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Daily Archives: July 25, 2017
Seven Observations About Jared Kushner’s Statement – Foreign Policy (blog)
Posted: July 25, 2017 at 11:54 am
It is always an important moment the first time in a scandal when we get to hear from the scandals subjects not the allegations against them but their responses to those allegations, not the obligatory comments, no-comments, or denials in the story itself but the subjects own version of the story. These moments are particularly clarifying when that story comes not in the form of some impulsive reaction say, an angry presidential tweet but instead as a carefully prepared presentation, one put together by competent counsel based on an extensive review of the record available to the subject. Such a presentation can be particularly useful when criminal consequences will attach to any knowing lies within it; this can happen either because the subject gives the statement under oath or because he or she gives it under circumstances in which false statements are otherwise barred by federal law.
In such situations, and Jared Kushers statement on Monday presents one such situation, we can with reasonable confidence make a few working, though always rebuttable, presumptions:
These are the presumptions with which the careful reader should peruse Kushners 11-page statement given today to congressional committees. The document reflects his lawyers review of a large volume of emails, phone records, calendar entries, and other documents available to them. It also reflects his memory. It is carefully prepared. And he could face prosecution if any of it is knowingly and intentionally false on a material point.
Kushners statement responds more confidently and convincingly on some allegations than on others. And in at least one major area, the statement maintains a conspicuous silence. Given that Kushners discussions with the committee on Monday, and others today, were closed, we do not know whether it held up well under questioning. But based on the document alone, here are seven observations about Kushners conduct we think are safe to tentatively advance at this stage.
The first notable feature of the document is that Kushner released it at all. Lawyers who believe their clients have potentially serious criminal exposure generally do not let them make public statements to congressional committees, particularly not public statements rife with firm factual claims the record may come to contradict. The very existence of this statement, in other words, is itself a show of confidence to some degree that Kusher whatever problems he might have is not in the sort of legal jeopardy which counsels silence. That he was apparently willing to answer questions about these matters from the Senate Intelligence Committee on Monday and the House Intelligence Committee today without asserting his Fifth Amendment rights further suggests his attorneys feel relatively good about their legal position.
Second, Kushner shows particular confidence on matters related to his meetings with Russians during the campaign. He describes what purports to be all of his contacts, certain or possible, with Russian government officials, and disputes some alleged contacts with Russian Ambassador Sergey Kislyak reported by Reuters. He treats all of the contacts as trivial, incidental interactions. As he will be in rather grave potential jeopardy if any evidence of more serious interactions emerges, its probably reasonable to expect that he and his lawyers are fairly certain that no more serious interactions will come to light. Notably, Kushner only disavows other contacts or any collusion with a narrow category of individuals those who were or seemed like they might be representatives of the Russian government. The statement thus leaves some ambiguity about contacts with figures whom a reasonable person in Kushners position might be understand as cutouts.
Third, to minimize his own contacts with Russian government representatives, Kushner rather casually throws his brother-in-law Donald Trump Jr. under the bus on the subject of the now-infamous meeting at Trump Tower with the Russian lawyer peddling dirt on Hillary Clinton on behalf of the Russian government. In Kushners version of the story, he arrived late and left early thereby conveniently missing all of the untoward stuff about the dirt; he didnt read the relevant emails, nor the subject line; and when his lawyers discovered the matter, he disclosed it:
I arrived at the meeting a little late. When I got there, the person who has since been identified as a Russian attorney was talking about the issue of a ban on U.S. adoptions of Russian children. I had no idea why that topic was being raised and quickly determined that my time was not well-spent at this meeting. Reviewing emails recently confirmed my memory that the meeting was a waste of our time and that, in looking for a polite way to leave and get back to my work, I actually emailed an assistant from the meeting after I had been there for ten or so minutes and wrote Can u pls call me on my cell? Need excuse to get out of meeting. I had not met the attorney before the meeting nor spoken with her since. I thought nothing more of this short meeting until it came to my attention recently. I did not read or recall this email exchange before it was shown to me by my lawyers when reviewing documents for submission to the committees. No part of the meeting I attended included anything about the campaign, there was no follow up to the meeting that I am aware of, I do not recall how many people were there (or their names), and I have no knowledge of any documents being offered or accepted. Finally, after seeing the email, I disclosed this meeting prior to it being reported in the press on a supplement to my security clearance form, even if that was not required as meeting the definitions of the form.
This strategy of exculpating himself at the expense of his fellows shows up also, albeit in a softer way, during his discussion of his transition contacts with Russian actors. In his account of the December 1 meeting with Kislyak and Lt. Gen. Michael Flynn at Trump Tower, he writes that:
[A]fter pleasantries were exchanged, as I had done in many of the meetings I had and would have with foreign officials, I stated our desire for a fresh start in relations. Also, as I had done in other meetings with foreign officials, I asked Ambassador Kislyak if he would identify the best person (whether the ambassador or someone else) with whom to have direct discussions and who had contact with his President. The fact that I was asking about ways to start a dialogue after Election Day should of course be viewed as strong evidence that I was not aware of one that existed before Election Day [emphasis in original].
