Category Archives: Fourth Amendment

The Supreme Courts 2018 decision in Carpenter v. United States was widely considered to be a sea change in Fourth Amendment law. Carpenter held that individuals can retain Fourth Amendment rights in information they disclose to a third party, at least in some situations. Specifically, cell phone users retained Fourth Amendment rights in their cell phone location data, even though that data was disclosed to their cell phone companies.

This is a potentially revolutionary holding in the internet era, when virtually every form of sensitive digital information is exposed to a third-party service provider at some point. Carpenter raises the possibility that the Fourth Amendment may effectively protect sensitive digital data. But Carpenter is a notoriously vague opinion, and scholars have reached conflicting conclusions about its meaning and impact. What does Carpenter mean, and what will it mean in the future?

In a recent article forthcoming in the Harvard Law Review, I attempt to shed some light on Carpenter and its jurisprudential impact. I coded and analyzed all 857 federal and state judgments applying Carpenter through March 31, 2021. In doing so, I was able to identify the factors that drive modern Fourth Amendment search decisions and describe a nascent Carpenter test now emerging in the lower courts. I also examined overall compliance with Carpenter, finding that courts have largely embraced it, with almost no overt criticism and relatively little indirect noncompliance. And I encountered a shockingly high rate of cases resolved based on the good faith exception to the exclusionary rule, which permits the government to use unconstitutionally obtained evidence to convict defendants if such evidence was collected in reliance on prior law. These findings can help resolve some of the mysteries of Carpenter, illuminating both the present state of the law and the paths along which it will likely continue to develop.

The Carpenter Factors

Prior to Carpenter, information that an individual disclosed to a third party was not protected by the Fourth Amendment. Carpenter imposed at least some limits on this third-party doctrine going forward. But it did not set out a clear test for when third-party data is covered by the Fourth Amendment.

It did, however, describe several factors that were relevant to its decision in the cell phone tracking context. The court discussed the revealing nature of cell phone data, which could provide an intimate window into an individuals life and activities. It addressed the large quantity of location data available to the government, encompassing numerous data points per day for potentially long periods of time. It referred to the large number of people who would be affected by unrestrained cell phone surveillance. It described how cell phone data was automatically disclosed to a cell service provider and how cell phones were largely inescapable in modern life, meaning that the disclosure of cellular location data to third parties was essentially involuntary. And it detailed the low cost of cell phone surveillance, which made detailed location surveillance easy and cheap compared to traditional investigative methods.

Any or all of these factors might play a pivotal role in future cases. But, in Carpenter, the court gave no concrete test to guide future decisions; it merely discussed several principles that appeared important in the context of cell phone location tracking. The decision left it for future courts to determine how these principles should apply to novel Fourth Amendment questions. And so, several years after Carpenter was decided, I conducted the examination of lower court decisions described above.

In the dataset, 217 decisions reached a determinative, yes-or-no ruling on a Fourth Amendment search question. A majority (129) of these decisions discussed at least one of the Carpenter factors in reaching a judgment. For example, in United States v. Trice, the Sixth Circuit applied the factor that considers the amount of data captured, and found that it disfavored the defendant. Police officers had installed a hidden camera near a suspects apartment door and recorded four short clips of footage over a six-hour period. The court noted that this technique captured far less data than the detailed, prolonged cell phone tracking at issue in Carpenter. Ultimately, the court ruled that the use of the camera was not a Fourth Amendment search.

Overall, courts cited a variety of factors in cases resolving Carpenter questions, but they rarely discussed all or most of the factors together. Instead, courts often discussed the factors that influenced their reasoning and ignored the other factors, even when those factors might have pointed in the same direction. In determining which factors were most prevalent, my analysis found that the revealing nature of the data, the amount of data collected, and the automatic nature of data disclosure emerged as the most influential factors. The courts addressed the cost of surveillance and the inescapable nature of a technology only occasionally, although those factors were generally influential when they were addressed. Surprisingly, the number of persons affected by a surveillance practice was rarely discussed and had virtually no effect on case outcomes. Indeed, several courts overtly rejected this as a factor.

The revealing nature and amount of the data collected by the government were the most commonly used factors in the cases. Revealing nature was mentioned in 93 decisions, and amount was mentioned in 116 decisions. These factors were also strongly, and statistically significantly, correlated with case outcomes.

Whether a persons data had been automatically disclosed to a third party, or instead had been disclosed through a voluntary act, was a less common but still influential factor in the cases, appearing in 61 decisions and correlating significantly with case outcomes. This factor generally led courts to deny Fourth Amendment protectionsit was found to disfavor defendants in 82.6 percent of cases in which it appeared.

Moreover, as I have argued elsewhere, relying on concepts like automatic disclosure is often problematic. The disclosure of data to services like Uber, Google Maps, dating apps, smart home devices, websites and countless other providers is in theory voluntary and avoidable, but such disclosures are in practice an important part of peoples lives. Moreover, optional technologies such as dating apps, smart home devices and DNA analysis services often capture especially intimate personal information. And voluntariness approaches can create substantial inequalities in Fourth Amendment law. Technologies that are avoidable for most people are often unavoidable for others, including the disabled, the poor and other disadvantaged populations. For all of these reasons, courts should be cautious in definitively adopting automatic disclosure of data as a factor in a mandatory Carpenter test.

By contrast, the cost of surveillance is a potentially useful factor that courts should consider adopting in more cases. Conceptually, cost dovetails with amount. When the government is able to capture large amounts of data at a low cost, the potential for large-scale surveillance raises serious concerns about individual liberty and government power. By assessing the general cost of a surveillance practice, courts may be able to address concerns about large-scale surveillance programs via a relatively simple and administrable analysis.

