Monthly Archives: February 2021

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of mans spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought 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.Justice Louis D. Brandeis (1856-1941)

When Justice Louis D. Brandeis referred to the right to privacy as the right to be let alone, it was 1928. He was dissenting in a U.S. Supreme Court opinion called Olmstead v. United States, 277U.S. 438 (1928), in which federal agents tapped the telephone lines of Roy Olmstead and others and recorded their conversations about importing alcohol into the U.S. during Prohibition.

They did so without search warrants.

On the basis of the tapped conversations, Olmstead and his colleagues were convicted of conspiracy to violate federal law.

The Supreme Court upheld their convictions.

The issue in the case was whether the Fourth Amendments prohibition of searches and seizures without a warrant issued by a judge based on probable cause of crime includes surveillance.

When Brandeis dissented in Olmstead, telephones were novel and not in widespread personal use. It would be 39 years before the Supreme Court accepted Brandeis dissent as properly encapsulating the understanding of the Framers when it characterized surveillance as a search.

Stated differently, the language in the Fourth Amendment, which unambiguously prohibits the government from engaging in warrantless searches and seizures, was not interpreted so as to characterize government surveillance as a search until 1967, when the Supreme Court accepted Brandeis rationale.

Since then, it is commonplace that the government needs a warrant to engage in surveillance.

The warrant is a constitutional bulwark against fishing expeditions, and it requires the courts to defer to privacy.

I offer this brief constitutional history so as to address the abuse of the Fourth Amendment, and the consequences of that abuse.

Two weeks ago, the Defense Intelligence Agencyan arm of the Pentagon and one of 16 federal entities that spies on Americans acknowledged publicly that it uses commercial software to monitor the movements and conversations of those on whom it has chosen to spy.

And because it does so without warrants, it spies on whomever it wishes.

It claims that the language of the Fourth Amendment which protects the right of all people to be secure in their persons, houses, papers and effects only restrains law enforcement and does not restrain the balance of the government.

Yet, the whole purpose of the Bill of Rights is to recognize that personal liberty stems from our humanity. When Thomas Jefferson wrote the Declaration of Independence, he referred to our rights to life, liberty and the pursuit of happiness as inalienable from our human nature, and as gifts of the Creator.

The Bill of Rights, too, articulates that our rights are natural. The Ninth Amendment expressly commands that the enumeration of certain rights such as the freedoms of religion, speech and press shall not be construed by any government to deny or disparage other rights retained by the people.

Among the rights retained by the people never given away to the states or the federal government and thus protected by the Ninth Amendment, and since 1967 by the Fourth, is the right to privacy.

The Olmstead decision focused narrowly on whether listening to someones telephone conversations without a warrant is as unconstitutional as rummaging through the persons papers and effects without a warrant.

Brandeis understood that true happiness can only come from the exercise of personal liberty, and James Madison understood this when he wrote the Fourth Amendment.

This understanding, as recognized by the courts today, is that the right to privacy protects intellectual activities, beliefs, thoughts, emotions, sensations, and private communications about them.Who could be happy under a state of surveillance? Privacy is natural there are things we all do that are none of the governments business. Surveillance is totalitarian. It is the manifestation of the tyrants wish to know all about a potential opponent.

The whole purpose of the Bill of Rights is to keep the government at bay off the peoples backs, as Justice William O. Douglas wrote thereby protecting our natural state of freedom so that we can pursue happiness.

The Declaration of Independence underscores, and the Bill of Rights protects, the right to pursue happiness for individuals, not for governments.

Who can be happy while being observed by the government?

A watched person changes behavior and loses liberty on account of being watched.

The liberty to make unfettered choices, the right to shake a metaphorical fist in the tyrants face, the personal power to ignore what the government expects are all dissipated.

A watched person hesitates to exercise freedom.

The more the government gets away with surveillance without warrants, the more people will accept the servitude it brings.

Personal freedom is the unfettered power to exercise natural rights without the approval of the government or the consent of any other person. It is the means to happiness.

Yet, because we live in a society in which we need the governments permission to do nearly anything, is it any wonder that the government wants to know everything about us?

The government that spies continuously has large ears and insatiable eyes.

And on its face there is no smile.

