Category Archives: Fourth Amendment

A man on horseback sufficiently alleged excessive force claims against a Lynchburg police officer who tased a him when he fled the attempted service of a permitted warrant, the Western District of Virginia found.

The officer moved to dismiss for failure to state a claim. But U.S. District Court Judge Norman K. Moon said the mans allegations were plausible and rejected the officers qualified immunity defense for now.

Taking all the allegations as true Plaintiff sufficiently alleges a violation of a clearly established constitutional right, the judge held. However, Defendant [] may raise qualified immunity again at a later stage in the proceedings.

In March 2021, the Lynchburg Police Department notified all units that a permitted warrant for an alleged protective order violation was outstanding for Steve Rucker Jr. A warrant is permitted if an officer is required to serve an individual and release them with a summons.

The notice to officers said Rucker was entering the city on horseback. Upon finding Rucker, an LPD officer activated his unmarked cruisers lights and siren. Rucker refused the officers request to stop. A chase ensued through downtown Lynchburg.

The chase lasted about seven minutes, and Rucker turned down about a dozen streets. A pursuing officer told Rucker that they just had paperwork for him. Another officer tried to tase Rucker. He missed and caused the horse to speed up to about 25 mph.

A few minutes later, LPD Officer Zachary Miller tased Rucker. The horse again sped up, and Rucker fell off after two blocks. While Rucker lay in the street, LPD Officer Michael Johnson Jr. jumped out of a nearby cruiser, but it began drifting toward a retaining wall.

Johnson hopped back into his cruiser, turned it hard right, and stepped on the accelerator. The cruiser rolled over Rucker, causing him multiple injuries that required hospitalization.

Rucker sued Miller and Johnson in the Western District of Virginia for excessive force under 42 U.S.C. 1983, as well as state law claims for gross negligence, willful and wanton misconduct, and battery.

Arguing that Rucker failed to state a claim and that qualified immunity shielded him from liability, Miller moved to dismiss.

Excessive force

All claims that law enforcement officials have used excessive force deadly or not in the course of an arrest, investigatory stop, or other seizure of a free citizen are properly analyzed under the Fourth Amendments objective reasonableness standard, Moon explained.

The court must consider the severity of the crime at issue, whether the suspect poses a threat to the safety of the officers or others, and whether the suspect is resisting arrest or attempting to flee arrest.

A court must also consider that officers must make split second judgements in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation, the judge added.

Moon said the first factor weighed heavily in Ruckers favor because he was not wanted for any crime when the pursuit began.

The circumstances of the alleged protective order violation were not detailed; nothing established that Rucker committed or was suspected of committing any violent or other serious crime.

The second factor also favored Rucker. Moon noted that the allegations did not indicate Rucker was armed, violent or a threat to officers or the public, nor was there a suggestion that Rucker was riding in a violent or reckless manner.

The officer claimed that riding a horse at night through traffic posed a danger. Moon was not swayed but acknowledged that further facts may support a different conclusion.

The third factor also tipped in Ruckers favor, Moon said.

Plaintiff does not suggest he was resisting arrest, but merely avoiding service of a summons, the judge noted. Plaintiff argues that he was also not fleeing arrest because there was no arrest to begin with. Again, considering the allegations in the light most favorable to Plaintiff, the factors demonstrate a plausible claim of excessive force against Defendant Miller.

Moon then pointed out that, according to the 4th U.S. Circuit Court of Appeals, using a taser is a serious use of force that should only be deployed in dangerous situations.

The Fourth Circuit further held that [t]asers may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk and that is reasonably likely to be cured by using the taser, the judge wrote.

Based on its analysis, Moon found that Rucker did not pose a safety risk to the officer or the public to warrant use of a taser.

Qualified immunity

Rucker claimed he sufficiently alleged a violation of a clearly established constitutional right. As such, Miller was not entitled to qualified immunity. Rucker also contended that the court should wait to decide on qualified immunity until the record was more developed.

Moon acknowledged that excessive force by police is a clearly established violation of the Fourth Amendment and that use of a taser except in exceptional circumstances is excessive force.

Thus, as Plaintiff has sufficiently alleged an excessive force violation and Defendant is not entitled to qualified immunity at this stage in litigation, Defendant Millers motion to dismiss will be denied as to the excessive force claim, Moon wrote, adding that the officer may raise qualified immunity at a later stage in the proceedings.

Richmond litigator Mark Dix, who represents Rucker, said his client was hospitalized for almost a month and incurred more than $288,000 in medical bills from his injuries.

We are very confident that qualified immunity would not provide any kind of obstacle to us getting to the jury, he told Virginia Lawyers Weekly. The 4th Circuit has been clear as day since 2016 in Armstrong v. Village of Pinehurst that you do not use a taser to enforce compliance.

He pointed out that his brief cites scholarship about qualified immunity being based on factual fiction.

It turns out that this doctrine of qualified immunity was based upon somebody altering the United States Code in the late 1800s or early 1900s, but the 4th Circuit found it was bound to apply stare decisis, Dix explained. At some point, courts are going to have to grapple with the sordid history of how 1983 was altered.

He noted that there are cases about the validity of qualified immunity making their way to the U.S. Supreme Court.

Dix said he has not received a settlement offer from the city. The case now proceeds to discovery.

The rest is here:
Tased horseman's excessive force claims clear bar Rhode Island ... - Rhode Island Lawyers Weekly

A couple of years ago, I shared a post on Facebook that mocked misinformation. The photo allegedly showed a 206-year-old Tibetan monk who had just been discovered alive in a mountain cave. The caption said he had been in a meditative state called takatet for years. It continued, Among his things, they found an old scroll that read, Stop believing all the crap you read on Facebook.

Recently, the post popped up as a memory on my Facebook page and I shared it again. This time, though, independent fact-checkers blocked it, writing, Independent fact-checkers say this information has no basis in fact. Well, duh!

Last Friday, the 5th U.S. Circuit Court of Appeals ruled against the Biden administrations suppression of information on social media platforms, including Facebook, YouTube and Twitter, regarding posts related to COVID-19 and allegations of election fraud. The ruling specifically applied to the White House, surgeon general, CDC and FBI.

Before the 5th Circuits hearing, a lower-court judge had ruled that U.S. officials illegally coerced social media platforms into censoring those posts. The 5th Circuit agreed, writing that such coercion violated the First Amendments free speech protections. The panel wrote, The government is not permitted to advance these interests to the extent that it engages in viewpoint suppression.

Initiated in July 2016, Crossfire Hurricane was likely the most egregious example of information-suppression and manipulation. The FBI operation occurred at the end of the Obama administration to smear Donald Trump during the 2016 campaign for president and inaugurate Hillary Clinton as president.

After four years of continual media and Democrat charges of Russian collusion, Special Counsel John Durham was appointed in October 2020 to investigate the origins of Crossfire Hurricane. Durhams final report was released May 15, 2023. It documented the roles played by Hillary Clinton, Barack Obama, James Comey and a host of other top administration officials to smear Trump with a Russian Hoax from the summer of 2016 to the end of his term in 2021.

President Biden didnt miss a beat on Jan. 21, 2021, when he began tearing down all that Trump had accomplished during his four years in office. Of course, as we have seen, Biden and his administration worked hand-in-glove with a complicit media to suppress all information that contradicted the establishments mantra about COVID-19, election interference and, the party favorite, climate change.

What can we expect between now and November 2024? Well see national emergencies that will serve as pretense for suspending First, Second, Third, Fourth, Fifth and 10th amendment rights. As weve seen, the courts have ruled the Biden administration has violated Americans right to freedom of speech. The right to bear arms has been under continual attack. New Mexico Gov. Michelle Lujan Grisham just decreed a temporary gun ban in parts of her state commenting that the Second Amendment is not absolute.