Lower Court Compliance With Carpenter

Across more than 800 cases, courts have largely embraced Carpenter and its analysis. They have engaged in almost no overt criticism of the decision and its unique approach. And they have demonstrated relatively little indirect noncompliance. The law is still developing, but Carpenter appears to be workable in the lower courts.

Since June 2018, very few cases addressing the third-party doctrine have failed to cite Carpenter, suggesting that recognition of the case is widespread. There is circumstantial evidence of some courts engaging in indirect noncompliance with Carpenter. Indirect noncompliance refers to courts intentionally misinterpreting controlling precedent in order to reach a preferred outcome. In the dataset of 217 determinative search decisions, 29 decisions (13.4 percent) applied a strong version of the third-party doctrine that was arguably in tension with the Carpenter opinion, which imposed a meaningful limit on that doctrine. These opinions might represent a small pocket of resistance toward Carpenter, albeit a subtle, indirect resistance.

But judicial inertia toward a prior status quo is a common phenomenon, following a major legal change, and its occurrence here should not be too surprising. And, as theories of indirect noncompliance would predict, indirect noncompliance with Carpenter appears to be decreasing over time. The proportion of determinative cases that invoke a strong third-party doctrine has fallen in recent years, as judges become more familiar with Carpenter. In any event, the vast majority of cases show no explicit or even implicit resistance toward Carpenters reformation of the third-party doctrine.

The Enormous Impact of the Good Faith Exception

One of the most surprising findings of my analysis was the remarkable impact of the good faith exception on post-Carpenter case outcomes. The good faith exception provides that evidence obtained in good faith reliance on a statute, warrant or other authority will not be excluded, even if the authority was incorrect and the search for evidence was unconstitutional. The idea is that police officers relying on existing legal authority are acting in good faith and therefore cannot be deterred effectively by the exclusion of evidence. There were 399 decisions in the dataset that applied Carpenter substantively in a Fourth Amendment search case, and 144 of these were resolved based on the good faith exception without addressing the search issue, a rate of 36.1 percent. The vast majority of these good faith cases involved government officials obtaining historical cell phone location data without a warrant, the practice declared unconstitutional in Carpenter. In other words, a surprisingly large percentage of post-Carpenter cases involve unconstitutional government searches for which the persons affected have no meaningful remedy.

To be sure, the proportion of cases resolved via the good faith exception will decrease over time, as fewer cases are tried involving pre-Carpenter searches of cell phone data. But roughly 30 percent of cases were still being resolved on good faith grounds in 2020 and 2021, years after Carpenter was decided. Ultimately, it is likely that hundreds of criminal defendants will be convicted on the basis of searches that Carpenter deemed unconstitutional.

The remarkably high proportion of cases resolved via the good faith exception following a major Supreme Court decision should spur a reexamination of the exception. Current law may incentivize the police to aggressively apply new surveillance practices in order to secure convictions, even when those practices are likely unconstitutional. These incentives are examined in more detail in my article. They often involve police reliance on an old, general-purpose statute that is used to justify new and invasive forms of surveillance. Lower courts have applied the good faith exception broadly to justify novel surveillance practices, even when those practices have never been addressed by an existing statute or case. My studys findings should raise alarms about the potential for the good faith exception to incentivize widespread unconstitutional surveillance on the basis of flimsy reliance claims.

***

My articles detailed examination of post-Carpenter Fourth Amendment law yields other insights as well. It breaks down the cases by jurisdiction and examines changes in outcomes over time, while addressing the potential impact of selection effects. It examines differences in federal and state decisions, drawing lessons for federalism theory and debates regarding the capacity of state courts to address federal constitutional questions. It also analyzes the effects of political affiliation and exposure to judicial elections on case outcomes. And it suggests alternative approaches that can help to clarify and improve Fourth Amendment jurisprudence going forward. Indeed, the study opens the door to a variety of new proposals about the future course of Fourth Amendment law, grounded in a deeper knowledge of courts current practices.

More:
The Impact of Carpenter v. United States in the Lower Courts and the Emerging Carpenter Test - Lawfare

Regarding David A. Scandrols letter Has Pelosi read Constitution? (Oct. 27, TribLIVE): Mr. Scandrol, have you read the Bill of Rights? You cite four amendments in particular.

In the First Amendment, did you see the phrase peaceably assemble?

The Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers and effects . I agree. The problem is, social media is a public forum. Anyone who plans a coup on this vehicle is a fool.

Mentioning the Sixth Amendment, you imply these people are being prosecuted. Dear man, the process is a fact-finding exercise. The next step may result in criminal charges.

And finally, the 14th Amendment. Of course these people are citizens, but the question remains, who organized this assault on the U.S. Capitol? Why was the building broken into? And why were people threatened and law enforcement persons injured?

Leonard Mucci

Derry Township

See the original post:
Letter to the editor: Let's look at the Bill of Rights - TribLIVE

Crypto advocates have worried for months about US president Joe Bidens $1 trillion infrastructure bill, which includes new tax reporting requirements for digital assets like cryptocurrencies and nonfungible tokens (NFTs).

As legislators inched closer to passing the bill, digital rights advocates lobbied hard against a provision that requires brokersa vague term that could include developers, miners, and middlemento disclose identifying information about their clients or users, arguing that it threatens individual privacy and thwarts the anonymous design of crypto. Despite pushback and attempts to amend the bill, the Infrastructure Investment and Jobs Act, passed by the US House of Representatives on Nov. 5, will be signed into law in the coming days with the original broker language intact.

But that wasnt the crypto industrys only setback from the legislation. Whats garnered less attention is the bills application of 6050i, an obscure section of the federal tax code, to crypto assets. Under the new rules, the transfer of digital assets above $10,000 in value will be treated like cash. And failure to report the identity of the person or business sending payment for the digital assets would be considered a felony offense. The penalty for noncompliance is up to five years in prison.

