Category Archives: Fourth Amendment

ANALYSIS/OPINION:

The New York Times recently reported that the FBI had an undercover informant amid the mob that entered the U.S. Capitol on Jan. 6 who had related to them his knowledge of the demonstrators plans beforehand and his observations of events in the building in real-time. The informant was a genuine member of the Proud Boys, one of the groups the feds are trying to charge with conspiracy to overthrow the government.

According to the Times, the informant told the FBI in advance that his colleagues had no plan to disrupt the government. He also reported violence and destruction in the Capitol to his FBI handler as it was happening, and the FBI did nothing timely to stop it.

The informants presence as a de facto federal agent at the scene before, during, and after the commission of what the government considers serious felonies raises serious constitutional questions about the FBIs behavior. The feds have not revealed the existence or identity of this informant; rather, the Times reporters found out about him and found another person to corroborate what they learned that he did.

Can the government insert a person into a group under criminal investigation or flip a person already in the group and use him for surveillance without a search warrant? And, when they do this, must prosecutors tell defense attorneys about their informant, mainly if his knowledge and observations are inconsistent with the governments version of events?

Here is the backstory.

The Fourth Amendment to the Constitution was written to protect the quintessentially American right to be left alone. It was enacted in the aftermath of egregious violations of colonial privacy by British soldiers and agents.

The typical violation of privacy came in the form of British soldiers knocking on the door of a colonial home or breaking it down bearing a general warrant. A general warrant, issued by a secret court in London or by colonial courts here whose judges were loyal to the king, permitted the bearer to search wherever he wished and seize whatever he found.

The Fourth Amendment was ratified to force the government to focus its searches on evidence of crimes for which the government had probable cause and to protect the privacy and security of persons, houses, papers, and effects by requiring search warrants before the government could invade any of them.

The warrants must be issued by a neutral judge, based on probable cause of crime sworn to under oath, and must specifically describe the place to be searched and the person or things to be seized.

In the early 1960s, the Supreme Court realized that the use of electronic surveillance was just as much a search as a physical search, and it required search warrants for the government to be able to use at trial whatever it learned from the surveillance. This is universally accepted today as the contemporary understanding of the Fourth Amendment. Yet, it applies only to searches by government agents or their use of evidence obtained from electronic surveillance. It does not pertain to informants.

Stated differently, the feds and the states need search warrants to bug your bedroom, office, or cellphone. Still, they do not need a search warrant to threaten, bribe or employ your neighbor or colleague or brother-in-law to engage you in a conversation about personal behavior and then report the contents of that conversation to them.

The government argues that you have waived your right to privacy by trusting the person to whom you were speaking, and that waiver obviates the need for a search warrant.

But the use of an informant can be as invasive as the use of a wiretap. Because the informant is usually capable of getting in the face of the person being surveilled, his presence is a direct violation of the Fourth Amendments protection of persons. Since the informant can often prod the person to say what he might not say if unprodded, the use of informants is arguably more invasive of privacy and hence more violative of the Fourth Amendment than a wiretap silently recording a conversation.

Now back to Jan. 6 at the Capitol. The Department of Justice requires approval by FBI management before an agent can engage an informant. Thus, senior FBI personnel knew that a trusted member of the Proud Boys trusted by the Proud Boys and the FBI had advised one of their agents that the group had no plans for violence or disruption of a governmental function. We also know that senior FBI personnel knew that personal injury and property damage was happening at the Capitol, and they did nothing to stop it.

The Times reporters promised anonymity to their sources. But their identity is now of paramount importance to some of the folks whom the FBI has arrested and whom federal prosecutors have charged with felonies. If the feds have an eyewitness who works for them even though his presence at the scene was unconstitutional and whose testimony contradicts the prosecutors narrative, the feds have a moral and legal obligation to reveal all this to defense counsel.

Who knows what the FBI knew of Jan. 6 ahead of time and did nothing or why it conveniently looked the other way during the events in the Capitol? We do know that every FBI agent and the federal prosecutor has taken an oath to uphold the Constitution, whether convenient or not.

The Fourth Amendment is the framers value judgment that the privacy of all persons is a greater moral good than the governments convenience. It is an intentional obstacle to law enforcement to keep it respectful of our rights. Why do we hire the FBI to protect our safety but permit it to invade our liberty?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is an analyst for the Fox News Channel. He has written seven books on the U.S. Constitution.

Read more here:
On Jan. 6, what did the FBI know? - Washington Times

Ameera Shaheed's car was towed and scrapped even though it was parked legally. Now she is suing ... [+] Wilmington, Delaware.

Ameera Shaheed knew her car was parked legally when the city of Wilmington, Delaware, started ticketing her in 2019. Even as she was trying to contest the first ticket, parking enforcement piled on with more citations. And one day, she went outside and her car was gone, towed by a city-contracted company. Living on a fixed income because of a disability, Ameera simply couldnt pay her fines and after 30 days her car was scrapped.

The value of Ameeras car was far greater$4,250than what she owed the city at the time she was towed$320. Today, the city still says she owes it $580 for the tickets and late fees. The city took one of her most valuable possessions and yet gave her no credit. And Ameera isnt alone.

Earl Dickerson paid a $60 ticket the city gave him after his van was parked too long in a legal space. But when he showed up at the towing company, he was told that he needed to pay $910 more to get his vehicle out. Like Ameera, he simply didnt have that amount of money since the pandemic hit him hard financially. His car was scrapped and he didnt receive a dime.

Wilmington contracts with two companies for towing services. Last year, one company alone kept nearly 1,000 of the more than 2,500 cars it towed. The towing companies get to keep all the proceeds of cars they scrap or sell. The city pays the companies nothing for their services, and while that might be a great deal for the city, its a raw deal for anyone who gets towed.

Wilmingtons scheme has not gone unnoticed, AAA Mid-Atlantic called out the myriad problems with towing in the city two years ago. Last year, a coalition of groups including AAA, the NAACP, the Latin American Community Center and the Institute for Justice called on the city to end its predatory towing practices immediately.