And what about our protection from illegal government search and seizure (Fourth Amendment)? Or, our Fifth Amendment right to due process? Ask Jan. 6 prisoners about their rights to a speedy trial as well as excess bail or fines and cruel and unusual punishment (Eighth Amendment).

The Bill of Rights protects Americans only as long as the government respects and abides by its constitutional limitations. Its absurd to give fact-checkers positions of adjudication.

Daniel L. Gardner is a columnist who lives in Starkville. Cntact him at PJandMe2@gmail.com.

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The absurdity of fact-checkers | Columnists | leader-call.com - leader-call.com

Technological advancements such as location tracking and DNA testing over the past 20 years have contributed to law enforcements ability to close a criminal investigation. But their use of facial recognition software in recent years has resulted in the wrongful arrests of seven Black people foreshadowing another potential form of racial discrimination in the criminal justice system, critics say.

Facial recognition is one of those things that we jumped on too quickly and it kind of just took over before we even knew it, said Thaddeus Johnson, an assistant professor of criminology and criminal justice at Georgia State University who, along with his colleague Natasha Johnson, published the only empirical research on facial recognition last October.

Like any form of technology, facial recognition a form of artificial intelligence likely will improve as it updates and evolves. Law enforcements use of it without thorough empirical research, however, may continue to be a threat against Black people and those with darker skin tones because the technology is unable to accurately distinguish facial features of different races.

Johnson and Safiya Noble, director of the Center on Race and Digital Justice and author of Algorithms of Oppression: How Search Engines Reinforce Racism, help us understand why they are sounding the alarm about law enforcements use of facial recognition.

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The first facial recognition technology was developed in the 1960s by Woodrow Wilson Bledsoe, Helen Chan Wolf, and Charles Bisson, who had an idea to have computers programmed to recognize faces. Bledsoe, a mathematician, received funding from the CIA to create the system, Observer reported. They programmed 10 photographs of different people, most likely white, into a database and trained the computer to learn how to divide a face into features, then compare the distances between those features to determine a specific face.

Over the next 60 years, facial recognition became more sophisticated in identifying skin textures and using 3D images. Now, the software has the ability to comb through more than 15 million profiles in the FBIs National DNA Index System, as well as databases created by facial recognition companies that scrub the internet and social media for the faces of billions of people.

Those software upgrades also contributed to todays biometric screenings or fingerprint access to cellphone applications and ATM machines. Home security systems, closed-circuit surveillance, computers any equipment with a built-in camera can have facial recognition software installed.

But when it comes to accurately detecting darker skin tones, the technology hasnt made significant improvements.

The kinds of people who are often making software, making products coming out of tech corridors around the world, have limited worldviews and lack exposure to lots of different kinds of people and we see that in every industry, Noble said.

Johnson said that facial recognition softwares algorithms are more than likely unconsciously biased to recognize features familiar to their programmer, who is most likely a white man. When the program is put to work in real life, it is most likely comparing images to databases that contain more Black and brown faces than the white ones its trained to recognize.

Without cultural education or exposure to different races and ethnicities, Noble said, software programmers will continue to create flawed facial recognition technology that in the long run will do more harm than good.

Facial recognition wasnt tested in the real world until 2001, when federal and local law enforcement in Floridas Tampa Bay area used it during that years Super Bowl. Its unclear why they decided to experiment at this event rather than other largely attended events such as New Years Eve in Times Square.

As the crowd of 71,921 fans entered the stadium, people stood still for their picture to be taken. Without their knowledge, the photographs were entered into a database seeking matches for criminal suspects. During the event, the system detected 19 people with outstanding warrants, but police were not prepared to make those arrests, a detective told The New York Times at the time.

That same year, the city of Tampa accepted a free, one-year trial of the facial recognition software used during the Super Bowl. City officials set up face scanners in their downtown entertainment district but did not find them to be effective because the program didnt have a database to compare images to, and the software couldnt keep up with trying to scan moving images on a public street, Vice reported.

The flaws in facial recognition technologies havent stopped law enforcement and customer-service based industries from continuing to use it.

Airports, businesses, social media, marketing, and cellphone companies use facial recognition technology for a variety of reasons that can be as insignificant as allowing users of an app to apply filters on photographs.

This year, the Transportation Security Administration announced that it will expand its facial recognition program to more than 400 airports across the country in the coming years. The pilot program, which is currently in 25 airports, has a 97% effective facial matching algorithm across demographics, including dark skin tones, a TSA press secretary told Fast Company in June.

Clearview AI is a facial recognition company that provides software to law enforcement and government agencies. Its collection of images amounts to a mega police lineup, critics told Business Insider in April. Clearview AI says it has collected 30 billion images from the internet, Facebook, and other social media without permission from the social media companies. Cease-and-desist letters were sent by Facebook and other social media companies to Clearview AI for violating users privacy.

Critics are also concerned with threats of cybersecurity hackers maliciously breaking into facial recognition databases to steal personal information.

But Noble said whether we like it or not, everybodys face is in facial recognition databases with or without their consent if they are on social media. If they have any photos of themselves up anywhere online, including photos they did not post of themselves but that others posted, those are all available to a variety of different kinds of agencies.

Johnson said that facial recognition is a very good tool for getting a lead into solving a crime, and its law enforcement use should be restricted to case detectives and investigators. But the problem is we are so blindly trusting AI that generally the police just use it. Thats why there needs to be regulations, he said.

We are not sure if theyre calibrating their equipment correctly. Were not sure of the training of the people who are using these technologies. What about officers who have body-worn cameras on thats doing this real-time recording but are also equipped with this mobile facial recognition? [The officers are] basically a walking and talking constitutional violation of sorts, Johnson said.

The most well-known case where facial recognition was a leading contributor to accurately identifying suspects was following the Jan. 6, 2021, insurrection upon the U.S. Capitol in Washington, D.C. Federal law enforcement officials were able to identify well over 1,000 mostly white people accused of breaching the U.S. Capitol and assaulting several law enforcement officers, The Washington Post reported. Investigators used facial recognition technology to match the suspects images from that day to photographs and videos found of them on social media. In some cases, a states Department of Motor Vehicles database of drivers license photos were used to match suspects.

There are no reports of any of the Jan. 6 suspects filing a wrongful arrest lawsuit due to the use of facial recognition.

Legal experts saw the Super Bowl debut of facial recognition technology as a violation of privacy. Those Fourth Amendment concerns persist more than 20 years later, especially since there havent been any proposed federal regulations on how to use the technology without violating individuals civil rights.

The White Houses Office of Science and Technology Policy released in October 2022 a nonbinding Blueprint for an AI Bill of Rights that provides five principles on the design, use and deployment of automated systems to protect the American public in the age of artificial intelligence.

But in a December 2022 conversation hosted by the Brookings Center for Technology Innovation, legal experts criticized the White Houses initiative for leaving out guidance for law enforcement agencies use of artificial intelligence, specifically facial recognition.

Excluding law enforcement may continue the oversurveillance of certain populations, communities, and individuals under the guise of public safety and national security and will not necessarily reduce the history and manifestation of rampant discrimination against people of color and immigrants. If law enforcement were included in the Blueprint provisions and guidance, it could have offered new guardrails and agency for individuals left with little recourse when misidentified and/or scrutinized by existing and emerging AI technologies, according to commentary of the Brookings Center for Technology Innovations online event.

