Category Archives: Fifth Amendment

Do We Really Want People to Learn How to Spot Micro Facial Expressions?

Paul Ekman Group

By definition, micros leak emotions that people dont want others to know they are feeling. Sometimes, even the person showing the micro is not aware of the emotion that is leaking out. My Micro Expression Training Tool (METT) enables those who study it to take this information from people attempting to conceal their emotions (and, in a sense, they are stealing this information).

Who has the right to do that, to tear away the curtains disguise? Certainly the Law Enforcement Officers (LEOs), although I have argued (a bit rhetorically) that LEOs who have been trained to spot micros should offer those they talk to the opportunity to wear a mask or facial cover.

The Fifth Amendment to the Constitution protects us from self-incrimination, but micros may provide the Law Enforcement Officer (LEO) who took our training just such incriminating information- just what the person involuntarily showing the micros doesnt want a LEO to know. Would it be in the spirit of the Fifth Amendment for LEOs who have learned how to spot micros to at least inform those they interview that they have been specially trained to take this information- to invade privacy without consent? Should they offer criminal suspects the right to wear a mask to preserve their Fifth Amendment protection?

Many people (lawyers, business operators, salespersons) whose interests are not always the same as those whose micros they learn to spot, can now (without forewarning) invade privacy, taking information without permission that the provider would not want them to have. I never thought about these issues when I developed METT, but I recognize that my training courses enable an invasion of a very private realm of peoples lives: the feelings they dont want everyone (and sometimes, no one) to know they are experiencing.

And yet, such an invasion of privacy can serve the public good. It helps the health care provider doctor, nurse, or other caregiver tune in and, therefore, be better able to help.

I once thought that I might be able to control who else would be able to use METT, but I learned from my colleagues in the Department of Defense that there is no way to do that. A tool, once created and accessible on the internet, is available to everyone who pays the nominal price. All I can hope, my Defense Department colleagues advised, is that it will be used more for what I consider to be good, to help people, than to harm or exploit people.

The proverbial cat is out of the bag, free to go anywhere!

Dr. Paul Ekman is a well-known psychologist and co-discoverer of micro expressions. He was named one of the 100 most influential people in the world by TIME magazine in 2009. He has worked with many government agencies, domestic and abroad. Dr. Ekman has compiled over 40 years of his research to create comprehensive training tools to read the hidden emotions of those around you. To learn more, please visit: http://www.paulekman.com.

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The dangers of reading micro expressions - HuffPost

(CN) A divided Supreme Court on Monday said the Fifth Circuit must ultimately decide whether the family of a Mexican teen shot dead by a U.S. border agent can sue the agent for damages.

The courts per curiam opinion vacates a previous ruling by an en banc Fifth Circuit and sends the case back to it for further proceedings.

The case stems from a shooting that occurred on June 7, 2010. Sergio Adrian Hernandez Guereca, a 15-year-old Mexican national, was with a group of friends in the cement culvert that separateEl Paso, Texas, from Ciudad Juarez, Mexico.

As recounted in the majority opinion, Hernandez and his friends were playing a game in which they ran up the embankment on the United States side, touched the fence, and then ran back down.

Border Patrol Agent Jesus Mesa, Jr., arrived on the scene by bicycle and detained one of Hernandezs friends on the U.S. side of the embankment.Hernandez ran across the culvert and stood by a pillar on the Mexican side. Mesa fired two shots across the border, one of which struck Hernandez in the face, killing him.

The Justice Department investigated the incident and declined to bring federal civil rights charges against Mesa, finding there was insufficient evidence that Mesa acted willfully and with the deliberate and specific intent to do something the law forbids.

It also held that because Hernandez was not on U.S. soil when he was shot, the department had no jurisdiction to bring charges against the agent.

Hernandezs parents sued Mesa for damages, claiming that he violated their sons rights under the Fourth and Fifth Amendments. They also said at the time of his death, their son was unarmed and in no way posed a threat to the officer.

