Category Archives: Fourth Amendment

As the world grapples with the rise of transferable digital assets from central-bank digital currencies (CBDCs) to stablecoins an oft-repeated concept is that national security and law enforcement will be in conflict with individual privacy.

This belief is based on the idea that we have only two choices: either reveal individual identities so that governments can track and trace potentially illicit digital transactions, or preserve individual privacy and severely jeopardize law enforcement interests. This binary concept is on track to inform policy, regulation and product development that could permanently impact the evolution of digital assets, computing systems, and finance.

It is a false choice, and one we should not accept.

The stakes are admittedly high when it comes both to law enforcement and individual privacy. We cannot and should not accept a future digital landscape where terrorists and criminals abuse the system. Nor can we accept a world where individuals sacrifice their right to privacy by exposing, en masse, economic and personal details to commercial or governmental actors.

Todays system of applying anti-money-laundering (AML) and know-your-customer (KYC) requirements is predicated on individuals turning over sensitive personally identifiable information (PII), which is susceptible to hackers and potential invasions of privacy by public and private sector entities. This cache of information, which includes full names, addresses, birthdates, Social Security numbers, business partners and more, is repeatedly disclosed to different institutions making each of them a holder of exceptionally sensitive data that cannot be put back in the bottle once exposed.

Fortunately, recent years has brought a range of privacy-enhancing techniques (PETs) that may create an ideal arrangement. At their core, these techniques are focused on being able to confirm certain critical information about an individual engaging in a transaction (for example, that the individual isnt on a terrorist watchlist), without revealing PII about that individual. Promising areas include zero-knowledge proofs, homomorphic encryption and multi-party computation, which generally enable parties to prove that an encrypted proposition is true without revealing the underlying information.

For example, cryptographic techniques can prove that someone is over 21 years old, rather than showing a drivers license that reveals personal information such as a home address. A zero-knowledge proof can keep such information encrypted, but perform a computation to verify that the encrypted birthdate is on or before the threshold date 21 years prior.

Likewise, cryptography can allow portable credentials that prove, rather than disclose, key elements, such as what trusted entity has conducted customer due diligence, what elements of information were checked, including sanctions lists, and more. This approach can drive expanded opportunities for people to access financial services through digital wallets faster and more broadly, including for economic impact payments and other emergency services. It will also safeguard and secure underlying personal information, which will no longer be as vulnerable to exposure from hacks. PII would only be revealed upon other risk factors justifying it, subject to legal protections.

The privacy technology frontier has meaningful implications for U.S. policy.

First, and most importantly, it is critical that policymakers develop policy based on where technology is headed rather than where it has been. When automobiles first emerged in England, an old law dubbed the Red Flag Act required self-propelled vehicles (previously, only steam-powered locomotives) to be led at walking pace by someone waving a red flag. The New York Times aptly pointed out in 1895 that it served to destroy the usefulness of a horseless carriage.

We should similarly not build rules imposing traditional identity disclosure requirements akin to a mechanic walking alongside a vehicle with a red flag just because we believe it is the only way to satisfy key objectives. Programs including FinCENs PET-dedicated Innovation Hours Program that focus on the important role of privacy-preserving principles in developing technical solutions is an example of forward-leaning approaches that need to be replicated across government to ensure we have rules that incorporate technological advances.

Just as traffic laws, signals, and road signs were a better alternative to people carrying around red flags, privacy-protecting zero-knowledge proofs are a better alternative to people broadly sharing their PII.

Safely ensuring privacy for the digital economy will be a core global competitive advantage.

Second, the U.S. should be pursuing massive investment into public-private research efforts aimed at developing the worlds most advanced privacy-enhancing tools. Safely ensuring privacy for the digital economy will be a core global competitive advantage. It can attract global consumers to adopt American platforms and solutions as they aim to preserve their privacy in the face of increasing surveillance and exploitation efforts, including major nation-state cyber attacks and pervasive global attacks on journalists.

Such collaborative efforts would also embed American norms and values into our digital infrastructure in stark contrast to global competitors. The U.S. decided long ago that although encryption (and the Fourth Amendment) makes it more difficult for the government to monitor activity, that security provides critical protection from anti-democratic authoritarians and attackers. Breaches are significantly less severe if the system comprehensively encrypts (or declines to collect) data from the beginning. Advances in PETs allows for that protection while securely and privately verifying and computing, rather than exposing, data. The choice is not binary.

Some progress is being made. The White Houseissued a comprehensiveExecutive Orderon broader digital asset policy a few monthsago, and agencies are currently putting out requests for more information. For example, the U.S.Treasury Department recently issued a request for comment. There are also a number ofCBDC-related billsthat focus on privacy.

When applied to digital-asset innovations, including development of a digital U.S. dollar, PETs will solve one of the larger perceived policy barriers: having to make a binary choice between privacy and security, when in fact, privacy is a necessary part of security and our democracy. The boundless energy of American ingenuity has been unlocked when people feel secure from exploitation. Advances in cryptography can help ensure personal and democratic resilience with more mathematical certainty and dynamic opportunity than the politically-contingent, binary (and false) trade-offs that are being presented.

Daniel Gorfine is former chief innovation officer of the U.S. Commodity Futures Trading Commission, co-founder of the non-profit Digital Dollar Project, and founder of Gattaca Horizons LLC.

Michael Mosier is former acting director of the U.S. Treasurys Financial Crimes Enforcement Network (FinCEN), former deputy chief of the U.S. Department of Justices Money Laundering & Asset Recovery Section, and is currently general counsel at Espresso Systems.

More: The long-awaited U.S. data-privacy bill appears to be on track, again

Also read: Ro Khanna: Tech-funding bill is not just about jobs its about a new patriotism

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Stablecoin and other digital assets are falsely framed as a choice between personal privacy and national security. We can have both. - MarketWatch

Sarasota County Sheriff Kurt Hoffman doesnt want the public to know the identity of two deputies involved in the shooting of 65-year-old Jeremiah Evans and has gone to great lengths to keep their names, which are public information under Floridas Public Records Act, a secret.

Evans was shot dead on April 1 while two Sarasota sheriffs deputies served an eviction on him in the condo where hed been living the past eleven years. The State Attorneys Office determined that Evans, who is black, held a knife in a "threatening manner and "took steps toward the deputies when one of them opened fire.

Prosecutors cleared the deputies of wrongdoing, but the public still doesnt know who they are. Sheriff Hoffman claims their identities are shielded by Marsys Law, which was passed by voters in 2018 ostensibly to protect crime victims. The law makes no mention of law enforcement, but the Sarasota sheriffs office and other police agencies across the state have been using it to hide the identities of cops involved in fatal shootings based on the claim that they are crime victims themselves and shouldnt be subject to public scrutiny.

That practice obviously runs afoul of government transparency standards and has sparked a legal challenge involving the identity of two police officers in Tallahassee that is now before the Florida Supreme Court.

Hoffman, however, has gone a step further. When the Sarasota Herald Tribune received a State Attorneys Office report with the last names of the deputies left unredacted, the paper was taking steps to publish them. Thats when Sheriff Hoffman went to court and obtained an emergency injunction to block the newspaper from publishing the names.

This, according to numerous legal experts, is a clearly prohibited prior restraint of the press.

"Prior restraint is the government telling a publication they cannot publish information it has obtained lawfully, said Ed Birk, general counsel for the First Amendment Foundation, which is party to the Florida Supreme Case. "The U.S. Supreme Court has never upheld a prior restraint. Its unlawful. The newspaper came by the information lawfully. The mistake was made by the State Attorneys office. Its not the newspapers job to enforce the public records law.

Perhaps the best known case of prior restraint in history came with the publication of the Pentagon Papers in 1971. During that controversy, journalist Ben Bagdikian said, "The only way to assert the right to publish is to publish. Adhering to that adage, we at the Florida Center for Government Accountability are publishing the identity of one of the two deputies present at the time of the Evans shooting.