The Jan. 6 investigation could imply that facial recognition works well, but if it continues to misidentify Black people or individuals with darker skin tones, it does not, critics say. The 2018 Gender Shades study showed that off-the-shelf facial recognition software systems that companies and law enforcement use have low efficacy when it comes to detecting Black womens faces, and Black people in general, but are more reliable for white mens faces.

There are already practices and policies that are inequitable and result in inequitable outcomes. Why the hell do we think that facial recognition technology will make that better? No, it only exacerbates those things, said Johnson, who was previously an acting police captain in Memphis, Tennessee.

Though there arent any reported cases of a wrongful conviction connected to the use of facial recognition, since 2018 there have been six Black men and a Black woman who have been subjected to days in jail after a facial recognition match falsely connected them to felony-level crimes. In the years to follow, police departments within predominantly Black cities in Louisiana, Maryland, Michigan and New Jersey have been accused of and sued for false arrests due to the use of facial recognition technology.

The number of people who are ensnared relative to the millions of people for whom theres no problem means that the seven people who are falsely accused or imprisoned are just kind of like collateral damage to these companies, Noble said. And Im sure they do their calculus on it and say, Well, if we have to settle some lawsuits, its cheaper than redesigning the product. So we become our communities become the collateral damage.

Apple Inc. was one of the first business entities slapped with a wrongful arrest lawsuit that stemmed from the use of facial recognition to identify a possible suspect in a string of store robberies throughout the Northeast. Ousmane Bah, an 18-year-old college student in New York, sued the tech company for $1 billion after he said he was falsely arrested in 2018. The New York Police Department made the arrest based on a photograph of the possible suspect Apple turned over to police. The police allegedly agreed that the person in the picture did not look like Bah, Business Insider reported. The lawsuit was voluntarily dismissed, with prejudice against the defendant(s) Apple Inc. in 2021, according to online federal court records.

One of three cases out of the Detroit Police Department was that of Porcha Woodruff, who at the time of her arrest was eight months pregnant and questioned for 11 hours about robbery and carjacking accusations she knew nothing about. Woodruff, Robert Williams, and Michael Oliver had similar experiences with Detroit police and are each suing.

I think we should have a moratorium on facial recognition technologies until it can be determined that they are safe and used in ways that are safe. There are many people who think that facial recognition technologies, myself included, should be made illegal because theyre too consequential in the current ways that theyre used. Bans on facial recognition is actually a public safety imperative, Noble said.

In March, Democratic Reps. Pramila Jayapal of Washington state and Edward Markey of Massachusetts reintroduced the Facial Recognition and Biometric Technology Moratorium Act to the House. The bill would place a moratorium on law enforcement use of facial recognition until policymakers create regulations and standards that protect constitutional rights and public safety. This is the third time the bill has been presented.

In the interim, several cities across California and Massachusetts, including San Francisco and Boston, have passed laws that ban or restrict law enforcement from using facial recognition technology.

Virginia and New Orleans reversed their short-lived facial recognition bans. In Virginia, lawmakers used the eight-month ban to evaluate the technology and create policies that include having corroborating evidence with a facial recognition match before pursuing the match as a lead.

Johnson said he is currently working on research that explores the possibility of facial recognition being used to further assist in solving crimes and perhaps put an end to the no-snitching culture. Violent crimes such as murder, sexual assault, and hate crimes tend to go unreported and unsolved in Black and brown communities because of historic distrust of the criminal justice system and fear of retaliation.

Theoretically, Johnson said, facial recognition technology can help identify witnesses and victims of crime and amplify the work of police departments across the country, if used correctly.

It [facial recognition] should be helpful, but we just dont have enough research, and Ive cautioned against wildly deploying these things and doing so without even having an inkling of an idea if it has any public safety value, scientifically, Johnson said.

Capital B is a nonprofit news organization dedicated to uncovering important stories like this one about how Black people experience America today. As more and more important information disappears behind paywalls, its crucial that we keep our journalismaccessibleandfree for all. But we cant publish pieces like this without your help. If you support our mission, please consider becoming a member by making a tax-deductible donation.Thank you!

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Results of Democrats policies all around us

A writer to the Union (Community, Sept. 8, 2023) is correct that after many years of walking in local Fourth of July parades as a registered Henry County Democrat, I was absent this year. The parades are truly a fun and patriotic celebration of the Fourth.

The writer is wrong to infer there is no Democratic presence on the parade route. Most of those lining the streets have benefited from the policies of Democratic administrations.

Many would not be at the parade if it were not for the hard fight by Democratic Presidents Franklin Roosevelt and Lyndon Johnson to provide Social Security, Medicare and Medicaid. Before these landmark initiatives many seniors moved in with the kids, died in abject poverty or were shipped off to the county poor farm. These were not Republican ideas and, in fact, Republicans have subverted them for decades as the wealthy don't want them.

Many children on the parade route have benefited from food stamps and Head Start. Thank Roosevelt, Johnson and John F. Kennedy for these vital Quality of Life programs.

Most Iowa communities have subsidized housing for those in need. Initiated by Kennedy and affirmed by Johnson and a Democratic Congress the Department of Housing and Urban Development provides for the housing. Republicans annually attempt to slash the budget.

Nutrition programs and congregate meals are the work of the Democratic Older Americans Act.

Who on the parade route does not know of friends and neighbors who are disabled? Iowa Democratic Senator Tom Harkin championed the ADA (Americans With Disabilities Act.) This was not a Republican idea and many opposed it as hotel and restaurant campaign contributors did not want to foot the bill for doorways, ramps and restrooms.

Roosevelt and Henry Wallace initiated Depression era farm programs heralded today. And, even with the expense of these programs Bill Clinton is the only President in recent memory to actually balance the Federal budget.

Republican and insurance industry kingpins fought Obamacare which provides insurance to many in need.

Locally, the Vision Iowa Program of Governor Tom Vilsack was critical to the Old Threshers carousel and our Salem library. Iowa Republicans axed the program.

Today, President Biden has dramatically lowered the cost of insulin and in a tough fight with Republicans and drug company profiteers is lowering the cost of ten of the most widely used medications.

I have proudly marched in dozens of Henry County parades. I join many in waving the flag for the achievements and policies of our nation's Democratic leaders.

David Hellman

Salem

Dont like direction of Fairfield

What does Fairfield have against the poor and elderly? There have been two articles in recent weeks that have me questioning just what Fairfield has against the poor and elderly.

The first was an article notifying the public of an upcoming vote on the Capital Improvements Levy. The levy is currently at $0.37 per $1,000 dollars of assessed value. The proposal is to raise it to $0.68 per $1,000 dollars of assessed value. I can understand needing some sort of an increase, as these levies are for 25 years, but almost double? And that is coming on top of the new assessment, during a spike in inflation and high gas prices. Even if you are a renter and not an owner, you will be affected. Your rent will go up.

Next up in the why-does- Fairfield- hate-poor & elderly docket is the proposed maintenance ordinance. The City Council is overreaching with this. The Government has no right to take people's homes. Look at the Fourth Amendment to the U.S. Constitution which guarantees our right to be free from unreasonable search and seizure. As long as my activities are not illegal, what happens in my home is no one else's business. And to say that the Government can seize my home because it is in poor repair, not only violates my rights, it places an unfair burden on one sector of the population. It is in effect, telling the poor and elderly, that you have no right to home ownership.

Does the City of Fairfield really believe that if people had the means and opportunity, especially the opportunity, to make repairs that they wouldn't have already done so? The City has put the new fire station off because of high building costs but then turns around and punishes others for the same thing? It is well and good to claim that there are grants available but we all know that is going to apply to a very small number of people. Others, in an effort to keep their homes, will be forced into HELOCs or loans of which they cannot afford the payments.