A federal judge in the Western District of Texas granted Mesas motion to dismiss. A three-judge panel of the Fifth Circuit later affirmed that ruling in part and reversed it in part.

It held Hernandez lacked any Fourth Amendment rights under the circumstances, but that the shooting violated his Fifth Amendment rights. On rehearing en banc, the Fifth Circuit unanimously affirmed the district courts dismissal of the familys claims against the officer.

The en banc court held that the family failed to state a claim for a violation of the Fourth Amendment because Hernanadez was a Mexican citizen who had no significant voluntary connection to the United States and was on Mexican soil at the time he was shot.

In regard to the familys Fifth Amendment claim, theen banc court said it wassomewhat divided on the question of whether Agent Mesas conduct violated the Fifth Amendment, but was unanimous in concluding that Mesa was entitled to qualified immunity.

In their petition for a writ of certiorari, the family asked the Supreme Court to determine whether they could assert claims for damages underBivens v. Six Unknown Fed. Narcotics Agents, in which the high court recognized for the first time an implied right of action for damages against federal officers alleged to have violated a citizens constitutional rights.

They also asked the justices to determine whether the shooting violated their sons Fourth Amendment rights, and whether Mesa was entitled to qualified immunity on the claim that the shooting violated Hernandezs Fifth Amendment rights.

In sending the case back to the Fifth Circuit, the majority noted that a Bivens remedy is not available when there are special factors counselling hesitation in the absence of affirmative action by Congress, and that it recently clarified what constitutes a special factor counselling hesitation in the case Ziglar v. Abbasi.

The Court of Appeals here, of course, has not had the opportunity to consider how the reasoning and analysis in Abbasi may bear on this case. And the parties have not had the opportunity to brief and argue its significance. In these circumstances, it is appropriate for the Court of Appeals, rather than this Court, to address the Bivensquestion in the first instance, the opinion says.

With respect to petitioners Fourth Amendment claim, the en banc Court of Appeals found it unnecessary to address the Bivens question because it concluded that Hernandez lacked any Fourth Amendment rights under the circumstances, the opinion continues. This approach disposing of a Bivensclaim by resolving the constitutional question, while assuming the existence of a Bivens remedy is appropriate in many cases. This Court has taken that approach on occasion. The Fourth Amendment question in this case, however, is sensitive and may have consequences that are far-reaching.

It would be imprudent for this Court to resolve that issue when, in light of the intervening guidance provided in Abbasi, doing so may be unnecessary to resolve this particular case, the majority of justices say.

With respect to petitioners Fifth Amendment claim, the en banc Court of Appeals found it unnecessary to address the Bivens question because it held that Mesa was entitled to qualified immunity. In reaching that conclusion, the en banc Court of Appeals relied on the fact that Hernandez was an alien who had no significant voluntary connection to the United States.

It is undisputed, however, that Hernndezs nationality and the extent of his ties to the United States were unknown to Mesa at the time of the shooting. The en banc Court of Appeals therefore erred in granting qualified immunity based on those facts, the opinion says.

In a dissent, Justice Clarence Thomas said the facts of the case differ considerably from those at issue in Bivens and its progeny, most notably this case involves cross-border conduct , and those case did not. Thomas says he would decline to extend Bivens under the circumstances and would affirm the en banc Fifth Circuit decision on that basis.

In a separate dissent, which Justice Ruth Bader Ginsburg joined Justice Stephen Breyer says that when Mesa shot Hernandez from across the culvert, he did not know whether Hernandez was a U.S. citizen or a Mexican citizen. Further, he says, the agent has never asserted he knew on which side of the boundary his bullet would fall.

Breyer goes on to say that while the culvert is thought of as being the boundary line between the two countries, technically, because there are fences on either side of it, it may actually be thought of as no more than a border-related area and that the boundary is in essence an invisible line of which none of them is aware.

In light of these considerations and others, Breyer says there is more than enough reason for treating the entire culvert as having sufficient involvement with, and connection to, the United States to subject the culvert to Fourth Amendment protections.