Her name is Stephanie Graham and shes a veteran of at least 18 years on the force. Sheriffs Office spokeswoman Kaitlyn Perez said in a press conference that a female deputy pulled the trigger, but FLCGA News hasnt been able to independently confirm whether it was Graham or the other deputy at the scene who fired the fatal shots.

Like the Sarasota Herald Tribune, FLCGA News came by Grahams identity in an entirely legal fashion, in this case old-fashioned digging through public documents.

The sheriffs office disclosed that the same deputies involved in the shooting had served eviction papers on Evans door on March 31, the day before he died. A simple look at the writ of possession served on that day shows it was signed by a deputy with the initials "SCG with badge number 1515. Further checks of similar publicly available writs conclusively show that Grahams badge number is indeed 1515.

While Grahams history with the agency isnt known (a so-far unfulfilled public records request has been made for Grahams IA jacket and personnel file), she was involved in a long and drawn-out federal civil suit involving a past use of force.

During a 2004 drug raid involving a package of ketamine, Graham was accused of using excessive force on a 63-year-old woman named Patsy Croom, who was visiting her sons home at the time and had no involvement in any criminal activity.

Croom, who suffered from acute rheumatoid arthritis and had undergone numerous surgeries due to the condition, was gardening in the front yard of the home in a one-piece bathing suit when Graham and a team of masked deputies in all black stormed the home with guns drawn.

When ordered to "hit the ground, Croom said she was getting down as fast as she could but suffered from arthritis. Thats when Graham pushed her to the ground, put her foot on her back, and held a pistol to her head, according to Croom. Graham held her in that position for roughly eight minutes, according to the lawsuit.

Croom suffered additional medical issues due to the rough treatment and in her lawsuit alleged a violation of her Fourth Amendment protection from unreasonable search and seizure. The suit was dismissed and the appellate court though "sympathetic to Crooms plight and frustration upheld the ruling.

While Graham doesnt appear to have a history of repeat incidents, a failure to disclose the identities of deputies involved in fatal shootings could serve to protect and enable a cop who does have chronic issues, said Birk.

"The result of keeping this information from public view is that bad conduct does not get corrected, he said. "The whole point is to correct and improve, not just condemn.

After a two-hour hearing on Tuesday, Circuit Judge Charles Williams is expected to rule within a week on whether or not to lift the injunction against the Sarasota Herald Tribune. The use of Marsys Law to protect the identity of police officers, meanwhile, is still waiting at the feet of the Supreme Court.

Interestingly, Sheriffs Mike Chitwood and Sheriff Bob Gualtieri, of Volusia and Pinellas counties, respectively, have filed motions to support releasing the names of police officers involved in deadly shootings.

"This disclosure of deputies names not only promotes transparency and accountability but helps to rebuild the eroding public trust in law enforcement, Chitwood wrote in his motion. "[The Volusia County Sheriffs Office] desires to continue disclosing the names of deputies who are involved in the use of deadly force while in the execution of their official duties in order to continue promoting transparency and accountability.

Birk echoed those words.

"In giving the authority to our law enforcement personnel to arrest and use deadly force, we ask for a lot in return, he said. "And that is to know what they are doing and subject their job to public scrutiny. Thats our terms.

This story was published in partnership with the Florida Center for Governmental Responsibility.

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Right to publish: Withheld identity of deputy involved in fatal shooting revealed - WUSF News

It sounds like the start of a bad knock-knock joke: A bed and breakfast owner and a federal agent run into each other at an inn on the northern border. But what happened next is far from humorous.

Robert Boule, the owner of Smugglers Inn on the Canadian-US border in Washington, sued a US Border Patrol agent for violating his Fourth Amendment right by entering his home and using excessive force against him. Boule alleged the border agent pushed him to the ground during a dispute and then retaliated by reporting him to the IRS after he complained to the agents supervisors.

The US Supreme Court ruled against Boule on June 8, holding that his case did not fall under the 1971 precedent Bivens v. Six Unknown Fed. Narcotics Agents. In its ruling, SCOTUS effectively concluded that federal courts no longer have the right to decide on border police liability, but instead should defer to Congress.

Without congressional action, federal agents may no longer be liable for their actions, no matter how violent. Why? The doctrine of qualified immunity for law enforcement.

As a former public defender and now executive director and co-founder of Partners for Justice, a nonprofit that works to help low-income Americans navigate the legal system by bolstering public defense resources, I have seen first hand the consequences of law enforcement behaving as if they are the law. A child assaulted by a school cop while the schools video surveillance mysteriously cut out. A young man having his face driven by a police officer into the street for carrying a screwdriver.

The police violence that we hear about in the news is occasionalthe police violence that communities of color endure every day is not. It is constant, lethal, and uniquely American.

In no other field are professionals shielded from the worst consequences of their occupational mishaps. If a doctor botches a procedure, they are liable for malpractice. If I, as a lawyer, fail to investigate my clients claims, I could lose my license and be subject to liability. But if police (and now federal agents) use excessive force, they are largely shielded from any public recourse.

Imagine the shock and outrage that would erupt if nurses killed 1,055 civilians in one yearthe number of civilians killed by law enforcement in the U.S. in 2020. Yetdespite the crescendo of voices arguing against qualified immunity after George Floyds murder in 2020our courts persist in creating a consequence-free zone for some of our nations most lethal professionals.

Law enforcement is no longer an emergency response mechanism, but more of an omnipresent, all-purpose force, summoned for everything from excessive noise to mental health crises to school misbehavior. This puts the public at much greater risk from the policewho are everywhere, doing everything, including things they are not trained (social work, mental health, etc.)

Unfortunately when brute force and imprisoning people in desolate locked spaces are the main tools for carrying out cops jobs, the outcome is (predictably) more harm.

The smartest pro-safety solution would be for legislatures to invest in communities needs that foster safety, such as housing, access to medical care or building out public defense as a broader resource to aid people whose lives are dismantled by our criminal system. But that doesnt mean we cant still push for lawmakers to take the most modest step in the right direction: ending qualified immunity.

The Boule decision isnt ideologically uniqueits just a depressing reminder of how expansive law enforcement immunity really is (plus a spotlight on the horror that is our Constitution-free border zone). The Supreme Court has continually kicked rulings on qualified immunity to the legislature, building precedents for protecting law enforcement at the expense of the American people (with a pair of such rulings just last year in City of Tahlequah v. Bond and Rivas-Villegas v. Cortesluna.)

In a world where Democrats control the Senate only on paper and fact-free crime hysteria is on the rise, its easy to feel SCOTUSs abandonment of the individual is the end of the road. But in fact, there may still be hope.

While we wait for Congress to break the Washington deadlock, there are other system actors who can hold police accountable in court and play important rolesprosecutors and public defenders.

Prosecutors can use do-not-call lists, which are lists of police officers to no longer call to testify in court because those officers arent credible witnesses. This disengages bad cops from courthouse power.

Meanwhile, public defenders can also help. They serve around 80% of accused people and stand as a last bulwark between ordinary people and law enforcement overreach. Public defenders also are often the only legal-system actors present and able to help at moments of peak crisis.

And some local leaders across the country are making strides, with tangible impacts. In Delaware County, Pa., for example, dynamic new leaders in the public defenders office identified the need for change, and by reimagining the role of their office, they have made it a community haven for holistic support, rather than just a space for legal counsel.

Unfortunately, public defender offices continue to be chronically underfunded at all levels of government. For example, the latest numbers show that California recently proposed budgeting 82% more resources to prosecutors than public defendersand this was in a progressive stronghold.

Until our elected officials realize that the shamelessness of American policing is a fertile source of common ground, those of us in the courthouse will have to do our best to repair the irreparable harm of American law enforcement.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Emily Galvin Almanza is the co-founder and executive director of nonprofit Partners for Justice. Previously, she worked as a public defender in California and New York.

