Category Archives: Fifth Amendment

The city of Huntsville isnt explaining why it hasnt rescheduled a disciplinary hearing for the police officer convicted of murder more than three weeks ago.

To somebody who is familiar with the citys process its really astounding, said Eric Artrip, a Huntsville attorney who has more than a decade of experience representing city employees in disciplinary hearings.

Ive never seen a city employee afforded the opportunity to remain on the payroll and ride it out using their accrued leave, he said. That just hasnt happened in my experience.

Will Culver, who was a Huntsville city councilman for 12 years, said the city could have avoided this predicament if it had either fired Darby or put him on leave without pay after he was indicted. If Darby was acquitted at trial, Culver said, the city could have reinstated him and given him back pay.

If it had been an officer that the chief of police wanted to terminate who had been in a situation like that or who was not in good graces with the mayor, said Culver, that never would have happened like that.

He would have been terminated before he was indicted, if you want to know the truth, he said, because they wouldnt want to have that on the citys roll as one of their own indicted. They went above and beyond to protect this officer.

In a statement released almost two weeks after Officer William Ben Darbys conviction, the city said it had scheduled and then later indefinitely postponed a disciplinary hearing to consider whether to fire Darby.

The city said it canceled the hearing because Darby availed himself to certain rights under federal law and changed his status from leave with pay to accrued pay.

As a result, his formal hearing has been postponed and will be promptly rescheduled to a later date following a change in his leave status, the city said in the statement.

City Attorney Trey Riley in an interview with AL.com last week declined to cite which laws the city took into account when it indefinitely postponed Darbys disciplinary hearing. Riley said that identifying which laws are involved could be a violation of Darbys privacy.

Under federal law, attorneys told AL.com, Darby could be entitled to postponement of his hearing if he is on medical or sick leave.

Riley declined to comment further on Darbys leave status, but said Darby is not on vacation.

We are treating Mr. Darby the same as we would a similarly situated city employee, Riley told AL.com.

But some attorneys and employment law experts question whether Darby is getting preferential treatment from city officials who have defended him since he shot and killed Jeff Parker three years ago.

Its just a very curious result, given the facts of this particular case, said Artrip. Far less serious infractions have resulted in termination within days, without a look at accrued leave.

Attorneys representing Darby in his employment case declined to comment and referred all questions to the city attorneys office.

The city has faced criticism including from two former federal prosecutors for keeping Darby employed after his conviction.

This situation in Huntsville, Alabama, where an officer convicted of the murder of a suicidal man who called for help, is still employed by the PD is badly wrong, Joyce White Vance, a former U.S. Attorney for the Northern District of Alabama wrote on Twitter. It will take a public spotlight to fix it, apparently a conviction wasnt enough.

Jay Town, Vances successor, also weighed in on Twitter.

Riley told AL.com the city did not pursue a disciplinary hearing after Darby was indicted because calling him to testify in the hearing would have violated his Fifth Amendment right to remain silent about the pending murder charge.

Peter Joffrion was the city attorney in Huntsville for 30 years until he retired in 2015. He explained how the disciplinary hearing process works.

At a disciplinary hearing, both the city and the employee can present arguments and witnesses to a hearing officer. Joffrion said the city has a roster of local attorneys who agree to serve as hearing officers.

The hearing officer decides the facts and sends a report to the employees department head. The department head in Darbys case thats police Chief Mark McMurray decides whether punishment is appropriate and what the punishment should be.

If the employee is fired, the city would have to pay them for their accrued benefits, like vacation days.

In Darbys disciplinary hearing, the city will have to show evidence proving he was convicted of a felony murder and stripped of his law enforcement certification.

The city hasnt yet rescheduled a disciplinary hearing.

Darby was found guilty of murder on May 7. Another officer testified against Darby, saying that she was trying to de-escalate the situation with Parker, a man who wanted to kill himself, before Darby showed up and killed him.

Mayor Tommy Battle and Chief McMurray have continued to support Darby, saying they disagreed with the jurys decision.

Meanwhile, Darby awaits sentencing for his murder conviction on Aug. 20 in Madison County Circuit Judge Donna Pates courtroom.

See the article here:
Citing privacy concerns, Huntsville wont explain why convicted officer is still employed - AL.com

With Minority Leader Mitch McConnell announcing his opposition to the creation of a bipartisan commission to investigate the January 6 attack on the US Capitol, prospects for Senate passage of the recent House bill creating such a commission appear slim.

House Speaker Nancy Pelosi should follow through on her willingness to create a select committee in the House to conduct a full and professional investigation of the January 6 insurrection instead. And she should do so quickly.

The model for this panel should be the select committee that investigated the Iran-Contra affair.

In January 1987, the House decided to launch an investigation into the most significant presidential scandal since Watergate. Given the magnitude of the investigation and the importance of bringing it to a quick conclusion, the House select committee was given legal powers beyond the usual norms of congressional oversight.

The chair of the select committee had full authority to issue subpoenas, compelling the production of documents and witnesses with the force of law. The committee also took the unusual step of conducting some 250 depositions -- sworn testimony under oath -- by its staff attorneys. Since the staff was comprised largely of former prosecutors, the witness testimony was analogous to a grand jury inquiry.

During the course of depositions, some witnesses asserted their Fifth Amendment privilege against self-incrimination. The committee, therefore, had the power to seek compulsion of testimony over Fifth Amendment objections by obtaining a court order immunizing a witness against the use of compelled testimony.

Only after having completed its investigative phase did the select committee hold 40 days of public hearings, with 29 witnesses testifying over the course of three months.

I served on the committee as counsel from its inception to its close. Our chair was Congressman Lee Hamilton, a Democrat, who insisted on the highest standards, and specifically that counsel conduct full and professional questioning of all witnesses before members of Congress had more limited turns. If the House decides to create a select committee to investigate the January 6 insurrection on the Capitol, it should follow his precedent.

