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Daily Archives: February 25, 2021
Europe kicks off bid to find a route to better gig work – TechCrunch
Posted: February 25, 2021 at 1:48 am
The European Union has kicked off the first stage of a consultation process involving gig platforms and workers.
Regional lawmakers have said they want to improve working conditions for people who provide labor via platforms which EU digital policy chief, Margrethe Vestager, accepted in a speech today can be poor and precarious. Yet she also made it clear the Commissions agenda vis-a-vis the issue of gig work is to find some kind of balance between (poor) platform work and, er, good and stable (rights protected) employment.
Theres no detail yet on how exactly regional lawmakers plan to square the circle of giving gig platforms a continued pass on not providing good/stable work given that their sustainability as businesses (still with only theoretical profits, in many cases) is chain-linked to not shelling out for the full suite of employment rights for the thousands of people they rely upon to be engaged in the sweating toil of delivering their services off the corporate payroll.
But that, presumably, is what the Commissions consultation process is aimed at figuring out. Baked into the first stage of the process is getting the two sides together to try to hash out what better platform work looks like.
The platform economy is here to stay new technologies, new sources of knowledge, new forms of work will shape the world in the years ahead, said Vestager, segueing into a red-line that there must be no reduction in the rights or the social safety net for platform workers (NB: The word should is doing rather a lot of heavy lifting here): And for all of our work on the digital economy, these new opportunities must not come with different rights. Online just as offline, all people should be protected and allowed to work safely and with dignity.
The key issue in our consultations is to find a balance between making the most of the opportunities of the platform economy and ensuring that the social rights of people working in it are the same as in the traditional economy, she also said, adding: It is also a matter of a fair competition and level playing field between platforms and traditional companies that have higher labour costs because they are subject to traditional labour laws.
The Commissions two-stage consultation process on gig work starts with a consultation of social partners on the need and direction of possible EU action to improve the working conditions in platform work, as it puts it.
This will be open for at least six weeks. It will involve platforms talking with workers (and/or their representatives) to try to come up with agreement on what better looks like in the context of platform working conditions, either to steer the direction of any Commission initiative. Or else to kick the legislative can down the road on said initiative if the two sides come up with a way forward they can agree to implement themselves.
The second phase of the consultation assuming the social partners dont agree among themselves is planned to take place before the summer and will focus on the content of the initiative, per Vestager. (Aka: what exactly the EU ends up proposing to square the circle that must be squared.)
The competition component of the gig work conundrum whereby theres also the employer fairness dynamic to consider, given platforms arent playing by the same rules as traditional employers so are potentially undercutting rivals who are offering those good and stable jobs explains why the Commission is launching a competition-focused parallel consultation alongside the social stakeholder chats.
We will soon start a public consultation on this initiative that has another legal base since it is about competition law and not social policies. This is the reason why we consult differently on the two initiatives, noted Vestager.
She said this will aim to ensure that EU competition rules do not stand in the way of collective bargaining for those who need it suggesting the Commission is hoping that collective bargaining will form some part of the solution to achieving the sought for (precarious) balance of better platform work.
Albeit, a cynical person might predict the end goal of all this solicitation of views will probably be some kind of fudge that offers the perception of a plug for the platform rights gap without actually disrupting the platform economy which Vestager has sworn is here to say.
Uber for one has scented opportunity in the Commissions talk of improving legal clarity for platforms.
The ride-hailing giant put out a white paper last week in which it lobbied lawmakers to deregulate platform work pushing for a Prop-22 style outcome in Europe, having succeeded in getting a carve out from tightened employment laws in California.
Expect other platforms to follow with similarly self-serving suggestions aimed at encouraging Europes social contract to be retooled at the points where it intersects with their business models. (Last week Uber was accused of intentionally stalling on improving conditions for workers in favor of lobbying for deregulation, for example.)
The start of the Commissions gig work consultation comes hard on heels of a landmark ruling by the UKs Supreme Court (also last week) which dismissed Ubers final appeal against a long running employment tribunal.
The judges cemented the view that the group of drivers who sued Uber had indeed been erroneously classified as self employed, making Uber liable to pay compensation for the (workers) rights it should have been paying for all along.
So if the EU ends up offering a lower level of employment rights to platform workers vis-a-vis the (post-brexit) UK that would surely make for some uncomfortable faces in Brussels.
While it may be unrealistic to talk about striking a balance in the context of business models that are inherently imbalanced, given theyre based on dodging existing employment regulations and disrupting the usual social playbook for profit, the Commission seems to think that a consultation process and a network of overlapping pan-EU regulations is the way to rein in the worst excesses of the gig economy/big tech more generally.
In a press release about the consultation, it notes that platform work is developing rapidly across various business sectors in the region. So theres a heavy tone of we cant stand in the way of tech-fuelled progress.
It can offer increased flexibility, job opportunities and additional revenue, including for people who might find it more difficult to enter the traditional labour market, the Commission writes, starting with some of the perceived positives that are, presumably, feeding its desire for a balanced outcome.
However, certain types of platform work are also associated with precarious working conditions, reflected in the lack of transparency and predictability of contractual arrangements, health and safety challenges, and insufficient access to social protection. Additional challenges related to platform work include its cross-border dimension and the issue of algorithmic management.
It also notes the role of the coronavirus pandemic in both accelerating uptake of platform work and increasing societal concern about the vulnerable situation of gig workers who may have to choose between earning money and risking their health (and the health of other people) because they cant afford to stop working (if they dont have full access to sick pay).
The Commission reports that around 11% of the EU workforce (some 24 million people) say they have already provided services through a platform.
Vestager said most of these people only have platform work as a secondary or a marginal source of income but added that some three million people do it as a main job.
And just imagine the cost to gig platforms if those three million people had to be put on the payroll in Europe
In the bit of her speech leading up to her conclusion that platform work is here to stay, Vestager quoted a recent study she said had indicated that 35% to 55% of consumers say they intend to continue to ask for home delivery more in the future.
We see that the platform economy is growing rapidly, she added. Worldwide, the online labour platform market has grown by 30% over a period of 2 years. This growth is expected to continue and the number of people working through platforms is expected to become more significant in the years ahead.