I would consequently conclude that the Fourth Amendment applies, Breyer says.

Finally, I note that neither court below reached the question whether Bivens applies to this case, likely because Mesa did not move to dismiss on that basis. I would decide the Fourth Amendment question before us and remand the case for consideration of the Bivens and qualified immunity questions, he adds.

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Justices Say Fifth Circuit Must Decide Cross-Border Shooting Case - Courthouse News Service

Washington Times

Supreme Court, Wisconsin hit property rights Washington Times Recently, the committee of nine unelected lawyers known as the Supreme Court gutted the Fifth Amendment. The case was called Murr v. Wisconsin. In the Murr case, a family in Wisconsin owned two lots. On one, they built a nice cabin and the other they ... Supreme Court decides Takings Clause case as term winds downConstitution Daily (blog) Supreme Court Deals Blow to Property RightsReason (blog) Supreme Court rules against Wisconsin family's property rights claimUSA TODAY Washington Post -SCOTUSblog (blog) -SCOTUSblog -Fairfield Citizen all 183 news articles »

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Supreme Court, Wisconsin hit property rights - Washington Times

The Supreme Courthas ruled on an important test first posed by Justice William Brennan nearly 40 years ago about property rights, as Justice Anthony Kennedy sided with the Court's four liberal Justices on Friday.

In 1978, Brennan wrote for a 6-3 majority in the Penn Central v. New York City case that redefined property rights under the Fifth Amendments Takings Clause and also served as a foundation for historic preservation programs at a local level.

The current case in front of the Court, Murr v. Wisconsin, didn't involve a glamorous property such as Grand Central Station, the subject of Brennans opinion. Instead, the dispute was about a vacant vacation property, and if the parcel was part of a combined lot, or a parcel on its own.

On Friday, the majority 5-3 opinion written by Kennedy sided with the state of Wisconsin in the dispute, saying the test devised by Brennan was properly applied by the state, but that the courts also needed to include more than just Brennan's test in deciding similar disputes.

"The governmental action was a reasonable land-use regulation, enacted as part of a coordinated federal, state, and local effort to preserve the river and surrounding land," Kennedy said. "Like the ultimate question whether a regulation has gone too far, the question of the proper parcel in regulatory takings cases cannot be solved by any simple test. ...Courts must instead define the parcel in a manner that reflects reasonable expectations about the property."

Chief Justice John Roberts wrote the dissent. "State law defines the boundaries of distinct parcels of land, and those boundaries should determine the 'private property' at issue in regulatory takings cases. Whether a regulation effects a taking of that property is a separate question, one in which common ownership of adjacent property may be taken into account," he said.

The Murr family has owned two riverfront lots since the 1960s; one of the lots contained a vacation cottage; the other lot wasnt developed. One lot was in the parents name while the other was in the name of a company owned by the family. The two lots were jointly conveyed to four of their children in 1994 and 1995.

In 2004, when the children began to explore selling the empty lot to pay for improvements in the cottage, they found out that a zoning law established in 1975 barred the children from selling the empty lot separate from the cottage because two adjoining lots were now owned by one entity. The zoning law also prohibited the development of the empty lot because it didnt meet minimum size requirements for an independent lot.

The dispute in front of the Supreme Court involved a concept called a parcel as a whole. In 1978, Brennan fashioned that test as part of the Penn Central decision.

A New York City commission prohibited the Penn Central Railroad from redeveloping Grand Central Station after two plans substantially changed the buildings historic look above the building. Penn Central sued, claiming it should receive full compensation for the air rights about Grand Central Station.

Brennan and the majority disagreed, saying the commissions decision wasnt a taking under the Fifth Amendment and that the railroad still could derive a reasonable economic return from the buildings use. The decision established a four-part test to determine if a property holder should receive just compensation under the Fifth Amendment if a government policy or action results in a taking of their property.

