Unpacking DHS’s Troubling Explanation of the Portland Van Video – Lawfare

Over the past few days, millions of people have seen a now-viral video in which two federal agents dressed in full combat gear removed an apparently peaceful protester from the streets of Portland, Oregon, and carried him away in an unmarked van. Stories have emerged of other people being taken or pursued by federal agents in a similar fashion. Meanwhile, troubling videos show federal agents in Portland beating a peacefully resolute U.S. Navy veteran and, on a separate occasion, shooting a man in the face with a nonlethal munition, which broke his skull.

As criticism of these events rolled inincluding from virtually every relevant state and local official in Oregonthe Department of Homeland Security scheduled a press conference earlier this week to try to reclaim the narrative. If the point of that press conference was to reassure an anxious nation that this unfamiliar and recently constituted federal police force is following the law, it likely achieved the opposite effect.

In particular, there is a two-minute segment of the press conference that is both revealing and highly disturbing. It shows that one of the top commanders of this new paramilitary federal police forceKris Cline, deputy director of the Federal Protective Serviceapparently does not know what the word arrest means. To say as much might seem like harping on semantics or, worse, like picking on Cline for speaking inartfully. But it is absolutely critical to unpack and examine Clines wordsbecause the word arrest is one of the most important words in the constitutional law of policing.

Simply put, for an arrest to be constitutional, it must be supported by probable cause. This means that the arresting officer must be able to point to specific facts that would cause a reasonable officer to believe that the person being arrested has committed a specific crime. If, by contrast, the police have not arrested someone but have instead conducted only a brief investigatory stop, they need substantially less proof that the target of their attention is engaged in criminal activity. And if the police initiate instead what is often termed a consensual contactas would occur if, say, a uniformed officer walked up to you and said, Hey, I want to ask you some questionswell, in that case the Fourth Amendment simply does not apply, which means the officer does not need to have any reason to approach you.

Arrests, stops and contacts carve up the universe of police-civilian interactions in the United States. So, when I say that Deputy Director Cline does not appear to know what the word arrest means, what I am really saying is that he does not know where the basic and essential legal lines are that mark the bounds of his agencys lawful authority. That is a problem.

This post expands on a Twitter thread I wrote earlier this week. It is a deep dive into the critical two minutes of the Department of Homeland Security press conference, during which Cline made a series of comments that lead to only one of two possible conclusions: Cline does not know what the word arrest means. Or, if he does, he thinks no one will call him out for saying something that is patently untrue. Either way, he is wrong.

What Exactly Is the Standard of Probable Cause That You Are Getting?

Lets start at the beginning, when a reporter asked Acting Secretary of Homeland Security Chad Wolf what is arguably the most critical question concerning the federal police presence in Portland: What exactly is the standard of probable cause that you are getting when your officers seize civilians?

For an answer, Wolf turned things over to Richard Kris Cline, the deputy director of the Federal Protective Service. Until recently, the Federal Protective Service was a relatively small and unknown federal law enforcement agency tasked with protecting federal buildings, like the federal courthouse in downtown Portland. That courthouse is adjacent to the Multnomah County Justice Center, a building that has been the focal point of racial- and criminal-justice-related protests in Portland stretching back nearly two months. In the course of those protests, both the Justice Center and the adjacent federal courthouse have been vandalized.

The Federal Protective Service is in charge of ensuring the security of that federal courthouse. And over the past few weeks, it has become a less obscure and considerably less small agency as Acting Secretary Wolf has supplemented its ranks with special-operation tactical units from Customs and Border Protection, Immigration and Customs Enforcement, and other federal law enforcement entities. These federal tactical units typically conduct immigration raids or patrol the border. But in their new mission in Portland, they are deputized Federal Protective Service agents. And as a result, they report to Cline.

Youre Probably Talking About the Van

When Cline stepped up to the microphone, he started to address the reporters question about probable cause by saying, [Y]oure probably talking about the van. This is a reference to the now-viral video, viewed nearly 13 million times, in which two camo-clad federal agents remove a peaceful protester from the street by placing him in an unmarked van. If you have not seen the video, it is worth watching now. (Its 39 seconds long.)

Cline proceeded to offer the governments account of the facts leading up to and following this encounter. With respect to what happened before the video begins, Cline explains that earlier in the night the agents in the video had seen the man in the video in a crowd and in an area from which someone was aiming a laser at the eyes of officers. The agents, Cline said, followed the man because they wanted to ask him some questions.

Crucially, it is clear from Clines statements that the agents never had any reason to believe that the man was the person pointing the laser. Cline says the individual that they were questioning was in a crowd and in an area where an individual was aiming a laser at the eyes of officers (emphasis added). Cline later adds that the agents wanted to question this individual to find out what their [sic] role was in this laser pointing.

The video speaks for itself regarding the manner in which the agents grabbed the man and put him in the van. Cline, however, gave important additional context for why the officers behaved the way they did. As they approached the man, Cline explained, they noticed that coming in their direction were violent demonstrators. Fearing for their own safety, the agents decided to leave the sceneand to take the man with them.

Note again that Cline did not suggest the man in the video ever did anything himself to alarm the agents or to give them grounds to believe he was engaged in criminal activity. The agents wanted to get off the street to get away from the crowdand they wanted the man to come with them. So, they grabbed him; put him in a van; and took him, in Clines words, to an area that was safe for both the officers and the individual to do the questioning.

Cline never explicitly says where the agents took the man. But we know that in a separate incident federal agents who wanted to question a man named Mark Pettibone similarly grabbed him off the street, put him in an unmarked van, and took him into the nearby federal courthouse itself for interrogation. It seems safe to conclude that when the agents in the video relocated the man they grabbed to an area that was safe for them to do the questioning, they took him into the courthouse as well. That conclusion is bolstered by Clines statement that the amount of time that transpired while [the agents] did the questioning was roughly twenty minutes, as the agents surely would not have questioned the man for that long out on the street, given their apparent fear of the surrounding crowds.

They Didnt Have What They Need

Those are the basic facts of the incident, according to Cline, speaking on behalf of Homeland Security. They raise a number of questions. Perhaps most notably: Was this constitutional?

The basic legal framework here is not particularly complex. As noted at the outset, arresting someone without probable cause is unconstitutional. One important question to consider when assessing the legality of the viral van encounter is thus whether the agents had probable cause.

As Ive described at length in an article recently published in the Yale Law Journal, probable cause can sometimes be an elusive concept. But in some cases, like this one, its application is straightforward: The police do not have probable cause to arrest you just because you are standing in the vicinity of someone who may have committed a crime. As the Supreme Court explained in Ybarra v. Illinois, a persons mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause. Rather, a seizure of a person must be supported by probable cause particularized with respect to that person. There is no such thing as probable cause by mere association.

Cline seems to understand this. He acknowledges that the agents did not have probable cause for an arrest. As he explains, when the officers ultimately released the man from custody they did soafter consulting with government lawyersbecause they concluded they did not have what they needed to detain him. In other words, they did not have probable cause. Not when they spoke to the lawyers. Not when they put the man in the van. Not ever.

It Was Not a Custodial Arrest

And yet, Cline insists that the agents conduct was lawful. His explanation for why he thinks that to be true is the crux of the matterand the most disturbing part of his statement.

According to Cline, the agents conduct was lawful because what they did was a simple engagement. It was not, Cline says, a custodial arrest. The argument, in other words, is that these agents complied with the Fourth Amendment because they did not need probable cause to put the man in the van in the first place.

This assertion is glaringly wrong. It has been glaringly wrong for at least forty years, ever since the Supreme Courts opinion in Dunaway v. New York. The question there was whether the ... police violated the Fourth and Fourteenth Amendments when, without probable cause to arrest, they took petitioner into custody, transported him to the police station, and detained him there for questioning. The answer, the Court said, was unequivocally yes: Such a detention is indistinguishable from a traditional arrest.

As the court went on to explain, The mere facts that petitioner was not told he was under arrest, was not booked, and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, obviously do not make [the] seizure even roughly analogous to a mere investigatory stop, let alone a consensual contact. Rather, Dunaway holds that, at a minimum, a person who is taken from where he was found, placed in a police car, transported to a police station and placed in an interrogation room has been arrested.

It is worth noting that Dunaway does not stand alone in the courts Fourth Amendment canon. On the contrary, it builds on an earlier case, Davis v. Mississippi, and has been reaffirmed in later ones, including Hayes v. Florida. In the former case, the police, without warrants, took at least 24 Negro youths to police headquarters where they were questioned briefly, fingerprinted, and then released without charge. The government conceded this was done without probable cause. And while the detentions were all brief, the court nonetheless concluded that they were unconstitutional arrests.

As for Hayes, the Court in that opinion reaffirmed Davis and Dunaway, describing the core holdings of those cases as follows:

None of our later cases have undercut the holding in Davis that transportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment. Indeed, some 10 years later, in Dunaway v. New York, we refused to extend Terry v. Ohio, to authorize investigative interrogations at police stations on less than probable cause.

Any one of these cases, standing alone, resolves the question at hand. Taken together, the conclusion is inescapable: When the agents put the man in the van, took him off the street, and brought him inside for questioning, they arrested him. Cline says they did so without probable cause. That means they violated the Constitution.