European values are at the heart of our work to shape Europes digital future, she also went on to say, taking her cue to point to the smorgasbord of digital regulations in the EUs pipeline and tacitly illustrating the concept of an overlapping regulatory net which the Commission wants to straightjacket platform giants into more socially acceptable and fair behavior (though EU regulations havent done that yet).
Our proposals from December for a Digital Services Act and a Digital Markets Act are meant to protect us as consumers if technology poses a risk to fundamental rights, she said. In April we will follow up on our white paper on Artificial Intelligence from last year and our upcoming proposal will also have the aim to protect us as citizens. The fairness aspect and the integration of European values will also be a driver for our upcoming proposal on a digital tax that we plan to present before summer.
All these initiatives are part of our ambition to balance the great potential that the digital transformation holds for our societies and economies.
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Job losses in pandemic due to performance issues, say nearly half of Britons – The Guardian
Posted: at 1:48 am
Nearly half of people believe those who lost their job during the pandemic were likely to have been underperforming, a survey has found.
In findings that will raise fears over inequalities in Britain, a study of attitudes by researchers at Kings College London showed a significant minority thought a widening post-Covid income gap between white people and BAME groups would not be a problem.
This analysis throws up the complexity of peoples view about inequalities, said Paul Johnson, director of the Institute for Fiscal Studies, which will use the research for its five-year review of inequalities. The British public is clearly concerned about some inequalities, but also sets great store by individual responsibility.
People care more about differences between geographical areas than races, genders and generations, found researchers in the study entitled Unequal Britain.
The findings may suggest widespread support for the levelling up agenda espoused by the government as the country attempts to rebound after Covid, the authors said. But it will also raise questions about the popularity of anti-inequality policies focusing on ethnic minorities and women.
Unemployment rose to 1.74 million people this week, its highest level in five years and business shutdowns are disproportionately affecting women and ethnic minorities.
In one of the starkest findings, one in eight Britons (13%) said they think black people are more likely to be unemployed and have lower incomes because they lack motivation or willpower.
This attitude was held by more than one in five of the Conservative voters polled, compared with less than one in 20 Labour supporters. Overall, 47% said those inequalities are because of discrimination but strikingly racist views remain, with 4% of respondents saying inequality was because most black people have less in-born ability to learn. The researchers discovered this by asking questions rarely posed in the UK, but often included in US social surveys.
The authors said the overall findings showed meritocratic and individualistic tendencies are likely to temper calls for action on inequality.
There is a strong belief in meritocracy in Britain that hard work and ambition remain key drivers of success, and this colours views, even during a pandemic, the report said. Despite the exceptional circumstances [of Covid], Britons are more likely to think that job losses caused by the crisis are the result of personal failure than chance.
The view that individual performance was important in determining whether workers were made unemployed during the Covid crisis was held by 47% of people. Only 31% put it down to luck. Study author Bobby Duffy, professor of social policy at KCL, said this was surprising. By 57% to 39%, Conservative voters are much more likely than Labour voters to attribute these job losses to poor performance at work.
Of the more than 2,000 people polled, the largest number thought gulfs between geographical areas of more and less deprivation were the most serious form of inequality faced by the nation, followed by income and wealth. This view was held by Labour and Conservative supporters alike one of the only issues in the study that united the political spectrum.
Duffy said this rare moment of unity in attitudes toward inequalities points to [support for] policies that are not just about moving the odd government department [out of London] or listening more to the north it is the sense of supporting local community initiatives. It is something that has been underemphasised since the late 2000s.
Less than half of people polled put racial differences in their top three or four most serious types of inequalities and less than a third included gender inequality.
Amid evidence of adverse labour market consequences for women in Britain resulting from the crisis, the study found that a third of people would not consider it a problem if inequality between genders got worse because of the crisis.
These findings underline all too clearly the increased importance of place in debates about politics in general and inequality in particular, said Prof Anand Menon, director of the UK in a Changing Europe, which collaborated in the study. The government should view this emergent consensus as providing a window of opportunity to act on the ambitious promises it has made to level up the country.
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Why the Artistic Directors of the Gwangju Biennial Are Quarantining for Weeks (and Working Overtime) to Mount a Show Very Few People Will See – artnet…
Posted: at 1:48 am
Angelo Plessas was doing plank pose in the narrow space between the foot of his bed and the hotel wall. Several of his quilted sculptures were spread out beneath him to soften the hard floor. Hotel staff dropped off warm meals several times a day.
It is sort of like a residency, the Greek artist told me over a WhatsApp call on day seven of his 14-day quarantine in an 18-square-meter room in Seoul. (The artist had been uploading the footage to Instagram as a kind of performative ritual.) Following his stay, Plessas planned to head to a sacred mountain to meet the South Korean shaman Dodam, with whom he is collaborating for the 13th Gwangju Biennial.
Production still from John Gerrard Mirror Pavilion: Leaf Work (Derrigimlagh) (2019). Courtesy of the artist.
Its not exactly how Plessas imagined he would return to South Korea after an initial trip there in late 2019. Back then, a large group of international artists, shepherded by artistic directors Defne Ayas and Natasha Ginwala, went on a series of site visits ahead of the esteemed exhibitionAsias largest and oldest. At the time, the virus was perhaps already somewhere in the world, but it was nowhere near their imaginations.
Since then, Gwangjus organizers have had to delay, adapt, rethink, and rework to accommodate a constantly shifting public-health situation. After two postponements, the biennial is preparing, finally, to open on April 1. (South Korea has been praised for its response to the pandemic; its most recent seven-day case count came in at under 500.)
Yet the opening will look very different from the buzzy biennials of previous years. Of the 69 participating artists (who are responsible for 41 new commissions), only four individualsincluding a two-person collectivewere able to travel to South Korea to install their works in situ.
Natasha Ginwala (R) and Defne Ayas (L). Photo: Victoria Tomaschko.
The challenges posed by the lockdown era have rushed the biennial circuit into a future that many were already discussing. Had the daring, female-led show in South Korea intended to be a spectacle reminiscent of biennials past, it likely would have been rendered moot by the pandemic.