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Congress Needs to Fix Qualified ImmunityHere's Why - Bloomberg Law

During the quarter-century year career on the Supreme Court, Justice Stephen Breyer constantly cultivated two judicial virtues now increasingly absent from the federal bench. The first is a careful, empirical cast of mind, constantly alive to the lived experience of litigants, institutions, and the world. The second is a humility about the limits of his own knowledge. These led him as a profound respect for other, more democratic bodies such as Congress, federal agencies. and state legislatures. Under their sway, Breyer vindicated Our Democratic Constitution as finely as anyone else to grace the high court bench.

Unlike the approaches favored by other Justices, Breyers brand of well-tempered empiricism forced him to be candid about what informed his judgment. It avoided simplistic fallaciespeddled hard under the originalist labelto the effect that constitutional law at the high court can avoid normative judgments: The text of the Constitution is too majestically general, and too capacious for it to be otherwise. By bringing to light the laws real justifications, and amplifying the space for democratic choice, his work embodied real judicial restraintand a real commitment to the founding American value of lived democratic choice.

Justice Breyers opinions are characterized by detailed consideration of the many factors that legitimately bite on a legal questions, coupled with close attention to factual detail. His dissent in the New York gun case last week, as well as the careful and modulated dissent from the wrecking-ball abortion decision, show as much. His opinions are often accompanied by voluminous appendices, listing in exhaustive detail the facts behind a specific point.

Sometimes, this exacting attention to the world drove Breyer to progressive conclusions. In a 2015 dissenting opinion, for example, he painted a comprehensive empirical portrait of a capricious, oft-lawless, and racially tainted capital justice system. His relentless and powerful catalog of racialized caprice and malice should lay to rest any thought that the American death penalty can avoid being cruel and unusual in violation of the Eighth Amendment, let alone even-handed across the color line.

In a more centrist vein, he penned in 2006 a sweeping rebuttal of the Courts decision to invalidate race-conscious efforts by schools to maintain integration. Chief Justice Robertss majority rested on a phrase of illusory simplicity: The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. In contrast, Breyer demonstrated beyond doubt that when historical patterns of racial discrimination carve up the present social world, race-blindness has the effect preserving uneven access to quality education.

Justice Breyers solicitude for the facts has not been mere code for liberal outcomes. Instead, respect for facts also led him often to conservative, even illiberal, opinions. In 2011, for example, he dissented from the Courts invalidation of a California statute banning the distribution of violent video games to young people. Canvassing alternatives to a ban, Breyer flagged serious enforcement gaps left by other technological options. In 2005, he cast the decisive vote upholding a six-foot-tall statute of the Ten Commandments on the grounds of the Texas State Capitol. This vote was based on his careful evaluation of the way both religious and secular citizens experienced their government in Texas. And in 2002, Breyer provided the pivotal vote in an important Fourth Amendment case about students rights against suspicionless drug testing. He upheld the practice against constitutional challenge, citing the serious national problem with drugs, and the schools decision to avoid criminal or disciplinary.

Indeed, his most recent majority opinion, issued in a religious liberty case at the beginning of May, ruled for the First Amendment claimants wanting to fly a Christian flag in Boston. By todays standards, this was a conservative outcomeyet Breyer managed to put together a coalition of both liberals and conservatives. Where he aimed to encompass diverse constitutional values, his conservative colleagues only weeks later blew past precedent to elevate the constitutional rights of the religious over those of the secular.

The clarity and rigor of Justice Breyers opinions are absent from many of his more conservative Justices recent work-products. As Professor Ryan Doerfler has recently explained, many Roberts Court opinions are an almost comical exercises in logic-chopping semantics. They are woefully lacking in attention to the actual context in which statutes are made.

Further, Breyers candor is at odds with the originalist label that several Justices proudly display. This label is paraded at a moment when critical areas of constitutional lawsuch as campaign finance, property takings, and racial equalityfloat completely free of any anchor in eighteenth-century understandings. In contrast, Justice Breyereven when you disagree with himtreats his reader as democratic equals who deserve an actual justification, not just high-handed sophistry.

The second key trait of Justice Breyers jurisprudence is respect for the ability of our democratic institutions to make their own judgmentsoften with tools far superior to courtsand to act on those conclusions. A 2007 study hence found him among the least likely judges to invalidate either federal or statute statutes. A study one year before that found him least likely to strike down a federal regulation (Scalia was at the other end of the spectrum).

Other Justices engage in democracy talktake Justice Kavanaughs comments about letting states decide on abortion. But Justice Breyer practices what he preaches. Not for him judicially created rules to the effect that agencies cant decide major questionsrecently invoked to shut down President Bidens vaccine mandate. That sort of judge-made rule can too easily be expanded and contracted, accordion-like, to fit the Justices policy preferences.

Justice Breyers career hence tees up the right questions to ask of the Court in coming weeks and months: Will it be well attuned not just to all the facts of the world (not just the convenient ones), and at the same time honor its limited empirical capacities? Will Justices work toward and support a constitutional democracyor are they a threat to that very enterprise? The Court that comes after Justice Breyers retirement has high standards to meet indeed.

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What the Supreme Court Loses With Justice Breyer's Retirement - TIME

In the recent Dobbs v. Jackson Womens Health decision, Roe v. Wade and Planned Parenthood v. Casey were struck down. In his opinion, Justice Clarence Thomas wrote three previous rulings that used the same constitutional mechanism as Roe and Casey had been decided erroneously and should be reexamined.

StateImpact Oklahoma reporter Beth Wallis interviewed Kathleen Tipler an OU political science professor who specializes in gender, sexuality and the law to understand how the Dobbs decision could impact other precedents related to contraception, sexual privacy and marriage equality.

This interview has been edited for brevity and clarity.

Why substantive due process matters

Wallis: Well, Dr. Tipler, thank you for taking the time to speak with me today. I wanted to start off with the Dobbs Jackson Womens Health decision from last week. The courts majority disagreed with how Roe and Casey used substantive due process and the right to privacy. Can you help us understand what that means?

Tipler: Roe and Casey were both grounded on the Due Process Clause. The 14th Amendment and the Fifth Amendment says that before the government can deprive somebody of their life, liberty and property, there has to be this due process of law, and theres basically two forms of due process that courts have recognized: One is what is called procedural due process, which means there must be certain procedures put in place by the government to make sure that the overwhelming power of the government doesnt just sort of wipe away whatever protections any person has. And theyre not unfairly and unjustly deprived of life or liberty, like put in jail without good cause, or property. And so we have protections. For example, if youre charged with a crime and can potentially be put in jail, you have a right to see what evidence there is against you. You have these rights to provide evidence on your own behalf to protect yourself and to cross-examine witnesses. And these are all what we call procedural rights, the established procedures to make sure that the government doesnt unjustly take away your life, liberty or property.

Substantive due process is the second area of protections that courts have recognized as following from that clause. If you think about, okay, if we have these procedures in place in order to make sure that people arent unjustly deprived of their life, liberty and property, we have to think about, what does that liberty consist of? So the obvious one is your ability to roam about and do what you want and not be in jail. And then theres this other question of, Well, what else is included in that concept of liberty? Since the Constitution was written, the courts have recognized particular rights as being referenced and being protected by that term, liberty. And thats where we get this idea of substantive due process.

You really see that burgeoning in the late 19th century and the early 20th century, with the Supreme Court recognizing particular individual economic rights, including a right to contract. And they saw this right to contract as being protected by the Due Process Clause. And in doing that, they said the Supreme Court struck down all sorts of economic regulations regulations between employees and employers as violating this individual right to contract, and the Court moved away from that position in the 1930s, which people associate with this case in 1937 that really sort of abandoned this doctrine of recognizing this right to contract as a precursor to a substantive right under due process. In the late 1930s, theres this famous footnote where the Supreme Court says that, We recognize that theres other substantive rights in the due process clause. Including all the rights that are in the first eight amendments, the Bill of Rights, as well as rights to participate in political process, as well as rights that would protect, quote unquote, discrete and insular minorities. Which we recognize now as very much including racial minorities, that is a very common use of that. So thats sort of the origins of it.