One of the four parts was called the parcel of a whole. Brennan said that this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a wholehere, the city tax block designated as the landmark site. In that context, the Court said the Grand Central building and the air space above it was one property in terms of the Fifth Amendments Takings Clause.

The Murr familys lawyerscited another landmark Supreme Court decision, Lucas v. South Carolina Coastal Council (1992), to support their claim that they should be able to sell the property or seek compensation from the government.

The Lucas decision said that the denial of all economic use of a property by a government regulation was a taking under the Fifth Amendment and required just compensation. The Wisconsin government has argued that the properties should be considered as a whole in the takings analysis, citing the Penn Central decision. The state appeals court ruled against the Murr family and the family filed an appeal with the Supreme Court, which was accepted in January 2016.

Scott Bomboy is the editor in chief of the National Constitution Center.

Filed Under: Fifth Amendment, Supreme Court

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Supreme Court decides Takings Clause case as term winds down - Constitution Daily (blog)

Former Pennsylvania Attorney General Kathleen G. Kane, free on bail while she appeals her perjury conviction, invoked her Fifth Amendment right not to testify this week in a court hearing in which an accused Pittsburgh killer is challenging wiretap evidence against him.

In a complicated pretrial legal fight, Price Montgomery, an alleged drug dealer charged with fatally shooting a witness, is seeking to exploit a feud between Kane and one of her top deputies that broke out in 2014, at the same time the Attorney Generals Office had tapped Montgomerys cellphone.

Kane went on a vacation to Haiti at that time, and because of the feud had refused to sign routine paperwork authorizing deputy Adrian King to make key decisions in her absence. Nonetheless, King approved the wiretap, using an autopen to add Kanes signature to the document; the recorded conversations allegedly implicate Montgomery.

Now, Montgomery and his codefendants want the wiretap evidence barred on grounds that the tap was approved without proper legal authority.

The hearing showed howKanes tumultuous tenure as attorney general continues to have a ripple effect, almost a year after she stepped down.

Kane, who has kept a low profile since her conviction, took the stand briefly Tuesday in federal court in Pittsburgh only to decline to answer questions, according to several courtroom observers. King had testified the day before, saying that Kane approved the wiretap in a call from the airport as she left for her trip. King provided cellphone records and his notes from the call to back up his account.

King was a key witness against Kane in her criminal case. The former attorney general took note of that in explaining why she took the Fifth.

I know how this works: I say one thing. Adrian King says another. I get charged with perjury, Kane told federal prosecutors a few days before the hearing, according to defense attorney Michael DeRiso, who represents one of Montgomerys codefendants. He said prosecutors had shared notes of Kanes remarks with them.

Kane could not be reached for comment; a call to her home this week went unanswered.

Kanes lawyer for the hearing, Thomas J. Farrell, refused to say whether he was her lawyer. Federal prosecutors also declined comment. U.S. District Judge Mark R., Hornak will rule on the suppression motion in the fall.

Montgomery, 36, is charged with the Aug. 22, 2014, killing of Tina Crawford, 34, also of Pittsburgh, who was shot 10 times at her home as she was leaving to talk with federal prosecutors. Her mother was wounded in the same attack.

Two months before the shootings, Montgomery had been arrested on drug-dealing charges after police seized 1,500 bricks of heroin, more than $100,000, and 16 handguns, shotguns, and rifles in a raid.

Though the wiretap was placed by the Attorney Generals Office, federal prosecutors are pursuing the case. DeRiso said that knocking out the wiretap evidence would undermine the drug charges, but was uncertain about its impact on the charge involving the killing of the witness.

In legal papers defending Kanes right to invoke her constitutional right against self-incrimination, Farrell noted that even innocent people may cite the Fifth Amendment so as not to provide any information to authorities.

He also noted that Kanes conflict with King was explored during the 2016 trial in Montgomery County that ended with her conviction on perjury and obstruction charges.