Note here that in the bolded passage, Kushner is not denying that a relationship existed before Election Day. He is merely contending that there is strong evidence that he was not aware of any relationship that existed before Election Day. He makes a similar move right at the end of the statement, where he declares that I did not collude, nor know of anyone else in the campaign who colluded, with any foreign government. This is Kushners code for saying that he knows he did nothing wrong but cannot and will not vouch for anyone else. A reasonable reader should conclude that these statements might be stronger were Kusher more confident of the behavior of his fellows.
Fourth, Kushners account of the back-channel communications system he proposed to Kislyak during the campaign is more damaging to himself. But again, the fact that hes willing to talk about it suggests that he does not fear criminal charges related to the subject. And, indeed, his explanation is at least a little bit less bizarre than the news stories that suggested he had proposed a secret ongoing line of communications to get around U.S. intelligence. In Kushners telling:
The Ambassador expressed similar sentiments about relations, and then said he especially wanted to address U.S. policy in Syria, and that he wanted to convey information from what he called his generals. He said he wanted to provide information that would help inform the new administration. He said the generals could not easily come to the U.S. to convey this information and he asked if there was a secure line in the transition office to conduct a conversation. General Flynn or I explained that there were no such lines. I believed developing a thoughtful approach on Syria was a very high priority given the ongoing humanitarian crisis, and I asked if they had an existing communications channel at his embassy we could use where they would be comfortable transmitting the information they wanted to relay to General Flynn. The Ambassador said that would not be possible and so we all agreed that we would receive this information after the Inauguration. Nothing else occurred. I did not suggest a secret back channel. I did not suggest an on-going secret form of communication for then or for when the administration took office. I did not raise the possibility of using the embassy or any other Russian facility for any purpose other than this one possible conversation in the transition period. We did not discuss sanctions.
To be clear, Kushner is admitting here a gross impropriety. The right approach in this situation would have been to call the State Department and ask how to handle a sensitive communication from Russian generals who couldnt travel to the United States. Proposing the solution he advanced here could not have been better calculated to raise the hairs on the necks of FBI counterintelligence investigators.
Nor does Kushers statement address the substantive concerns about his being willing to have such talks at all during the transition period. For the relevant period, President Barack Obama was still the commander-in-chief. Holding talks with foreign governments regarding ongoing military engagements without any input from or visibility to the Department of Defense is highly unusual during a transition period. It violates the fundamental rule that the country has one president at a time. Recall that much of the scandal regarding Flynns contacts with Kislyak stemmed from concerns that he might have been working to undermine the sanctions policy of the sitting U.S. president.
If Kushner appreciates in retrospect the impropriety, he does not say so, but he and his lawyers have clearly decided to absorb the criticism he will and should face for it. They also appear to have decided that there was nothing criminal in the impropriety, and thus it is better to put out there so he can take the heat and move on.
Fifth, Kushners explanation of his meeting with a Russian banker close to Putin, by contrast, is actually reassuring. There has been a lot of speculation that this meeting was really about Kushners business. This had a menacing edge because the banker in question, Sergey Gorkov, is known to be close to Putin, so the idea of his lending money to Kushner or doing business with him raised obvious national security concerns much as the payments to Flynn continue to.
But on this point, Kushner claims that Gorkov appeared not in his capacity as a banker but as an emissary from the Russian president and that they did not discuss business matters at all:
My assistant reported that the Ambassador had requested that I meet with a person named Sergey Gorkov who he said was a banker and someone with a direct line to the Russian President who could give insight into how Putin was viewing the new administration and best ways to work together. I agreed to meet Mr. Gorkov because the Ambassador has been so insistent, said he had a direct relationship with the President, and because Mr. Gorkov was only in New York for a couple days. I made room on my schedule for the meeting that occurred the next day, on December 13.
The meeting with Mr. Gorkov lasted twenty to twenty-five minutes. He introduced himself and gave me two gifts one was a piece of art from Nvgorod, the village where my grandparents were from in Belarus, and the other was a bag of dirt from that same village. (Any notion that I tried to conceal this meeting or that I took it thinking it was in my capacity as a businessman is false. In fact, I gave my assistant these gifts to formally register them with the transition office). After that, he told me a little about his bank and made some statements about the Russian economy. He said that he was friendly with President Putin, expressed disappointment with U.S.-Russia relations under President Obama and hopes for a better relationship in the future. As I did at the meeting with Ambassador Kislyak, I expressed the same sentiments I had with other foreign officials I met. There were no specific policies discussed. We had no discussion about the sanctions imposed by the Obama Administration. At no time was there any discussion about my companies, business transactions, real estate projects, loans, banking arrangements or any private business of any kind. At the end of the short meeting, we thanked each other and I went on to other meetings. I did not know or have any contact with Mr. Gorkov before that meeting, and I have had no reason to connect with him since.
Sixth, Kushners account of his security clearance forms describes, at best, a terribly careless process. In his account, he didnt lie on his SF-86 form. An underling submitted it prematurely before it contained not just Russian but any foreign contact information. He then quickly notified the transition office that it needed to be supplemented but took many months to do so completely.
This is remarkably bad management. The Trump administration blames LAffaire Russe on media obsessions and bias, but at least as far as Kushner goes and this by his own account its largely a function of his failure over time to correct his own errors. After all, had each incremental development in the scandal not contradicted his SF-86 (assuming, of course, that his underlying narrative is accurate) the scandal would never have developed as it has. Kushner Met with Russian Ambassador as Disclosed on His Clearance Forms just isnt much of a headline.
