Category Archives: Fourth Amendment

A federal judge in Washington is set to decide whether to dismiss a case on behalf of protesters who claim they were injured during the June 1, 2020, protests around Lafayette Park next to the White House. In the course of the arguments, one lawyer stood out in insisting that the use of tear gas against the protesters was entirely reasonable.

What was so striking is that the lawyer,Richard Sobiecki, represents the D.C. governmentof Mayor Muriel BowserMuriel BowserHogan announces Maryland will close mass vaccination sites, shift to local clinics Biden and Bowser administrations change their tunes on last summer's riot response Pride Month organizers to draw attention to anti-transgender laws MORE, who condemned the federal government for its clearing of the area and alleged use of tear gas. Much of the medialionized Bowser for her stanceat the time. She received national acclaim for painting Black Lives Matter on the street next to the park and renaming it Black Lives Matter Plaza.

Now, one year later, Bowser is keeping the BLM plaza but opposing the BLM protesters. Her administration insisted in court that the protesters were legitimately teargassed by the metropolitan police to enforce her curfew that night.

After the park clearing, the media uniformly denounced then-Attorney General Bill Barr for ordering the park to be cleared so that President TrumpDonald TrumpFacebook to end policy shielding politicians from content moderation rules: reports US government found no evidence that Navy UFO sightings were alien spacecraft: report More than a dozen police officers still on medical leave from Jan. 6 injuries MORE could hold his controversial photo op in front of the St. Johns Church. The accounts in virtually every news report were quickly contradicted, but few reporters acknowledged the later facts coming out of federal agencies. As I noted in mytestimony to Congresson the protest, the clearing of the park raised serious legal questions, particularly the unjustified use of force that night.

However, the repeated claim that Barr ordered the clearing of the area for the photo op was never supported and quickly contradicted.The plan to clear the park was set long before there was any discussion of the photo op, and it was based on the threat posed to the White House compound. Barr said he was unaware of any planned photo op when he approved the plan and that the delay in implementing it was due to the late arrival of needed personnel and fencing. Nevertheless, legal experts like University of Texas professor and CNN contributor Steve Vladeckcontinued to claim thatBarr ordered federal officers "to forcibly clear protestors in Lafayette Park to achieve a photo op for Trump.

The media has also stressed that the clearing and the force used were unjustified because the protests were entirely peaceful and there was no attack on the White House. That is untrue. As discussed in my testimony, an exceptionally high number of officers were injured during days of continuing protests around the White House complex;some 150 officers were injured, half of those around the White House. That is similar to the level of injuries during the Jan. 6 riot at the U.S. Capitol.And, as with the Capitol riot, authorities decided that a perimeter had to be established around the White House last summer. Indeed, they used the same type of fencing, although the White House perimeter was much smaller than at the Capitol.

While there was less violence that night a year ago, the rioting included the burning of a historic structure, extensive property damage nearby, and the attempted burning of historic St. Johns Church. Indeed, the violence led the Secret Service to move the president into the White House bunker, and officers said they were concerned that the complex might be breached.

That brings us back to the new admission from the D.C. government.

There has long been a dispute as to whether the federal operation employed tear gas. The federal government has maintained that it used pepper balls. As I stated in my congressional testimony, the distinction is really not significant, practically or legally; pepper balls and tear gas can have the same effect on protesters, and both are often referenced together in court orders as non-lethal riot control devices.

However, as this debate over the denial of tear gas by the federal operation raged, neither Bowser nor her government stepped forward to say that D.C.s Metropolitan Police used tear gas in their operations a block or so from Lafayette Park. Instead, Bowser denounced the force used by the Trump administration, including the use of tear gas.

Now, with Trump out of the White House, Bowsers administration insists there was nothing unreasonable in the use of tear gas to enforce a curfew and is asking the court to dismiss the lawsuit by protesters, including Black Lives Matter DC. The media that spent the past year denouncing the Trump administration over its alleged use of tear gas seems largely silent as Bowsers administration claims its own use of force was reasonable.

The federal government still apparently denies using tear gas. D.C. police admit to using tear gas nearby to enforce Bowsers curfew, but she has long insisted that the district did not assist in clearing Lafayette Park, which began before the curfew.

U.S. District Judge Dabney Friedrich now must decide if the clearing of the park was done for Trump's photo op or, as federal agencies claim, to protect the White House as a national security priority.

After the Lafayette Park operation, Bowser declared that if you are like me, you saw something that you hoped you would never see in the United States of America.Now, her government is arguing not only that the protesters claims should be dismissed but that the district did and can continue to use tear gas in such situations, even to enforce a curfew.