Unfortunately It Got Kinda Spun Out of Control With the Rhetoric About What Happened

There is an odd, disorienting quality to Clines two-minute statement. I have no reason to question Clines integrity or motives. But on its face, his statement feels like a kind of criminal procedure version of gaslighting. With an earnest, just the facts style, Cline is clearly trying to convince the public that what happened in Portland is not a big deal.

The agents were peaceful, he said. There was no tackle to the ground. This was just a simple engagement. It is unfortunate, Cline tells us, that this all got kinda spun out of control with the rhetoric about what happened, as if the people questioning the legality of the arrest are the ones blowing this all out of proportion. After all, Cline reminds us, it was not a custodial arrest.

Except it was.

And So Thats How That Came About

Shortly after I wrote my Twitter thread, a producer at NPR asked me to read it aloud for a radio diary. Professor Timothy Snyder of Yale University was interviewed in the same segment. After listening to my reading of the thread, he offered a striking diagnosis of Clines statement:

Its very troubling. To say that the man was not arrested is simply lying. This is what authoritarian propaganda sounds like. A man has been arrested and you find some other way to describe it, for example, as a simple engagement, which is false but it sounds like a technical term. So you stop and think about it. Thats how authoritarian propaganda works.

I do not know if Cline is trying to gaslight America. But I do know that, if he is not, there is only one other possible conclusion: He does not know what an arrest is. And that, too, is extremely problematic. If the person in command of a newly beefed-up federal paramilitary police force does not know whether his agents are arresting people, he cannot possibly know whether they are doing so constitutionallyon the streets of Portland, or wherever President Trump deploys these federal agents next.

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Unpacking DHS's Troubling Explanation of the Portland Van Video - Lawfare

Capitol Hill grilling of tech CEOs highlights expansion of ‘geofence warrants’ – WRAL.com

By Tyler Dukes, WRAL investigative reporter

Raleigh, N.C. A North Dakota congressman Wednesday challenged a controversial investigative tactic used by law enforcement nationally including in North Carolina to demand location data from Google users who appear near the scene of a crime.

With so-called "geofence" or "reverse search" warrants, investigators can force Google to turn over detailed location history for any device that entered into a geographic area during a specific time. WRAL News first reported the Raleigh Police Department's use of the warrants in March 2018 in several high-profile cases, including murder and suspected arson. The practice has continued locally since then, and subsequent reporting by The New York Times and other news organizations have identified the spread the technique across the country.

The Raleigh Police Department says it balances constitutional privacy protections by requesting anonymized data in the early stages of the warrant request process, which detectives use only sparingly.

But privacy advocates have expressed serious concerns over the warrants, which are now facing challenges in criminal courts nationwide.

"The Fourth Amendment requires probable cause and specificity and that's not what these are," Rep. Kelly Armstrong, R-North Dakota, told a U.S. House Judiciary subcommittee Wednesday. "These warrants are essentially for any person in an area at a particular time."

Armstrong's comments came near the second hour of the subcommittee's grilling of the powerful tech CEOs from Facebook, Amazon, Google and Apple as U.S. lawmakers wrap up a yearlong antitrust investigation into the digital giants.

Unless they include specific information identifying a subject, he said, "geowarrants are essentially general warrants."

"I think people would be terrified to know that law enforcement could grab general warrants and get everybody's information anywhere," Armstrong said. "So it requires Congress to act. It requires everybody that is a witness in this hearing to be willing to work too, because it is the single most important issue I think we are going to face."

In a question directed at Google CEO Sundar Pichai, Armstrong asked if he agreed that location information falls under the protections of the federal Stored Communications Act (such a designation would not exempt location data from search warrants).

Pichai didn't answer directly, but noted it was an issue "we deeply care about."

"This is why we issue transparency reports, because we think it's an important area for Congress to have oversight," Pichai said.

Pichai noted that the company now automatically deletes certain location activity after 18 months by default for new users, a change announced just last month.

CORRECTION: A previously version of this story inaccurately reported that Rep. Kelly Armstrong's comments came in the fourth hour of the hearing. They came near the second hour.

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Capitol Hill grilling of tech CEOs highlights expansion of 'geofence warrants' - WRAL.com

R Sikoryaks latest project is a word-for-word adaptation of the U.S. Constitution – Boing Boing

Cartoonist R. Sikoryak's talent for mimicking other cartoonists, from Krazy Kat's George Herriman to Nancy's Ernie Bushmiiler, is uncanny. He has a new book out, called Constitution Illustrated, published by Drawn & Quarterly and I have been marveling at the illustrations. The publisher kindly gave me permission to run some samples so you can see the versatility of Sikoryak's work.

A gifted pastiche and parody artist as well as a New Yorker cartoonist, R. Sikoryaks perhaps best known for his widely lauded graphic novel adaptation of the iTunes Terms and Conditions agreement, where each page referenced a different classic comic. It is a triumph of cartooning, one that demonstrated the power of the comics medium to make the unreadable into a text the average reader could engage with. While the Constitution is hardly so dense, Sikoryak transforms it by interpreting it within 100 years of American pop culture icons, all dressed in period attire, naturally!

The 13th Amendment is brought to life by Billy Grahams classic 1973 comic book cover for Luke Cage, Hero for Hire, drawn by one of the few Black cartoonists in the Marvel bullpen. The Boondocks explain the Fourth Amendment preventing seizure. Earlier on, Cathy reminds us that money drawn from the treasury must be appropriately accounted for publically. And its pretty satisfying to see the cast of Alison Bechdel's Dykes to Watch Out For assemble in Section 4, as the Constitution lays out what meetings of Congress look like.

Most of us have a love-hate relationship with banks. Okay, its actually probably more like a tolerate-hate relationship. We understand their role in holding and securing our money so we dont have to stuff it in a mattress somewhere. But we dont trust the bank not to gouge us on fees whenever they can. And []

WATCH THE SPLASHDOWN EVENT LIVE HERE, the SpaceX video embed in this post will go live with pre-event content sometime before 7pm EDT on Saturday August 1.

Grace, the Black teen girl in Michigan who was detained because the school said she was not doing her online coursework, is to be released from detention IMMEDIATELY.

Most of us have a love-hate relationship with banks. Okay, its actually probably more like a tolerate-hate relationship. We understand their role in holding and securing our money so we dont have to stuff it in a mattress somewhere. But we dont trust the bank not to gouge us on fees whenever they can. And []

If youve ever worked on a video project or engineered a podcast and thought youd make your own sound effects howd that go for ya? We assume it was a bigger undertaking than youd probably bargained for. From using stalks of celery to replicate breaking tree limbs to frying bacon to reproduce the sound of []

Always looking to put a new spin on a cup of joe, infusing your coffee with a blast of nitrogen produces a thicker, more full-bodied, naturally creamy, frothy variation on java that has been picking up steam with fans for the past decade. Of course, most of us dont have nitrogen injectors just lying around, []

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R Sikoryaks latest project is a word-for-word adaptation of the U.S. Constitution - Boing Boing

FBI bulletin exposes another crack in ELD mandate – Land Line – Land Line Media

The FBIs Cyber Division released last week an unsettling bulletin that called out the vulnerabilities in electronic logging devices and exposed the lack of cybersecurity or quality assurance requirements for ELD suppliers.

Cyber criminals could exploit vulnerabilities in electronic logging devices. Although the mandate seeks to provide safety and efficiency benefits, it does not contain cybersecurity requirements for manufacturers or suppliers of ELDs, and there is no requirement for third-party validation or testing prior to the ELD self-certification process, the FBI bulletin stated.

This poses a risk to businesses because ELDs created a bridge between previously unconnected systems critical to trucking operations.

These vulnerabilities could create a variety of problems, the FBI said. Cyber criminals could use an insecure ELD to move laterally into a larger company business network, to steal such personal information as business and financial records, or to install malware that could prevent the vehicle from operating until a ransom is paid.

The bulletin paints a frightening picture that makes you wonder why these concerns werent mentioned before the Federal Motor Carrier Safety Administration began enforcing an ELD mandate on commercial motor vehicles in December 2017.

Oh wait, they were.

In its fight against the ELD mandate, the Owner-Operator Independent Drivers Association petitioned the U.S. Supreme Court, mentioning privacy concerns and saying that it violated truckers Fourth Amendment rights.

In September 2017, an OOIDA-led coalition of 31 organizations, said there were significant technological and real-world concerns that hadnt been addressed by FMCSA.

At the time, the coalition was backing a bill proposed by U.S. Rep. Brian Babin, R-Texas, that would delay the ELD mandate for two years. The coalition said the delay was needed in order to address these concerns.

But you know the rest. The bill didnt pass and the $2 billion ELD mandate began its first phase in December 2017 and entered its third and final phase in December 2019.

Why were lawmakers so determined to push this mandate forward, you might ask. They said it was all in the name of safety. The ELDs would force truckers to rigidly follow the hours-of-service regulations, which, in theory, would reduce crashes. OOIDA has contended that compliance doesnt equal safety and that there have been no studies proving that ELDs increase safety on the highways.