But neither Ayas nor Ginwala wanted to continue with this machine of biennials, as Ayas put it. Instead, they sought to offer an antidote to it, by exploring spirituality, resistance, and community healing. The events of 2020 gave those themes a new sense of urgency.
We were ready to debunk the biennial format and stretch it, but we did not know we would be stretching it this much, Ayas said with a laugh from her own room a few floors above Plessas. The cracks we were looking into just got deeper.
Video still from Theo Eshetus, Ghostdance (2020). Courtesy of the artist.
The biennial, titled Minds Rising, Spirits Tuning, comes at a moment when loss, grief, and separation are globally felt. And so the duo has gravitated toward two seemingly disparate themes: shamanism, a dominant form of spirituality in South Korea, and technology. A form of cosmic gravitas pulses through the exhibitions preamble of essays, talks, and online programming.
The surreality of the enterprise was clear from conversations with a number of participants who traveled to Gwangju for the opening. All were performance artists whose works could not be presented remotely. Plessas, who came from Athens, shared his hotel wall with Canadian conceptual artist Judy Radul.They would see each other for brief moments when they picked up their food in the hall.
The shows co-curator Defne Ayas, meanwhile, was in her room on video calls with Ginwala, who was already on the ground helping to install the show. It will beset across four locations over a now-shortened four weeks: a historic theater, a sacred mountain, a classical biennial hall, and the Gwangju National Museum. One could consider the Internet the fifth, unplanned venue.
Still from Judy Raduls Good Night Vision (2013). Courtesy the artist.
For the artists who did travel to Gwangju, the mandated pause was surprisingly welcome. There is something special about stopping just before you make an artwork and waiting for two weeks, having the time to just keep thinking about it, Radul said.
Ahead of the trip, she worked closely with two South Korean musicians on her eerily prescient commission. With help from Gina Hwang, who plays a geomungo (a plucked guitar-like instrument), and Hannah Kim (who plays the more percussive janggu drum and gong), Radul created a psychedelic, folkloric soundscape that she plans to record live inside a historic theater.
To film it, she long ago decided to use heat-tracking camerasa medium she began exploring in 2013that will record the heat imprints created by the musicians. Another camera will be pointed at the audience, should there be one come April. There is, of course, a certain irony to preparing this work in a world where free movement is contingent upon body temperature. (Radul was having her temperature taken at the hotel every few hours.)
Proximity, touching, creating sound in a room togetherall of this has shifted, she said.The questions around biennials, where we just drop in and drop out, have been posed for years now. It does make you wonder what you will do for art. We are finding out right now what artists actually bring to a scenario when they show up or dont show up.
OS Session, 2019, V.A.C. Foundation, photo: Marco Franceschin.
Participation in the show has been challenging even for artists who could not show up in person. Korakrit Arunanondchais new video,Songs for Dying, reflects on his own losses this past year, including the death of his grandfather. Itpairs footage drawn from pro-democracy protests in Thailand (whereArunanondchai moved from New York at the beginning of the pandemic) and the 1948 Jeju Island massacre in South Korea with the minutiae that comes from witnessing the death of a loved one. His incisive editingmoving between surrealism, the news cycle, and a very personal narrativefeels fluid and familiar after the past year.
The artist directed the South Korea portion of the videowhich captures a shaman conducting a ritual for the dead on Jeju Islandremotely after it became clear he would be unable to travel.It was hard, he said. I work with hidden narratives to begin with. And often, the thing that pulls you in is not what you can find on the internet. (The films second chapter, Songs for the Living, will be shown at the Migros Museum in Zurich in September.)
Video still from Korakrit Arunanondchai, Songs for Dying (2021). Co-commissioned by the 13th Gwangju Biennale, Han Nefkens Foundation and Kunsthall Trondheim. Courtesy the artist.
While the biennial plays an important role in the regionit was created to process and memorialize the Gwangju Uprising in 1980attendance will necessarily be limited.Then, there is the so-called art world to consider. The traveling band of curators, writers, collectors, and art dealers that would normally attend will also be in absentia. Even the participating curators and artists will have packed up and left.
Thats where the fifth venue, the online forum, comes in. Artists have generously shared their processes and created new online commissions. The catalogue chronicles a year-long conversation that was once meant for Gwangju, but which has now become more global.
Ayas spoke of a mad loyalty that the artists and curators have for one another and for the project. All that matters, she says, is that it installs itself in peoples minds in some important way. In our case, the biennial is not small, but we know from experience that small can also be beautiful and more meaningful, she added.
Emo de Medeiros, Kaleta/Kaleta (2016). Courtesy of theartist.
Her conviction begs the question: how much did wereallysee of these massive shows when we were running around previews trying to take it all in? Perhaps the slow and virtual drip of Minds Rising, Spirits Tuning offers a teachable moment. Maybe we do not need to see the whole in order to be touched by a part.
This biennial was prophetic, in a way, because it was predicting the penetration of the virtual and this post-human feeling of virtuality, Plessas said from his hotel room. It will be interesting to see how it will be remembered.
The 13th Gwangju Biennale is on view from April 1 to May 9.
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Here’s The Leaked Lexus NX Way Before You’re Supposed To See It – Jalopnik
Posted: at 1:48 am
The 2017 Lexus NX was an impressively premium compact crossover that felt unrelated to its humble Toyota underpinnings when we last reviewed it. Now alleged images of the latest update to the edgy crossover have leaked online revealing a dramatically updated interior.
Lexus engineers claimed back in 2015 that the NX had reengineered at least 90-percent of the vehicles parts independently from the Toyota Rav4 it is based on, using multiple different manufacturing processes. Every time weve driven the NX, those claims have proven to result in a comfortable, premium ride and user experience in spite of some tricky and confusing interior controls and infotainment systems.
Images reveal an exterior that is a modest update to the current vehicles angular and edgy signature bodywork. The NX gets an expected LED and DRL signature update in the lights as well. The real revelation in these leaked images, which were originally posted on the ClubLexus forums and reported via Autocar, is that the Lexus NX interior has undergone a much-needed overhaul and digital upgrade.
