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Category Archives: Fifth Amendment

Judge rules that viewing an iPhone lock screen qualifies as a search – AppleInsider

Posted: May 24, 2020 at 3:27 pm

A Seattle-based District Judge has ruled that law enforcement agencies may not look at a phone's lock screen without a warrant as it violates Fourth Amendment rights.

Law enforcement agencies must get a warrant before they attempt to unlock your phone, obtain data from the manufacturer, or come in possession of any information from the carrier. Now, for the same reasons, they may need to get one before they even look at a suspect's lock screen.

Joseph Sam was arrested in May 2019 and indicted on charges related to robbery and assault. He claims that during the arrest, one of the officers hit the power button to bring up the phone's lock screen though it's unclear whether or not the officer attempted to unlock it.

A year later, the FBI had obtained the phone as a piece of evidence against Sam. They turned on the phone and took a photograph of the lock screen, which displayed "Streezy" on it. Sam's lawyers then filed a motion to argue that the evidence should not be admissible, as it was obtained without a warrant, as pointed out by Ars Technica.

The judge overseeing the case, District Judge John Coughenour, agreed. In his ruling, he determined that the police looking at the phone during the arrest and the FBI later looking at the phone were two separate incidents. While the police looking at his phone may have been okay, the FBI taking a photograph of it was not.

The reason is that police are given more liberties during a lawful arrest turning on the phone may be allowed as part of an effort to inventory the suspect's personal effects. Because there was no way to see how the police handled the phone, there is not enough evidence to rule their actions unlawful.

However, when the FBI took possession of the phone, their intentions were clear. When the police took a picture of the lock screen, it qualified as unlawful search, violating Sam's Fourth Amendment rights.

The government's attorneys argued that lock screens are not private. The counter-argument was that a lock screen is specifically designed to be viewed by everyone who isn't the owner when they try to access the phone, and there is no reasonable expectation of privacy.

Judge Coughenour did not agree.

"When the Government gains evidence by physically intruding on a constitutionally protected area as the FBI did here it is 'unnecessary to consider' whether the government also violated the defendant's reasonable expectation of privacy," he wrote.

A suspect cannot be compelled to give the passcode to unlock their phone, as it is considered testimonial and is subsequently protected under the Fifth Amendment. Whether or not a suspect can be compelled to use a biometric feature such as TouchID or FaceID is another matter.

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What’s Bill Barr hiding in the Mueller report? It could be Trump’s false statements under oath – Salon

Posted: at 3:27 pm

The Supreme Court on Wednesday temporarily blocked the release of special counsel Robert Mueller's report on his investigation into Russian interference in the 2016 election, pending a response from the Justice Department.

The court was considering a House Judiciary Committee request for grand jury materials that the DOJ had redacted from the publishedreport. House lawyers argued the materials are relevant to pending impeachment proceedings against President Trump involving obstruction of justice.

Mueller, citing constitutional concerns, did not reach a conclusion "one way or the other" about whether the president committed the crime of obstruction, though his report made multiple pointed references to Congress' ability to do so.

The Supreme Court did not block the House request permanently. Rather, itput a temporary hold on an earlier order from an appeals court to release the full report to Congress, including all grand jury material.

Judge Judy W. Rogers, writing for the majority in that appellate court decision, argued that the congressional request wasstandard, and that it was"only the president's categorical resistance and the department's objection that is unprecedented."

If the DOJ fails to respond which is highly unlikely Congress will get to see the grand jury information. Most likely, Congress and the Justice Department will square off directlybefore the Supreme Court, in what could be a historic constitutional showdown.

Attorney General BillBarr has clung tightly to his redactions since releasing the report to the public last spring. Of all the blacked-out sections, Barr has fought hardest to keep the grand jury information secret.

It is conceivable, according to former federal prosecutors, that some of those redactions refer to what may seema far-fetched scenario:Mueller's grand jury could have considered the evidence on obstruction of justice, including testimony from the president himself.

A redacted passage in the report suggests that the grand jury saw Trump's writtenresponses to Mueller's questions which Mueller ultimately found unsatisfactory and which contained various contradictions and, according to Mueller himself, false statements.

Lying under oath to federal prosecutors is unequivocally a crime.

Almost allthe grand jury information is in Volume I of the report, the conspiracy section. Volume II, however, which considers obstruction of justice, contains a few isolated redactions that tell the story of Mueller's attempts to get Trump to sit for an interview.

Mueller initially requested an in-person interview, but after going back and forth with the president's lawyers for more than a year, the two sides agreed on written responses.