Soon after the mandate was put in place, truckers began to complain that the hours of service were too rigid and that the ELDs were forcing them to beat the clock and speed in order to get parked in time. Those cries led to the FMCSA reforming the hours-of-service rules, which are set to go into effect on Sept. 29.

While the official numbers havent been released, preliminary stats dont do much to support the justification for the ELD mandate. A preliminary study released in 2019 said ELDs have not reduced crashes and may cause an increase in unsafe driving habits. According to numbers from the National Highway Traffic Safety Administration, fatalities involving large trucks reached a 30-year high during the first full year of the ELD mandate.

So more than two-and-a-half years into the ELD mandate, heres what we know:

All of this even though there is still no proof that ELDs do anything to benefit highway safety.The FBI bulletin is the latest proof that the ELD mandate was an unnecessary and hastily enacted regulation.

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FBI bulletin exposes another crack in ELD mandate - Land Line - Land Line Media

NRA and Tea Party: Where are you now? – Greensboro News & Record

Where are the NRA, the Tea Party and constitutional conservatives?

For 50 years the NRA warned Americans of federal troops marching in U.S. cities, arbitrarily seizing citizens.

Twelve years ago the Tea Party was formed, claiming they would defend Americans 10th Amendment (states rights) in response to the tyranny of federal government overreach. All argued the public needed Second Amendment remedies in case it was necessary to bring down an out-of-control federal government.

In response, terrified Americans bought millions of weapons and billions of rounds of ammunition.

Where are these patriots now with their pocket Constitutions?

Badge-less federal agents are violating First Amendment (freedom of speech) rights by assaulting peaceful protesters, gassing moms and assaulting veterans. Federal officers are violating Fourth Amendment (unreasonable search and seizure), randomly forcing demonstrators into unmarked vans without due process.

President Trump is now threatening more cities with his secret police not because of lawlessness, but because the cities are run by his political opponents.

Answer this: What if Barack Obama sent federal troops to Raleigh and Greensboro because we had a GOP governor and mayor?

Thats what I thought! It was never patriotism, just politics.

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NRA and Tea Party: Where are you now? - Greensboro News & Record

Analysis: Is Trump stretching the law to deploy federal police power in cities? – wenatcheeworld.com

WASHINGTON, D.C. The federal government has broad power to enforce the laws of the United States, but not to police the streets or maintain order in a city if protests lead to violence.

That has been how the separation of powers between states and the federal government has been understood. The Constitution leaves the so-called police power in the hands of state and local officials. It is one of the powers not delegated the United States and instead is reserved to the states, as the 10th Amendment says.

This principle has been invoked often by the Supreme Courts conservative justices. In 1995, they struck down a federal law that made it a crime to have a gun in a school zone because, as Chief Justice William H. Rehnquist said, it threatened to convert federal authority into a general police power of the sort retained by the states.

But President Donald Trump says he is willing and even anxious to break down the line separating federal authority from local policing. Federal agents clad in military gear clashed repeatedly with demonstrators outside the boarded-up federal courthouse in Portland, Oregon.

And on Wednesday, Trump said he envisioned a wider campaign of order imposed by federal agents, sending them next to Chicago. We just started this process and, frankly, we have no choice but to get involved, the president said.

Legal experts agree the president and the Department of Homeland Security have the authority written into law to protect federal buildings and property, even if state and local officials prefer that they had stayed away.

One provision of a 2002 law that created the Department of Homeland Security says its secretary may designate employees ... as officers and agents for duty in connection with the protection of property owned or occupied by the federal government. They may carry firearms ... conduct investigations on or off the property in question ... and make arrests without a warrant for any offense against the United States if they have reasonable grounds to believe the person to be arrested has committed a felony under federal law.

But legal experts also say federal agents in Portland appear to be going well beyond the authority to protect federal property.

There are federal officers arresting people far from the federal building or federal property, said Erwin Chemerinsky, dean of the University of California, Berkeley School of Law. That is not enforcing federal law. This is disrupting peaceful protests, and that would violate the First Amendment. There are also reports of arrests without probable cause, which violates the Fourth Amendment.

This is another instance of Trump stretching the law, said Paul Rosenzweig, a former Homeland Security lawyer now at the R Street Institute, which calls itself a free-market think tank. Yes, if they see someone about to throw a Molotov cocktail, they can arrest him. If they see a group gathering to do something like that, they can investigate. But this power is constrained. If they take someone off the street in a van and without probable cause, they could be sued for damages.

Acting Homeland Security Secretary Chad Wolf denied agents are patrolling the streets of Portland or abusing their authority. He said they are fighting off violent anarchists who launch attacks late at night after the peaceful demonstrators have gone.

A lawsuit filed Tuesday by a group of Oregon nonprofits and state representatives accuses the Department of Homeland Security of violating the 10th Amendment and seeks a judges order that would limit federal agents to operating on federal property.

Last week, Oregon Attorney General Ellen Rosenblum filed a lawsuit on behalf of several plaintiffs who say they were injured or arrested.

We are asking the federal court to stop the federal police from secretly stopping and forcibly grabbing Oregonians off our streets, she said. The federal administration has chosen Portland to use their scare tactics to stop our residents from protesting police brutality and from supporting the Black Lives Matter movement.

It is less clear what legal authority the president could invoke to justify sending armed federal agents to Chicago, New York or other major cities, particularly if it is to help drive down violent crime, as Trump suggested Wednesday, rather than to respond to specific attacks on federal property.

One possibility is the Insurrection Act of 1807, which authorizes the president to call forth the militia or the armed forces to take such measures as he considers necessary to suppress, in a state, any insurrection, domestic violence, unlawful combination.

President Dwight D. Eisenhower invoked the law in 1957 to send federal troops to Little Rock, Arkansas, to enforce the desegregation of schools. In 1992, President George H.W. Bush used this authority to send troops to Los Angeles to quell the violence that followed the acquittal of several police officers in the beating of motorist Rodney King. Since then, Congress has expanded the law to authorize troops to cope with natural disasters and terrorism.

Usually when governors or city officials are facing an outbreak of violence or a disaster, they would welcome federal help. But the law appears to say the president may act on his own.

Whenever the president considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States make it impracticable to enforce the laws of the United States in any state by the ordinary course of judicial proceedings, he may call into federal service such of the militia of any state, use such of the armed forces, as he considers necessary to enforce those laws, it says.

To invoke the law, the president would have to proclaim an insurrection is underway requiring the use of the military. In early June, Trump ran into strong objections from current and former military leaders who said they were opposed to the use of the armed forces for domestic law enforcement.

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Analysis: Is Trump stretching the law to deploy federal police power in cities? - wenatcheeworld.com

Fourth Amendment | United States Constitution | Britannica

Fourth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that forbids unreasonable searches and seizures of individuals and property. For the text of the Fourth Amendment, see below.

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Bangladesh became independent in 1991.

Introduced in 1789, what became the Fourth Amendment struck at the heart of a matter central to the early American experience: the principle that, within reason, Every mans house is his castle, and that any citizen may fall into the category of the criminally accused and ought to be provided protections accordingly. In U.S. constitutional law, the Fourth Amendment is the foundation of criminal law jurisprudence, articulating both the rights of persons and the responsibilities of law-enforcement officials. The balance between these two forces has undergone considerable public, political, and judicial debate. Are the amendments two clauses meant to be applied independently or taken as a whole? Is the expectation of privacy diminished depending on where and what is suspected, sought, and seized? What constitutes an unreasonable search and seizure?

The protections contained in the amendment have been determined less on the basis of what the Constitution says than according to what it has been interpreted to mean, and, as such, its constitutional meaning has inherently been fluid. The protections granted by the U.S. Supreme Court have expanded during periods when the court was dominated by liberals (e.g., during the tenure of Chief Justice Earl Warren [195369]), beginning particularly with Mapp v. Ohio (1961), in which the court extended the exclusionary rule to all criminal proceedings; by contrast, during the tenure of the conservative William Rehnquist (19862005) as chief justice, the court contracted the rights afforded to the criminally accused, allowing law-enforcement officials latitude to search in instances when they reasonably believed that the property in question harboured presumably dangerous persons.

The full text of the amendment is:

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.

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Fourth Amendment | United States Constitution | Britannica

Fourth Amendment – the Text, Origins, and Meaning

The Fourth Amendment to the United States Constitution is a section of the Bill of Rights that protects the people from being subjected to unreasonable searches and seizures of property by law enforcement officers or the federal government. However, the Fourth Amendment does not prohibit all searches and seizures, but only those that are found by a court to be unreasonable under the law.

The full text of the Fourth Amendment states:

Originally created to enforced the doctrine that each mans home is his castle, The Fourth Amendment was written directly in response to British general warrants, called Writs of Assistance, in which the Crown would grant overarching, non-specific search powers to British law enforcement officials.

Through Writs of Assistance, officials were free to search virtually any home they liked, at any time they liked, for any reason they liked or for no reason at all. Since some of the founding fathers had been smugglers in England, this was an especially unpopular concept in the colonies. Clearly, the framers of the Bill of Rights considered such colonial-era searches to be unreasonable.