However, little has been done to reform the system or to compensate people who lost their transportation and the value of their vehicle. So, the Institute for Justice is now suing on behalf of Ameera and Earl, calling for the city to end the abuse and to give them the fair market value of their cars at the time they were seized.

The lawsuit is in federal court because the city is violating Ameera and Earls rights under the U.S. Constitution in a few different ways. First, the government has to properly compensate people whenever it takes their property. This means that if the city government has to tow cars and to take them for unpaid fines and fees, they still dont get to pocket the proceeds above and beyond what is owed. This applies equally when the government contracts the work out to private companies. What Wilmington is doing is the equivalent of taking a house through eminent domain but not paying the homeowners a dime. The constitution protects the value of your car the same as your home.

Second, the city is violating their Fourth Amendment right to be free of warrantless searches and seizures. The city just decided that it could take cars like Ameeras whenever it thought they owed too much. There was no emergency that required the city to move the car and Ameera was trying to contest the tickets. The city should have waited until it had a court order to seize her property.

Third, taking Ameeras and Earls cars without a hearing violates their rights to due process under the 14th Amendment. Under Supreme Court precedent, car owners should get a pre-seizure hearing before losing their car. In Wilmington, cars get scooped up and scrapped before people even have time to see a judge to contest their tickets. And to get a hearing to challenge tickets in Wilmington, you have to first pay the fine in full. Its unconstitutional for the government to make you pay a fine before it has even proved you did anything wrong.

Wilmington isnt alone in operating an unconstitutional and predatory towing scheme. The Institute for Justice also has a class action lawsuit against the city of Chicago over its impound practices. For years, Chicago impounded cars and demanded payment from the owners even if they personally did nothing wrong. One couple was ordered to pay fines and fees after they dropped their car off at the shop and a mechanic with a suspended license took it out for a drive.

Cities desperate for revenue will always look for ways to squeeze more money out of residents through fines and fees. But taking someones car should never be done lightly. People rely on their vehicle to earn a living and to get lifes necessities. Taking away mobility often means trapping someone in poverty. While what Wilmington did to Ameera and Earl is unconstitutional, its also counterproductive. Every city in America should look at its fines and fees policies and ask whether they are hurting their most vulnerable residents.

Go here to see the original:
The City Scrapped Her Car Over A Handful Of Tickets And Left Her With Nothing But A Bill - Forbes

On Monday, the Supreme Court will begin a new term. The justices are slated to consider a few extremely consequential issues, including in cases concerning abortion and guns. But if the opinions issued at the end of the most recent sitting taught us anythingparticularly the decision in Brnovich v. Democratic National Committee, which sapped Section 2 of the Voting Rights Act of its potencyit is this: Americans can no longer rely on the federal judiciary to safeguard their fundamental right to vote. And given the Courts open hostility toward measures aimed at preserving U.S. democracy, legislation may be futile too. Whats left? Advocates charting a path forward should think back to the Framers. They would resort to extraordinary measures. They would consider amending the Constitution.

In general, I am no proponent of speculating what long-dead politicians would do if they were here now. Theres too much room for error, and no way of definitively proving any particular hypothesis. However, ample historical evidence exists to support the assertion that those who drafted and ratified our national charter considered it essential that the American people have the final say on its meaning. If the Court is getting it wrong, we have a civic duty to get it right, by pushing our elected lawmakers to update the Constitution in a way that promotes democracy and reflects our current values.

As I, along with my co-author, write in our new book, The Peoples Constitution, the Framers encountered an obstinate or wayward Court repeatedly and, in the most extreme cases, they opted to amend the Constitution to enshrine enduring principles and vindicate the popular will. Perhaps the best evidence comes from the 1790s, when many of the Framers were still alive and governing. In a case known as Chisholm v. Georgia, the justices heard the plea of an executor of an estate seeking repayment for goods supplied to the state in support of the revolution. Georgia declined to respond to the suit, arguing that the common law doctrine of sovereign immunity protected it from citizen suits. The Court ultimately held that Article IIIs languagethat the Judicial Power shall extend to all Cases between a State and Citizens of another Statemeant what it says: that federal courts have jurisdiction to hear Americans claims for redress against states. In a prescient 1793 opinion, Justice William Cushing advised, If the Constitution is found inconvenient in practice in this or any other particular, it is well that a regular mode is pointed out for amendment.

The Framers took that advice to heart. Within two years of the Courts decision, Congress had proposed and the states had ratified the Eleventh Amendment, overturning the ruling and curtailing federal-court jurisdiction, thereby ridding the new national charter of what they deemed to be one of its early kinks.

Jonathan Rauch: The 5 Trump amendments to the Constitution

Later amendments dealt with much more severe problems. The Thirteenth and Fourteenth Amendments, the capstones of the abolitionist movement, were enacted following the Civil War to remedy the Framers gravest offenses: their contemptible embrace of slavery and disdain for the idea of equal citizenship. Notably, the Constitution did not use the word slavery until the Thirteenth Amendment. Nor, until the Fourteenth Amendment, did it set out the requirements or rights of American citizenship.

The architects of these most important amendments drafted them in response to the odious Dred Scott decision, in which the Court held not only that Black people could not be citizens, but that they were beings of an inferior order, possessed no rights which the white man was bound to respect, and could justly and lawfully be reduced to slavery for his benefit. In theory, the amendments eradicated the institution of slavery and conferred upon 4 million Black men and women the rights that the Declaration of Independence recognized as innate and indispensable. In reality, it would take another century for those promises to start to take hold. Yet, in enacting the pair of amendments, the American people issued a rebuke to the members of our highest tribunal, and seared the principles of liberty, equality, citizenship, and related rights into the national charter for later generations to build on.

American citizens continued to uphold this tradition into the next century. During the Progressive era, the Sixteenth Amendment displaced the Courts decision in Pollock v. Farmers Loan & Trust Co., thereby allowing Congress to enact federal-income-tax legislation necessary to sustain a modern global power. The Twenty-Fourth Amendment, ratified at the apex of the civil-rights era, outlawed the imposition of poll taxes in federal elections, partially reversing the Courts ruling in Breedlove v. Suttles. And the Twenty-Sixth Amendment, which establishes a national voting age of 18, was adopted and ratified in just over three months to reverse Oregon v. Mitchell, a Supreme Court ruling that invalidated part of the amended and reauthorized Voting Rights Act. Remedying misguided Supreme Court decisions is a leading reason for amending the Constitution, and, as the Thirteenth and Sixteenth Amendments make clear, doing so can lead to an entire new era of constitutional change.