Chairman Hamilton also worked diligently to cooperate with the minority Republicans on the select committee, but given the intractable Republican opposition now, Speaker Pelosi should endeavor to only accept the appointment of Republican members, such as Rep. Liz Cheney, committed to a professional investigation.

Republican Sen. Howard Baker, who later served as Ronald Reagan's chief of staff, posed the famous question that animated the Watergate hearings in the Senate: "What did the President know and when did he know it?" Chairman Hamilton told me that we could not perform our duty to the country unless we answered the same question in our investigation of the Iran-Contra scandal.

When it comes to the January 6 insurrection, this Congress must have the same courage and fidelity to the Constitution to ask, what did then-President Donald Trump know and when did he know it?

It took three hours and 19 minutes between the time Capitol Police requested military assistance and the time when the military was finally ordered to respond, according to the testimony of DC National Guard Commanding Maj. Gen. William Walker.

Did former President Trump have any responsibility for the delay? Did he have any advance knowledge of the insurrectionists' plans? Was there any coordination with the rioters beyond the President's public words?

When faced with possible collusion by President Trump, now is not the time for business as usual on Capitol Hill.

A select House committee needs to conduct a thorough and proactive investigation adopting the model of the Iran-Contra select committee. Appoint a staff of experienced former federal prosecutors. Subpoena and depose witnesses under legal compulsion and under oath before even beginning public hearings. Immunize witnesses where necessary but freely and widely.

A well-documented and substantive record of professional fact-finding will help counter any claims of partisanship.

Traditional norms of oversight alone are not enough. Our democracy literally hangs in the balance.

Link:
What the House should quickly do if the January 6 commission fails in the Senate - WTVA

KING WILLIAM COUNTY, Va. (WRIC) A six-day trial for the two men accused of murdering an 8-year-old boy during an attempted robbery in King William County is underway in Circuit Court. Its been more than two years since the crime was committed and Orlando Anderson Jr.s parents are hoping to finally get justice and accountability.

Day two of the trial started at 9 a.m. on Tuesday. 8News witnessed Alexis Mines and Orlando Anderson Sr., who are now grieving parents, walking into the King William County Courthouse wanting one thing.

Justice, Anderson told 8News outside the courthouse.

Justice for their son, Orlando affectionately known as Scrappy, who was killed in his sleep on January 21, 2019. Shortly before midnight, an intruder kicked in the familys door on Robin Lane and opened fire. A bullet struck the 8-year-old in the head. He died from his injuries at the hospital; Mines telling 8News she donated his organs.

Back in 2019, just two days after the incident, Orlandos parents sat down with 8News Reporter Talya Cunningham in a heart-wrenching interview.

Yall robbed me, sobbed Anderson. Somebody took my son from me.

Anderson and his mother, Linda Anderson, were in the house, the night of the incident and continue to relive the trauma. Anderson told 8news he was woken up to gunfire and tried to save his son.

I suffer from PTSD, so it really hasnt been good, Anderson said on Tuesday. Ive been having a lot of nightmares.

After a year of no answers, a crack in the case. Virginia State Police arrested 32-year-old Charles Coleman and 35-year-old Keith Hargrove.

Coleman is charged with first degree murder, attempted robbery with a firearm, armed burglary of a residence, conspiracy to commit burglary, conspiracy to commit robbery, and two counts of use of a firearm in the commission of a felony. Hargrove faces two additional charges: discharging a firearm in an occupied dwelling and possession of a firearm by a convicted felon.

A possible motive coming out during Mondays opening statements. Family members at the courthouse told 8News that the Commonwealths Attorney is claiming the two men broke into Andersons home, attempting to steal lottery winnings that Anderson posted about online.

On Tuesday, a Special Agent with the Richmond Police Department testified about what led authorities to zero-in on Hargrove as a suspect. Fourteen jury members watched body camera video, worn by the special agent, during an unrelated arrest. It was stated in court that Hargrove was wanted for drug possession.

As officers came into contact with Hargrove on Jan. 30, 2019, a firearm was located in his jacket pocket. That firearm was traced back to the crime, according to family members.

A ballistic report is expected to be presented on Wednesday in court. Also during a body search oxycodone pills, marijuana, heroin, a wad of cash, and two cell phones were found on Hargrove.

The prosecution pushed technology as major factor in the case bringing in several agents from VSPs High-Tech Crimes Unit to testify. Several cell phones, including Hargroves, were analyzed and email accounts seized.

Sources tell 8News on Wednesday, the prosecution is expected to tell the jury what they discovered on the phones and how it will likely incriminate the two men.

Im just a little anxious and Im just trying to see how this is going to play out, Anderson told 8News.

Tuesdays proceedings wrapped up early after a witness Donell Downey refused to testify, citing his fifth amendment rights. Downey stated loudly into the microphone when asked any questions by the Commonwealths Attorney I plead my fifth amendment rights, I changed my mind, I dont want the plea, Ill go back to jail, and Im following my constitutional rights.

According to online court records, Downey is charged in King William Circuit Court with charges similar to Hargrove and Coleman including first-degree murder, armed burglary, etc. Sources tell 8News Downey was charged later in the crime, but offered a plea deal to testify against the two suspects, however he rescinded the deal while on the stand.

On Tuesday, both Hargrove and Coleman did not speak and sat next their attorneys.

A verdict should be reached on Friday.

Here is the original post:
Trial starts for two men charged in the murder of 8-year-old King William child - 8News

Photo: hafizi (Shutterstock)

If youve ever wondered if you should invoke something or evoke it, youre not alone. Not only do the words sound similar, but the difference in their meanings is subtle, and theyre also not likely to be words we use often. Thats when its time to invoke the knowledge of the grammar gods.