In deciding whether a particular search is reasonable, the courts attempt to weigh important interests: The extent to which the search intruded on the individual's Fourth Amendment rights and the extent to which the search was motivated by valid government interests, such as public safety.

Through several rulings, the U.S. Supreme Court has established that the extent to which an individual is protected by the Fourth Amendment depends, in part, on the location of the search or seizure.

It is important to note that according to these rulings, there are several circumstances under which police may lawfully conduct warrantless searches.

Searches in the Home:According to Payton v. New York (1980), Searches and seizures conducted inside a home without a warrant are presumed to be unreasonable.

However, such warrantless searches may be lawful under certain circumstances, including:

Searches of the Person:In what is popularly known as its stop and frisk decision in the 1968 case of Terry v. Ohio, the Court ruled that when police officers see unusual conduct leading them to reasonably conclude that criminal activity may be taking place, the officers may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling their suspicions.

Searches in Schools:Under most circumstances, school officials do not need to get a warrant before searching students, their lockers, backpacks, or other personal property. (New Jersey v. TLO)

Searches of Vehicles:When police officers have probable cause to believe that a vehicle contains evidence of criminal activity, they may lawfully search any area of the vehicle in which the evidence might be found without a warrant. (Arizona v. Gant)

In addition, police officers may lawfully conduct a traffic stop if they have reasonable suspicion that a traffic violation has occurred or that criminal activity is being carried out, for example, vehicles seen fleeing the scene of a crime. (United States v. Arvizu and Berekmer v. McCarty)

In practical terms, there is no means by which the government can exercise prior restraint on law enforcement officials. If an officer in Jackson, Mississippi wants to conduct a warrantless search without probable cause, the judiciary is not present at the time and can't prevent the search. This meant that the Fourth Amendment had little power or relevance until 1914.

In Weeks v. United States (1914), the Supreme Court established what has been known as the exclusionary rule. The exclusionary rule states that evidence obtained through unconstitutional means is inadmissible in court and cannot be used as part of the prosecution's case. Before Weeks, law enforcement officials could violate the Fourth Amendment without being punished for it, secure the evidence, and use it at trial. The exclusionary rule establishes consequences for violating a suspect's Fourth Amendment rights.

The Supreme Court has held that searches and arrests can be performed without a warrant under some circumstances. Most notably, arrests and searches can be performed if the officer personally witnesses the suspect committing a misdemeanor, or has reasonable cause to believe that the suspect has committed a specific, documented felony.

On January 19, 2018, U.S. Border Patrol agents without producing a warrant to do so boarded a Greyhound bus outside the Fort Lauderdale, Florida station and arrested an adult female whose temporary visa had expired. Witnesses on the bus alleged that the Border Patrol agents had also asked everyone on board to show proof of U.S. citizenship.

In response to inquiries, the Border Patrols Miami section headquarters confirmed that under the long-standing federal law, they can do that.

Under Section 1357 of Title 8 of the United States Code, detailing the powers of immigration officers and employees, officers of the Border Patrol and Immigration and Customs Enforcement (ICE) can, without a warrant:

In addition, The Immigration and Nationality Act 287(a)(3) and CFR 287 (a)(3) states that Immigration Officers, without a warrant, may within a reasonable distance from any external boundary of the United States...board and search for aliens in any vessel within the territorial waters of the United States and any railcar, aircraft, conveyance, or vehicle.

The Immigration and Nationality Act defines Reasonable distance as 100 miles.

Although the implicit privacy rights established in Griswold v. Connecticut (1965) and Roe v. Wade (1973) are most often associated with the Fourteenth Amendment, the Fourth Amendment contains an explicit "right of the people to be secure in their persons" that is also strongly indicative of a constitutional right to privacy.

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Fourth Amendment - the Text, Origins, and Meaning

"It’s the decent thing to do" – News – Pueblo Chieftain

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 - Pueblo Chieftain

Trump Judge Casts the Deciding Vote to Reverse District Court Ruling to Suppress Evidence Obtained in Violation of the Fourth Amendment: Confirmed…

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

In June 2020, Trump Eleventh Circuit judge Elizabeth Branch cast the deciding vote to reverse a district court ruling that suppressed evidence obtained after officers re-entered a home to conduct a protective sweep without a search warrant. The case isU.S. v. Yarbrough.

In August 2016, Officer Thomas Monroy received an anonymous text message from one of Anthony Yarbroughs neighbors. The message said that Yarbrough was at home in his yard with other people. Monroy was particularly interested in this message because there was a warrant out for Yarbroughs arrest and Monroy had difficulty executing the warrant. Since the message indicated that others were at the house with Yarbrough, Monroy asked Investigator Matt Sims to meet him there.

When Monroy and Sims arrived at the house they saw Yarbrough and two other men. They were all placed in handcuffs without incident. None of the men were armed and a pat down check revealed they had no contraband on them. Monroy asked Yarbrough if his wife was in the house, since there was also a warrant out for her arrest. Yarbrough affirmed that she was home. Monroy approached the house, yelled her name and announced that he was from the sheriffs office. Through a screen door, Monroy saw her run out of one room of the house into another room and shut the door. Monroy entered the house and followed her into the room, which turned out to be a bathroom. When he asked her why she ran, she told him she had to use the bathroom. Monroy placed her in handcuffs and walked her outside.

Monroy claimed he thought that someone could possibly still be in the house, but he was not certain. He went back inside the house and performed a protective sweep of the house. He noticed two shotguns in the master bedroom and a mint tin with a crystal-like substance on the dresser. The sweep took less than a minute. He took the firearms outside, cleared them, and put them in his police car. Monroy left the mint tin in the bedroom and did not search any drawers or closed containers.

Yarbrough moved in district court to suppress the evidence obtained after he and his wife were handcuffed because the officers did not have a warrant to search the property.

The district court granted Yarbroughs motion to suppress the evidence obtained after officers re-entered their home to conduct a protective sweep without a search warrant. The government appealed to the Eleventh Circuit.

In 2-1 decision, the majority held that the totality of the circumstances showed that the officer had a reasonable suspicion that a dangerous person might have been in the house and that the protective sweep was justified.

Judge Ursula Ungaro, a George H.W. Bush appointee, strongly disagreed. She explained that law enforcement officers have the authority to conduct protective sweeps along with valid arrests only when they have an objectively reasonable belief that the area to be swept harbors an individual posing a danger to those on the arrest scene. Officer Monroys sweep was based on speculation and it was brief. She went on to say that without specific and articulable facts showing that another individual, who posed a danger to the officers or others, was inside the house, the officers cannot justify a warrantless sweep. The Government failed to prove that the protective sweep met constitutional muster.

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Trump Judge Casts the Deciding Vote to Reverse District Court Ruling to Suppress Evidence Obtained in Violation of the Fourth Amendment: Confirmed...

Trump Judge Casts the Deciding Vote to Give Qualified Immunity to Officers Who Violated Fourth Amendment: Confirmed Judges, Confirmed Fears – People…

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

In June 2020, Trump Eleventh Circuit judge Britt Grant cast the deciding vote to reverse the district court ruling that denied qualified immunity for officers who falsified information to obtain a search warrant, detained the plaintiff in violation of her Fourth Amendment rights, and shot and killed her husband. The case is Hooks v. Brewer.

In 2014, David Hooks called the police to report a robbery on his property. A car and several guns were taken. The person who stole the car and guns Rodney Garrett turned himself in. When speaking to police, Garrett admitted that he also took from Hooks garage a scale, money, and a bag. In the bag, he said, was methamphetamines. Garrett denied ever knowing Hooks, but Officer Christopher Brewer was convinced that he had enough information from Garrett to search Hookss property.

In the search warrant affidavit, Brewer included Garretts statements , as well as information from an investigation Brewer worked on 5 years prior where a man indicated he supplied Hooks with meth. That mans claim was never corroborated and the police department never opened a file to investigate Hooks.

Shortly before midnight, officers approached Hookss home. Teresa, Hooks wife, saw the cars and individuals from the window. She didnt know the individuals were the police. She thought they were being robbed again. She rushed downstairs to wake up her husband. As officers pounded on the back door, Hooks came out of a bedroom, holding a gun. The police entered the home, fired shots, killing Hooks after, officers claim, Hooks raised his gun. Teresa ran into the master bedroom, locked the door, and called her son to report that they were being robbed. She asked her son to contact the police. Moments later, she recognized the sound of police radios and opened the bedroom door. Officer Steve Vertin handcuffed her and Sherriff William Harrell searched her. Teresa Hooks was detained for some time before being released. No drugs were ever found on the property.

Teresa sued the officers in district court. She alleged that the search of her home, the shooting of her husband, and her detention violated her Fourth Amendment rights. In addition, she claimed that the police included false information and left out key facts in the search warrant affidavit, which made the warrant and its execution invalid.

The officers invoked qualified immunity and moved for summary judgment, but the district court denied qualified immunity and the motion. The district court ruled that all of Teresa Hookss claims must go to trial.

All of the judges on the panel affirmed the district courts order as to Brewer, but, in a 2-1 decision they reversed the district courts qualified immunity decision as to Harrell and Vertin. The majority said that Vertin did not violate any clearly established law, so he is entitled to qualified immunity. Officers may temporarily detain occupants of a house while executing a search warrant. As to Harrell, the same rationale applies. The unlawful detention claim fails because Vertin is entitled to qualified immunity.