But, although there have been intense, compressed periods of constitutional change, excessive restraint has more commonly prevailed. During these normal periods, the charter has not been subjected to textual revision. Some believe that we should refrain from tampering with the Framers handiwork. Others suggest that amending the Constitution is impossible or think it wiser to spend political capital and resources on more attainable goals. None of these responses is new. Throughout history, advocates of an unworkable status quo employed the language of constitutional idolatry and pessimism to oppose sorely needed change.

James Madison, the father of the Constitution, envisioned that the amending clause would balance between the two possible poles. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. He believed, in other words, that amending the Constitution should require work. We should neither take up the amendment pen lightly nor, by the same token, inhibit ourselves when time and experience reveal defects in our national charter that render it incompetent. The examples above are indicative of the Framers expectations: an engaged polity pressing for reasoned and deliberative constitutional change informed by practical experience.

What does this mean for today, particularly in light of the Brnovich decision, and the decision in Shelby County v. Holder that eviscerated Section 5 of the Voting Rights Act less than a decade ago? Given the judiciarys failure to enforce federal election statutes, and the limitations it has imposed on Congress and individual voters seeking to protect the franchise, mere legislative changes may be a meager substitute for a constitutional amendment explicitly granting the right to votea move that an increasing number of advocates are championing. Despite the enactment of more than half a dozen amendments that have expanded and diversified the American electorate, our Constitution currently lacks a universal-suffrage guarantee. An affirmative right to vote for all, instead of itinerant and aspirational nondiscrimination principles, can help to ensure that the franchise will be open to every U.S. citizen.

An alternative approach might address the power of the Court itself. On this, too, there has been no shortage of discussion. Indeed, as far back as the ratification debates, the Anti-Federalist Brutus augured the advent of judicial supremacy. The Constitution could make the justices independent of the people, of the legislature, and of every power under heaven, he wrote. Men placed in this situation will generally soon feel themselves independent of heaven itself.

Adam Serwer: The lie about the Supreme Court everyone pretends to believe

Todays commentary aimed at reining in the excessive judicial intervention and erroneous decision making focuses on a range of other reasons why Court reform is due: the marked increase in the number of federal lawsuits filed; the record-low number of cases on the Courts docket; the lack of diversity on the bench, particularly given that 108 of the 115 justices have been white men; the heated judicial-confirmation battles and novel constitutional hardball tacticssuch as the Senate Republicans refusal to hold hearings for a Democratic nominee to a vacant Supreme Court seat eight months before a presidential election, while ramming through a Republican nominee just eight days prior to the following election.

Justice Stephen Breyer has been a vocal critic of proposals to restore legitimacy to the high court, including amending the Constitution to impose judicial term limits. President Joe Biden, making good on a campaign promise, has impaneled a commission to study the issue, though many believe the group will not endorse any significant reforms. And although justices have weighed in on the need for constitutional change in the past, and presidential commissions have laid the ground for constitutional reform, the fact of the matter is that when it comes to amending our national charter, neither the president nor the members of the nations highest court possess a formal role. Article Vthe section of the Constitution that lays out the process for adding amendmentsleaves the levers of change with federal and state lawmakers, so that the representatives of the people, who are the ultimate sovereign, lead the charge on their behalf.

In a famous witticism, Justice Robert Jackson quipped, We are not final because we are infallible, but we are infallible only because we are final. On several occasions, the people have proved this statement wrong, amending the Constitution to correct a Court that has stumbled and fallen astray. Given our current, hyper-conservative Courts assault on democracy and other fundamental rights, we should be the next generation of Americans to do the same.

Go here to read the rest:
The Framers Would Have Wanted Us to Change the Constitution - The Atlantic

The Biden administration is actively pushing Congress to require banks to report to the Internal Revenue Service on the account activity of a huge swath of Americans. This unwarranted snooping would be an invasion of privacy, and lawmakers should make sure it doesnt happen.

Treasury Secretary Janet Yellen and the IRS have asked Congress to mandate banks send along annual inflows and outflows from accounts with at least $600 or $600 worth of transactions. Thats a low bar that would expose the majority of bank accounts to additional scrutiny.

The administration claims this would allow the IRS to conduct audits more efficiently.

In reality, its all about the federal government trying to squeeze Americans for additional tax dollars in an effort to fund Democrats $3.5 trillion budget wish list. Or as Yellen phrased it in a letter to Congress, the government has a shortage of necessary funds for key national priorities. Biden officials estimate this could bring in upward of $400 billion over a decade.

This is a sleazy way to go about it, and it offends Fourth Amendment protections against unreasonable search and seizure. Taking all these records and sifting through them for possible audits is an incredible overreach and an unprecedented invasion of the privacy of untold millions of Americans.

Its also none of the federal governments business.

Business and banking groups are pushing back hard, as are some state legislatures.

The Small Business Association of Michigan and the Michigan Bankers Association are among them. The proposal would be cumbersome for financial institutions to implement, and they have raised concerns about how this could put the financial information of consumers at risk.

The Detroit News

Rann Paynter, president and CEO of the Michigan Bankers Association, says the plan would hamper both financial institutions and consumers.

Its certainly a burden to the holders of those accounts, and an invasion of privacy to Americans for that type of information to be shared with the IRS, he says. Its a lot of information to provide to the government that is not necessary.

Paynter notes that if the IRS is concerned about some individuals or businesses avoiding their share of taxes, the agency already has the tools it needs to investigate.

The pushback has caused House Democrats to put aside the proposal for now at least in its existing form. They are still considering a version that would impact fewer people.