A jury found that she lied under oath in denying that she had unlawfully leaked confidential investigative material to a newspaper in a bid to embarrass a political enemy. King, now a lawyer in Philadelphia, was a key prosecution witness, testifying that he had warned Kane not to leak material. His relationship with Kane grew chilly after he provided that advice.

Kane was sentenced to serve 10 to 23 months in jail. She has appealed her conviction to Superior Court.

Published: June 24, 2017 11:32 AM EDT

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Former AG Kane takes Fifth in wiretap case - Philly.com - Philly.com

A number of sane people around the commentariat have been up in arms over the recent decision handed down by the Supreme Court in Murr v. Wisconsin. And with very, very good reason. Weve dealt with this case here before as its played out through the lower courts, but as a refresher it deals with the situation encountered by Donna Murr and her siblings in Wisconsin. The family owned two small parcels of land along the St. Croix River. They had a cabin on one of the lots and the adjoining property was left vacant as an investment. But when they attempted to finally sell the vacant lot in 2004 they learned that the state had changed the rules on them, making it impossible to sell the land to anyone other than the county unless they combined the properties and relinquished the entire package.

The property in question had been valued at $400K. The county the only entity legally entitled to buy it offered them $40K.

Because the state, through changes in laws which did not apply when the family acquired the land, had completely gutted its worth, the Murr family sued to be properly compensated under the Takings Clause. With this weeks decision, those hopes are dashed. Eric Boehm at Reason explains what this is doing to the rights of property owners.

When governments issue regulations that undermine the value of property, bureaucrats dont necessarily have to compensate property holders, the Supreme Court ruled Friday

The ruling could have implications that go well beyond the 2.5 acres of land in Wisconsin.

Several western states filed amicus briefs in the case on behalf of the Murr family (as did the Reason Foundation, which publishes this blog). Though states like Nevada and Arizona did not have a direct interest in the Murrs ability to sell their vacant land, they saw the case as having important implications for conflicts over federal lands.

Many state governments own contiguous lots and large bodies of water near areas owned by the federal government (military bases, national parks, etc). If those government bodies are allowed to merge contiguous lots for regulatory purposes, the federal government could impose severe restrictions on state land and wouldnt have to pay consequences, warned Ilya Somin, a professor of law at George Mason University who authored the amicus brief on behalf of those western states.

What we are seeing here is a continuation of what I still maintain is possible the worst ruling from the Supreme Court in the history of the nation, Kelo v. City of New London. That was the dark day when the Supremes ruled that the idea of public use in the Takings Clause could be reinterpreted into a Reverse Robin Hood scenario by defining it as the far more ambiguous public benefit. When that case was decided in 2005 the principal dissent was written by OConnor, but in a separate dissent, Associate Justice Clarence Thomas wrote the following:

Something has gone seriously awry with this Courts interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not.

This ruling is yet another weakening of the Takings Clause. And the reason I say this is a continuation of Kelo is that you need only look at who is voting on these rulings. In Kelo, the 5-4 decision was delivered by Stevens, Souter, Ginsburg and Breyer with the tie-breaking vote cast by Kennedy. Now, In Murr, the 5-3 decision came from Breyer, Ginsberg, Kagan, (who replaced Stevens under Obama) and Sotomayor (who replaced Souter under Obama) with both the tie-breaking decision and the written opinion coming once again from Kennedy. Anyone seeing a pattern here?

It was 5-3 because Gorsuch wasnt involved with the original hearing and didnt vote. But even if he had, the Fifth Amendment still would have lost 5-4 yet again. Its not enough just to keep hold of the seat that Justice Scalia occupied. Kennedy is unreliable in too many instances when given a choice between more power for the government over the individual or less. The other four liberals are lost causes, apparently never having seen a case of bigger government which they couldnt celebrate. We need a real majority on the Supreme Court with conservative, small government principles in their hearts or these erosions of fundamental rights will continue.

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In Murr V. Wisconsin, SCOTUS deals another blow to the Fifth Amendment - Hot Air

The Supreme Court will wrap up scheduled decisions from its current term on Monday morning. Heres a quick look at the six cases that will be announced by the Court on June 26, 2017.

