the issue was U.S. government access to personal data for national security purposes and the rights of EU citizens in the U.S. to judicial review and redress. In both cases the CJEU found that the U.S. fell short in that the U.S. was not according EU personal data the protection and rights of redress available in the EU. When it comes to access to data for national security purposes, under EU law, including GDPR, any limitation on EU rights to privacy must be necessary and proportionate.5At the same time, national security is the sole responsibility of member states.6In effect, each EU state is given the discretion to balance national security needs with data privacy rights. Yet, the EU is not according a similar discretion to third countries. In fact, GDPR uses the threat of withdrawing access to EU personal data as a tool to seek reform of other countrys security agencies to reflect the CJEU notion of proportionality, while exempting member state governments from similar expectations or threats. This effectively sets up the CJEU as the arbiter of whether other countries approaches to accessing data for national security purposes are proportional.7

This disconnect between GDPRs international and domestic application when it comes to national security also risks EU demands becoming increasingly detached from the reality and practices of national security agencies. On the one hand, the outcome in the U.S. between security and privacy reflects U.S. constitutional constrains, national security needs and privacy concerns. In the EU, it does not appear that any such balancing took place, leaving the EU approach to privacy untouched in important ways by the equities and needs of member state national security agencies. The result is a set of demands on third country national security agencies that the EU does not, and could not, make of its own national security agencies. This dissonance between what the EU is expecting of other governments and what it is able to ask of its member states is compounded by various findings that EU data may in fact be safer and accorded better due process when in the U.S. than in the EU.8

The issue with how the U.S. government accesses data for national security is what lead the CJEU in both Schrems cases to invalidate the European Commissions adequacy finding with respect to the U.S. This Schrems decision also makes clear that not only adequacy decisions but also SCC and BCRs are much more limited than originally thought. Another consequence of the Schrems decision is to underscore the fragility of these GDPR data transfer mechanism. As the Irish High Court and CJEU overturns a second adequacy finding by the Commission, the CJEU has made clear that SCCs (and BCRs) may require data flows to be terminated at any point should the processor in the third country be unable to comply with GDPR, either due to requests from a third government for access to data or due to changes in legislation. These outcomes will inevitably increase risk for businesses that rely on cross-border transfers of personal data. This will affect not only the large tech companies but also those in manufacturing and services that are increasingly data driven.

To understand the implications of this decision for these GDPR transfer mechanisms, it is helpful to reflect on the institutional incentives and priorities driving the different finding by the European Commission on the one hand, and EU domestic courts and the CJEU on the other. The European Commission in making an adequacy decision weighs a range of goals that are in tension with each other. While focused on assessing whether U.S. laws and practice are adequate under GDPR, the Commission also takes into account the impact of stopping flows of personal data on international trade, investment and diplomatic relations. In contrast, the process for challenging an adequacy finding rests upon findings by a National Data Commissioner, findings by domestic courts, and finally the CJEU. None of these bodies is expected to consider the range of issues at play for the Commission. Instead, the question is more narrowly whether the third country provides a level of privacy protection consistency with the Charter of Fundamental Rights of the European Union. It is these competing institutional incentives and focus that helps explain the different conclusions as to whether the U.S. confers adequacy.

These internal institutional tensions raise several issues for the EU. First is the validity of other adequacy findings. For instance, what does the Commission really know as to how national security agencies in Israel, Japan or Argentina collect, use or share EU personal data. Second is the stability of any adequacy findings. The narrow focus of the CJEU on consistency with the EU Charter and demand for essential equivalence leads very little room for different approaches to privacy in other countries, reducing scope for adequacy findings and to using any transfer mechanism under GDPR. When it comes to determining whether the actions of other governments in collecting data for national security purposes are consistent with GDPR and the EU Charter, the vague standard of proportionality has led the Commission and CJEU to different conclusions regarding the adequacy of U.S. limits and safeguards.9Taken together, this suggests that all adequacy decisions by the Commission must be treated as potentially suspect and open to being declared invalid by the CJEU.

Another impact of this Schrems case is to limit the availability of SCC (and BCRs).10The issue with SCC (and BCRs) is that it is a contractual obligation that does not bind other governments. Therefore, where practices by national security agencies for accessing personal data are inconsistent with GDPR, SCCs do not obviously remedy this problem. The CJEU nevertheless held that SCCs remain valid where the controller adduces additional safeguards that rectify these gaps.11It is not clear what these safeguards are or how they could work in practice. Another wrinkle here is the finding by CJEU of the accountability for processors in the EU to ensure that the legislation in the third country allows the data processor to comply with the SCC, before transferring personal data.12It is not clear whether this merely requires comparing third party laws with GDPR or also the practice of national security agencies, which is harder to assess but arguably what should matter the most.

The result is that after Schrems II, all GDPR mechanisms for transferring personal data to third countries are much more limited in scope, durability and stability.

The first thing this Schrems case makes clear is the extent of the tension created by GDPR between balancing access to and use of data, and the privacy rights and obligations in GDPR (Mattoo and Joshua Meltzer 2018). The EU view is that they can have strong privacy and a strong digital economy, including cross-border data flows, and this is likely correct at a certain level of abstraction. However, the details of GDPR now make clear how GDPR sets up real tensions and trade-offs in terms of getting what the EU wants under GDPR in terms of privacy, and access to and use of data consistent with a robust engagement in the digital economy and digital trade (Jia et al. 2019).

In practical terms, Schrems II calls into question the availability of adequacy findings, SCCs (and BCRs) as reliable and stable mechanisms for cross-border data transfers. If the U.S. is still not adequate, then it must be the case that other countries, including China will never be adequate and not only that, but it is hard to see how any Chinese company collecting EU personal data can transfer it back to China consistently with GDPR. Large companies may have to localize data storage and process in the EU.

Yet for small companies, the impacts are most pronounced. For many, setting up in the EU is not an option. There are SCCs, but depending on the government, additional safeguards may be needed for SCCs to be viable. Again, it is unclear what such safeguards may be or whether SMEs could implement them even if they exist. The CJEU decision also establishes an obligation on processors in third country to notify controllers in the EU of changes in legislation that prevent compliance with a SCC. This is an additional monitoring burden on SMEs in third countries and failure here can expose these companies to liability for harm caused to EU data subjects. The difficulties with SCCs also create additional costs and disincentives for EU companies to develop digital supply chains with SMEs in third countries.

As discussed, another issue at play is the balance between how security agencies use data for security, and also protect personal privacy in a globalized world. It is likely that GDPR is too unilateral and too EU-specific, and that national security is too important, for GDPR to lead to the types of changes the EU needs for an adequacy finding to work. The EU bet with GDPR has been that the economic importance to U.S. companies of allowing cross-border data flows of EU personal data will be enough to force the U.S. to reform how its national security agencies collect and use data. This has been a somewhat reasonable bet so far in that the U.S. has shown a willingness to negotiate and engage in some reform. But even here, U.S. reforms in order to obtain an adequacy decision have been limited and as we now know, not enough. It is also the case that the trend is not in the EUs favor. For while the economic importance of data grows, so do the security issues related to data flows. In fact, the trend is arguably towards security becoming a more important organizing principle for how digital economies develop and where data flows. Given this, the risk is that GDPR fails to lead to enough U.S. reform that can justify another adequacy finding, forcing the EU into self-imposed data isolation. In such an outcome, large U.S. and other companies will still service the EU market but the EU will become increasingly closed, reducing access to large global data pools and the opportunities for insights and the machine learning that underpin AI developments that the EU seeks to develop (European Commission 2020).

Given these risks and developments, what is needed is an international agreement on how to balance national security and access to data, with other key goals such as privacy. Such an outcome could be deemed an international agreement under GDPR article 45(2(c) that would support an adequacy finding and by extension, short up access to SCC and BCRs.

Authors note: The author was an expert witness for Facebook in the latest proceedings before the Irish High Court.

European Commission (2020), White Paper on Artificial Intelligence A European Approach to excellence and trust, COM(2020) 65 final.

Jia, J, G Jin and L Wagman (2019), The short-run effects of GDPR on technology venture investment, VoxEU.org, 7 January.

Mattoo, A and J P Meltzer (2018), Resolving the conflict between privacy and digital trade, VoxEU.org, 23 May.

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The Court of Justice of the European Union in Schrems II: The impact of GDPR on data flows and national security - Brookings Institution

Calls for police reform and racial justice spur a flurry of resolutions before the ABA House – ABA Journal

Annual Meeting

By Matt Reynolds

August 4, 2020, 4:53 pm CDT

Protests like this one, the Black Clergy United March for Justice on June 13 in Tampa, Florida, prompted a number of resolutions before the House of Delegates at the ABA Annual Meeting. Photo from Shutterstock.com.

The ABA House of Delegates responded forcefully to calls for police reform at this year's annual meeting, passing resolutions calling for a curtailing of the qualified immunity doctrine blocking civil lawsuits and for heightened oversight of law enforcement through a national use-of-force database.

The House adopted Resolution 301A on qualified immunity with the backing of a vast majority of delegates at Tuesdays session. The legal doctrine has become a focal point for backers of police reform who see it as an obstacle to accountability for police misconduct.

In June, the U.S. Supreme Court declined to take on eight cases related to qualified immunity. Critics would like the court to review the doctrine, which they say shields officers accused of using excessive force or unlawful searches.

Absent a ruling from the Supreme Court, a report accompanying the resolution says legislatures should now review the doctrine to decide whether to curtail it.

Paul Wolfson of the ABA Section of Civil Rights and Social Justice argued that without ending or limiting the doctrine, people who are victims of police misconduct would have no avenue for relief.

In recent months, weve all been vividly reminded of the need to deter and remedy unconstitutional conduct by law enforcement officers, Wolfson said. Our fundamental constitutional rights will be meaningless unless those who are injured have a forceful remedy.

On Monday the House adopted Resolution 116A, which encourages the collection of records and data on use of deadly force, another flashpoint in the national debate over police brutality and racial injustice.

The passing of the resolution comes after both Republicans and Democrats have called for greater oversight of police officers through federal data collection.

Robert Harris, director of the Los Angeles Police Protective Leaguethe union representing the Los Angeles Police Departmentsays a national registry is a step in the right direction but said that the ABAs resolution on qualified immunity misses the mark.

If the goal is to hold officers accountable, theres a better way to do that, Harris said in an interview.

Harris said that people filing lawsuits over police misconduct may still win damages, despite the legal doctrine. His union supports stronger use of force policies and officer training, as well as technology that flags and weeds out problem officers, he said.

On Tuesday, the House also passed and adopted Resolution 10I encouraging the creation of legislation outlawing lynching.

A federal law to criminalize lynching, the Emmett Till Anti-Lynching Act, has stalled in Congress, California Lawyers Association president Emilio Varanini said. Attorney Laura Farber said that it was time for the ABA to take a stand as she urged delegates to pass the resolution.

Im also disheartened, sad and frankly a little disgusted to know that here in 2020 we have not yet, and Congress has not yet passed legislation making lynching a hate crimea federal crime, Farber said.

Resolution 301C, also adopted Tuesday, asks the government to desist from using force to suppress lawful First Amendment activity. That comes after President Donald Trump sent federal officers to Portland, Oregon, who fired tear gas and stun grenades at demonstrators and hauled some protesters into unmarked vehicles.

Oregon Attorney General Ellen Rosenblum spoke in favor of the resolution. She said that in some cases, protesters had been grabbed off the street as they were leaving demonstrations. Federal officials had assaulted peaceful protesters, including the Wall of Moms activist group, she said.

The federal governments actions in Portland served as a direct assault on the right to organize, to assemble, to march and to protest, Rosenblum said. I sincerely hope never again to see these infringements upon peoples First and Fourth amendment rights in my city or any other.

On Tuesday, the House also passed Resolution 301B to make Juneteenth a paid legal holiday. Black Americans have long celebrated June 19 to the mark the day that slaves in Galveston, Texas, learned they had been freed. Support for a national federal holiday has gained steam since the death of George Floyd while in police custody in May.

Delegate Deborah Enix-Ross said she could think of no better way for the ABA to show support for a more just society and an understanding of our nations history.

I know there are some who may have concerns about the economic impact of another federal holiday. But I would hope that we will never again equate the evils of slavery with economics. There is simply no price on doing what is right, Enix-Ross said.

ABA president-elect Reginald Turner voiced his support for the resolution and said slavery was the nations original sin.

Juneteenth is an appropriate commemoration of the end of slavery in the United States. It should be a national holiday, to be celebrated by all, Turner said.

Because of the coronavirus pandemic, the ABAs annual meeting was held online for the first time in its history. Against the backdrop of recent protests, the meeting became a forum for how the legal community can address police brutality and racial injustice.

In her final speech before she handed the gavel to incoming ABA President Patricia Lee Refo, Judy Perry Martinez urged lawyers to root out racism.

Let none of us say the job is too big or the problems of racism run too deep, Martinez said. This is our torch to carry. Lawyers have a special responsibility to fight injustice, especially injustice caused by laws and practices that are racist and unjust in word or effect.

At a the ABA forum Justice and PolicingA Path Forward, on Friday, Martinez asked Sen. Tim Scott, R-S.C., about his thoughts on police defunding and qualified immunity.

ABA President Judy Perry Martinez interviews Sen. Tim Scott of South Carolina.

The senator said he was no stranger to discrimination. He said that in the last 20 years, he has been stopped by state or local police officers 18 times, including seven times while he was in office. Scott said that underlines the importance of voting in local elections.

Those are the folks directly in positions of power to determine the type of local law enforcement you have, Scott said. When we dont vote in those elections, we are actually taking a step back from the one place where police reform comes to life immediately.