The degree of carelessness with which Kushner apparently approached his SF-86 also reveals the perils of nepotism. Of course, mistakes happen. But most people fill out the SF-86 as if their job depends on getting it right. This is because for most people, their jobs do depend on their getting it right. Evidently, that assumption does not hold when youre married to the presidents daughter. Kusher showed the care of an individual confident he would not face any consequences for many errors uncorrected over a long period of time, and indeed, he hasnt.
Finally, theres at least one big area that is not discussed at all in Kushners statement. That is the question of the Trump campaigns and Cambridge Analyticas use of data analytics to target voters and the apparent micro-targeting of voters in key swing states by Russian trolls and bots. This is a matter of ongoing concern to the Senate Intelligence Committee, as Vice Chairman Mark Warner said recently on CBSs Face the Nation:
John Dickerson (host): You- Another area that it appears youre interested in is the data operation of the Trump campaign, which Jared Kushner was overseeing. Explain that. And is that, again, another extrapolation? Or do you have some evidence for that inquiry?
Sen. Mark Warner: Well, we do know that there was a series of Russian trolls, paid individuals, who worked for the Russian services that were trying to interfere and put fake news out. We also know they created whats called bots. In effect, internet robots that actually could interfere as well.
The question we have is: Did they somehow get information from some of the Trump campaign efforts to target that interference? We dont know that for sure. But what we do want to know is Id like to talk to the folks with Cambridge Analytica. Id like to talk to some of the folks from the Trump digital campaign.
We do know as well that Facebook, for example, that denied any responsibility during our election, by the time the French elections took place this past spring, they literally took down 30,000 fake sites. So they have in effect got religion about the need to police fake news.
We also know that Twitter its been reported that literally 8% of the Twitter accounts are fake. So those accounts can be manipulated as well. Id like not to re-litigate 2016. But I think the whole role of these social media platforms, in terms of disseminating fake news, is a policy question that were going to have to address.
Kushner did nothing to reassure on this point for reasons that are unclear.
All in all, Kushner did himself some good with this statement. Without seeing how he held up under examination from skeptical senators, it is hard to know how much good. But narrowing the field of contested facts is critical to isolating the signal from the noise in this sprawling scandal. Kushners statement is one small step in that direction. Putting an end to LAffaire Russe will take many more, much larger steps from many other people including President Donald Trump himself.
Photo credit:YURI GRIPAS/AFP/Getty Images
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Who killed Nicole Brown Simpson and Ron Goldman? – CBS News
Posted: at 11:54 am
O.J. Simpson will serve the remainder of his prison time in protected custody. Officials changed his status for safety reasons after a parole board voted unanimously last week to approve his release.
Simpson could walk out as soon as October 1, after serving nine years for armed robbery in Nevada.
65 Photos
From football fields to Hollywood to courtrooms, see O.J. through the years
In 1995, he was acquitted of the murders of his ex-wife, Nicole Brown Simpson, and her friend, Ron Goldman.
CBS News correspondent Jericka Duncan reports the case is still an open investigation for the Los Angeles Police Department.
A reported 13.5 million people tuned into Simpson's parole hearing last week. That's far fewer than the estimated 150 million people who watched his 1995 acquittal.
Still, it shows the O.J. obsession lives on, as well as the debate over who killed Nicole Brown and Goldman.
"I'd just like to get back to my family and friends and believe it or not, I do have some real friends," Simpson said in court last week.
It's unclear what life outside prison will look like for Simpson. But one thing is certain it'll be a world well acquainted with his past.
"People will always want to be a part of the O.J. case," Loyola Law School professor Laurie Levinson said. "They'll always be looking for evidence that the LAPD missed. That's because it's a mystery that to some has not been solved."
28 Photos
On October 3, 1995 "The Trial of the Century" ended with the acquittal of former football star O.J. Simpson for double-murder - Where are all the...
A string of TV films this past year reignited America's fascination with Simpson's acquittal.
"The word 'open' for an investigation can mean so many things," Levinson said. "It may simply mean that because O.J. was acquitted, and they've never found another murderer, there's no reason to shut it down."
Immediately following the 1995 verdict, Simpson vowed to find justice for his ex-wife in a statement read by his son, Jason: "I will pursue as my primary goal in life, the killer or killer who slaughtered Nicole and Mr. Goldman."
But no additional arrests were made. Simpson went on to release what was called a fictional account of the crime entitled, "If I did it." That book caused former Simpson trial juror Lionel Cryer to have a change of heart.
"The book was the turning point for me to go to the feeling that he probably did kill those people," Cryer said.
Simpson has repeatedly maintained his innocence. Last year, there appeared to be a possible break in the case when a knife was reportedly discovered on the property Simpson once owned. But the tip led nowhere, leaving the case largely where it was in the 1990s.
"O.J. cannot be tried again because of double jeopardy, but he certainly can be questioned," Levinson said. "In fact, he doesn't have Fifth Amendment protection anymore."
The LAPD wouldn't provide any additional details in the case. Legal experts say there are plenty of challenges that go with investigating a crime that is more than 20 years old. Among them, the fact that prosecutors are dealing with decades-old evidence and memories.