The first reason these two words can be tricky to distinguish between is that they both derive from the same Latin root word (vocare or vox, which means to call or voice). They can both mean to conjure or to cite, but there are some nuances to what you might invoke versus what you might evoke.

Although invoke and evoke are both used to call things, invoke has more of a call upon connotation, particularly as it relates to an authority, aid, or assistance of some kind. (Thats why we invoked the knowledge of the grammar gods, who are working through me to help clear up any confusion.)

You might invoke your fifth amendment right, or you might want to invoke a creative muse when youre feeling blocked.

Evoke more often means to call forth, which sort of sounds like the same thing but refers more to calling a memory, image, or emotion to your mind. To smell freshly made applesauce might evoke memories of holidays at Grandmas house, but a bad attitude is not likely to evoke sympathy from your partner.

G/O Media may get a commission

Actually remembering the difference when you need it is the struggle, but there are some tricks that might work for you. As Grammarly says:

The difference between the two could be summarized like this: Invoke is active and direct, and it can have a material effect; Evoke is passive and indirect, and it usually has an emotional or intellectual effect.

My takeaway here is that if you can remember that Evoke is often related to Emotions, you should be good to go in most cases.

Merriam-Webster also points out that lengthening the words can help clear up the difference when youre extra stuck:

There is little confusion with longer forms of each word, which may help you in differentiating between them. Examples of these include evocative, which means evoking or tending to evoke an especially emotional response, and invocation, which is frequently used in the sense of a summoning up or calling upon for authority or justification.

And finallybecause someone at Merriam-Webster must have been feeling extra spicy on this particular daythey also point out that if youre still confused, its no big deal. Thats just English being English, and heres a cute limerick they wrote to drive that point home:

You think that you mightve misspoke

With your recent use of invoke

We offer the thesis

That such catachresis

Our language is made to provoke

If nothing else, we all know what catachresis means now, which is something.

Continued here:
How to Remember the Difference Between Invoke and Evoke - Lifehacker

MINNEAPOLIS (NewsNation Now) Americans on Tuesday marked the first anniversary of the death ofGeorgeFloyd, which catalyzed the largest U.S. protest movement in decades over police brutality against Black people.

Four police officers arrested the 46-year-old Black man after he was accused of using a counterfeit $20 bill at a Minneapolis corner grocery store. Floyd died after a white police officer, Derek Chauvin, pressed his knee of Floyds neck for more than 9 minutes while he washandcuffed and pleading that he couldnt breathe.

A jury convicted Chauvin on all charges related to Floyds death including second-degree unintentional murder, third-degree murder and second-degree manslaughter.

However, the aftermath of Floyds murder is far from over. Ongoing investigations and trials, including one for the three other officers involved in Floyds death, are set for next year.

Here is a look at the investigations, trials and notable dates ahead:

Chauvin will be sentenced on June 25 at 1:30 p.m., by Peter Cahill, the Hennepin County judge who oversaw the trial, according to online court records.

Chauvin was found guilty on all charges in April: second-degree unintentional murder, third-degree murder and second-degree manslaughter.

Even though he was found guilty of three counts, under Minnesota statutes,hell only be sentenced on the most serious one second-degree murder.While that count carries a maximum sentence of 40 years, experts say he wont get that much. They say that for all practical purposes, the maximum he would face is 30 years, and he could get less.

Thomas Lane, J. Kueng and Tou Thao are expected to be arraigned on civil rights violations on July 14 in U.S. District Court in Minneapolis.

The trial of three former Minneapolis police officers charged with aiding and abetting in Floyds death was pushed back until May 2022.

Thomas Lane, J. Kueng and Tou Thao were previously scheduled to face trial Aug. 23.

Judge Peter Cahill said he changed the date so the federal case can go forward first. He also said he felt the need to put some distance between the three officers trial and Chauvins due to all the publicity around the case. Their trial is expected to be broadcast.

A federal grand jury indicted Chauvin, Lane, Keung and Thao in May, accusing them of violatingFloyds rights as he was restrained face-down on the pavement and gasping for air, according to unsealed indictments.

Specifically, Chauvin is charged with violating Floyds right to be free from unreasonable seizure and unreasonable force by a police officer. Thao and Kueng are also charged with violating Floyds right to be free from unreasonable seizure, alleging they did not intervene to stop Chauvin as he knelt on Floyds neck. All four officers are charged for their failure to provide Floyd with medical care.

Conviction on a federal civil rights charge is punishable by up to life in prison or even the death penalty, but those stiff sentences are extremely rare and federal sentencing guidelines rely on complicated formulas that indicate the officers would get much less if convicted. A trial date has not been released but is expected after other trials.

Attorney General Merrick Garland announced in April that the Justice Department launched a sweeping investigation into policing practices in Minneapolis after the guilty verdict in Floyds death.

The probe will assess whether the Minneapolis Police Department engages in a pattern or practice of using excessive force, including during protests,Garlandsaid.

The investigation is known as a pattern or practice and will be a more sweeping probe of the entire department. It may result in major changes to policing there, an official told the Associated Press.

The examination will look at practices used by police and whether the department engages in discriminatory practices. It will examine the departments handling of misconduct allegations, among other things, according to APs source. Its unclear how far back that will go.

Chauvins defense lawyer, Eric Nelson, filed a motion asking for a new trial at the beginning of May. Nelsons motion argues a new trial is valid for 10 different reasons, including prosecutorial and jury misconduct, as well as denying a change of venue.

Chauvins legal team argues in the court documents filed that the jury should have been sequestered for the duration of the trial and told to avoid all media which resulted in jury exposure to prejudicial publicity regarding the trial during the proceedings.