The leaked images of the NX interior reveal a new screen infotainment interface slightly angled toward the driver. Considering the lack of physical buttons anywhere within reach of driver or passenger, it appears the screen will take over almost all of the system, media and vehicle setting adjustments save for that suspicious little blurry knob by the drivers knee. There also still appears to be a physical volume knob and physical temperature climate controls.
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The old wretched Lexus touchpad is apparently gone, as are most of the outgoing models hard, pale black plastic button and trimmings that bewilders the otherwise premium character of the current NX. There now appears to be a wireless charging pad for phones and other devices.
A second digital screen sits ahead of the driver in place of physical vehicle information dials. One leaked image shows a centralized numerical speed readout hovering above what appears to be a cruise control vehicle distance graphic. The dashboard appears to have a cutout for a heads-up display projector, and Im also moderately pleased to find some paddle shifters sticking their ears out from behind the steering wheel. It may be a sporty novelty, but its nice that Lexus is still committing to it for those of us (me) who enjoy them.
Lexus has sold an average of around 55,770 NX models per year over the last six years, and almost exactly that many in 2020. Hence its obvious why the changes outside arent radical, but the stuff owners will touch has improved dramatically. Its not clear when Lexus intends to officially unveil the new NX crossover, but its now likely soon. The current car starts at $37,610 but theres no indication of the new models price. In the meantime, there are plenty of images of it from the now-deleted forum post for you to check out in full over on Autocar.
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Apple debuts new Ethics and Compliance webpage with details on conduct policies and more – 9to5Mac
Posted: at 1:48 am
Apple this week introduced a new Ethics and Compliance webpage on its official website that highlights some of the companys policies created to ensure that its business conduct complies with the law.
On the webpage, which was quietly launched within Apples main website, the company details how it ensures compliance at Apple, the conduct of company business policies, and how they conduct independent assessments to guarantee that these policies are effective among employees.
Apple conducts business ethically, honestly, and in full compliance with the law. We believe that how we conduct ourselves is as critical to Apples success as making the best products in the world. Our Business Conduct and Compliance policies are foundational to how we do business and how we put our values into practice every day.
Apple says that all employees need to make sure that they have read and understood Apples policies before joining the company, and also again each year. At the same time, the website states that Apple has teams focused on business conduct and political, antitrust, health, and anti-corruption compliance.
There are also links to PDF files that detail how the company ensures compliance for each of these topics, which also includes Apples responsibility for human rights and environmental protection in its supply chains.
We conduct internal and third-party independent assessments of our programs to ensure they are effective. We make changes to our policies and our training to reflect emerging trends. Apples Chief Compliance Officer provides regular updates to the Audit and Finance Committee of the Board of Directors.
You can access the new Ethics and Compliance webpage and find more information about it on Apples official website.
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Cut your own hair with this $32 haircut kit because we never leave home anymore – CNET
Posted: at 1:48 am
Limural
I never imagined I'd ever be writing about a haircut kit, much less debating with myself if I should buy one (spoiler alert: I did), but these are strange times. The first time I posted a deal about barber clippers I hadn't had a haircut in two months. As the months went by, my appearance started to increasingly track toward "bass player in 1968 psychedelic band," rendering some kind of DIY haircut essential. At the time, here in Los Angeles all barbershops and hair stylists were closed, and these kinds of clipper kits were off-the-chart expensive -- finding one for even $75 was a bargain. Thankfully, prices have settled and right now you can get a Limural Professional Cordless Clippers kit for $31.95when you click the product page coupon code and also apply discount code RRNISWYGat checkout.
That's about $17 off the regular price of $49 and is the lowest we've ever seen this model sell for. The kit includes the wireless clipper with a digital status display and five-hour runtime. It comes with six guard attachments (ranging in size from 3mm to 19mm), a comb, barber cape (the kind that traps hair, not the kind that helps you fly) and other miscellaneous accessories.
Subscribe to CNET's Cheapskate newsletter and save on everything from phones to gadgets and more.
I'll be honest: Prior to buying this model, I'd never taken a clipper to my own hair and so I don't know exactly what to look for in a product like this. But this one has 4.8 stars from over 6,800 reviews on Amazon, and I've used it successfully on my own head several times now. So if you're looking for a way to get a trim without breaking the bank or waiting till the vaccine makes its way to you, consider this kit -- and let me know in the comments if you're cutting your hair at home, or waiting it out until the world opens up again.
Read more:How to cut your hair and do your nails at home
This article was previously published. It has been updated with the latest deal.
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The Fourth Amendment to the Constitution: A Primer – Pacific Legal Foundation (PLF)
Posted: at 1:47 am
The Fourth Amendment is among the most sacred safeguards of individual liberty embedded in our Constitution.
The amendment reads:
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.
In just 54 words, the Fourth Amendment packs a lot of significance, and interpreting their meaning has kept judges and lawyers busy for centuries.
The basic premise of this amendment is to protect Americans from unreasonable searches and seizures of their property by the government. (Keep an eye on the word unreasonable, because its going to be important.)
It is for this reason that a police officer cannot stop you while youre walking down the street and arbitrarily search your purse or pockets.
These protections did not just come about spontaneously. Like all amendments included in the Bill of Rights, the Framers learned from their experience as royal subjects and added safeguards against the abuses they routinely endured by British agents.
To better understand why the ratification of the Fourth Amendment was so important to our Framers requires a deep dive into the historical context of 18th-century colonial America.
The colonists, still under the thumb of the British king, were subject to arbitrary and invasive searches under the Writs of Assistance, which allowed British troops and government officials to search homes and private property looking for goods that were imported illegally or on which a tax had not been paid. Needless to say, such abuses were a sore point for the aggrieved colonists.
A particularly notable figure of the colonial revolutionary era is James Otis, a Massachusetts lawyer and political activist who has been described as the Founding Father of the Fourth Amendment.
In a famed 1761 oration against the Writs of Assistance, Otis painted a vivid portrait of how unlimited government search powers were a threat to the liberty and tranquility of the people:
Now one of the most essential branches of English liberty is the freedom of ones house. A mans house is his castle; and while he is quiet, he is as well guarded as a prince in his castle.