Thisparagraph points out that Trump "did not similarly agree to provide written answers to questions on obstruction topics "

At the end of that paragraph, Mueller sends the reader to Appendix C for more detail. But there, in the middle of the same narrative, that extra detail is also redacted.

Both passages make clear that Mueller's team, after being stonewalled by Trump's lawyers, decided to take some action related to the grand jury.

That action, whatever it was, seems to have informed Mueller's conclusion that he had the "legal justification" tosubpoena Trump, though he decided against it because, he writes, of the likely prospect ofextended court and constitutional battles.

Mueller believed that the "substantial evidence" he had gathered which included Trump's written responses contributed enough to "the anticipated benefits for our investigation and report" that it rendered a drawn-out court fight unnecessary.

Even if Mueller had won that fight, Trump could likely have refused to testify further, either by invoking executive privilege or exercising his Fifth Amendment right against self-incrimination.

Furthermore, even if Trump had lied to Mueller in a sit-downinterview a blatant criminal act the legal framework Mueller had adopted would not have allowed him to indict the president. The ultimate result, then, would have been unchanged: A report that Congress could use as basis for the impeachment process.

We have seen no reports thatthegrand jury tookup questions about Trump's written responses, so what follows is highly speculative. But one intriguingsentence following one of the redacted grand jury passages reads:"Recognizing that the president would not be interviewed voluntarily, we considered whether to issue a subpoena for his testimony."

One explanation for that would be that at some point between receiving Trump's written answers and deciding not to subpoena him, Mueller submitted that testimonyto the grand jury.

When Barr testified beforethe Senate the month after he published the report, Sen.Patrick Leahy, D-Vt., repeatedly asked the attorney generalwhether Trump hadtestified to the grand jury.

Given that the president had clearly not done so, Barr's reluctance to answer directly was puzzling.

Leahy: The president of course declared many times publicly in tweets and at campaign rallies and all that he would testify. He never did testify, correct?

Barr: As far as I know.

Leahy: I think you know whether he testified or not.

Barr: As far as I know, he didn't testify.

Leahy: And Mr. Mueller found the written answers to be inadequate. Is that correct?

Barr: I think he wanted additional, but he never sought it.

Leahy: And the president never testified.

Barr: Well, he never he never pushed it.

A few minutes later, Barr broughtup the grand jury, which ledLeahy to ask him again if it was accurate that Trump never testified.

Barr replied, "I think that's correct."

Given the unusual circumstances, it's conceivable that one lawyercould understandwritten responses submitted to a grand jury as being grand jury testimony, whileanother might not. This could explain Barr's careful answer.

"I think Mueller may have presented the written answers to the grand jury," former U.S. attorney and national security expert Barbara McQuade told Salon in an email. "That could be considered 'testimony' before the grand jury, if they saw it."

Matt Miller, an MSNBC legal analyst and former director of the Office of Public Affairs for the Department of Justice under Barack Obama, understood the redacted material pertaining to the grand jury differently. "I think any discussion or decision whether to subpoena or not might be redacted," Miller said in an interview. "It appeared to be with Donald TrumpJr. That's what Ken Starr did with [former president Bill] Clinton."

But Barr did not in fact redact Mueller'sdiscussion of his decision notto subpoena President Trump.

McQuade suggested that she regretted Mueller's decision to forgo a subpoena. "I think that pushing Trump to testify at a grand jury would have been successful, but would have taken a long time," shesaid. "As we have seen with other matters, Trump is willing to fight all the way to the Supreme Court. It could have taken a year to get it resolved. That said, it still might have been worth the wait."

The Department of Justice has until June 1 to submit its petition to fight the case in the Supreme Court. Barr appears determined to prevent Congress from reading the redacted grand jury material for as long as he can.

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Fifth Amendment | Summary, Rights, & Facts | Britannica

Posted: May 10, 2020 at 5:46 am

Fifth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that articulates procedural safeguards designed to protect the rights of the criminally accused and to secure life, liberty, and property. For the text of the Fifth Amendment, see below.

Similar to the First Amendment, the Fifth Amendment is divided into five clauses, representing five distinct, yet related, rights. The first clause specifies that [n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces or in the Militia, when in actual service in time of War or public danger. This grand jury provision requires a body to make a formal presentment or indictment of a person accused of committing a crime against the laws of the federal government. The proceeding is not a trial but rather an ex parte hearing (i.e., one in which only one party, the prosecution, presents evidence) to determine if the government has enough evidence to carry a case to trial. If the grand jury finds sufficient evidence that an offense was committed, it issues an indictment, which then permits a trial. The portion of the clause pertaining to exceptions in cases arising in the land or naval forces, or in the Militia is a corollary to Article I, Section 8, which grants Congress the power [t]o make Rules for the Government and Regulation of the land and naval Forces. Combined, they justify the use of military courts for the armed forces, thus denying military personnel the same procedural rights afforded civilians.

