Category Archives: Fourth Amendment

Following a recent U.S. Supreme Court decision closing the door on lawsuits for various violations of constitutional rights, the federal appeals court based in Denver has agreed an inmate may not sue a federal prison guard for allegedly assaulting him in his cell.

Anderson Coutinho Silva, who is incarcerated at the U.S. PenitentiaryAdministrative Maximum Facility in Florence, ran into resistancefrom the U.S. Court of Appeals for the 10th Circuit in his attempt to seek monetary damages from the guard who reportedly entered his cell while he was restrained, jumped on him, and called in other guards to cut off Silva's clothes.

Such lawsuits against federal employees are legally known as a "Bivens remedy," which the Supreme Court has applied to a limited set of constitutional violations. But after the Court's conservative majority in June severely restricted the scope of Bivens remedies to other constitutional rights, a three-judge panel for the 10th Circuit felt obligated to dismiss Silva's complaint.

"First and foremost, we are left in no doubt that expanding Bivens is not just 'a disfavored judicial activity,'" explained Senior Judge Bobby R. Baldock in an Aug. 1 order, "it is an action that is impermissible in virtually all circumstances."

The concept of a Bivens remedy stems from a 1971 Supreme Court decision, Bivens v.Six Unknown Named Agents.In that case, federal narcotics officers entered a man's home without a warrant, arrested and strip searched him. A majority of the Court decided plaintiff Webster Bivens could sue for a violation of the Fourth Amendment, which prohibits unreasonable searches and seizures.

Since then, the Supreme Court has recognized a Bivens remedy exists for two other scenarios: sex discriminationunder the Fifth Amendment and deliberate indifference to an inmate's serious medical needs under the Eighth Amendment.

However, Baldock noted in the 10th Circuit's order, the Supreme Court subsequently"performed its own version of Bonapartes retreat from Moscow and progressively chipped away at the decision to the point that very little of its original force remains."

In early June, the Court handed down a 6-3 decision inEgbert v. Boule, in which the majority said a man who was allegedly beaten up by a U.S. Border Patrol agent may not sue for excessive force. While dissenting Justice Sonia Sotomayor believed theEgbertcase was "substantially similar" to that of Webster Bivens, the majority concluded Bivens remedies are not availablewhen Congress or the executive branch is "better equipped" to create a method for addressing constitutional violations.

For the Border Patrol, that amounted to an administrative process for handling grievances. Justice Clarence Thomas, writing for the majority, added that it is irrelevant whether such processes "do not provide complete relief" to someone whose constitutional rights are violated.

In Silva's lawsuit, he alleged corrections employee Brandon Shaw entered his cell, out of view of the security cameras, and beat him physically. Shaw reportedly radioed three other guards who "helped Officer Shawl (sic) hold me down and attacked me. ... They then took me to the restraint cell and cut my cloths (sic) off."

Silva, who represented himself, also claimed a guard threatened Silva if he did not drop his complaint. The lawsuit sought $10 million in damages, the discipline of all officers involved, and Silva's relocation from the Florence prison.

U.S. Magistrate Judge Michael E. Hegarty evaluated Silva's claims and recommended dismissing the lawsuit. A Bivens remedy, Hegarty concluded, was not available for the excessive force claim Silva was alleging, in large part because there was already a process for handling such complaints: filing an administrative grievance with the prison.

Silva protested that the prison's procedures were not as effective as a lawsuit.

"The institution grievance process has never worked since guards will not discipline other guards. That is why the defendant wants nothing more than to have everythingstay in-house where defendant's employer will sweep everythingunder the rug," Silva wrote.

Nonetheless, U.S. District Court Senior Judge Christine M. Arguello signed off on Hegarty's recommendation. Silva appealed to the 10th Circuit.

Represented by lawyersfrom Georgetown University Law Center and the nonprofit group Rights Behind Bars, Silva argued his claim of excessive force stemmed from the Eighth Amendment's prohibition on cruel and unusual punishment. Because the Supreme Court had already approved of a Bivens remedy under the same constitutional amendment failing to provide medical care to inmates Silva contended his lawsuit should be allowed to proceed.