They also argue that the court failing to orderMorries Hall, a friend of Floyds, to testify violated Chauvins rights under the Confrontation Clause of the U.S. Constitution. Hall used his Fifth Amendment rights to refuse self-incrimination from his testimony. Chauvins defense team had subpoenaed him to testify that Floyd took opioid pills before the arrest and appeared to fall into a deep sleep at some point.

It is unknown if the motion will be granted and how it will move forward at this time.

The Associated Press and Reuters contributed to this report.

See the original post here:
Notable investigations, trials and dates ahead 1 year after George Floyds death - NewsNation Now

New York State Attorney General Letitia James is doing the right thing by joining forces and investigations with Manhattan District Attorney Cy Vance. Until now, James had been heading up a civil investigation of the Trump Organization while Vance was conducting a criminal one. Now, it appears that the states civil investigators have found red badges indicating criminal fraud.

What is the difference, you ask?

First and foremost, a criminal case means that executives from the Trump Organization, including its namesake chief honcho, can go to jail if convicted of criminal violations, while civil penalties are monetary in nature. But theres also a technical, but important, difference here, about how investigators obtain their evidence while respecting the rights of the folks they are investigating.

When conducting a criminal investigation, the prosecutor and the agents must allow for the Fifth Amendment rights against self-incrimination. This means the agents cannot compel Donald Trump or any Trump executives to testify against themselves. It also means that Trump and his children don't have to turn over tax returns or other potentially incriminating records voluntarily. Third-party records must be subpoenaed, and that provides for the possibility of intervening with lawsuits as happened in the Mazars accounting firm saga, when they took their fight against releasing Trumps taxes, which they had prepared, all the way to the Supreme Court.

Think about an IRS audit. When Uncle Sam demands to see receipts supporting the charitable contributions you claim to have made on your tax returns, you must comply and hand them over with no viable recourse.

But if a Special Agent from the IRS Criminal Investigation Division shows up at your door and wants to question you about potential fraud with regard to your tax returns, that agent must first read you your Fifth Amendment rights against self-incrimination.

Its a really big difference!

Classic indicators of criminal fraud include the use of more than one set of books and records; the use of false invoices; the use of shell companies to conceal financial transactions and the altering of books and records and false statements by the subjects of the investigation.

The IRS almost never conducts a criminal investigation at the same time it is conducting a civil audit. The audit is frozen the minute the criminal investigation is initiated. This means that there can be no confusion for the subject of the investigation as to the nature of the investigation and the right to not self-incriminate.

Only after the criminal investigation is completed can the civil audit resume. Tax and penalties can be asserted then, and no legal confusion ensues.

One other point about the timing of James decision to convert a civil investigation into a criminal one: IRS auditors are trained that when conducting civil audits that they are to make criminal referrals once firm indications of fraud are unearthed. This means that evidence may have been obtained demonstrating that financial records were intentionally and/or willfully falsified or concealed in some fashion.

Classic indicators of criminal fraud have been held by the courts to be the use of more than one set of books and records; the use of false invoices; the use of shell companies to conceal financial transactions, and the altering of books and records and false statements by the subjects of the investigation.

Taxes and penalties can be asserted later on and there may well be an opportunity for the criminal investigation to result in seizure and forfeiture of Trump assets should the Trump Organization be indicted and convicted of criminal RICO and/or money laundering charges that include forfeiture counts.

By making the wise decision to convert her civil investigation into a criminal investigation, the AGs investigators can provide quality subject matter expertise to the DA that will maximize the efficiency and effectiveness of what is likely a complex case, and James has an opportunity to share in the spotlight of a potentially successful joint criminal investigation of one of New York's most notorious real estate tycoons.

The rest is here:
AG's Move to Criminal Probe Is a Red Alert for the Trump Org - The Daily Beast

The Fourth Amendment was designed to stand between us and arbitrary governmental authority. For all practical purposes, that shield has been shattered, leaving our liberty and personal integrity subject tothe whim of every cop on the beat, trooper on the highway and jail official. The framers would be appalled.Herman Schwartz,The Nation

Weve all been there before.

Youre driving along and you see a pair of flashing blue lights in your rearview mirror. Whether or not youve done anything wrong, you get a sinking feeling in your stomach.

Youve read enough news stories, seen enough headlines, and lived in the American police state long enough to be anxious about any encounter with a cop that takes place on the side of the road.

For better or worse, from the moment youre pulled over, youre at the mercy of law enforcement officers who have almost absolute discretion to decide who is a threat, what constitutes resistance, and how harshly they can deal with the citizens they were appointed to serve and protect.

This is what I call blank check policing, in which the police get to call all of the shots.

So if youre nervous about traffic stops, you have every reason to be.

Trying to predict the outcome of any encounter with the police is a bit like playing Russian roulette: most of the time you will emerge relatively unscathed, although decidedly poorer and less secure about your rights, but theres always the chance that an encounter will turn deadly.

Try to assert your right to merely ask a question during a traffic stop and see how far it gets you.

Juanisha Brooksblack, 34 years old and on her way home at 2:20 amwas pulled over, handcuffed, arrested and charged with resisting arrest, eluding the police, reckless driving and failure to use headlightsafter repeatedly asking police why she had been stopped. When Brooksa Department of Defense employeefiled a complaint, prosecutors conceded that the traffic stop had been carried out without proper legal basis and dropped all charges.

Caron Nazario, a uniformed Army officer returning home from his duty station, was stopped for not having a rear license plate (his temporary plates were taped to the rear window of his new SUV). Nazario, who is Black and Latino, pulled over at a well-lit gas station only to bepepper sprayed, held at gunpoint, beaten and threatened with execution.

Zachary Noel was tasered by police andcharged with resisting arrest after he questioned why he was being ordered out of his truck during a traffic stop. Because Im telling you to, the officer replied before repeating his order for Noel to get out of the vehicle and then, without warning, shooting him with a taser through the open window.