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Section 702 Surveillance Authority: No Extension Unless Fourth Amendment Honored – HuffPost
Posted: at 11:53 am
Section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008 (FAA) authorizes the government to seize and search the international communications of American citizens without probable cause or warrants in violation of the Fourth Amendment. Section 702 should not be extended beyond its current expiration date of December 31, 2017 unless Congress cures its constitutional infirmity.
Members of Congress are bound by oath or affirmation to uphold and defend the Constitution period, with no commas, semicolons, or question marks. The 9/11 murderous abominations changed nothing on that score. The Supreme Court admonished in Ex Parte Milligan:
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism
As a cornerstone of our liberty-centered constitutional universe, the Fourth Amendment makes citizen privacy the rule and government encroachments the exception. Warrants issued by neutral magistrates based upon probable cause with particularized evidence that crime is afoot are ordinarily required to justify government invasions of privacy. In the narrow circumstances that excuse warrants, a government search or seizure must still satisfy a standard of reasonableness. Justice Louis D. Brandeis elaborated in Olmstead v. United States (dissenting):
The makers of our Constitutionsought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.
The American Revolution was ignited by opposition to hated British Writs of Assistance or general search warrants that empowered every petty colonial official to rummage through homes or businesses in search of smuggled goods. An address by William Pitt the Elder to the British Parliament thundered throughout the colonies, and epitomized the spirit of the Amendment:
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.
Speaking through Justice Antonin Scalia, the Supreme Court decreed in Kyllo v. United States that the Fourth Amendment today should be interpreted should be adapted to secure that degree of privacy against government that existed when the Fourth Amendment was adopted notwithstanding staggering advances in technology. At that time, government encroachments on privacy were minimal. Federal criminal laws were few. Investigations were minimal. And no intelligence community existed to snoop on Americans to gather foreign intelligence.
Section 702 authorizes invasions of citizen privacy orders of magnitude beyond the degree of privacy that existed when the Fourth Amendment was ratified in 1791. It empowers the National Security Agency singly or in conjunction with sister intelligence agencies to intercept, store, and search the international communications of U.S. persons with a targeted communicant reasonably thought to be located outside the United States and in possession of foreign intelligence information.
The Foreign Intelligence Surveillance Court (FISC) does not review each discrete NSA interception to insure the target is a foreigner outside the United States or that the communications intercepted relate to foreign intelligence, including international terrorism. Instead, the FISC simply approves annually surveillance procedures that the Attorney General and Director of National Intelligence certify are calculated to target only foreigners located abroad for foreign intelligence purposes. The latter is broadly defined to include any information that relates to the foreign affairs of the United States.
The government has employed section 702 to collect more than 250 million Internet transactions annually as of 2011, which includes communications between two foreigners as well as those involving a U.S. person. According to an affidavit of Bill Binney, former high level NSA official and perhaps the foremost expert in the world on electronic surveillance:
When I was at the NSA, each analyst was theoretically required to review 40,000 to 50,000 questionable records each day. The analyst gets overwhelmed, and the actual known targets -- from the metadata analysis -- get ignoredThe NSA cannot identify future terrorism because 99.9999% of what it collects and analyzes is foreseeably irrelevant.
The intelligence community is clueless as to how many of the 250 million annual Internet warrantless interceptions under section 702 involve the international communications of U.S. persons. But the Fourth Amendment vice does not cease after the seizures. The communications are typically stored for at least five years and searched without warrants or probable cause for either to discover foreign intelligence or evidence of crimea second Fourth Amendment transgression.
Supreme Court decisions establish that the government must obtain a warrant that satisfies the Fourth Amendment to intercept or search the contents of communications of U.S. persons for either criminal justice or domestic security purposes. The High Court has not approved an exception when the communications are seized and searched pursuant to section 702 for law enforcement or foreign intelligence purposes.
Title III wiretap orders under the Omnibus Crime Control Act is vastly less intrusive on privacy. They require a warrant that satisfies the Fourth Amendment by specifying the phone line to be tapped, the conversations to be seized, and the crime under investigation. Moreover, reasonable measures must be taken by the government to avoid recording innocent conversations. And the targets of the warrants and their communicants are typically notified of the wiretap within 90 days of its termination to enable them to challenge its legality.
In contrast, surveillance under section 702 does not require a warrant. It does not require probable cause. It does not require suspicion of criminality. It is not confined to communications involving only foreign powers or their agents. There is no mechanism for monitoring the seizure of the communications to exclude those portions irrelevant to foreign intelligence. And the communicants whose conversations are intercepted, stored, and searched are not notified of the invasions of privacy unless they are lead to a criminal prosecution. In the vast majority of cases, U.S. persons will never learn that the privacy of their international communications had been compromised.
Even if no warrant were required under the Fourth Amendment for the seizure, storage, and search of the international communications of U.S. persons under section 702, it would still fail the reasonableness test. While the government interest in national security is of the highest order, section 702 sweeps far more broadly to include anything relevant to the foreign policy of the United States, for example, the emission of greenhouse gases or free trade agreements. It also authorizes searches of citizen communications for crimes unrelated to national security and not based on probable cause. And as Bill Binneys affidavit underscored, the stupendous volume of communications capture by section 702 cripples the NSAs ability to separate the wheat from the chaff.