Internal Revenue Code Section 6050i was passed in 1984 to crack down on money laundering. The law states that any person receiving cash in excess of $10,000 as part of a trade or business must report the personal information of the sender. There is a carveout for any transaction that involves banks, as those same transactions of $10,000 or more would be captured by the Bank Secrecy Act (BSA).

Whether the report comes from a trade or business under 6050i or a financial institution under the BSA, the US government is interested in obtaining information about a sender of $10,000-plus, said Christopher Murrer, a fintech and tax lawyer with the law firm Baker McKenzie. Both requirements are a means to collect data about potentially suspicious activityand the government feels that this amount crosses the potentially suspicious threshold. (Its worth noting that $10,000 in 1984 is nearly $27,000 today.)

Since transactions on blockchains often purposely avoid banks and other financial institutions, the new law is both a way for the government to track the transfer of large sums of money and encourage crypto users to involve banks.

While the tax code and infrastructure bill are likely aimed at crypto businesses and not at individuals who are, say, selling digital art as NFTs in their spare time, theres a gray area between individuals and businesses in the crypto space.

What counts as a business in a world with a gig economy? asked Sina Kian, vice president of strategy at the blockchain company Aleo and an adjunct professor at the University of Texas School of Law.

Kian said the infrastructure bill leaves a number of things to the US Treasury Department to define: what are digital assets, what does it mean to receive digital assets, what business activities fall under 6050i, how to value digital assets that fluctuate in value, and what activities are exempted.

There are even more questions in the realm of decentralized finance (or DeFi), said Murrer. In DeFi, it is not always clear who or what is the sender of the digital assets, he said. I mean that not just in the sense of it may be difficult to ascertain the identity of the other party, but also that the digital assets may be sent or generated from a protocol or a smart contract rather than an identifiable person.

Abe Sutherland has been one of the loudest voices urging lawmakers to remove 6050i from the infrastructure bill. Sutherland, an adjunct professor at the University of Virginia School of Law, wrote a report (pdf) for the Proof of Stake Alliance, a trade association he advises, in which he warns against crypto regulation that would expand surveillance of everyday Americans. He doesnt think regulation is out of the questionand acknowledges some regulation is neededbut he is deeply uncomfortable with the text of the crypto provisions and the way it entered the infrastructure bill.

These are big issues that go to the nature of digital assets and so they deserve discussion, Sutherland said. The way that this happened, being quietly slipped into a 2,700-page bill without discussion and without acknowledging the tradeoffs between privacy and financial autonomy and the burdens of government reporting, is the first thing that is really wrong about this bill and undemocratic and deeply unfair.

The requirements could violate the Fourth Amendments protections against unreasonable searches and seizures, he added. Banks are subject to reporting requirements about large transactions under the third-party doctrine, a legal principle that says people who give personal information to third parties in transactions have no reasonable expectation of privacy. But in the case of crypto transactions, by design there typically is no third party present.

However, crypto wouldnt be the first big category of transactions that occur without a middleman. The questions about constitutionality are interesting and there are certainly situations that could make a colorable argument, Murrer said. But its also important to remember that this requirement already existed since the mid-1980s for peer-to-peer transactions with cash.

Sutherland said that Fourth Amendment claims for 6050i havent been seriously tested in the courts even for cash, but a lawsuit over the digital assets rules could undermine the entire law. If 6050i is challenged, which it will be, and struck down for digital assets, that would certainly raise doubts on 6050i as applied to cash, he said.

If a person intentionally avoids filing a tax return, it is generally considered a misdemeanor, with a penalty of $25,000 and/or one year in prison. But 6050i is an exception to this rule. If a person fails to file a disclosure under 6050i, it is considered a felony that comes with up to five years in prison.

But complying with 6050i isnt easy, especially if youre engaged in a crypto transaction. Lets say you are selling an NFT worth more than $10,000. You would need the buyers full name, birth date, address, Social Security number, and occupation, Sutherland said. (If the buyer refused to comply, that also could be a felony.)

Lia Holland, the campaigns and communications director for Fight for the Future, a digital rights advocacy group, said the new rules place severe restrictions on artists. It is a sad day to see the desperate need for democratizing technologiesthat allow creative people to build their own alternatives and capture the value they createbe overshadowed by an ill-defined felony [rule] that mandates an extreme level of surveillance and reporting between creative people and their customers, Holland said.

The requirements in the infrastructure bill will not take effect until Jan. 1, 2023, and therefore reporting would not be needed until 2024. If nothing changes and the law stands, the Treasury Department will start making rules to define and enforce the law by the start date. But theres a chance that Congress could return to the issue and change the rules in the meantime.

Kian is hopeful that lawmakers will fix or remove the tax reporting requirements but was concerned with the way the crypto provisions were tacked on to a massive spending bill.

Its adding a whole new regulatory apparatus to a technology [lawmakers] dont fully appreciate yet, Kian said.

Read more from the original source:
The infrastructure bill makes crypto reporting failures a felony - Quartz

Boston acting Mayor Kim Janeys attempt to clean up the encampment of homeless people at the intersection of Mass. Ave and Melnea Cass Blvd. in Boston, known as Mass. And Cass, has stirred controversy, and even prompted litigation from the ACLU. Daniel Medwed, GBH News legal analyst and Northeastern law professor, joined host Aaron Schachter on Morning Edition to talk about the legal issues surrounding Janeys plan.

Aaron Schachter: A few weeks ago you talked with us about the legal basis for Janeys plan. Lets revisit that briefly: Does her plan stand on firm legal ground?

Daniel Medwed: I think it does. When she issued her executive order in October, she framed it as a public health crisis, which makes it easier to legitimize her plan. First, under the City Charter, an acting mayor can only draw on the regular Mayors power for quote matters not admitting of delay, which basically means time-sensitive, emergency measures.