This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient. This wanton exercise of this power is not a chimerical suggestion of a heated brain
In making the case against the wanton exercise of this power over the American colonists by agents of the British crown, Otis articulated the intellectual and moral principles that would later come to undergird the Fourth Amendment in the Bill of Rights. He thus laid the groundwork to ensure that such abuses of power would not be allowed to continue, should America earn its independence.
A young John Adams was in the audience when Otis gave this speech and later wrote then and there the child independence was born.
The principles passionately supported by Otis would come to serve as the foundation of individual liberty, private property protection, and privacy law.
So next time you see a television cop taking time to secure a search warrant from a judge to allow him to pursue an investigation against a criminal suspect, youre watching the Fourth Amendment in actionand you can thank James Otis for that.
Over the past century, the Fourth Amendment has grown in importance, owing to the expansion of government powers and the rapid pace of technological change. During that time, the courts have paid increasing attention to Fourth Amendment issues.
A particularly important landmark was the Supreme Courts decision in Weeks v. United States (1914), which established that evidence obtained through unconstitutional means was inadmissible in court. This is known as the exclusionary rule, which is important because it provides an incentive for law enforcement personnel and other government agents to be scrupulous in respecting Fourth Amendment protections.
Another seminal case in 20th-century Fourth Amendment jurisprudence was Katz v. United States (1967). Charles Katz was a sports gambler known for his skill at handicapping college basketball games. Unfortunately for Katz, his gifts brought him to the attention of federal investigators. Seeking to avoid law enforcement scrutiny, Katz often used a public phone booth near his Los Angeles apartment to conduct his less-than-legal business affairs. To build the case against him, the FBI tapped the phone booth, which resulted in criminal charges and a conviction against Katz.
Katz appealed his case, but the 9thCircuit upheld the search because it did not penetrate the telephone booths walls. However, the Supreme Court reversed the lower courts call, throwing out the FBIs wiretap evidence and overturning Katz conviction based on the new doctrine of a reasonable expectation of privacy.
This was a landmark moment for privacy law: by divorcing the FourthAmendment from concepts of property invasion, the Court fundamentally altered the jurisprudential landscape surrounding government searches and seizures.
While in some respects this decision expanded individual protections against government snooping, in other respects it weakened the protection against incursions on private property. Moreover, no one has ever been able to come up with a good explanation of exactly what a reasonable expectation of privacy is supposed to mean.
In reaction to the imprecision of the reasonableness standard, lawyers and scholars with an interest in property law have sought to rejuvenate Fourth Amendment jurisprudence with a renewed focus on incursions on private property rights. Along those lines, key Fourth Amendment cases from the past couple of decades include the following:
As noted above, the growth of governments enforcement powers and the proliferation of technological changes have opened up new frontiers for potential Fourth Amendment violations that challenge traditional understandings of search and seizure.
For example, PLFs has written about the questions surrounding digital privacy with regard to potentially intrusive technologies like surveillance and digital tracking, urging greater protections for individuals against potential violations of privacy.
Many digital privacy cases working their way through the courts now are incredibly important in defining what types of digital privacy the Fourth Amendment protects, Woislaw notes. The Fourth Amendment is our best line of defense against the pervasive surveillance stateso now is the time for judges to clarify with greater precision how the Constitution protects digital privacy.
Likewise, there are also issues dealing with administrative searches that permit government to search the physical sites of highly regulated industries with minimal warrant protections. These include gun shops, liquor stores, bars, industrial facilities, and the like. Its another area where courts should look to rein in potential government abuses of Fourth Amendment rights.
Such challenges only underscore the fact that protection of private property from government search is a key to securing individual liberty for all Americans.
The Fourth Amendment is much more than a matter of criminal procedureby limiting the power of government to target citizens through unreasonable searches and seizures, its one of our most important bulwarks in defense of privacy and individual liberty. It is essential, therefore, that the protections to private property granted by the Constitutions Fourth Amendment (and its close neighbor, the Fifth Amendment) be zealously guarded.
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The Fourth Amendment to the Constitution: A Primer - Pacific Legal Foundation (PLF)
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Justices to consider whether hot pursuit justifies entering the home without a warrant – SCOTUSblog
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CASE PREVIEW ByAmy Howe on Feb 23, 2021 at 5:56 pm
An old English maxim instructs that a mans home is his castle a refuge from the outside world. On Wednesday the Supreme Court will hear oral argument in a case testing how much protection the Constitution provides to the home. At issue in Lange v. California is whether, when police are pursuing someone for a misdemeanor, that is always an exigent circumstance that will allow the officer to follow the suspect into a house without a warrant.
The defendant in the case is Arthur Lange, who in 2016 was returning to his home in Sonoma, California, in his car. While driving with his windows down and listening to music, Lange also honked his horn a few times. Lange caught the attention of Aaron Weikert, a California highway patrol officer who followed Lange from a distance into his residential neighborhood.
Weikert turned on his overhead lights as Lange approached his driveway, but Lange who later said that he had not seen Weikert pulled into his garage. Weikert parked in Langes driveway and, as Langes garage door began to close, stuck his foot under the door to block it from closing. When the door reopened, Weikert entered the garage where, he said, he smelled alcohol. Lange was later taken to a hospital, where testing determined that his blood-alcohol level was 0.245%, more than three times the legal limit.
Lange was charged with driving under the influence and a noise infraction. He asked the trial court to bar prosecutors from using evidence obtained in the garage, arguing that Weikert had violated the Fourth Amendment when he entered the garage without a warrant. The California Court of Appeal upheld Langes conviction. It ruled that Weikert had probable cause to arrest Lange when Lange continued to his driveway and into his garage after Weikert turned on his lights. And because Weikert was in hot pursuit of Lange, his entrance into Langes home was justified, even though Weikert did not have a warrant. After the California Supreme Court declined to weigh in, Lange asked the U.S. Supreme Court to take up his case, which it agreed to do in October 2020.
In his brief on the merits, Lange urges the justices to reverse the state courts ruling. Although searches and seizures without a warrant may frequently be allowed outside the home, even when relatively minor offenses are involved, Lange stresses, a different rule applies inside the home. A core principle of the Fourth Amendment, Lange contends, is that police officers generally need a warrant to enter a home. The Supreme Court has carved out an exception to this general rule for exigent circumstances, but it is limited, Lange stresses: The court has repeatedly made clear that the exception applies only in genuine emergencies, when there isnt enough time for police to get a warrant.