Proponents of extending section 702 argue that government officials have refrained from using its alarming powers to oppress U.S. persons. But as Thomas Jefferson advised, In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. Moreover, Justice Brandeis correctly taught that, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.
In sum, section 702 should not be extended unless it requires a warrant to seize or search international communications of U.S. persons based upon probable cause to believe they contain evidence of international terrorism and with particularity describe the means of seizing or searching the communications. Further, U.S. persons should be notified within 90 days of any interception or search.
The Fourth Amendment is too important to be left to the intelligence community.
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Supreme Court: Vehicle Impoundment Did Not Violate Fourth Amendment – WisBar
Posted: at 11:53 am
Supreme Court: Vehicle Impoundment Did Not Violate Fourth Amendment WisBar The majority concluded that police possessed a bona fide community caretaker justification for impounding the car and thus were not required to obtain a warrant despite the constitutional Fourth Amendment right against unreasonable seizures. |
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9th Circuit Revives Bison Observer’s Civil Rights Claims – Courthouse News Service
Posted: at 11:53 am
A volunteer with the Buffalo Field Campaign was viewing a bison-hazing operation in 2012 when he was cited for obstructing the hazing. The Ninth Circuit on Monday ordered his First Amendment case back to federal court to be heard by a jury.
WEST YELLOWSTONE, Mont. (CN) Anthony Patrick Reed may one day get his day in court on behalf of Yellowstone National Parks wild bison, after the Ninth Circuit ruled Monday that a jury should have determined whether the volunteer for the Buffalo Field Campaign had his First and Fourth Amendment rights violated during a 2012 federal government hazing of bison back into Yellowstone National Park.
In July 2012, Reed tried to document the federal governments hazing of wild bison back into Yellowstone National Park. After a Gallatin County sheriffs deputy told Reed to move his car out of the line of bison, Reed complied and moved to a nearby gravel road. Deputy Douglas Lieurance threatened to arrest Reed, and ultimately issued Reed a misdemeanor citation for obstructing the herding operation.
Reed sued in Montana federal court in 2013, naming Lieurance, Gallatin County sheriff Brian Gootkin and Gallatin County as defendants.Reed argued Lieurances actions violated his First and Fourth Amendment rights and related Montana constitutional rights, and that Gallatin County Sheriff Brian Gootkin, the Sheriffs Office, and Gallatin County have a policy or practice of providing constitutionally inadequate training to law enforcement officers.
Rebecca Smith, a civil-rights attorney who represented Reed, said Mondays Ninth Circuit ruling affirms constitutional rights.
It was a case where volunteers with a nonprofit group were trying to document and observe a government operation on public land from the sidelines without actually protesting or interfering with it, she said. That was the key take-away in this case a reaffirmation that peacefully observing and documenting government conduct in a public place is protected conduct under the First Amendment and Montana citizens cannot be arrested for obstruction for exercising this First Amendment right.
Bison can carry the brucellosis virus, a disease that is harmful to cattle, and in Montana bison are hazed back into Yellowstone National Park to protect that states cattle. Toprevent collisions between cars and bison during the hazing operations, county law enforcement had set up a blockade along Montana Highway 191. According to court documents,Reed had initially parked his vehicle just east of Highway 191 in order to get a clear view of the buffalo as they crossed the highway.
While Reed was parked in that spot, a Gallatin County law enforcement officer approached the vehicle and advised Reed he was parked in the planned herding route and needed to move his vehicle. Reed complied but was cited.
A federal judge dismissed some of Reeds claims on summary judgment and granted judgment as a matter of law for defendants on the remaining claims after Reed presentedevidence at trial. Reed appealed those decisions, as well as the exclusion of Reeds expert witness and denial of his motion to amend the complaint. Defendants cross-appealed the judges denial of attorney fees.
In a ruling issued Monday, the Ninth Circuit panel said it could not conclude that as a matter of law that a reasonably prudent officer in defendant Deputy Lieurances situation would have had probable cause to believe that Reed obstructed the bison herding operation. Instead, the circuit judges determined the trial court improperly invaded the province of the jury by resolving factual disputes material to the question of probable cause.
The panel also found defendants were not entitled to summary judgment on Reeds unlawful seizure claim.
Additionally, the panel reversed the trial courts sua sponte dismissal of Reeds failure-to-train claim on the grounds that the judge did not first provide Reed with notice and an opportunity to respond before dismissing the claim. The panel also sided with Reed by finding the trial court abused its discretion by excluding the testimony of Reeds police-practices expert as it related to the failure-to-train claim.
The panel held the lower court committed reversible error in granting judgment as a matter of law on Reeds First Amendment and related state claims without first providing Reed notice of the grounds for the decision. Addressing the merits of the First Amendment claim, the panel held thatin ruling that defendants were entitled to judgment as a matter of law, the lower court improperly resolved numerous factual disputes reserved for the jury.
The panel determined that it lacked jurisdiction to review the trial courts denial without prejudice of defendants motion for attorney fees and therefore dismissed defendants cross-appeal from that order.
As for the grant of summary judgment for defendants on Reeds claim of unreasonable seizure in violation of the Fourth Amendment and its corollary in the Montana Constitution, the panel said probable cause likely did not exist for the officer to cite Reed.