The most-publicized decision will be Trinity Lutheran Church of Columbia v. Comer, which was heard on April 19. The Justices might answer the question of whether religiously affiliated schools can be constitutionally denied equal access to government benefits, even if the benefit has nothing to do with matters of faith.

The case is about a program in Missouri that provides rubberized material for school playgrounds, made out of old tires. Missouris constitution bars parochial schools from such public benefits, explicitly because of the Missouri constitutions Blaine Amendment, first adopted in 1875. The Blaine amendment says, no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination or religion.

Trinity Lutheran qualified for the playground grant, which was competitive, scoring very highly in a neutral grading process. But the state disqualified the church as a grant recipient because Trinity Lutheran was a church.

The church appealed to the Supreme Court, arguing that no public benefit could be further removed from the states anti-establishment concerns than a grant for safe rubber playground surfaces that serve no religious function or purpose.

One late factor in the case was a decision by the state of Missouri in April to start a new cycle of the grant program where private schools can apply and receive funding. That raises the question of the existence of a live controversy in front of the Court to decide.

The other case that could generate some publicity is Hernndez v. Mesa, which was heard on February 21. The case is an appeal from the family of a boy from Mexico who was fatally shot by a U.S. Border Patrol officer. Sergio Adrian Hernandez Guereca, 15, died in 2010 as he stood on Mexican soil by a border officer who fired his gun while on United States soil in Texas. The agent claimed Hernandez and others were throwing rocks at him.

Hernandezs family sued the agent for damages, but in 2015 the Fifth Circuit appeals court said the family had no standing to sue because the teen was a Mexican citizen and not protected by the Fifth Amendment under its Due Process clause or by the Fourth Amendment. The full appeals court hadunanimouslyruled in favor of the agent.

The Supreme Court took the appeal and also added a question about determining if the parents had a constitutional right to sue a Border Patrol officer.

The remaining cases include two immigration-related decisions. In Jennings v. Rodriguez, the Court will consider if immigrants who are legally detained by government officials should qualify for a bond hearing. There wasnt a clear consensus of how the Court would act after arguments and the decision could be deadlocked or remanded to a lower appeals court, some Supreme Court observers say.

In Sessions v. Dimaya, the Court will consider if a non-citizen immigrant convicted of an aggravated felony can be deported under the Immigration and Nationality Act. The act defines an aggregated felony as a crime of violence. A similar term, violent felony, was found constitutionally vague in another Supreme Court decision, and the Court will decide if the words are too similar to allow Dimayas removal under the act.

The remaining cases on Monday include a case about securities fraud class action lawsuits, and a dispute over alleged inadequate representation of a client by an attorney.

Filed Under: Supreme Court

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Last day of Supreme Court decisions features religion, immigration cases - Constitution Daily (blog)

Justice Clarence Thomas is well known for writing separate opinions highlighting the gap between the Supreme Courts contemporary jurisprudence in a given area and the original constitutional understanding or original public meaning of the relevant constitutional provisions. Earlier this week, for example, Thomas suggested that the court should reconsider its qualified immunity jurisprudence.

Friday, inMurr v. Wisconsin, Thomas suggested that the court shouldreconsider the constitutional foundation of regulatory takings doctrine. Although he joined the dissent authored by Chief Justice John G. Roberts Jr., Thomas also wrote separately to highlight the tension between the courts doctrine and the original meaning of the Fifth Amendments takings clause. He wrote:

I join THE CHIEF JUSTICEs dissent because it correctly applies this Courts regulatory takings precedents, which no party has asked us to reconsider. The Court, however, has never purported to ground those precedents in the Constitution as it was originally understood. In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922), the Court announced a general rule that if regulation goes too far it will be recognized as a taking. But we have since observed that, prior to Mahon, it was generally thought that the Takings Clause reached only a direct appropriation of property, Legal Tender Cases, 12 Wall. 457, 551 (1871), or the functional equivalent of a practical ouster of [the owners] possession, Transportation Co. v. Chicago, 99 U. S. 635, 642 (1879). Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014 (1992). In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions).