In the meantime, the Biden administration agrees that the case should be dismissed entirely. The Department of Justice (DOJ) maintains that Presidential security is a paramount government interest that weighs heavily in the Fourth Amendment balance. The DOJs counsel, John Martin, added that federal officers do not violate First Amendment rights by moving protesters a few blocks, even if the protesters are predominantly peaceful.

The response to that from the media has been crickets.

What a difference a year and a new president can make.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter@JonathanTurley.

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Biden and Bowser administrations change their tunes on last summer's riot response | TheHill - The Hill

In an earlier post, we discussed the patent linkage system implemented in the Fourth Amendment to the Chinese Patent Law, which will come into effect on June 1, 2021. Another important change in the amendment is the introduction of Patent Term Extension (PTE) for pharmaceutical patents.

The new PTE provision is in the 3rd paragraph of Article 42 in the amended Chinese Patent Law, which reads and is translated as follows: In order to compensate for the time taken for regulatory review and approval of a new drug in China, the Patent Administration Department of the State Council, at the request of a patentee, may extend the term of an invention patent related to the new drug that has received regulatory approval for marketing in China. The patent term extension should not exceed five years, and the total remaining term of the patent after the regulatory approval should not exceed fourteen years.

Specific rules for implementing PTE will be provided in the amended Implementing Regulations of the Chinese Patent Law (Regulations). Draft amendments to the Regulations (draft Regulations) were released on November 17, 2020. A final version of the amended Regulations has not been promulgated.

Below is a summary of the PTE rules according to the amended Chinese Patent Law and the draft Regulations.

Eligibility

The amended Chinese Patent Law provides that PTE may be available for an invention patent related to a new drug. Under Section 85-4 of the draft Regulations, a new drug can be a new chemical drug, biologic drug, or traditional Chinese medicine, and PTE is only available for patents covering the drug, methods of manufacturing of the drug, and medical use of the drug. Thus, medical device and equipment patents are not eligible for PTE.

The draft Regulations also specify that the patent related to the new drug refers to a patent related to the drugs active ingredient that receives regulatory approval for the first time in China. However, it is not clear whether the active ingredient only includes the active moiety or also includes the salts, ester, or crystal forms of the active moiety.

Timing

The draft Regulations provide limitations on the timing of filing a request for PTE. Under Section 85-7 of the draft Regulations, a request for PTE must be filed within three months from the date when a new drug receives regulatory approval. The request should be filed with the Patent Administration Department of the State Council (i.e., China National Intellectual Property Administration (CNIPA)).

Thus, under the current version of the draft Regulations, drugs approved prior to March 1, 2021, will not be eligible for PTE. Some pharmaceutical companies have submitted their concerns on this requirement to the CNIPA. In particular, they asked for a transition period to include some drugs approved before March 1, 2021. They argued that drugs approved since April 2018 should be eligible for PTE consideration since the Chinese State Council executive meeting decided in April 2018 to provide up to 5 years term extension for patents related to drugs for which regulatory approval was simultaneously applied in China and abroad.

Another limitation on the timing is that a PTE request must be filed at least six months prior to the patents expiration date (without PTE). Since the amended patent law will come into force on June 1, 2021, it appears that patents expiring before December 1, 2021, will not be eligible for PTE considerations. No retrospective remedy is provided in the current version of the draft Regulations.

Calculation

The calculation of PTE under the amended Chinese Patent Law is different from PTE calculation in the U.S. and is more similar to that of the supplementary protection certificate (SPC) in the European Union. Section 85-5 of the draft Regulations provides that the extended term under PTE is the time period between a patents filing date and the date when the drug receives regulatory approval, reduced by five years. The total time period of PTE is also subject to limits under Article 42 of the amended patent law as discussed above.

Limitations

Section 85-7 of the draft Regulations further provides the following requirements and limitations on the request for PTE:

Also, under Section 85-6 of the draft Regulations, during a patents extended term under PTE, the scope of the patent is limited to the new drug and the approved indication(s) of the drug.

Conclusion

Along with other amendments, the introduction of PTE will strengthen IP protection for pharmaceutical patents in China. The real impact of the amendments will depend on the finalized Regulations, CNIPAs examination guidelines, and future judicial interpretations. We will provide more updates on any further clarifications and amendments.

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Patent Term Extension Introduced by the Fourth Amendment to the Chinese Patent Law - JD Supra

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Dallas Independent School District teacher Jocelyn Foshay was guiding a social studies lesson with her middle school class about the amendment that protects Americans from unreasonable search and seizure.

Where was the Fourth Amendment to protect Breonna Taylor? a student asked her, referring to a Black woman who was shot and killed in her apartment by Louisville police officers during a botched raid in 2020.