And then, moving past the 1930s, you get it repeatedly recognized in many cases, a lot of them have language of an individual right to choose about intimate relations and family relationships, including an early one in Myers v. Nebraska, about the parents having a fundamental right to control the upbringing of their children. So you have these rights around like child custody, rights around marriage, rights about intimate relations. And we see the court is recognizing these sorts of rights, rights to privacy, as providing the content for that word liberty in the due process clause.

How Roe and Casey were decided and what Dobbs challenged from those decisions

Wallis: So we have this idea of substantive due process and the right to privacy. How did that play into Roe and Casey? And then how is that interpreted in Dobbs?

Tipler: In short, the Dobbs opinion says that when were reading that word, liberty in the Due Process Clause, we should not read within it a right to abortion. Thats what it says. And it takes this long standing idea that these rights that the court reads into liberty must be rooted in the nations traditions and ordered liberty. And the way that the Dobbs decision reads, it is this very stringent, strict, hardcore is the way I would describe it, originalist reading, where it goes back and looks at, Was there an explicit right to abortion in the text, in the legal doctrine, at the time that the Fifth Amendment was written in the 18th century, and the time that the 14th Amendment was written in the 19th century? And I think probably not shockingly to anyone, there is no explicit reference to a right to abortion in 18th century text. If you look at the history, this wasnt something really that legal professionals were talking and thinking about at that point. There are some references to the quote unquote, quickening, which is associated now with the idea of viability. But were also talking about 18th century medical conceptions ideas that do not map on to current medical knowledge. I mean, even the medical knowledge, and the technology of Roe doesnt map on to what we have now because its advanced so much. So theyre using this there has to be this explicit right to abortion in 18th and 19th century text. Its not there. So its not a fundamental right thats protected by substantive due process. This idea that your life, liberty and property cant be unjustly deprived by the state. Thats how Dobbs gets to the place it gets.

If you go back to Roe, its saying that they locate a right to privacy, particularly a right to privacy between a woman and her doctor to make this decision, which, following the ideals of that time, was very much a medical decision. It hadnt been politicized in the way that it has now. And they are getting that right to privacy from an earlier decision about contraception.

How Griswold v. Connecticut spelled out the case for a right to privacy

Wallis: So Roe viewed the right to privacy as under that liberty umbrella, and that privacy precedent came from another case Griswold v. Connecticut in 1965. Talk about how Griswold is connected.

Tipler: Griswold v. Connecticut was a decision that struck down a Connecticut law banning contraception. And a couple of interesting things about Griswold one interesting thing is that contraception wasnt particularly controversial at that time. They actually had trouble bringing the case because there werent arrests being made. Also interesting at that time is that in the 1960s, you have the first oral contraception, and so you have this widespread use of oral contraception that again seems to be largely accepted by the public. So not a terribly controversial decision to strike down this ban on contraception.

But it did create this right of privacy in a legal reasoning that was and continues to be controversial, where they said that there is a, quote unquote zone of privacy. And that zone is created by reading different amendments, different parts of the Bill of Rights together. So different rights that are explicitly in the Constitution together, including: Theres a right of association in the First Amendment to affiliate with whomever you want. Theres a right to not having troops quarter in your house in the Third Amendment, which indicates this area of privacy in your physical home. There is a right to be protected against unreasonable searches and seizures in the Fourth Amendment, a right not to incriminate in the Fifth Amendment. And then the Ninth Amendment, really importantly, says that the previous eight amendments should not be read as the limit to all amendments in the Constitution. The Ninth Amendment says that there are other rights that are not explicitly in the Constitution.

And so reading all of these together, they say that there is this zone of privacy that we can read into these different explicit rights in the Constitution to see that theres this sort of this long standing tradition of privacy and expectation that certain areas, particularly within ones home and in a marital relationship which is what Griswold addresses that theres an expectation of a right of privacy, to be protected from government interference. And that includes the decision to use contraceptives within a marriage, which is what that case is about. And so theres also, in that opinion, discussion of this long standing value of marriage as well. So that case, Griswold, was not controversial because of its outcome at the time, I dont think, but controversial because of pulling all of these different pieces, the different Bill of Rights together, to say that there is this right to privacy.

And so Roe references this right to privacy, although really I think it doesnt necessarily attach itself to that whole apparatus about pulling all these different pieces together. And it quite explicitly says wherever that right to privacy is found, it exists. And its broad enough to encompass a womans decision whether or not to terminate her pregnancy.

The role of the Ninth Amendment

Tipler: I do want to emphasize the Ninth Amendment. I think it is important, because if we think about the history of the Constitution, where those first amendments come from, the ones that we call the Bill of Rights today, there was a lot of debate about whether to put those in the Constitution, and you had a large contingency of people involved in writing and ratifying it. They really did not want anything like a Bill of Rights, because they were worried as it turned out, they were very prescient and correct here they were worried that the Constitution would be read in a limited way as only the rights that were explicitly in it were the ones that were to be recognized, and they did not want to do that.

So there were many, many people who did not want to have the list of rights that we now have. And ultimately that ended up being the product of a compromise, where you have James Madison sort of moving the final step of ratification along and trying to get people who oppose the new Constitution to get on board and vote for it. And one of the ways he did that is he said, Okay, well, I know you guys really want this Bill of Rights. So even though I have deep concerns about it, because I think people are going to read it in this limited way, we will go ahead and make sure thats the first thing we do after the Constitution is ratified, is add in this sort of list of rights. But were also going to put in The Ninth Amendment, which says, Do not in the future ever read this list as the only rights that are in the Constitution. So when were talking about substantive due process, theres also people reading the Ninth Amendment that says do not read the Bill of Rights as the only rights that the Constitution.

So then, of course, the question comes up, How do we give content to liberty? There is sort of this idea of looking back to tradition, and this is where you get the Courts reading in the 20th century, a right to marriage rights, to privacy rights, to custody of ones child, things that are not explicitly in the Constitution. But certainly theres a long history, and the public society recognizes these, I think, as rights. And then you have Dobbs saying, No, we dont. We dont just look at these traditions. We look at very particular moments in history at the time that the 14th Amendment was written, the time that the Constitution was written and ratified. And we look at legal text around then and we see that there is no right to abortion.

I think theres a couple of different things: One, is this looking for an explicit right to abortion. Thats not what the previous Roe or Casey were built on. They were built on a right to privacy. And Casey sort of changing that slightly to a right to make choices intimate and personal choices that, as they put it, are central to personal dignity and autonomy, which really fits in well, I think, with that whole other tradition of other rights under substantive due process that are being articulated the choices like child custody and marriage that this is about individual autonomy and dignity. And thats part of our tradition, too. Even though the right to make that choice is not explicit in 18th and 19th century legal text. So I think thats really sort of the difference. Where are we looking? What sort of texts are we looking at? Or, are we looking at principles like dignity and autonomy that Roe and Casey saw as central to the tradition, as well as many other cases in the 20th century?

What Planned Parenthood v. Casey decided

Wallis: So I want to talk specifically about Planned Parenthood v. Casey. Can you give a brief overview of this case and tell us how it both reinforced and modified the Roe decision?