Judge Adalberto Jordan strongly dissented. He asserted that Teresas two-hour detention was a clear Fourth Amendment violation far outside any narrow exception permitted by Supreme Court precedent. All prolonged detentions must be supported by probable cause. No search was ever conducted during Ms. Hooks detention. After the shooting, Officer Vertin handcuffed Ms. Hooks with metal handcuffs behind her back and had her sit on a patio chair by the pool. Another officer searched Ms. Hooks person and found nothing of note. Officers Vertin and Harrell should not have been granted qualified immunity.

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Trump Judge Casts the Deciding Vote to Give Qualified Immunity to Officers Who Violated Fourth Amendment: Confirmed Judges, Confirmed Fears - People...

How does the Fourth Amendment apply to my child while at school? – Lawyers.com Blog

As drugs and weapons infiltrate our nations schools, it is imperative that schoolofficials take the necessary steps to maintain safety and preserve order in your childsschool. With that being said, your child has a right to privacy and school officials mustnot be overzealous in their investigation of alleged violations of school policy. Thefollowing will provide you, as a parent, with a basic understanding of the rights your childhas, as well as the requirements your childs school must adhere to regarding thesearch of his or her person or property while in school.The Fourth Amendment of the United States Constitution protects persons fromunreasonable searches and seizures by agents of the government, which includes schoolofficials. [1] The Fourth Amendment provides that, The right of the people to be secure intheir persons, houses, papers, and effects, against unreasonable searches and seizures,shall not be violated and no warrants shall issue, but upon probable cause [2] First, wewill discuss your childs Fourth Amendment rights while he or she is at school and theapplicable standard that will allow school administrators to conduct a search. Second, wewill look at the permissible scope of locker and desk searches, searches of personalitems, such as knapsacks and pocketbooks, as well as the use of drug testing, snifferdogs and metal detectors.How does the Fourth Amendment apply to my child while at school?The application of the Fourth Amendment to an in-school search of your child ortheir property differs from the more generally applicable criminal standard. With respect tothe criminal standard, the Fourth Amendment requires law enforcement officials to firstdemonstrate that they have probable cause to believe that a crime has been committed.This usually means that evidence must be presented to a judge and a warrant must beobtained before law enforcement officials may conduct a search of private property.Unlike the criminal standard, the requirements for conducting a permissible search of yourchild while he or she is in school are somewhat different.The United States Supreme Court has articulated a clear-cut standard that schoolofficials must adhere to when conducting a search of your child or his or her property.First, school officials do not need to obtain a warrant before conducting a search of yourchild or his or her property. [3] The Court reasoned that requiring school officials to obtain awarrant would interfere with their ability to obtain evidence and maintain the informaldisciplinary procedures that schools use to preserve order. [4] Moreover, the need tomaintain safety in the school environment at all times outweighs the warrant requirement.Unlike the criminal standard that requires probable cause, the legal standard setforth by the court for in-school searches by school officials is reasonable, under all of thecircumstances. In determining what is reasonable, the Court has developed a two-foldinquiry before a search may be conducted of your child or his or her property. First, thesearch must be justified at its inception. Second, the search must be permissible in itsscope. [5]

What does justified at inception mean?A school official that conducts a search of your child must have reasonablegrounds for suspecting that the search will reveal evidence demonstrating that your childhas violated or is violating school rules or the law.[6] Here, unlike the probable causestandard requiring probability that a search will produce evidence, school officials usingthe reasonableness standard may conduct a search irrespective of whether it is probablethat a search will reveal evidence of wrongdoing. School administrators, however, mustnot abuse this leniency in conducting a search and must do so with reason and commonsense.[7] This relatively relaxed approach, while justified in deference to the safety of theschool population, pertains only if at the time of the search, school officials hadreasonable suspicion in conducting a search of your child or his or her property.Reasonable suspicion sufficient to satisfy the justified at inception prong can befound in many different ways. For example, if your child is acting in a manner indicatingthat he or she has consumed alcohol or has taken illicit drugs, this will likely be found tobe reasonable. Additional examples include, the smell of alcohol or drugs on your child, orother students informing school officials that your child may be engaging in activityinconsistent with school policy or the law.To justify a search of your child or their property, school officials must have a logicalreason for doing so in order to satisfy the justified at inception requirement. If a schoolofficial is able to demonstrate that school safety concerns were the primary factors forconducting a search, it is likely that the search will be found reasonable.

What does permissible in its scope mean?A search will be found permissible in its scope when the measures that schoolofficials employ in searching your child or their property were reasonably related to theobjective of the search, and that the search was not excessively intrusive in light of theage and sex of your child. [8]First, when conducting a search, school officials must show that the search wasrelated to the object of the search. Therefore, if your child is accused of allegedlypossessing or selling illegal drugs, a more thorough search may be tolerated. On the otherhand, if your child is accused of possessing a bottle of alcohol, a search of herpocketbook or his knapsack may be reasonable, while the removal of clothing would likelybe unreasonable.Second, the search should not invade the legitimate privacy right of your child inrelation to the search. Taking into consideration your childs age and sex, different searchprocedures will be subjectively evaluated. For example, a school was found to haveviolated a thirteen-year old girls Fourth Amendment rights after school officials wereinformed that she allegedly possessed prescription painkillers. Following a search of thegirls knapsack, which revealed no evidence of prescription drugs, she was sent to thenurses office for a strip search, which further revealed no evidence of prescription drugs.Due to its highly intrusive nature, a strip search of your child should only be conductedwhen there is reasonable suspicion of danger or the resort to underwear for hidingevidence of wrongdoing. [9] Conversely, pat-downs are held to be minimally intrusive.Thus, the means used in conducting a search, along with the age and sex of your child,are pertinent factors that school officials must consider before conducting a search ofyour childs person or their property.

[1] New Jersey v. T.LO., 469 U.S. 325 (1985).[2] U.S. Const. Amend. IV.[3] New Jersey v. T.LO., 469 U.S. 325 (1985).[4] Id. at 340.[5] Id. at 341-342.[6] Id. at 342.[7] Id. at 343.[8] Id. at 342.[9] Id. 2643.

If you have questions about any education matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@mayalaw.com.

https://www.mayalaw.com/wp-content/uploads/2017/09/Education-Law-Publication-2017-Published.pdf

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How does the Fourth Amendment apply to my child while at school? - Lawyers.com Blog

Ga. voters will decide thorny ‘sovereign immunity’ issue this fall – Georgia Recorder

A lengthy legal battle over a controversial 2012 abortion law between the state of Georgia and a few physicians reached the states highest court in 2017, but the doctors objections to the law banning abortion after 20 weeks were never heard.

The state Supreme Court upheld a lower courts decision that then-Gov. Nathan Deal and the state were protected by whats known as sovereign immunity. The government, the court ruled then, must first agree to be sued in state court before someone can challenge the constitutionality of a law.

Simply put, the constitutional doctrine of sovereign immunity forbids our courts to entertain a lawsuit against the State without its consent, Justice Keith Blackwell wrote at the time.

This November, Georgians will finally decide at the ballot box whether that should change. A constitutional amendment one of two on the ballot would open up state courts to those who want to challenge the constitutionality of state and local laws. Legislators had tried without success to make the change in the past, only for two different governors to veto those attempts.

Lawmakers, though, were able to circumvent the governors office this year by pushing the change through as a constitutional amendment that puts the question in voters hands. A constitutional amendment cannot be vetoed.

The 2017 Lathrop vs. Deal ruling gave the state and local governments more latitude to use sovereign immunity as a defense against lawsuits and left the federal court as the best option to fight back in some instances. For example, physicians and abortion providers are currently challenging a 2019 abortion law in federal court.

The American Civil Liberties Union of Georgia, which represented the three physicians in the Deal lawsuit, says state and local governments should be held accountable for the laws they pass.

The doctors argued in the 2012 lawsuit that a then-new Georgia law banning abortions after 20 weeks violated the Fourth Amendment right to privacy. The Supreme Court said the state was shielded from the lawsuit because of sovereign immunity.

So-called sovereign immunity allows the government to trample on Georgians constitutional rights with reckless abandon, said Sean J. Young, legal director of the ACLU of Georgia. When the state violates Georgians constitutional rights, courts must be able to step in and remedy that violation.

The Deal lawsuit was one of several court cases that prompted a bipartisan group of legislators to push for legislation putting an end to the barrier.

Despite getting nearly universal support in both legislative chambers, it was twice struck down by a governors veto because of arguments that lawsuits would stifle a governments ability to function.

Kemp noted in 2019 that the public can already take legal action against state officers and employees for breach of contract and some tort claims.

Novembers ballot question will ask voters if the state constitution should be changed to put aside sovereign immunity when a legal challenge questions whether a government has exceeded its authority.

Georgians must have the legal recourse for their lawsuit to be considered by a judge if they feel the government committed an unconstitutional act, said Rep. Chuck Efstration, a Dacula Republican and co-sponsor of the measure.