Foshay turned the question back to her students. What do you think? she asked, allowing students to process their thoughts and draw their own conclusions.

These are the kinds of conversations and questions that teachers say are typical of students, especially in the past year as the news cycle has exploded with stories about race relations, injustice and inequity. These sorts of conversations about current events often can be teachable moments and exercises for critical thinking for young minds, educators say.

But Texas educators say theyre concerned they wont be able to have these types of open, far-reaching conversations, often prompted by inquisitive students, if the Texas Legislature approves a bill that restricts how teachers can discuss current events in the classroom and teach about Americas historical treatment of people of color.

House Bill 3979, which mirrors legislation making its way through state legislatures across the country, has been coined the critical race theory bill, though neither the House nor Senate versions explicitly mention the academic discipline, which studies the ways race and racism have impacted Americas legal and social systems.

Supporters of the bill argue they are trying to combat personal biases bleeding into public education.

We want to do our part to preserve the system and yes to talk about our history, warts and all, said state Sen. Bryan Hughes, R-Mineola, on the Senate floor Friday. But present it truly and accurately, especially those founding principles, which have made Americans so special.

A new version of the bill, which was substituted on the Senate floor late Friday night and approved, says teachers cant be compelled to discuss current events and if they do, they must explore it from multiple positions without giving deference to any one perspective. The bill also has already passed out of the House.

It bars students from getting course credit for civic engagement efforts, including lobbying for legislation or other types of political activism. It also added a civics training for teachers to be developed by the state and a list of founding documents students must be required to be taught.

The Texas Education Agency estimates that the new training program will cost $15 million annually starting in 2023.

Teachers say the language of the bill is often vague and its unclear to them how the bill will directly impact or change their lessons. But the fear of being at odds with the law alone could create a chilling effect, they said.

Part of his bill that kind of makes me freeze up is like feeling like I cant talk about race or feeling like Im going to say something thats out of my lane, out of my professionalism as a teacher, Foshay said. If kids arent able to make those connections [about] why this [lesson] matters to them here sitting in the classroom right now ... were really losing a piece of making school matter to kids.

Supporters of the legislation say they have concerns teachers are unfairly blaming white people for historical wrongs and distorting the founding fathers accomplishments. In recent years, there have been calls for more transparency about historical figures racist beliefs or connections to slavery.

Do you want our Texas kids to be taught that the system of government in Texas, in the United States, is nothing but a cover-up for white supremacy? asked state Rep. Steve Toth ,as he laid out HB 3979, which he sponsored, on the House floor in early May. Do you want them to be taught a souped-up version of Marxism?

Toth, R-Spring, told The Texas Tribune he is still having discussions about whether he will accept the new Senate's changs and send the bill straight to the governor to sign, or reject the amended legislation and request a conference committee made up of members from both chambers to resolve differences.

The fight to ban critical race theory discussions from schools has increasingly become a rallying cry among conservatives as America has grappled with racial injustice and inequities over the past year. The movement was encouraged by former President Donald Trump, who directed the federal government in 2020 to stop diversity and inclusion trainings that support similar sentiments, calling them propaganda.

Recently, 20 state attorneys general sent a letter to the U.S. Education Secretary Miguel Cardona and expressed concern with critical race theory. The letter writers, including Texas Attorney General Ken Paxton, specifically mention the 1619 Project, a reporting endeavor from The New York Times that examines U.S. history from the date when enslaved people first arrived on American soil, marking that as the countrys foundational date. The Texas legislation would specifically prohibit schools from teaching the 1619 Project.

To suggest that America is so racist at its core and its so irredeemable and they can never overcome biases and treat each other fairly that's a real problem, Hughes said of the project.

But teachers and historians contend its impossible to teach Americas history without discussing race and injustice, especially when current events mirror historical lessons.

There is this misunderstanding that the past is walled off from the present by the bills authors, said Trinidad Gonzales, a history professor and assistant chair of the dual enrollment program at South Texas College. It is the opposite: The present and past are interconnected. That is history. The bills authors are obviously not historians.

After the Jan. 6 insurrection at the U.S. Capitol, Foshay said her school had a schoolwide discussion and showed the students news clips, making sure to present the event as it happened, without bias. But she worries the bill would force her to equivocate and not give students a straight answer.

Its going to feel like Im grasping at straws to present two sides of something, she said.

On Friday, Hughes tried to reassure Democrats against the bill that it would not require teachers give moral equivalency to perpetrators of horrific violence.

Third grade teacher Lakeisha Patterson, who fielded questions from her students this past year about the Black Lives Matter movement, said shes worried that constrained conversations about difficult real-life issues will ultimately disadvantage students.