Second, the charter provides that a city official can only spend money not otherwise appropriated in case of extreme emergency involving the health or safety of the people or their property. So, she seems to have had authority to act. The bigger legal issue relates to the execution of the plan.

Schachter: Lets talk about the execution of the plan. One of the stated goals was to steer people with outstanding arrest warrants into treatment rather than jail. Has the plan played out as intended so far?

Medwed: Not really. During the rollout, the police have made a number of arrests of people with outstanding warrants, and their cases have been heard in a special, makeshift court in the South Bay House of Correction, a jail in Boston. Of the first nine people whose cases were brought to that court, only two were dispatched to treatment programs, two were released on their own recognizance and another person picked up a new warrant after failing to show up at her assigned shelter.

The remaining four were put in jail and sent to jurisdictions with outstanding warrants, including a man who was sent to the Worcester jail in the midst of a COVID-19 outbreak and over the objections of both the prosecutor and public defender. So I think its fair to say that, on the ground, the plan is not playing out precisely as advertised.

Schachter: Daniel, last week the ACLU filed a lawsuit objecting to the cleanup effort. What are the main claims in the lawsuit?

Medwed: The lawsuit is what is known as a class action filed on behalf of three people who represent a particular class of people, the homeless community at Mass. and Cass. The complaint makes two chief claims. The first is that it violates both the constitution and disability discrimination laws for the City to threaten criminal sanctions for people who fail to comply with the displacement effort without any meaningful, individualized process to ensure they have access to adequate housing alternatives.

The second is that by removing people from their only shelter, the city is unlawfully seizing and destroying their property in violation of the Fourth Amendment and the constitutional guarantee of due process. Thats the basic layout.

"I think its fair to say that, on the ground, the plan is not playing out precisely as advertised."

Schachter: What kind of remedy is the ACLU seeking? Do they want a stop to the cleanup effort? Or money damages?

Medwed: Both. The lawsuit principally seeks injunctive and declaratory relief, which is essentially a request for the court to order the city to cease operations immediately. But the lawsuit also seeks damages both actual and punitive for the three named plaintiffs in the class action who claim the city destroyed their personal property as part of the displacement effort.

Notably, the ACLU filed the suit directly with a single justice of the highest court in the Commonwealth, the Supreme Judicial Court, rather than with a trial court, as is more common in seeking injunctive relief. That means this case might be resolved at the highest level sooner rather than later.

More here:
The ACLU wants to stop Boston's plan to remove Mass. and Cass encampments. Will it work? - wgbh.org

FOURTH AMENDMENT TO RELATIONSHIP AGREEMENT

THIS AMENDING AGREEMENT is made as of the 4th day of November, 2021 (this "Fourth Amendment Agreement")

AMONG:

BROOKFIELD ASSET MANAGEMENT INC., a corporation existing under the laws of the Province of Ontario

("BAM")

-and-

BRP ENERGY GROUP L.P., a limited partnership existing under the laws of the Province of Manitoba

(the "Canadian Service Provider")

-and-

BROOKFIELD ASSET MANAGEMENT PRIVATE INSTITUTIONAL CAPITAL ADVISER (CANADA), L.P., a limited partnership existing under the laws of the Province of Manitoba

(the "Canadian Service Provider II")

-and-

BROOKFIELD CANADA RENEWABLE MANAGER LP, a limited partnership existing under the laws of the Province of Ontario

(the "Canadian Service Provider III")

-and-

BROOKFIELD RENEWABLE ENERGY GROUP (BERMUDA) LIMITED, an exempted company existing under the laws of Bermuda

(the "International Service Provider")

-and-

BROOKFIELD GLOBAL RENEWABLE ENERGY ADVISOR LIMITED, a company existing under the laws of England

(the "UK Service Provider")

-and-

BROOKFIELD PRIVATE CAPITAL (DIFC) LIMITED, a private company existing under the laws of Dubai International Financial Centre

(the "Dubai Service Provider")

-and-

BROOKFIELD RENEWABLE ENERGY GROUP LLC, a limited liability company existing under the laws of the State of Delaware

(the "US Service Provider")

-and-

BROOKFIELD RENEWABLE PARTNERS L.P. (formerly Brookfield Renewable Energy Partners L.P.), an exempted partnership existing under the laws of Bermuda

("BEP")

-and-

BROOKFIELD RENEWABLE ENERGY L.P., an exempted partnership existing under the laws of Bermuda

("BRELP")

-and-

BROOKFIELD BRP HOLDINGS (CANADA) INC., a corporation existing under the laws of the Province of Ontario

("CanHoldco")

-and-

BRP BERMUDA HOLDINGS I LIMITED, an exempted company existing under the laws of Bermuda

("Bermuda Holdco")

-and-

BROOKFIELD BRP EUROPE HOLDINGS (BERMUDA) LIMITED, an exempted company existing under the laws of Bermuda

("Europe Holdco")

-and-

BROOKFIELD RENEWABLE INVESTMENTS LIMITED, an exempted company existing under the laws of Bermuda

("Investco")

WHEREAS BAM, the Canadian Service Provider, the International Service Provider, BEP, BRELP, CanHoldco and Bermuda Holdco (together, the "Original Parties") entered into a relationship agreement dated November 28, 2011 (the "Original Relationship Agreement");

AND WHEREAS the Original Parties, and the Canadian Service Provider II, the UK Service Provider, Europe Holdco and Investco (collectively, the "Additional Parties") entered into an amending agreement to the Relationship Agreement dated February 26, 2015 (the "First Amendment");

AND WHEREAS the Original Parties, the Additional Parties and the Dubai Service Provider entered into a second amendment to the Relationship Agreement dated July 30, 2020 (the "Second Amendment");