Tipler: So Roe said that theres a right to privacy. And then Roe also said that state governments have a legitimate interest in both protecting the mothers health, as well as the health of the fetus that could become a child a potential life. And so Roe said that states couldnt place any restrictions on abortion during the first trimester. And in the third trimester, they said that the states have to prioritize the potential life of the fetus. And in that second trimester, the states can have all sorts of prohibitions, but within some limit. So this is their attempt to balance what they saw as sort of a legitimate right to privacy, as well as legitimate interest in womens health and safety, and this potential life of the fetus. And that trimester system is partly sort of, Well, lets create a compromise so we can move it into threes. And so privacy has one, potential life has another, and in the middle is a compromise. So that works nicely within the tripartite division, but it also is coming from the medicine of the time, looking at when the fetus can potentially live outside of the womb.

And so you move on to Casey, and medical technology has changed, and so viability has changed, where viability has sort of shifted earlier into the pregnancy. Casey, instead of emphasizing this right to privacy, I think they emphasize a broader tradition of what substantive due process has come to mean in the 20th century, which is about the right to make these choices about personal and intimate life settings things like marriage and custody of your children and decisions over child-rearing. So theyre grounding it more in that tradition. And theres this right autonomy in your personal area, your personal life, in familial life.

Also different in Casey, is that theres an emphasis on stare decisis this idea that precedent is important. And Roe v. Wade occurred almost 20 years before Casey. Stare decisis is the reason we have Casey. But if you go back and read Casey, the court is at pains to emphasize that theres a constitutional source, theres a constitutional argument that theyre making about personal autonomy and substantive due process. They also talk about stare decisis, but its one of the reasons that they say they come to the decision that they do its not the only reason.

So Casey upholds the main holding in Roe that there should be this balancing between what is now being framed more as this personal autonomy right or a right to make choices about ones own life, as well as continued legitimate state interest in and the mothers health, as well as this potential life in the the fetus. So it continues to balance all that, but it also changes the way that courts should examine these laws regulating abortions. Rather than just using this strict trimester framework that Roe set up, viability has changed to be earlier. So you had instead of 28 weeks, 22 weeks.

And also, they say that there should be no undue burden on this right for women to have an abortion. There can be some burdens, they just cant be, quote unquote, undue. It cant be a substantial obstacle in the place of a woman seeking an abortion. So all sorts of other restrictions are allowed as long as women can eventually get it. But since Casey, theres been a regular, constant stream of litigation over what exactly counts as an undue burden, with the court increasingly seeing obstacles not as undue burdens as acceptable under that undue burden standard. And critics have looked at that as shrinking the space for the right to abortion or right to choose, depending how you frame it. And then, of course, now you have Dobbs, which completely gets rid of it.

Sexual privacy at stake?: Lawrence v. Texas

Wallis: There are two other cases I want to get into that use Griswold as precedent, and those are Lawrence v. Texas and Obergefell v. Hodges. These cases arent about abortion, but people are still very concerned that the Dobbs ruling could affect these rights as well. So starting with Lawrence in 2003, how was that case decided?

Tipler: So Lawrence v. Texas is regarding a Texas law that prohibited same sex sodomy. And the Supreme Court in that case reaffirmed this right to privacy and said that in this Texas law, the right to privacy was being violated, because that right to privacy includes this right to consensual adult sexual conduct in ones home. And so, of course, if a right to privacy isnt being acknowledged by Dobbs, people are wondering, what about these other cases that rely on a right to privacy like Lawrence v. Texas?

Marriage equality at stake?: Obergefell v. Hodges

Wallis: So that takes us to the 2015 Obergefell v. Hodges ruling, which recognized the right to marriage equality. How was the right to privacy used as precedent in this case?

Tipler: The right to privacy in Obergefell was read together with the Equal Protection Clause, and it basically said that there is a right to marriage, which, to be clear, wasnt established in Lawrence v. Texas, but comes from a number of these substantive due process cases, most explicitly Loving v. Virginia, which is about interracial marriage. So reading this right to marriage from the Due Process Clause together with equal protection arguments, a state cant allow only straight couples to have access to this fundamental right of marriage that that violates equal protection.

In other words, you cant exclude a particular class of people from this fundamental right. You cant exclude same sex people from this fundamental right of marriage. So its reading equal protection and the Due Process Clause sort of together. I wouldnt say its based so much on privacy, it is sort of based on privacy. But also, this line of cases that were talking about, a lot of it is based on autonomy, is the language that is being used, and the right to make choices about ones life and how to live ones life. And also included in Obergefell is language about individual dignity as well as autonomy, and how not having access to fundamental rights also damages dignity as well.

Interracial marriage at stake?: Loving v. Virginia

Wallis: How does the Loving decision fit into all of this? And just to reiterate, that was the decision that recognized the right to interracial marriage. Does Dobbs challenge Loving?

Tipler: I dont think Dobbs challenges Loving, because Loving is built on equal protection and this due process right to marriage. I dont think it challenges Loving for two reasons: One, I dont think this Supreme Court is interested in getting rid of a right to marriage. I could be wrong. But I dont see that as a concern. And two, the way that the Loving decision is written, the equal protection and rights to marriage arguments are not tied together in the way that they are in Obergefell. So I think that Loving could stand on equal protection grounds alone. And again, the Court hasnt shown any interest in undermining that in a way that would undermine Loving. So I dont think Loving is threatened by this.

Beyond abortion what Dobbs could mean for contraceptive access, sexual privacy and marriage equality

Wallis: There seems to be a disconnect between justices on what precedent is affected and whats not Justice Thomas is saying Griswold, Lawrence and Obergefell should be reexamined, but Justice Alitos majority opinion says the decision would not have the implications Thomas wants. What are the implications for these other three rulings?

Tipler: We dont know, because this could be read in different ways. And what will happen to things like Obergefell and the other cases that Thomas is calling to overturn? To be very trite, but I think also very accurate, it just depends. It depends on what the Supreme Court does. This could be bracketed off and sort of intellectually sequestered as fundamentally different, and so it doesnt have to affect other lines of doctrine around substantive due process. Or it could be pulled in to undermine and overturn that line of doctrine. But I doubt probably all of it, because some of what were talking about here is the conservative legal movement.

And some of that tradition is quite important to conservatives who have very effectively organized to overturn Roe, and like Thomas notes, are interested in overturning some of these other decisions. But theres splits in that movement as for how far it goes. It depends on what the Supreme Court does. It depends on if we have the same folks on the Supreme Court as we do in the future. It could potentially depend on the degree to which this decision undermines judicial legitimacy, which is already at an all-time low right now. And although Im not sure that the majority cares that much about that, but certainly, Justice John Roberts does he wrote a concurrence here, and Kavanaugh wrote a concurrence trying to limit this decision. And you could also say it could also depend on what effect this decision has on the upcoming election cycle and the results of that as well.

Wallis: So now that weve gone over how these cases that Justice Thomas referenced are connected to Roe and Casey, how concerned should people be that contraceptive access, sexual privacy and marriage equality are on the chopping block?

Tipler: There is a debate among people who are puzzling through this opinion and thinking about Supreme Court dynamics, people are wondering and arguing over the degree to which people should be concerned about these prior decisions, about contraception and same sex marriage. And there are certainly really smart, well-informed people who are very concerned. There are other people who say, Maybe we dont need to be as concerned. I see it as not inevitable that its going to go one way or the other. But I think theres good reasons to be concerned, and I think that people on the left should not have been shocked by this opinion. And that if they care about these things, they should have been far more concerned for the decades preceding this that led up to this moment. It didnt come out of nowhere. It came out of political organizing. So, yeah, I think people should be concerned, as they should always be concerned about their rights.

When a right is sort of created by the Supreme Court, it can go away. And thats one of the reasons that the Obama Administration was trying to get some of these LGBT protections through the legislature though thats a generous way to read that. Because if rights are created either purely by executive order or by a court, they may not have that same endurance as through the legislature. But I would say, with all rights, theyre not something that you could just take for granted. They are constantly the product of politics and political organizing.