If were not allowing teachers the opportunity to have these honest and intellectually appropriate conversations with their feelings about the past, then were basically silencing those communities, Patterson said. Were saying, not only are we ashamed of your heritage and your culture, but were not even at liberty to discuss it. And it just goes back to whitewashing history.

Juan Carmona, a history teacher in the Rio Grande Valley town of Donna, said he thinks this kind of legislation is in direct response to the broadening of voices and perspectives examined in the classroom as the student populations also become more diverse.

In recent years, history teachers said they have worked to diversify history curriculum, providing additional context and perspectives. In recent years, the State Board of Education added a Mexican-American history course and an African American history course thats available to all high school students.

We have seen more student involvement because they can now see their own voices, their own people, their own culture being in history, Carmona said. They never saw themselves, so they werent engaged.

School Board of Education member Pat Hardy, who used to teach social studies, said the goal of the bill isnt to Pollyanna or make it only the positives, but she speculated that it is a response to instances in school districts across the state where parents feel biases are being taught. Hardy would not name specific school districts where there were issues.

We need to really stress what a unique country we have, she said. You think about so many kids coming here as immigrants ... and they dont know from their parents about American history, love of country and all that necessarily. And so we really feel like thats an area that needs to be delved into.

Educators also worry Texas students will be at a disadvantage when taking Advanced Placement or dual enrollment classes in high school if they dont receive thorough lessons about how race and gender have shaped American society.

Mallory Lineberger, a former history teacher who now serves as a policy fellow for the advocacy group The Education Trust in Texas, says AP history students are often scored on how well they can connect historical events and modern issues.

If we cant talk about contemporary issues or current events, how are they supposed to be able to have a thorough and critical analysis of how a topic has changed over time? she said.

In a letter to Lt. Gov. Dan Patrick and the Texas Senate, the American Historical Association also cautioned that this legislation would limit student access to college courses.

The uncertainty of how [the legislation] will be implemented and the likely loss of offerings for dual-enrollment and AP History courses could hurt Texass progress toward increasing its college-educated population, Jacqueline Jones, association president, said in the letter. Last year 12 percent of all college students in Texas were dual-enrollment students. History is the most offered course in dual enrollment.

More than 220 Texas historians and teachers across the state have signed a separate letter opposing the bill and sharing similar concerns.

Lineberger also identified around 190 current Texas Essential Knowledge and Skills, the state approved and required education standards, that she said directly conflict with the bill.

For instance, middle schoolers are expected to analyze the historical background of various contemporary societies to evaluate relationships between past conflicts and current conditions.

Teachers are also concerned students will be less likely to learn how to participate in the political and civic process if they are not able to assign those kinds of activities or award extra credit. Foshay in Dallas ISD says district leaders have put a large emphasis on an initiative called project-based learning in which students learn by trying to solve real-world problems, which she said can include internships or civic work in the community.

Bill supporters said the legislation would not prevent students from being able to participate in the political process, lobby lawmakers or attend rallies, but it would prevent teachers from requiring students participate in those events for credit or extra credit. The most recent version of HB 3979 approved by the Senate does clarify students can participate in community charitable projects, but Foshay worries it will mean fewer students become engaged in their broader communities.

Part of me wants to say kids will do this work whether or not they get a grade on it, she said. But I don't entirely believe that ... because I do think schools really do help them facilitate projects they do.

Disclosure: Education Trust and New York Times have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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Texas educators worry critical race theory bill will stifle learning - The Texas Tribune

Confirmed Judges, Confirmed Fears is a blog series documenting the harmful impact of President Trumps judges on Americans rights and liberties. Cases in the series can be found by issue and by judge at this link.

Nine Trump Ninth Circuit judges, including Patrick Bumatay, Mark Bennett, Ryan Nelson, Bridget Bade, Daniel Collins, Kenneth Lee, Daniel Bress, Danielle Hunsaker, and Lawrence VanDyke , argued in dissent that the full court should reverse a panel decision and rule that a federal border agent cannot be held liable for using excessive force and retaliating against a US citizen by getting the IRS to audit him. The full Ninth Circuit majority rejected that view and the victim will get a chance to prove his claims as a result of the panel decision in Boule v Egbert.

Robert Boule owns, operates, and lives in a small bed-and-breakfast in Washington adjacent to the US-Canadian border. Boule is a US citizen and has a record of cooperating with the US Border Patrol, including in inquiries about his guests. One day in 2014, he answered routine questions from Border Patrol agent Erik Egbert about a guest arriving that day from New York who had previously been in Turkey, and Egbert said nothing. When the car carrying the guest arrived, however, Egbert pulled into the inns driveway behind the car. Egbert got out and approached the vehicle carrying the guest, with no explanation. Boule twice asked Egbert to leave, the second time while standing in between Egbert and the car carrying the guest. Egbert refused to leave, gave no explanation, and shoved Boule against the car, and then grabbed him and pushed him aside and onto the ground. Boule later sought medical treatment for back injuries.