The second section is commonly referred to as the double jeopardy clause, and it protects citizens against a second prosecution after an acquittal or a conviction, as well as against multiple punishments for the same offense. Caveats to this provision include permissions to try persons for civil and criminal aspects of an offense, conspiring to commit as well as to commit an offense, and separate trials for acts that violate laws of both the federal and state governments, although federal laws generally suppress prosecution by the national government if a person is convicted of the same crime in a state proceeding.

The third section is commonly referred to as the self-incrimination clause, and it protects persons accused of committing a crime from being forced to testify against themselves. In the U.S. judicial system a person is presumed innocent, and it is the responsibility of the state (or national government) to prove guilt. Like other pieces of evidence, once presented, words can be used powerfully against a person; however, words can be manipulated in a way that many other objects cannot. Consequently, information gained from sobriety tests, police lineups, voice samples, and the like is constitutionally permissible while evidence gained from compelled testimony is not. As such, persons accused of committing crimes are protected against themselves or, more accurately, how their words may be used against them. The clause, therefore, protects a key aspect of the system as well as the rights of the criminally accused.

The fourth section is commonly referred to as the due process clause. It protects life, liberty, and property from impairment by the federal government. (The Fourteenth Amendment, ratified in 1868, protects the same rights from infringement by the states.) Chiefly concerned with fairness and justice, the due process clause seeks to preserve and protect fundamental rights and ensure that any deprivation of life, liberty, or property occurs in accordance with procedural safeguards. As such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence: procedural and substantive. Procedural due process pertains to the rules, elements, or methods of enforcementthat is, its procedural aspects. Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protectedas long as the rules of the game, so to speak, are followedthen the government may, in fact, deprive a person of his life, liberty, or property. But what if the rules are not fair? What if the law itselfregardless of how it is enforcedseemingly deprives rights? This raises the controversial spectre of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Over time, the Supreme Court has had an on-again, off-again relationship with liberty-based due process challenges, but it has generally abided by the principle that certain rights are implicit in the concept of ordered liberty (Palko v. Connecticut [1937]), and as such they are afforded constitutional protection. This, in turn, has led to the expansion of the meaning of the term liberty. What arguably began as freedom from restraint has transformed into a virtual cornucopia of rights reasonably related to enumerated rights, without which neither liberty nor justice would exist. For example, the right to an abortion, established in Roe v. Wade (1973), grew from privacy rights, which emerged from the penumbras of the constitution.

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Patent Owners Cannot Sue the Government for Patent Infringement as a Fifth Amendment Taking – JD Supra

Posted: at 5:46 am

Updated: May 25, 2018:

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Rant and Rave for May 7, 2020 | Opinion | moultrieobserver.com – Moultrie Observer

Posted: at 5:46 am

Banning evictions is like taking property

Banning evictions and foreclosures, to me, is taking of property for private use. Evictions and foreclosures are now halted, thereby violating landlords and others Fifth Amendment rights under Knick_V_Township_of_Scott which reads in part, ...a government violates the Constitution whenever it takes property without advance compensation.... This lock down, in one form or another, will last a long time.

Can we just boot them both?

Lets try this. Given that we have two candidates whove got sexual assault claims against them (25 to 1, Trump leads and there is that recording of him saying those nice things about women) just boot both of them.

Both parties can scrape somebody up for a quick campaign. Biden has his issues and Trump already showed hes unfit so why not?

School Board should show people more respect

The School Board needs to think about decisions they make! The votes that got them there are the same ones who can take them out! Colquitt County needs change in their school board. I will be voting for all new people. They need to learn appreciate people that they think are below them.

Court: Immigrants can be deported if they break law

Saw where the Supreme Court ruled 5-4 that immigrants with lawful permanent resident status cannot fight deportation due to a previous offense, though the crime wasnt grounds for deportation. I guess illegal is illegal ... who knew? Why should this require a Supreme Court ruling? Because Democrats want the whole world within our borders, or our borders to include the whole world.

Shelter in place no longer protecting many people

This shelter in place argument only goes so far. After a long period of time, shelter in place no longer protects many people, including healthy people and people without risk factors. Why must everyone shelter in place? Essentially house arrest since people can be arrested or cited for violating the shelter in place law, which hasnt even been legally passed.