If voters waive sovereign immunity, Georgians can file a lawsuit asking a judge to issue a declaratory judgment on whether the state or local government is violating a particular law. No monetary damages will be awarded if the judge rules in the residents favor.

Since the state of Georgia can already be sued in federal court for violating federal constitutional rights, its only right that state superior court judges be allowed to hear claims that state or local laws violate a persons rights, said House Minority Leaders Rep. Bob Trammell, who is a sponsor of the resolution.

If you ask most people where they would go to seek redress if the government aggrieved them, the logical answer they would give you is court, said Trammell, a Luthersville Democrat who is also an attorney.

This measure simply seeks to make sure that they have the keys to the courthouse, and that the door is open, he said.

The law of sovereign immunity dates back centuries.

The king can do no wrong so the king can only be sued when the king says he can be sued, said Atlanta attorney Scott Cahalan, who specializes in construction law and government procurement.

Tossing out sovereign immunity in these cases speeds up the process of reviewing a constitutional statute, Cahalan said.

Its much faster than if you have to wait until somebody has been harmed by it, he said.

A rash of overzealous lawsuits isnt likely to become a problem should voters back the constitutional amendment, said Rusi Patel, general counsel for the Georgia Municipal Association, which represents the states 538 cities.

If cities or counties are not following the written law, then there should be recourse, he said.

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Ga. voters will decide thorny 'sovereign immunity' issue this fall - Georgia Recorder

Shot Twice in the Back: A Case Tests the Fleeing Felon Defense – The New York Times

In August 2019, a man stood on a highway bridge over the Colorado River in Rifle, Colo., and pointed a gun to his chest as two police officers urged him not to kill himself.

No! Go away, said the man, Allan George, a 58-year-old construction worker who was wanted for possession of child pornography. He stuffed the gun in his pocket and scratched his head. Then he began to run slowly down the shoulder of the busy highway.

What happened next was captured, as with so many recent fatal encounters with the police, by a bystanders cellphone.

One of the officers took aim at Mr. George as he ran and shot him twice in the back, killing him.

The local district attorney declined to charge the officer.

Now, a year later, Mr. Georges family has filed a federal lawsuit against the officer, the police chief and the city of Rifle, claiming they violated his Fourth Amendment rights by using excessive force.

The suit challenges the fleeing felon defense that has given the police near impunity to use deadly force against a person escaping their custody. It is also unfolding as legislators in Colorado and other states raise the standards for when an officer can intentionally kill someone running away from them.

The complaint cites a 1985 U.S. Supreme Court ruling that restricts the use of lethal force against someone who is fleeing the police to cases in which officers believe the person poses a significant threat to officers or the public.

However, a subsequent Supreme Court ruling and states own interpretations of the 1985 decision have largely protected the police when they are investigated by prosecutors or are sued. In many cases, the police have successfully argued that they felt they had no choice but to use deadly force to protect themselves or the public.

The video of Mr. Georges death could test that defense, legal observers said, especially at a time when states are under growing pressure from a public demanding change after the killing of George Floyd in police custody in Minneapolis.

In Utah this month, Sim Gill, the district attorney in Salt Lake County, sent state legislators recommendations for changing the laws governing the use of force by the police, including that states fleeing-felon statute. Mr. Gill, who said he had long examined how use-of-force statutes conflict with the publics expectations, concluded that state laws were more generous to the police than to the public.

George Floyd sparked our consciousness in a very visible way, in a way that we cant simply talk around it, and that is because of the advent of technology and having the facts in your face, Mr. Gill said.

His recommendations came days after he announced that two officers had acted within state law when they shot an armed man who was running away from them, which led to protests outside his office.

If we want different outcomes, then we have to change the law, he said in an interview.

Until last month, the law in Colorado allowed police officers to use deadly force if they reasonably believed it was necessary to prevent death or injury. Gov. Jared Polis, a Democrat, signed a law that restricts officers from using deadly force except in cases where someone poses an immediate threat.

Colorado and Utah are among other states and towns or cities that have recently announced plans to re-examine standards for the use of deadly force to stop someone who is fleeing from the police, said Raleigh Blasdell, a criminologist at North Central College in Illinois.

What we are seeing at the local level is police departments are updating and amending their policies to provide citizens with greater protections, Professor Blasdell said.

Most states, Professor Blasdell said, have tailored their fleeing-felon statutes around the 1985 Supreme Court ruling in Tennessee v. Garner, a case involving a 15-year-old boy who was killed as he fled from a police officer in Memphis even though the officer who shot him was reasonably sure he was unarmed.

In Graham v. Connor, in 1989, the court ruled that the use of force by the police must be judged from the perspective of a reasonable officer on the scene.

The case involving Mr. George in Colorado is not clear-cut, said Chuck Wexler, the executive director of the Police Executive Research Forum, an organization of law enforcement officials that provides recommendations for police departments.

The charges he faced were more serious than the accusation of using a counterfeit $20 bill that led to Mr. Floyds arrest in Minneapolis. But the circumstances the shooting of a suicidal man who had not threatened anyone but himself are a reminder that departments should not rely on the Graham decision to justify deadly force and instead train officers to consider other tactics, Mr. Wexler said.

If this person had just committed a murder or it was an active-shooter situation, it would be very clear, he said. You want to make sure the bar is high in using deadly force.

The case underscores the tension at the heart of excruciating decisions police officers feel forced to make quickly, said Bianca Harris, director of the criminal justice program at Meredith College in Raleigh, N.C., and a former warden at the North Carolina Correctional Institution for Women.

People want to be safe and protected, she said.

But they want it to look fair, be fair and nonviolent, Ms. Harris said. Unfortunately, the reality is that safety and protection are not always achieved in nice pretty packages and often there must be a decision made that will serve the many and reinforce their safety while costing the few very heavy prices.

Jefferson J. Cheney, the district attorney for Colorados Ninth Judicial District, cited the 1985 ruling when he concluded that the officer who shot Mr. George, Cpl. Dewey Ryan, had acted lawfully.

Mr. George, who pleaded guilty in 2009 to possession of child pornography, knew he was being investigated again for the same offense and had told his wife he did not want to go back to jail. She called the police to tell them that she was worried he might kill himself, and that he had told her he was not going back to jail without a fight, according to Mr. Cheneys report.

Mr. George was driving home from work when Corporal Ryan and another officer pulled him over on a section of State Highway 13 that crosses the Colorado River.

The officers drew their weapons and ordered Mr. George out of the car. He showed them his gun and walked toward the bridge, yelling, Its all over, and threatening to jump.

Corporal Ryan told Mr. George to think of his children and repeatedly told him to drop the gun, Mr. Cheney said in his report, adding that the officers would have been justified in shooting Mr. George the moment he showed them his firearm.

Mr. Cheney wrote that the officers commanded him to drop the gun about 46 times and submit to a lawful arrest.

Corporal Ryan had reason to believe that Mr. George might be running toward downtown Rifle to take cover and shoot officers or others, the report says.

Mr. George bought the gun legally in July 2019, according to the investigation.

David Lane, the lawyer for Mr. Georges family, called the investigation a whitewash of an unlawful killing.

Mr. Cheney said he disagreed with Mr. Lane, but declined to comment further, citing the federal case. Lawyers for Corporal Ryan and Chief Tommy Klein of the Rifle Police Department, who is also named as a defendant in the lawsuit, declined to comment.

There were other ways the officers could have stopped Mr. George, Mr. Lane said, including by using a stun gun.

The police dont get carte blanche to kill people who are suicidal, he said.

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Shot Twice in the Back: A Case Tests the Fleeing Felon Defense - The New York Times

Wronged by the Police? How to Defend Your Rights – Legal Reader

Contrary to popular opinion, the amount of force used has very little to do with the underlying crime. When officers exceed these levels, its considered police brutality.

Dealing with the police is intimidating and the cops know that. The police have rules for encounters with civilians, but they often push the line. Sometimes, they even cross it. Not knowing how to protect your rights when dealing with the police can lead to misunderstandings, arrests, and even injuries. Know your rights.

Your Rights When Dealing with the Police

Here are a few basics for police encounters:

The Right to Know Why Youre Being Stopped

Law enforcement officers need a reason to stop you. They are allowed to speak to you without cause, but youre under no obligation to talk to them in a consensual encounter. Valid reasons for a stop include:

Police have to make contact with civilians to do their job, but they must respect your rights, as well.

The Right to Remain Silent

If the police want to question you and you are not free to leave, they must advise you of your Miranda Rights. These include the right to remain silent. Miranda applies to custodial interrogation, but custody doesnt necessarily mean under arrest. You may not have been arrested, but are still not allowed to leave. If you have any questions as to whether youre in custody or not, ask if youre free to leave. If not, youre in custody.

Your Fourth Amendment Privacy Rights

You have the right to privacy. That means that the police cannot search you, your home, or your vehicle without a warrant. There are, however, exceptions. These include:

Police Violence

Law enforcement officers have guidelines for the amount of force that they can employ to effect an arrest. These are dictated by the level of resistance that the subject is displaying. Contrary to popular opinion, it has very little to do with the underlying crime. When officers exceed these levels, its considered police brutality.