U.S. Rep. Dan Kildee, D-Mich., has noted the concern over the negative impact this could have on low-income Americans, whom Democrats purport to want to help. Yet Kildee, who is on the Ways and Means Committee, also said the issue isnt completely gone, according to The Wall Street Journal.

Given the invasiveness of the proposal, it needs to go away. Congress should ignore the demands of the Biden administration and make sure this extraordinary approach to tracking of the bank accounts of average Americans never happens.

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Don't let the IRS spy on our bank accounts - Tyler Morning Telegraph

*If you would like to view all of the unedited dash cam videos and public documents obtained by 13 Investigates,click here.

BELVIDERE (WREX) For the second time this year, 13 Investigates is looking into allegations of excessive force at the Belvidere Police Department. This latest investigation comes after three new lawsuits were filed , all of them from men saying arrests with Belvidere Police landed them in the hospital. All three lawsuits name Officer Brandon Parker.

Officer Parker was a subject in our February 2020 investigation into excessive use of force allegations. Multiple people came forward accusing him and other officers on the department of abusing their power.

Following our investigation, even more people came forward with similar allegations at a Belvidere City Council meeting. Despite their allegations, and at least a dozen lawsuits involving police officers, Chief of Police Shane Woody and Mayor Mike Chamberlain chastised our report and stood by the officers.

"I know the whole truth. I've looked at all the information and that, what you saw on 13, was nothing compared to what the reality is," said Woody in February of 2020.

"We don't beat up people. We subdue them and take them to the ground so we can control the situation," said Chamberlain at that same City Hall meeting.

But the two refused to explain "the whole truth," and denied 13 Investigates an on-camera interview then and now. This time, citing pending litigation, but maintaining in a letter, "all complaints are investigated thoroughly" and appropriate discipline is given "when warranted".

13 Investigates interviewed a nationally recognized expert on police use of force, Michael Leonesio, to review the latest claims and how the city is handling them.

"It certainly raises some concerns," said Leonesio.

We showed him dashcam video of a stop Officer Parker did on two people who were walking on a sidewalk. In the video Parker says, "You both look a little young to be out."

It turns out the man in the video is 24, not too young to be out. But Officer Parker wouldn't know that because he never asked for ID or any information, for that matter.

"I didn't see any investigation. And that becomes a big problem," said Leonesio.

Parker then tells the man to take his hands out of his pockets and yells, "Don't move!" before kicking the man into the street, and out of view of the dashcam. Once off camera, Officer Parker gives his K9 the order to engage. In his police report he said it's because the man punched him, though the lawsuit disputes the man ever hit Officer Parker.

"Would you consider this excessive use of force?" we ask Leonesio.

"It could be, " he responds. "It's difficult to say just based on seconds of video."

We also showed Leonesio the police report. Parker says he stopped the couple because he thought they might be breaking curfew. Once out of his car, he writes that it looked like the man was doing something with his hands, and that he didn't know if the girl was "being held hostage."

"There was no indication as you saw them walking up the street that the female was a hostage," said Leonesio. "That's a bit of a leap."

Also in Officer Parker's police report, he writes, "I placed my right foot" on the man's right side. Leonesio said that's not what he did, he kicked him. And said that is not a trained tactic he has ever seen used by police in stops.

In another arrest involving Officer Parker, a man named Adam Fick refused to give officers his name. He was being arrested for obstruction of justice, then has a struggle with the officers, and Officer Parker's K9 is let out of the car and bites him. He was taken to the hospital for his injuries. See Fick's lawsuit here.

Fick's attorney, Patrick Moore, said what Officer Parker said happened in his police report and what the dashcam shows do not match up.

"Officer Parker released the dog on Fick. Both Officer Parker and Officer Zapf after the incident discuss how Officer Parker was the one who released the dog," said Moore. "And yet Officer Parker's report claims that it was Mr. Fick who released the dog himself."

But Leonesio said there is a bigger problem in his eyes with the arrest.

"The act that he was commanding him to bite is the concerning part to me," he said.

The Belvidere Police Department didn't see it that way. It decided the use of force was justified, because it said Fick made a fist and Parker took that as a threat he would punch him.

Federal court records show city attorneys deny excessive force was used in this case, saying Officer Parker reacted in "and objective, reasonable way".

Parker, himself, wrote in a report, "If Adam would have cooperated and not fought, he wouldn't have been injured."

"While I did see active resistance, I didn't see anything at that point that in my view would have risen to the level of a dog deployment," said Leonesio.

During the arrest of Fick, one of Fick's friends was recording on his cell phone. Dashcam video shows Officer Parker yelling at the man, "Put the phone down!" A command Leonesio said Officer Parker has no right to make.

"There's nothing illegal about a person being in a public place, filming police doing their work," he said.

Then, Officer Parker took the phone away from the man. That phone was never returned to the man; it is still in the hands of officials. Leonesio says that's a potential Fourth Amendment violation.

The third lawsuit involves a man who claims multiple officers, including Officer Parker, hit him repeatedly because he did not want to lie down on the ground in dog feces to be arrested. Police reports show one officer admits to hitting him twice in the face because he would not comply and lie on the ground so he could be arrested. The man was taken to the hospital with a broken eye socket and nose.

After showing Leonesio all the evidence, we asked what should happen next with the Belvidere Police Department. His answer? An outside investigation.

"That is certainly the way to go at this stage," he said.

After our last 13 Investigates report, Ald. Marsha Freeman called for an outside investigation during a city council meeting.

"It is my recommendation that we commission an unbiased outside entity to continue the investigation and get to the bottom of the allegations," she said in March of 2020.

But council never approved one.

"Those concerns need to be addressed," said Leonesio.

The question is with these new lawsuits and allegations, will they be addressed now?

*If you would like to view all of the unedited dash cam videos and public documents obtained by 13 Investigates, click here.

See the original post:
13 INVESTIGATES: New lawsuits, allegations of excessive force surface against Belvidere Police - WREX-TV

ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.