AND WHEREAS the Original Parties, the Additional Parties, the Dubai Service Provider and the Canadian Service Provider III (collectively, the "Parties") entered into a third amendment to the Relationship Agreement dated February 3, 2021 (the "Third Amendment", and together with the Original Relationship Agreement, the First Amendment, and the Second Amendment, the "Relationship Agreement");

AND WHEREAS the Parties wish to amend the Relationship Agreement to reflect the addition of the US Service Provider as a party thereto effective as of the date hereof;

NOW THEREFORE for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties hereto, the Parties hereto hereby agree as follows:

""Managers" means the Canadian Service Provider, the Canadian Service Provider II, the Canadian Service Provider III, the International Service Provider, the UK Service Provider, the Dubai Service Provider and the US Service Provider"

"6.4.14 if to the US Service Provider:

Brookfield Renewable Energy Group LLC

250 Vesey Street, 15th Floor

New York, NY

10281-1023"

[Signature Page Follows]

IN WITNESS WHEREOF, the Parties hereto have caused this Fourth Amendment Agreement to be executed as of the date first above written.

Disclaimer

Brookfield Renewable Partners LP published this content on 05 November 2021 and is solely responsible for the information contained therein. Distributed by Public, unedited and unaltered, on 05 November 2021 11:37:14 UTC.

Read more:
Fourth Amendment to the Relationship Agreement among Brookfield Asset Management Inc., Brookfield Renewable Partners L.P. and the other parties...

Whether you can exercise your First Amendment rights freely depends, in some cases, on where you live and what judges happen to hear your plea, should you try to seek accountability for government reprisal against your civil liberties.

One such case is that of Priscilla Villarreal, a journalist in Laredo, Texas, who in 2017 was arrested after publishing two stories that ruffled feathers in the community: one surrounding a U.S. Border Patrol agent who committed suicide, the other which confirmed the identity of a family who had died in a fatal car crash.

Villarreal was no stranger to breaking stories with sensitive details on her Facebook page, which currently boasts over 190,000 followers. Nor was she cozy with local law enforcement, having cultivated a reputation as a citizen journalist whofocuses on police misconduct and the justice system in videos she posts online infused with colorful commentary.She once live-streamed a video of an officer choking someone during a traffic stop, for example, and she drew the ire of a district attorney after publicly rebuking him for dropping an arrest warrant for someone accused of animal abuse.

But Villarreal found herself in a jail cell after breaking those two relatively benign stories concerning deaths in the community, charged with two third-degree felony counts of "misuse of official information" under Texas Penal Code 39.06(c). That she asked for and obtained the information in typical journalistic fashionfrom the Laredo Police Department (LPD) itselfdidn't matter to the cops, who zeroed in on Villarreal as the first person they would ever seek to prosecute under that Texas statute.

The charges were eventually dismissed as baseless and the law ruled unconstitutionally vague. But those officers were given qualified immunity for violating her First Amendment, Fourth Amendment, and 14th Amendment rights when they arrested and detained her, thus preventing her from holding them accountable in civil court. The legal doctrine of qualified immunity protects public officials from facing civil suits if the precise way they went about violating your rights was not "clearly established" by the courts at the time.

Yet in a testament to the subjectivity of the decisions surrounding what should be objective liberties, the U.S. Court of Appeals for the 5th Circuit Monday rejected the lower court's reasoning, removing qualified immunity from the cops on the bulk of Villarreal's claims and permitting her to state her case before a jury.

"This is not just an obvious constitutional infringementit's hard to imagine a more textbook violation of the First Amendment," wrote Judge James C. Ho. "If the freedom of speech secured by the First Amendment includes the right to curse at a public official, then it surely includes the right to politely ask that official a few questions as well." Villarreal asked those questions of LPD Officer Barbara Goodman, who of her own free will provided the journalist with the information she requested.

The 5th Circuit likewise sided with Villarreal on her wrongful arrest claim, as well as her allegation that the cops violated the Equal Protection Clause to selectively enforce the law against her.

Much about the decision is noteworthy. Ho, for one, is by no means known for his opposition to qualified immunity; the judge previously said that police officers must retain the protections in order "to stop mass shootings." So it's significant that Ho emphasized that the 5th Circuit need not find a nearly indistinguishable precedent in order to show that the constitutional right at issue was "clearly established"which is often the defining element of a qualified immunity case, and the reason why the doctrine has greenlit so much egregious government misconduct, like stealing, assault, and property damage.

To support his position, Ho cited the Supreme Court's 2020 decision in Taylor v. Riojas, which dealt with a group of prison guards who originally received qualified immunity after forcing a naked inmate into two deplorable cells swarming with human feces and raw sewage. The Supreme Court overturned that grant of qualified immunity and rejected the notion that the victim could not sue simply because he couldn't pinpoint a ruling that matched his experience almost identically.

That's not necessary here either, said Ho: The constitutional violation is just that absurdly apparent.

"Crucially, the decision also says that officers can't hide behind obviously unconstitutional statutes," says Jaba Tsitsuashvili, an attorney at the Institute for Justice, a public interest law firm that filed an amicus brief in support of Villarreal. "In other words'we were just enforcing the law' is not a categorical defense against a civil lawsuit for violating" a constitutional right.

Perhaps ironically, the 5th Circuit's decision Monday coincided with the Supreme Court declining to hear Frasier v. Evans, a case in which a group of Denver police officers received qualified immunity after conducting a warrantless search of a man's tablet in an attempt to delete a video he took of the officers beating a suspect during an arrest for an alleged drug deal.

Put more bluntly, the way you exercise your First Amendment rights may or may not be protected based solely on where you live and which federal circuit court you are subject to. The 1st, 3rd, 5th, 7th, 9th, and 11th Circuits have all confirmed what might be obvious to most: that the government cannot exact revenge on you for filming police on duty, a lever used to hold them to account. In some places, however, they can indeed retaliate and evade accountability for that, toojust as Villarreal almost missed her opportunity to do so, had the 5th Circuit not overturned the lower court's decision.