Any determination of whether there are exigent circumstances allowing police to enter a home when they are in hot pursuit of a suspect should always be made on a case-by-case basis, regardless of what kind of crime police believe the suspect committed, Lange contends. But at the very least, Lange continues, the court should reject a categorical rule that would allow police to enter a home without a warrant whenever they are following someone whom they believe committed a misdemeanor. There is a wide range of misdemeanors, Lange reasons, some of which like jaywalking and loitering are not at all violent. Creating a categorical exception, Lange writes, would ignore those distinctions, treating pursuit of teenagers walking home just after curfew the same as pursuit of a fleeing armed robber.
Lange pushes back against any suggestion that a categorical rule would benefit police officers, noting that officers make case-by-case determinations in other situations all the time. When police officers determine that they do need to enter a home without a warrant for example, to ensure that evidence is not destroyed or to protect another person courts routinely uphold those entries, Lange adds. By contrast, Lange continues, a categorical rule would have high costs generally, by allowing police to enter homes even when there is no emergency, but especially for people of color, who are more likely to have the kind of contacts with the police that could lead to the police pursuing them for misdemeanors.
California initially told the court that it should deny review, but in its brief on the merits it urges the justices to vacate the state courts ruling although both its reasoning and the result it asks the justices to reach are slightly different than Langes. California concedes that the Supreme Court has created a categorical rule allowing police officers to enter a home without a warrant when they are pursuing someone whom they believe has committed a felony, but the state argues that the court should draw the line there. The interests justifying the exception to the general warrant requirement for pursuit in the context of suspected felonies for example, the possibility that the suspect will escape or destroy evidence are less likely to be present in misdemeanor pursuits, the state contends. And in any event, the state continues, when police are pursuing a misdemeanor suspect, they may determine in some cases either that there is an emergency that would justify entering the suspects house without a warrant, or they can apply for a warrant quickly.
California suggests that even if the Supreme Court agrees that a categorical rule does not apply to the pursuit of someone suspected of committing a misdemeanor, it should nonetheless send the case back to the state courts so that they can consider whether the evidence that Lange was under the influence should still be admitted. The state courts can consider that evidence, California posits, because the officer acted in good faith even if he was ultimately wrong about what the Fourth Amendment requires.
Because California declined to defend the state courts decision, the Supreme Court appointed Amanda Rice, a Detroit lawyer who clerked for Justice Elena Kagan, as a friend of the court to do so instead. Rice stakes out a broad position, arguing that the Supreme Courts cases allow police to enter a home without a warrant whenever they are in hot pursuit of a fleeing suspect without any suggestion that the ability to do so hinges on whether the underlying offense is a felony.
Such a rule, Rice contends, reflects an appropriate balancing of the interests involved. Regardless of what the underlying offense is, the government has a strong interest in discouraging a suspect from fleeing police, and it generally also has a strong interest in identifying a suspect. On the other hand, a suspects privacy interests are reduced. He can maintain the privacy of his home by surrendering to police outside the home when he is being pursued; if he opts to go inside his home instead, he has to expect that the police officer will follow him to arrest him, and he therefore gives up any expectation of privacy. The rule boils down to common sense, Rice concludes: Whatever the classification of his initial crime, a fleeing suspect cannot graft the protections of the home onto a lawful arrest begun in public by running inside.
Rice extols the benefits of a categorical rule, telling the justices that it will give police officers the clear and unequivocal guidelines they need to do their jobs. By contrast, she contends, Langes case-by-case rule would require police officers to make split-second decisions based on rapidly unfolding facts, transforming each exercise of an officers discretion into an occasion for constitutional review and potential civil liability.
Rice goes a step further than California in the outcome that she proposes for Langes case. Even if the Supreme Court rejects a categorical rule, she suggests, it should still uphold the California Court of Appeals decision because Weikert was relying on decisions by state appeals courts when he followed Lange into his garage. Moreover, Rice adds, Weikerts decision to follow Lange was reasonable on its own terms anyway.
The federal government filed a brief in which it also urged the justices to affirm the state courts ruling. Although the Supreme Courts cases involving hot pursuit have involved probable cause to believe that the suspect committed a felony, the government acknowledges, all of the same considerations that justify allowing a police officer to enter a home without a warrant when pursuing a suspect for a felony will typically, if not invariably, extend to cases involving a misdemeanor as well. Even if there is not a categorical rule allowing police officers to enter a home without a warrant when they are in hot pursuit of a suspect in cases involving misdemeanors, the government continues, there should at least be a general presumption that such warrantless entries are reasonable which, the government adds, Weikerts was.
Ten different friend of the court briefs were filed in support of Lange, representing a wide range of views everything from the American Civil Liberties Union and the National Association of Criminal Defense Lawyers to a group of gun owners. A brief by privacy advocates cautions the justices about the broader implications of their decision, warning that a ruling upholding the state courts categorical rule could eventually allow police to conduct searches without a warrant, sometimes even remotely, in other contexts, such as cellphones and electronic devices, which usually contain the kind of personal information once found only in the home.
State governments and law-enforcement groups dominate the six friend of the court briefs filed in support of Rice and the judgment below. A brief by the National Fraternal Order of Police stresses that it is not asking for unrestrained ambition for its officers to effectuate lawful stops and arrests. Instead, the group emphasizes, the categorical rule outlined by the state court is a narrow one that applies only in a very limited set of circumstances. Well know more on Wednesday about whether the justices see the case the same way.
This article was originally published at Howe on the Court.
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Ahmaud Arberys Family Files Federal Civil Rights Lawsuit Exactly One Year After He Was Shot and Killed – Law & Crime
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Ahmaud Arbery. (Image via Attorney Benjamin Crump.)
Wanda Cooper, the mother of Georgia shooting victim Ahmaud Arbery, on Tuesday filed a multi-million-dollar federal civil rights lawsuit against the three men accused criminally of killing him. The suit also names a bevy of other individuals, including a police officer, a police chief, and other officials who handled the matter.