"If this would be an extension of Bivens, it would be the most modest of modest extensions," attorney Samuel Weiss told the 10th Circuit panel during oral arguments in March. The government countered that excessive force and deliberate indifference to medical needs were not the same, and the court should not unilaterally permit inmates to sue for assaults by federal prison officials.

"It is certainly true that if there is a new claim and a new way for prison guards to be sued involving the use of force, they will have to hesitate and think twice," warned Assistant U.S. Attorney Karl L. Schock. "Now it may be that Congress decides thats a good thing. But that is a policy judgment that should be made by Congress."

Shortly after oral arguments, the Supreme Court issued its decision inEgbert.Baldock, writing for the panel, concluded the Supreme Court had given clear instructions not to expand a Bivens remedy to lawsuits like Silva's. Because excessive force is different from medical indifference, and given the existence of the prison's grievance process, Silva could not hold Shaw liable.

"We heed the Supreme Courts warning and decline Plaintiffs invitation to curry the Supreme Courts disfavor by expanding Bivens to cover his claim," Baldock wrote.

TheEgbertdecision reverberated through the federal judiciary almost immediately. In addition to Silva's case, a federal judge in Colorado recently dismissed a transgender inmate's similar assault claim against a prison guard, citing the restrictive new guidance from the Supreme Court.

"The law was already heading in this direction even beforeEgbert, but I thinkEgbertjust reinforces how rare the case will be today in which federal officers can be sued for damages for even the most egregious violation of our constitutional rights,"Stephen I. Vladeck, a professor at theUniversity of Texas School of Law, told Colorado Politics at the time.

The case is Silva v. United States et al.

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SCOTUS decision prompts 10th Circuit to toss prisoner's lawsuit over alleged assault by guard - coloradopolitics.com

By Jim Saunders, The News Service of Florida

TALLAHASSEE In a legal battle rooted in the discovery of a 13-year-old human trafficking victim working as a dancer, a federal appeals court Monday largely upheld restrictions that Miami Beach placed on nude strip clubs.

A three-judge panel of the 11th U.S. Circuit Court of Appeals rejected arguments that a city ordinance unconstitutionally imposed increased worker-identification requirements on strip clubs and allowed the city to inspect logs of workers entering and leaving the establishments.

The court, however, found that the city overstepped its legal authority when it required clubs to confirm that dancers are U.S. citizens, legal residents or otherwise eligible to work in the country.

Miami Beach passed the ordinance after police discovered that the 13-year-old girl was working as a nude dancer at Club Madonna after running away from home and being taken by four adult captors, according to the ruling. The club challenged the ordinance, leading to years of legal battling.

In part, the club argued that the ordinance violated First Amendment rights. Mondays ruling agreed that the ordinance implicates the First Amendment because it singles out an industry that engages in expressive activity for special regulation, but the panel concluded that the measure did not violate the rights.

The ordinances core identification and record-keeping requirements are necessary to achieve the citys stated and obviously important interests in preventing human trafficking and barring minors from dancing nude on a public stage, said the 54-page main opinion, written by Judge Stanley Marcus and joined fully by Judge Richard Story and partly by Judge Kevin Newsom. The requirement that workers or performers produce two forms of identification instead of just one which the club says is unnecessarily burdensome combats the rampant use of counterfeit forms of identification on Miami Beach and reduces the likelihood that a victim of human trafficking or a minor will perform onstage. Given the significant latitude we afford policymakers, and our obligation to defer to a legislative bodys reasoned judgment, we hold that these core identification-verification and record-maintenance requirements are reasonable when measured against the statutes aims.

The appeals court, which upheld a ruling by a federal district judge, also rejected a challenge to part of the ordinance allowing the city to inspect documents and worker logs upon demand. The club argued that the ordinance violated a prohibition on warrantless searches under the U.S. Constitutions 4th Amendment.

But in upholding that part of the ordinance, the panel pointed to extensive regulation of the adult-entertainment industry.

Based on a substantial history of heavy regulation, we conclude that the nude dancing and adult entertainment industry is closely regulated for Fourth Amendment purposes so that no reasonable expectation of privacy could exist for the proprietor, the opinion said. From limitations concerning the hours of operation, to zoning restrictions, to prohibitions on their ability to serve alcohol, to rules governing the very size of the establishments, adult entertainment businesses are routinely and pervasively regulated by cities and municipalities.