Then, under the pretext that if the exterior is "bad" the interior needs inspection too, they can force their way into your home like you are a common criminal. Being poor and elderly means you lose your rights.

I grew up in small town Iowa during Governor Ray's reign. We were proud of our ability to "make do, use it up or do without." This has been a large part of the American Way. Now it will no longer be tolerated in Fairfield. Now it is "fall in line or we take your house.

Dianne Brandt

Fairfield

Opinion content represents the viewpoint of the author or The Gazette editorial board. You can join the conversation by submitting a letter to the editor or guest column or by suggesting a topic for an editorial to editorial@thegazette.com

Continued here:
Letter to the editor - Southeast Iowa Union

A petition was created on Change.org on Sept. 12 to oppose the use of Chainalysis forensic services by federal agencies. The petition questioned Chainalysis accuracy and raised legal issues related to the activities of the blockchain data analysis firm.

The petition, started by Stop Chainalysis, stated that Chainalysis software assists crime prevention efforts by linking the real world to crypto payments. It stated:

The petition claimed that Chainalysis findings do not meet the Daubert standard for expert testimony in United States courts established by the U.S. Supreme Court in 1933, that its error rate is unknown, that it has not been subject to peer review and that it uses potentially faulty methodology.

Related: Chainalysis exec touts blockchain analysis to Senate homeland security committee

The technical problems with the service lead to potential privacy violations, the petition argued:

The use of unreliable technology constitutes a violation of the Fourth Amendment requirement of probable cause to issue a warrant for search and seizure and the Bank Secrecy Act, to which exceptions are granted based on the presence of suspicious activity, it said.

The petition listed seven U.S. federal agencies that had used Chainalysis services.

The petition was first publicized by Lola Leetz, a pseudonym stylized as L0la L33tz on X (formerly Twitter), who has been a vocal critic of the company. The X user is not alone in their criticism. In August, CipherTrace director of investigations and intelligence Jonelle Still submitted a report in the case of the United States v. Roman Sterlingov that claimed Chainalysis technology was used incorrectly to link Sterlingov to the Bitcoin Fog cryptocurrency mixer.

Magazine: Tornado Cash 2.0: The race to build safe and legal coin mixers

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Petition hopes to stop US government agencies from using ... - Cointelegraph

Courtesy of Wikimedia Commons | The repercussions from the aftermath of 9/11 have been passed on to the next generation.

Zach Petroff | Opinions Editor

I am often reminded, usually in jest, that most of my fellow classmates here at Duquesne were not alive on Sept. 11, 2001.

And while a vast majority of Generation Z were born before the events that took place 22 years ago, the aftermath from 9/11 will be their burden.

As if climate change is not enough.

There is little doubt that when a foreign organization committed an act of terrorism on American soil, killing 2,977 people according to the 9/11 Memorial and Museum, it changed this country.

Much has been written since 9/11 about the residual effects it has had on society. These views range from romanticized narratives of selfless heroes and patriotism to the belief that 9/11 was the catalyst of the decline of America.

While these arguments invoke an emotional response, perhaps its time we focus the conversation around the potential consequences Gen Z may have to face.

Instead of speculation, the newest generation of adults need to have a clear picture of the society they are going to inherit and the repercussions that came with how we chose to handle the attacks on Sept. 11.

The choice to invade Iraq has been referred to as one of the worst foreign policies in U.S. history by several public officials, including former United States Foreign Service employee, Peter Van Buren, Vermont Sen. Bernie Sanders and former Senate Majority Leader Harry Reid. The invasion of Iraq along with the global war on terrorism is a direct result of 9/11.

The Watson Institute for International and Public Affairs at Brown University created the Cost of War Project to conduct and publish research about the ongoing consequences of the U.S. post 9/11. The Cost of War Project estimated, in a report released in 2020, that the total cost of the war on terror was $8 trillion.

The project also calculated that the interest payments to the national debt to fund the war could total over $6.5 trillion by the 2050s.

We put a war on a credit card and now are asking our children and grandchildren to pay for it.

Our foreign policy in the Middle East also led to destabilization in that region. The Cost of War Project estimated in 2021 that there were 3.6 to 3.8 million indirect deaths in post-9/11 war zones including Afghanistan, Pakistan, Iraq, Syria and Yemen.

It seems plausible that those countries will one day seek retribution for the actions of the U.S.

We also need to remind Gen Z that Guantanamo Bay is still operational.

The U.S. detention facility on the Guantnamo Bay Naval Base in southeastern Cuba was created in 2002 to house Muslim militants and suspected terrorists captured by U.S. forces.

Since the base was built outside the U.S. it was not required to observe the Geneva Conventions regarding the treatment of prisoners of war and civilians during wartime, as the conventions did not apply to unlawful enemy combatants.

According to a United Nations investigation conducted in June there were 30 men who remain detained at Guantanamo, 19 of whom have never been charged with a crime.

The lead investigator for the United Nations, Fionnuala N Aolin, reported that prisoners face ongoing cruel, inhuman and degrading treatment.

She also recommended that the facility should be shuttered, a task that former President Obama campaigned on, but was ultimately unable to achieve.

Hopefully Gen Z can bring some sanity to the situation.

There should also be a discussion about the PATRIOT Act, another lingering and perhaps the most damaging byproduct of 9/11.

This law, upheld by the Supreme Court, expanded surveillance abilities of law enforcement, including domestic and international phone tappings. It also increased the penalties for terrorism crimes and expanded the list of activities which would qualify for terrorism charges.

The American Civil Liberties Union found that between 2003 and 2006 the FBI issued 192,499 national security letters that allowed them to obtain personal information without the approval of a judge. Of those letters issued, only one led to a terror-related conviction. They also concluded the conviction would have occurred without the use of the Patriot Act.

The ramifications of the PATRIOT Act fundamentally changed the scope of the Fourth Amendment. As technology becomes more commonplace, the ability for unlawful searches conducted by the federal government to greatly expand.

While 9/11 may seem like a distant memory, the rippling effect has spanned multiple generations.

It seems like a natural courtesy to give the upcoming adults an honest assessment of the world we created for them.

See more here:
Passing on the legacy of 9/11 to the next generation The ... - The Duquesne Duke

Bottom Line

At the end of this year, Americas most important intelligence tool is set to expire. Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows the government to collect signals intelligence on foreign targets, even when that collection includes communications with Americans. However, Section 702 needs congressional approval to continue, and vocal critics both inside and outside Congress consider Section 702 unconstitutional.

On July 21, 2023, the government released a redacted version of the Foreign Intelligence Surveillance Courtys (FISC) most recent opinion (dated April 11, 2023) addressing the governments request for continued Section 702 surveillance authority. The opinion likely represents the FISCs last word before Congress decides whether, or on what terms, to reauthorize Section 702 before the authority expires on December 31, 2023.

Congress should reauthorize Section 702 because this critical intelligence collection program is conducted only in accordance with a carefully structured compliance regimen designed to minimize intrusions into US persons privacy interests. Every court to have considered the question has concluded that operating the Section 702 program using this compliance structure is reasonable under the Fourth Amendment of the Constitution.

Evaluating the significance of the FISCs conclusions requires some understanding of how Section 702 permits the government to acquire foreign intelligence information by targeting the communications of non-US persons reasonably believed to be located outside the United States. Conversely, the targeting of any US person, anywhere, at any time isspecifically prohibitedby Section 702. However, asCongress recognized, Section 702 acquisitions of foreign communications would also incidentally acquire the communications of those US persons communicating with foreign targets, and these communications, like those of the foreigners actually targeted, also are stored in the Section 702 database retained by the National Security Agency (NSA) which is the lead agency for Section 702 collection.