Egbert opened the car door and asked the guest about his immigration status. Boule made a phone call to summon a supervisor, who determined after arriving at the scene that the guest was lawfully in the country, and the agents then left. When Boule then complained about Egbert, the agent retaliated against Boule by asking the IRS to conduct an audit of him, which took several years and cost Boule $5000 in accountant fees. Egbert also got the Social Security Administration and several state and local agencies to conduct formal inquiries into Boules business activities which, like the IRS audit, did not result in any charges against him.

Based on these facts as alleged in his complaint, Boule filed a lawsuit against Egbert in federal district court for the use of excessive force under the Fourth Amendment and for retaliation in violation of the First Amendment. Because Egbert is a federal and not a state law enforcement official, Boule relied on the Supreme Courts long-established Bivens doctrine, which authorizes people to hold federal law enforcement agents accountable for constitutional violations that injure them under some circumstances. Because the Supreme Court has not stated specifically that Bivens applies to actions by Border Patrol agents and conduct that violates the First Amendment, however, the lower court granted summary judgment to Egbert and dismissed the case without a trial.

A three-judge panel of the Ninth Circuit reversed and ruled that Boule should have the chance to prove his claims. The panel acknowledged that the Court had not stated as yet that Bivens applies in those contexts, and that the Court has carefully instructed that before a federal court makes such an extension, it must consider the risk of interfering with the authority of the other branches of the federal government and ask whether there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy, and whether the Judiciary is well suited, without Congressional action, to consider and weigh the costs and benefits of allowing a damages action to proceed under the Constitution. Based on those criteria, the panel determined that there were no adequate and available alternative remedies, and that Boule should be able to proceed with his claims under both the Fourth and First Amendments.

With respect to the Fourth Amendment excessive force claim, the panel explained that Boule was bringing a conventional charge of excessive force like those routinely brought under Bivens against federal law enforcement officials like FBI agents. Although the Court had twice declined to permit such lawsuits against Border Patrol agents, the panel went on, those cases were brought by foreign nationals and involved unique issues of national security. In contrast, the panel stated, Boules case was brought by a US citizen concerning excessive force by a rank-and-file border patrol agent against him on Boules own property and did not involve any national security or foreign policy concerns. The panel noted that numerous courts around the country, including the Ninth Circuit, had allowed such lawsuits against border patrol agents under the Fourth Amendment, and that Boules claim is part and parcel of the common types of claims unfortunately brought against law enforcement officials and should be allowed to proceed.

Although the Supreme Court had never specifically allowed a First Amendment damages claim against a federal official, the panel stated, it had explicitly stated in one case that such a claim may be brought. The Supreme Court has recognized, the panel continued, that it has long been the law that federal officials violate the First Amendment when they retaliate for protected speech. The Ninth Circuit had previously upheld a Bivens claim under the First Amendment, the panel went on, and a Supreme Court case that had failed to do so was clearly distinguishable because it involved a federal employee complaining about a supervisor, not a vengeful officer who the Court recognized could be sued under the First Amendment for retaliation. In short, there were no special factors suggesting the court should not allow Boules First Amendment retaliation claim.

Trump judges Bumatay and Bress wrote harsh dissents, joined by Trump judges Bade, Collins, Bennett, Hunsaker, Lee, Nelson, and VanDyke plus a few others. They would have corrected what Bumatay called the panels error through review by the full court. Bumatay called the Bivens doctrine a judicial usurpation of what he deemed the legislative function to create remedies for constitutional violations, about which he claimed the Court has since had buyers remorse and, in his view, has made any expansion of the doctrine whatsoever a dead letter. He asserted that the panel had disregarded Supreme Court precedents and improperly become a quasi-legislature. Bress similarly concluded that the panel decision was inconsistent with Supreme Court precedent.

Although the Trump judge dissenters may well be correct that the current Supreme Court would disagree with the panel ruling, that decision clearly explained that authorizing Boule to sue Border Patrol agent Egbert for excessive force and retaliation under the Constitution was consistent with Supreme Court precedent and the proper role of the courts, as discussed above. The case is yet another example of Trump judges voting against accountability for misconduct by law enforcement officials. Fortunately, because the Trump judges did not have enough votes, Boule will have the opportunity to seek such accountability. With several judges on the Ninth Circuit planning to take senior status, which means they would no longer be eligible to participate in full court votes like this one in the future, it is crucial to our fight for our courts that Biden nominees to fill these seats be confirmed as soon as possible,

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Trump Judges Try to Dismiss Claim Against Border Patrol Agent for Excessive Force and Retaliation: Confirmed Judges, Confirmed Fears - People For the...