The court, however, agreed with the club that the city could not require establishments to verify that dancers are citizens or otherwise eligible for employment. Marcus wrote that federal law governs such requirements, and Congress provided an exemption for verifying the employment eligibility of contract workers or casual hires.

Here, the ordinance fails the relevant constitutional test because, by requiring certain businesses to verify the employment eligibility of independent contractors and casual hires, it obstructs federal law, the opinion said.

Marcus wrote that the unconstitutional part of the ordinance was severable and did not prevent the other requirements from being in effect.

See original here:
Appeals Court Upholds City Ordinance Related to Strip Club Restrictions - tallahasseereports.com

I have several questions about abortion law enforcement and the Grace Act proposal. Dont prosecutors and law enforcement prioritize their efforts every day? Any group that has a role in public safety, health care, emergency management, protective services, etc. must set priorities so they can address the most urgent needs first. Wont they continue to do it, even in the event of alleged abortion activity?

Speaking of protective services, if the existing rights of children will now apply to the unborn, will we be allowed and required to report suspected child neglect of a fetus to Texas Child Protective Services?

Finally, this question is for the sincerely honest people whose religious beliefs led them to work and pray to end abortion: Did you first work and pray to end rape, incest, sexual coercion, grooming and exploitation of women and girls? It seems that not getting those sins out of the way led directly to a significant amount of the current sin of abortion.

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It was disconcerting to read two professors of religion (Blake Burleson, July 9, and Jack Hill, July 21) write in support of a womans right to abort her preborn child.

If Burleson and Hill have respect for the Bibles authority and church history, they should know that all our rights come from God, or as Christian philosophers might argue, natural law. First-century Christians prohibited the practice of abortion in the Didache.

No one has a right to commit an act of violence against an innocent human being in this case, the newly developing, prenatal child in a mothers womb. Such a right is not justified under any basic understanding of Christian Scripture.

Job 31:15, asks the penetrating question, Did not the one who made me in the womb also make them? Did not the same God form us both in the womb? Jeremiah 1:5, states, I chose you before I formed you in the womb; I set you apart before you were born ...

Just a few weeks pregnant with Messiah Jesus, Mary visited her cousin Elizabeth, then six months along in her pregnancy of John the Baptist. Luke 1:41 records the poignant moment, When Elizabeth heard Marys greeting, the baby leaped inside her, and Elizabeth was filled with the Holy Spirit. Elizabeth concluded, ... How could this happen to me, that the mother of my Lord should come to me?

If, indeed, the Scriptures declare that God-ordained life is growing in a mothers womb from conception (Ruth 4:13, Psalm 51:5), then what right, pray tell, can exist to justify the killing of that preborn human life?

The Fourth Amendment to our Constitution was cited in Roe v. Wade as one basis for a right to privacy, allowing a woman to end the life of her developing baby through abortion. The amendment actually says, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ... Nothing there about a right to take the developing life of a preborn human being in a mothers womb.

Inalienable rights are derived, as our Declaration of Independence states, from our Creator. No Christian theologian has a right to conclude any differently.

A womans right to control her own body comes to an end when a genetically different human being is present and growing in her womb.

Then, the inalienable right to life must be extended to that preborn baby, as well.

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LETTERS: The law, our rights and abortion | Letters | wacotrib.com - Waco Tribune-Herald

Manipulative, deceitful, aggressive, remorseless, lacking empathy and affect all are classic definitions of psychopathic social behavior, according to psychiatric evaluations. These are traits also emblematic of today's legal fictions called corporations entities that have taken control of our democracy and our lives, entities that exist only for the purpose of increased revenue and profit, without innate moral impulse. It is time we finally grapple with the problematic status of "legal person" or "corporate personhood" now granted by law, and call corporate behaviors out for what they are and do.

The financial power corporations wield, spending billions of dollars to lobby and litigate, exerts massive influence in the selection of judges, lawmaking and elected officials to a degree far beyond the power of any of us as individuals. It also binds those legally bribed recipients to their will and bidding.

Corporate power under the guise of constitutionally sanctioned "personhood" has invaded every aspect of individual life in our nation criminal justice, education, environment, housing, press and media, health and safety. To maximize profits, they control availability and cost of consumer goods, from gasoline to prescription drugs to infant formula. Subsidized by taxpayer dollars, they manipulate and corrupt regulatory processes with the goal of attaining total privatization of all public amenities. The ultimate goal is restricting the role of government solely to that of maintaining military and police power.