Since the foreign targets of Section 702 surveillance have no Fourth Amendment rights, neither probable cause nor a warrant are required to justify any particular targeting decision. Instead, to protect the rights of those Americans whose communications are incidentally acquired during authorized Section 702 acquisitions, Congress required that the attorney general adopt procedures that minimize the acquisition, retention, and dissemination of information concerning unconsenting US persons. These minimization procedures, along with targeting and querying procedures (the latter added by Congress as part of its 2017 reauthorization of Section 702), comprise the statutory architecture Congress created to protect the Fourth Amendment rights of those non-targeted US persons whose communications are incidentally collected during the course of lawful Section 702 acquisitions. The targeting, minimization, and querying procedures used with any Section 702 acquisition must be reviewed and approved by the FISC as consistent with the requirements of the Fourth Amendmentboth as written and as applied by each agency with access to Section 702-acquired communications.

The scope of incidental collection is not insignificant because Section 702 is a large, programmatic surveillance program collecting hundreds of millions of communications from its 246,073 foreign targets,so the number of incidentally acquired US person communications is also sizable. It is this incidental collection of US person communications acquired during the course of lawful Section 702 acquisitions directed at foreign targets, and, more specifically, the subsequent handling of those communications by US intelligence agencies, that lie at the heart of the debate over whether Congress should reauthorize Section 702 and, if so, in what form.

The Section 702 database maintained by NSA represents a sort of primordial vat where communications collected pursuant to FISC-approved certifications reside anonymously until retrieved by querying. The Director of National Intelligences most recent Annual Statistical Transparency Report describes a query as a basic analytic step foundational to efficiently and effectively reviewing data lawfully collected and already in the governments possession. In other words, the content of any particular communication in the Section 702 database and the identities of the participants in that communication, including the incidentally collected communications of US persons, are unknown until a query is initiated that extracts that communication from the database. Four agencies, NSA, CIA, the National Counterterrorism Center (NCTC), and the FBI, have access to all or some part of the communications stored in the Section 702 database.

Notably, the FBI, whose querying practices have been scrutinized, and criticized, repeatedly in FISC opinions receives access only to those communications actually generated by the particular targets that the FBI has nominated for collection based on their association with fully predicated national security investigations. In calendar year 2022, for example, this afforded the FBI access to only 3.2 percent of those Section 702 targets.

Of those agencies having access to Section 702-acquired information, only the FBI has a dual mission covering both foreign counterintelligence and law enforcement, and its use of Section 702 information has been the subject of vigorous criticism from Section 702 opponents both in and out of Congress. These opponents argue that the FBI wrongfully uses its access to Section 702-acquired communications to conduct back door searches directed at American citizens in violation of the Fourth Amendment. The FBI has an admittedly checkered record of past compliance with the querying requirements designed to protect the privacy interests of US persons but, over the past twenty-four months it has implemented a series of remediation measures intended to address its previous compliance issues. While identifying and disclosing compliance violations means little in the absence of discernible progress in remedying those violations, the returns on these FBI reform measures have been positive. As the FISC noted in its April 2022 Section 702 opinion released in redacted form by the Office of the Director of National Intelligence in May 2023, the Court is encouraged by the amendments to the FBIs querying procedures and the substantial efforts to improve FBI querying practices, including heightened documentation requirements, several system changes, and enhanced guidance, training, and oversight measures. There are preliminary indications that some of these measures are having the desired effect.

Similarly, the FBI querying statistics contained in the 2023 Annual Statistical Transparency Report reflecteda 96 percent reduction in the FBIs use of US person query terms in 2022, the first full year in which all of the aforementioned FBI compliance measures were in effect, are equally indicative of improved compliance performance. These improvements are also corroborated in a recent release by the FBIs Office of Internal Auditing which, in its first report documenting the FBIs compliance performance following the remediation efforts implemented in 2021-2022, announced that the FBI had a 96 percent compliance rate for FISA queries, a 14 percent improvement from [Office of Internal Auditing]s first baseline audit, which was conducted before the reforms.

The FISCs assessment of whether the compliance efforts of the executive branch, and most particularly the FBI, have continued to improve in executing the statutory and regulatory regimen designed to protect the Fourth Amendment rights of US persons should represent an influential consideration in the ongoing debate over the reauthorization of Section 702. Since Section 702 certification approvals by the FISC generally extend for one year, the FISCs most relevant assessment of the governments compliance performance is reflected in its review of the most recent request for new and reauthorized surveillance authority under Section 702 and is recorded in its recently released April 2023 opinion. After a thorough analysis, the court approved the certifications making these specific findings.

And, perhaps most significantly,

In sum, the FISC approved the governments requests for Section 702 surveillance authority as consistent with both FISAs statutory mandate and with the requirements of the Fourth Amendment.

Notwithstanding the FISCs conclusion that the procedures governing the acquisition and handling of Section 702-acquired communications satisfy the Fourth Amendment, most of the headlines covering the release of the courts opinion read like these appearing in, respectively, The New York Times, the Washington Post, and the Wall Street Journal.

All these headlines were generated by a half-page discussion in the FISCs opinion about three compliance incidents involving FBI querying practices. In one instance, in June 2022, an FBI analyst conducted four overly broad searches of a US senators last name against that part of the Section 702 database to which the FBI has access. The analyst also searched the database using the last name of a state senator. In each instance, the analyst had specific information that these legislators were being targeted by a foreign intelligence service, but Justice Department compliance inspectors concluded that the FBI querying standard was not satisfied. The third incident involved a Staff Operations Specialist running a single query using the Social Security Number of a state judge who had complained to the FBI about alleged civil rights violations committed by a municipal chief of police. The FISC concluded its half-page discussion of these incidents saying, despite the reported errors, there is reason to believe that the FBI has been doing a better job in applying the querying standard while observing that the government has not reported compliance violations of a comparable magnitude to those identified in the FISCs 2018 and April 2022 opinions.

Despite the FISCs conclusions, critics and media outlets persistently describe the Section 702 collection program as warrantless surveillancean appellation suggesting some sort of evasion of the Fourth Amendments warrant requirement. But this is accurate only in the same literal sense as saying I have an unlicensed microwave oventechnically true, but legally irrelevant because there is no legal requirement that my microwave has a license, just as there is no legal requirement that authorized Section 702 acquisitions be accompanied by a warrant. As the FISC has observed,

The touchstone of the Fourth Amendment is reasonableness [and] although [t]he warrant requirement is generally a tolerable proxy for reasonableness when the government is seeking to unearth evidence of criminal wrongdoing it fails to properly balance the interests at stake when the government is instead seeking to preserve and protect the national security.

The Fourth Amendment offers no guarantee that a warrant will be an essential prerequisite to a government search or seizure that might impact individual privacy interests. The FISC has repeatedly concluded that Section 702 acquisitions do not require a warrant, and all three federal appeals courts to have considered the issue have held that the incidental collection of US persons communications under Section 702 is reasonable and does not require a warrant.

The courts issuing these rulings all have recognized that the correct Fourth Amendment analysis for electronic surveillance conducted for foreign intelligence purposes examines the programmatic purpose served by that surveillance, whether that purpose serves a legitimate objective beyond routine law enforcement, and whether that purpose would be frustrated by insisting upon a warrant. Thus, the foreign intelligence focus of Section 702 surveillance triggers an entirely different reasonableness assessment under the Fourth Amendment than that used either for law enforcement purposes or to determine whether a US person can be targeted as an agent of a foreign power under the traditional electronic surveillance provisions of FISA first enacted by Congress in 1978.