One thing that a lot of people have been wondering from the political science side is, what are the organizing ramifications? What are the partisan ramifications of this? Overturning Roe has been this major mobilizer for the Conservative Party for decades. And theres good evidence that thats where the quote unquote backlash came from, that it wasnt some sort of grassroots response to Roe v Wade. It was the product of strategic organizing in order to change the composition of the Republican Party and bring Catholics into the Republican fold who had been more Democrats prior to that. So this raises this interesting political question of what happens from here? Does the Republican Party just keep passing all sorts of different abortion laws to mobilize their constituents? As weve seen, Oklahoma has multiple abortion laws that overlap with each other. It doesnt seem like from a purely governance perspective, we need all of these abortion laws.

So do Republicans just keep mobilizing around abortion and find new ways to do that? Because one of the criticisms of Dobbs is that Dobbs says, well, we just want this to be out of the courts hands. But theres still so many things that need to be decided, it doesnt seem likely to end litigation. Theres questions about, well, what about a miscarriage? Were seeing some of these issues pop up already in Texas thats had these significant restrictions longer than everyone else now. What happens when somebody has a miscarriage, and the fetus will not live, and yet the doctors do not want to provide an abortion because they think even though that thats sort of the medical answer, because theyre worried that theyre going to break the law?

So theres all sorts of questions still that are potentially litigated. Is that where Republican organizing is going to go, or do Republicans say, Okay, weve won this? And also maybe now Democrats are more organized than us because theyre really upset about this. So this isnt a way to mobilize, to win elections, so do we instead turn to things like same sex marriage trigger laws, all the laws like that that were being passed before Roe in relation to abortion? Do they start moving to other issues?

Of course, the counterargument there is that same-sex marriage seems to be more widely accepted. But then there is a counterargument to that, too, which is that actually, Roe has been widely accepted and the majority of people do not want to overturn Roe. But that wasnt an issue for Republican organizing, because the nature of our electoral institutions now in the primary system, with gerrymandering, is that Republicans are motivated and incentivized to go to the extremes of their party. And so same-sex marriage laws can be really appealing for that group and maybe contraception laws as well, although I think that seems even less likely.

Wallis: Do you think theyd go after Lawrence? That seems like a really hard one to enforce.

Tipler: I think that could live under equal protection because the Texas law was a same-sex sodomy statute, only targeting same-sex couples. So it could stand solely on equal protection, not substantive due process. I think legally Lawrence can stand on equal protection, so conservatives could sort of coherently get rid of a lot of these due process decisions and still let Lawrence stand under equal protection if they wanted to.

Wallis: How do you even enforce anti-sodomy laws? Do you bust into someones bedroom?

Tipler: That was also, interestingly, a big part of the contraception decision as well. In the Griswold decision, activists had trouble getting that before the court, just like they did with Lawrence v. Texas, because of problems with enforcement.

Something thats really interesting right now, I think, is the distribution of contraception and the ability of criminal surveillance has radically changed. And so contraception bans become much more enforceable potentially in all sorts of scary privacy ways. So that is fairly different now.

But I do wonder, I dont know, spitballing, but if theres other mechanisms of enforcement for something like a sodomy statute that there didnt used to be, with something like porn sites. Or theres things that give clues, like the way that you can track all sorts of things on the Internet now or social media stuff like Grinder and other apps where people are either dating or hooking up in some same-sex relationship. Maybe it used to be hard to enforce, but its not anymore because you dont have to go into someones home.

Wallis: Its starting to turn into a very kind of Orwellian situation.

Tipler: Yeah. And thats the reason that there is the right to privacy. The people who are writing these decisions will be like, Its not turning into, this was the fundamental initial concern, was that you have a right to privacy. But yet with the way that we have our lives online, in the way its so visible, yeah, youre right. It brings in another level of surveillance. But that has been the concern all along too.

Wallis: Dr. Tipler, thank you so much for your insight.

Tipler: Thank you so much for having me.

Read the original:
'When a right is created by the Supreme Court, it can go away': What overturning Roe could mean for contraception access, sexual privacy, marriage...

(Photo by Alex Wong/Getty Images)

John Eastman, the nebbishy law professor who somehow masterminded a coup plot, slid into the PACER DMs again last night with yet another lawsuit against the federal government. This time hes suing in New Mexico after the FBI showed up outside a restaurant in Santa Fe on June 22 with a warrant to seize his phone.

June 22 is also the day when the feds showed up at former Justice Department lawyer Jeffrey Clarks house with a warrant for his electronics. Like Eastman, Clark was the subject of a recent congressional hearing on his efforts to overturn President Bidens electoral win by substituting slates of fake electors. And like Clark, Eastman made a beeline for Fox News to tell Tucker Carlson his tale of woe, simultaneously confirming that the Justice Departments investigation of their plot is proceeding apace.

They havent charged you with a crime. They havent given you evidence that theyre going to charge you with a crime. But they treat you like a drug kingpin or a rapist and seize your phone, fumed Carlson. Is this legal?

No, I dont think so, Eastman replied, adding that he had an ethical obligation to do everything I can to protect the privileged communications with my clients.

Yes, about that

In his motion to get the device back and force the government to delete any data taken from it, Eastman made sure to put as much information on the public record as possible, including the warrant itself, which reads, in part:

The investigative team will not review the contents of the device(s) until further order of a court of competent jurisdiction. If a forensic extraction or manual screen capture of the contents of the device(s) occurs during the execution of the search warrant, the contents will not be reviewed by the investigative team until further order of a court of competent jurisdiction.

So despite his howling on TV and in his motion, the government is not pawing through his privileged communications.

Eastman refers to the intense, five-month privilege dispute with the January 6 Select Committee over his emails, although he neglects to mention that US District Judge David Carter found that at least one of those emails was likely evidence of a crime related to obstructing a congressional proceeding. Instead, Eastman huffs that That litigation has received extensive media attention, so it is hard to imagine that the Department of Justice, which apparently submitted the application for the warrant at issue here, was not aware of it.

In point of fact, the government wasclearly aware of the privilege issue, and made specific provision to seize the device and its contents, without intruding on privileged communications or indeed any communications at all absent judicial review.

Eastmans motion is a grab bag of Fourth Amendment complaints, pled with varying degrees of chutzpah. For instance, he argues that the warrant is overbroad because it provides no allegation that Movant owned, possessed, or had control over any electronic devices.

True, many people now own cellular phones, he concedes, But this warrant provides no indication otherwise of [movants] ownership of a cell phone at any time.' Which is ridiculous, not least because Eastman is suing the January 6 Select Committee to stop them getting metadata for his cellphone. And not for nothing, but the entire world has seen his emails with the signature line saying Sent from my mobile device. Please excuse any typos or brevity.

Eastman is pissed that the affidavit wasnt attached to the warrant; that the agents confiscated the phone before showing him the warrant; that the warrant authorized the government to unlock the phone using biometric data, but not to compel him to unlock it if a passcode was required; that he was dumb enough, despite being smack in the middle of multiple federal investigations, to enable the FBI to unlock it simply by holding it up to his face; that the device is being transmitted to the DOJs Office of the Inspector Generals forensic lab, and he says hes outside the legal purview of the DOJs IG, having never worked there.

In short, hes pissed that he was treated like every other suspect, minus the danger that hed get shot for resisting arrest. How very dare the government treat him as if he has no more Fourth Amendment rights than a rapist or a drug kingpin! Which is more than a little ironic coming from a guy who clerked for Justice Clarence Thomas and never showed any particular concern for the privacy rights of suspects. Maybe if he wasnt so busy kibbitzing with Ginny Thomas, hed have time to write a law review article on the grievous threat to the Fourth Amendment posed by government agents being able to intrude on our digital lives by taking advantage of ubiquitous technology.

TL, DR? This is the day that the Federalist Society overlords hath made, let us rejoice and be glad in it.