The panel said probable cause exists when the facts and circumstances within an officers knowledge are sufficient for a reasonably prudent person to believe that the suspect has committed a crime.The analysis involves both facts and law. The facts are those that were known to the officer at the time of the arrest. The law is the criminal statute to which those facts apply.
Montanas right to privacy laws guarantees far greater protection than the U.S. Constitutions Fourth Amendment, the panel said.
Under Montana law, if an officer makes an arrest without probable cause, he or she may be entitled to qualified immunity as long as it is reasonably arguable that there was probable cause for the arrest.
The trial court ruled Lieurance had probable cause to arrest and cite Reed for the obstruction.But in City of Kalispell v. Cameron, the Montana Supreme Court reversed a conviction for obstruction when the defendant had merely failed to follow an officers instructions. Thecourt in that case explained that an individual obstructing a peace officer must engage in conduct under circumstances that make him or heraware that it is highly probable that such conduct will impede the performance of a peace officers lawful duty.
Portions of Reeds case that remain have been remanded to federal court, and the Ninth Circuit panel ordered the assignment of a new judge.
Rebecca Kay Smith of Missoula, Montana, represented plaintiff Reed. Steven Robert Milch of Billings, Montana, argued the case for defendants.
Circuit Judges Alex Kozinski and William Fletcher joined the opinion by Chief District Judge John R. Tunheim, sitting by designation from the District of Minnesota.
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9th Circuit Revives Bison Observer's Civil Rights Claims - Courthouse News Service
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No, Gretchen Carlson didn’t say 2nd Amendment written before guns invented – PolitiFact (blog)
Posted: at 11:53 am
A recent questionable claim we fact-checked stemmed from a discussion about whether to ban assault weapons.
Clickbait websites love to make up fake quotes for celebrities and controversial politicians, hoping to mislead readers into clicking into their content and seeing their ads.
For instance, we recently fact-checked a post accusing former Rep. Michele Bachmann, R-Minn., of saying something she didnt say; we rated it Pants on Fire.
Now, as part of Facebooks efforts to fight fake news, we learned that users had flagged as questionable a post from someone Bachmann used to babysit for -- former Fox News host Gretchen Carlson. (Yes, the babysitting part is actually true.)
The claim about Carlson appeared first on a site called therightists.com. It was headlined, "Gretchen Carlson: The 2nd Amendment Was Written Before Guns Were Invented. "
Within days, the item was picked up and reprinted essentially verbatim on other websites. One version got 31,400 shares through July 24.
The accompanying article uses as its launching-off point something that Carlson did actually do -- making an on-air break with conservative orthodoxy by saying, in the wake of the Orlando nightclub mass shooting in 2016, that the assault-weapons ban should be reinstated.
"Do we need AR-15s to hunt and kill deer? Do we need them to protect our families?" she asked on air. "Cant we hold true the sanctity of the Second Amendment while still having common sense?"
These comments drew opposition from gun-rights supporters. Its at this point that the article veers off into fabrication.
The article reads, "Interestingly, when confronted by Second Amendment supporters on Twitter, Carlson doubled down on her pro-ban stance, claiming that the fact that youre even using the Second Amendment as an argument against banning assault weapons shows me youre ignorant. Dont you know the 2nd Amendment was written before guns were even invented? "
This would be a ridiculous claim if shed actually said it.
As schoolchildren are taught, muskets were used in the American Revolution. (Heres an example from the collection of the Museum of the American Revolution.) And the revolution occurred more than a decade before the 1789 drafting and ratification of the Bill of Rights, which includes the Second Amendment. ("A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.")
Indeed, the history of firearms goes back even further than that -- to the 1300s, more than four centuries before the Second Amendment was written.
The first hint that this may be bogus appears elsewhere on therightists.com website. On the sites "About Us" page, a grammatically challenged warning explains that therightists.com "is independent News platform That allow People and independent Journalist to bring the news directly to the readers. Readers come to us as a source of independent news that not effected from the big channels. This is HYBRID site of news and satire. part of our stories already happens, part, not yet. NOT all of our stories are true!"
Of course, this warning isnt noted on the actual page the Carlson story appears on.
We also couldnt find any credible news source reporting Carlsons words as cited in therightists.com article.
Finally, we checked with Carlsons office. In a statement, her office confirmed that the article was "total B.S."
Bottom line: Carlson did not say, "The 2nd Amendment Was Written Before Guns Were Invented." The accusation that she did rates as Pants on Fire.
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2017-07-24 19:53:16 UTC
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Pants on Fire
Say Gretchen Carlson said, "The 2nd Amendment Was Written Before Guns Were Invented."
various websites
Thursday, June 15, 2017
2017-06-15
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No, Gretchen Carlson didn't say 2nd Amendment written before guns invented - PolitiFact (blog)
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Appeals court blocks enforcement of District’s strict concealed-carry law – Washington Post
Posted: at 11:53 am
A federal appeals court on Tuesday blocked the District from enforcing strict limits the city has in place on carrying concealed firearms on the streets of the nations capital.
In a 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit said the Districts system that requires a good reason to obtain a permit is so restrictive that it is essentially an outright ban in violation of the Second Amendment.