"It creates this territorially arbitrary vindication of rights, where if you're in one state you may be able to vindicate a constitutional right," says Tsitsuashvili, "but if you happen to be in a neighboring state that sits in a different judicial circuit, you won't have any recourse for essentially the exact same behavior."

Follow this link:
Cops Arrested Her for Exercising Her First Amendment Rights. They Got Qualified Immunitybut the Appeals Court Wasn't Having It. - Reason

The partly completed Wilshaw hotel project at the southeast corner of 16th and Main streets. (IBJ photo Mickey Shuey)

A Georgia-based development firm said Monday it hopes to take the reins of a long-delayed hotel project across from Indianapolis Motor Speedway, with hopes of completing construction by early 2023.

Hotel Equities Group of Atlanta suburb Alpharetta is conducting due diligence on the partially built, 127-room Wilshaw hotel project at the southeast corner of 16th and Main streets. It plans to assume rights to the development and finalize revised agreements with existing partners and the town of Speedway over the next several months.

Hotel Equities plans to formally acknowledge the project takeover during a Speedway Town Council meeting Monday night. The companys investment and the terms of the projects transfer from current developer Loftus Robinson have not yet been disclosed.

The town of Speedway has been considering legal action against Loftus Robinson, which signed an agreement to develop the hotel in 2016 but halted construction on the project in mid-2019. The hotel had been expected to open in 2020.

Hotel Equities is expected to take on development and management responsibilities, but maintain the existing five-story design for the Hilton Tapestry-branded hotel. Some of the current project partners will also be retained.

The firm has far more experience in hotel development than does Loftus Robinson. It manages a portfolio of 210 hotels in the United States and Canada, including 10 in Indiana under Marriott, Hilton and IHG brands. By comparison, Loftus Robinson had only completed one hotel before signing on to the Wilshaw.

We currently operate successful hotel assets in Indianapolis and we are excited to work in conjunction with the Town of Speedway, said Joe Reardon, chief development officer of Hotel Equities, in written remarks. Our development services and best-in-class operations teams look forward to bringing this iconic project to fruition and becoming a lighthouse within the community. We could not be more excited to work with all project partners in the market to bring this hotel to life.

Indianapolis-based Loftus Robinson halted major work on the project more than two years ago after it encountered financial difficulties. Several liens were placed on the property when Loftus Robinson failed to pay contractors, including construction management firm F.A. Wilhelm.

Those holds, including Wilhelms lien exceeding $4 million, have since been converted to mortgages that will be honored as part of the projects conveyance to Hotel Equities.

In September 2020, Indianapolis-based MHG Hotels boarded the project as a secondary developer to assist Loftus. Its not clear whether MHG will continue as a partner, but Loftus is expected to have a limited role with the new development team.

We are pleased that Hotel Equities is engaged in this development, as they have a proven track record of developing hotels at various stages and managing an exceptional hospitality experience, Speedway Economic Development Director Tim Gropp told IBJ on Monday. Tonights meeting is an important first step in introducing the community to Hotel Equities and bringing this project one step closer to reality. We look forward to completing our due diligence and collaborating with Hotel Equities and the project partners to move this hotel forward.

Speedway officials have been frustrated by the lack of progress on the hotel over the past two years. It all came to a head earlier this year, after Loftus Robinson failed to meet a deadline in its 2017 agreement calling for substantial completion of the project by the end of January 2021.

That agreement was part of a three-party deal that also included Scannell Properties, which built the already-completed apartment component of the project directly south of the hotel property. Gropp told IBJ in February the town was considering any and all remedies for the situation.

But Monday, Gropp reiterated town officials always viewed a lawsuit as a last resortparticularly since an open line of communication with Loftus Robinson has been maintained as the parties sought a solution.

Weve talked to multiple groups and this group has looked at this project for a while, but they had to make sense of it. I think theyve done that, he said. They wouldnt be here if they didnt think they could get this done. Im optimistic this is the right path forward, its the right step for the town.

Gropp said the town wanted to avoid a legal fight.

I think the knee-jerk reaction is to file a lawsuit, he said. But by evaluating our options and seeing this path forward, this is ultimatelyif it pans outthe best option.

Drew Loftus, principal at Loftus Robinson, said his firm has been working with Hotel Equities for about the past six months to finalize the deal and hes confident the hotel will be completed with the new firm at the helm.

You can look at their track record, their history, the number of hotels they successfully operate and their financial horsepower, he said. They check all the boxes, and I think thats what a project like this needs.

The partially completed Wilshaw hotel in downtown Speedway sits unattended after months of work on the development being stalled. (IBJ photo/Mickey Shuey)

As part of the deal, Hotel Equities will need to finalize financing for the project, along with all management contracts and deals with contractors. The town of Speedway will also have to assign the existing contract with Loftus Robinson to Hotel Equities.

The firm will also need to reassess the structural steel already in place for the building, and some remediation may be necessary. Gropp said it is unlikely to need a complete rebuild, based on a structural integrity report completed this summer.

Gropp said there are hopes of completing a fourth amendment to the original agreement to update formal timelines and make it easier for the town to reclaim the project if it encounters more hurdles.

Weve talked several times about tightening up the overall agreement and making sure that something like this doesnt happen again, he said, So, if something did happen down the road, we would be able to easily take the project back over and go in a different direction.

In a written statement, officials with Indianapolis Motor Speedway said theyre eager to work with Hotel Equities.

Further development of this location is positive and welcome news for the Speedway community, they said. We are excited for our new neighbor and wish the project success.

The development is named Wilshaw in honor of Wilbur Shaw, the last native Hoosier to win the Indianapolis 500. Born in Shelbyville in 1902, Shaw took the checkered flag in 1937, 1939 and 1940.