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Government sued over immigrant children not receiving COVID-19 checks | TheHill – The Hill

Posted: at 5:46 am

A group of U.S. citizens whose parents are undocumented immigrants are suing the government for being denied relief money from the coronavirus stimulus bill that was signed into law in March.

The group filed a class-action lawsuit in federal court on Tuesday, arguing that their exclusion from the relief package is unconstitutional.

"The refusal to distribute this benefit to U.S. citizen children undermines the CARES Acts goal of providing assistance to Americans in need, frustrates the Acts efforts to jumpstart the economy, and punishes citizen children for their parents status punishment that is particularly nonsensical given that undocumented immigrants, collectively, pay billions of dollars each year in taxes," their lawsuit reads.

The lawsuit was filed in Maryland's federal district court by the Georgetown University law school's Institute for Constitutional Advocacy and Protection on behalf of the group.

The Coronavirus Aid, Relief and Economic Security (CARES) Act pays out up to $1,200 to eligible adults and up to $500 for each of their children. But in order to receive the money, beneficiaries must have Social Security numbers, which undocumented immigrants lack, meaning their children can't obtain the stimulus checks even if they are American citizens.

The lawsuit argues that undocumented immigrants have been particularly hard-hit by the pandemic's toll on the economy. They largely work in low-wage jobs and are ineligible for unemployment insurance, making the $500 relief payments crucial for families headed by undocumented parents, the class-action complaint argues.

One of the plaintiffs, identified only as Norma over security concerns, says that she lost her job in a restaurant that was shut down because of the pandemic and she has no way to get relief money for her son who was born in the U.S.

I have lost my job, and in my home three adults have the coronavirus; none of us are working, Norma said in a statement released through her lawyers. My son is an American citizen, and we need him to receive the CARES Act benefit to provide food and a roof over his head until this difficult moment passes.

The lawsuit alleges that the exclusion violates the equal protections in the Fifth Amendment and asked the court to rule that the group is eligible for relief payments.

A spokeswoman for the Treasury Department, which is named in the lawsuit as a defendant, did not immediately respond when asked for comment.

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Wheres the Twenty-Fifth Amendment When We Need It? – LA Progressive

Posted: March 24, 2020 at 5:31 am

In March 13, in the midst of a deadly pandemic, President Donald Trump was asked if he took responsibility for the nations lack of preparedness. His reply: I dont take responsibility at all.

Where are impeachment and the Twenty-Fifth Amendmentthe two mechanisms provided by the Constitution for removing an unfit Presidentwhen we need them the most, as we do right now?

Perhaps the most loathsome of all of Trumps lies was his oft-repeated claimthat test kits for the virus were widely available to anyone who desired one.

On February 5, Trump wasacquittedin his impeachment trial as a result of GOP cronyism and cowardice, so that door is shut. And theTwenty-Fifth Amendment, which requires action by the Vice President and a majority of the Cabinet or Congress to initiate removal, is a non-starter, given the obsequiousness of Mike Pence and the intractable corruption of Senate Republicans.

Meanwhile, just when you thought Trump couldnt get any crazier or more incompetent in his handling of the coronavirus crisis, he took another wild leap into bizarro land with comments at Tuesdays White House press conference, and in remarks he uttered the same day on Twitter.

The press conference was called to update the public on the health emergency and to announce the administrations stimulus package to revive the economy, which is now likely inrecession. In anexchange with reporters, Trump was asked by NBCs Kristen Welker whether he had changed his once-dismissive attitude about the perils posed by the virus. Trump responded:

I have seen that where people actually liked [my tone during a press conference held the day before], but I didnt feel different. Ive always known this is a realthis is a pandemic. I felt it was a pandemic long before it was called a pandemic. . . . Ive always viewed it as very serious.

During the conference, Trump alsopraisedDemocratic New York Governor Andrew Cuomo, with whom he has often clashed over other kinds of policies and programs, stating that he and Cuomo had a good talk this morning, and that he and the governor were both doing a really good job.

But Trump delivered a very different message to his millions of social media followers just a few hours earlier, upbraiding Cuomo in aracist tweet: Cuomo wants all states to be treated the same. But all states arent the same. Some are being hit hard by the Chinese Virus, some are being hit practically not at all. New York is a very big hotspot, West Virginia has, thus far, zero cases. Andrew, keep politics out of it . . .

By any rational standard, Trumps comments qualify as either some of the most egregious political lies of the twenty-first century or as yet another indication that he suffers from a personality disorderthat allows him to dissociate from reality and disclaim responsibility for any of his actions. Instead, he blames others for any harm to the public, shocks to the stock market, or damage to the wider economy.