By Matthew T. Mangino| Beaver County Times

Your car is spying on you. Most late-model vehicles have the ability to log speed, when and where a vehicle's lights are turned on, which doors are opened and closed at specific locations as well as gear shifts, odometer readings, ignition cycles and that is only the tip of the iceberg.

As the U.S. Supreme Court has extended protections to the privacy of your smartphone, your car has unexpectedly become a safe haven for law enforcement to access your personal information without a warrant.

In 2018the Supreme Court ruled in Carpenter v. United Statesthat the Fourth Amendment, which prohibits unreasonable searches and seizures, protects cell phone location information. In an opinion by Chief Justice John Roberts, the court recognized that location informationcollected by cell providers creates a "detailed chronicle of a person's physical presence compiled every day, every moment over years."

According to the Electronic Frontier Foundation, perhaps the most significant part of the ruling is its explicit recognition that individuals can maintain an expectation of privacy in information that they provide to third parties. As a result of what has become a landmark decision, the police must now get a warrant before obtaining cell phone data.

However, when a smartphone is plugged into a vehicle's USB port to make a call or listen to music all that precious personal data is downloaded into the vehicle.

The Intercept recently reported on a 2015 podcast of "The Forensic Lunch," wherein Ben LeMere, the founder of Berla, a company that manufactures vehicle forensic kits, talked about the accidental data transfer unbeknownst to the vehicle owner or operator.

"Your phone died, you're gonna get in the car, plug it in, and there's going to be this nice convenient USB port for you," LeMere said. "When you plug it into this USB port, it's going to charge your phone, absolutely. And as soon as it powers up, it's going to start sucking all your data down into the car."

The Fourth Amendment may afford individuals some protection from invasive searches of a personal vehicle. However, that may not protect you while on vacation or traveling for business.

In the same podcast, as reported by The Intercept, LeMere discussed pulling data from a rental car."We had a Ford Explorer ... we pulled the system out, and we recovered 70 phones that had been connected to it. All of their call logs, their contacts and their SMS history, as well as their music preferences, songs that were on their device, and some of their Facebook and Twitter things as well."

The individuals who rented that vehicle unwittingly left their personal information in the vehicle. As a result, law enforcement can access a lot of personal information embarrassing, and maybe even incriminating, information without a warrant.

Plugging into your vehicle is the same as throwing your personal information in the garbage and putting it out on the curb. In 1988, the U.S. Supreme Court ruled in a California case that the Fourth Amendment does not require that police obtain a warrant before searching trash containers placed on the curb.

No person has a reasonable expectation of privacy in items left in a public place. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection," said the justices. That goes for personal information dumped into a vehicle's data system.

The courts have yet to catch up with this new form of invasive surveillance technology. In the meantime, the willy-nilly exposure of personal data may come at a cost.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. He is a former Lawrence County district attorney, His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at http://www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

Excerpt from:
Matthew T. Mangino: Is your car spying on you? - The Times

By Esha Kher

SACRAMENTO, CA In a motion to suppress a roadside breathalyzer test, Sacramento County Superior Court Judge Stephen Acquisto here Wednesday navigated the line between giving actual consent and simply acquiescing to an exertion of authority by a law enforcement officer.

In the end, the judge granted the suppression motion, finding that the peace officer failed to clearly relay the critical admonishment that defendant David Orona has the right to refuse to take the breathalyzer test.

The motion of suppression was for the preliminary alcohol screening given to defendant David Orona by California Highway Patrol peace Officer Scott Starkey in the DUI investigation following a traffic collision involving Orona.

And, over the course of the cross-examination, Starkey revealed that the admonitions of the PAS test included no clear indication to the defendant that the test was voluntary.

While Starkey said he told Orona that the test is required by law, this elaboration never indicated that it was voluntary.

The cross-examination by Attorney Michael Tobo also revealed discrepancies in Officer Starkeys administering of the eight-point test. Starkey consistently said he didnt remember details about the admonition, and he guessed about the timing and length between tests.

The prosecution has the burden of establishing it was a voluntary test and Deputy District Attorney Patrick Brady argued that statutes 23812 and 23614 of the Vehicle Code and case law around consent have not granted motions of suppression when implied consent by verbatim is present, regardless of explicitly stating it.

Judge Acquisto, however, said that statutes 23612 and 23614 are not determinative in and of themselves whether consent is voluntary, and they dont set a bar that is higher than the Fourth Amendment standard.

