Monthly Archives: August 2022

FreedomWorks is excited to recognize The Fourth Amendment Is Not For Sale Act (FANFSA) as our Bill of the Month for July 2022.

Weve all watched the cringeworthy hearings where senators take turns grilling Big Tech CEOs over why their constituent emails have such low open rates. While the fight over regulating Big Tech rages, Americans 4th Amendment rights continue to be abused in other areas that do in fact require a measured response. That is why a group of bipartisan senators introduced The Fourth Amendment Is Not For Sale Act (FANFSA).

In the Senate, the bill enjoys 20 co-sponsors ranging from Sens. Rand Paul (R-Ky.) to Bernie Sanders (I-Vt.). The House companion bill is sponsored by Judiciary Chairman Jerrold Nadler (D-N.Y.).

Background

The Problem

The Solution

This legislation requires the government to go through the same court approval process as if it sought your personal messages from Facebook or Twitter. Your information is important. The government should not be able to buy it from data brokers because you decided to browse the internet. Congress must reignite the fight to protect the privacy of all Americans and pass FANSFA to close this loophole.

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Bill of the Month July 2022 : The Fourth Amendment is Not for Sale Act - FreedomWorks

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REMEMBERING 9/11: 20 YEARS LATER

Looking back at the 2001 terror attacks and how they affected Las Vegas and the world.

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MEET THE UNFORGETTABLE CLASS

2021

Harry Reid

(1939-2021)

Senate leader and Nevada political titan

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HENRY RUGGS

DEADLY CRASH

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HOMICIDE

A STORY BEHIND EVERY NAME

TRACKER

CLICK HERE FOR MORE

Sheldon Adelson

(1933-2021)

Las Vegas visionary and Philanthropist.

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Tony Hsieh

(1973-2020)

Ex-Zappos and Downtown Project CEO left a lasting impression on Las Vegas.

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VEGAS REAWAKENING

A year after the pandemic began, the first weekend of spring showed a perfect storm of promise for Las Vegas recovery and brought optimism that visitors would indeed return to the city

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Team coverage from Las Vegas, Carson City and DC

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LETTER: The Fourth Amendment and forced births - Las Vegas Review-Journal

A federal judge is allowing two claims against Indianapolis police and the City-County Council to move forward after a man alleged law enforcement left him paralyzed after he was thrown headfirst into the back of a van without safety restraints.

In a Monday order, U.S. District Court for the Southern District of Indiana Judge Jane Magnus-Stinson partially granted and partially denied a second motion by the defense for judgment on the pleadings in Travis Shinneman v. Indianapolis-Marion County City-County Council, et al.,1:21-cv-02203.

The lawsuit, filed in August 2021, alleges Travis Shinneman is paralyzed from the neck down and requires around-the-clock care after Indianapolis Metro Police Department officers arrested him for disorderly conduct and public intoxication. The officers handed Shinneman over to the Marion County Sheriffs Office to be taken to jail in September 2019.

According to the complaint, IMPD officers handcuffed Shinneman during the incident and threw him into the back of a MCSO van for transport. By the time he arrived at the jail 20 minutes later, Shinneman alleges he couldnt hold his body weight up after lying on the floorboards.

Shinneman also claims he was assaulted by several deputies and was denied proper care before he was transported to Eskenazi Hospital, where he was diagnosed as a quadriplegic.

The defendants, listed as officers with both law enforcement agencies as well as other city officials, moved for judgment on the pleadings under Rule 12 (c)the Federal Rule of Civil Procedure.

In the Monday order, Shinneman didnt object to the dismissals of the official-capacity claims against four IMPD officers, state law claims against the four officers or state law claims against the Indianapolis-Marion County City-County Council.

However, two sets of claims against the city defendants remained: Fourth Amendment claims against the four IMPD officers and a Monell policy claim against the City-County Council.

Magnus-Stinson concluded that some of the Fourth Amendment claims could advance, but officers were protected by qualified immunity on others.

Mr. Shinnemans allegations that one of the four IMPD officers participated in tossing him headfirst into the MCSO van while he was handcuffed, and that the remaining officers failed to intervene, state a viable Fourth Amendment claim, she wrote. A reasonable jury could conclude that it was objectively unreasonable to either participate or fail to intervene in this conduct.