In truth, of course, the coronavirus isnt a Chinese disease, even if the initial outbreak occurred in Chinas Hubei Province and its capital city, Wuhan. The virus has since spread across the globe, fueled by community transmission, and is now firmly entrenched in the United States.

All Americans, regardless of race or ethnicity, are equally susceptible to the disease and equally capable of infecting others. And late Tuesday, belying Trumps tweet, West Virginiareportedits first coronavirus case. The disease is now in every state in the nation.

If anything, there is even less truth in Trumps press conference claim that he anticipated the pandemic before anyone else. To the contrary, Trumpdownplayedthe severity of the virus from the very outset, erroneously comparing it to the flu (which is far less lethal), denouncing media coverage of the malady as a hoax, andpredictingthat one dayits like a miracleit will disappear.

In arecent column,The New York Timess David Leonhardt catalogued many of Trumps most misleading statements. Heres a taste:

President Trump made his first public comments about the coronavirus on Jan. 22, in a television interview from Davos with CNBCs Joe Kernen. The first American case had been announced the day before, and Kernen asked Trump, Are there worries about a pandemic at this point?

The President responded: No. Not at all. And we have it totally under control. Its one person coming in from China, and we have it under control. Its going to be just fine.

By this point, the seriousness of the virus was becoming clearer. It had spread from China to four other countries. China was starting to take drastic measures and was on the verge of closing off the city of Wuhan.

In the weeks that followed, Trump faced a series of choices. He could have taken aggressive measures to slow the spread of the virus. He could have insisted that the United States ramp up efforts to produce test kits. He could have emphasized the risks that the virus presented and urged Americans to take precautions if they had reason to believe they were sick. He could have used the powers of the presidency to reduce the number of people who would ultimately get sick.

He did none of those things.

Perhaps the most loathsome of all of Trumps lies was his oft-repeated claim that test kits for the virus were widely available to anyone who desired one.

In fact, as other countries rolled out thousands of testing kits, the Centers for Disease Controlwas slow to act, and resisted using tests produced by the World Health Organization. Kits manufactured in the United States are only now being provided on a large scale to hospitals around the country, but at a pace that continues to lag that achieved by many other nations.

The paucity of kits prevented the United States from enacting early and effective containment initiatives, which in turn has resulted in undercounts of the U.S. infection rate, and no doubt will ultimately lead to a higher overall incidence of mortality from the illness.

If the first duty of a President is to level with the American people and tell the truth in times of crisis, Trump has been a colossal failure. Whether that failure is due to ineptitude, malfeasance, a psychological impairment or some combination of factors, the country needs to remove him from office.

In the absence of impeachment and the fortitude to invoke the Twenty-Fifth Amendment, we are left with one alternativeto oust him next November. Thats provided, of course, that the coronavirus doesnt arm Trump with a pretext to suspend the election and declare martial law.

Think that couldnt happen? I would have thought so, too, but that was before the virus shut down life as we knew it in America.

Bill BlumThe Progressive

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Wheres the Twenty-Fifth Amendment When We Need It? - LA Progressive

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Does the Takings Clause Require Compensation for Coronavirus Shutdowns? – Reason

Posted: at 5:31 am

In general, I am a big supporter of strengthening protection for private property under the Takings Clause, and have written many works arguing the case for doing so. In this situation, however, it is unlikely that the Clause mandates compensation in all but a few cases. At the very least, there is no such requirement in current Supreme Court precedent, andon this pointthat precedent is unlikely to change in the near future.

While court decisions have long recognized that the Takings Clause requires compensation in at least some situations where the government restricts property rights without actually seizing the property in question, they have also long held that many exercises of the "police power"government's authority to protect public health and safetydo not qualify as takings. The most famous case of this type is the Supreme Court's decision in Miller v. Schoene (1928), where the Court ruled compensation is not required in a case where a state law required destruction of the owner's cedar trees in order to protect other trees in the area from the spread of a disease. Protecting large numbers of people from the spread of a disease is, of course, a much stronger police power imperative than protecting apple trees. This description is based on the conventional interpretation of Miller, which I have some reservations about. But, for present purposes, what matters is that the conventional view is the one embraced by courts.

Perhaps more relevantly, large numbers of businesses were forcibly shuttered by state and local governments during the influenza epidemic of 1918-19, the last time the US faced a public health crisis comparable in scale to this one. To my knowledge, none of them were ever held to be takings requiring compensation.