The case law doesnt say that an officer presenting a breath test who doesnt assiduously adhere to every bit of information in those two statutes automatically renders consent as involuntary or defective.

What case law does say, said the judge, is that the Fourth Amendment applies and courts must look at the totality of the circumstances in determining whether the consent was voluntary.

Failing to strictly adhere to the advisement requirements in the statutes is not a basis to grant a suppression motion, apparently, and the judge held that he must look at the totality of circumstances to determine whether people have shown that alleged consent by defendant was voluntarily given.

Based on that, Judge Acquisto found that consent was not voluntarily given and there was a violation of the Fourth Amendment. He then granted the motion to suppress the breathalyzer test.

The defendant still faces driving without a license and driving without insurance charges.

Esha Kher is an undergraduate student at UC Davis studying Political Science and Computer Science hoping to pursue a career in corporate law. She is passionate about legal journalism and political advocacy that provokes new perspectives and sparks conversation among the public.

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Judge Rules CHP Violated Rights of Alleged DUI Driver, Tosses Charges - The Peoples Vanguard of Davis

Daryl James is a writer at the Institute for Justice in Arlington, Virginia.

Fines and fees mount quickly when the Philadelphia Parking Authority comes after someones car. So Sherri Robinson rushed to scrape together as much cash as she could on April 29 after the agency booted and towed her 2004 Audi.

Robinson had parked legally in front of her North Philly rowhome, near Temple University, but the PPA decided to use the vehicle as leverage to force payment for old tickets. Robinson did not dispute the citations themselves just the unreasonable penalties. She could not afford to pay what the PPA demanded, but hoped to make a down payment and negotiate the release of her Audi before costs climbed even more.

When she showed up at the adjudication center on the corner of Filbert and 9th streets with $600, a city worker refused the money and sent her away. Robinsons tab had swelled to more than $2,000, and the PPA demanded at least half up front, regardless of her ability to pay.

By the time Robinson returned to the payment window five days later with additional funds, her bill had climbed an additional $125 due to PPAs aggressive penalty system.

Late fees can double and then triple the cost of a regular parking ticket. The boot fee adds another $150, followed by $175 for towing and $25 per day plus tax for storage. If families cannot pay, the city can sell their sole means of transportation at auction.

Other penalties include vehicle registration suspension and even threats of arrest. Essentially, the scheme criminalizes poverty.

Philadelphia leaders signed onto a promise of bold reform with cutting-edge policies to end unjust fines and fees last May, when the city joined a coalition of 10 municipalities committed to dismantling oppressive systems. Although participating jurisdictions vowed to look at more than just parking enforcement, fixing the PPA should have been high on the list in Philadelphia.

One year later, the only result has been talk. Coalition members identified five priority areas, including the need to reduce parking fines and towing fees, and implementing more just payment plans. Yet the PPA has not budged on either of these things.

Excessive sanctions for petty violations continue, and the PPA refuses to match penalties with a persons ability to pay. Robinson described her struggle while standing outside the adjudication center on her second visit.

When her turn finally came to enter, she handed over $1,139.75 exactly half her debt. The rest she will pay in monthly installments over the next two years. In exchange, the PPA agreed to release her car.

Robinson seemed relieved, but her mood soured when she arrived at PPA Lot 7 in Bridesburg and found her Audi damaged. This car wasnt like this when they took it, she said. Half the bumper is hanging off now.

Others waiting for PPA service on May 4 shared their own frustrations. One mother said she had driven three hours to Philadelphia with her young daughter, a cancer patient who needed chemotherapy. When they came out of the treatment center, their car was gone.

Another woman described having her car towed when she went with her toddler to family court. She thought she had parked legally in a two-hour zone, but was unsure. The signs are confusing, she said. They dont even know what they mean by their signs. When she came outside, her car was gone.

A man who recently moved from Albany, New York, said he understood the signs but got confused by the payment kiosks. While he was trying to figure out which machine to use, he got a ticket.

Philadelphia is not alone in having this kind of rampant ticketing and penalty assessment. Baltimore, Boston, Chicago, New York, Los Angeles, San Francisco, and Washington, D.C., all use aggressive tactics to maximize parking revenue.

The American Bar Association calls such enforcement regressive because it disproportionately penalizes families with lower incomes and people of color. Will Aronin, a public interest attorney at the Institute for Justice, says the money-making schemes are also unconstitutional.

Aronin says the Philadelphia Parking Authority, which is governed by a state-appointed board, violates the Fourth Amendment guarantee against unreasonable search and seizure when it takes cars without warrants. He believes it violates the Eighth Amendment guarantee against excessive fines when it runs up penalties for minor violations, and that it violates the 14th Amendment guarantee of due process when it fails to provide protections for vehicle owners or to consider their ability to pay.