Scott, the GOPs only African American senator, led a Republican bill on police reform that would require departments to use body cameras and limit the use of chokeholds. However, the bill would not loosen the qualified immunity doctrine. Scott bristled against the notion of defunding police departments. He said he instead supports a strategy of providing police units with mental health experts to help prevent incidents from escalating.

The concept of defunding the police is the scariest thought Ive ever heard as it relates to communities of color and the vulnerable communities, Scott told Martinez.

The report that accompanies Resolution 301A says qualified immunity makes it virtually impossible for people who have suffered violence at the polices hands to obtain redress through civil court actions. The law also means that individual officers are rarely held to account for their actions, the report adds.

Without an effective civil remedy, serious abuses of governmental power will persist unchecked, many motivated by racial discrimination. That is not acceptable in the United States in the 21st century, the report states.

Several states have moved forward on overhauling the definition of qualified immunity. Colorado passed a law in June that would make it easier for people injured by the police to override a qualified immunity defense and claim up to $25,000 in damages, Forbes reports. Massachusetts legislators are proposing police reforms that would curtail qualified immunity.

Resolution 116A encourages governments to collect accurate records and data on deadly force incidents. The resolution encourages the creation of laws that would mandate an independent investigation if someone is killed during an encounter with law enforcement or in custody.

The resolution also calls for a national database that would record disciplinary actions against officers and complaints of excessive force. That could prevent officers with a history of using excessive force from moving from one jurisdiction to another.

The ABA Section of Civil Rights and Social Justice and the ABA Coalition on Racial and Ethnic Justice co-sponsored the resolution. Speaking in support, former ABA President Robert Grey Jr. said demands for racial equality had grown louder because of recent events, including the death of George Floyd.

It is now an American movement and one that demands accountability and responsibility, Grey said.

President Bill Clintons sweeping crime bill in 1994 mandated the federal collection of use-of-force data from police departments. But reporting has not been enforced and is inconsistent.

The report that accompanied Resolution 116A estimates that in 2019, police killed more than 1,000 people but says those numbers are based on efforts by the Washington Post and other outlets to capture data. A central database is vital to ensure up-to-date and accurate information, the report says.

The House on Monday also adopted Resolution 106A on restorative justice. The resolution urges prosecutors, criminal defense attorneys and others in the criminal justice system to consider an approach that prescribes meetings between offenders and victims that are facilitated by trained specialists.

Follow along with our coverage of the 2020 ABA Annual Meeting.

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Calls for police reform and racial justice spur a flurry of resolutions before the ABA House - ABA Journal

Reporters Committee amicus brief in Alasaad v. Wolf – Reporters Committee for Freedom of the Press

Amicus brief filed by the Reporters Committee for Freedom of the Press, the Knight First Amendment Institute at Columbia University, and 12 media organizations

Court: U.S. Court of Appeals for the First Circuit

Date Filed: August 7, 2020

Background: Representing several international travelers, including journalists, the American Civil Liberties Union and the Electronic Frontier Foundation sued the heads of the U.S. Department of Homeland Security, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement, arguing that suspicionless searches of electronic devices at the U.S. border violated Fourth Amendment protections.

The district court agreed with the plaintiffs, but held that border agents needed to meet only the reasonable suspicion standard, rather than the more stringent probable cause standard, before searching a travelers devices. The government and the plaintiffs both appealed to the U.S. Court of Appeals for the First Circuit.

Our Position: Border officials should be required to seek warrants based on the higher probable cause standard before they can search electronic devices.

Quote: Electronic device searches are highly invasive, especially for journalists. The contents of electronic devices can reveal the stories a journalist is developing, with whom she is communicating, and her specific travel plans. Disclosure of such information can expose sensitive newsgathering methods and deter potential sources from speaking to members of the media.

Related: This is the second friend-of-the-court brief that the Reporters Committee and the Knight First Amendment Institute have filed on behalf of the plaintiffs in this case. At the trial court level, when DHS, CBP, and ICE asked the district court to dismiss the case, the Reporters Committee and the Knight First Amendment Institute, represented pro bono by attorneys from Jenner & Block and Morgan, Lewis & Bockius LLP, filed a brief urging the court to deny the governments motion. The court allowed the case to continue.

According to a Reporters Committee analysis of U.S. Press Freedom Tracker data, journalists reported being subjected to secondary screenings, questionings, or searches by U.S. Customs and Border Protection 16 times in 2019, compared to 11 in 2018 and 16 in 2017. Seventy-five percent of the stops in 2019 occurred at the U.S.-Mexico border.

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Reporters Committee amicus brief in Alasaad v. Wolf - Reporters Committee for Freedom of the Press

Meet the Judge Who Thinks a Black Man Walking Around Is a Crime – Rewire.News

Each month, Rewire.News is examining the Trump judges behind some of the worst decisions in recent weeks. Read our previous columns here.

Judge Allison Jones Rushing, who sits on the U.S. Court of Appeals for the Fourth Circuit, is one of President Trumps youngest judge picks, having ascended to the federal appellate bench at only 37 years old.

To be fair, unlike some of Trumps other picks, Rushing did have some experience in the law before getting the nod for the bench. She spent several years at a fancy Washington, D.C., law firm, but her real appeal was likely that she clerked for then-Judge Neil Gorsuch when he was on the U.S. Court of Appeals for the Tenth Circuit and for Justice Clarence Thomas on the U.S. Supreme Court. She also spent time at the Alliance Defending Freedom (ADF), a group well known for its anti-LGBTQ stance.

But in her recent ruling in U.S. v. Mitchell, Rushings animus was aimed at Black people.

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The case started with a bar fight in Huntington, West Virginia. When police responded, a bystander told them a Black man wearing red pants and a black shirt had a gun and had walked away from the scene. Based on that minimal information, one of the officers stopped and frisked James Mitchell, a Black man, who was walking a block away. The officer found a firearm and arrested Mitchell.

Mitchell appealed, arguing that the police violated his Fourth Amendment right not to be subjected to unreasonable search and seizure.

The facts of the case werent great for the police. Officer BenjaminHoward, who took the report from the bystander, was not the same officer who stopped Mitchell. At Mitchells trial more than four years after the incident, Howard testified he had no doubt he was on the scene that night as he routinely responded to calls from that bar. However, he also could not specifically remember the night in question and could no longer remember who gave him the description of a Black man in red pants and a black shirt. There was no warrant. There was no evidence the tip was credible, particularly since the officer couldnt remember who gave him the tip. There was no particularized suspicion, which is a requirement before the police stop and frisk someone: They cant just stop a person because they feel like it or they have a vague sense the person did something wrong.

When police are allowed to stop whomever they want, you get what happened in New York City from 2002 to 2011, where police performed 5 million stop-and-frisks, overwhelmingly of Black and Latinx people. Nearly 9 out of 10 of those stopped turned out to be totally innocent.

Additionally, the Supreme Court decided 20 years ago that you cant just stop someone because they happen to be in an area of expected criminal activitywhich is really all the police had to go on in this instance.

Rushing threw all that law out the window.

She, along with Judge Marvin Quattlebaum, another Trump appointee, held that the officers actions were fine, in part because they were commonsense judgments and inferences about human behavior. Thats a backhanded way of saying its just fine if police officers are suspicious of Black men who happen to be nearby when a fight breaks out.

And the fact Mitchell was carrying a gun? West Virginia is an open carry state that doesnt require alicense to carry a firearm as long as youre over 18. It was only after the police took Mitchell into custody for the crime of walking near a fight and being Black that they learned he wasnt eligible to carry a firearm because he had previous felony convictions.

Plus, the tipster hadnt said that the Black man in red pants and a black shirt was involved in the assault that occurred at the bar brawl. Police couldnt recall who tipped them off about the Black man walking away from the fight. The tipoff itselfthat Mitchell had a gunwas about a thing that isnt illegal in West Virginia. But for Rushing, it was entirely reasonable that Mitchell was stopped based on a 911 call about a fight and a tip that a Black man was walking away and had a gun.

Judge James Wynn, an Obama appointee, dissented, in an opinion that can only be called blistering. His introduction to the dissent says it all: So, at the end of the day, this is what the majority opinion holds: police officers may lawfully stop anyone in the vicinity of reported unlawful activity whom a bystander says has a gun.

In the end, Mitchell was, as Wynn put it, simply a man with a gun near a disturbance, and thats not nearly enough to take away someones Fourth Amendment rights.

Rushings decision gives police a racist road map: Rely on a sketchy tip, violate someones rights and search them, and then hope that after theyre arrested, you can find a justification for your actions. Protests over the killing of George Floyd have been met with wave after wave of police brutality, and the last thing we need now is an easy way for police to ignore the Fourth Amendment.

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Meet the Judge Who Thinks a Black Man Walking Around Is a Crime - Rewire.News

Who will police Springfields cops? – The Boston Globe

Under the Trump administration, the US Department of Justice has largely abandoned its oversight and accountability mandate over local police departments. In fact, since Trump took office more than three years ago, the DOJ has launched only one investigation into unconstitutional policing and systemic misconduct in local law enforcement departments, compared with almost two dozen during the Obama administration. The target? The police force in Springfield, the third-largest city in Massachusetts.

Its easy to see why after reading the findings of the DOJ probe, revealed last month and detailed in a recent Globe story looking at the history of misconduct at the Springfield Police Department. Its an appalling collection of blatant police abuse. The DOJ, in its 27-months-long investigation, found that officers in Springfields narcotics unit routinely escalated encounters with civilians when there was no need and used excessive force, including punching people in the face and using head strikes, in violation of the Fourth Amendment. Whats more, officers who engaged in these practices faced little to no consequences. One narcotics detective told a 15-year-old suspect being questioned: I could crush your [expletive] skull and [expletive] get away with it, as he was captured on camera.

The DOJ concluded it was a pattern directly attributable to systemic deficiencies in policies, which fail to require detailed and consistent use-of-force reporting, and accountability systems that do not provide meaningful reviews of uses of force.

And yet, contrary to what is common practice, the DOJ did not force Springfield Police to sign a consent decree, or a court-mandated agreement, to ensure reform. Instead, the report concluded with four recommendations for the department: to improve procedures for reporting use-of-force incidents; to implement new use-of-force training; to revise policies for internal investigations; and to implement more accountability mechanisms. These remedies, while urgent steps in the right direction, are mere suggestions without mandated enforcement from the feds. Had the DOJ negotiated and entered into a consent decree with the Springfield police, similar to one of the 14 consent decrees signed by the Obama administration, the reform plan would have been supervised and enforced by a federal judge. Instead, any policing reform is left to Springfield police leadership.

The pattern of brazen misconduct and brutality in Springfield is shocking. There is the 17-year-old punched by an officer as he rode a motorbike past members of the narcotics unit as they made unrelated arrests, the Globe story notes. And the slight middle-aged man punched in the face during a drug arrest despite not acting aggressively himself.

Naturally, civilians have sued the department repeatedly. Between 2006 and 2019, the city has paid more than $5.25 million settling police misconduct suits. Its an outsized cost to Springfield taxpayers.

For her part, Springfield police commissioner Cheryl Clapprood has pledged to collaborate with DOJ and follow the federal recommendations, some of which she has already started to implement. She also said that upon reading the DOJ report, she immediately ordered plainclothes narcotics detectives to wear body cameras.

But a consent decree may still be possible and may even be in Clapproods best interest. According to one review of DOJs civil rights cases, many police chiefs who have been through the process of a DOJ investigation said that the end result was a better police department with improved policies on critical issues such as use of force, better training of officers, and more advanced information systems that help police executives to know what is going on in the department and manage their employees. They added that, in some cases, consent decrees have been instrumental in giving chiefs the authority and the resources to act.

Indeed, the investigation is exhibit A in why the feds need to get back into the business of consent decrees in Springfield and across the country. This is an era when DOJ has already retreated from its congressionally mandated duty of policing local police misconduct, a dereliction that has come under bigger scrutiny recently after George Floyds death at the hands of four officers from the Minneapolis Police Department, an agency that the DOJ should be probing to find out whether cops there systematically violated civil rights. Reforms may come to the Springfield police, but without an enforceable agreement, theres a real risk that progress will stall. Given the severity of the findings, Springfield residents deserve a rock-solid assurance for change, and thats only possible if the federal government polices the police with tough recommendations that have consequences if theyre not met.

Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.

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Who will police Springfields cops? - The Boston Globe

‘Defund the police’ is not a real reform strategy – The Maine Wire

The last few months have been tense, marked by social distancing and physical isolation amid the outbreak of a new virus. In-person communication and deciphering nonverbal cues is made more difficult by widespread use of facial coverings and plastic barriers. The American public has watched as the chasm between them and their government widens, mostly from ever-lengthening, amorphous states of emergency.

Not to discount the persistent issue of violent crime in our cities, among the population, the many accounts of gratuitous violence at the hands of public officials has brought the most hardened supporters of law-and-order to the table to discuss how American society can reform its police and restore accountability.

But, how can this be solved? Police departments are run at the local level. Budgets are allocated through the little-understood mechanisms of city, town, and county government. To many Americans, it can seem like a long way to reform.

Not every police department needs reform. The vast majority of law enforcement officials (LEOs) enter the force to protect and serve their communities, and maintain that commitment throughout their service. Policing would be a dangerous job under the most limited and accountable form of government.

Today, officers are tasked with enforcing numerous laws and rules that do not enhance public safety. This has led to a greater divide between police and the people they serve in many areas of the U.S. and especially our metropolitan areas. To help to remedy this situation, state and local policymakers should look to a myriad of reforms to bridge this divide.

Increase Accountability in Police Union Contracts

A point that cannot be overlooked in this larger debate is the role that public-sector labor unions play in obfuscating their members from full accountability. This facet is on display no more than within police union contracts. By reforming these contracts, policymakers can balance the scales between the powerful, politically-connected bargaining units and city leaders, who delegate managing their forces to their police chiefs.