Similarly, in the context of queries employing US person identifiers that are used to find and extract foreign intelligence information from the database of Section 702-acquired communications, this analysis recognizes both the existence of a foreign intelligence exception that exempts the query from the law enforcement-based warrant requirement, and that the application of court-approved minimization and querying procedures serves to make the querys intrusion into individual privacy interests reasonable when balanced against the governments interest in national securityan interest repeatedly recognized by the courts as being of the highest order.

In 2017, Congress added the requirement that agencies having access to the Section 702 database develop and use Querying Procedures to govern the act of querying that database to retrieve information. While asserting that the Fourth Amendment did not require such procedures, Congress implemented the querying procedures requirement as a compromise meant to provide additional protections for US person information that is incidentally collected under section 702. In its April 2023 opinion, the FISC amplified its previous conclusion from 2018 that the Querying Procedures expand statutory protections, not the scope of what constitutes an independent search under the Fourth Amendment. As the FISC has noted, the insistence that queries employing the use of US person identifiers represent an analytically separate Fourth Amendment event must be examined through the totality of circumstances that governs the Fourth Amendment reasonableness assessment. In the context of a query using a US person identifier to extract foreign intelligence information from the Section 702 database, such an assessment demands recognizing and acknowledging that the query is employed in examining information already lawfully acquired under a statutory framework that requires a judicial determination that the totality of attendant circumstances, including the acquisition retention and dissemination of such information, is reasonable. As the FISC now has repeatedly concluded, under such circumstances no warrant is constitutionally required.

As Congress considers whether Section 702 should be reauthorized and, if so, in what form, the outcome of that debate will reflect, at least in part, whether legislators are more influenced by the headlines describing the FISC opinion or by the FISCs actual analysis and conclusions. Section 702 opponents seized on the headlines to argue that even if the FBI had achieved perfect compliance with its rules, that wouldnt obviate the need for a warrant. But the FISC opinion bluntly repudiates that position and specifically concludes that the FBIs and other agencies implementation of their Section 702 procedures is consistent with statutory and Fourth Amendment requirements. Simply put, the FISCs last word before Section 702s sunset date is that the Fourth Amendments standard of reasonableness does not require a warrant either prior to acquiring communications pursuant to FISC-approved Section 702 certifications or for queries of those acquired communications using US person query terms that are reasonably designed to retrieve foreign intelligence information.

The evolution of technology and threats confronting the United States has only increased the importance of Section 702 in protecting national security. Initially focused principally on counterterrorism, Section 702 now provides critical reporting on Russian atrocities in Ukraine, Chinese threats to Taiwan, the fentanyl crisis, persistent interference in US elections by foreign actors, Russias global program of malign influence, Iranian nuclear efforts, North Korean nuclear and missile proliferation concerns, and the destabilizing impacts of climate change. Section 702 reporting now provides over 95 percent of the FBIs technical reporting on malicious cyber actors and more than 90 percent of its reporting on emerging technologies, including artificial intelligence. At a time when China has a bigger hacking program than every other major nation combined, Section 702 provides indispensable intelligence to assist in protecting US infrastructure, corporations and financial institutions from malicious cyber activity.

All of this explains why the Presidents Intelligence Advisory Board recently reported that history may judge a congressional failure to reauthorize Section 702 as one of the worst intelligence failures of our time. The board also noted that saddling a renewed Section 702 with a warrant requirement that is neither practical nor constitutionally necessary is unjustified. Congress may continue to address civil liberties concerns, for example, by requiring that the remediation measures that have produced the FISC-acknowledged improvement in the FBIs compliance performance be formally included in the statutory fabric of Section 702.

What Congress should not dowhat the FISC has clearly said is constitutionally unnecessary and the Presidents Intelligence Advisory Board has said is impractical and unjustifiedis shackle the critical querying function used to extract the communications collected by this indispensable intelligence tool with a prior requirement for a warrant or other form of court order where queries using US person identifiers are undertaken for the purpose of retrieving foreign intelligence information.

The views expressed in this article are those of the author alone and do not necessarily reflect the position of the Foreign Policy Research Institute, a non-partisan organization that seeks to publish well-argued, policy-oriented articles on American foreign policy and national security priorities.

Image: Photo byHarold MendozaonUnsplash

Excerpt from:
Congress Should Reauthorize a Key Intelligence Tool - Foreign Policy Research Institute

Kansas City police arrested at least four people on invalid warrants in 2021 following its transition from one tracking software program to another, The Missouri Independent has learned.

Its unclear from the records obtained by The Independent how many individuals were mistakenly arrested. The department had been warned of possible technical issues that could lead to false arrests, according to a court official who said those risks were ignored.

In March 2021, then-Deputy Police Chief Mike Hicks emailed staffers at City Hall asking for information technology employees to help troubleshoot issues with the warrant entry and cancellation process.

Over the past several weeks, KCPD has arrested four persons for municipal warrants that showed as valid that were later determined by the Municipal Court to not be valid warrants, Hicks said in the email, which was obtained by The Independent.

He went on: This is a priority due to the liability exposure of arrests made on warrants that were supposed to be canceled in MULES.

MULES is the Missouri uniform law enforcement system, a statewide communications system managed by the Missouri Highway Patrol.

The problem arose when the department switched from its previous warrant program, REJIS, to MULES, according to the email thread, which included members of theKansas City Police Departmentand city officials.

Megan Pfannenstiel, director of the municipal court, replied to others on the thread that a year and a half after the switch she was bringing up many issues of individuals falsely arrested or held because the warrants are not being cleared from MULES.

Pfannenstiel said in the 2021 email that the police department had been warned such an issue was possible when it switched systems.

The group tasked with this project were in such a hurry to cut ties with the REJIS systems they appeared to ignore the raised concerns and have increased the citys costs, Pfannenstiel wrote. Even knowing the potential pitfalls, KCPD went forward with the projects.

Hicks email does not include the names of the affected individuals.

The emails were provided to the Metro Organization for Racial and Economic Equity, or MORE2, by the Kansas City Police Department as part of a request under Missouris Sunshine Law. They were then turned over to The Independent.

Officer Alayna Gonzalez, spokeswoman for the Kansas City Police Department, said in an email to The Independent that determining how long the issue may have gone on would require searching through emails to and from Hicks, who is now retired.

It would take a lot of time, she said, to attempt and identify the length of time this occurred.

Asked about the courts warning before KCPD switched systems, Gonzalez said as technology advances, the department adapts to ensure we are utilizing our web applications and software effectively and efficiently.

MULES continues to be updated by (the Missouri State Highway Patrol) and the transition has been largely successful, she said.

Gonzalez said the department will continue to work tirelessly to ensure the communitys safety and privacy.

In an interview with The Independent, Pfannenstiel estimated between six and 12 people were either mistakenly arrested on warrants that had been canceled or interacted with police and were let go despite having an active warrant for their arrest.

She estimated the people mistakenly arrested were each held for a few hours.

Pfannenstiel said she wasnt sure if similar mistaken arrests happened before KCPD stopped using REJISs software, but said it was less likely because the court also uses REJIS, meaning the systems communicate easily.

The issue stemmed from a workaround after KCPD dropped REJIS. Following the switch, the municipal court generates a report every 15 minutes and sends it to the Missouri Highway Patrol to upload to MULES, but mistakes in the reports led the patrol to be unsure how to update the warrant information, leading to wrongful arrests, Pfannenstiel said.

Ben Trachtenberg, associate dean of academic affairs and a professor at the University of Missouri School of Law, said in an interview that, under U.S. Supreme Court precedent, such an arrest could violate a persons Fourth Amendment right if the police department were found to be reckless.