Despite complying with all police orders when ordered to show his identification and exit his parked vehicle, Jeriel Edwards was subjected to excessive force and brutality, including being thrown to the ground, tasered, and placed in a chokehold that rendered him unconscious and required his hospitalization for three days. Although dash cam video of the arrest confirms that Edwards was peaceful, did not defy police orders, and did nothing to provoke police, a federal court ruled thatEdwards trouble understanding police directions during the encounter constituted resistancethat justified the force used by the four police officers involved in the violent arrest. Edwards is African-American.

Gregory Tucker, also black, was stopped by police for a broken taillight, only to be thrown to the ground, beaten and punched in the face and body more than 20 times, then arrested and hospitalized for severe injuries to his face and arm,all for allegedly resisting arrest by driving to a safe, well-lit areain front of his cousins house before stopping.

No wonder Americans are afraid of getting pulled over by police.

Mind you, all of these individualscompliedwith police. They just didnt do itfast enoughto suit their purposes.

At a time when police can do no wrongat least in the eyes of the courts, police unions and politicians dependent on their votesand a fear for officer safety is used to justify all manner of police misconduct, we the people are at a severe disadvantage.

Add a traffic stop to the mix, and that disadvantage increases dramatically.

According to the Justice Department, themost common reason for a citizen to come into contact with the policeis being a driver in a traffic stop.

On average,one in 10 Americans gets pulled over by police.

According to data collected under Virginias new Community Policing Act,black drivers are almost two times more likely than white drivers to be pulled over by policeand three times more likely to have their vehicles searched. As theWashington Postconcludes, Driving while black is, indeed, ameasurable phenomenon.

Historically, police officers have been givenfree range to pull anyone over for a variety of reasons.

This free-handed approach to traffic stops has resulted in drivers being stopped for windows that are too heavily tinted, for driving too fast, driving too slow, failing to maintain speed, following too closely, improper lane changes, distracted driving, screeching a cars tires, and leaving a parked car door open for too long.

Motorists can also be stopped by police for driving near a bar or on a road that has large amounts of drunk driving, driving a certain make of car (Mercedes, Grand Prix and Hummers are among the most ticketed vehicles), having anything dangling from the rearview mirror (air fresheners, handicap parking permits, toll transponders or rosaries), and displaying pro-police bumper stickers.

Incredibly, a federal appeals court actually ruled unanimously in 2014 thatacne scars and driving with a stiff upright posture are reasonable grounds for being pulled over. The Fifth Circuit Court of Appeals ruled thatdriving a vehicle that has a couple air fresheners, rosaries and pro-police bumper stickers at 2 MPH over the speed limit is suspicious, meriting a traffic stop.

Equally appalling, inHeien v. North Carolina, the U.S. Supreme Courtwhich has largely paved the way for the police and other government agents to probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstanceallowed police officers to stop drivers who appear nervous, provided they provide a palatable pretext for doing so.

Justice Sonia Sotomayor was the lone objector in the case. Dissenting inHeien, Sotomayor warned, Giving officers license to effect seizures so long as they can attach to their reasonable view of the facts some reasonable legal interpretation (or misinterpretation) that suggests a law has been violated significantly expands this authority...One wonders how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters could do so.

In other words, drivers beware.

Traffic stops arent just dangerous. They can be downright deadly.

Remember Walter L. Scott? Reportedlypulled over for a broken taillight, Scottunarmedran away from the police officer, who pursued and shot him from behind, first with a Taser, then with a gun. Scott was struck five times, three times in the back, once in the upper buttocks and once in the ear with at least one bullet entering his heart.

Samuel Dubose, also unarmed, waspulled over for a missing front license plate. He was reportedly shot in the head after a brief struggle in which his car began rolling forward.

Levar Jones wasstopped for a seatbelt offense, just as he was getting out of his car to enter a convenience store. Directed to show his license, Jones leaned into his car to get his wallet, only to be shot four times by the fearful officer. Jones was also unarmed.

Bobby Canipe waspulled over for having an expired registration. When the 70-year-old reached into the back of his truck for his walking cane, the officer fired several shots at him, hitting him once in the abdomen.

Dontrell Stevens wasstopped for not bicycling properly.The officer pursuing him thought the way Stephens rode his bike was suspicious. He thought the way Stephens got off his bike was suspicious. Four seconds later, sheriffs deputy Adams Lin shot Stephens four times as he pulled out a black object from his waistband. The object was his cell phone. Stephens was unarmed.

Sandra Bland, pulled over for allegedly failing to use her turn signal, was arrested after refusing to comply with the police officers order to extinguish her cigarette and exit her vehicle. The encounter escalated, with the officer threatening to light Bland up with his taser. Three days later, Bland was found dead in her jail cell. Youre doing all of this for a failure to signal? Bland asked as she got out of her car, after having been yelled at and threatened repeatedly.

Keep in mind, from the moment those lights start flashing and that siren goes off, were all in the same boat. However, its what happens after youve been pulled over thats critical.

Survival is key.

Technically, you have the right to remain silent (beyond the basic requirement to identify yourself and show your registration). You have the right to refuse to have your vehicle searched. You have the right to film your interaction with police. You have the right to ask to leave. You also have the right to resist an unlawful order such as a police officer directing you to extinguish your cigarette, put away your phone or stop recording them.

However, there is a price for asserting ones rights. That price grows more costly with every passing day.

If you ask cops and their enablers what Americans should do to stay alive during encounters with police, they will tell you to comply, cooperate, obey, not resist, not argue, not make threatening gestures or statements, avoid sudden movements, and submit to a search of their person and belongings.

Unfortunately, there are no longer any fail-safe rules of engagement for interacting with the police.