At a basic level, public officials must be held to the same standards as the people they serve, whether they be police officers, bureaucrats or politicians. When individual police officers receive numerous complaints from the public, union contracts should not get in the way of proper discipline. Yet, quite often, they do.

Stephen Rushin, a Loyola University law Professor, in an interview with CBS News, gave an example from San Antonio, Texas, where all officers accused of a civil service rule violation are required to receive access to all sorts of evidence against them, such as video, GPS coordinates, witness statements, and affidavits before they can be questioned.

The union for the citys officers, the San Antonio Police Officers Association, noted that those requirements do not apply to criminal proceedings, but many officers are unlikely to face criminal charges for breaching standards of conduct. The union signaled that they understand that the winds of change are blowing in the direction of increased accountability, noting that as we move forward in time and our industry adapts to changes, there will be a need to make modifications.

In many cases dealing with alleged police misconduct, local taxpayers are likely to shoulder the financial burden. In just 2019 alone, the New York City Police Department (NYPD) paid out nearly $69 million in settlements; this number does not count the settlements paid in cases settled out of court.

Since the June 2018 U.S. Supreme Court ruling in Janus v. AFSCME, public employees are no longer required to financially support their union as a condition of employment. If individual police officers are concerned about losing their communitys trust, they may withdraw union support and form smaller, more accountable professional organizations bound by their own values.

While local leaders will need massive political will to take on these powerful public-sector unions, there are solutions that individual officers may pursue in order to strengthen the reputation of their profession and relationship to those they serve. An initiative called the Thick Red Line aims to reach local police officers and empower them to restore the trust and faith in the police by organizing with their colleagues, either with or without their union, into a department-wide refusal to enforce any law or regulation that doesnt have a real victim.

Eliminate Civil Asset Forfeiture in Every State

The next step in examining the interplay between LEOs and the public requires following the money, so to speak. This must include a hard look at the policy of civil asset forfeiture, which allows police to seize personal property simply through the suspicion of a crime.

The tricky thing about this problematic policy, is that it is adjudicated in civil court, instead of criminal court. In these proceedings, the state flips due process on its head, prosecuting your property for its involvement in a crime. This means that the individual whose property was seized must prove the innocence of their property by demonstrating that it is more likely than not (a preponderance of the evidence) that their property was not involved in the commission of a crime.

In many areas of the U.S., police rely on this tool to make up significant portions of their budgets. Because many jurisdictions allow police to keep much, if not all, of what they seize, a perverse incentive exists for officers and departments at large to engage in this type of activity. The positive side of this is that Maines laws on civil asset forfeiture are recognized as one of the best in the country.

Instead of seizure of property through a criminal conviction of an individual for a specified crime, police need only be suspicious that a crime took place using the property, in order to seize it under civil asset forfeiture. This practice should be ended in every state in order to protect the Fourth Amendment rights of Americans. No one should be punished with a loss of property without due process.

Roll Back Excessive Fees and Fines

Many laws, ordinances, and regulations are on the books all across the country that local governments rely on to pad their budgets.

A survey by the Institute for Justice, a liberty-focused national public interest law firm, found that in three Georgia municipalities that rely disproportionately on the accumulation of revenue through fees and finesdescribed as taxation by citationcontributed to significantly lower levels of trust in government, particularly among African-American communities, those most likely to be ticketed under these schemes.

By limiting ordinances to those that truly protect community health and safety, localities would greatly limit the incentive for police to become revenue collectors. Some local police budgets around the country depend on ticket fines for minor violations of traffic laws, and numerous other code infractions. An egregious case involving the town of Pagedale, Missouri showed ticketing for ordinances prohibiting barbecuing in front of a house and having holes in window screens.

By getting rid of the incentive for officers to accumulate revenue through fining the population for trivial offenses, such as the examples above, taxpayers may rest assured that local governments are spending their tax dollars more wisely while also maintaining a healthy relationship with those they serve.

Treat substance use and abuse as a public health issue, not one of criminality

Our nations outdated drug laws and enforcement regimes cause LEOs to view the drug user and the drug-addicted through a lens of criminality, instead of viewing the issue as it is, one that requires a holistic public health response. As my colleague, Julia Bentley argues, our current drug laws are more draconian than necessary for a free society, and have caused much more harm than good, whether measured in fiscal, public health, or social impact.

By reducing criminal penalties, and removing drugs from the criminal sphere altogether, we can eliminate the incentive for police to accost drug users who are not committing any type of violent or property crime. We can also reduce the societal stigma on drug use in order to prompt the drug-addicted to enter voluntary treatment. Yes, this would be a large shift in the mindset of Americans to drug use, but these policy changes will increase the likelihood that those who are addicted will seek therapy for their illness.

The idea of seeking harm reduction as a priority for policymakers has gathered greater popularity as public understanding of addiction as a mental illness has come to the fore. Looking at countries who have embraced this policy, namely Portugal, we see that use of drugs among the population, and especially among minors has decreased since the beginning of that policy. The drug-addicted have also been more willing and able to seek treatment and pull themselves out of a deadly downward spiral.

A white paper by journalist Glenn Greenwald published by the Cato Institute in 2009, noted that prior to decriminalization of individual possession of small amounts of drugs in 2001, The most substantial barrier to offering treatment to the addict population was the addicts fear of arrest. Portugal continues to hold drug trafficking and production as criminal offenses, but treats individual drug use as a public health issue, offering easier access to treatment. As a result, factors such as new HIV infections have substantially dropped over the last 20 years, reports the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA).

De-militarize Local Police Forces

In the late 1990s, the federal Department of Defense began the 1033 program, through which local police departments may accumulate excess military equipment from the Pentagon. The equipment has become excess because of updated congressional allocations to the military, rendering previous tools obsolete. The 1033 program equipment is provided to local law enforcement agencies by request, and at little to no cost to localities. Police departments in Maine covering college campuses, the wardens service and small towns and cities have received nearly $10 million in military equipment from the Pentagon since the beginning of the program.

The largest receipt of military gear went to Sanford since it houses the only SWAT team in Southern Maine. This may well be necessary, as long as use of SWAT force is reasonable given the circumstances. The Bangor Daily News reports that Sanford police have ordered more than $1.5 million in military equipment, including two Navistar Defense MaxxPro Mine-Resistant Ambush Protection vehicles, which were designed to protect U.S. soldiers from deadly mines during wars in Iraq and Afghanistan.

In 2014, after clashes between police and protesters as a result of the shooting of Michael Brown in Ferguson, Missouri, President Obama restricted the parameters of the 1033 program, but President Trump restored it in August 2017, after heavy police union lobbying. If the use of this equipment, if ever justified, is used in a reasonable manner, it is unlikely to draw much ire from the public. But combined with the aforementioned excessive fines, fees, and criminalization of victimless offenses, these disbursements can have the effect of further dividing the ethos of local police (to protect and serve) and their communities.

Societys goal for effective police reform, as it should be for any application of government force, should be a system that requires everyone to follow the same laws so all can be held accountable to the same standard. We must ensure the greatest possible level of human-to-human understanding between agents of the state and the public they serve.

Though not an exhaustive list, by enacting some or all of these reforms, policymakers may well be able to begin to heal the divide between police and some of the communities they serve, avoiding the vague, unnecessary, and unproductive calls from activists to defund the police.

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'Defund the police' is not a real reform strategy - The Maine Wire

Assessing Indias obsession with data localisation – Deccan Herald

Covid-19 has spawned contact-tracing worldwide, triggering collection and processing of personal data. Privacy protections surrounding this are nascent, raising significant concerns about their permanence in our society. The Supreme Courts landmark Puttaswamy judgement recognised privacy as intrinsic to personal liberty under Article 21.

Concurrently, it recognised that a legitimate interest, say, an epidemic, might restrain the right provided the doctrines of necessity and proportionality are satisfied. In this context, a recent order from the Kerala High Court in Balu Gopalakrishnan assumes significance.

The Kerala government contracted US-based Sprinklr Inc for Covid-related medical data analysis. Petitioners assailed this contract for lacking adequate privacy safeguards, arguing that the jurisdictional choice of New York virtually renders Indian citizens defenceless against a breach.

The courts order pervasively focuses on data localisation, that data concerning Indian residents must reside within India to secure jurisdiction of her courts. This sentiment has been echoed by Union ministers as well. We submit that data localisation is an anachronism, and severely inhibits privacy protections envisaged under the Constitution.

A comprehensive safeguard instead necessitates attaching jurisdiction through the residence of the data subject. In fact, Delhis obsession with data localisation stalls the resolution of another obsolescence ailing Indias privacy regime the absence of a data-protection legislation.

Currently, statutory protections are entirely contained within the Information Technology Act, 2000 (IT Act). Data localisation advocates, and respondents in Gopalakrishnan argue that localisation attaches jurisdiction using Section 75(2) of the IT Act, which applies the Act extra-territorially (outside India) if a breach involves a computer located in India.

Any reassurance from Section 75(2) is a facade. Consider this, Sprinklr decides to use a supercomputer in Ohio and copies data from Indian servers. The supercomputer at Ohio containing data of Indian nationals is breached. In such a case, Section 75(2) will not operate since the computer located in India was not breached, and absurdly, an Indian will be without remedy.

The IT Act was designed to facilitate e-commerce, not for data protection. Thus, virtually, the entirity of its penal provisions are predicated on tangible loss (see Sections 43A, 66, 66C, 66D, and 66E). Disclosure that someone is diabetic may not cause a loss but is still a privacy violation yet, the IT Act provides no remedy here.

Resolving these absurdities requires a fundamental re-imagination of our privacy jurisprudence. Jurisdiction should attach to any entity collecting, processing, and/or storing personal data based on the residence of the data subject, not its location. This approach allows greater flexibility for processing while also comprehensively protecting privacy.

The spatial approach of data-localisation is incongruent to the very concept of privacy. This was first enunciated by the US Supreme Court (Scotus) in Katz v United States, where wiretapping without entering a persons home was challenged as a violation of Fourth Amendment rights.

The Fourth Amendment is textually spatial; it protects against unreasonable search and seizure of someones persons, houses, papers, and effects. Drafted around 1791, its text could not possibly predict the intrusion that remote technologies can accomplish today.

Therefore, like data-localisation, it was written with spatial limitations and a literal interpretation renders it redundant today. Cognizant of this vulnerability, Scotus held that privacy attaches to people, not places, and therefore, wiretapping even absent a literal intrusion was unconstitutional.

The Indian Supreme Court, in Dist Registrar & Collector v Canara Bank, adopted Katz with approval, placing individuals at the locus of privacy. In Puttaswamy, Justice Chandrachud wrote, Privacy is a concomitant of the right of the individual to exercise control over his or her personality. Justice Nariman distilled an informational aspect of privacy, distinct from an individuals physical body. As a principle seeking to preserve privacy, therefore, data localisation ignores its evolution and attempts to restrict it to an obsolete conception of tangibility and spatiality.

Restrictive view

To argue that Indian courts cannot pursue offenders abroad without data localisation is a restrictive view of jurisdiction. The Supreme Court in GVK Industries acknowledged Parliaments power to legislate extra-territorially for the interests or welfare of inhabitants of India. Article 73 of the Constitution makes the Union executive power contemporaneous with Parliaments legislative authority.

Therefore, where the welfare of Indians is concerned, legislative and executive powers of extend outside India too.The Constitutions Fundamental Rights Charter is meant to check state authority. Consequently, it too, must operate abroad if the state pursues extra-territorial acts.

Concluding otherwise would confer absolute impunity to state action abroad, even when it infringes the rights, interests or welfare of the people of India. The Constitution provides for writs under Articles 32 and 226 for enforcing rights of Indians, indicating that the jurisdiction of the Supreme Court and high courts would extend extra-territorially in such cases.

There is precedent for this understanding of jurisdiction. Section 4 of the IPC provides that an Indian citizen may be charged with an IPC offence committed while she is abroad, even if it is not an offence in that country. Parliament has therefore attempted to regulate the conduct of Indian citizens abroad to accord with Indias standards of criminality. In such cases, Indian courts gain congruent jurisdiction already. For data protection, Europes General Data Protection Regulation statutorily attaches jurisdiction based on residence of data-subject, rejecting data-localisation. Under the Protective Principle, international law also permits extra-territorial jurisdiction of states for its own preservation or protecting its interests. Clearly, critical personal data of its residents is at the core of a states interests.

In Maneka Gandhi, the SC noted that courts should expand the reach and ambit of Fundamental Rights, rather than to attenuate their meaning and content by a process of judicial construction. By relying on constricted and overly simplistic anachronisms like data-localisation, policy makers are turning away from this guiding principle.

(Maniktala is an LLB student, Campus Law Center, University of Delhi; Khurana, is an LLM graduate from the UCLA School of Law, USA)

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Assessing Indias obsession with data localisation - Deccan Herald

How 9/11 and the US Civil War provided the framework for federal agents in Portland – News@Northeastern

Federal agents have begun to withdraw from Portland, Oregon, where they were stationed to protect federal property and personnel amid protests in the city, despite objection by local leaders. But, their authority to be there in the first place has deep roots.

Legislation passed just after the terrorist attacks on Sept. 11 designed to protect the U.S. from national security threats; and judicial expansion just after the Civil War designed to ensure southern states adhered to Reconstruction-era laws provide the framework for what we see today, says Northeastern law professor Michael Meltsner.

Michael Meltsner is the George J. and Kathleen Waters Matthews distinguished university professor of law in the Northeastern University School of Law. Photo by Matthew Modoono/Northeastern University

Federal presence in Portland is both authorized and problematic, says Meltsner, who is the George J. and Kathleen Waters Matthews Distinguished University Professor of Law.