Cooper is suing Travis McMichael, the triggerman who shot and killed Arbery, and his father, Gregory McMichael, who drove an accompanying vehicle. Shes also suing William Roddie Bryan, who recorded video of the widely-publicized shooting; OfficerRobert Rash; Police Chief John Powell; prosecutor Jackie Johnson; George Barnhill; and several unknown officers known as John Does 1-10. Glynn County, Ga., is also a named defendant as a political body.
The 47-page lawsuit, singed by nine attorneys from five different cities, alleges 14 separate counts. Those attorneys filed the case exactly one year after Arberys killing.
On the afternoon of February 23, 2020, Ahmaud Arbery, a young Black man, laced up his running shoes and went for a jog, the lawsuits opening salvo begins. An avid runner, Ahmaud frequently jogged around his neighborhood and surroundings areas in Brunswick, Georgia, including Satilla Shores. But February 23, 2020 was different. That day three armed white men, Defendants Gregory McMichael, Travis McMicheael, and William Bryan entrusted by local law enforcement to respond to recent trespasses in the area, and armed with a Police-Department-issued revolver and a 12-gauge shotgun hunted Ahmaud down in their trucks. Based on a gut feeling that Ahmaud was responsible for prior thefts in the neighborhood, these Defendants shot Ahmaud three times at close range with their shotgun and killed him. As Ahmaud lay bleeding out on the pavement, Defendant Travis McMichael stood above him and said, fucking N*****.'
The original lawsuit uses the N-word without redaction.
It alleges that Gregory McMichael, a recently retired officer, was authorized by the Glynn County Police Department to stand in as law enforcement and to respond to recent neighborhood trespasses day or night. Those actions added up to deputization, the lawsuit alleges.
The connection between the McMichaels and the Department resulted in the Departments failure to meaningfully investigate the circumstances surrounding Ahmauds death, the lawsuit says. It also says local District Attorney Jackie Johnson had known Gregory McMichael and instructed law enforcement not to arrest [him], his son, or Bryan.
Johnson orchestrate[d] a cover-up, recused herself, and then handed the case to George Barnhill in a neighboring county. However, Barnhill also failed to disclose that he also had a personal connection with Gregory McMichael. Still, when the conflict became known, Barnhill issued a letter which justified the shooting as perfectly legal. That letter, the lawsuit says, was based on a a multitude of demonstrably false statements, including painting Ahmaud as a violent and unstable criminal who had attacked the McMichaels.
Travis McMichael, Gregory McMichael, and William Bryan are seen in jail booking photos.
For nearly three months, Glynn County police officers, the chief of police, and two prosecutors conspired to hide the circumstances surrounding Ahmauds death and to protect the men who murdered him, the lawsuit continues. And none of this would have been discovered but for video footage leaked to the media, which showed the horrific and brutal murder of Ahuamd. Two days after the video was released to the public and drew national attention and outrage, law enforcement finally arrested Defendants Travis McMichael, Gregory McMichael, and William Bryan for murder.
Cooper, who is suing on her own behalf and as administrator of Ahmaud Arberys estate, is alleging civil rights violations under 42 U.S.C. 1983. Shes also using 28 U.S.C. 1331 and 1343 to allege violations of the U.S. Constitution and federal law. Plus, shes using 28 U.S.C. 1367 to ask a federal judge to hear underlying state law claims under whats known as supplemental jurisdiction. That law allows federal judges to hear state law claims which arise in the same case or controversy as a similar federal claim.
Key to the claim is the alleged deputization. According to the lawsuit, the police affirmatively authorized and encouraged Defendants Gregory McMichael, Travis McMichael, and William Bryan to intercede on behalf of the Glynn County Police Department if a person entered the structure on Englishs property. In so doing, law enforcement insinuated itself into a position of interdependence with those three defendants. These three men were therefore acting under color of law at the time they stalked, tracked, and shot Ahmaud Arbery.
In other words, according to the lawsuit, the men were government actors who deprived Arbery of his right to be free from excessive force and unreasonable seizure under the Fourth Amendment.
The lawsuit alleges the following counts:
As to the latter count, the lawsuit says Barnhill falsely asserted that Ahmaud Arbery had committed the crime of burglary in writing to both the Glynn County Police Department and to Georgia Attorney General Chris Carr.
Attorneys J. Kyle Califf of Atlanta; S. Lee Merritt, Mark V. Maguire, Daniel N. Purtell, and John J. Coyleof Philadelphia; Rizwan Qureshi and DeAndre R. Morrow of Washington, D.C.; William Weltman of Chicago; and Tia M. McClenney of Pittsburgh signed the document.
Did you know that one of the officers that gave the McMichaels permission to hunt Ahmaud still works for the PD? Merritt tweeted after the case was filed. Everyone involved in the targeting, murder and cover-up in the case of #AhmaudArbery must pay criminally and civilly.
Attorney Ben Crump also tweeted a statement:
Read the full lawsuit below.
Ahmaud Arbery Civil Lawsuit by Law&Crime
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Publications – Research & Commentary: Time is Now for Education Freedom Accounts in New Mexico – The Heartland Institute
Posted: at 1:46 am
Proposed legislation in the New Mexico House of Representatives would set up Education Freedom Accounts, an education savings account (ESA) program for New Mexico students. If passed, the ESAs would be available to parents of public school children to pay for tuition, curriculum, and fees at private and parochial schools. The funds could also be used to pay for textbooks, uniforms, tutoring services, computers and other approved hardware, instructional materials, and educational therapies and services. The ESAs could also be used to cover the fees required to take national standardized achievement tests, such as the SAT or ACT.
The accounts would be funded in the amount determined by the department to be equal to the average amount spent by the state and school districts on public school students. If a participating student has a disability or is an English language learner, a homeless student, a low-income student, an at-risk student or a special education student, the amount deposited to that student's education freedom account shall include any weighted funding that would have been provided to a public school for a similar public school student.