Eastman v. US [Docket via Court Listener]

Liz Dyelives in Baltimore where she writes about law and politics.

Read the original:
After FBI Seizes His Phone, Trump Coup Lawyer John Eastman Decides The Fourth Amendment Is Good Actually - Above the Law

The Supreme Court recently dealt a blow to federal police accountability in Egbert v. Boule. The case, in which the ACLU filed an amicus brief, centers on Robert Boule, who runs a bed-and-breakfast on the U.S.-Canada border. Boule sued Border Patrol agent Erik Egbert for damages for violating his rights under the First and Fourth Amendments to the U.S. Constitution.

The court ruled that Boule is not entitled to seek money damages for the harm caused by Egberts excessive force and retaliation.

When Egbert entered the inn without a warrant to investigate a guest staying there, Boule stepped between the guest and the agent and asked the agent to leave. Egbert then threw Boule to the ground, injuring him. After Boule exercised his First Amendment right to file a complaint and administrative claim with Egberts supervisor, the agent retaliated against him by prompting multiple unfounded investigations into Boule.

The court ruled in a 6-3 decision that Boule is not entitled to seek money damages for the harm caused by Egberts excessive force and retaliation. For over 50 years, under the Supreme Courts ruling in Bivens v. Six Unknown Named Agents, people have sought money damages against federal agents for violating their constitutional rights. But the court called Boules case a new context for Bivens liability and would not allow his claims. While the ruling further limits peoples ability to hold Border Patrol agents accountable in court, and undercuts an important deterrent to misconduct, it did not sanction the agents unconstitutional actions or grant agents permission to violate peoples rights in the future.

Credit: AP Photo/Greg Bull

Here are four things you need to know about the ruling:

The ruling does not eliminate your rights in the border region

The courts decision in no way changes your constitutional rights when interacting with border agents in the border region. While the facts of the case involve Border Patrols intrusion of the inn without a warrant, the courts decision does not sanction those actions.

Border Patrol, and its parent agency Customs and Border Protection (CBP), are bound by constitutional limitations, which prohibit agents from entering your home without a warrant. The Fourth Amendment of the Constitution protects against arbitrary searches and seizures of people and their property, in the border region and beyond. Within 25 miles of the border, as permitted by a separate statute not at issue in this case, Border Patrol is permitted to enter private property, such as your yard or ranch land, without a warrant but is explicitly barred, even that close to the border, from entering a dwelling, such as your house, without a warrant.

The court has narrowed the options to seek justice for border agents violations of constitutional protections in the border region.

Border Patrol also remains obligated to respect a broad range of other constitutional rights. For example, a Border Patrol agent cannot lawfully pull you over or otherwise detain you without reasonable suspicion, which means the agent must have specific, articulable facts that make it reasonable to believe you committed or are committing a violation of immigration or other federal law, not just a hunch. A Border Patrol agent also cannot search you or your belongings without your voluntary consent, unless they have probable cause, a higher standard requiring a reasonable belief that an immigration violation or crime has occurred. You always have the right to remain silent and say you wish to speak with an attorney.

In other words, your constitutional rights are still intact, even in the border region, but the courts decision will make it more difficult to hold federal agents accountable when they violate those rights. By further cutting off the ability to seek money damages under Bivens, the court has narrowed the options available to seek justice for border agents frequent violations of constitutional protections in the border region.

The Constitution still applies in 100 mile border zone

Much has been made of the 100 mile border zone, but you have the same constitutional rights within the border zone as you do anywhere else in the country. There are only two narrow circumstances in which the Border Patrol is permitted to act outside of normal Fourth Amendment limitations on searches and seizures.

Outside of these specific circumstances, all other constitutional protections apply within the border zone, and to individuals who interact with Border Patrol agents. The 100 mile border zone is not a Constitution-free zone.

American Civil Liberties Union

Know Your Rights | 100 Mile Border Zone | American Civil Liberties Union

The ProblemThe Fourth Amendment of the U.S. Constitution protects Americans from random and arbitrary stops and searches.

CBPs internal administrative accountability process is in urgent need of an overhaul

In denying Boules Bivens claim, the court argued that the Border Patrols non-binding administrative grievance process offered an adequate alternative to money damages for Robert Boule. It does not as clearly evidenced by the retaliation Boule faced after filing a grievance, and Border Patrols decision to keep Egbert on even after finding he acted inappropriately.

We know how frustrating the grievance process is first hand. The ACLU has filed over a dozen administrative complaints since 2020 documenting abuses suffered by hundreds of individuals that went unanswered for months and resulted in few, if any, changes to agency policy. The process, which is not subject to judicial review and has no mechanism for complainants to participate, focuses on disciplining officer misconduct rather than any other individual remedy to complainants.

This decision means that people whove suffered abuse by the Border Patrol abuse in the same way as Boule cannot obtain monetary compensation in court.

If administrative oversight mechanisms are to provide any kind of justice, the Department of Homeland Security, CBPs parent agency, must urgently make several changes. The department should create a uniform process to review and investigate all immigration and border related complaints, including implementing screening procedures for ensuring prompt assignment of a neutral investigator; prompt confirmation of receipt and whether an investigation has been initiated; a requirement that all relevant records (including video and audio files) be turned over to to investigators within 14 calendar days; written resolution of complaints; and appointment of an independent decision maker to impose discipline. The agency then must ensure individuals who they find at fault face meaningful accountability, rather than giving them a pass, as they did with Egbert.

Congress should codify and strengthen the right to sue federal law enforcement for abuse.

This decision has significant consequences for the victims of abuse by federal law enforcement. It means that people who have been subjected to Border Patrol abuse in the same way as Boule cannot obtain monetary compensation in court, and it may make it more difficult for other victims of abuse by federal law enforcement to bring their claims, as well.

While the ruling is a disappointment, the fight is not over. Congress can, and should, pass legislation to enshrine the right of individuals to sue federal law enforcement officers and receive damages from agents who violate their rights. If it did so, victims of Border Patrol abuse would no longer have to contend with the Egbert ruling, and more broadly, the availability of this important remedy for abuse by federal agents would no longer depend on the willingness of increasingly-hostile courts to allow Bivens cases to go forward.

Continue reading here:
Four Things to Know About the Supreme Court's Ruling in Egbert v. Boule | News & Commentary - ACLU

To the editor:

Re: What if Obama had been behind Jan. 6?, by Peter Gay, column, June 27:

I know how negative I must sound, but after reading the two stunningly, vacuous statements in Peter Gays column this week, I have to speak up.

Gay wrote, I am neither in favor of abortion or against it ... but I do believe that the abortions that Massachusetts and the other states allow should be limited to only residents of those states.

Wait. He doesnt care about abortion, but he cares about where and to whom it is administered? He obviously doesnt understand the impact of the terrifying theft of civil liberties taken from every woman in our country. In his confused mind, if a state has restrictive laws that may endanger a womans life, then Gay wants to refuse safe harbor to that woman and block the protection of this commonwealth, which would be assisting in the denial of her equal rights.

Sounds like an opinion about abortion to me. A shamefully uninformed one, but an opinion, none the less. Perhaps, Gay could educate himself by taking a few moments to read the Fourth Amendment. This clearly states, that the right of the people to be secure in their persons, houses, papers, and effects, shall not be violated.

Please, explain to poor Pietro that the Roe v Wade decision is not, and never really has been, about fetal abortion. It has always been about the illegal abortion of womens rights.

Dave Kane

Johnston, R.I.

The writer is host of the Kane & Co. radio talk show, which broadcasts from 9 a.m. to noon, Saturdays, on WARA, 1320-AM.