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Long-delayed Speedway hotel project slated to get new developer - Indianapolis Business Journal

The 24th amendment was important to the Civil Rights Movement as it ended mandatory poll taxes that prevented many African Americans. Poll taxes, combined with grandfather clauses and intimidation, effectively prevented African Americans from having any sort of political power, especially in the South.

When the 24th amendment passed, five southern states, Virginia, Alabama, Texas, Arkansas, and Mississippi still had poll taxes. Most Southern states, at one time or another, had poll taxes and in severe cases, had cumulative poll taxes that required the voter to pay taxes not just from that year, but also previous years they had not voted.

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress

(citizens have the right to elect their representatives in national, state, local, and primary elections)

shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

(poll taxes are a barrier to voting and will be repealed)

Congress shall have the power to enforce this article by appropriate legislation.

(Congress will enforce these provisions and enact laws that help to enforce the 24th amendment)

The 24th amendment is important because African Americans in the South faced significant discrimination and could not vote for elected officials that would work to end the discrimination. Although the poll tax was never a large sum of money, it was just enough to stop poor African Americans and whites from voting.

Although the 15th amendment protected the rights of citizens to vote in elections, this did not stop creative measures specifically tailored against African Americans, such as literacy tests, which represented an unfair burden to the poor and illiterate, who by the constitution are entitled to their vote.

Illinois was the first state to ratify the 24th amendment in 1962. The ratification process ended in 1964 with South Dakota being the 38th state to ratify the amendment. Unsurprisingly, most Southern states, except Florida, that had had the poll tax, voted against or failed to ratify the amendment. Some of these states kept the poll tax law in legal code, even though they could no longer enforce it. The Supreme Court would later rule against other forms of taxation on voters, such as Virginia requiring a certificate of residence to vote, which came at a price.

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24TH AMENDMENT (Twenty-Fourth Amendment) - Simplified ...

Courts have recognized that the Fourth Amendment protection from unreasonable searches and seizures applies to searches and seizures in hotel and motel rooms. Certain exceptions allow for warrantless searches and seizures, including consent. In broad terms, the consent exception means that a party's agreement, actual or implied to a search and/or seizure renders a warrant unnecessary.

In general, during a guest's stay at the hotel, only the guest may consent to a search of his or her room. While hotel staff members may access the room for cleaning and maintenance during the guest's stay, they are not authorized to allow police to enter the room. Thus, during a guest's tenancy at the hotel, employees should not allow police to enter the guest's room without a search warrant.

Fourth Amendment protections do not apply after a guest's tenancy expires, at which point those employees with proper authorization from the hotel may aid the police and consent to a search of the room. While this seems like a straightforward principle, it is not always clear when a tenancy actually expires for the purposes of the Fourth Amendment. When faced with this lack of clarity, hotels can take certain actions to ensure careful compliance with the Fourth Amendment by issuing and consistently following policies regarding (a) guest checkout and (b) eviction of guests.

I. Checkout Policy and Procedure

A guest's Fourth Amendment rights expire once the checkout time has passed. However, this may be modified by the hotel's practices and guest communications. Consequently, hotel policies and practices may extend Fourth Amendment protections past the guest's pre-arranged checkout time. For example, if a hotel gives a guest permission to stay until a later checkout time or has a practice of acquiescing when a guest stays past the posted checkout time, Fourth Amendment protections last until that later check-out time. Courts have found that after a hotel provided specific guests with such an allowance, those guests "reasonably believed that the hotels would allow them to do so again, permitting them to retain a privacy interest in their rooms." Courts realize that most hotels have a pattern or practice of allowing guests some leeway regarding the checkout time.

Each Fourth Amendment inquiry concerning guests checking out of hotels hinges on the specific facts of the case. A hotel that has a clear checkout policy and consistent procedures will provide both staff and guests with certainty as to when a guest's Fourth Amendment protections have expired.

Fourth Amendment protections depend on the guest's reasonable expectation of privacy in his or her room, meaning that hotels must state their checkout policies in a manner that would not confuse a reasonable person. An effective communication policy and procedure could involve a notification about the checkout time to the guest upon check-in, the issuance of a reminder to the guest several hours before checkout, and the posting of the checkout time in each room. Further measures may include contacting the guest in the event that checkout time has passed. In these ways, a hotel can unequivocally state that a guest's tenancy and accompanying Fourth Amendment protections expire at a certain time.

A hotel should do its best to be consistent in communicating and enforcing its checkout policy. In the absence of consistency, guests might be considered reasonable in expecting their Fourth Amendment rights to extend beyond checkout time. If a hotel wants to retain the option to make exceptions to its general checkout time, it should provide a system for staff members to record these extensions so that they know whether or not each guest is protected by the Fourth Amendment.

II. Eviction Policy and Procedure

A justifiable ejection will also extinguish a guest's Fourth Amendment protections. A guest's tenancy expires after the hotel has identified grounds for eviction and taken affirmative steps to repossess the room.

Examples of what courts have found to be valid grounds for eviction include:

The hotel must then act to take back possession of the room, which ends the guest's expectation of privacy. The Fourth Amendment continues to protect a guest until the hotel staff takes action to commence eviction. The following actions have been identified as sufficient to constitute the commencement of eviction, and thus the extinguishment of Fourth Amendment protections:

In order to create and follow an eviction policy that promotes compliance with the Fourth Amendment, a hotel should identify behaviors that justify eviction. This requires consultation of the law, including any statutes that govern hotel policies. The hotel should then train its staff to recognize and respond to behavior that triggers eviction. A hotel should also provide guests with its eviction policy or communicate in some way the types of behavior that could trigger an eviction. Finally, in the event of an eviction, the hotel must take steps to communicate to the guest that he or she is being evicted. If the hotel has created any doubt or confusion as to whether the behavior under consideration triggers eviction, or does not clearly communicate that the guest is being evicted, Fourth Amendment protections may continue to apply. Therefore, as with the suggestions for checkout procedures discussed above, consistency and clarity will help to ensure a situation in which hotel employees and guests know when the Fourth Amendment no longer applies to protect guests.