On the other hand, an arrestees right to a seatbelt was not clearly established in September 2019, the judge continued. In (Dale v. Agresta), the Seventh Circuit observed: Neither the Supreme Court nor this court has ruled that transporting an inmate without a seatbelt creates an intolerable risk of harm. Dale was decided a mere three months before Mr. Shinnemans arrest.

Dale involved a convicted inmate and the more rigorous Eighth Amendment standard. But absent a Fourth Amendment case to the contrary, a reasonable officer could conclude from Dale that the transport of an inmate without a seatbelt was not objectively unreasonable. Officers are entitled to qualified immunity on Mr. Shinnemans seatbelt claim.

Regarding his Monell claim, Shinneman argued the City-County Council maintained a policy of using MCSO for the transport of arrestees despite knowing that MCSO transport vehicles lacked seatbelts or other safety restraints.

The district court dismissed Shinnemans failure to train claim.

(W)hile Dale held that it was not clearly established that convicted inmates had a right to a seatbelt during transport, the court left the door open to the possibility of such a right existing and supporting a Monell claim , Magnus-Stinson wrote. Here, Mr. Shinneman claims that the Council maintained a policy of using MCSO for the transport of arrestees (IMPD General Order 8.1(I)(F), that the Order did not give IMPD officers discretion to consider transport alternatives, that the Council knew MCSO transport vehicles lacked seatbelts or other restraints, and that this policy directly led to his injuries. These allegations give the Council fair notice and state a plausible Monell claim.

The Associated Press contributed to this report.

Read more from the original source:
Man paralyzed after being thrown into sheriff's van can proceed with claims against Indy, council, judge rules - Indiana Lawyer

The facade of the Eighth Circuit

A special education teacher in South Dakota has been denied qualified immunity for her alleged mistreatment of disabled students, a federal appeals court in St. Louis, Missouri found on Monday.

In the case stylized as Doe v. Aberdeen School District, the U.S. Court of Appeals for the Eighth Circuit ruled teacher Carrie Weisenburger can be sued for allegedly violating students Fourth Amendment rights by using forcible restraint and seclusion as punishment.

In 2018, parents of five special education students sued the school district, Weisenburger and several other named defendants for Fourth Amendment, 14th Amendment, federal statutory and state law violations. In an order affirming and reversing the district court, the appeals court limited the lawsuit going forward to three students unlawful Fourth Amendment seizure claims against Weisenburger.

The three-judge panel notes that the facts remain disputed in the highly contentious case but are recounted in the opinion in the light most favorable to the students, in line with circuit precedent.

The locus of the controversy has to do with a series of alleged physical touching and constraints by the teacher and her aides.

Autistic girl A.A. alleges that she was violated by Weisenburgers inappropriate use of the May Overby schools so-called little room.

The court describes the little room as a 1010 space, with one window on the door, situated in a different part of the school than the normal classroom, adorned with a small table, a whiteboard, and cupboards.

The opinion then details how the little room was typically used:

On a regular basis, Weisenburger and her two teaching aides physically picked up and carried studentswho sometimes resisted by kicking and screamingfrom class to the little room. Once there, students had to demonstrate calm behavior and complete several task baskets unrelated to whatever disciplinary infraction led to their visit before they were permitted to leave. Either Weisenburger or an aide would wait outside and hold the door shut until they gained compliance. Students sat in the little room for up to hours at a time, with a few instances extending to as long as an entire afternoon.

A.A. was frequently forced to go inside the little room. Citing a frowny face journal shown to the girls mother, the court recounts that she was place in the little room 274 times between October 26, 2015 and March 1, 2016 and that such punishments occurred for rule breaking as minor as incorrectly hanging up her coat and pushing a cabinet.

If necessary, staff can take [A.A.] up to the Little Room, the teachers tailored behavior plans for the girl says, so she is not a disruption to other students and she is not getting attention from others.

The court goes on to say A.A.s mother acknowledged her daughter would sometimes be placed in the little room but alleges she was told the space would be for one-on-one instruction rather than discipline.