What to do if Your Rights are Violated

If youve been involved in a police incident or arrested, your rights may have been violated. You can seek justice through compensation. The Billion Dollar Attorney, Chris Stewart helps the victims of police overreach obtain justice. Dont let bad cops get away with it. Protect yourself and your community from recalcitrant law enforcement officers and systemic injustice. Contact a civil rights attorney in your area now.

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Wronged by the Police? How to Defend Your Rights - Legal Reader

The innocents at home, anti-mask tales of purity – Greensburg Daily News

The conservative politicians who oppose Gov. Eric Holcombs statewide mandate that Hoosiers wear masks while in public have the purest histories and the cleanest hands one could imagine. They wouldnt dream of endangering their fellow citizens lives and creating dissension in a time of crisis out of personal pique.

No, no, no.

These guys have unblemished reputations of selfless, unimpeachable devotion to serving both the state and its citizens, uncorrupted by baser considerations or loyalties. They are above such crass motivations.

Take Indiana Attorney General Curtis Hill, for example.

Hill issued an opinion at the request of several conservative state lawmakers that Holcombs order exceeded his authority. The attorney general devoted at least 15 or 20 seconds of research and analysis to this carefully reasoned argument.

One would expect such diligence and creativity from a man who argued with vehemence that he should remain as attorney general even though his license to practice law had been suspended and Indiana law requires that one be an attorney in good standing to hold the office.

The demands that Hill resign his office came from every corner. The chorus calling for him to leave included most Hoosier Republican officeholders.

But Hill recognized that to honor his duty to the law he must ignore, even break, the law. To do otherwise would be to violate his oaths both as an officer of the court and as the states highest-ranking defender of the law.

So, Curtis Hill stayed fought tooth and nail, in fact, to hold onto his office in the face of unending criticism and censure from the Indiana Supreme Court because his devotion to the law knows no bounds. He knew it would be wrong to deprive Indiana of such a paragon of principled commitment to the rule of law.

No, none dare call them hypocrites.

Then theres Indiana Rep. Jim Lucas, R-Seymour.

Lucas recently found himself on the receiving end of a spanking from his own partys leadership. He lost several key committee assignments because he had posted a racist meme on Facebook a picture of a laughing Black child in what appeared to be a diaper chortling, We gon get free money.

After his trip to the woodshed, Lucas said he was going to leave social media and try to strike a more respectful tone.

That lasted about 90 seconds.

The day after the governor announced the mask mandate, Lucas offered the following calm and reasoned post on Facebook:

Starting Monday, the governor wants to lock me in a cage for 180 days and fine me $1,000 if I dont wear a mask that has no published standards for effectiveness.

What if I dont comply, Governor Eric Holcomb?

The words sat atop a photo of a gun and a pocket copy of the U.S. Constitution.

Many people who saw the post called it a threat to the governor and thus a violation of the law. Lucas denied that.

He always does.

Thats because Lucas is like the kid in the band who just knows that everyone but him is marching out of step.

His devotion to the Constitution is depthless. Thats why he likes to berate and shout down citizens who want to exercise their First Amendment right to petition government for redress of grievances. Thats also why he tried to waive gun owners Fourth Amendment rights a few years back so he could make it possible for them to bring their guns to school.

Hes just following the wisdom of the Vietnam War general who said, In order to save the village, it was necessary to destroy the village.

Lucas knows that, to save the Constitution, sometimes one must destroy the Constitution.

No, none dare call them hypocrites.

Eric Holcombs motivations arent nearly so high-minded and complicated. Hes requiring Hoosiers to wear masks because, selfishly, he wants to see fewer of us getting sick and dying.

What a cad.

What a tyrant.

Hill, Lucas and the others who oppose the governors mandate have one other thing in common.

They all say theyre pro-life.

No, none dare call them hypocrites.

We are making critical coverage of the coronavirus available for free. Please consider subscribing so we can continue to bring you the latest news and information on this developing story.

John Krull is director of Franklin Colleges Pulliam School of Journalism.

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The innocents at home, anti-mask tales of purity - Greensburg Daily News

Someone who cared about safe cities would try to bring calm to chaos. Trump is doing the opposite to bolster his law-and-order reelection campaign. -…

Columns share an author's personal perspective and are often based on facts in the newspaper's reporting.

By now, we have become wise to President Donald Trumps legal strategy push the limits to advance his own interests, regardless of whether his conduct complies with settled norms. Take advantage of the resulting delay to maintain the status quo and, even if he ultimately loses in court, exploit the narrative that our institutions are politically motivated or out of touch to score points with his disgruntled base. It is a heads-I-win, tails-you-lose business plan.

That strategy is on full display in Portland, Oregon, where Trump has sent federal agents to dominate the streets against protesters. Like many cities across the country, Portland has seen weeks of unrest following the killing of George Floyd in police custody in Minneapolis on Memorial Day. During 54 days of demonstrations in Portland, property damage and violence has occurred. Even so, Portland Mayor Ted Wheeler and Oregon Gov. Kate Brown have asked federal agents to leave because they believe their aggressive tactics are causing tensions to escalate.

An internal Department of Homeland Security memo says that the agents are not trained in riot control or mass demonstrations, and their lack of preparation shows. Federal agents, dressed in camouflage military fatigues and armed with tactical gear, have fired tear gas, rubber bullets and flash bang explosives into crowds. Oregon Attorney General Ellen Rosenblum has filed a lawsuit alleging that agents are pulling protesters into unmarked vans in violation of their Fourth Amendment rights against unreasonable seizures. In recent days, a "wall of moms" has gathered outside the federal courthouse, chanting, Moms are here. Feds stay clear.

Trump has threatened to send federal "rapid deployment teams" to other cities that are experiencing protests, prompting a letter in opposition from several mayors. The letter to Attorney General William Barr and acting Secretary of Homeland Security Chad Wolf complains of violations of norms and expectations by federal agents, such as the wearing of insignia, coordination with local law enforcement, and tenets of federalism.

Why would Trump use the scarce resources of the federal government to respond to local protests when local leaders oppose this course of action? The answer is that he does not really care about public safety. He cares only about his own reelection, even if he has to disrupt public safety to achieve it. And if he crosses a legal line in the process, he can brag to his political supporters that he is tough on crime.

Trump is campaigning on a law-and-order theme, and is engaging in political theater to prop up his words. During his interview with Chris Wallace on Fox News on Sunday, Trump falsely accused Joe Biden of advocating to defund the police, a baseless claim that was immediately refuted. Portland and other cities give Trump the opportunities to flex his authoritarian muscles in front of national television audiences.

Use of federal agents to protect federal property is itself lawful. With protesters spray-painting the federal courthouse, the Federal Protective Service (FPS) is well within its mission to defend the physical property, and arrest anyone involved in damaging it. But Barr and Wolf are looking to see how far they can push that authority.

Since the 1980s, Barr has used the pretext of protecting federal property as a way to get a foot in the door to quell civil unrest. He admitted in a 2001 interview with the University of Virginia's Miller Center that he used such tactics to respond to unrest in the Virgin Islands following Hurricane Hugo in 1989. As he put it, We can send people down to defend the federal function, keep our courts open, and if they see any crime being committed in front of them, then, as law enforcement officers, they can make the arrest.

Wolf, who has referred to protesters as "lawless anarchists," has followed that playbook sending to Portland agents from other DHS agencies, such as Customs and Border Protection, to support FPS in defending federal property. Once on the ground, the agents are permitted to arrest anyone who commits a crime in their presence. This activity has led to reports of arrests of protesters on the streets, even away from the federal courthouse, which may be an unauthorized stretch of that authority.

Pushing the legal limits of federal authority has sparked outrage in Portland and elsewhere. Someone who really cared about public safety would be looking to bring calm to chaos, not the other way around.

While legal challenges against Trumps tactics may eventually succeed, Trump can continue to occupy cities in the meantime. And even if the courts one day rule against him, he can brag to his supporters that he was so tough on crime that even the courts made him stop.

Ultimately, Trumps authoritarian tactics are making our cities less safe and damaging the credibility of federal agencies that will hamper their ability to enforce the law for years to come. Like everything else Trump touches, federal law enforcement agencies will be tarnished beyond recognition.

Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, is a professor at the University of Michigan Law School, an NBC and MSNBC legal analyst, and a member of USA TODAY's Board of Contributors. Follow her on Twitter: @BarbMcQuade.

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Someone who cared about safe cities would try to bring calm to chaos. Trump is doing the opposite to bolster his law-and-order reelection campaign. -...

Here’s Why Cities Won’t Be Able to Stop Trump’s Secret Police – VICE

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Chicago Mayor Lori Lightfoot warned Tuesday that while she welcomes a partnership with federal law enforcement, we do not welcome dictatorship, we do not welcome authoritarianism, and we do not welcome unconstitutional arrest and detainment of our residents.

But while President Trump threatens a national surge of federal forces dubbed "Operation Legend," experts say theres little local officials can do to stop the feds from turning more U.S. cities into Portland, where unidentified federal agents in fatigues have beaten and fired projectiles at BLM protesters and even snatched them off the streets in unmarked cars.

While some of Trumps secret police tactics against protesters may be brazenly unconstitutional, legal scholars said theyll be very hard for mayors and governors to stop, thanks to the vast authority Trump enjoys to protect federal property.