In general, hotel staff should not allow police to enter a guest's room without a warrant. However, if the guest's tenancy has expired because the checkout time has passed or the guest has been evicted, hotel staff may provide consent for a police search. Hotels should implement polices and procedures that allow guests and staff to know, with certainty, the circumstances under which a guest's tenancy expires.

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Guest Room Privacy and the Fourth Amendment: Duff on ...

Existing federal privacy laws may not cover data collected from autonomous vehicles.

Equipped with an arsenal of cameras and sensors, autonomous vehicles record the world around them everywhere they go. They keep records of their own operational data, such as GPS location, speed, steering maneuvers, and braking actions. They watch the occupants of the vehicle, tracking which seats are filled, and sometimes they even record video images of the person in the drivers seat.

All of this recording creates more than five terabytes of data per hour of autonomous driving time. It also raises concerns about who has access to this data. Federal agencies and privacy advocates agree that it is important for companies developing autonomous vehicles to ensure that sensitive information is secure and to communicate clearly about which private parties have access to this information.

Existing federal legislation, however, is not likely to apply to data stored by autonomous vehicles. One statute that could apply is the 1986 Electronic Communications Privacy Act (ECPA), which describes rules for law enforcement to follow when obtaining contents of wired communications. The ECPA requires a warrant for the interception of communication in transit over the internet, or for unopened messages stored on personal computers. The ECPA only applies, however, to information obtained from electronic communications services or remote computing services. As defined by the ECPA, those terms would not cover autonomous vehicles.

A separate law called the Federal Communications Act (FCA) faces a similar issue. Title II of the FCA subjects all common carriers of telecommunications services to regulation by the Federal Communications Commission and requires common carriers to protect sensitive information for their customers. In 2015, internet service providers were considered common carriers under the Act, so the FCA might have applied to autonomous vehicles that offered wi-fi connections. Under current Federal Communications Commission policy, however, internet service providers do not qualify as common carriers, so Title II of the FCA does not apply.

The Fourth Amendment to the U.S. Constitution also governs privacy protection when it comes to law enforcements use of data stored on autonomous vehicles or held by automobile manufacturers. The Fourth Amendment protects civilians against excessive intrusions into their privacy by prohibiting the government from performing unreasonable searches and seizures of personal property. Although no court has yet heard a case involving autonomous vehicle data privacy, the U.S. Supreme Court has defined Fourth Amendment privacy rights for several types of personal data that autonomous vehicles will likely carry.

The U.S. Supreme Court has ruled in a series of cases that law enforcement must obtain a warrant before obtaining Global Positioning System (GPS) or cell tower triangulation information that enables accurate location monitoring. These rulings may indicate that any autonomous vehicle data that would enable law enforcement agencies to determine the accurate location of a person would also require a warrant.

The Supreme Court of Georgia has held that a warrant is required before speed history information logged in a vehicles event data recorder (EDR) can be examined by police after a car crash. This ruling may indicate that the kind of information an autonomous vehicle records as it plans its movements would also require a warrant before it could be examined by law enforcement officials.

The most significant new type of data generated by an autonomous vehicle is the record of the environment that the vehicle sees using its 360-degree visible light camera footage, forward-facing LiDAR, and infrared sensors. This situation is analogous to dash cams and CCTV security cameras attached to homes and businesses.

Although warrants or subpoenas are required to force private citizens to turn over camera recordings to law enforcement, many private security companies willingly share information with law enforcement. Plus, private companies that manage surveillance cameras have established partnerships with police departments to help them find cameras and facilitate waiver of Fourth Amendment rights from consumers who own the cameras. Given this trend, it seems likely that a company that operates a fleet of autonomous vehicles would also partner with law enforcement.

Strict privacy laws in states where many autonomous vehicle development companies are located may help to raise the standard for the whole industry. For instance, more than 50 companies are developing and testing autonomous vehicles in California, which has a state privacy law. The California Consumer Privacy Act (CCPA) requires companies to notify consumers about sensitive personal information collection and use, data monetization, and sale to third parties.

The CCPA also requires companies to allow consumers to delete and opt out of the sale of sensitive personal information. GPS data and personal identification information that is recorded by an autonomous vehicle is protected under the CCPA, but data logged by a vehicle that are not sensitive and personal may still not be covered by the act.

Although the Fourth Amendment and California law may provide a patchwork of protection for some types of autonomous vehicle data, there are no federal laws or regulations to impose basic protections of general data security and privacy. Because autonomous vehicles are products sold to consumers, the Federal Trade Commission could bring enforcement actions against automakers for deceptive practices, but this strategy would require waiting for deceptive practices to occur.

The National Highway Traffic Safety Administration includes data security and privacy as part of its goals for eventual autonomous vehicle regulation, but the agency has not yet proposed a rule materializing that goal. Such regulation could require autonomous vehicle manufacturers to incorporate industry guidance standards for privacy and data security, anonymize stored or aggregated data, or incorporate notice and consent for the use or sale of data.

State legislatures could pass laws that clarify ownership of autonomous vehicle data similar to proposed federal legislation known as the Driver Privacy Act. If Congress passed the Driver Privacy Act, information collected by EDRs would belong to the owner or renter of a vehicle. If state and federal governments were to clarify privacy requirements for autonomous vehicles, consumers would be better protected, and autonomous vehicle developers would face less regulatory uncertainty as they create new products.

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Too Many Eyes on the Road - The Regulatory Review