The paper Thomas cites at the end of his opinion is by University of San Diego law professor Michael Rappaport, a prominent originalist scholar (and contributor to the Originalism Blog). Here is the abstract to Rappaports paper:

This article explores the widely disputed issue of whether Takings Clause protects against regulatory takings, offering a novel and intermediate solution. Critics of the regulatory takings doctrine have argued that the original meaning of the Fifth Amendment Takings Clause does not cover regulatory takings. They have quickly moved from this claim to the conclusion that the incorporated Takings Clause under the Fourteenth Amendment also does not cover regulatory takings.

In this article, I accept the claim that the Fifth Amendment Takings Clause does not cover regulatory takings, but then explore the possibility that the incorporated Takings Clause does cover such takings. Applying Akhil Amars theory of incorporation, I argue that there are strong reasons, based on history, structure, and purpose, to conclude that the Takings Clause had a different meaning under the Fourteenth Amendment. Amar argues that the Bill of Rights was dominated by republican ideas, but that the Fourteenth Amendment was founded on more liberal notions intended to protect individual rights. This would suggest that a broad reading of the Takings Clause would further the principles underlying the Fourteenth Amendment.

Moreover, that some state courts had come to apply takings principles to regulatory and other nonphysical takings in the period between the enactment of the Bill of Rights and the Fourteenth Amendment provides additional support for the possibility that the Fourteenth Amendment enactors would have understood it to apply to regulatory takings. While the paper does not attempt to prove that the Fourteenth Amendment Takings Clause applies to regulatory takings, leaving that task to others, it argues that critics of regulatory takings doctrine should no longer simply assume that the Constitutions original meaning does not apply to state regulatory takings.

Regulatory takings is not the only context in which property rights activists may be asking the Fifth Amendment to do the constitutional work better done by the 14th Amendment (if it is to be done at all). Eminent domain may be another (for reasons I briefly sketch in this exchange).

If there is to be greater clarity about regulatory takings, it might help if the entire doctrine rested on a more secure and constitutionally sound foundation.

Continue reading here:
Should regulatory takings doctrine be reconsidered from the ground up? - Washington Post

Alphabet is asking a judge to find Uber in contempt for failing to notify the court that former CEO Travis Kalanick was aware one of his top executives had proprietary Alphabet information in his possession and that he ordered its destruction.

The executive, Anthony Levandowski, allegedly told Kalanick and two other employees in March 2016 that he had five discs containing Alphabet documents, several months before the ride-hail company acquired his startup, Otto.

Levandowski, who had previously led Alphabets self-driving car project, has been accused of stealing technology and taking it to Uber.

Judge William Alsup recently ordered Uber to produce documents and correspondence related to the case, including information showing whether any evidence had been destroyed. On Wednesday, Alphabet cited a June 5 Uber court filing that shows Kalanick asked Levandowski to destroy the documents in question. Uber had to present the information by March of this year but didnt report its findings until June.

Ubers June 8 filing reads:

On or about March 11, 2016, Mr. Levandowski reported to Mr. Kalanick, Nina Qi and Cameron Poetzscher at Uber as well as Lior Ron that he had identified five discs in his possession containing Google information. Mr. Kalanick conveyed to Mr. Levandowski in response that Mr. Levandowski should not bring any Google information into Uber and that Uber did not want any Google information. Shortly thereafter, Mr. Levandowski communicated to Uber that he had destroyed the discs.

This was around the same time that Levandowski began consulting for Ubers self-driving arm, as we reported.

The ride-hail company maintains that none of these documents made it to Uber and that Kalanick did not encourage Levandowski to bring the files to the company, a condition that was also included in his employee agreement. On May 30, Uber fired Levandowski, who pleaded the Fifth Amendment earlier in the case, for not complying with the courts orders.