Authorities in the Trump administration say that the federal agents, who were deployed by the U.S. Department of Homeland Security earlier this month, are in Portland to protect federal property and personnel. The federal force is composed of officers from Customs and Border Protection, the Transportation Security Administration, the Coast Guard, and Immigration and Customs Enforcement who back up the Federal Protective Service, which is already responsible for protecting federal property, according to The New York Times.

On July 29, Oregon Gov. Kate Brown announced that the forces would begin withdrawing from the state beginning July 30.

The federal agents arrived after weeks of protests in the city against racial injusticeprotests that had already been met with aggressive tactics from local police that were criticized by local officials including the governor, speaker of the Oregon House of Representatives, and some city councilors.

President Donald J. Trump has also threatened to send as many as 75,000 federal agents to other U.S. cities to quell protests there as well, even as local authorities in Portland, including Brown and Portland Mayor Ted Wheeler, have implored the agency to stand down, and the Oregon attorney general and the American Civil Liberties Union, a civil rights group, have sued.

But federal officials say they have clear authority. Representatives from Customs and Border Protection cited a section of the Homeland Security Act of 2002, legislation passed after the terrorist attacks on Sept. 11, 2001.

The act gives the U.S. secretary of Homeland Security the authority to protect the buildings, grounds, and property that are owned, occupied, or secured by the federal government and the persons on the property. The law was designed to protect the U.S. national security threats such as those perpetrated on 9/11, Meltsner says.

The agents in Oregon were there ostensibly, then, to protect federal propertyincluding the federal courthouse in downtown Portlandfrom protesters, he says.

To the extent that this is all they were doing, it would seem non-controversial, Meltsner says.

But news media reports from the city show what appear to be plain-clothes federal agents forcing protesters into unmarked vans.

If that were the case, Meltsner says, the agents would be in violation of the Fourth Amendment, which protects U.S. citizens against unreasonable searches and seizures.

In that case, just because federal agents have nominal authority under a federal statute, it doesnt mean that they can violate peoples constitutional rights under the Fourth Amendment, Meltsner says. From what Ive read in the papers, it would appear that these federal agents are interfering with the liberty of the people without any cause.

A state official could decide to take a federal agent to court over an alleged violation. Often, however, such cases are not tried in a state courthouse, theyre removed to the federal court system to be triedor, as is often the case, dismissedthere, Meltsner says.

This act of removal is a judicial power that was created during the Reconstruction period in the U.S., roughly 1863 to 1875. During the years after the Civil War, progressive congressmen passed legislation that would ensure the rights of formerly enslaved people in the countryincluding the passage of the Fourteenth Amendmentand sent federal agents to various Southern states to enforce that legislation.

White officials in those Southern states, reluctant to apply the new legislation to formerly enslaved people in their states, tried to find ways to prosecute the federal agents enforcing the laws, Meltsner says. In order to protect the agents and the rights of Black people, Congress allowed cases that had begun in state courts to be taken out of them and tried in federal courts, where they were often dismissed, he says.

Now, Meltsner says, the same tactics may be used to protect the federal agents allegedly acting unlawfully in Oregon.

Basically, whats happening in Portland now could ultimately involve the same tactics used by the Justice Department to protect these federal agents during Reconstruction and the Civil Rights movement, Meltsner says.

And, he adds, although the focus on federal intervention in the city is warranted, its just as important to examine the behavior of the city and state police before federal agents arrived.

Based on the news reports, it would appear that there was an incredible amount of First Amendment and Fourth Amendment violation from the Portland Police Department, Meltsner says. This is certainly an evolving situation, with a lot of questions to be answered about what, exactly, is going on.

For media inquiries, please contact Jessica Hair at j.hair@northeastern.edu or 617-373-5718.

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How 9/11 and the US Civil War provided the framework for federal agents in Portland - News@Northeastern

Senators Graham And Blumenthal Can’t Even ‘Earn’ The EARN IT Act: Looking To Sneak Vote Through Without Debate – Techdirt

from the don't-let-them dept

Senator Lindsey Graham very badly wants to push the extremely dangerous EARN IT Act across the finish line. He's up for re-election this fall, and wants to burnish his "I took on big tech" creds, and sees EARN IT as his path to grandstanding glory. Never mind the damage it will do to basically every one. While the bill was radically changed via his manager's amendment last month, it's still an utter disaster that puts basically everything we hold dear about the internet at risk. It will allow for some attacks on encryption and (somewhat bizarrely) will push other services to more fully encrypt. For those that don't do that, there will still be new limitations on Section 230 protections and, very dangerously, it will create strong incentives for internet companies to collect more personal information about every one of their users to make sure they're complying with the law.

It's a weird way to "attack" the power of big tech by forcing them to collect and store more of your private info. But, hey, it's not about what's actually in the bill. It's about whatever bullshit narrative Graham and others know the press will say is in the bill.

Either way, we've heard that Graham and his bi-partisan supporter for EARN IT, Senator Richard Blumenthal, are looking to rush EARN IT through with no debate, via a process known as hotlining. Basically, it's a way to try to get around any floor debate, by asking every Senator's office (by email, apparently!) if they would object to a call for unanimous consent. If no Senator objects, then they basically know they can skip debate and get the bill approved. If Senators object, then (behind the scenes) others can start to lean on (or horse trade) with the Senators to get the objections to go away without it all having to happen on the floor of the Senate. In other words, Graham and Blumenthal are recognizing that they probably can't "earn" the EARN IT Act if it has to go through the official process to have it debated and voted on on the floor, and instead are looking to sneak it through when no one's looking.

While Senator Wyden (once again) has said he'll do whatever he can to to block this, it would help if other Senators would stand up as well. Here's what Wyden had to say about it:

The EARN IT Act will not protect children. It will not stop thespread of child sexual abuse material, nor target the monsters whoproduce and share it, and it will not help the victims of these evilcrimes. What it will do is threaten the free speech, privacy, andsecurity of every single American. This is because, at its core, theamended EARN IT Act magnifies the failures of the Stop Enabling SexTraffickers Act--SESTA--and its House companion, the Fight Online SexTrafficking Act--FOSTA. Experts believe that SESTA/FOSTA has donenothing to help victims or stop sex trafficking, while creatingcollateral damage for marginalized communities and the speech of allAmericans. A lawsuit challenging the constitutionality of FOSTA onFirst Amendment grounds is proceeding through the courts, and there isbicameral Federal legislation to study the widespread negative impactsof the bill on marginalized groups.

Yet, the authors of the EARN IT Act decided to take this kind ofcarveout and expand it further to State civil and criminal statutes. Byallowing any individual State to set laws for internet content, thisbill would create massive uncertainty, both for strong encryption andconstitutionally protected speech online. What is worse, the flood ofState laws that could potentially arise under the EARN IT Act raisesstrong Fourth Amendment concerns, meaning that any CSAM evidencecollected could be rendered inadmissible in court and accused CSAMoffenders could get off scot-free. This is not a risk that I am willingto take.

Let me be clear: The proliferation of these heinous crimes againstchildren is a serious problem. However, for these reasons and more, theEARN IT Act is not the solution. Moreover, it ignores what Congress canand should be doing to combat this heinous crime. The U.S. has a numberof important evidence-based programs in existence that are proven tokeep kids safe, and they are in desperate need of funding to do theirgood work. Yet the EARN IT Act doesn't include a single dollar offunding for these important programs. It is time for the U.S.Government to spend the funds necessary to save children's lives now.

While a Wyden hold would block any attempt to get unanimous consent via the hotlining process, it would help quite a lot if other Senators were willing to speak up and stand with him as well. If it's just Wyden, then he'll face tremendous pressure to remove the hold. If more Senators join Wyden in saying this isn't okay, then Graham and Blumenthal will realize they have a bigger challenge in front of them.

Again, if you haven't been following this debate closely, everything that Wyden says above is accurate. EARN IT is an attack on both free speech and privacy (a twofer) without doing anything to actually deal with the problem of child sexual abuse material online. That is very much a law enforcement issue, and it's one which Congress has failed to provide the funds to law enforcement that it promised on this issue, and (even worse) the DOJ has simply ignored its requirement mandates to deal with this issue as required by Congress. The DOJ seems more focused on attacking tech companies and blaming them for its own failure to do its job.

The EARN IT Act is an incredibly dangerous piece of legislation, but it's also a complicated one -- one that many people don't understand. But Senators see something that says "protect the children" and they immediately think "well, of course we support that." But this bill doesn't protect children. It attacks free speech and privacy online in very insidious ways. Please call your Senators and ask them not to let this through.

Filed Under: debate, earn it, earn it act, encryption, free speech, lindsey graham, privacy, richard blumenthal, section 230, senate

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Senators Graham And Blumenthal Can't Even 'Earn' The EARN IT Act: Looking To Sneak Vote Through Without Debate - Techdirt

The Constitutional Case Against Trumps Use of the Department of Homeland Security – The New Yorker

This month, President Trump deployed law-enforcement agents from the Department of Homeland Security to Portland, Oregon, ostensibly to protect federal property from protests that began after the killing of George Floyd. But these D.H.S. agents, who wear military-style camouflage, have not identified themselves as law enforcement and have arrested and detained protesters without probable cause, inflaming protests in Portland and other cities, with many Americans furious that the Administration has sent federal law-enforcement officers to fulfill policing functions that are not part of Washingtons governing mandate. On Tuesday, in a tense hearing before the House Judiciary Committee, Attorney General William Barr defended the deployments, arguing that violent rioters and anarchists have hijacked legitimate protests to wreak senseless havoc and destruction. The following day, Oregons governor announced that an agreement had been reached with D.H.S. to withdraw the deployed personnel from Portland; the department responded by saying the agreement was conditional on the safety of federal property within the city.

To talk about the significance of the deployments, and what legal remedies may be available, I spoke by phone on Tuesday with Mary McCord, who served as an Assistant U.S. Attorney for the District of Columbia for almost two decades, and was the acting Assistant Attorney General for National Security, from 2016 to 2017. She is now the legal director of the Institute for Constitutional Advocacy and Protection at Georgetown Law. During our conversation, which has been edited for length and clarity, we discussed who has standing to legally challenge the deployments, the dangers for everyone involved when law-enforcement officials are unwilling to identify themselves, and whether Congress needs to change its approach to legislating to circumscribe future Presidents.

If you were talking to someone who had no idea what was going on in Portland and, to a lesser extent, other American cities, how would you describe it to them?

I think what were seeing in Portland is a very heavy-handed use of legal authorities that were provided to D.H.S. and to the Federal Protective Service but never intended to be used for these purposes. The 2002 [Homeland Security] Act gave a lot of law-enforcement authority to D.H.S. and gave authority to the Secretary of Homeland Security to pull in other agents of D.H.S. as needed to supplement the Federal Protective Service in defense of federal property. I dont think anyone at the time would have foreseen that the Secretary would use that authority to bring Customs and Border Protection officers and such a large swath of officers to essentially engage in local crowd control, protest control, riot control. It was never meant to infringe upon the states sovereign right to exercise the police power within their jurisdiction.

If this Administration is using authorization that no one had envisioned them using, does that imply that the authorization exists, and there is not really any legal remedy, if they are only protecting federal buildings? And, in Portland and elsewhere, it seems like theyve gone beyond that. Is there any legal remedy in the second case?

One thing that is important to remember is there are always going to be legal remedies available for constitutional violations, even if law enforcement is deployed consistent with legal authorities. Some of the lawsuits youre seeing, which seem to be very well founded to me, are alleging First Amendment violations, Fourth Amendment violations, Fifth Amendment violations, because of the way that D.H.S. is carrying out its law-enforcement responsibilities, potentially in retaliation for protected First Amendment activity, or making arrests without probable cause and depriving people of their liberty without due process. Those are constitutional violations that theres certainly legal recourse for.

There are other, more creative theories that are being litigated right now, too, including theories about this type of encroachment on states police power, in violation of the Tenth Amendment, which reserves the police power for the states. There are some theories now, and at least one lawsuit, alleging that the D.H.S. acting Secretary is not properly holding that office, and that therefore any policies or orders that he gives should be unlawful. There are arguments being made, but, strictly speaking, if theyre acting within the confines of what the statute allows them to do, then that would be hard to challenge, because Congress has given them that authority. I think the question becomes, Is that what theyre doing?

The statute thats most frequently cited is Section 1315, and that statute does allow, as I mentioned before, the protection of federal property. That doesnt mean you have to be on the federal property at the time youre asserting law-enforcement ability or law-enforcement function. Lets just assume someone firebombed a federal building, causing serious damage. D.H.S. could pursue somebody they witnessed commit that crime and make an arrest off of federal property. But I think it gets more difficult for a layperson to determine if theyre acting within their authority when you see them far away from federal property. Certainly, we have seen them abducting people off the streets and taking them in for questioning, which appears to be a Fourth Amendment violation and probably other constitutional violations, but also doesnt seem to be tethered to anything that mightve happened at the federal property.

Does that mean theres no legal recourse? No, I dont think it means that. Its just that there will be overlaps of federal authority and state authority where it gets murky about whether they have gone beyond their authority.

If people in D.H.S. are being ordered to do things that have nothing to do with the protection of federal buildings, even if they were authorized explicitly by the President, is there any recourse for that, if theyre not violating peoples constitutional rights? If the statute is being violated, how is that litigated? Is it just up to the people in the bureaucracy to say, No, I wont carry out these orders?

I think certainly thats one option. Whistle-blowers within D.H.S. could say, Were being ordered to do things that seem to us to be beyond the powers that are authorized by Section 1315. They could certainly go through the agencys whistle-blower system in order to report that. And then you could have litigation saying that the agency is acting beyond its statutory authority, so its acting outside accordance of law. It can also be alleged right now. In fact, it is alleged in a case that was filed this week, on behalf of Dont Shoot Portland and Wall of Moms and some other individual plaintiffs. They are making specific allegations of D.H.S. acting beyond its statutory authority. Those are things that can be litigated.