Not all exercises of the police power are exempt from the requirements of the Takings Clause. For example, a federal court recently ruled that compensation was owed in a case where the government deliberately flooded some property owners' land in order to protect others. I and a number of other commentators have been highly critical of another recent decision where an appellate court ruled that the government need not pay compensation in a case where the police virtually destroyed an innocent owner's home in order to smoke out a suspected shoplifter who had holed up inside.

But these types of cases differ from epidemic shutdowns in the important sense that they are not situations where the owner's use of the land in and of itself poses any threat to public health. Rather, the government decides to destroy a perfectly innocent property right in order to protect the public against threats emanating from elsewhere. By contrast, the continued operation of businesses that risk spreading a deadly disease during an epidemic do indeed pose a threat. The Takings Clause generally does not provide compensation in such cases. Doing so would risk creating a serious moral hazard by incentivizing owners to engage in dangerous uses of their property in order to get paid to stop.

Some state courts have interpreted their state constitutional takings clauses as requiring compensation when a local government changes zoning rules to forbid previously lawful businesses. But I doubt that these "amortization" precedents require compensation in cases like the Covid-19 shutdowns. Among other differences, amortization cases involve permanent rather than "merely" temporary bans on the enterprises in question.

Assume, for the sake of argument, that the plaintiffs in one of these cases somehow get past the police power issue. Even then, their prospects are likely to be bleak. Current Supreme Court precedent holds that only a few types of government actions qualify as automatic "per se" takings: most notably permanent physical occupation of property and regulations that completely destroy all of the property's economic value. Most other regulations are evaluated under the three factor test laid out in the 1978 Penn Central decision, which requires courts to consider 1) the economic impact of the regulation in question, 2) whether and to what extent, the owner suffered the loss of "investment-backed expectations," and 3) the "character" of the government action (if the government physically occupied or damaged the property in question, it is more likely to be a taking).

To make a long story short, the Penn Central test is often unclear and confusing, but is usually applied in ways that tilt the outcome in favor of the government. In this case, the fact that the shutdowns are "only" temporary and that there is no physical invasion of the owners' land are likely to be sufficient to enable the state to win most caseseven if the police power issue is set aside.

There might be some unusual cases where the impact of the government's actions is so severe that it does effectively destroy the entire economic value of a given piece of land, and therefore could be a per se taking. But such cases are likely to be rare, sinceagainthe restrictions are temporary and the owner couldin theorystill use the property for other purposes.

I am one of many takings scholars who have argued that the Penn Central test is a mess and that it should be replaced by something clearer and more protective of property owners' rights. So far, however, we have failed to persuade a majority of Supreme Court justices to agree with us. And that is unlikely to change in the near future, except in incrementally. If the justices do overrule Penn Central or revise its rules to provide stronger protection for property owners, a Coronavirus shutdown case strikes me as a highly unlikely vehicle for such a shift.

That gets me to final reason why courts are unlikely to rule that Coronavirus shutdowns qualify as takings: no judge will want to be seen as impeding an effort to save large numbers of lives in the midst of a grave menace to public health. As a general rule, I am not a "legal realist"a person who believes court decisions are primarily the product of judges' personal values and political commitments. But it would be naive to imagine that such commitments never play a role. And few if any judges want to be remembered for having endangered large numbers of lives. That might not matter if the legal arguments were overwhelmingly in favor of the plaintiffs. But, as we have seen, they are at best a stretchat least under current doctrine.

To be sure, a ruling that the government must pay compensation to owners of shuttered properties would not actually prevent the shutdowns, as such. It would merely require the state to pay for the privilege. I routinely make this point when critics argue that takings liability should not be expanded in other contexts, for fear that doing so would stop supposedly valuable government actions. But, in this case, the urgency of the crisis combined with the enormous scale of the compensation that would be required make it more likely that an adverse judicial ruling really would impede the government's policypotentially even shutting down the shutdown, so to speak.

The Takings Clause might still require compensation in situations where the government physically appropriates property in order to combat the epidemic. For example, it could potentially seize currently empty hotels or college dormitories in order to use them as temporary hospitals to treat Covid-19 patients. In such a case, there would be an actual physical occupation of property. And the police power exception would not apply, because the mere existence of an (unoccupied) hotel or dorm does not pose any threat to public health. But such cases are likely to be rare. If the need arises, owners of such structures would probably be happy to rent them to the government for fairly modest prices, given that they are unlikely to bring in much other revenue while the pandemic continues.

It gives me no pleasure to write any of the above. In an ideal world, I think at least some shutdown burdens should be compensable under the Constitution. But the Takings Clause is unlikely to be a vehicle for such compensation in all but a few marginal cases.