In the American police state, compliance is no guarantee that you will survive an encounter with the police with your life and liberties intact.

Every day we hear about situations in which unarmed Americans complied and still died during an encounter with police simply because they appeared to bestanding in a shooting stanceorheld a cell phoneor agarden hoseorcarried around a baseball batoranswered the front dooror held aspoon in a threatening mannerorran in an aggressive mannerholding a tree branch orwandered around nakedorhunched over in a defensive postureor made the mistake ofwearing the same clothes as a carjacking suspect(dark pants and a basketball jersey) or dared toleave an area at the same time that a police officer showed uporhad a car break downby the side of the road or weredeaforhomelessorold.

More often than not, it seems as if all you have to do to be shot and killed by police is stand a certain way, or move a certain way, or hold somethinganythingthat police could misinterpret to be a gun, or ignite some trigger-centric fear in a police officers mind that has nothing to do with an actual threat to their safety.

Now you can make all kinds of excuses to justify these shootings, and in fact thats exactly what youll hear from politicians, police unions, law enforcement officials and individuals who are more than happy to march in lockstep with the police.

However, to suggest that a good citizen is a compliant citizen and that obedience will save us from the police state is not only recklessly irresponsible, but it is also deluded and out of touch with reality.

To begin with, and most importantly, Americans need to know their rights when it comes to interactions with the police, bearing in mind thatmany law enforcement officials are largely ignorant of the law themselves.

A good resource is The Rutherford Institutes Constitutional Q&A: Rules of Engagement for Interacting with Police.

In a nutshell, the following are your basic rights when it comes to interactions with the police as outlined in the Bill of Rights:

You have the right under the First Amendment to ask questions and express yourself. You have the right under the Fourth Amendment to not have your person or your property searched by police or any government agent unless they have a search warrant authorizing them to do so. You have the right under the Fifth Amendment to remain silent, to not incriminate yourself and to request an attorney. Depending on which state you live in and whether your encounter with police is consensual as opposed to your being temporarily detained or arrested, you may have the right to refuse to identify yourself. Not all states require citizens to show their ID to an officer (although drivers in all states must do so).

As a rule of thumb, you should always be sure to clarify in any police encounter whether or not you are being detained, i.e., whether you have the right to walk away. That holds true whether its a casual show your ID request on a boardwalk, a stop-and-frisk search on a city street, or a traffic stop for speeding or just to check your insurance. If you feel like you cant walk away from a police encounter of your own volitionand more often than not you cant, especially when youre being confronted by someone armed to the hilt with all manner of militarized weaponry and gearthen for all intents and purposes, youre essentially under arrest from the moment a cop stops you. Still, it doesnt hurt to clarify that distinction.

While technology is always going to be a double-edged sword, with the gadgets that are the most useful to us in our daily livesGPS devices, cell phones, the internetbeing the very tools used by the government to track us, monitor our activities, and generally spy on us,cell phones are particularly useful for recording encounters with the policeand have proven to be increasingly powerful reminders to police that they are not all powerful.

Knowing your rights is only part of the battle, unfortunately.

As I make clear in my bookBattlefield America: The War on the American People, the hard part comes in when you have to exercise those rights in order to hold government officials accountable torespectingthose rights.

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Drivers Beware: The Deadly Perils of Blank Check Traffic Stops - John Whitehead's Commentary Drivers Beware: The Deadly Perils of Blank Check Traffic...

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.

Trump Sixth Circuit judge Eric Murphy cast the deciding vote to excuse police violation of an African-American mans rights by continuing to interrogate him even after he made clear that he did not want to be questioned further, in direct violation of the Supreme Courts Miranda decision. The May, 2021 decision is in Grayson v Horton, 2021 U.S. App. Lexis 13172 (6th Cir. May 3, 2021).

Clinton Rayshawn Grayson, an African-American man, was arrested by police because they suspected he was one of four masked men who participated in a robbery and fatal shooting at a store in Michigan. After initial questioning, Grayson unequivocally asserted his constitutional right to remain silent, but the police continued to interrogate him anyway, in direct violation of the Supreme Courts well-established Miranda decision. Grayson then stated that he was one of the three men shown in a video during the incident, that statement was improperly admitted into evidence against him, and he was convicted of felony murder.

A state court of appeals acknowledged that the police had improperly interrogated him after he made clear he did not want to talk with them, but claimed the admission of the statement was harmless error because of other evidence against Grayson. Acting on his own without a lawyer, he filed for federal post-conviction relief in a district court, which denied his request. Again acting without a lawyer, Grayson appealed to the Sixth Circuit.

In a 2-1 unsigned decision in which Trump judge Murphy was the deciding vote, the court affirmed the lower court and rejected Graysons appeal. The panel acknowledged that the police had violated Graysons rights and that his statement was erroneously admitted into evidence at trial, and that under Supreme Court precedent, federal post-conviction relief should properly be granted if the federal court has grave doubt about whether the constitutional violation and improper admission of evidence had substantial injurious effect or influence on the jurys guilty verdict. The majority claimed that this standard was not met, however, because the government allegedly presented a compelling case even without Graysons confession, including picture and video evidence and records of frequent cellphone calls among Grayson and the three others.

Judge Karen Nelson Moore strongly dissented. Without the statement improperly obtained from Grayson by the police, she explained, this is little more than a case of guilty by association and a weak one at that. The picture and video evidence was highly suspect, she continued, since the men were masked and a security guard failed to identify Grayson in an earlier video of the men at an apartment building. The cell phone data, she went on, shows at best that he may have been in the vicinity of the store on the night of the incident and that he had been interacting by phone with the other men, his friends, and the interaction stopped when they were robbing the store, all of which does little to implicate Grayson. Moore pointed out that neither of the witnesses who saw men in dark clothes enter the store identified Grayson, and that there was no DNA, fingerprint, or other physical evidence connecting Grayson to the crime scene.