On September 30, 2021, Carrols Restaurant Group, Inc. (the "Company") enteredinto the Eighth Amendment to Credit Agreement (the "Eighth Amendment") among theCompany, as borrower, certain subsidiaries of the Company (collectively, the"Guarantors"), as guarantors, Wells Fargo Bank, National Association (the"Administrative Agent"), as administrative agent, and the lenders party theretoas further described in "Item 2.03. Creation of a Direct Financial Obligation oran Obligation Under an Off-Balance Sheet Arrangement of a Registrant" which isincorporated by reference in this Item 1.01.

ITEM 2.03. CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER ANOFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT.

The Eighth Amendment amends the Credit Agreement dated as of April 30, 2019among the Company, the Guarantors, the Administrative Agent and the lendersparty thereto (as previously amended by the First Amendment to Credit Agreementdated as of December 13, 2019 among the Company, the Guarantors, theAdministrative Agent and the lenders party thereto, the Second Amendment toCredit Agreement dated as of March 25, 2020 among the Company, the Guarantors,the Administrative Agent and the lenders party thereto, the Third Amendment toCredit Agreement dated as of April 8, 2020 among the Company, the Guarantors,the Administrative Agent and the lenders party thereto, the Fourth Amendment toCredit Agreement dated as of April 16, 2020 among the Company, the Guarantors,the Administrative Agent and the lenders party thereto, the Fifth Amendment toCredit Agreement dated as of June 23, 2020 among the Company, the Guarantors,the Administrative Agent and the lenders party thereto, the Sixth Amendment toCredit Agreement dated as of April 6, 2021 among the Company, the Guarantors,the Administrative Agent and the lenders party thereto, and the SeventhAmendment to Credit Agreement dated as of June 28, 2021 among the Company, theGuarantors, the Administrative Agent and the lenders party thereto, as furtheramended from time to time, the "Credit Agreement"). Capitalized terms usedherein and not defined shall have the meanings set forth in the CreditAgreement.

The Eighth Amendment increased the aggregate maximum commitments available forrevolving credit borrowings under the revolving credit facility by $40,000,000to a total of $215,000,000.

As of September 29, 2021, there were $47.1 million in revolving creditborrowings outstanding and $9.0 million of letters of credit were issued underour revolving credit facility.

ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.

--------------------------------------------------------------------------------

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CARROLS RESTAURANT GROUP, INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an...

Memory Burns being tased by Officer Overton

A trio of police officers in Arizona broke into the home of a woman they knew was mentally ill, held her at gunpoint, and tased her while she stood unarmed in her own bedroom, according to a federal lawsuit.

The case was filed last week in the U.S. District Court in Arizona by Lewis Williams, the father and legal caretaker for his daughter Memory Burns, who lives withschizophrenia. Burns was the woman who was tased. The lawsuit alleges that City of Globe police officers Jeffrey Overton, Matthew Ortiz, and Natalia Lomahoema violated Burns Fourth Amendment rights by unlawfully entering her apartment, falsely imprisoning her, and using unjustifiably excessive force against her in a manner that amounted to assault and battery. The City of Globe is also a named defendant in the action.

Per the complaint, just before midnight on Sept. 25, 2020, the officers responded to a call from one of Burns neighbors about loud noises, banging sounds, and the possibility of a male and female arguing in her unit. The officers knocked on the door but no one answered. One of the officers went to the back of the residence and saw that the door was closed but turned the knob and determined that it was unlocked.

Overton then saw movement coming from inside the apartment and allegedly ordered Lomahoema and Ortiz to open the back door, which they allegedly did.

The officers saw and heard nothing to indicate that a crime had been committed or was being committed, the complaint states; they neither saw nor heard anything indicating the occupant was injured or in need of aid.

While still standing at the back door, Ortiz and Lomahoema were approached by a uniformed trooper with the Arizona Department of Public Safety identified as D. Deatherage.

Deatherage allegedly informed the officers that the resident of the apartment was Burns, who he described as 1016, which is police code for someone who is mentally ill. Deatherage additionally said that Burns frequently had arguments with herself in which she used a voice that sounded like a male voice.

During those two officers conversation with Deatherage, Overton was speaking with the neighbor who called in the complaint. Following that conversation, he ordered Ortiz and Lomahoema to enter Burns home despite not having a warrant and there allegedly being no indication of criminal activity.

Upon entering the home, the officers did not see anyone, so Overton allegedly ordered Ortiz to open the door to Burns bedroom.

The suit alleges that both Overton and Ortiz opened the door and pointed their firearms at Memory. The men then allegedly gave her contradictory orders. One told her to come out, and the other ordered her to put her hands on her head, the lawsuit says.

Defendant Overton then yelled, Drop her, which appears to be an order to Defendant Ortiz to shoot Memory, the suit alleges. Thankfully, Ortiz did not comply with this order.

Memory then allegedly tells the officers their actions were against the law. The suit says she was unarmed, did not make any threats, and did not move toward the officers during the interaction.

Defendant Overton then yelled, I will Tase you, even though he had no right to be in the Unit, no probable cause to believe a crime had been committed, no right to arrest Memory, and she posed no threat to him, the suit further alleges. As Memory said, Yeah, right, Defendant Overton Tased Memory. Memory fell to the ground screaming, Youre killing me! and began calling for her dad and asked the Defendant Officers, Why are you killing me?

The officers then allegedly said, Youre under arrest for obstructing.

There is no crime of obstructing under Arizonas criminal code, and the Defendant Officers did not have probable cause to believe that Memory had committed any crime, Burns attorney Joel B. Robbins wrote in the filing.

Burns is seeking unspecified punitive and compensatory damages as well as attorneys fees.

Neither Robbins nor the Globe Police Department immediately responded to an email from Law&Crime concerning the lawsuit.

According to a report from Phoenix ABC affiliate KNXV-TV, Police Chief Dale Walters last year apologized for the officers conduct and suspended Overton for using his Taser in violation of department policy. The report also said that Overton had racked up misconduct cases including six police car crashes, sexual harassment of a co-worker, mishandled DUI investigations, failure to follow police procedure in a domestic violence case, and refusing to go to a call at a mental health facility.

Read the full lawsuit below.