By whom?

Any litigation requires the plaintiff to have standing, which just means an ArticleIII injury that is concrete and particular, not general. Certainly individuals who personally have been harmedthose whove been shot with tear gas or non-lethal bullets or subject to being arrested without probable causehave a basis to sue, not only for constitutional violations but potentially for the agency acting beyond its authority. At least, for injunctive relief. Sometimes organizations, in the case Ive mentioned, are suing, saying their mission and resources are being diverted because of this. Were not able to do the work that we are organized to do. Each plaintiff would have to have standing, and a court would decide if the plaintiffs had standing.

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The Constitutional Case Against Trumps Use of the Department of Homeland Security - The New Yorker

‘Trump’s Troops Are Breaking the Law and Creating Chaos’ – FAIR

Janine Jackson interviewed legal scholar Marjorie Cohn about secret police in Portland for the July 24, 2020, episode of CounterSpin. This is a lightly edited transcript.

MP3 Link

(Image: Matcha Chai via Sparrow Project, 7/15/20)

Janine Jackson: As we record this show on July 23, demonstrations in Portland, Oregon show no signs of slowing. Protesters demanding an end to racist policing, in the wake ofand even beforeGeorge Floyds murder had been met with what local activists describe as typical aggression from Portlands police department: The indiscriminate firing of tear gas and other munitions into peaceful crowds. Flash-bang grenades. Beatings with batons.

But then came the footage: A man, dressed in black, stands apparently alone on a darkened sidewalk, when two heavily armed men in camouflage walk up on him, hustle him off into an unmarked van and drive off, refusing to identify themselves to observers.

Weve since learned this is part of an orchestrated effort by the Trump administration to deploy federal law enforcement agents to deal, SWAT-style, with what they call violent anarchists. Whats more, they plan to replay those nightmarish scenes from Portland wherever they see fit. As Acting Homeland Security Chief Chad Wolf says, I dont need invitations. Wolf also subsequently described federal agents as arresting demonstrators proactively.

Alarm seems appropriate. Here to help us think about what were seeing is author and legal scholar Marjorie Cohn. Shes professor emerita at Thomas Jefferson School of Law and a former president of the National Lawyers Guild. She joins us now by phone from San Diego. Welcome back to CounterSpin, Marjorie Cohn.

Marjorie Cohn: Thanks for having me, Janine.

JJ: These street pick-ups, when you first see it, you think its a movie. As I understand it, the line is that these federal agents see someonenot necessarily anyone theyve seen commit a crimethey say they want to talk to that person, have a consensual conversation with them. And then they, the agents, fear for their own safety, so they decide they want to have that conversation elsewhere, like the courthouse, and then, Oh, youre free to go. This wasnt even an arrest at all. Is that legal, or constitutional?

Minority Report, 2002

MC: No, its not. In order to have a legal arrest, you need probable cause to believe that the person committed a crime. And these snatches, by unidentified federal officials in unmarked vehicles, snatching peaceful protesters off the streets, transporting them to unknown locations without informing them of why theyre being arrested, and later releasing them with no record of their arrest, violates the law.

And this proactive arrest that the Department of Homeland Security is intending to carry out, violates the Fourth Amendment, which requires that, as I said, an arrest be supported by probable cause. This reminds me of the movie Minority Report, where theyre trying to predict whos going to commit a crime. There is nothing in the law that allows proactive arrest.

There have been lawsuits filed, and they basically allege violations of the First Amendment, freedom of speech and press; the Fourth Amendment, prohibition on unreasonable searches and seizures; the Fifth Amendment, right to due process; and the Tenth Amendment, which says that powers not delegated to the feds are reserved to the states. And this is what is being litigated now.

JJ: One attorney, Juan Chavez with the Oregon Justice Resource Center, said, Its like stop and frisk meets Guantnamo Bay.

Well, federal law enforcement are permitted to go into states to protect federal property like courthouses and to prosecute federal crimes. But policing protests, just at the letter of the law, goes beyond that function.

MC: Yes, it certainly does. And, in fact, a lawsuit that was filed two days ago, on behalf of the First Unitarian Church of Portland, a public benefit corporation and two Oregon state representatives, alleges violation of the Tenth Amendment, and says that these abductions occurred outside the jurisdiction of federal law enforcement; those abducted were not attacking federal property or personnel, and they werent on federal property at the time that they were abducted. The ostensible, or the stated, reason for these federal goons to go into Portland, and other cities as well, which is happening as we speak, is to protect federal monuments and statues. Trump issued an executive order on June the 26th, saying that his federal forces were going to protect these monuments.

And theres no monuments around where they were. Mark Pettibonewhos one of the plaintiffs in the lawsuit filed by the Oregon Department of Justice against Homeland Security and the US Marshalshe was accosted, he was one of these people who was snatched off the street and then released without any citation. He was taken in this unmarked van to a federal courthouse, the Mark O. Hatfield US Courthouse.

And actually, neither the mayor of Portland nor the governor of Oregon invited or welcomed these federal troops, and last night, its my understanding, that the Portland mayor was tear-gassed when he was standing near this courthouse, doing nothing; he was standing there, and it was his first time hed ever been tear-gassed.

So theyre just going way beyond any legal authority that they might have. And mayors in other cities as wellwho are on Trumps hit list, I guess you would sayare also saying, We dont want federal troops in our cities. Now, these mayors often welcome federal assistance when theyre working cooperatively in drug enforcement or other kinds of criminal enforcement, but this goes way beyond that.

And its calculated by Trump to boost his sagging poll numbers. Hes taking a page out of Richard Nixons law and order playbook, because hes so botched the response to the coronavirus, in fact responsible for thousands of deaths, when hes been in denial about it, and actually stood in the way of really responding in an effective way. So now he is trying to shift the conversation, shift the discourse to anarchists, violent anarchists, left-wingers, Joe Biden would be behind this. And hes going to come in on his white horse with his federal troops and take care of it and restore law and order, but, in effect, hes breaking the law. His troops are breaking the law and creating chaos.

Its interesting, Janine, because why didnt he send in the military? I think theres a reason why he sent in the Department of Homeland Security, Customs and Border Protection troops: Theyre loyal. Theyre also not trained for this kind of thing, either, even if they were legally allowed to be in these cities.

But the Uniform Code of Military Justice provides that service members must obey lawful orders, but they have a duty to disobey unlawful orders. And these people, these troops, the secret military force that Trump has been sending into these cities, or sent into Portlandand Chicagos next on the list, and Albuquerquethese could be reasonably construed as unlawful orders, orders to carry out unlawful actions. And I think its not altogether unlikely that hes worried that military people would resist those orders and refuse to carry them out.

And maybe thats why he has cobbled together this secret paramilitary militia: It has been the Customs and Border Protection, US Marshals, Federal Protective Service, and now theyre going to add the FBI, the ATFAlcohol, Tobacco and Firearmsthe Drug Enforcement Agency, to this list of federal agencies.

JJ: I can see the worry about maybe not using the military because, as you have written about, there was military official pushback after his photo op thing, where he used military officials to clear out the space in front of the church, and there was some indication that, You know, were not going to necessarily have your back.

Now I did though want to say: So were bringing in this cobbled together force that includes Customs and Border Patrol, maybe some of them now deputized into this kind of vague Federal Protective Service. And these people, as you mentioned, arent trained to do crowd control, much less trained to do the kind of de-escalation that would be necessary to protect a protest that is against police.

But what those folks do have a history of, what they do have training in, is rolling up on people and taking them away in vans, when those peoples crime is being undocumented. And thats something that people are reminding, that not only should we be careful about saying these tactics arent American, since the US has done and is doing them in other places. But we also shouldnt say that this has never happened here before, because thats not really true either.

MC: Well, it hasnt happened in this kind of a setting, in this way.

JJ: Right.

MC: But youre right, the Customs and Border Protection agencies are notoriously Im not saying every single one of thembut notoriously racist, anti-immigrant, nativist and very brutal and violent. When they are supposedly enforcing the immigration laws, they kill people and deny them of their rights.

And youre right. They are absolutely not trained in crowd control, which is not in their purview anyway. They have no right to be in the middle of Portland, doing crowd control, where their stated authority is to protect federal monuments. Theyve gone way beyond the purview. And they are actually saying that theyre enforcing the law, where its really the purview of the state authorities to be enforcing state law, and, unfortunately, I think were going to see this expand and escalate throughout the country, as Trump gets more and more desperate to elevate his falling poll numbers.

JJ: Right. And speaking of context, there is something, I agree, especially eerie and frightening about this bundling people into vans footage, and its true that we had seen it in the past sometimes with undocumented immigrants, including people forming bands around them to protect them from being hustled off. But the thing is, we dont want that to be while its especially horrible, we dont want that to be because weve become numb to images of demonstrators being shot with munitions, being beaten with batons, being tear-gassed. And you wrote earlier this monthI saw it on Truthoutabout [how] were not just seeing videos of extremely rare, nearly unique instances; there really is a widespread problem of police abuse of protesters going on.

MC: Yes, there is. And I think its going to get worse. You know, when you think of the image of people being snatched off the streets, peaceful protesters doing nothing illegal being snatched off the streets by people that arent wearing uniforms, and placed into vans: This reminds me of the dictatorships in Latin America, that were supported by the United States, who disappeared people, it was called disappearing people. And they would do it in broad daylight: snatch them, just like this, and put them in a van, and many of them were never heard of since; many of them were killed. This is kidnapping. And they did it in broad daylight, to send a message to other people that, If you dont do what we want you to do, this will happen to you as well.

In the Oregon Department of Justices lawsuit against Homeland Security and the US Marshals, they wrote:

Ordinarily, a person exercising his right to walk through the streets of Portland who is confronted by anonymous men in military-type fatigues and ordered into an unmarked van can reasonably assume that he is being kidnapped and is a victim of a crime.

And kidnapping by militia and other malfeasants dressed in paramilitary gear would trigger the lawful right of self-defense.

So what theyre doing is setting up a situation where people think theyre going to be kidnapped and would fight back. And if theyre armed, they could use weapons, and this could lead to killing, it could lead to a horrible situation. This is kidnapping, pure and simple; no probable cause for these arrests.

JJ: It seems like almost a side note, but lets talk for a minute about the concealed identities. You know, its not like these folks were undercover; they didnt blend. So why conceal your identity, except to evade accountability?

MC: Absolutely. And, you know, this opens the door to right-wing vigilantes putting on military fatigues, camouflage outfits, and doing the same thing that these federal agents are doing. And I dont know what Trump would say about that; he has a double standard, of course, when right-wingers do it, then, you know, thats fine, but hes painting Black people as terrorists, hes painting white people as antifa, the white allies in the Movement for Black Lives, painting them with a broad brush, pulling out accusations that these are left-wing Democratic anarchists, violent anarchists, and if Joe Biden is elected, this is what were going to get.

There is a certain critical massand I dont know if its 30% or 40% or whatof people who support Trump no matter what, and its music to their ears, and thats who hes playing to, thats his base, thats who he is relying on to put him in the White House again.

And quite frankly, Janine, what Im concerned about is that this is all a dry run for an election that goes against Trump. He declares martial law, and he uses his federal goons to maintain power. Now, if he tries to use the military, I really suspect that a large number of service members would disobey those orders.

But when he was asked on Fox News by Chris Wallace, whether he would accept the results of the election, he said, I have to see. I have to see? Can you imagine? It depends; if I dont like the result, I may not accept the results of the election. And that, combined with a massive program of voter suppression, is very, very frightening.

JJ: Just finally, Philadelphias District Attorney Larry Krasner says: Try it. Anybody, federal agent or not, committing crimes in my district will be arrested. Rashida Tlaib says, Theyll have to arrest me first if they try to bring this to Minneapolis. So we have some legislation; theres legislation about agents have to identify themselves and their agency. Weve got lawsuits from the ACLU and other folks.

But it seems really clear that people are the power that is driving things right now. So I just want to ask you to talk about what we need to do to actually vouchsafe the right to protest in this country, and where does that power lie? Clearly, we cant only rely on the legal system to protect these rights.

Marjorie Cohn: There are lawsuits being filed in support of the real power, and that is the power of the people.

MC: Its the power of the people, and people are in the streetshundreds of thousands of people in the streets in US cities, and in cities around the worldin support of the Movement for Black Lives, and against police brutality.

And, yes, we cant rely on the legal system, but its a tool that we have to use. And Im very proud to say that my organization, the National Lawyers Guild, is front and center in the middle of legal defense for the protesters, the legal observers who wear those green caps, marked National Lawyers Guild. Theyre not protesters; theyre there to witness what the police are doing. And they have been the target of police brutality and violence.

And, in fact, there is an ACLU lawsuit to enjoin, its asking for an injunction against these federal agents targeting legal observers, and targeting journalists as well, because the last thing in the world that the Trump administration and his goons want are witnesses, are media that are witnessing whats happening, and so theyre going after journalists; theyre going after legal observers.

But there are lawsuits being filed in support of the real power, and that is the power of the people. And weve seen that in the streets for the last 50-some days, since the public lynching of George Floyd, and I think that what Trump is doing is going to exacerbate, or elevate, those protests. Were going to see much more protesting, now that he is committing these illegal atrocities with his private paramilitary force.

JJ: Weve been speaking with Marjorie Cohn, you can find her recent work on Truthout.org along with other outlets, as well as her own site, Marjorie Cohn com. Thank you very much, Marjorie Cohn, for joining us this week on CounterSpin.

MC: Thanks so much, Janine.