There is such a thing as common good that is necessary in a productive, healthy and stable society. We all need housing, safe food and air, health care, education and dependable infrastructure. Privatizing these amenities makes them available only to the wealthy, weakening the whole of society and creating anger, frustration and cynicism with democracy itself.

Now, with corporations as "persons," it is extremely difficult to curtail their profit-driven activities. For example, those of us working for healthcare justice through the formation of a unified, publicly financed, universal healthcare system, face the prospect of corporate healthcare insurance companies taking refuge from accountability for waste, abuse and fraud by posing as "persons" with equal constitutional rights to "privacy" and freedom from "discrimination." Already, as "persons" with free speech and equal protection under the law, corporations feel blameless in marketing cigarettes and other dangerous and unhealthy products to children, desecrating the environment, loosening gun laws and a whole plethora of antisocial, destructive-but-profitable endeavors.

Turning corporations into persons began gradually. In the 1886 U.S. Supreme Court decision Santa Clara County v. Southern Pacific Railroad, the court appeared to grant a corporation the same rights as an individual under the 14th Amendment. Since that time, judges have acted in accordance with the concept of "corporate personhood," allowing companies to hold property, enter contracts, to sue and be sued, just like a human being striking down local, state and federal laws designed to protect actual citizens from corporate harm. Since then, hundreds of decisions favoring corporate interests have been enshrined in the fiction that, as "persons," corporations enjoy such constitutional rights as free speech, religious freedom, privacy and protection from discrimination and self-incrimination.

In a sweeping expansion of corporate rights, the 2010 case of Citizens United v. Federal Election Commission (FEC), SCOTUS ruled that political speech by corporations is a form of free speech that is covered under the First Amendment. Money itself was enshrined as "speech." Thus has evolved SCOTUS's complicity as handmaiden to corporate hegemony. Witness SCOTUS's recent evisceration of the Environmental Protection Act and overturning New York gun regulations.

As well, corporations now may hide behind the safeguards against regulatory searches stated in the Fourth Amendment. This ruling dramatically expanded the already outsized political influence of wealthy donors, corporations and special interest groups, and allowed the creation of super PACS where the source and spending of monies is secret.

Since the Citizens United decision, Move to Amend was created as a national, non-partisan, grassroots organization that seeks to blunt corporate power by amending the United States Constitution to end corporate personhood. HJR (House Joint Resolution) 48, introduced by Rep. Pramila Jayapal in 2021-2022, proposes such an amendment stating the rights protected by the Constitution are the rights of natural persons only. This amendment requires federal, state and local governments to regulate election contributions and expenditures, and requires that any such contributions be publicly disclosed. It also prohibits the judiciary from construing the spending of money to influence elections to be speech under the First Amendment or abridging the freedom of the press. HJR 48 is currently under consideration with 100 co-sponsors in the House and 25 in the Senate.

Even as a U.S. Supreme Court reversal is unlikely and a constitutional amendment to undo Citizens United would be difficult, there are still interim policy solutions available. HR1, the For the People Act, passed the House in 2021 but was stymied in the Senate. That bill would expand voting rights, change campaign finance laws to reduce the influence of money in politics and ban partisan gerrymandering. Only public pressure will force our representatives in the Senate to end the filibuster and pass this bill while we work on amending the Constitution.

In our first paragraph, above, we identified the hallmarks of psychopathic corporate behavior. The Corporation, a 2004 documentary (free on YouTube), expands on this proposition following the traits of various corporations that fit these criteria in an entertaining and informative format. Coming soon is The New Corporation: The Unfortunately Necessary Sequel (see the trailer at http://www.movetoamend.org), revealing how corporations are taking over society with more sophisticated branding as socially conscious entities. Move to Amend has sponsored and will be promoting this upcoming, eye-opening Canadian film.

We'll never have an authentic democracy so long as corporations are granted the same rights as individuals. That's why Move to Amend educates and organizes to abolish corporate constitutional rights. The reckless pursuit of profit without regard to the wellbeing of the planet or the humans that live here should be rejected.