Autistic and ADHD-diagnosed boy B.B., who the court says has a propensity for repeating movie quotes, alleges that he was repeatedly dragged to gym class by Weisenburger despite his protests and [that his teacher] once lifted him under his armpits to force his participation in a game. Additionally, he was often secluded in a so-called calm-down corner that was cordoned off and secured with dividers and staff to ensure students did not leave the area.

The court relays a harrowing incident later caught on video.

In another incident, B.B. refused to swim when the class went to the pool. Weisenburger and her aides grabbed B.B.s arms and pushed him into the water, the opinion says. As B.B. frantically tried to climb out, an aide pried his fingers from the edge and shoved him back into deeper water.

The second boy and third student whose claims have survived the lengthy legal process is identified as C.C., who has been diagnosed with moderate to severe inner ear hearing loss. Two particularly upsetting specific incidents form the basis of the second boys claims.

First, when C.C. refused to change for swimming, Weisenburger pinned him on the ground, forcibly stripped his clothes off, and put on his bathing suit, the court explains. C.C. screamed so loudly that a concerned adult walked into the locker room to check on whoever had yelled. Second, staff purportedly forced him to ride a horse while he was kicking and screaming. The teachers later learned that C.C. had been in pain from blocked ear tubes at the time.

Some of the allegations involving C.C. were first relayed to school officials by the boys sign language interpreter. An investigation by Special Education Director Camille Kaul deemed the accusations unfounded, the appellate court noted. Less than a year later, however, complaints surfaced again from two school employees.

The court cites several additional complaints:

Multiple generalized claims of physical and verbal abuse appear in the recordas well. Weisenburger would grab students by the chin and tell them to look at me when Im talking to you. And staff handled children roughly, grabbing arms and then jerking them around, which was usually accompanied by chasing the child. Weisenburger frequently made demeaning remarks about students and their parents. In response to an aide addressing a student, she said while laughing, Oh you are so cute talking to them like they understand you. She commented on the smell of one student who had toileting issues and would check the girls underwear in front of the whole class while referring to her parents as drug users and losers. There was a lot of yelling and shouting at the kids.

In January 2016, Kaul and May Overby Principal Michael Neubert placed Weisenburger on an assistance plan due to support staff not knowing what to do to address inappropriate behaviors.

Less than three months later, A.A.s mother witnessed Weisenburger and her aides push B.B. into the poo, the court goes on to note. She sent a cell phone video of the incident to Kaul.

After that, Kaul penned and sent a memo to the teacher, sketching out a final written warning concerning the improper use of restraints with students. Shortly after that, Weisenburger and her aides quit.

In finding for the students, in part, and for Weisenburger, in part, the court differentiated between some of the behavior alleged in the record.

We believe secluding A.A. in the little room and B.B. in the calm-down corner constituted seizures, the opinion says. Weisenburger and her aides picked up and carried A.A. into the little room, held the door shut, and forbade her from leaving until she completed tasks unrelated to any disciplinary violation. Staff also shuttered B.B. in the calm-down corner with physical barriers and prevented him from leaving.

Grabbing B.B. to push him into the swimming pool and pinning C.C. down to strip his clothes off also rose to the level of seizures, the opinion continues while noting that placing C.C. on the horse and carrying B.B. to gym class did not rise to the level of a constitutional violation.

The appeals court ultimately rejected the denial of qualified immunity for the horse and carrying allegations as well as for the generalized grievances about her behavior cited in the block quote above.

In line with Fourth Amendment jurisprudence, the court went on to describe the teachers behavior in several respects as unreasonable.

Weisenburger substantially departed from accepted standards, the opinion reads. She habitually secluded A.A. and B.B. for minor disciplinary infractions with no evidence that they posed imminent risk of harm to themselves or anyone else. And she restrained B.B. and C.C. to coerce compliance with routine directives to get in a pool and to change clothes.

Weisenburger, in arguing for application of the U.S. Supreme Court created doctrine of qualified immunity, argued that the students rights were not clearly established.

The panel disagreed, determining, rather, that her behavior substantially departed from accepted principles when restraining and secluding the students [and] violated clearly established federal rights because other cases where teachers use a harsher hand involved students showing severe and well-documented behavioral problems.

None of the children in the present case, 3rd and 4th graders at the time they were under Weisenburgers tutelage and control, presented an imminent threat of harm, the court concluded.