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'Trump's Troops Are Breaking the Law and Creating Chaos' - FAIR

Portland demonstrates that government spying on citizens has become commonplace, and easy – Washington Times

ANALYSIS/OPINION:

Last week, this column argued that the only constitutional role for armed federal forces in Portland, Oregon, was to assist U.S. marshals in protecting federal property and personnel there in this case, the federal courthouse and those who come to it. The column also argued that under the U.S. Constitution, the feds have no lawful role in policing streets unless requested to do so by the governor or legislature of any state.

In Portlands case, the governor of Oregon and the mayor of Portland both asked acting Secretary of Homeland Security Chad Wolf to bring his forces home. He agreed to do so when Oregons governor offered to beef up security at the federal courthouse.

Yet, the federal forces were doing more than just protecting federal property. They were agitating the peaceful demonstrators in Portlands streets by firing an internationally banned variant of tear gas repeatedly and indiscriminately into crowds for hours at a time every night. The feds were also spying on journalists who were in the crowds of protesters reporting on what they observed.

Here is the backstory.

The U.S. Supreme Court has held, for many generations, that the Fourth Amendment to the Constitution protects the right to be let alone. Today, we call this privacy.

Those who wrote the Constitution were acutely aware of the proclivities of government to monitor the communications and behavior of folks it hates and fears. King George III sent British troops and government agents into the homes of colonists under various pretexts, the most notorious of which was to examine letters, papers and pamphlets to ascertain if the kings tax on them had been paid.

This Stamp Act tax cost more to enforce than it generated in revenue. Was the king dumb or dumb like a fox? Probably the latter; the true purpose of the tax was not to raise money but to remind the colonists that the king could cross the thresholds of their homes a right he did not have in Great Britain through the use of his soldiers and agents. And, while inside the home, his agents could discover who was agitating for secession.

With memories of these royal abuses fresh in their minds, the members of the first Congress led by James Madison approved and passed the Fourth Amendment. The states ratified it as part of the Bill of Rights. Madison also drafted the Ninth Amendment, which reflects the existence in all people of natural human rights knowable by the exercise of reason and insulated from government intrusion. Among those rights is privacy.

May the government lawfully invade the right to privacy? Under the Fourth Amendment, it may do so only pursuant to search warrants issued by a judge, and the judge may only issue a search warrant after taking testimony under oath demonstrating that it is more likely than not that the place to be searched will yield evidence of criminal behavior. Plus, the warrant must specify the place to be searched or the person or thing to be seized.

The language and requirements in the Fourth Amendment are the most specific in the Constitution. Madison insisted upon this so it would be both an obstacle to the new American government doing to its citizens what the king and his agents had done to the colonists, and an inducement to the government to focus law enforcement on probable causes of crime rather than spying on political enemies.

Now, back to the feds in Portland.

We know from their admissions that the feds compiled dossiers on numerous journalists covering their activities in Portland. We also know that some data in those dossiers came from public sources and some did not. The governmental acquisition of data from nonpublic, nongovernment sources without search warrants constitutes spying.

The government spies routinely on Americans today so much so that the revelation of it ceases to shock.

Why would the feds do this?

For starters, it is far easier to spy unlawfully than it is to obtain a search warrant. As well, the feds have established a vast network of domestic spies the 60,000-person strong National Security Agency. It captures all electronic data, voice and text, communicated within the United States without warrants and with few complaints.

All this directly assaults the right to privacy, but the feds do it anyway. The spying is so normal that a deputy DHS secretary ordered it in Portland without seeking approval up his chain of command.

The government also spies to intimidate and this brings us back to Portland. When the government discovers personal information that it has no right to acquire without a warrant information devoid of criminal evidence, information that the Fourth Amendment bars the government from obtaining without a warrant and then tells you it has this information, it chills your freedom.

Chilling can make you pause before exposing or criticizing the government. The Supreme Court has characterized this as a violation of both the Fourth Amendment and the freedom of speech protected by the First Amendment.

To Mr. Wolfs credit, he either fired or transferred (it is unclear which) the deputy secretary who ordered DHS agents to spy on journalists in Portland. Yet, when ordered, they readily complied with the order. Thats how commonplace federal spying has become and how easy.

The folks who did this should all lose their jobs. Why? Because it is unlawful to obey an unlawful order.

Or have our constitutional rights been so emasculated that the government doesnt know the difference?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is a regular contributor to The Washington Times. He is the author of nine books on the U.S. Constitution.

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Portland demonstrates that government spying on citizens has become commonplace, and easy - Washington Times

Plainclothes NYC police grab protester and throw her into unmarked car – WSWS

By Niles Niemuth 30 July 2020

Shock and anger quickly spread online Tuesday as video posted on social media showed a group of armed men in street clothes snatching a young protester off the street and trundling her into an unmarked van during a peaceful demonstration against police violence in New York City.

While the men refused to identify themselves at the scene of the kidnapping, the New York Police Department (NYPD) later identified them as members of the police forces plainclothes Warrant Squad.

Outrage over Tuesdays incident was compounded by its similarity to the snatch and grab detentions carried out in recent weeks by federal paramilitary police in Portland, Oregon. In that city, a tactical wing of Customs and Border Protection known as BORTAC, sent in by President Trump to crack down on protests near the federal courthouse, has been seizing protesters, throwing them into unmarked vans and taking them to secret locations where they are subject to questioning for hours on end. The element of terror and intimidation is enhanced by the fact that the victims do not know who has picked them up or where they are being held.

All such actions violate the US Constitutions First Amendment guarantees of freedom of speech and assembly and its Fourth Amendment ban on arbitrary searches or seizures. They also run counter to the requirement that arrests be based on probable cause.

The NYPD played down the unconstitutional arrest, claiming the Warrant Squad routinely uses unmarked vehicles to effectively locate wanted suspects. But it is clear that the abduction of 18-year-old Nikki Stone was intended to send a signal to demonstrators, as well as the Trump administration, that the New York police are more than capable of cracking down on protests without direct federal intervention.

Trump has repeatedly threatened to deploy federal forces to Democratic-controlled cities throughout the country, including New York, to suppress demonstrations that have continued since the murder of George Floyd by Minneapolis police on May 25. There have been reports of federal police in Detroit and other cities.

Nikki Stone is a homeless youth who has been participating in protests throughout the city. The authorities have justified her chilling arrestwhich bystanders took to be a kidnappingwith allegations of vandalism, including spray painting the lenses of police cameras around City Hall Park. She was released from police custody early Wednesday and charged with several counts of graffiti painting and criminal mischief.

The citys Democratic mayor, Bill de Blasio, responded to the arrest by upholding the right of non-uniformed, unidentified NYPD officers to grab peaceful protesters off the street, while mildly criticizing the timing of the arrest.

This is not Portland, he said. I want to emphasize what you see on that video are NYPD officers, federal agencies are not involved! I think it was the wrong time and place to effectuate that arrest. I want to affirm very clearly, no one is allowed to damage police property. If you damage property it will lead to consequences.

As with Trumps attempted coup on June 1, the Democratic Party has downplayed the authoritarian and fascistic character of Trumps deployment of paramilitary federal forces, dismissing it is an electoral ploy to raise flagging poll numbers. At the same time they argue that they are capable of suppressing protests in the cities they control with heavily armed local police, bolstered when necessary by National Guard troops under the command of state governors.

Former Vice President Joe Biden, the presumptive Democratic presidential candidate, gave a speech Tuesday in which he endorsed the prosecution of anarchists and arsonists and insisted that he would be better equipped to suppress popular anger by coordinating with local police forces. The Democrats have made clear that they are willing to collaborate with the Trump administration in suppressing protests as long as they retain a measure of control.

This isnt about law and order, Biden said of Trumps crackdown, its about a political strategy to revive a failing campaign. Every instinct Trump has is to add fuel to the fire. Thats the last thing, the last thing we need. We need leadership to calm the water and lower the temperature. Thats how we will restore peace in the streets.

On Wednesday, Oregons Democratic governor, Kate Brown, announced via Twitter that an agreement had been reached in negotiations with the White House for the Oregon State Police to take over policing the area around the federal court house.

Federal police, including Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) officers, are set to begin a phased withdrawal from the city, while other agents from the Department of Homeland Security will remain inside the courthouse. CBP forces deployed last week to Seattle, Washington will also leave that city, following lobbying by Democratic Mayor Jenny Durkan and Governor Jay Inslee, also a Democrat.

State and local law enforcement will begin securing properties and streets, especially those surrounding federal properties that have been under nightly attack for the past two months, Acting Secretary of Homeland Security Chad Wolf said in a statement announcing the agreement. Oregon State Police will coordinate with Federal Protective Service (FPS) officers to ensure all federal facilities remain protected and secure.

Wolf added, President Trump has also made it clear that this Administration is ready and willing to partner with state and local law enforcement to protect every Americanand you see that commitment in Portland with this plan. The Department and this Administration will also continue to fulfill its solemn obligation to uphold federal law across the country.

While the Trump administration appears to have backed off for now on the deployment of federal forces against protesters in Portland and Seattle, the Justice Department is moving forward with an expansion of Operation Legend, an anti-violence initiative involving the deployment of nearly 100 officers from the FBI, the Drug Enforcement Agency and other federal police agencies to Detroit, Cleveland and Milwaukee. Hundreds of agents have already been welcomed by Democratic mayors in Kansas City, Chicago and Albuquerque, with the assurance that the agents will aid in the arrest of those deemed chronic violent criminals by Attorney General William Barr.

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Plainclothes NYC police grab protester and throw her into unmarked car - WSWS

Majority of Kingston aldermen view Kingstonian project tax pact favorably, with conditions – The Daily Freeman

KINGSTON, N.Y. A majority of members of the city's Common Council appear to favor, with conditions, a proposed payment-in-lieu-of-taxes agreement with the developers of The Kingstonian, a planned mix of residential, hotel and commercial space Uptown.

Their approval would be conditioned on the project meeting a number of requirements, including one that 14 housing units would remain "affordable."

City Assessor Dan Baker told members of the Common Council during a virtual caucus meeting on Monday, Aug. 3, that four amendments had been made to the minimum terms being recommended for a payment-in-lieu-of-taxes, or PILOT, agreement for The Kingstonian project proposed for construction at Fair and North Front streets.

Baker said those amendments include making sure the affordable housing remains so for the life of the project and that the developers pay $40,000 in property taxes for the first year of the agreement, increasing that payment by 3 percent each year thereafter. The base tax payment had been approximately $28,000 in an earlier version of the document, Baker said.

Additionally, if the project is more profitable than expected, the owners would share 5 percent of the additional profit with local taxing jurisdictions -- the city, Ulster County and the Kingston school district -- at a rate proportional to the current tax rate, Baker said. He said that was initially proposed to be a 3 percent share.

The fourth amendment was to ensure the tenants of the affordable housing units would pay 50 percent of what is charged to the market-rate units for parking in the development, Baker said. He said the developers are estimating that market-rate units would be charged $100 per month for parking, meaning the tenants of the affordable units would pay $50 monthly.

"And just to remind the council, this is a supporting framework resolution that we will be passing on to the (Ulster County) Industrial Development Agency and letting them know this is what we expect as the minimum qualifications for a payment-in-lieu-of-taxes agreement," Baker added.

The council is to vote on the resolution during a virtual meeting Tuesday evening, Aug. 4. The county Industrial Development Agency's board is then expected to resume considering a potential PILOT for the project during a meeting on Wednesday, Aug. 12.

The Kingstonian is proposed to be built on two sites at the intersection of Fair Street Extension and North Front Street, with each of the new buildings extending toward the Schwenk Drive side of the properties. Fair Street Extension would be closed to through traffic as part of the plan, which still is under consideration by the city Planning Board.

One of the properties is owned by the city and currently is used as a municipal parking lot.

The Kingstonian project is to consist of 143 apartments, of which 129 would be rented at market rates. In addition to the apartments, the project is to include 8,000 square feet of retail space, a 32-room boutique hotel, a pedestrian plaza, a footbridge crossing Schwenk Drive between the new development and Kingston Plaza, and a 420-space parking garage, of which 130 spots would be reserved for residents of The Kingstonian.

The project's cost is estimated to be $57.9 million. The developers are to receive $3.8 million from the $10 million Downtown Revitalization Initiative grant awarded to Kingston by New York state, as well as other government funding. The Downtown Revitalization Initiative funding is to be used on portions of the project that benefit the public.

Still outstanding is a lawsuit filed by the owners of some other Uptown properties challenging the city Planning Board's ruling that the project would have no significant environmental impact. The project also requires site plan approval from the Planning Board.

During Monday's caucusg, Alderman Jeffrey Ventura Morell, D-Ward 1, said he was glad the developers had listened to community input and agreed to make changes to the PILOT proposal. He said, though, that while he liked the project in theory, he wished his constituents had all the answers to every question they had about it. Ventura Morell said if the project is to be a private-public partnership, it is asking a lot for the public not to have all the details.

Other aldermen argued that the developers have provided more information than others have been asked to give on their projects. They also noted that it is a competitive market and the developers should not have to disclose all the financial details of their project.

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Majority of Kingston aldermen view Kingstonian project tax pact favorably, with conditions - The Daily Freeman

Officers on the street without ID or insignia is dangerous – News-Press Now

An editorial from the Joplin Globe:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fourth Amendment of the U.S. Constitution

Regardless of whether you think the federal law enforcement push into cities nationwide is political theater in an election year or a necessary effort to quell violence and social upheaval, one element of these recent interventions should concern us all.

Some law enforcers have been operating in tactical gear with no insignia and no identification. It happened with federal forces in Washington, D.C., and in Portland, Oregon. In some communities around the country, local police also have taken to covering or removing their name tags, badges and patches.

There has been talk about sending more federal officers to other cities, including some in Missouri, which raises a host of questions.