Please join Move to Amend to protect our rights against the frightening encroachment of corporate hegemony. Start by signing its petition online, (www.movetoamend.org/amendment) and checking out its calls to action. It's beyond time to remove corporate psychopathy from the commonwealth.

Corinne Frugoni (she/her) is a retired local family practice physician. She lives in Arcata. Patty Harvey (she/her) is a retired professor who taught at College of the Redwoods. She lives in Willow Creek. They are co-directors of the combined organizations, Humboldt chapters of Health Care for All-CA and Physicians for a National Health Program.

Read the original here:
Corporations Aren't People but They Can Be Psychopaths - North Coast Journal

By Eric FeltenRealClearInvestigations https://www.realclearinvestigations.com/articles/2022/08/02/electric_car_drivers_why_you_might_not_be_pumped_over_privacy-jolting_mileage_taxes_845286.html

The environmental impact of electric cars may still be unknown, but leaders are growing concerned about the threat they pose to the financing of the nations highway system. Because freeways and bridges are funded, in large part, through federal and state taxes on gasoline and diesel fuel, the battery-powered future will test whether roads can just be paved with good intentions.

Lawmakers on both sides of the aisle are trying to devise new ways to raise that fuel tax revenue, which in fiscal year 2020 delivered $35 billion to the federal government and an additional $51 billion to state and local governments. But experts say that proposed fixes to the anticipated highway funding shortfall involving charging drivers for the miles they travel by tracking their movement pose a significant threat to personal privacy and liberty.

The Infrastructure Investment and Jobs Act, passed with bipartisan support last year, authorized the Department of Transportation to launch new pilot programs to test ways to collect necessary fees. These include a range of high-tech means such as accessing location data from third-party on-vehicle diagnostic devices, smart phone applications, telemetric data collected by automakers, motor vehicle data obtained by car insurance companies, data obtained from fueling stations, and any other method that the Secretary [of Transportation] considers appropriate.

Location data that is, information about where people are and where theyve been is highly sensitive, said Lee Tien, legislative director at the Electronic Frontier Foundation, a nonprofit that defends civil liberties in cyberspace. It can reveal what they do, who theyre with, where they worship, what medical procedures theyre having.

While the infrastructure act authorizes a pilot program to test collecting the personal information needed to charge drivers for their use of roads and highways, it doesnt answer the far thornier questions about how to protect that data. Will only the feds track drivers? Will each state and locality that currently depends on fuel taxes also monitor drivers? If so, will the data be pooled? Will destinations be tracked along with mileage?

These questions are arising as the Biden administration demands more energy-related data across the board as it seeks to achieve its ambitious climate change goals. The Securities and Exchange Commission, for example, wants almost all U.S. companies to tally and disclose the total amount of carbon emitted in producing their products. The Federal Highway Administration and the Department of Transportation proposed new regulations in July requiring states to measure carbon dioxide emissions associated with transportation and report those figures to the federal government. States will be required to establish emissions targets aligned with national policy established by Bidens climate-related executive orders.

Advocates of new highway user fees acknowledge the threat to privacy and promise to find ways to protect sensitive information. Asked about the risks posed by tracking vehicles, Rep. Sam Graves of Missouri, ranking Republican member of the House Committee on Transportation and Infrastructure, pointed to a previous statement: For years, I have been talking about the need to eliminate the gas and diesel taxes. Its time to move this solution toward reality, but in doing so, we must ensure that privacy concerns are addressed.

The Department of Transportation isnt taking on these issues from scratch. For more than a decade, DOT has been awarding grants to states willing to work out the kinks in a pay-as-you-go system. Pilot programs have been funded in states such as Minnesota, Iowa, and Nevada. The Nevada Vehicle Miles Traveled Fee Study found The greatest barrier to public acceptance is recognized as insuring driver privacy to the greatest extent allowed by available technology.

Asked by RealClearInvestigations about such concerns, a spokesman for the Department of Transportation said, "Privacy is of paramount importance and a requirement that has to be addressed in the pilot programs."

Drivers have proved to be accepting of technologies that track travel when they offer obvious benefits, such as skipping toll booths or fighting crime. E-ZPass shares data with law enforcement agencies conducting criminal investigations in accordance with subpoenas, court orders or amber alerts.