[image via filed complaint]

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Arizona Police Broke into Unarmed Schizophrenic Womans Home with Guns Drawn and Tased Her in Her Own Bedroom: Lawsuit - Law & Crime

A new lawsuit accuses the city government of Wilmington, Delaware, of running an unconstitutional towing and impound program that strips owners of their vehicles over petty ticket debts.

The Institute for Justice (IJ), a libertarian-leaning public interest law firm, filed the lawsuit Wednesday on behalf of two Wilmington residents who say their vehicles were towed over improperly issued tickets and then scrapped after they couldn't afford to pay off the accumulating fines and storage fees within 30 days.

The suit alleges that Wilmington allows two private towing companies it contracts with to wrongfully take and sell residents' cars without providing proper pre- or post-seizure hearings, violating owners' Fourth Amendment and due process rights. And because the value of the cars often far exceeds the owners' debts, IJ argues the practice also violates the Eighth Amendment's protections against excessive fees and fines.

"When they took my vehicle, it hindered me from being able to get around. I have a bad back. I can't do a lot of walking," Ameera Shaheed, one of the plaintiffs in the suit, said in a press release. "I needed that vehicle. It was my pride and joy."

According to the suit, Shaheed's car was ticketed six times while it was parked in a legal space outside of her home. While Shaheed was appealing the tickets, her car was towed and impounded. Because Shaheed, a grandmother of three who lives on a fixed income, could not afford to pay the $320 that the towing company was demanding for the release of her car, it remained impounded for more than 30 days, after which it was sold for scrap.

Although Shaheed's car was worth more than $4,000, none of the proceeds from the sale were credited toward Shaheed's debt. In fact, IJ says her debts have risen to $580.

According to the lawsuit, Wilmington does not pay the two towing companies that it contracts with for impound services and "scofflaw enforcement." Rather, the companies keep the proceeds of any sales of any vehicles that are forfeited. The two towing companies sold, scrapped, kept, or otherwise disposed of at least 987 out of the 2,551 cars it towed in 2020, IJ says.

Civil liberties groups argue that abusive impound programs strip petty offenders and low-income residents of their transportation, often making it even harder for them to hold down a job and pay off their debts.

"The Constitution requires that any penalty imposed by the government be proportional to the crime. The loss of one's car for ticket debt is unconstitutional," IJ attorney Will Aronin said in a press release. "People depend on their cars to work, to visit family, and for all parts of their lives. Nobody should lose their car just because they can't afford to pay a parking ticket."

Reason reported in 2018 on Chicago's uniquely punitive impound program, which soaked owners in thousands of dollars in fines and fees for a litany of low-level offenses and held their cars indefinitely until the fines were paid or they relinquished their cars. There were few to no accommodations for low-income defendants. Even in cases where owners beat criminal charges or were innocent, they were still forced to go through the city's quasi-judicial administrative hearings court, where low standards of evidence and few procedural protections almost always ensured that defendants ended up in debt and bereft of their cars.

IJ also filed a civil rights lawsuit against Chicago in 2019, alleging that the city's impound scheme violates the Illinois and U.S. Constitution's protections against excessive fines and unreasonable seizures, as well as due process protections.

That lawsuit is ongoing, but Chicago passed some reforms to its impound program in 2020, following more investigative reporting by WBEZ and ProPublica Illinois. WBEZreported that Chicago seized 250,000 cars since 2010, imposing $600 million in debt on owners. The news outlet also discovered that motorists' debts were sometimes inflated due to a combination of computer and data-entry errors.

Some federal courts have struck down similar impound schemes on constitutional grounds. For example, in 2017 the 9th Circuit Court of Appeals ruled that Los Angeles' automatic 30-day impound law amounted to an unconstitutional seizure under the Fourth Amendment.

However, earlier this month The Orange County Register reported that, despite the 9th Circuit's ruling, law enforcement agencies across California continue to use 30-day impounds for unlicensed drivers.

A spokesperson for the city of Wilmington said the city is reviewing the lawsuit but declined to comment further.

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A New Lawsuit Says Wilmington Is Running an Unconstitutional Towing and Impound Racket - Reason

David Spann, moments before his death, questioned the authority of those who were in his Palm Springs condo attempting to arrest him, saying"the real police areon their way."

Soon afterhe was fatally shot by a bounty hunter sent to arrest him for an alleged bail contract violation, the two police officers who were present during the standoff also made statements questioning the identity and authority of the shooter and his partner, according to newly released video transcripts.

Fabian Hector Herrera, a bounty hunter, and his mother, Lisa Vargas, who accompanied him for the arrest attempt,have both been charged with murder in connection with Spann's death, which happened during a chaotic confrontation in the morning hours ofApril 23.

The transcriptsobtained by The Desert Sunfrom the Riverside County Superior Court providea written record of the audio recorded on the body cameras of two Palm Springs police officers Rhett Arden andEmmi Kramer who responded to the scene whereSpann was fatally shot by Herrera in their presence.

It documents approximately 50 more minutes of body camera footage that has neither been played in court nor releasedto the public. The footage does not include regular time stamping, but does capture the discussion between officers about who the shooter is and what authority a bounty hunter does or doesn't have within minutes of Spann being shot.

Palm Springs bounty hunter case: Bodycam footage #1

Body camera footage from two Palm Springs police officers shows the fatal confrontation resulting in murder charges against two bounty hunters.

Palm Springs Desert Sun

Right before Spann was shot, Arden had deployed his Taser but it failed to fully incapacitate Spann. What came next was the focus of two days of testimonyto determine if the case against Herrera would go to trial.

Both transcripts of the videos recordthat Arden said:"Taser.Drop it. Shoot."

However, both attorneys and the judge debated during the preliminary hearing if Arden said after firing the Taser: "Got 'em," "drop 'em," "drop it"or something phonetically similar.

Within two seconds of Arden saying "shoot," according to the body cam time counter, a single shot can be heard as the officers turn and retreat down the stairs.

"Did we hit him?" Kramer asks.

"He's hit," Herrera said.

"Shot fired and taser deployed," Arden can be heard in the video saying onhis radio and to Kramer, standing nearby. "Shot by the uh fugitive guy."

Raj Maline, Herrera's defense attorney, has argued that his clientfired the lethal shot at the command of Arden.