That said, I do think the principle underlying the Takings Clause points the way towards a moral rationale for compensation, even if such compensation is not legally required. As the Supreme Court put it in Armstrong v. United States (1960), "[t]he Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." That is exactly what is happening in the coronavirus shutdowns: owners and employees of the shuttered enterprises are bearing a hugely disproportionate share of the burden of protecting the population as a whole against the virus.

Moreover, the people in question haven't done anything wrong. They simply own and operate businesses thatin normal timesare not only innocent but actually make important contributions to the community.

I am not sure what the best way to compensate them is. But I do think there is a strong case for providing at least some substantial relief. On that score, I agree with much of what co-blogger Keith Whittington says here. As he points out, "the government itself has ordered businesses to stop operating" and "[i]n such circumstances, the government should compensate individuals for the damage it has wrought and relieve individuals from the unforeseen burdens that they have been asked to assume."

But, if the shutdowns continue for any significant length of time, I am not optimistic that even the best designed relief program can compensate for more than a fraction of the enormous losses large numbers of people will suffer. The only truly effective relief would be to figure out a way to safely end the shutdowns as soon as possible, while moving to something like a South Korean-style regime, under which freedom of movement is restored, but the virus is kept in check by a combination of widespread testing and effective quarantines of infected individuals until the need for it is obviated by the development of a vaccine.

But I readily admit I lack the expertise needed to figure out how to achieve that goal. In this post, I have tried to achieve the much humbler task of explaining why the Takings Clause is unlikely to relieve the distress of property owners suffering enormous losses due to the coronavirus shutdowns.

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Unequal Justice: Where Are Impeachment and the 25th Amendment When We Need Them? – Common Dreams

Posted: at 5:31 am

On March 13, in the midst of a deadly pandemic, President Donald Trump was asked if he took responsibility for the nation's lack of preparedness. Hisreply: "I don't take responsibility at all."

Where are impeachment and the Twenty-Fifth Amendmentthe two mechanisms provided by the Constitution for removing an unfit Presidentwhen we need them the most, as we do right now?

On February 5, Trump wasacquittedin his impeachment trial as a result of GOP cronyism and cowardice, so that door is shut. And theTwenty-Fifth Amendment, which requires action by the Vice President and a majority of the Cabinet or Congress to initiate removal, is a non-starter, given the obsequiousness of Mike Pence and the intractable corruption of Senate Republicans.

Meanwhile, just when you thought Trump couldn't get any crazier or more incompetent in his handling of the coronavirus crisis, he took another wild leap into bizarro land with comments at Tuesday's White House press conference, and in remarks he uttered the same day on Twitter.

The press conference was called to update the public on the health emergency and to announce the administration's stimulus package to revive the economy, which is now likely inrecession. In anexchange with reporters, Trump was asked by NBC's Kristen Welker whether he had changed his once-dismissive attitude about the perils posed by the virus. Trump responded:

"I have seen that where people actually liked [my tone during a press conference held the day before], but I didn't feel different. I've always known this is a realthis is a pandemic. I felt it was a pandemic long before it was called a pandemic. . . . I've always viewed it as very serious."

During the conference, Trump alsopraisedDemocratic New York Governor Andrew Cuomo, with whom he has often clashed over other kinds of policies and programs, stating that he and Cuomo had a "good talk this morning," and that he and the governor were "both doing a really good job."

But Trump delivered a very different message to his millions of social media followers just a few hours earlier, upbraiding Cuomo in aracist tweet: "Cuomo wants 'all states to be treated the same.' But all states aren't the same. Some are being hit hard by the Chinese Virus, some are being hit practically not at all. New York is a very big 'hotspot,' West Virginia has, thus far, zero cases. Andrew, keep politics out of it . . ."

By any rational standard, Trump's comments qualify as either some of the most egregious political lies of the twenty-first century or as yet another indication that he suffers from apersonality disorderthat allows him to dissociate from reality and disclaim responsibility for any of his actions. Instead, he blames others for any harm to the public, shocks to the stock market, or damage to the wider economy.

In truth, of course, the coronavirus isn't a Chinese disease, even if the initial outbreak occurred in China's Hubei Province and its capital city, Wuhan. The virus has since spread across the globe, fueled by community transmission, and is now firmly entrenched in the United States.

All Americans, regardless of race or ethnicity, are equally susceptible to the disease and equally capable of infecting others. And late Tuesday, belying Trump's tweet, West Virginiareportedits first coronavirus case. The disease is now in every state in the nation.