It will be difficult for state officials to stop them, because federal authority is about more than just protecting federal monuments and bridges, said Jens David Ohlin, vice dean of Cornell Law School. Its also about investigating and enforcing federal offenses, which can occur anywhere.

Trumps musings about sending federal agents to Chicago, Philadelphia, Detroit, Baltimore and Oakland now set the stage for a titanic legal clash over the limits of presidential power in which Trump enjoys some distinct advantages, legal experts said.

And that courtroom rumble will play out against a presidential election cycle in which Trump is making law & order a core part of his campaign, while darkly warning that Americans will be unsafe in their homes if he loses.

Based on the news reports that Ive seen, there are pretty clear violations of the Fourth Amendment, which bars arrests without probable cause, said Steven Schwinn, a Constitutional scholar at John Marshall Law School in Chicago. But its still going to be difficult to find a judicial remedy.

The state of Oregon fired an opening salvo on Friday by hitting Trumps agencies with a lawsuit, and demanding a judge issue an order that stops the unorthodox detentions.

The complaint accuses Trumps minions of violating the Fourth Amendments prohibition against arbitrary arrest, First Amendment rights to free speech, and Fifth Amendment rights to due process of law.

The state attached a sworn affidavit from a protester named Mark Pettibone, who recounts being pulled off the street at 2 a.m. by men in fatigues with generic police patches driving a random-looking minivan. At first, Pettibone said he had no idea whether he was being arrested by law enforcement officers or harassed by militia vigilantes. He was whisked to the local courthouse, questioned and released.

No one told me why I had been detained, provided me with any record of an arrest, or explained what probable cause they had to detain me, Pettibone stated.

Flagrantly arbitrary arrests represent a violation of the Fourth Amendment, legal scholars said.

It is a core tenet of Fourth Amendment law that officers cannot arrest people unless they have probable cause to believe they committed a crime.

It is a core tenet of Fourth Amendment law that officers cannot arrest people unless they have probable cause to believe they committed a crime, said Miriam Baer, a professor at Brooklyn Law School. If the Fourth Amendment means anything, it means that federal officials cant storm a city and scoop people off the streets in order to quell peaceful, lawful protest.

Oregon could succeed in convincing a federal judge to slap an order on Trumps agents demanding they act more carefully. But there are limits to what the courts can do because the federal government packs a very powerful punch in this dispute.

As a result, the legal wrangling might boil down to a question of how many blocks away from federal property the feds can operate.

A federal judge could order federal officers not to violate the First or Fourth Amendment, but they do have authority to protect federal property and federal personnel, said Schwinn. To the extent theyre engaged in that activity, that is lawful. So drafting an order to stop them gets tricky.

And there simply arent federal rules that would force them to wear identifying badges, or drive official-looking cars, legal experts say.

As a legal matter, federal law enforcement officers do not have an affirmative to disclose either their identities or their agencies of affiliation, said Mark Nevitt, a professor of military ethics and law at the United States Naval Academy, adding: I do not see a plausible scenario where the federal law enforcement agencies are required to leave absent a rapid change in facts.

Even if a judge orders federal agents to immediately stop their cloak & dagger approach, Trump may still be able to work around such an order, legal experts said. His administration has proved expert in slow-walking the judicial system and fighting rulings it doesnt like.

I absolutely believe the administration would bulldoze over such an order, although theyd do it in a way that has the trimmings of legality, Scwhinn said. Its disheartening to me to see how the Trump administration has figured out how to play the legal and political system in a way that gets to these kinds of crazy results but they have.

Cover: A federal officer pepper sprays a protester in front of the Mark O. Hatfield U.S. Courthouse on July 20, 2020 in Portland, Oregon. (Nathan Howard/Getty Images)

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Here's Why Cities Won't Be Able to Stop Trump's Secret Police - VICE

Radio Diary: A Harvard Law Professor Explains Why Federal Officers’ Tactics In Portland Are Unlawful – WBUR

Unidentified federal officers in Portland and soon, in Chicago and Albuquerquehave been arresting and detaining protesters in unmarked vehicles, sometimes far away from the federal buildings they're purportedly there to protect.

In one notable instance, two federal officers grabbed a man off the sidewalk and, without identifying themselves or giving a reason, put him in an unmarked van and drove off to question him.

The Department of Homeland Security claims the officers' tactics here are lawful. Harvard Law professor Andrew Manuel Crespo says they are decidedly not.

"The person in charge of this newly beefed-up, paramilitary federal police force doesn't know what an arrest is," he says of Federal Protective Services Deputy Director Chris Cline. "It means he doesn't know when they're violating the fourth amendment like they unquestionably did."

Listen to Professor Crespo explain why the officers' conduct is unconstitutional and why he finds it frightening that authorities seem to think otherwise.

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Radio Diary: A Harvard Law Professor Explains Why Federal Officers' Tactics In Portland Are Unlawful - WBUR

Two DHS Officials Apparently Just Admitted Their Troops Have Been Violating the Constitution – Law & Crime

Acting Department of Homeland Security (DHS) Secretary Chad Wolf and one of his subordinates appear to have admitted their agents have been making unconstitutional arrests of Black Lives Matter protesters in Portland during a series of public appearances.

Heres the exact comment.

Anytime that you attack a federal facility such as a courthouse in Portland that is a federal crime, Wolf told Fox News host Martha MacCallum on Tuesday night. Attacking federal police officerslaw enforcement officerswhich they have done for 52 nights in a row is a federal crime. So, the Department, because we dont have that local support, that local law enforcement support, we are having to go out and proactively arrest individuals and we need to do that because we need to hold them accountable.

Anticipatory arrests, of course, are prohibited under the U.S. Constitution.

Those Fox News comments tracked with an explanation given by Deputy Director of the Federal Protective Service Richard Kris Clinewho was asked to field a question originally addressed to Wolf about infamous and widely-criticized footage of DHS agents silently abducting protesters and forcing them into unmarked vehicles.

What level of probable cause are you getting? a reporter asked on Tuesday during a press briefing. Because some people are saying that theyre being detained on the sidewalk by an agent they dont recognize and being put into an unmarked vehicle. So, what exactly, is the standard of probable cause you are getting and how is that not a violation of civil liberties?

Wolf noted that his agents were not going directly into crowds of protesters because Portland is currently a very difficult environment to work in. He also said that his agents were using probable cause, but declined to elaborate, before turning the microphone over.

So, in this instance, youre probably talking about the van, Cline said. So the CBP, the Border Patrol officersthat have been cross-designated with our authoritythe individual that they were questioning was in a crowd and in an area where an individual was aiming a laser at the eyes of officers.

That explanation immediately set off alarm bells from legal experts.

Harvard Law Professor Andrew Crespo summed up the constitutional issues with the Kline-Wolf approach.

I dont know if shining a laser at someone is a federal crime, he wrote. It doesnt matter. The police do not have probable cause to arrest you just because you are standing near someone else who may have committed a crime.

The U.S. Supreme Court, Crespo noted, weighed in on this issue in a landmark Fourth Amendment case from 1979.

In Ybarra v. Illinois, a 6-3 majority of justices concluded that a state statute allowing police to search people on the premises of a location where a valid search warrant is executed violates both the Fourth Amendments prohibition against unlawful searches and seizures as well as the 14th Amendments guarantee of Due Process.

Per that still-undisturbed decision:

[A] persons mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person.

The Harvard Law professor explained that this standard is actually well-known in the common parlance as well: the lawand an ethical worldviewdoes not and cannot support the notion of guilty by association.

We have people in the area that observekeep track of himwhere hes going, Cline noted. We dont want to go into the crowd because then its a fight between our guys and the demonstrators, so we wait until the individual gets into a somewhat quiet area where we dont expect violence to talk to him.

According to Cline, however, other protesters appeared and the DHS troops decided to take the person of interest . Cline said they asked the protester to leave. The video appears to show that the protester was detained by two troops using force.

They did take them to an area that was safe for both the officers and the individual to do the questioning, he said. Its not a custodial arrest. We need to question this individual to find out what their role was in this laser-pointing.

Eventually, Cline said, the protester was released because [DHS] did not have what they needed.

Translation: They did not have probable cause, Crespo stated.

Crespo took issue with Klines suggestion that his agents are acting constitutionally because they are not performing custodial arrests.

The nations high court also settled the arrest issueagain in 1979.

In Dunaway v. New York the Supreme Court considered whether police violated the Fourth and 14th Amendments whenlacking probable causethey took a person into custody, transported him to a police station and detained him for interrogation. Once again, six justices found that police violated the U.S. Constitution with such actions.

Per that landmark case:

[T]he detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbors home to a police car, transported to a police station, and placed in an interrogation room.

The Dunaway holdingprohibiting alleged non-custodial arrestswas unanimously reaffirmed by the court in 1984.

Crespo noted: The person in charge of this newly beefed up, paramilitary federal police force DOES NOT KNOW WHAT AN ARREST IS.

[images via screengrab/Fox News/Department of Homeland Security]

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Two DHS Officials Apparently Just Admitted Their Troops Have Been Violating the Constitution - Law & Crime