At Capitol Hill hearings last year, witnesses assured lawmakers that threats to privacy could be overcome. Peter J. Basso, chair of the Mileage-Based User Fee Alliance said, The pilots are showing the technical viability of a mileage-based system, and are showing how to address questions of protection of personal privacy and data security.

But privacy experts such as Theodore Claypoole, an Atlanta lawyer who edits the HeyDataData blog, cautions that concerns might increase if such tracking becomes universal.

He said a lot of people do understand they are less anonymous on the road than they used to be. Cars these days come default-set to gather and horde data on their drivers. What app doesnt reveal its users geo-locations? Insurance companies place bugs in some cars to tell what kind of drivers we are. Every day we are stalked by the Billion-Byte Beast, and yet we remain relatively blas about it. But gathering information on our driving for tax purposes is something different, says Claypoole. Its the federal government, not businesses, hoovering up our sensitive information. Do we find this more frightening, or less so?

Similarly, once it used to be difficult to collect comprehensive information about someones movements. It might take a team of field agents the FBI has traditionally used five cars to tail a single suspect in an automobile. Surveillance used to have what privacy scholars call high transaction costs. Those costs served as a protection of ones privacy.

The Supreme Court has wrestled with the question of protecting privacy in an age of tracking devices, but hasnt resolved what happens to ones personal information when it is being lawfully collected. In a 2012 decision, United States v. Jones, the court considered whether police could place a GPS device on a suspects car without a warrant. The court ruled, 9-0, that such tracking was an unreasonable search that violated the Fourth Amendment of the Constitution.

But that ruling did not settle the question of what the government could or couldnt do with the same sort of information when it is, in essence, freely handed over. In a concurring opinion, Justice Sonia Sotomayor noted that the biggest threats to privacy may come from technologies that invite surveillance: With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones.

It turns out that people are not as quick to give up freedoms as one might think. The Government Accountability Office published a report in January on the state-level user-fee pilot programs. The GAO wrote, Many state DOT officials told us that drivers felt concerned that a government-administered mileage fee system may track their location and collect personal data. They reported that public acceptance of mileage fee systems remains limited by concerns about protecting privacy.

Recently, some abortion-rights activists worry that states with strict anti-abortion laws might prohibit travel to other states for the purpose of obtaining an abortion. (Missouri has already considered such a law.) Could vehicle tracking be used to identify individuals who cross a state border and drive to the address of an abortion provider?

Privacy advocates suggest that activists may not want there to be digital tire tracks showing them driving to the sites of controversial political rallies such as on Jan. 6, 2021 in Washington.

Convincing the public that the government will protect their privacy and wont track their travel, the GAO found, made for major challenges facing mileage fee systems. Minnesota DOT officials were blunt about the lack of trust people have in the tech-enabled state: The public does not want governments to have their travel or personal information.

Privacy advocates tell RCI that sooner or later highway funding will move to user fees and probably sooner, given the effect electric vehicles will have on fuel tax revenues. And yet, for all the assurances made in pilot programs that privacy will be protected, the public remains unconvinced. Will the government have to change those attitudes, or will rules be made by bureaucrats? Will voters have a say in whether and how their travels are tracked? Or will they find that the decision has been made for them?

Continued here:
EV drivers might not be pumped over mileage taxes - The Highland County Press

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

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

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

Background

The Problem

The Solution

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

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

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REMEMBERING 9/11: 20 YEARS LATER

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

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MEET THE UNFORGETTABLE CLASS

2021

Harry Reid

(1939-2021)

Senate leader and Nevada political titan

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HENRY RUGGS

DEADLY CRASH

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HOMICIDE

A STORY BEHIND EVERY NAME

TRACKER

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Sheldon Adelson

(1933-2021)

Las Vegas visionary and Philanthropist.

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Tony Hsieh

(1973-2020)

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

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VEGAS REAWAKENING

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

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Team coverage from Las Vegas, Carson City and DC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The district court dismissed Shinnemans failure to train claim.

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

The Associated Press contributed to this report.

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

The facade of the Eighth Circuit

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

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

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

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

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

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

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

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

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

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

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

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

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

The court relays a harrowing incident later caught on video.

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

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

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

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

The court cites several additional complaints:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Published

2022-07-29 16:47

4:47

July 29, 2022

pm

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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