A primary one for us is the extent to which those officers will either display identifying insignia and badges or present a badge and identify themselves when making arrests, especially if using force.

This anonymity tactic is one Missouri lawmakers should prohibit. It also is one city leaders should prevent, too.

What is ignored is the risk to the public. Putting officers on the street without ID or insignia is dangerous.

When police arent identifying themselves, armed militias we see showing up at protests could usurp police authority. Conversely, civilians could refuse to follow lawful orders or resist unidentified law enforcers as a result of unnecessary confusion stemming from the practice. Most importantly, the power to identify is inherent to accountability, a fundamental issue involved in the wave of protests roiling our nation.

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Officers on the street without ID or insignia is dangerous - News-Press Now

"It’s the decent thing to do" – News – Fowler Tribune

Three patients of Pioneer Health Care Center in Rocky Ford who tested positive for COVID-19 (one test is awaiting confirmatory results) have died, Crowley / Otero Health Departments Director Rick Ritter told the Tribune-Democrat Friday. Ritter said the health department gives its condolences to their families.

"Any time this happens we are certainly sorry that they lost a loved one," Ritter said.

COVID-19 cases in Otero County totaled 36 as of Saturday, according to Colorado Public Health and Environment, although Ritter said in a news release that numbers reflected by the state were not up to date. In the same statement, Ritter confirmed that three coronavirus patients at Pioneer Health Care Center in Rocky Ford had died and at the nursing home two staff and a total of 13 patients tested positive for the novel coronavirus. Ritter noted that results of confirmatory tests for some patients were still awaiting results as of Saturday.

Following Gov. Jared Polis's executive order mandating mask use in indoor public facilities July 16, businesses and services have had to crack down on enforcing mask use. Although many businesses and public buildings have posted signs alerting prospective patrons to their mandated enforcement of mask use, others have posted notices that state they will not enforce mask use.

In some instances, the notices make questionable references to the Health Insurance Portability and Accountability Act, the 4th and 5th Amendments, or other facets of the U.S. Constitution or U.S. law.

Thaxton's Market in Fowler, for example, posted a sign in their window that read, "Due to HIPPA and the 4th Amendment, we cannot legally ask you what your medical condition is."

The sign continued to state that store employees would assume anyone entering without a mask was exempted from the statewide mandate. The Tribune-Democrat called Thaxton's Market last week to inquire about the store policy, but it did not hear back in time for publication.

Arkansas Valley Lumber outside Rocky Ford stirred up controversy when a sign it had posted in its entrance made rounds across local social media groups. The sign declared Arkansas Valley Lumber was no longer a public company and would only accept business from "United States citizens that believe in their constitutional right of freedom from oppression."

A day later, Arkansas Valley Lumber apologized on its official Facebook page and clarified that it would not discriminate against anyone, although it maintained that it would not enforce the use of masks.

Ritter isn't sold on Thaxton's claims or those of others, however.

"There's a lot of information I'm just going to come out and say it disinformation out there," said Ritter.

Ritter noted the statewide mask order makes exemptions for people with health conditions that complicate their breathing, such as asthma or COPD.

But contrary to what some businesses are claiming, a store is not legally prevented from offering patrons masks, nor is a store prohibited from asking someone who claims to have a medical condition that prevents mask use what that condition is, according to attorney to Otero County Nathan Schultz.

"I've seen a lot of people saying they're not going to ask about masks due to HIPPA," said Schultz. "The Fourth Amendment, then one store that says they're not going to ask about masks because of the Fifth Amendment. HIPPA is designed to protect information from covered entities, like doctors and hospitals, from disseminating that information without a release. That has absolutely no bearing on a grocery store. The Fourth Amendment and Fifth Amendment, both, any time you're trying to claim you have constitutional protection, there has to be government action."

Schultz agreed it was possible that some business owners might have conflated HIPPA with the American Disabilities Act, which prohibits discrimination based on disability. But even the American Disabilities Act allows for what Schultz called reasonable inquiry if someone doesn't have an obvious disability.

"I think the stores still have the duty to ask someone to wear a mask," Schultz said. "If they're saying they don't cause of health reasons, you can ask what the health reason is because then the store needs to establish what reasonable accommodations they can make."

Schultz said allowing someone to not wear a mask would probably not be a reasonable accommodation. Instead, though, a store could implement curbside service in such an instance, Schultz suggested.

Schultz said seeing misinformation circulate on social media has been frustrating. Counter to more claims from those opposed to mask use saying the governor's mandate was unlawful or does not have the same effect as law, Gov. Polis's executive order carries the full weight of law, Schultz said.

"Earlier this week, the public health order 20-31 came out, also mandating masks. Public health orders are enforceable by local law enforcement under 25-1-506," said Schultz. "Those can be punished civilly, they can do it administratively where they can pull your business license, or they can do it criminally up to a first degree misdemeanor."

Otero County Sheriff Shawn Mobley said his office will not enforce the mask mandate. Mobley referenced his short staffed department and ongoing criminal investigations. Schultz said he thinks Mobley's decision is okay, but that he was angered by sheriffs from other counties who claimed Polis's law was unconstitutional or did not carry legal weight.

Bent County Sheriffs Office also said in a joint statement with Bent County Public Health that the sheriffs office there would not be enforcing the mask mandate, although they did not provide additional reasoning with their statement.

Otero County will try to utilize civil and administrative means to regulate the mask mandate as opposed to pursuing criminal charges, Schultz said, noting it doesn't do anyone any good to start jailing more people right now.

Another piece of disinformation Schultz wanted to address was that of masks versus the size of COVID-19 particles. Schultz made the distinction that the novel coronavirus that causes COVID-19 is not airborne in the stirctest sense: The viruss primary mode of transmission from host to host is through respiratory particles in other words, spit.

"I'm still seeing a lot of misinformation about the cloth masks themselves," Schultz said. "A lot of people are pointing out micron sizes and all that. This virus has never been airborne, it's transferred through saliva droplets. So the cloth mask does nothing to protect the wearer, it's designed to protect the community from the wearer. So if everyone's wearing a mask, the saliva's less likely to spread to others.

In other words, posts on social media claiming that cloth masks dont stop COVID-19 from passing through them are missing the point, because COVID-19 travels primarily in much larger respiratory droplets that are stopped by a cloth face covering.

Health Director Rick Ritter stressed that many businesses have been compliant with the mask order and that the health department receives numerous calls daily from people looking to improve the safety of their establishments.

Ritter said hes seen people be dismissive of social distancing guidelines and mask use because they dont believe others are taking it seriously.

"To the people saying, 'Well nobody's doing it," that's absolutely wrong," said Ritter. "And that is disrespecting the businesses that are working hard to do what's right, to protect customers, employees, and this is not a hard thing to do, my gosh, we put on pants to cover our lower torso, we put on shirts, and that's not a violation of our constitutional rights.

"If I went out naked on the street, and you can print this, the police would be called. If I said, You can't make me put on pants, that's against my constitutional right to be naked, that wouldn't cut any ice. We're just covering our face and if somebody says, Well you put on pants for decency's sake, I say you put on a mask for decency's sake because you're protecting others.

"A mask is primarily worn to protect others, and that's what I'm saying. These cloth masks, if we all wear them like we're supposed to, it's a kindness to others, it's a consideration for others, and we're going to reduce risk."

Schultz added the health department is working around the clock to try to achieve the best outcome for the community.

Tribune-Democrat reporter Christian Burney can be reached by email at cburney@ljtdmail.com. Help support local journalism by subscribing to the La Junta Tribune-Democrat at lajuntatribunedemocrat.com/subscribenow.

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"It's the decent thing to do" - News - Fowler Tribune

What would the Founding Fathers do? – Smoky Mountain News

To the Editor:

He has erected a multitude of new officers and sent hither swarms of officers to harass our people

He has affected to render the military independent of and superior to the civil power.

These words were among the charges against tyrant King George III in declaring independence from England in 1776. History repeats itself. These charges have come alive today in the tyrannical actions of our would be king, Donald Trump.

To quote further from our Declaration of Independence: Governments are instituted among Men deriving their just power from the consent of the governed.

No governor of any state or mayor of any city, has given consent to Trumps sending his storm troopers to invade their cities. These storm troopers have unlawfully beaten, gassed and detain demonstrators in Portland, Oregon, violating their constitutional rights.

To quote from the First Amendment to our Constitution: Congress shall make no laws .... abridging the right of people peaceably to assemble and to petition the Government for a redress of grievances.

The Fourth Amendment states: The right of people to be secure in their persons against unreasonable searches and seizures, shall not be violated.

Donald Trumps use of storm troopers is in flagrant violation of our First and Fourth amendments. Please note Trump is only targeting states and cities with Democratic governors and mayors. His unidentified military force is creating urban warfare designed to convince Americans that Democrats are out-of-control rioters and anarchists. Trump is posturing as a law-and-order president. His use of this tactic is designed to sway voters to reelect him and his Republican supporters in November.

Do we still believe in the values expressed in the Declaration of Independence and our Constitution? Our Founders fought and died in the Revolution to secure this government for future generations of Americans. At the conclusion of the Constitutional Convention, Benjamin Franklin was asked What kind of government do we have? Franklin replied, A republic, if we can keep it. This question has yet to be determined.

What would our Founding Fathers do?

Margaret Abel

Franklin

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What would the Founding Fathers do? - Smoky Mountain News

How the president became the deporter in chief. – Slate

President Donald Trump at the border wall with Mexico in San Luis, Arizona, on June 23.Saul Loeb/AFP via Getty Images

The federal police forces that descended on Portland, Oregon, make it all too clear that the tactics at U.S. borders are being imported to the heartland. As the power and purview of the Department of Homeland Security expands, so do the battles over federal jurisdiction and immigration law. In their new book, The President and Immigration Law, law professors Adam Cox and Cristina Rodrguez engage in a fundamental reexamination of executive power over immigration law. They start at the nations founding and end at the current impasse over DACA, asylum policies, and Donald Trumps wall on the Mexico border. The book, published by Oxford University Press, will be available on Kindle this week and in print on Sept. 1. In an interview conducted over email, we discussed how enforcement has become the central priority of the U.S. immigration system, with an empowered president sitting atop the massive immigration apparatus, sidelining a largely inactive Congress. In their view, this apparatus has opened the door to a regime in which law enforcement powers increasingly encroach on community life. Their answers have been edited and condensed for clarity.

Dahlia Lithwick: So the book starts with the provocative point that can be summed up essentially as, Sorry, the executive branch really does have almost unlimited authority over immigration. Can you start from the beginning and tell us how the public, on the left in the Trump era and on the right under Barack Obama, got this issue so wrong in your view?

Rodrguez: The dramatic immigration policies of the Obama and Trump administrations have led people across the ideological spectrum to lament that we have an executive run amok, circumventing a Congress unable to act. But the turn to administrative action is not just the result of our current partisan polarization, nor is it necessarily constitutionally abusive. Today, the presidents power stems from the simple fact that he sits atop a massive deportation machinery, under construction since the early 20th century and increasingly militarized and flush with resources since 9/11. Couple this machinery with the fact that the law makes anyone who lacks immigration status deportableapproximately 11 million peopleand we see that the president is in charge of a massive shadow immigration system, with the authority and responsibility to determine who within it may stay and who shall be removed.

But even though the presidents power is broad, it is not unconstrained. The president and the immigration agencies still operate within the confines of federal statutes, as well as the Constitution. The Department of Homeland Security could not invent new grounds for deportation that Congress has not listed in the immigration code, for example. And even though some recent decisions of the Roberts court significantly weaken constitutional restraints on both Congress and the executive, principles of due process continue to cabin enforcement discretion.

In surveying the state of presidential immigration law, we point to numerous examples of executive actions that push against statutory limits: the Trump administrations all-out assault on asylum law or its questionable interpretation of statutes authorizing redirection of military construction funds to the border wall comes immediately to mind. But its also important to understand that the legal edifice Congress has created actually authorizes much of Trumps maximalist enforcement. In fact, the Trump administration is shining a light on wide-ranging and easy to exploit statutory delegations in immigration and beyond. It turns out that much of Trumps abusive behavior is actually a joint project between the political branches. This is the case for the administrations early ban on immigrants from several majority-Muslim countries, its expansion of summary deportation procedures, and even its drastic COVID-19 immigration restrictions.

And what role do the states play, say in the debate over sanctuary cities or, now, the presidents efforts to strip representation from areas with large immigrant populations?

Cox: State and local governments have tried to control immigrants and immigrant movement since the early days of the country. And they have never stopped importuning the federal governmentsometimes to pass restrictive immigration laws or to enforce more aggressively, other times to facilitate immigration or to keep federal agents out of their jurisdictions. Before California became a sanctuary jurisdiction, it tried to exclude Chinese immigrants from its territory in the late 19th century and keep undocumented children out of its schools in the late 20th.

In the book, we tell the story of how the federal government has tried to consolidate its control over immigration policy by sidelining state and local governments. The Supreme Court has greatly assisted this ambition by repeatedly declaring that the Constitution assigns immigration enforcement exclusively to the federal government. And yet, state and local officials remain a thorn in the federal governments side for at least two reasons.

The first is clearly political. Immigration has always been center stage in American politics, and local officials seek political advantage by opposing federal immigration policies, often when the opposite party occupies the presidency. Republican governors have challenged the Obama administrations efforts to resettle refugees from Syria and passed their own enforcement laws. Democratic governors have nurtured the sanctuary movement by refusing to assist the federal government in immigration enforcement.

The second reason for local influence is more mundane and bureaucratic but no less consequential. The federal government depends deeply on state and local law enforcement agencies to help enforce federal immigration law. State and local agencies are far more likely than DHS to come into contact with deportable noncitizens, and state and local criminal justice systems are therefore enmeshed with the immigration enforcement bureaucracy. This integration gives local agents considerable power: They can feed the federal enforcement regime, or they can stymie it by refusing to cooperate.