Judge Andrew P. Napolitano, a graduate of Princeton University and the University of Notre Dame Law School, was the youngest life-tenured Superior Court judge in the history of New Jersey. He sat on the bench from 1987 to 1995. He taught constitutional law at Seton Hall Law School for 11 years, and he returned to private practice in 1995. Judge Napolitano began television work in the same year. He is Fox News senior judicial analyst on the Fox News Channel and the Fox Business Network. He is the host of Freedom Watch on the Fox Business Network. Napolitano also lectures nationally on the U.S. Constitution, the rule of law, civil liberties in wartime, and human freedom. He has been published in The New York Times, The Wall Street Journal, the Los Angeles Times, and numerous other publications. He is the author of five books on the U.S. Constitution. Read Judge Andrew P. Napolitanos Reports More Here.

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Govt That Spies Has Insatiable Appetite - KMJ Now

Rep. LaKeshia Myers (D-Milwaukee) has introduced a new bill to prevent the use of no-knock search warrants by Wisconsin law enforcement. The bill was named Breonnas Law after Louisville, Kentucky EMT Breonna Taylor, the 26-year-old who was killed during such a raid in March 2020.

It is most appropriate for us to begin Black History Month 2021 by introducing Breonnas Law, Myers said in a press statement. Breonna Taylors life was taken while she was in the comfort of her own home, through the use of a no-knock warrant. While Taylor was not the subject of the warrant, her life was mercilessly ended through no fault of her own. It is because of this that we call on Wisconsin legislators to end the use of no-knock warrants.

Wisconsin became the first state to authorize no-knock search warrants in 1997. Since their introduction, no-knock raids have created controversy around police transparency and use of force.

No-knock warrants are harmful to civilians and law enforcement officers alike, said Myers. Milwaukee police officer Matthew Rittner was killed in the line of duty while his tactical unit executed a no-knock warrant in February 2019. Because of a no-knock search warrant, a wife lost her husband, Milwaukee lost a police officer and a child lost its father.

These searches are being reconsidered at the federal and state levels. In Congress last session, Senate Republicans wanted to track their use, while a Democratic House bill, endorsed by the Congressional Black Caucus would have banned them on a federal level in drug cases and withhold federal policing grants to states that permit them in drug cases.

In 2020, a package of Juneteenth bills on police reform was forwarded by Gov. Tony Evers, Lt. Gov. Mandela Barnes and the the Legislative Black Caucus. It included a similar bill that prohibits no-knock search warrants issued under state law by requiring a law enforcement officer who is executing a search warrant to identify himself or herself as a law enforcement officer and announce the authority and purpose of the entry, before entering the premises.

The Legislature did not take any action on these bills, instead forming a study committee that continues to meet but has not come out with its recommendations.

Myers new bill, as described in her co-sponsorship memo accompanying it, requires that a law enforcement officer executing a search warrant must, before entering the premises, identify himself or herself as a law enforcement officer and announce the authority and purpose of the entry. Under the bill, a law enforcement officer may execute a search warrant only between the hours of 6 a.m. and 10 p.m. unless a judge authorizes the execution of the search warrant at another time for good cause.

Given the increased focus on police reform and no-knock search warrants in particular the Wisconsin Legislative Council put out an Information Memorandum on the practice in Sept. 2020, reviewing its complicated relationship with the Fourth Amendment and case law. As a result, the no-knock search warrant, a product of the War on Drugs, is being reconsidered. The Fourth Amendment to the U.S. Constitution giving citizens the right to be protected against unlawful search and seizure is replicated in the Wisconsin Constitution.

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Knock-and-announce requirements before police forcibly enter a persons home called the announcement rule in Wisconsin date back centuries to British common law, but exceptions to the rule have been carved out, including the no-knock search warrant, the memo states. Further, it notes, a 1995 case determined knock-and-announce was not a rigid, blanket rule, so no-knock searches are allowed as an exception that takes into account countervailing law enforcement interests.

The Wisconsin Professional Police Association Executive Director Jim Palmer has been quoted by multiple media outlets, as being open to reconsideration of no-knock warrants by police and by lawmakers. He told NBC-15 he doubts his group would fight for the warrants, as they are not used frequently in Wisconsin and can be dangerous for both police officers and residents.

Body camera use by law enforcement has made the public increasingly aware of no-knock search warrants, as more people are able to see footage of the technique in action.

The bills namesake, Taylor, was killed as law enforcement carried out a series of raids across the Louisville area. Police claimed they announced themselves when the raid began. Taylors boyfriend, Kenneth Walker, however, said officers did not do so, and he thought someone was breaking into their home as they slept. After a shot was fired by the boyfriend, wounding one officer, other officers fired numerous shots into the apartment, killing Taylor.

One of the detectives involved, Brett Hankison, was fired in June for wantonly and blindly firing his weapon, according to his termination letter. Taylors death brought to light the use of such raids, and place-based policing strategies that targeted areas being gentrified by the city.