Two days of testimony repeatedly touched on thequestionof whatArden meant when he said "shoot" after his taser caused Spann only to stumble, and what authority the bounty hunters did or didn't have in light of the statement.

Clicke here: To view the whole transcript.

While CPR was being administered to Spann while prone in the second-floor hallway,oneofficer, not identified in the transcripts, askedwho"the fugitive folks" were.

"I have ... no idea," Krameris recorded as saying on transcripts of both her body-worn camera video, and Arden's.

However, Riverside County Sheriff Investigator Jarred Bishop has testifiedduring the preliminary hearing that Kramer andArdentold himthey believed Herrera was a cop when they arrived at Spann's home in the middle of the standoff.

Bishop and another investigator testified that Herrera was wearing boots, pants and a tactical vest very similar to those worn by county deputies.

Neither Arden nor Kramer testified during Herrera's preliminary hearing.

At several points in the transcripts, which continue until about 25 minutes after Spann wasshot, the "fugitives" or "fugitive folks" are mentioned, amid other conversation about emergency medical measuresand a device that was found on the first floor that officers thought could have been an explosive.

Later, according to hertranscript, Kramer said:"I didn't know that they could just enter like that."

Herrera and Vargas forcedentry into Spann's home by smashing his door in with a sledgehammer, according to court testimony,after Herrera attemptedto kick in the door, gun in hand, with no apparent warning or request to enter.

An officer not identified in the transcripts of the videos responds: "...these guys are practically civilians. They don't have to, you know, abide by the Fourth Amendment like, like we do. If they see him inside, they can force entry. And he probably peeked through the window..."

The Fourth Amendment protects against unreasonable search and seizure and requires that a warrant be established on probable cause.

Palm Springs bounty hunter case: Security camera footage captures 2 defendants' actions

On April 23, 2021, Fabian Hector Herrera is captured attempting to kick in the door of David Spann, soon before Herrera broke into Spann's Palm Springs condo and fatally shot him.

Christopher Damien, Palm Springs Desert Sun

Riverside County Superior Court Judge Russell Moore found at the conclusion of the Sept. 20 hearingthat Herrera was not permitted to make the arrest because he didnot have a bail agent license and had twice been convicted of felonies in the past. As a result, Moore said that the botched arrest attempt amounted to attempted kidnapping and Spann's death, a murder during the commission of a felony.

California law requires that a person canforce entry into a home if they suspect someone committed a felony, only after demanding and being denied entry.

Spann was charged with a misdemeanor;there was no warrant for his arrest and his bail had not been forfeited by a judge. His arrest had been ordered earlier in the day by Justice Bail Bondsof Temecula,and sent to Herrera to carry out, for an alleged violation of his bail contract.

The Palm Springs police body camera footage releasedto the public by the Riverside County Superior Court Wednesday sheds light on what transpired in the confrontation that resulted in the death of one man and murder charges for two bounty hunters.

The footage shows the two Palm Springs officers arriving at Spann's condo at 2:17 a.m. on April 23. Within minutes the officers had entered the condo through the front door presumably destroyed by Herrera minutes before.

Almost immediately, Spann can be heard yelling for the bounty hunters to leave his home.

Arden walks up the stairway and stops partially behind a wall next to Herrera.

"You're not the police, get the fuck out of here," Spann can be heard saying.

"We're the police," Arden responds.

A panicalarm is blaring at this point in the video.

"Ya, you're so convincing," Spann said. "Get out of my house. The real police are on their way."

"We have a warrant for your arrest," Herrera yells.

"For what?" Spann yells.There was no active warrant for Spann's arrest at the time.

Soon after, Spann appears to pick up a knife that was previously out of view from Arden's body cam. Then Arden also points his gun at Spann, who takes a step into the hallway.

"You got lethal?" Arden asks Herrera.

"Ya," he responds.

Bishop later testified that Arden was asking Herrera to have his firearm ready should the Taser fail.

"Can anyone help me?" Spann asks.

"You're gonna get tased," Arden said and fires the electroshockweapon.

Spann stumbles momentarily but gets up.

Herrera fires the shot as the two officers turn to retreat down the stairs. Kramer attempts to jump back through the splintered front door and Arden moves further into the living room.

The rest of the body cam footage shows the officersattempting to retrieve the knife, get Vargas out of the house and keep Spann alive.

Herrera can be seen pacing and cursing to himself in apparent distress.

"He's not breathing," Herrera can be heard saying.

"Stay with us bro," Arden says.

Spann can be seen in the footage laying on his back struggling to breathe, witha single gunshot wound to the chest.The footage stops soon after.

Palm Springs bounty hunter case: Police bodycam footage released (Part 2)

Body camera footage from two Palm Springs police officers shows the fatal confrontation resulting in murder charges against two bounty hunters.

Palm Springs Desert Sun

Bishop testified on Aug. 23 that both officers told him they believed Herrera was a police officer when they arrived at Spann's apartment. Arden's request that Herrera have lethal backup suggests this, Bishop said.

The transcripts, however, document theofficers referring to Herrera asthe "fugitive guy" approximately 20 minutes after the shooting; no attempts are made in the transcript to clarify what was meant by this.

Arden also was recorded identifying "the fugitive guy" as the shooter.

Following the shooting, the transcript ofArden's body cam video includes pages of discussion between officers and fire personnel providing Spann with medical treatment, while others begin to collect evidence.

"Any other injuries?" someone asks Arden.

"Uh, he's got the, I tased him," Arden responds.

Soon after, a personnot identified in the transcript, but referred to by Arden as "sir," asks: "Do we know who they are?"

"Who who are?" Arden responds.

"Who the, the fugitives are?" the person said.

"The fugitive. I don't know their names," Arden said.

Kramer, according to her transcript, says: "I have ... no idea."

The exchange occurs less than five minutes after the shooting, because Arden later says CPR has been happening for about that long. It's unclear if they are referring to Spann or the bounty hunters here.

The transcript captures audio of officerstaking photos of the scene, who make further mentionthat a device that looked like it could have been an explosive was seen in the home. Police did not report finding an explosive at the scene.