[image via U.S. Court of Appeals for the Eighth Circuit]

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Appeals Court Rejects Qualified Immunity for Special Ed Teacher Who Allegedly Forcibly Stripped Away Boys Clothes, Pushed Another Boy into a Pool -...

Published

2022-07-29 16:47

4:47

July 29, 2022

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INDIANAPOLIS Indiana senators voted 26-20 on Saturday to advance a bill that bans nearly all abortions except in cases of rape, incest or when the parents life is at risk. Those exceptions had to survive a drawn-out challenge during the amendment process.

Days prior, the senators had convened to consider amendments to a bill that no one was happy with when it passed out of the Committee on Rules and Legislative Procedure on Tuesday. Republicans and Democrats alike critized the proposed legislation, some arguing it didnt go far enough to restrict abortion and others arguing it went too far.

The heated debate during the committee review and the amendment process demonstrated strong divisions in the Republican Party and the wide range of opinion over how far abortion restrictions should go.

The Republicans hoped that bringing the draft to the full Senate would help clarify the legislation, close any loopholes and satisfy their constituents. More than 60 members of the public testified for hours on Monday to Tuesday to voice their critiques, leading to frustration from the bills author, Sen. Sue Glick.

Am I happy with the bill? Not exactly, Glick said at the time. Nor was I happy when it was drafted. Well bring it to the floor so we can discuss it in detail, and if its the will of the body to kill the bill on the floor then so be it.

About half of those who testified, including all of the anti-abortion organizations that were represented, were against the bill because they felt it didnt go far enough to restrict abortions and did not include an adequate enforcement measure. Many medical professionals argued that the language was too vague, making it hard for them to both provide care and avoid criminal charges. Others who testified in opposition to the bill said that any infringement on a persons ability to make their own health care decisions was a government overreach.

Sen. Ed Charbonneau, a Republican on the committee, said he hoped the full Senate and any amendments would make a bad bill less bad.

The full Senate convened on Thursday to consider 62 filed amendments, the highest number several of the lawmakers said they had seen for one bill. The session was delayed by nearly four hours as Republicans met behind closed doors. Then, for more than seven hours, Democrat and Republican senators alike discussed, argued and occasionally called for more decorum when the conversation became emotional and personal.

One amendment, however, took center stage: one that would remove the rape and incest exceptions and only allow abortions that threatened the life of the pregnant person.

Exceptions equal death, said Republican Sen. Michael Young, who introduced the amendment.

More than two and a half hours of tearful debate, questioning and statements revealed that Democrats were united to keep the rape and incest exceptions in the abortion ban, while Republicans were divided down the middle.

This is the most important issue in our lifetime, Young said in his closing remarks before the vote. And whatever we decide here tonight, we will be judged by what we did. We have to do the right thing.

The amendment failed to pass with an 18-28 vote.

Though 62 amendments were filed and dozens were discussed on Thursday, nearly 30 were rejected and only four amendments were passed. Several amendments had already been passed in committee on Tuesday, including added criminal charges to doctors who illegally perform abortions, an eight-week limit on when victims of rape could obtain an abortion (12 weeks for minors) and a requirement that victims of rape sign an affidavit before terminating their pregnancies.

Of those passed on Thursday, one gave the attorney general authority to enforce a law if a prosecuting attorney is categorically refusing to do so. Republican Sen. Aaron Freeman introduced the amendment, citing the Marion County Prosecutor Ryan Mears, a Democrat, who said in June that his office would not prosecute women or doctors who sought or performed abortions.

The prosecutors office in the state of Indiana is to prosecute all crimes, Freeman said. Their job is not to pick and choose which laws theyre going to enforce. If they want to do that, I would recommend they run for state legislature and begin passing laws that they want to either have or not.

Senate Minority Leader Sen. Greg Taylor, a Democrat, said that the body had already voted down this measure the year before. Taylor said passing it in a special session was troubling to him, particularly given the current attorney general is currently facing a lawsuit filed by the doctor who provided abortion for the 10-year-old girl from Ohio.