Continued here:
Columnist is shamefully uninformed on abortion | Letters To Editor | thesunchronicle.com - The Sun Chronicle

On 18 May 2022, SEBI issued a circular on simplification of procedure and standardization of formats of documents for transmission of securities pursuant to amendments to SEBI (Listing Obligations and Disclosure Requirements) Regulations 2015. In order to enhance ease of dealing in securities markets and with a view to make the transmission process more efficient and investor friendly, the procedure for transmission of securities has been further simplified vide the SEBI (Listing Obligations and Disclosure Requirements) (Fourth Amendment) Regulations, 2022 dated 25 April 2022 (LODR Amendment Regulations). The LODR Amendment Regulations has inter alia enhanced the monetary limits for simplified documentation for transmission of securities, allowed Legal Heirship Certificate or equivalent certificate as one of the acceptable documents for transmission and provided clarification regarding acceptability of Will as one of the valid documents for transmission of securities. Pursuant to the notification of the LODR Amendment Regulations, this Circular is being issued to specify the formats of various documents which are required to be furnished for the processing of transmission of securities. There are various annexures attached to this Circular some of which provide details of the documents required for transmission of securities, operational guidelines for processing investors service request for the purpose of transmission of securities, format of the form to be filed by nominee/claimant(s)/legal heir(s) while requesting transmission of securities, format of the Letter of Confirmation to be issued by RTAs/ Issuer Companies, etc.

The common norms stipulated in SEBI Circular SEBI/HO/MIRSD/MIRSD_RTAMB/P/CIR/2021/655 dated 3 November 2021 and SEBI Circular SEBI/HO/MIRSD/MIRSD_RTAMB/P/CIR/2021/687 dated 14 December 2021 shall be applicable for transmission service requests. The provisions of this Circular shall come into force with immediate effect in supersession of the following circulars:

Visit link:
Simplification of procedure and standardization of formats of documents for transmission of securities - Lexology

The left has expressed a special hatred for Supreme Court Justice Clarence Thomas for decades. Thomas stands for everything our elites hate: free speech, due process, fair elections, and every individual right in the Constitutions Bill of Rights. Paradoxically, the left seems to find this especially galling because he is the descendant of slaves.

But for all these decades, they havent been able to get him. Cue House Speaker Nancy Pelosis show trial masquerading as an investigation of a three-hour protest at the Capitol on January 6, 2021. It was a protest that got out of hand when the Capitol Police took the most peculiar step of opening the Capitol doors wide to the protesters.

And who is the congressional committees scapegoat of choice for the J6 star chamber? Thomass wife, Ginni. Interestingly, PolitiFact concluded that there is no evidence Mrs. Thomas had anything to do with organizing the Jan. 6 protests. So the committee and its media cohorts have been on a propagandistic fishing expedition.

For example, they located some text messages with then-White House Chief of Staff Mark Meadows in which Thomas expressed concerns about the 2020 electoral process. They dug up emails in which she asked Trump lawyer John Eastman to provide updates on what was going on with election litigation. And so on. Theyll keep trying to cobble together their desired picture. In the end, theyll just make it all up (a specialty of Rep. Adam Schiffs, D-Calif.)

So, since they havent been able to destroy Justice Thomas after years of trying, they hope to get to him through his wife. Its a sickening tactic, one reflecting the worst of totalitarian regimes, including Joseph Stalins Russia and Mao Zedongs China. But the tactic reveals an even deeper goal. They detest anyone who dares defend real freedom. And they cant stand anyone who exercises that freedom.

So watch what they are doing to Ginni Thomas: their disrespect for her private life, their double standards of justice, their shameless smear campaigns. Observe their intent to destroy her husband through her. Watch it. Because it is what they have in mind for you and me and any American who values freedom and a private life.

If youve ever heard Ginni Thomas speak (to the extent the media permits you to really hear her) you can immediately see she is the real deal. If you are a person of good will, you will see a kind-hearted person who strives for fairness and looks for goodness in everyone.

She obviously loves America. She values its constitutional guarantees of individual rights for everybody. There is absolutely no guile in her.

But in the eyes of this congressional witch hunt, Thomass devotion to the American concept of liberty and justice for all is the big crime. Its a concept that leads to the idea of one man, one vote and free speech and real debate all of which run counter to the Democrats self-professed goal of permanent one-party rule.

Everyone needs to understand that if Ginni Thomas has no right to express her opinions and have conversations about those opinions with family, friends, and acquaintances as a private citizen, then neither do you. If she has no right to ask obvious questions in this case questions about election integrity, but it could be about anything else then neither do you. Everything they are trying to pin on Thomas about her activism and possibly influencing her husband or trying to overturn the 2020 election is b-llsh-t.

Everybody has a right to question any election they want. Just as the Democrats in Congress put on non-stop show trials for four years in which they pushed the now-proven bald-faced lie that the 2016 election was stolen, every private citizen has the right to ask questions, especially about weird and unprecedented electoral procedures. Particularly in light of the elites Time magazine admission of how they rigged it, after all.

So if you really want to understand where the J6 hearings are going with their attack on Ginni Thomas, you should see it as a proxy attack on every American citizen. Just look at the scandalous treatment of non-violent J6 defendants who are handled like Soviet-era political prisoners by a now putrefied Department of Justice (DOJ), all with the apparent concurrence of congressional Democrats. Just look at the Stalinist-styled pre-dawn raids being conducted by the Federal Bureau of so-called Investigation. If Congress wasnt so corrupt, wed have an investigation into these heinous, un-American acts.

The Democrat-controlled Congress apparently has contempt for each and every right enumerated in the Bill of Rights. The policy positions they push are all about destroying your private life. Lets check them off, one by one.

They routinely limit your First Amendment rights to freedom of thought, speech, writing, and association under the guise of non-discrimination. As the treatment of J6 protesters shows, you have no right to petition for an address of your grievances. The Second Amendment is now on their chopping block because they dont want you to be able to defend your rights or the people you love.

The Democrats constant attacks on the right to private property and giving license to mobs to harass officials at their homes look like attacks on the Third Amendment. The FBIs middle-of-the-night raids on the homes of citizens like Jeff Clark and James OKeefe and Roger Stone spits in the face of the Fourth Amendment.

Democrats subpoena of Ginni Thomas is a ruse to try to invent testimony against her husband as well as against herself, in violation both of spousal privilege and of the Fifth Amendment. (Or, as Schiff seems to be aiming for: creating the impression of impropriety by publicly airing what spouses talk about in their private lives.)

The DOJ has clearly violated the Sixth Amendment by preventing J6 defendants from having a speedy trial. Many were detained and incarcerated without being charged. This brings us to the Seventh Amendments right to a trial by jury, presumably an impartial jury. It is laughable to presume that any jury pool in the exceedingly leftist District of Columbia would allow a fair trial to any Jan. 6 defendant.

If you follow Julie Kellys superb investigative reporting on the treatment of J6 defendants in the D.C. jail, you should be outraged that the cruel and unusual punishment of defendants including solitary confinement for long periods, beatings, and the withholding of medical treatment for offenses like parading are in direct violation of the Eighth Amendment.

No doubt congressional Democrats view the Ninth Amendment as a total joke since they dont seem to believe Americans should have any individual rights at all. Finally, they hate the Tenth Amendment because it means that you might be able to escape their grasp by regaining your individual rights in a state like Florida governed by Ron DeSantis.

So much for the Bill of Rights. Attacking family members and the private lives of perceived opponents is behavior typical of all totalitarian systems. Ginni Thomas is simply the private citizen whom the committee hopes to parade as an example of what will happen to you (and your families) if you dont conform and comply with their demands.

If you think youll be able to live unmolested by elitists who so routinely abuse their power, think again.

One of the committees key goals is to tamper with the Supreme Court. They want to eliminate a justice who has a non-negotiable respect for due process. But they also hope to make sure his wife, a private citizen, doesnt speak to him without their express permission and surveillance. If they can do that to her, theyre on the road to doing it to every one of us.

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Why The J6 Committee's Attacks On Ginni Thomas Harm Every American - The Federalist