If anything, there is even less truth in Trump's press conference claim that he anticipated the pandemic before anyone else. To the contrary, Trumpdownplayedthe severity of the virus from the very outset, erroneously comparing it to the flu (which is far less lethal), denouncing media coverage of the malady as a "hoax," andpredictingthat "one dayit's like a miracleit will disappear."

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In arecent column,The New York Times' David Leonhardt catalogued many of Trump's most misleading statements. Here's a taste:

President Trump made his first public comments about the coronavirus on Jan. 22, in a television interview from Davos with CNBC's Joe Kernen. The first American case had been announced the day before, and Kernen asked Trump, "Are there worries about a pandemic at this point?"

The President responded: "No. Not at all. And we have it totally under control. It's one person coming in from China, and we have it under control. It's going to be just fine."

By this point, the seriousness of the virus was becoming clearer. It had spread from China to four other countries. China was starting to take drastic measures and was on the verge of closing off the city of Wuhan.

In the weeks that followed, Trump faced a series of choices. He could have taken aggressive measures to slow the spread of the virus. He could have insisted that the United States ramp up efforts to produce test kits. He could have emphasized the risks that the virus presented and urged Americans to take precautions if they had reason to believe they were sick. He could have used the powers of the presidency to reduce the number of people who would ultimately get sick.

He did none of those things.

Perhaps the most loathsome of all of Trump's lies was his oft-repeatedclaimthat test kits for the virus were widely available to anyone who desired one.

In fact, as other countries rolled out thousands of testing kits, the Centers for Disease Controlwas slow to act, and resisted using tests produced by the World Health Organization. Kits manufactured in the United States are only now being provided on a large scale to hospitals around the country, but at a pace that continues to lag that achieved by many other nations.

The paucity of kits prevented the United States from enacting early and effective containment initiatives, which in turn has resulted in undercounts of the U.S. infection rate, and no doubt will ultimately lead to a higher overall incidence of mortality from the illness.

If the first duty of a President is to level with the American people and tell the truth in times of crisis, Trump has been a colossal failure. Whether that failure is due to ineptitude, malfeasance, a psychological impairment or some combination of factors, the country needs to remove him from office.

In the absence of impeachment and the fortitude to invoke the Twenty-Fifth Amendment, we are left with one alternativeto oust him next November. That's provided, of course, that the coronavirus doesn't arm Trump with a pretext to suspend the election and declare martial law.

Think that couldn't happen? I would have thought so, too, but that was before the virus shut down life as we knew it in America.

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Unequal Justice: Where Are Impeachment and the 25th Amendment When We Need Them? - Common Dreams

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Daniel Collins Sides With Police in False Confession Case: Confirmed Judges, Confirmed Fears – People For the American Way

Posted: at 5:31 am

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

Ninth Circuit Trump judge Daniel Collins cast the deciding vote in a 2-1 panel decision against Art Tobias, who had been coerced by police when he was just 13 years old into confessing to a murder he did not commit. Decided in February 2020, Tobias v. East granted qualified immunity to three police detectives from being sued for obtaining and using an involuntary confession in violation of the boys Fifth Amendment right against self-incrimination and for violating his due process rights by using interrogation techniques that shock the conscience. Their actions led to Tobias being sentenced for 25 years to life, and he was imprisoned for more than three years before his conviction was finally reversed.

As alleged by Tobias, video footage of the murder viewed by police showed that the perpetrator was a heavyset adult. Even though Tobias was five feet tall, 110 pounds and only 13 years old, the police officers treated him as the primary suspect. During questioning, they ignored his request for an attorney (which was why the conviction was overturned, and which the panel unanimously agreed they could be sued for). They also would not let him see his mother while she was at the station. In fact, they falsely told Tobias that they had shown his mother the video, and that she had identified him as the perpetrator. They also falsely told him that other people he knew had ratted him out. They shamed him for dragging [his] family into this, threatening him with a harsh sentence but promising him leniency if he would confess.

The majority concluded that even under Tobiass version of eventsand acknowledging that the detectives had unconstitutionally denied him the right to counselthe interrogation was not unconstitutionally coercive, so Tobiass confession was not involuntary. In addition, the majority found that the methods did not shock the conscience because the interrogation lasted only 90 minutes and did not involve physical threats or abuse, but were instead techniques that are all permissible.

Judge Kim Wardlaw dissented, explaining that courts hold police to a higher standard when they are interrogating minors. She cited circuit precedent holding police accountable when two teenagers were relentlessly pressured into a false confession, stating that every reasonable officer would have understood that the interrogation tactics used against Tobias were unconstitutional.

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Daniel Collins Sides With Police in False Confession Case: Confirmed Judges, Confirmed Fears - People For the American Way

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