In short, Judge Moore concluded, there were grave doubts that Grayson would have been convicted if not for the alleged confession that was illegally obtained by the police. As a result of Trump judge Murphys deciding vote, however, another Black man will remain in prison, and police will see another example of federal judges excusing misconduct concerning interrogation. In fact, this decision is disturbingly similar to another recent case where a Trump judge cast the deciding vote to excuse police misconduct in violating a persons Fifth Amendment rights. This case reinforces the importance of promptly filling all federal court vacancies with Biden nominees as part of our fight for our courts.

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Trump Judge Casts Deciding Vote to Excuse Clear Violation by Police of Black Man's Fifth Amendment Rights: Confirmed Judges, Confirmed Fears - People...

While the details of the WTO patent waiver have not been determined (or more properly negotiated), it is important to consider the structure of the international trade regime in which the waiver will operate and the consequences of any agreement defining exactly what will be waived.

The GATT/TRIPS agreement is a treaty, which (of course) is an agreement between countries, and disputes and accommodations are between their governments. The extent to which a private company's patent or other IP rights are protected under the terms of these agreements depends on actions of these governments in enforcing them on the company's behalf. Thus, for protections like patents, a government can agree to "turn a blind eye" to infringement by companies in other countries (or other governments) by refusing to press the rightsholder's case before the WTO, to pressure the governments unilaterally (as in the Watch List and Special Watch List of the U.S. Trade Representative's Special 301 Report), or otherwise support a private company's private actions using an infringing country's legal system. Such "passive" actions (i.e., refusing to enforce rights in violating or "scofflaw" countries) requires very little affirmative action by a government. These are the types of de facto waivers that can be effective, for example, for patented drugs that can be produced by conventional drug production technology wherein description of an active pharmaceutical ingredient molecule.

The details of COVID vaccine production have been set out in various new sources (see Neuberg et al., "Exploring the Supply Chain of the Pfizer/BioNTech and Moderna COVID-19 Vaccines"; Weiss et al., "A COVID-19 Vaccine Life Cycle: From DNA to Doses," USA Today, Feb. 7, 2021; King, "Why Manufacturing Covid Vaccine to at Scale Is Hard," Chemistry World, Mar. 23, 2021; Cott et al., "How Pfizer Makes Its Covid-19 Vaccine," New York Times, April 28, 2021). But these are certainly not disclosed in the detail necessary for commercial production, and the complexities of production are illustrated in graphics from the Times article, wherein the DNA is prepared in Chesterfield, MO and shipped to Andover, MA for mRNA production; then the mRNA shipped back to Chesterfield or Kalamazoo, MI for packaging into the vaccine nanoparticles; and then sent back to Andover for testing before release. While some of this complexity may be company-specific, it also represents the different technological requirements for preparing an effective vaccine. It is unlikely that most of the countries in favor of the waiver (except India and South Africa) have the technological infrastructure for producing the vaccine. And the company in India, the Serum Institute ("the largest vaccine maker in the world"), having the greatest likelihood of being able to reproduce the vaccine if the waiver is put in place recently was forced to "hand over its vaccines to the [Indian] government," according to an article in the New York Times (Schmall et al., "India and Its Vaccine Maker Stumble over Their Pandemic Promises," May 9, 2021).

It is evident that, in the almost total absence of patents involved in COVID vaccine preparation, the disclosure needed to reproduce these vaccines (no matter how difficult that may be in practice) are protected by trade secrets. If the WTO imposes this waiver, the question will be whether the U.S. will compel disclosure of trade secret owned by U.S. companies, or have disclosed them to the extent such secrets are part of regulatory filings. Either action would constitute a "taking" under the Fifth Amendment ("Nor shall private property be taken for public use, without just compensation"); see Epstein et al., "The Fifth Amendment Takings Clause," Interactive Constitution: Common Interpretation. Seemingly simple and straightforward, almost every word in the clause is open to interpretation, none perhaps as much as determining what "just compensation" entails. It is likely that, should the government act peremptorily with regard to takings of trade secrets justified by any WTO waiver clause, the effect on trade secrets will carry the greatest consequences and be the cause of most controversy. Indeed, the prospects arising therefrom are likely some of the biggest impediments towards effectuating any waiver in a manner that could have any chance of achieving the stated goal of facilitating COVID vaccine production.

This prospect also raises the issue of how any such waiver will be implemented in the U.S. Treaties are not necessarily "self-executing" and need to become enforceable through an Act of Congress. The distinguishing feature of such treaties are that "provisions in international agreements that would require the United States to exercise authority that the Constitution assigns to Congress exclusively must be deemed non-self-executing, and implementing legislation is required to give such provisions domestic legal effect." See Mulligan, "International Law and Agreements: Their Effect upon U.S. Law," Congressional Research Service 7-5700, Sep. 19, 2018. The necessity for Congress to act, although not having the heavy weight that entails approving treaties (i.e., a two-thirds majority vote in the Senate) nonetheless could be expected to face significant opposition should it be interpreted to permit the government to exercise a form of "eminent domain" over pharmaceutical companies' trade secrets. In this regard such an act could readily be characterized as "forced technology transfer" and even IP theft, should, for example, such trade secrets be capable of use to weaponize rather than immunize against viral infections.

The administration's public position raises the likelihood of an infringement on private property unprecedented in the U.S. It also has implications for other aspects of foreign policy; for example, at least some of the trade secrets belong to BioNTech, a German company. Germany has not agreed to the waiver, and should the U.S disclose BioNTech's trade secrets, no doubt Germany would have cause to seek redress against America. This is but one of the possible legal consequences that the recent capitulation to the purported global "kumbaya" of the WTO waiver is likely to create.