Uber was also directed by the court to produce a report from Stroz Friedberg, a forensic firm that Uber had hired to conduct a due diligence report on Otto before the acquisition. The report could reveal if Uber was made aware of any Alphabet technology Levandowski may be using within Otto.

Now Stroz is required to produce the report, the identities of the Otto employees that participated in the report and any documents those employees produced for the report.

Levandowski, who is not a party to the suit and is not represented by Ubers attorneys, previously argued that those documents are protected by attorney-client privilege. The judge disagreed and compelled Uber to produce the report.

Ubers attorneys did not hire Stroz on behalf of Levandowski and Uber; they hired Stroz to investigate Levandowski, the order reads.

It follows, then, that an order compelling Stroz to produce these materials does not violate Levandowskis Fifth Amendment privilege against compelled self-incrimination.

Uber is in the midst of navigating a major upheaval, with Tuesdays resignation of its CEO Travis Kalanick and the shuffling of key board members, but this lawsuit could prove to be the companys biggest threat. The embattled ride-hail player could face criminal charges over the possession of stolen documents, though the judge has previously chided Alphabet for lack of evidence that those files Levandowski allegedly downloaded made it to Uber.

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Alphabet says Travis Kalanick knew one of Uber's acquisitions had taken Alphabet files - Recode

An Orlando businessman, Ishrat Rehmetullah, is citing the Fifth Amendment against self-incrimination while arguing in federal bankruptcy court that he shouldnt have to disclose all of his assets.

Remetullah and his wife, Shama, filed a personal bankruptcy in 2014, citing almost $800,000 in debts, which included a $572,000 foreclosure on his home in Dr. Phillips. The debts were discharged and the case was closed.

But the case was reopened in 2015 when some creditors alleged that Rehmetullah had attempted to flee the country, and had failed to report a collection of gold coins, diamonds and real estate he owns in Karachi, Pakistan; those allegations were detailed in a filing by a court-appointed trustee assigned to the case, Richard Webber, .

Webber recently sought a judges order requiring Rehmetullah to report additional assets. Instead of complying, or denying the allegations, Rehmetullahs attorney filed a response saying that reporting additional assets could violate his clients Fifth Amendment rights.

According to a filing by Ishrat Rehmetullahs lawyer, Jeffrey Ainsworth, There have also been suggestions that the debtors in this case will be referred to the United States Attorneys Office for criminal prosecution, which further shows that the debtors fear of criminal prosecution in this case is legitimate.

In a court hearing Tuesday, Ainsworth suggested the political climate in the U.S. could spell trouble for his client: If you look at the current administration, a Pakistani national living in the U.S. is probably a real target.

U.S. Bankruptcy Judge Cynthia Jackson said that the creditors in the case have a right to know if there were additional assets, but she took the matter under advisement and said she would give her opinion later.

Regarding the Fifth Amendment claim, she said: There has to be an imminent threat of criminal prosecution, and I dont see that.

Ishrat Rehmetullah sold a home in Pakistan shortly after filing for bankruptcy, and provided $75,000 from that sale to the bankruptcy trustee, but the trustee has questioned the value of that home. Rehmetullah also turned over some of his coin collection, which was sold for $2,400.

Rehmetullah is the father of two Orlando entrepreneurs who launched a financial technology startup in 2014 called Fattmerchant Suneera Madhani and Sal Rehmetullah. Both siblings were deposed in the bankruptcy case. In 2016, Sal Rehmetullah offered to pay $100,000 to prompt a settlement of his fathers debts, but later that offer was withdrawn. The siblings argued that their father is not formally part of the Fattmerchant business.

Ishrat Rehmetullah and his wife have registered several businesses with the state, including I Travel Florida LLC, Discount Holidays LLC, and Pizza Romas LLC, among others. They had also reported a loan of $100,000 from a Florida company called Oyster Bay Investments.

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Orlando businessman cites Fifth Amendment in bankruptcy case - Orlando Sentinel