That is flat out wrong, Taylor said, adding that it failed to pass last session because prosecutors spoke out against it. [Freemans] going to take prosecutorial discretion away by saying the attorney general at any time has concurrent jurisdiction over those prosecutors. Thats bad. Shame on us.

Another added amendment, introduced by Democratic Sen. Timothy Lanane, tweaked the requirement for victims of incest: if the victim is a minor, there is no longer a requirement to obtain consent from a parent or guardian. A third amendment, introduced by Democrat Sen. Jean Breaux, authorized the statewide maternal mortality review committee shall study how changes in the states abortion laws affect maternal mortality. And the fourth amendment, introduced by Republican Sen. Liz Brown, requires that the affidavit signed by rape victims is notarized.

Amendments that did not pass include: a requirement that pregnancy resource centers to be licensed; the expansion of telehealth services to abortion medication; the creation of a review panel to deal with complaints against physicians that would then direct the attorney generals office to enforce; one that would ensure access to housing for pregnant and post-partum women with a child under one; a requirement that perpetrators of rape pay child support until their child turns 18; and another that would put the issue of abortion on the ballot for voters to decide its legality.

The bill is expected to head to the House next week. According to Indiana code, the special session has to conclude by August 14.

Original post:
How Indianas abortion ban maintained rape and incest exceptions - The 19th*

Commonwealths Attorney Parisa Dehghani-Tafti at Arlington Democrats election watch party in November 2019, when she was elected to office (Staff photo by Jay Westcott)

(Updated at 4:50 p.m.) The Arlington police union is pushing back on accusations that officers mishandled the search of a suspect who is now linked to a double murder.

In a rare public rebuke of Arlingtons top prosecutor, the Arlington Coalition of Police this afternoon sent out a press release accusing Commonwealths Attorney Parisa Dehghani-Tafti of ineptitude and deflection of blame.

The barbs stem from a 2020 case against Francis Rose, who is currently in jail in Alexandria after a series of break-ins at an apartment complex there reportedly led to two construction workers, a stepfather and stepson described as innocent bystanders, each being fatally shot in the head.

As ARLnow exclusively reported last week, Rose was released from Arlington County jail this past February after the 2020 case against him fell apart when a judge ruled that evidence was obtained during an unconstitutional search of his bag. With the gun and the drugs allegedly found in Roses bag disallowed as evidence, prosecutors dropped the charges against him, including possession of a firearm by a convicted felon.

Rose spent nearly two years in jail awaiting trial before being freed when charges were dropped.

As court records show, our office attempted to proceed on those charges, but during a suppression hearing, a judge ruled that the police had performed an unconstitutional search and, as the law required, suppressed the evidence in the case, Dehghani-Tafti told ARLnow last week. Obviously, we could not prove a case without the evidence, and therefore dismissed it.

My heart breaks for the families and loved ones of the people killed this weekend, she added.

Dehghani-Tafti subsequently said on Twitter, in response to criticism from the Virginia Republican party, that shes not casting blame on anyone for the case falling apart.

The Arlington Coalition of Police, however, suggests that Dehghani-Tafti should be taking more of the blame, accusing her of attempting to throw police officers under the bus for a lost [evidence] suppression hearing.

The full statement from the union is below.

Commonwealth Attorney Parisa Dehghani-Taftis recent statements regarding the suppression hearing for Francis Rose, intentionally worded to cast fault on the officers involved, were based on self-preservation and deflection of blame. Unlike the Commonwealth Attorney, the Arlington Coalition of Police ordered the transcript of the hearing to have a full understanding of what happened before making public comment.

Prior to the hearing, the Assistant Commonwealth Attorney handling the case believed there would be no problem regarding the suppression and believed the officers actions were lawful. At the time of the suppression hearing, Mr. Rose had spent approximately two years in jail awaiting trial. The Commonwealth Attorney opposed giving him bond on multiple occasions. If the Commonwealth Attorney believed the actions of the officers were unlawful, opposing bond and holding Mr. Rose for two years would be unethical.

Following the suppression decision, a competent Commonwealth Attorney would have either appealed the decision if they still believed in the case, or provided training to the police department to make sure similar issues wouldnt arise in the future. Neither option was taken by the Commonwealth Attorney, showing her ineptitude for the position. Instead, Ms. Dehghani-Tafti did nothing regarding the case until it became news and she needed to deflect blame.