The Fourth Amendment protects against unreasonable searches and seizures, including arbitrary arrests.

The Supreme Court ruled 5-4 in 2009 that anarrest stemming from a bad warrant isnt necessarily a Fourth Amendment violationif the person was arrested based on reasonable but mistaken assumptions. The amendment does not demand all possible precision, Chief Justice John Roberts wrote in the majority opinion.

Justice Ruth Bader Ginsberg wrote in dissent that the majority underestimated the need for a forceful rule barring evidence obtained through an illegal search from being used against a defendant in court and the gravity of recordkeeping errors in law enforcement.

Jamie Cook, associate general counsel for the police department, suggested a temporary fix in reply to the 2021 email thread. The city, she said, could pay REJIS to transfer all warrant entry and warrant cancellation transactions to MULES.

However, this does cost money, Cook said.

Pfannenstiel told those on the email thread that the court which, at the time, had a budget less than 1/10th the size of KCPDs did not have the funds to pay for the fix.

The city allocated $254.6 million to police during the 2021 fiscal year compared to $18.3 million for the court. In the current fiscal year, the courts budget is less than 1/20th the size of KCPDs.

I do agree that the city is at a substantial risk for arresting someone on an invalid warrant, Pfannenstiel said in her 2021 email, but again, that is not necessarily the courts problem to solve at this point.

The email does not specify how much the solution Cook suggested would cost.

Pfannenstiel told The Independent this week that, at the time of the email exchange, she was frustrated.

I was bringing up these concerns, butnobody was, kind of, acting on it at my speed of trying to say we need to make this a high priority, she said.

Pfannenstiel said she recently received a report where there should have been a warrant out for an individual, but it didnt show up in MULES. An officer came in contact with the individual but didnt know to take them into custody.

But she said that was better than mistaken arrests because individuals liberties werent violated.

The Missouri Highway Patrol did not immediately respond to a request for comment.

Cathy Dean, president of theKansas City Board of Police Commissioners, reached by phone, said she could not comment on the situation because she had not seen the emails in question. She declined to answer any other questions.

Mayor Quinton Lucas office did not respond to requests for comment.

The number of arrests made on faulty or ghost warrants is hard to quantify, but it can affect people for years,according to the Marshall Project, a nonprofit news organization covering criminal justice, and The Guardian newspaper.

One New Orleans man was arrested in 2019 on a 25-year-old warrant. He had also been arrested in 2014, 2015 and 2017 based on a 2006 conviction, though his probation period should have long since expired.

The arrests, which didnt result in further charges, along with minor probation violations cost the man his job three times and his marriage, the news organizations reported.

Being arrested is a huge disruption to someones life, Trachtenberg said, and can be humiliating and undignified.

As a society, we tolerate all of the bad effects of arrests because we think theyre necessary for police functions, at least sometimes, he said, but anytime someone is arrested who isnt supposed to be arrested, theyre suffering all this for nothing.

Pfannenstiel said the only warrants the municipal court issues are for defendants failure to appear. For example, if an individual violates the terms of their probation, the court issues a summons, but if they do not appear, a judge can issue a warrant.

Something as simple as failing to pay a speeding ticket and not showing up to court to dispute it could result in a warrant.

If somebody had some paperwork problem that they then fixed, Trachtenberg said, its going to degrade peoples faith in the system if they get arrested for something when the warrant should have been canceled.

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Kansas City police made arrests based on rescinded warrants ... - Kansas Reflector

A man on horseback sufficiently alleged excessive force claims against a Lynchburg police officer who tased him when he fled the attempted service of a permitted warrant, the Western District of Virginia found.

The officer moved to dismiss for failure to state a claim. But U.S. District Judge Norman K. Moon said the mans allegations were plausible and rejected the officers qualified immunity defense for now.

Taking all the allegations as true Plaintiff sufficiently alleges a violation of a clearly established constitutional right, the judge held. However, Defendant [] may raise qualified immunity again at a later stage in the proceedings.

The opinion is Rucker v. Miller (VLW 023-3-455).

In March 2021, the Lynchburg Police Department, or LPD, notified all units that a permitted warrant for an alleged protective order violation was outstanding for Steve Rucker Jr. A warrant is permitted if an officer is required to serve an individual and release them with a summons.

The notice to officers said Rucker was entering the city on horseback. Upon finding Rucker, an LPD officer activated his unmarked cruisers lights and siren. Rucker refused the officers request to stop. A chase ensued through downtown Lynchburg.

The chase lasted about seven minutes and Rucker turned down about a dozen streets. A pursuing officer told Rucker that they just had paperwork for him. Another officer tried to tase Rucker. He missed and caused the horse to speed up to about 25 mph.

A few minutes later, LPD officer Zachary Miller tased Rucker. The horse again sped up and Rucker fell off after two blocks. While Rucker lay in the street, LPD officer Michael Johnson Jr. jumped out of a nearby cruiser but it began drifting toward a retaining wall.

Johnson hopped back into his cruiser, turned it hard right and stepped on the accelerator. The cruiser rolled over Rucker, causing him multiple injuries that required hospitalization.

Rucker sued Miller and Johnson in the Western District of Virginia for excessive force under 42 U.S.C. 1983, as well as state law claims for gross negligence, willful and wanton misconduct and battery.

Arguing that Rucker failed to state a claim and that qualified immunity shielded him from liability, Miller moved to dismiss.

All claims that law enforcement officials have used excessive force deadly or not in the course of an arrest, investigatory stop, or other seizure of a free citizen are properly analyzed under the Fourth Amendments objective reasonableness standard, Moon explained.

The court must consider the severity of the crime at issue, whether the suspect poses a threat to the safety of the officers or others and whether the suspect is resisting arrest or attempting to flee arrest.

A court must also consider that officers must make split second judgements in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation, the judge added.

Moon said the first factor weighed heavily in Ruckers favor because he wasnt wanted for any crime when the pursuit began.

Plaintiff does not suggest he was resisting arrest, but merely avoiding service of a summons. Plaintiff argues that he was also not fleeing arrest because there was no arrest to begin with. Again, considering the allegations in the light most favorable to Plaintiff, the factors demonstrate a plausible claim of excessive force against Defendant Miller.

U.S. District Judge Norman K. Moon

The circumstances of the alleged protective order violation werent detailed; nothing established that Rucker committed or was suspected of committing any violent or other serious crime.

The second factor also favored Rucker. Moon noted that the allegations didnt indicate Rucker was armed, violent or a threat to officers or the public, nor was there a suggestion that Rucker was riding in a violent or reckless manner.

The officer claimed that riding a horse at night through traffic posed a danger. Moon wasnt swayed but acknowledged that further facts may support a different conclusion.

The third factor also tipped in Ruckers favor, Moon said.

Plaintiff does not suggest he was resisting arrest, but merely avoiding service of a summons, the judge noted. Plaintiff argues that he was also not fleeing arrest because there was no arrest to begin with. Again, considering the allegations in the light most favorable to Plaintiff, the factors demonstrate a plausible claim of excessive force against Defendant Miller.

Moon then pointed out that, according to the 4th U.S. Circuit Court of Appeals, using a taser is a serious use of force that should only be deployed in dangerous situations.

The Fourth Circuit further held that [t]asers may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk and that is reasonably likely to be cured by using the taser, the judge wrote.

Based on its analysis, Moon found that Rucker didnt pose a safety risk to the officer or the public to warrant use of a taser.

Rucker claimed he sufficiently alleged a violation of a clearly established constitutional right. As such, Miller wasnt entitled to qualified immunity. Rucker also contended that the court should wait to decide on qualified immunity until the record was more developed.