The good-reason law is necessarily a total ban on most D.C. residents right to carry a gun in the face of ordinary self-defense needs, wrote Judge Thomas B. Griffith, who was joined by Judge Stephen F. Williams.
Bans on the ability of most citizens to exercise an enumerated right would have to flunk any judicial test.
The courts rejection of the Districts gun-control measure is the latest legal blow for city officials who have been forced to rewrite regulations ever since the Supreme Court in 2008 used a D.C. case to declare a Second Amendment right to gun ownership.
In her dissent on Tuesday, Judge Karen L. Henderson said the Districts regulation passes muster because of the citys unique security challenges as the nations capital and because it does not affect the right to keep a firearm at home.
The ruling from a three-judge panel gives city officials 30 days to decide whether to appeal for review by a full complement of D.C. Circuit judges. If the court does not agree to revisit the case sitting as an en banc panel, the order would take effect seven days later.
[Appeals court questions D.C.s restrictions on concealed carry of firearms]
Residents who want a permit to carry a concealed firearm in D.C. must now show that they have good reason to fear injury or a proper reason, such as transporting valuables. The Districts concealed-carry rules are similar to those in New Jersey, New York, Maryland and in some jurisdictions in California.
The Supreme Court has turned down several opportunities, including in June, to decide whether such regulations are constitutional.
At oral arguments in September, the D.C. Circuit was reviewing two challenges to the citys law that resulted in conflicting opinions and was asked to decide whether the citys permitting restrictions could remain in place while the broader challenge to the law is litigated.
District officials told the court the restrictions are necessary in a city that struggles with gun violence and faces heightened security challenges because of the number of federal government buildings and public officials.
Gun rights groups and Republican attorneys general from more than a dozen states told the court that the Districts system is unconstitutional because the typical law-abiding citizen could not obtain a permit.
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ACLU claims Gov. LePage is violating First Amendment – WGME
Posted: at 11:53 am
The ACLU of Maine claims Governor Paul LePage is violating the First Amendment with some of his actions on social media. (WGME)
AUGUSTA (WGME) - The ACLU of Maine claims Governor Paul LePage is violating the First Amendment with some of his actions on social media.
The issue is the governor's official Facebook page.
It has posts about the governor and first lady, links to videos of the governor giving speeches, everything you'd expect from the governor on Facebook.
But, the governor's office says they have nothing to do with that Facebook account, which is verified by Facebook.
The page itself says it's run by volunteers who don't work for the governor, or state government at all.
The ACLU says the Facebook page has been deleting comments and blocking people who disagree with the governor's opinion.
They believe those actions are in violation of the First Amendment, which protects freedom of speech.
Monday, the ACLU of Maine sent the governor a letter, asking him to stop what they call censorship on his Facebook page.
They say the governor shouldn't get to decide who speaks and who doesn't, but there is often some confusion because social media is a relatively new forum for public speech.
They believe there are court cases that set a precedent.
The ACLU has given the governor two weeks to reply to their letter, they say if they dont respond they may take him to court.
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There’s an Effort Around the Country to Curtail People’s Fundamental First Amendment Rights – Truth-Out
Posted: at 11:53 am
Janine Jackson interviewed Mara Verheyden-Hilliard about the right to protest for the July 14, 2017, episode of CounterSpin. This is a lightly edited transcript.
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Janine Jackson: A recent popular op-ed called on those engaged in resisting the Trump administration to stop counting so much on lawyers. "The fate of the nation cannot be left in the hands of the courts," the piece, written by a lawyer, argued, and that's solid advice. Popular action is what historically has moved the country forward.
But when people do go into the street and are arrested, what then? When they put their bodies on the line and the state creates a new law to criminalize that resistance, what then? Like it or not, the law is still one of the bigger tools in the box for Americans. So what does and doesn't it do for us in the present moment?
Mara Verheyden-Hilliard is an activist and attorney. She's co-founder and executive director of the Partnership for Civil Justice Fund. She joins us now by phone from Washington, DC. Welcome back to CounterSpin, Mara Verheyden-Hilliard.
Mara Verheyden-Hilliard: Thank you for having me.
Well, I'd like to start, if we could, with an update on the J-20, those arrested in inauguration protests in DC, who are facing what I've heard called unprecedented charges for demonstrators, felony charges that could lead to 75, 80 years in prison. One of those still facing charges is journalist Aaron Cant, now at the Santa Fe Reporter, who has written for FAIR. We talked about the case in January. What should we know now about this ongoing story?
This case is really of extraordinary proportions, when you look at what the government is doing to people who are engaged in protests on the first day that Trump took office. And it's really in its own context significant, too, because of the major shift in policing in Washington, DC, which we believe is intended to send a signal.
What's happened now is more than 200 people were swept up in a dragnet arrest by the police, and this occurred after the police had followed the demonstration for, by their own account, approximately half an hour, while there were some people who broke windows, only a handful of people. And rather than going in and arresting the people for whom they had probable cause to arrest, the police waited that arbitrary time, tracked and detained 200 people. And so they swept up demonstrators, passers-by, journalists, anyone who's in proximity, anyone who is chanting and protesting.