As the state that created no-knock warrants, Wisconsin has the responsibility to be the state to end their use, Myers said. When you know better, you must do better, and this is a step in the right direction.

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No-knock search warrants began in Wisconsin, Rep. Myers wants to end them here - Wisconsin Examiner

When Joe Biden and Kamala Harris were sworn into office, it marked the first time in American history that Californians held two of the three highest offices in the federal government. No, President Biden is not from the Golden State, but Vice President Harris and Speaker of the House Nancy Pelosi both hail from the Bay Area. And with Attorney General Xavier Becerra holding a key cabinet position, officials from California now have a sizable role in influencing the Biden agenda.

The incoming administration is rightly prioritizing economic relief and Covid-19 vaccine deployment. On other issues, they'll have to navigate narrow Democratic majorities in Congress, in which some progressive policies could be nonstarters. To avoid gridlock, these high-ranking Californians can identify policies with broad, bipartisan support, perhaps taking a page out of their home state's playbook.

In recent years, California has become a national leader on privacy rights. Oakland, San Francisco, and Santa Clara County, among other municipalities, have spearheaded strong local laws to oversee governmental use of people's private information and data.

Gaps in privacy protections remain, however, and top Californians in Washington, D.C. can help plug them at the federal level. This is especially true of the "smart city" programs sprouting up across the country. These programs enable local governments to collect troves of personal data with few safeguards in place to prevent it from being mishandled or abused. For example, my organization, Oakland Privacy, closely monitors a data-sharing protocol deployed by the Los Angeles Department of Transportation (LADOT) called Mobility Data Specification (MDS).

MDS is a massive data-collection system that LADOT spent millions developing. It requires mobility companies to provide the city with real-time location data for their vehicles, including each rider's origin, route and destination. Such granular data makes it easy to identify and track riders, and can reveal sensitive personal information with just a handful of data points. LADOT hasn't provided a concrete reason for requiring this individualized information over safer alternatives, like aggregated data, nor did it seek public input before adopting the system. Department leaders were even discovered using an encrypted messaging service to communicate with each other while developing MDS.

Real-time, re-identifiable data like the kind collected through MDS is particularly ripe for abuse. This could range from law enforcement accessing the data to perpetuate harmful surveillance practices against communities of color, to a city employee using it to stalk a former partner. These are grave consequences, which is why the American Civil Liberties Union and the Electronic Frontier Foundation are suing Los Angeles to halt MDS for violating the Fourth Amendment.

But Los Angeles isn't alone in overlooking privacy rights. In Pasadena and in Long Beach, police used automatic license plate readers and shared the data with U.S. Immigration and Customs Enforcement, despite pledging not to. In San Diego, the city deployed "smart streetlights" to supposedly monitor traffic, but they were used by police more than two dozen times to surveil Black Lives Matter protestors. Examples like these undercut California's standing as the pacesetter in securing privacy rights and reinforce the need for a smart cities solution that incorporates strong local oversight and federal protections.

Efforts to build so-called smart cities are not limited to Californiathey're popping up nearly everywhere, from Seattle and Chicago to Columbus and New York. With their impending influence over multiple levers of power in Washington, D.C., our Bay Area leaders should spearhead legislation that reins in misguided smart city programs. High-profile members of both parties have already signaled their interest. Such opportunities do not come around often, and California officials now have the chance to make their presence known on this important issue.

Tracy Rosenberg is the Advocacy Director for Oakland Privacy, a nonprofit watchdog group that works to defend the right to privacy and enhance oversight regarding the use of surveillance.

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Close the Gaps - East Bay Express

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A recently published study showed that Black people are 3.6x more likely to be arrested for marijuana possession than white people in the United States, and the gap is growing. The research, conducted by the American Civil Liberties Union (ACLU) and compiled by Joslyn Law Firm between 2010 and 2018, suggests War on Drugs racism still permeates cannabis law enforcement, even though 1 in 3 Americans now live in a state where marijuana is legal.

RELATED:Will Cannabis Become Legal in 2021?

The difference between white and Black marijuana arrests rose by over 300% in 20 U.S. counties between 2010 and 2018, according to the study. In Carter, Tennessee, racial disparity in this department increased by 977%, making Black people 14x more likely to be arrested for marijuana than whites in 2018.

Of the 49 states reporting (Florida did not contribute to this study), the state with the highest racial disparity was Montana, where Black people were almost 10x more likely to be arrested for marijuana than white people. Kentucky, Illinois, Iowa, and West Virginia followed close behind, with the chance of arrest for Black people above 7x what it was for white people.