Copious empirical researchonschool choice programssuch as ESAs finds they offer families improved access to high-quality schools that meet their childrens unique needs and circumstances, and that these programsimprove academic performance and attainmentand deliver a quality educationatlower costthan traditional public schools. Additionally, these programsbenefit public school studentsand taxpayers by increasing competition,decreasing segregation,andimproving civic values and practices.
Research also shows students at private schools areless likelythan their public school peers to experience problems such as alcohol abuse, bullying, drug use, fighting, gang activity, racial tension, theft, vandalism, and weapon-based threats.There is also astrong causal linksuggesting private school choice programs improve the mental health of participating students.
It is probably for these reasons, and also because teacher unions have repeatedly played politics with school closings during the COVID-19 pandemic in direct conflict with students best interests, that ESAs are more popular with parents than ever before. Polling done by EdChoice released in December 2020 found81 percent supportfor ESAs among the general public and 86 percent among current school parents, the highest level of support the program has received in the organizations eight years of polling on the issue. This represents a 4-percentage point increase over 2019. These findings are mirrored in the American Federation for Childrens seventh-annualNational School Choice Poll,released in January 2021, which saw 78 percent support for ESA programs.
The school a child attends should not be determined solely by his or her ZIP code. However, this is currently the case for most children in New Mexico. The proposed ESA program would be the perfect first step in bringing choice options to New Mexico families.
The goal of public education in the Land of Enchantment today and in the years to come should be to allow all parents to choose which schools their children attend, require every school to compete for every student who walks through its doors, and make sure every child has the opportunity to attend a quality school. There has not been a time when providing these opportunities has been more urgent and more needed than right now. Legislators should recognize that and allow families as many options as possible to get their children the education they need and deserve.
The following documents provide more information about education savings accounts and education choice.
The 123s of School Choicehttps://www.edchoice.org/wp-content/uploads/2019/04/123s-of-School-Choice.pdfThis report from EdChoice is an in-depth review of the available research on private school choice programs in America. Areas of study include: private school choice program participant test scores, program participant attainment, parent satisfaction, public school students test scores, civic values and practices, racial/ethnic integration and fiscal effects.
A Win-Win Solution: The Empirical Evidence on School Choice (Fourth Edition)http://www.edchoice.org/wp-content/uploads/2016/05/A-Win-Win-Solution-The-Empirical-Evidence-on-School-Choice.pdfThis paper by EdChoice details how a vast body of research shows educational choice programs improve academic outcomes for students and schools, saves taxpayers money, reduces segregation in schools, and improves students civic values. This edition brings together a total of 100 empirical studies examining these essential questions in one comprehensive report.
Child Safety Accounts: Protecting Our Children through Parental Freedomhttps://www.heartland.org/_template-assets/documents/publications/CSAccountsPB.pdf
In thisHeartland Policy Brief, Vicki Alger, senior fellow at the Independent Womens Forum and research fellow at the Independent Institute, and Heartland Policy Analyst Tim Benson detail the prevalence of bullying, harassment, and assault taking place in Americas public schools and the difficulties for parents in having their child moved from a school that is unsafe for them. Alger and Benson propose a Child Safety Account program, which would allow parents to immediately have their child moved to a safe school private, parochial, or public as soon as parents feel the public school their child is currently attending is too dangerous to their childs physical or emotional health.
The Public Benefit of Private Schooling: Test Scores Rise When There Is More of Ithttps://object.cato.org/sites/cato.org/files/pubs/pdf/pa830.pdfThisPolicy Analysisfrom the Cato Institute examines the effect increased access to private schooling has had on international student test scores in 52 countries. The Cato researchers found that a 1 percentage point increase in the share of private school enrollment would lead to moderate increases in students math, reading, and science achievement.
The Effects of School Choice on Mental Healthhttps://papers.ssrn.com/sol3/papers.cfm?abstract_id=3272550This study from Corey DeAngelis at the Cato Institute and Angela K. Dills of Western Carolina University empirically examines the relationship between school choice and mental health. It finds that states adopting broad-based voucher programs and charter schools witness declines in adolescent suicides and suggests that private schooling reduces the number of times individuals are seen for mental health issues.
The Effects of the Florida Tax Credit Scholarship Program on College Enrollment and Graduation: An Updatehttps://www.urban.org/sites/default/files/publication/99728/the_effects_of_the_florida_tax_credit_scholarship_program_on_college_enrollment_and_graduation_0.pdfIn this update to a 2017 Urban Institute study, authors Matthew Chingos, Tomas Monarrez, and Daniel Kuehn find students participating in the Florida Tax Credit Scholarship Program are 99 percent more likely to enroll in a four-year college, and 56 percent more likely to graduate, than their public school peers.
The Effects of Statewide Private School Choice on College Enrollment and Graduation: Evidence from the Florida Tax Credit Scholarship Programhttps://www.heartland.org/publications-resources/publications/the-effects-of-statewide-private-school-choice-on-college-enrollment-and-graduation-evidence-from-the-florida-tax-credit-scholarship-programThis study from Urban Institute scholars Matthew Chingos and Daniel Kuehn shows Floridas Tax Credit Scholarship Program boosted college enrollment for participating students by 15 percent, with students enrolled in the program for four or more years seeing a 46 percent hike.
Fiscal Effects of School Vouchers: Examining the Savings and Costs of Americas Private School Voucher Programshttps://www.edchoice.org/wp-content/uploads/2018/09/Fiscal-Effects-of-School-Vouchers-by-Martin-Lueken.pdfIn this EdChoice study, Director of Fiscal Policy and Analysis Martin F. Lueken examined the fiscal impact of voucher programs across Americafrom their inception through fiscal year 2015to determine whether they generated costs or savings for state and local taxpayers. Lueken found these programs generated cumulative net savings to state and local budgets of $3.2 billion. This represents a $3,400 savings per voucher recipient.
Nothing in thisResearch & Commentaryis intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this subject, visitSchool Reform News, The Heartland Instituteswebsite, andPolicyBot, Heartlands free online research database.
The Heartland Institute can send an expert to your state to testify or brief your caucus; host an event in your state; or send you further information on a topic. Please dont hesitate to contact us if we can be of assistance! If you have any questions or comments, contact Heartlands government relations department, atgovernmentrelations@heartland.orgor 312/377-4000.
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