More complications will likely arise as the negotiations proceed. Provided the Administration is properly advised and the waiver properly limited (e.g., to patents) these and other deleterious consequences may be avoided. In view of the possibility of serious liability arising by improvident acquiescence to generally uninformed calls for a broad waiver, it might not be a bad idea for all those involved in innovation (universities, technology transfer offices, pharmaceutical companies, patent lawyers, and economists) counter these opinions with the facts and make their viewpoints known and voices heard.

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If the Devil of the WTO IP Waiver Is in the Details, What Are the Details? - JD Supra

Yona Owens, 1973

PublishedMay 10, 2021 6:04 PM by Denise Krepp

On Nov. 10, 1976, Petty Officer Yona Owens and six other women sued the Navy. The women were determined to overturn a 30-year-old federal statute that limited Navy women to shore-duty billets, even though they were trained to work aboard ships. Judge John J. Sirica heard the case on April 11, 1978, and July 27, 1978, and he ruled that women should be allowed to serve at sea.

The woman who pushed for the change, Petty Officer Yona Owens, was born into a Navy family. Her grandfather served in the Navy during the Spanish-American War and World War I, and her father served in the Navy - first during World War II, then as a reservist.

I recently spoke with Owens and asked why she decided to sue the Navy. Succinctly, Owens said that she was raised to solve problems. Once a problem is identified then one should work to fix it. Owens recognized that it was unconstitutional, not to mention a waste of taxpayer money, to limit the service of shipboard-trained female Navy Sailors to shore-duty billets.

Suing the Navy was not Owens first brush with challenging policies restrictive to women. After growing up in Charlotte, N.C., where she was a Girl Scout, Owens attended Appalachian State University. It was 1968, and ASU required women to wear skirts, but the winters were cold so Owens wore her dads Navy-surplus bell-bottom uniform pants to classes. Owens was reprimanded, and she transferred to East Carolina University.

Low on funds, Owens eventually left school and followed in her familys footsteps by joining the Navy. She signed her enlistment papers on May 30, 1973, and was sent to Recruit Training Command (RTC) in Orlando, Fla. The boot camp was for men and women, but at the time they didnt train together. They were allowed to enter the chow hall at the same time, but they couldnt sit next to each other.

After graduating from RTC in late July 1973, Owens attended Interior Communications Electrician A School in San Diego, where she was the only woman in her class. The Navy assigned the men in her class to ships but sent Owens to a second school at Great Lakes Naval Training Center. Again, she was the only woman in her class. At graduation, once again, she was the only person not to receive orders to a ship. Owens said in our conversation it was then she realized her assignments were based on gender.

Owens said her male classmates also noticed the Navys differing treatment of women, and some found it unfair towards men. Because men had to go to sea after their first school, many were displeased that women were allowed to gain additional training without serving in the fleet.

Owens was supposed to attend a third school after graduating from the Great Lakes Naval Training Center, but she convinced her detailer to send her to Japan.

Owens was an E-3 when she arrived in Japan and made E-4 with her performance during the next testing cycle. She was determined to gain the knowledge needed to pass the E-5 exam, so she started spending her free time working on Navy ships docked at Yokosuka. These work details were at the invitations of her former classmates when their ships came into port for repairs.

By both studying and obtaining hands-on training during her off-duty time, which included requesting temporary assigned duty (TAD) on two short-term cruises for family members (known then as dependent cruises), Owens said she surprised the higher-ups and passed the E-5 exam. She was the first female 2nd class interior communications electrician (IC) petty officer in the modern Navy.

While in Japan, Owens wrote letters to senior leaders, including the Judge Advocate General and the Master Chief Petty Officer of the Navy, advocating to let women go to sea. Neither supported this change.

So yet again in December 1975, the Navy assigned Owens to shore duty. This time she was assigned to the Command and Control Technical Center (CCTC) in the National Military Command Center for the Joint Chiefs of Staff at the Pentagon.

From Washington, D.C., Owens contacted the American Civil Liberties Unions Womens Rights Project (WRP), an initiative cofounded by then attorney and law professor Ruth Bader Ginsburg. The WRP agreed to take her case, and the lawsuit Owens v. Brown was filed as a class action on Nov. 10, 1976, in D.C.s federal district court.

Sirica was assigned the case. He was none other than the Watergate judge who ordered the Nixon administration to share tape recordings of White House conversations about the break-in. The April 1978 oral arguments for Owens v. Brown were held in the same courtroom that had held the Watergate trial.

On July 27, 1978, Sirica found that title 10, section 6015 of the U.S. Code the law the Navy was using to limit the assignments of women violated the equal protection guarantee in the Fifth Amendment.

In 1978, 25,000 women were serving in the Navy. Shortly after Siricas ruling, the Navy began assigning women to ships that were not expected to serve in combat. Subsequently, the Navy updated its policies in the 1990s to permit women to serve on combat ships.

Owens was 25 years old when her lawsuit was filed. She sued the service that her family loved, but she did so knowing that if the class action she led was successful, generations of women would benefit. History shows they have.

Thank you, Petty Officer Owens and the brave women who challenged the law with you. Thank you for your service to our country.

Named plaintiffs in Owens v. Brown, 1978, and pay grades at the time: IC2 Yona Owens, YN2 Suzanne Holtman (now Stout), PHSN Natoka Peden, LCDR Kathleen Byerly (Bruyer), LTJG Joellen Drag (Oslund), LTJG Suzanne Rhiddlehoover. YNSN Valerie Sites was on the original complaint but dropped out.

This article appears courtesy of Naval History and Heritage Command, and it may be found in its original form here.

The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.

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Owens v. Brown: How The Navy's Women Won the Right to Serve at Sea - The Maritime Executive