Two of these states have since legalized recreational marijuana, indicating that the issue has little to do with overall attitudes toward marijuana use in these states. Cannabis became legal in Montana this November, and Illinois legalized it January, 2020.

Recreational marijuana is illegal in Kentucky, Iowa, and West Virginia. Though West Virginia has a medical marijuana program now, it had not gone into effect during the time this data was collected.

RELATED: Where is cannabis legal in the United States? (Medical marijuana and CBD included)

The states with the lowest racial disparities in cannabis arrests were Colorado, California, and Oregon. Recreational cannabis has been made legal in each of these states within the years this data was collected.

Brian Joslyn, Owner of Joslyn Law Firm, said areas of the country with the highest racial disparity in marijuana arrests also tend to record vague and bizarre reasons for other charges against Black people.

All too often I see suspicious police reports that justify traffic stops and detentions of black people with suspicious justifications ultimately leading to a search and seizure of their persons. Its these kinds of suspicious justifications that I rarely see as much when the individual is white, Joslyn told GreenState. I believe the data clearly shows that black people are being targeted by police. It would be impossible to suggest otherwise.

Every year, roughly 700,000 marijuana-related arrests are made in the U.S, meaning this problem is effecting thousands of people every day.

Joslyn said he believes legalizing marijuana would only be the first step in erasing racial prejudice from cannabis charges, since law enforcement would continue to unlawfully detain and search a disproportionate number of Black people for drug impairment or other violations of cannabis law. Therefore, he believes a kind of deep clean of law enforcement around the country to be imperative for racial justice.

RELATED: The Difference Between Cannabis Legalization and Decriminalization, and Why it Matters

What needs to occur are policy changes within the police departments that train and instruct officers to only pull over or detain individuals for well-established violations of law, Joslyn said. In addition, all officers should be equipped with both cruiser cams and body cams so their arrests can be reviewed and verified, and our state legislatures need to further work to protect individuals Fourth Amendment rights through the passage of laws that would raise the standards for law enforcement to search ones persons or property.

By CriminalAttorneyCincinnati.com

Elissa Esheris Assistant Editor at GreenState. Her work has also appeared in The Boston Guardian, Brooklyn Paper, Religion Unplugged, and Iridescent Women. Send inquiries and tips to elli.esher@hearst.com.

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Is Americas Approach to Cannabis Racist? Study Shows Its Worse Than You Think - GreenState

The US Court of Appeals for the Eighth Circuit ruled Thursday that a SWAT team member must face First Amendment and battery claims from reporters he tear-gassed while they were covering public unrest in Ferguson, Missouri, after the fatal shooting of Michael Brown in 2014.

SWAT team member Michael Anderson claims that the reporters had been ordered to disperse before he deployed the tear-gas. He also asserts that there wereprojectiles launched from the reporters area, leading him believe that there was an imminent threat to safety. He claims that he had arguable probable cause to believe that the reporters were refusing to disperse, obstructing officers performing their duties, and interfering with officers in a way that impacted officer safety. If this mistaken belief was objectively reasonable, Anderson wouldreceive qualified immunity.

However, in its opinionthe Eighth Circuit implied that this version of the facts is blatantly contradicted by video footage from the reporters, Ash-har Quraishi, Marla Cichowski, and Sam Winslade of the Al Jazeera America news network, as well as at least three other videos. The ruling affirms the US District Court for the Eastern District of Missouris decision todeny Andersons motion for summary judgment and allow the plaintiffs to proceed:

The videos confirm the reporters version of the facts. They do not show dispersal orders or flying projectiles. They do not show orders to turn off the lights before the tear-gas. Rather, they show a peaceful scene interrupted by rubber bullets and tear-gas.Anderson presumes disputed facts in his favor, which this court cannot do because he moved for summary judgment. Taking the facts most favorably to the reporters, Anderson did not have arguable probable cause to use the tear-gas.

The video also contradicts Andersons claim that the Al Jazeera reporters were not engaged in activities protected by the First Amendment. The video supports the reporters claim that they were singled out by Anderson. A reasonable officer would have understood that deploying a tear-gas canister at law-abiding reporters is impermissible, the court said.

The court also ruled in favor of the plaintiffs regarding their state-law battery claims, noting that it was possible that Anderson acted with more force than [was] reasonably necessary to disperse the reporters, given that they were not engaged in unlawful activity.However, the court denied the reporters Fourth Amendment claims because it has not been clearly established that tear-gassing amounts to a seizure.

The Eighth Circuit remanded the case to the district court for further proceedings.

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Federal appeals court allows reporters to sue SWAT officer who tear-gassed them during Ferguson protests - JURIST