The meat of your critique is of the enforcement model that is now predominating immigration policy. Can you describe what that means and how it works?

Rodrguez: President Obama, who initiated DACA and supported major immigration reform that included legalization of the unauthorized population as a whole, was also labeled deporter in chief because of the hundreds of thousands of immigrants removed during his time in office. This juxtaposition is not a sign of hypocrisy. Instead, it underscores the sheer scale of the enforcement zone in immigration law. As part of the same set of responsibilities, the president can extend major relief as a matter of grace while still presiding over the continual churning of the deportation machine.

An enforcement mindset ultimately colors all presidents approaches to immigration policy; the use and calibration of force are central to the system. The Obama administrations response to the Central American refugee crisis at the Southern border perfectly reflects this. Senior officials ordered the detention of border crossers, including families with small children, in a conscious effort to deter future migrants with the threat of incarceration and to persuade some of those who had already arrived to abandon their asylum claims. The Trump administration took this enforcement approach to cruel and torturous new heights through its family separation policy. Across both administrations, the clash of the militarized border with migrants seeking protection has produced a humanitarian catastrophe with roots not just in the politics of the moment but also in the way enforcement has come to dominate immigration law and its administration.

So what do you say when CBP or ICE gets involved in what looks to be domestic policing, which we have seen at minimum in Portland? Is this a constitutional problem? A DHS problem? Or is it simply inevitable that what is lawful at the border eventually migrates into domestic policing?

Cox: What has happened in Portland appears to be an example of an administration enamored of law enforcement tools exploiting the powers Congress has clearly delegated to it. Under a federal statute, the Department of Homeland Security is expressly authorized to mobilize its officials, including those ordinarily assigned immigration functions, to assist in the protection of federal property. On the face of the law, this might seem like an unobjectionable power. But the statutory provision and the enormous law enforcement capacity it triggers underscore that DHS, by design, is not just about protecting the homeland from the outside but also about policing the interior. In other words, recent events are not about the border creeping into the interior but about how domestic law enforcement statutes can be distended.

We can do much better than our currentsystem. Cristina Rodrguez

The culture of DHS has also played a huge role in what has gone on. In our book, we write at length about the distilled enforcement mindset within the immigration enforcement bureaucracy, which since 9/11 has become increasingly militarized in its tools and ideology. Political officials at times have sought to curb that enforcement culture. But in the hands of current leadership, enforcement officials mission has expanded, and the statutes that authorize immigration police to take on other law enforcement functions have brought enforcement culture to political protests.

To be very clear, the fact that the administration can point to statutory authorization for the deployment of immigration officials to police the interior for nonimmigration reasons does not mean that the law enforcement actions in Portland have all been legal. Federal officials may well have exceeded their statutory authority by reaching beyond the protection of federal property. There is also reason to be concerned that they have violated protesters Fourth Amendment rights against unlawful search and seizure and possibly even First Amendment rights to peacefully assemble, as a recent lawsuit by Protect Democracy powerfully alleges.

One good thing about your framing is that the intractable immigration problems start to look like they could have solutionspolitical and nonlegal solutionsthat could garner bipartisan support. Can you sketch out the fixes you envision?

Rodrguez: Political consensus in this domain has always been elusive, but we can do much better than our current system. The first step should be to shrink the enormous shadow immigration system that makes the logic of enforcement so central to immigration policymaking. We must adopt a legalization program, which would recognize in law what has for generations been understood informallythat many unauthorized noncitizens should not be deported. But real reform will also require new tools to prevent a similar unauthorized population from arising in the future. Advocates and reformers have long called for statutes of limitations on immigration offenses and for giving the executive the power to engage in rolling legalizations for settled immigrants. Congress must take these options seriously.

The second step would be to reimagine the executives expressly delegated powersbut not just to limit them. On the one hand, there are statutory fixes that we would support to make presidential power more accountable: We would cabin authority under INA Section 212(f), the suspension power on which President Trump relied for his travel ban and COVID-19 orders, by requiring that the president provide a strong factual basis for his assertion of the power to exclude in the interest of public safety. But we should also consider expanding the presidents formal role in admitting immigrants: If he is to be entrusted with the authority to exclude large groups of noncitizens pursuant to the suspension power, he should also be given clear authority to admit noncitizens to a legally secure (if temporary) status during times of crisis. Similarly, Congress should consider delegating to the executive branch a role in setting annual immigrant admissions numbersa function until now performed only by Congress, leaving quotas calcified in statute without regard to changing circumstances around the world.

Reforms to these delegated authorities should also include changes to the powers of ICE and CBP, the immigration police. Some ideas include restricting by statute the policing techniques these agencies use in the border region (where the Supreme Court has historically imposed fewer Fourth Amendment constraints), shrinking the definition of the border region, and narrowing or even ending most immigration detention.

These are grand legislative ambitions. But even if Congress remains paralyzed, there is room for important reform. We also explore how best to manage the enforcement regime as it currently stands through creative use of checks internal to the executive branch. It would be a mistake to respond to the Trump administration by using constitutional doctrine to restrain the presidents ability to control enforcement policy. So long as the shadow system continues to exist, doing so would have disastrous consequences. Immigration policy would be rudderless, controlled by low-level agents rather than high-level officials whose actions are more accountable and transparent. With a president like Trump, we may wind up with enforcement priorities we abhor. But leaving these fundamentally political choices in the hands of a semi-militarized law enforcement culture would be worse.

We can only realize these many goals, of course, if we see the presidency as a constructive institutionone that is salvageable and worth saving. Our book is in a sense a call to rejuvenate the presidency, too. Understanding the history of presidential control over immigration law offers us a sometimes depressing, often hopeful, window into the possibilities for renewal.

Readers like you make our work possible. Help us continue to provide the reporting, commentary, and criticism you wont find anywhere else.

Continued here:

How the president became the deporter in chief. - Slate

Want To Reform The Police? Get Rid Of Qualified Immunity – WBUR

Consider these cases: After a woman gave police permission to enter her home, they broke through her windows and injected enough tear gas to make the home unlivable for months. Prison guards forced a man to live in a cell without a bed and covered in human feces and raw sewage. After searching a womans home for drugs and not finding any, police officers dragged her to a local hospital where, without her consent, a doctor searched her vagina and also didnt find any drugs.

Each of these people sued government officials for violating their rights. Each of their cases was dismissed not because the governmentemployeeswere innocent but because a court found them to be immune fromthe lawsuits.

If government officials violate your rights, you can sue them in court. But an obscure legal doctrine called "qualified immunity" often shields those officials from liability, even when egregious violations have occurred.The Massachusetts Legislature is considering urgent and necessary reforms to qualified immunity.

Under the doctrine of qualified immunity, government officials can only be held liable for violating rights that are clearly established. You might expect that constitutional rights like your First Amendment right to free speech or your Fourth Amendment right against unreasonable search and seizure would be clearly established, but thats not how it works. Instead, rights become clearly established only when a previously decided case involved nearly identical facts.

Heres how that plays out. Lets say a police officer orders you to put your hands up. You do so, surrendering to his authority. But the officer orders his police dog to bite you anyway. You sue. Unless, at some point in the past, a police officer also ordered a police dog to bite someone whose hands were up, and that person sued, and a court found a civil rights violation youre out of luck, case dismissed.

This sounds bad, but it gets worse. After your case is dismissed, if a police officer orders a police dog to bite another person whose hands are up, and that person sues, their lawsuit will also be dismissed. Why? Because the right is still not clearly established. After all, the judge dismissed your case without ever reaching the question of whether the police violated your rights. Because of qualified immunity, constitutional rights do not get clearly established, and the law freezes in place.

Qualified immunity lets the police off the hook for misconduct and denies their victims compensation.

One judge has aptly described the qualified immunity doctrine as, Heads defendants win, tails plaintiffs lose.

Qualified immunity lets the police off the hook for misconduct and denies their victims compensation. Police unionsclaimthat qualified immunity exists to protect police officers who play by the rules. But it does the exact opposite. Qualified immunity only protects officials who have broken the law. Police officers who obey the law dont need qualified immunity they already are immune. If a police officer doesnt violate a persons rights, that person doesnt have a legal claim against the officer. Ending or reforming qualified immunity wont cause police officers who break the law to lose their homes and savings. Like most of the country, Massachusetts indemnifies police officers: The city or state covers the cost of these lawsuits.

In recent weeks, the House and the Senate each passed police reform bills. They must now negotiate a revised bill to put on Gov. Charlie Bakers desk. The House bill would keep qualified immunity mostly intact, shielding officers unless they are decertified by a new licensing commission.The Senate bill is not as bold as, say, Colorados recent law ending qualified immunity outright, but the reforms it includes should give victims of government violence much more of a fighting chance. Under the Senate bill, qualified immunity would shield a government official from liability only when no reasonable official could have thought this conduct was legal.

Currently, qualified immunity is like a bingo card. Your case can proceed only if your rights violation matches up with a previous court cases finding of a rights violation. The Senate bill changes this dynamic by tossing out the bingo card and relying more on judges judgment. Qualified immunity will still exist. But police officers will only be immune from a lawsuit if a judge determines that reasonable people would have thought that the officers actions were legal.

Whether the reform has real teeth will depend on how judges apply the law, if passed. In Marbury v. Madison, the foundational case of American constitutional law familiar to every judge in our Commonwealth, Chief Justice John Marshall wrote that the United States could not be considered a government of laws, and not of men if the laws furnish no remedy for the violation of a vested legal right. Lets hope our judges agree.

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Want To Reform The Police? Get Rid Of Qualified Immunity - WBUR

Who is Zane James, why were his brother and father detained by police in Cottonwood Heights protest? – MEAWW

In a protest rally that took place in memory of Zane James, who was shot dead in a tragic incident of police brutality in 2018, the Cottonwood Height Police in Utah detained his father and brother. The rally that began at Mill Hollow Park on Sunday, August 2, was met with clashes with the police when the protesters marched into a residential neighborhood near 6710 South and 2680 East.

Zanes bereaved father said that the group aimed to walk past the same spot where his son was killed but after the protest escalated, the police took him into custody. The police reportedly said that protesters will be allowed to demonstrate if they do not block the streets, adding that they needed to clear the crowd from the park if it was found there past the curfew time, which is 10 pm. The protesters cleared out around 7:30 pm.

Some protesters took to twitter to highlight incidents of police brutality in Cottonwood Heights tweeting, I was pepper sprayed in the mouth and upper body while trying to help people who had already been maced. A lot of people got it a LOT worse. They shot people directly in the eyes and I think gave someone an asthma attack.

I was pepper sprayed in the mouth and upper body while trying to help people who had already been maced. A lot of people got it a LOT worse. They shot people directly in the eyes and I think gave someone an asthma attack

UPDATE!! DONATE! please if you can PLEASE!! they arrested the brother and father of ZANE JAMES, a victim who was murdered by Cottonwood Heights PD. They pepper sprayed a congresswoman. do you believe me when i say ACAB now?? tweeted another user.

UPDATE!! DONATE! please if you can PLEASE!! they arrested the brother and father of ZANE JAMES, a victim who was murdered by Cottonwood Heights PD. They pepper sprayed a congresswoman.

do you believe me when i say ACAB now?? pic.twitter.com/EPw5B40tFg

The Cottonwood Heights Police told Fox 13 that they took nine people into custody and impounded three vehicles. As per the report, specific charges were not given, but police said there were several fights between protesters and officers, in which a number of officers were hit, leading to police use of pepper spray and tasers.

The protest was a 'March for Justice' for Zane, who was shot and killed by a CHPD officer in 2018. In that case, the police claimed that Zane had been fleeing on a bike in Cottonwood Heights after allegedly robbing two stores with an airsoft or toy gun loaded with BBs. Zanes parents Aaron and Tiffany James said in 2019 that they were filing a civil rights complaint, in view of a policy change and aiming for better training procedures and transparency within the Cottonwood Heights Police Department.

The fact of the matter is we trust our law enforcement to do whats right to follow training, to follow procedures and protocols. On CHPDs website, they talked about how Officer Davies is a trainer for all these practices (lethal, non-lethal, SWAT), but were not seeing any of that training, said Tiffany James, reports ABC 4.

Complaint documents stated that Cottonwood Heights Officer Casey Davies pulled up as Zane was fleeing, opened his car door, and shot Zane in the back, seriously injuring him. Davies fired four shots, two of which struck Zane. At the time of the shooting by Defendant Casey Davies, he was running away and was non-threatening (it later said he had no weapon in his hand). One bullet apparently severed Zanes spinal cord at C-6. This injury led to his death three days later. The shooting violated Zanes rights under the Fourth Amendment to the United States Constitution and Article I, 14 of the Utah Constitution, as stated in the complaint.

Salt Lake County District Attorney Sim Gill had previously stated police officer Daviess refusal to make a statement into the matter saying, Officer Davies refused to make a statement to investigators about his decision to shoot Zane, although constitutional under the 5th amendment, made the investigation more difficult. The shooting was eventually ruled justified.

According to the civil rights complaint, Zane was an accomplished high-level competitive hockey player and academic. He suffered from two very serious concussions which resulted in the end of his hockey career. Thereafter, he became severely and clinically depressed and was addicted to opiates as he struggled to cope with the physical and emotional symptoms of his condition. He was actively seeking treatment for his depression at the time of the shooting.

This caused him to experience fear and terror in the last three days of his young life, the complaint stated. In the legal documents, it is mentioned that Zane declined any life-saving methods to be used to preserve his life after realizing that if he survived he would be paralyzed. He died on May 31, two days after the shooting.

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Who is Zane James, why were his brother and father detained by police in Cottonwood Heights protest? - MEAWW