Successful prosecutions rely on a collaborative effort between police officers and the Commonwealth Attorneys Office. The CWAs Office must understand each case, and should communicate with all witnesses, including police officers, to properly prepare for trial. The CWAs Office, since Ms. Dehghani-Taftis election, has suffered incredible turnover of experienced attorneys through the initial round of firings and continuing resignations. Those experienced attorneys are being replaced with new, inexperienced staff. Unfortunately for this case, the high turnover rate in the CWA office, combined with the lack of experience in both trials and suppression hearings, made them no match for a veteran defense attorney with decades of real courtroom experience.

The Arlington County Police Department is composed of highly educated officers who work hard each day to take dangerous criminals off the street. ACOP stands behind the actions of the officers that lead to the arrest of Mr. Rose.

Our thoughts remain with the families and friends of the Alexandria victims related to this incident. Hopefully we (yes, we collectively) can do better in the future to avoid another tragedy like this one.

Dehghani-Tafti called the statement disappointing and a political attack on our office when I myself did not use the occasion to denigrate police work.

More from Dehghani-Taftis response to ARLnow:

It is shocking for ACOPS to accuse our office of a breach of ethics because we asked for Mr. Rose to be held pending trial. We did so because we believed he posed a danger and because we believed the case was worth litigating; there was nothing unethical about the Commonwealth litigating the case until Mr. Rose won his motion. The motion was ably argued by a prosecutor with nearly a decade of experience, more than five of which have been in this Office, and a record of successfully defending police work in prior cases involving constitutional and evidentiary challenges. It was decided by a well-respected judge with 29 years of experience on the bench. Those are the facts. As professionals, we recognize once the issues are fairly litigated, our feelings dont matter.

The ACOPS surely is aware our office regularly trains the ACPD on constitutional issues (including Fourth Amendment), on testifying, and legislative updates and we have always been available for consultation as a proactive matter and in the moment. We will continue to do so.

A court transcript of the hearing that resulted in evidence being suppressed and the charges being dropped, provided to ARLnow by ACOP, shows an assistant commonwealths attorney arguing that evidence found in Roses bag should be allowed.

Again, I agree that if he had been standing on the side of the road and the police wanted to search his bag, they would have to have probable cause to search him and the bag by extension of his person, the prosecutor argued. But just because the bag is on his person in the car, doesnt change the fact that that is an item that is then subject to the probable cause search for the marijuana based upon the odor of marijuana.

In the end, the judge agreed with the defense that because Rose was wearing that bag, was a passenger in the car and did not himself smell of marijuana, the search of the bag was unconstitutional.

Despite criticism from local Republicans and others about Dehghani-Taftis progressive prosecutorial philosophy, the police association has up until now been silent about its views on her.

COPS hasnt spoken about the CA until now, the organizations president, Randall Mason, said in response to questions from ARLnow. Its our view that we should be working together in our efforts for criminal justice. We havent been on board with all the things that the CA has done. However, attacking the second member of a two party collaboration is both destructive to the relationship and in poor taste.

We are releasing this statement now because the CA intentionally tried to direct blame on the police in this case when there is plenty to blame on her office, Mason added.

Mason declined to discuss other officer concerns about Dehghani-Taftis office, and said the organization respects Arlington County Circuit Court Chief Judge William Newmans ruling based on the arguments and evidence that he had in from of him.

However, he said the police union believes this was a good search that was poorly handled at suppression.

The officers could have been more prepared to testify, Mason said. Historically, CAs would go over a motion to suppress with the officer ahead of time and discuss anticipated issues and testimony. That did not occur in this case.

Rose, meanwhile, remains in jail in Alexandria on burglary charges, but has not yet been charged with the murders as of this afternoon.

At this juncture, all I can say is that the police department continues to actively investigate the matter, Alexandria Commonwealths Attorney Bryan Porter told our sister site, ALXnow.

Rose is also facing an armed burglary charge from a June incident in Alexandria. A warrant was issued for his arrest prior to the murders but police were unable to locate him, NBC 4 previously reported.

Original post:
Police, prosecutor trade accusations after suspect in botched case is accused of murder - ARLnow