Moon acknowledged that excessive force by police is a clearly established violation of the Fourth Amendment and that use of a taser except in exceptional circumstances is excessive force.

Thus, as Plaintiff has sufficiently alleged an excessive force violation and Defendant is not entitled to qualified immunity at this stage in litigation, Defendant Millers motion to dismiss will be denied as to the excessive force claim, Moon wrote, adding that the officer may raise qualified immunity at a later stage in the proceedings.

Richmond litigator Mark Dix, who represents Rucker, said his client was hospitalized for almost a month and incurred more than $288,000 in medical bills from his injuries.

We are very confident that qualified immunity would not provide any kind of obstacle to us getting to the jury, he told Virginia Lawyers Weekly. The Fourth Circuit has been clear as day since 2016 in Armstrong v. Village of Pinehurst that you do not use a taser to enforce compliance.

He pointed out that his brief cites scholarship about qualified immunity being based on factual fiction.

It turns out that this doctrine of qualified immunity was based upon somebody altering the United States Code in the late 1800s or early 1900s, but the Fourth Circuit found it was bound to apply stare decisis, Dix explained. At some point, courts are going to have to grapple with the sordid history of how 1983 was altered.

He noted that there are cases about the validity of qualified immunity making their way to the U.S. Supreme Court.

Dix said he hasnt received an offer of settlement from the city. The case now proceeds to discovery.

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Tased horsemans excessive force claims clear bar - Virginia Lawyers Weekly

BANGLADESHS next general election is hanging over the nation like the proverbial sword of Damocles. The nation is most likely to slide into a nightmare unless the election is held peacefully. The Awami League regime wants it according to the 15th amendment that it adopted in June 2011 with its absolute majority and many legal, judicial and constitutional questions concerning it. It held two elections under it. Both were controversial.

The opposition parties led by the Bangladesh Nationalist Party will not participate in an election under the 15th amendment to the constitution of Bangladesh because they believe that the amendment is the Awami Leagues constitutional insurance for the one-party BKSAL vision and the BNPs death trap. It, therefore, wants the prime minister to hand power to the caretaker government to hold the next general election. The BNP would not mind if the caretaker government is called by any other name as long as the election-time government is not the Awami League government.

The Awami Leagues stand would appear to be the right way to hold the election for anyone unaware of Bangladeshs history and politics. The Awami League would even receive a pat on the back for its faith in the constitution, something commendable in any developing country. Nevertheless, the story is quite different to those aware of Bangladeshs history and politics.

In 1975, the first AL regime changed the 1972 constitution from a parliamentary democracy into a one-party or BKSAL dictatorship by adopting the fourth amendment with its absolute majority in the parliament in a matter of minutes. The fourth amendment met its tragic end following the events of August 15, 1975 and was annulled by the fifth amendment, which restored the multi-party system in the constitution.

The Awami League again flagged that it believed the constitution could be amended or changed at any time or in any manner to serve its political interests during the BNPs 199196 term. The Awami League with the Jatiya Party and Jamaat as allies brought the country to a standstill with 173 days of general strike and violence to amend the constitution to adopt, believe it or not, the caretaker government system as the election-time government in place of the constitutionally mandated government of party in power. Sheikh Hasina had such profound faith in the caretaker government system in that era that she wanted it to be in the constitution forever.

The BNP acceded to the Awami Leagues demand for the caretaker government after winning the February 1996 election by a landslide that the Awami League-Jamaat-Jatiya Party abstained on the caretaker government issue. The BNP adopted the 13 or the caretaker government amendment, in March 1996 to save the country and democracy. It held the first election under the caretaker government system in June 1996 and lost it to the Awami League marginally. The BNP paved the way for the Awami League to come to power for the first time after 26 years although it could have remained in power for a full term, constitutionally.

The Awami League, after winning the December 2008 election by a two-thirds majority, saw the opportunity for which it had been waiting since 1975, the opportunity to amend the constitution to re-install its BKSAL vision in it. The Awami League first declared the 13th or the caretaker government amendment, the fruit of its 199196 movement, unconstitutional through the High Court that in a ruling in 2004 declared it constitutional and then adopted the 15th amendment that is the Achilles heel proof constitutional guarantee of its BKSAL vision.

The Awami League regime made mincemeat of the independence of the judiciary to declare the 13th amendment unconstitutional and illegal through Chief Justice Khairul Huq in May 2011. The prime minister then made mincemeat of the independence of the legislature when, as the head of the executive branch, she acted as both the judge and the jury to enact and adopt the 15th amendment in June 2011. The AL regime, thus, trashed the principle of separation of powers enshrined in the constitution.

A great deal has already been said and written that exposed the 15th amendment as a story of intrigue and conspiracy. Therefore, the Awami Leagues dismissal of BNPs demand for election under the caretaker government system which is also supported by most of the people on constitutional grounds is palpably untenable, given its history of treating the constitution. Clearly as daylight, the Awami League wants the 15th amendment not because of its faith in the constitution but because it will not lose the election under it. The reasons are self-explanatory.

The 15th amendment will allow the AL regime to hold the election under Sheikh Hasina as the prime minister. The parliament will remain unannulled under it, something unheard of in a parliamentary election anywhere. This would allow the Awami League and its allies who hold all 300 seats in the present parliament to nominate a member of parliament in each of these seats in the next election if they want. They cannot, therefore, dream of a more uneven field against their opponents in a general election other than one under the 15th amendment.

There is even worse news for the BNP-led opposition in an election under the 15th amendment. It is now palpably evident that the Election Commission will support the Awami League and its allies candidates to tilt in an election under it. So will the law enforcement agencies and the civil bureaucracy. The members of these two critical institutions for holding a general election are now more loyal and dedicated to the Awami League than AL members and activists.

There are, thus, zero incentives for the BNP and allies to contest in an election under the 15th amendment unless it wanted to commit hara-kiri. The Awami Leagues determination to reject the BNPs demand for the caretaker government and hold the next general election under the 15th amendment, instead, is also based upon the fear that it would not only lose an election under the caretaker government or its equivalent by a landslide, but the lives of its leaders and supporters would also be at risk. Many AL leaders fear that the party would be wiped out the very night it loses the election.

The Awami League has been in power for 14 years. Ten of these years were practically through non-elections. The voters of the country would be desperate to vote in the next general election having not voted in the last two elections. More importantly, the next general election will also be one for which the BNP which has suffered persecution including enforced disappearances, incarcerations and framed and fictitious court cases in hundreds of thousands and extrajudicial killings, has finally put its act together. Its supporters and allies backed by the people have come out to the streets in a movement that shows the potential to become the most powerful political movement since the war of liberation.

The millions of supporters of the BNP and its allies backed by people would now fight not just for their democratic, human and electoral rights but also for their survival aware that Bangladeshs external stakeholders are supporting their causes. The AL regime is alone but determined to hold another election like the two previous ones. Bangladesh will, thus, face an existential crisis very soon unless it succeeds in holding a free, fair and peaceful general election in which all eligible voters can vote.

The Awami League introduced the caretaker government system in Bangladeshs politics during the BNPs 199196 term as the panacea for a free and fair election. The caretaker government system is also one of the very rare instances in the politics of Bangladesh upon which the Awami League, the Bangladesh Nationalist Party, the Jatiya Party and Jamaat had reached a political consensus. The caretaker government system or its equivalent mechanism only can now stop the proverbial sword of Damocles from falling on Bangladesh. The ball is now in the Awami Leagues court to put the nations interest before its own.

M Serajul Islam is a former career ambassador.

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Ball is in AL's court - newagebd.net