And then they undertook this mass prosecution with the United States Attorney's Office here in the District of Columbia, in which people are being threatened with, as you've mentioned, jail time that is decades and decades long, really a lifetime of jail time, with these felony charges. They are charging people en masse with crimes that may have happened, in terms of property damage, but charging everyone with crimes without particularized probable cause, without being able to point to a person and say, you committed this act and so we're charging you for this act. They're charging everyone in the vicinity for being in proximity.
This is extremely dangerous; it sets the stage that for any demonstration, if anyone commits a criminal act, an act of property damage, whether that be a protestor or, frankly, a police agent provocateur, the police can now use this as license, or they wish to, to sweep up everyone else around them.
This is what we talked about before. It's not a crime, now, is it, to be in proximity to other people who break the law in conjunction with First Amendment activities?
Of course it's not, and it cannot be. And the First Amendment has always stood for that, in fact, you cannot criminalize a person for the acts of another. And particularly in the context of the First Amendment, when it's an issue where the connection is that there may be a sympathy of political views, one cannot do that. There are cases dating back, NAACP v. Claiborne Hardware and others, the courts said you have to act with precision. You cannot say that just because people have a similar point of view, or may have similar political goals, that those who carry out illegal acts or acts of violence in pursuit of those goals, that those acts can be attributed to the others who do not.
Right. These charges, at the level they're at, it feels new, but we know that the effort to repress First Amendment expression is not new. The Supreme Court last month rejected a First Amendment case that dates from years back, Garcia v. Bloomberg. Can you tell us about that and how it relates?
The Garcia v. Bloomberg case comes from the Occupy demonstration of 2011, when 700 people were peacefully marching, compliant with police orders, there was no violence, and as people marched, the police escorted the march. The police themselves closed the Brooklyn Bridge roadway to vehicular traffic. The police and police commanders themselves opened up the roadway to pedestrian traffic. It is the police and police commanders who led the demonstrators onto the roadway of the Brooklyn Bridge, and once those demonstrators had flowed and followed behind the lead of the police, the police stopped the march, trapped them from behind, mass-arrested 700 people.
When we litigated this case, we won at the District Court level, we won at the Second Circuit, in fact. And then Mayor de Blasio, who had taken office, frankly, running on an Occupy ticket, had the court reevaluate the ruling, and the court, in an extraordinary measure, reversed itself. And we took this case up to the Supreme Court, and the Supreme Court just last month determined that they would not hear it.
Obviously, lots of folks are taking their lead from this, and kind of joining on this bandwagon. We have a spate of anti-protest legislation around the country, even UN experts are issuing alarmed statements now. Some 20 states have passed or tried to pass laws allowing protesters to be charged with conspiracy, increasing penalties for blocking streets, even protecting drivers who run protesters over, banning masks and hoodies. I mean, is anyone really confused that the intent of these rules is to quash dissent, and doesn't that thinly veiled intent matter?
It's clear that there is an effort around the country to try, through legal means -- although we would consider illegal means -- to curtail people's fundamental First Amendment rights to gather together in the streets, to be able to speak out in unified action.
I do think, as much as we're seeing these kinds of restrictions imposed and these rulings, that at the same time it can obviously have a chilling effect on people, the reality is that people do always come out and people will continue to come out. And while this may be intended to have a chilling effect, it is really crucial that people stand up and speak out for what they believe in. And I do think the reason that we're seeing these is because there is a growing recognition that there really is this fire of people, these embers burning, where we keep seeing people come up and demonstrating for what they believe in. We're seeing so many more people entering political life, even since the election of Donald Trump. People are taking to the streets, protesting, who never protested before.
So while we're faced with what is I think overt repression, both in terms of these felony prosecutions, these state laws, these court rulings, we also are faced with the fact that there are millions of people who are engaging in political protest and political organizing who have never done so before, and that's a force that really can't be stopped.
We've been speaking with Mara Verheyden-Hilliard of the Partnership for Civil Justice Fund. Find them online at JusticeOnline.org. Mara Verheyden-Hilliard, thank you very much for joining us today on CounterSpin.
Thank you for having me.
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July 25 Letters: First Amendment – Daily Press
Posted: at 11:53 am
Wrong-headed
The Daily Press Editorial Board's July 23 stance, "Foundation of our freedom," is one of the most vividly foolish analyses of recent times. The thesis that President Donald Trump's criticism of today's press and media is an assault on the constitutional rights of a "foundation of our freedom," the free press.
In fact, President Trump has engaged in no such attack against the First Amendment right of a free press. His criticisms of the press are directed at the content of what many of today's journalists and publishers print, not at the constitutional rights of journalists and institutions to publish what they choose.
If his criticisms of the press threaten the very institution of the free press, then the fusillade of criticism by the press against President Trump threatens the institution of the presidency.
I doubt that any news agency would admit to that outrage.
Randolph Scott
Newport News
Credibility matters
The July 23 editorial, "Foundation of our freedom," taking to task those who undermine one of this country's basic freedoms, was factual, well-stated and critical for citizens to read at this time in our country's continuing efforts to be credible.
By attacking our First Amendment rights, our efforts to remain a beacon to others is threatened. The First Amendment, whether we agree or not agree, allows us to express ourselves through the written word, protests, bumper stickers, yard signs, etc.
Fake news is not included in the First Amendment or anywhere else in the Constitution.
Jo-Ann L. Mahony
Hampton
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