"Uh what do you want to do with the spent round?" Kramer askedan officer not identified in the transcript.

"Leave it," the officer responds, with reference to the Penal Code for criminal homicide:"Yeah. Cuz, this, this [inaudible], who knows if this one goes 187."

Another unidentified officer asks if anyone knows information about Spann, some other unidentified person provides a guess at a year of birth. Kramer adds she knows his name and spells it out.

The transcripts indicateSpann sufferedcardiac arrest about 10 minutes after CPR was started. It appears he was pronounced dead at 2:39 a.m., about 19 minutes after he was shot.

Click here: to view the whole transcript.

"It's Jose's Bail Bond," a person not identified in Arden'stranscriptsaid soon after.

"Let me ask him what he wants to do," Kramer said."He keeps walking away but uh uh..."

Jose Navarro, a licensed bail agent who ownsJose Navarro Bails Bonds, testified that he sent Spann's arrest order to Herrera after receiving it from Justice Bail Bonds.

Navarro testified that Herrera called him soon after the shooting. He said Herrera wasdifficult to understand and sounded like he had been crying, and Navarro said that Herrera told him he had shot Spann. The police contacted Navarro and told him to come to the scene. When he arrived, Navarro testified, he asked if the body cameras had been secured and said the cameraswere removed in his presence.

Raj Maline, Herrera's attorney, discussed at length during the preliminary hearing bounty hunter'spresumed powers of arrest.

California'sBail Fugitive Recovery Persons Actdetails the laws regulating how bail agents and bounty hunters can arrest bail fugitives. Malinesaid during the hearing that Herrera was in violation of the act because he was a felon without a bail license.

However, Maline, argued that the private bail agreement Spann appears to have signed gave the bail agency the power to arrest him anytime and anywhere.

"He came under their control," Maline said, referring to the bail agreement. "He consented."

Rob Hightower, the prosecuting attorney, argued during the hearing that screenshots found on Herrera's phone indicate heknew there were limitations to what he could do because he didn't have a bail license. But he attempted the arrest anyway, Hightower continued,committing several crimes in the process.

Moore agreed with the prosecution.

"It logically follows that defendant had no authority to effect an arrest of Spann and certainly not one committed by forcible entry into Spann's home during early-morning hours," he said.

"Furthermore, defendant lied to Spann when he twice stated that he and Vargas had a warrant for Spann's arrest," Moore wrote, referencing what can be heard in the body cam footage. "No such warrant existed."

While Herrera appears to haveconvinced Arden he was a cop, Moore added, he didn't fool Spann.

"But if anyone was privileged to use force on April 23, 2021, at least at the outset, it was Spann who witnessed two intruders break into his home late at night and then corner him at gunpoint in the second floor of his relatively small condominium," Moore wrote.

The Spann family has said that they believe police officers should have removed Herrera and Vargas from the home in an attempt to deescalate the confrontation with Spann. Joseph Spann said his son was defending himself against an intruder at 2 a.m. and was likely not in a clear state of mind before being shot.

Spann's father and brother have both confirmed that they have asked the state's Office of the Attorney General and Department of Insurance, which oversees the bail industry, to investigate the role of the police officers and bail agencies involved in the shooting.

Both departments declined to say whether or not they are investigating the incident, when The Desert Sun contacted them about the release of the body camera footage.

Riverside County Sheriff Investigator Jarred Bishop's investigation into whether the officers are criminally culpable for their role in the shooting remains open. The District Attorney's Office, which would make the ultimate determination, said they currently have no estimate of when it will be completed.

The two officers returned to regular patrol duties within about a week of the shooting, the Palm Springs Police Department previously told The Desert Sun.

Christopher Damien covers public safety and the criminal justice system. He can be reached at christopher.damien@desertsun.com or follow him at @chris_a_damien.

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Transcript: Cop says 'I didn't know they were allowed to do that?' after shooting by bounty hunter - Desert Sun

The plaintiffs, who were not named in the case filings, were identified as a nurse employed by Lifespan, a Rhode Island medical school student, a health unit coordinator at a hospital that was not named, and a doctor who is employed in a Rhode Island medical practice with other physicians. They claimed in court filings that the states mandate was unconstitutional.

US District judge Mary S. McElroy, who presided over the state, wrote in her ruling that the four unvaccinated workers that filed this suit did so just eight days before the mandates deadline, but more than five weeks after the governor announced it.

McKee announced in mid-August that all health care workers in the state would have to get vaccinated against COVID-19 by Oct. 1 or else they would be at risk of losing their jobs, and possibly, their licenses.

The plaintiffs, who were represented by attorney Joseph Larisa Jr., had argued that the regulation impermissibly burdens their right to freedom of religion under the First Amendment.

But McElroy said the the courts have found that mandatory vaccination laws are a valid exercise of a states police powers for more than a century.

The plaintiffs argued that the the regulation makes health care employers disregard Title VII of the Civil Rights Act, which is meant to protect employees against employment discrimination on the basis of religion. They also argued that the regulation is an unconstitutional abridgment of the plaintiffs right to equal protection under the Fourth Amendment.

But McElroy wrote, Nothing in the language prevents any employer from providing a reasonable accommodation to an employee who seeks one in accord with their sincerely held religious beliefs.

She wrote that the plaintiffs had failed to make out a case of likelihood of success on the merits on their Title VII claim and wrote, Although the plaintiffs contended at oral argument that the regulation makes reasonable accommodation virtually impossible, there is no evidence before the court at this stage that would allow the finding of a likelihood of success on the merits on that claim.

Both the governor and Alexander-Scott doubled down on the mandate during a Thursday afternoon press conference. They said it was critical for health care workers to get fully vaccinated to protect patients.

Our enforcement starts day one tomorrow Oct. 1, said Alexander-Scott.

Alexa Gagosz can be reached at alexa.gagosz@globe.com. Follow her on Twitter @alexagagosz.

Originally posted here:
Judge denies health care workers' lawsuit asking RI to accept religious exemptions to COVID-19 vaccine mandate - The Boston Globe