The Institute for Justice represented one Indiana man who lost his Land Rover following a first-time, nonviolent drug crime. He took his case all the way to the U.S. Supreme Court, and eventually got his vehicle back in 2020.

Now the Institute for Justice is turning its attention to Philadelphia, looking for clients to send a message: Cities have legitimate reasons to enforce parking rules, but the government must stop treating people like ATMs.

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Opinion: Screwed over by the PPA? Lawyers say the penalty system is unconstitutional - Billy Penn

In September 2020, the U.S. Court of Appeals for the 5th Circuit dismissed a federal civil rights lawsuit filed by Jos Oliva, an elderly Vietnam veteran who was beaten and left permanently injured by federal police at a Department of Veterans Affairs (V.A.) hospital in El Paso, Texas. According to Oliva, the V.A. cops targeted him for abuse after he failed to promptly show his ID, which was temporarily out of reach in a metal detector bin.

"I got a problem with this man," one of the officers reportedly said about Oliva's supposed lack of cooperation. "He's got an attitude." The same officer then placed the 70-year-old in a chokehold and slammed him to the ground, permanently injuring Oliva's shoulder.

Oliva's lawsuit alleged that the unprovoked attack violated his Fourth Amendment rights. But the 5th Circuit waved those constitutional concerns away, holding that U.S. Supreme Court case law effectively shielded the federal cops from facing any such civil accountability.

Today, Oliva received another undeserved injury, this time at the hands of the Supreme Court itself. In an unsigned order issued this morning, the Court declined to hear Oliva's appeal. The 5th Circuit's ruling in Oliva v. Nivar will remain in place.

Much of this regrettable legal saga is the direct fault of the Supreme Court. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), the Court held that the federal drug cops who entered Webster Bivens' apartment without a warrant, rifled through his belongings, shackled him in front of his family, and later strip-searched him at the federal courthouse, could be sued for violating Bivens' Fourth Amendment rights. But as 5th Circuit Judge Don Willett protested in a recent opinion, the Supreme Court has since weakened its Bivens precedent to such an extent that "if you wear a federal badge, you can inflict excessive force on someone with little fear of liability."

The 2017 case of Ziglar v. Abbasi illustrates exactly how the Court undermined its previous holding. If a Bivens suit against an allegedly unlawful federal officer arises in "a new context," the Court said in Ziglarmeaning "the case is different in a meaningful way from previous Bivens cases decided by this Court"then the presiding judge should look for any "special factors counseling hesitation." As soon as any such "special factor" is found (or cooked up), then the lawsuit must be dismissed.

Three years later, in Hernandez v. Mesa (2020), the Court doubled down on that approach. "If we have reason to pause before applying Bivens in a new context or to a new class of defendants," the Court said, "we reject the request." As the Court declared in Ziglar, "the Bivens remedy is now a 'disfavored' judicial activity."

Jos Oliva filed a Bivens claim against the V.A. cops who attacked him. But the 5th Circuit, taking its cues from Supreme Court, dismissed his suit as "a new context" because "this case differs from Bivens in several meaningful ways." For instance, the appeals court maintained, "the case arose in a government hospital, not a private home." Also, "the VA officers were manning a metal detector, not making a warrantless search for narcotics."

The end result of that SCOTUS-sanctioned legal quibbling: The V.A. cops who beat an elderly veteran got to avoid accountability in civil court.

Read more:
Federal Cops Attacked a 70-Year-Old Vietnam Veteran and Then Avoided Accountability in Court - Reason

I.Introduction

The COVID-19 global pandemic has been an unprecedented challenge for U.S. employers over the past 12+ months. Among other things, pandemic-containment policies and best practices limited business and personal travel. As we enter summer 2021, the sun seems brighter as we near the end of the tunnel. But as the world re-opens and as more Americans become vaccinated, U.S. employers should give due care to several obvious and not-so-obvious areas:

(1) how to handle travel-quarantines, masks, and vaccines as applied to employees;(2) how to handle employees traveling internationally, including the ongoing challenges to obtain visas; and(3) maintaining employer data security and balancing privacy in a new era of remote work.

II.COVID-19 Workplace Considerations

Navigating the highly dynamic landscape of federal, state, and local COVID-19 rules and policies has presented myriad challenges for U.S. employers. Most recently, mass proliferation of vaccines and a clear decrease in hospitalizations is making it easier for employers to keep their employees safe, and is slowly (or sometimes abruptly!) leading to increased business reopening and travel throughout the United States. Federal and state guidance and regulations on masks, testing, and quarantining have begun to relax. The CDC announced on May 13 that fully vaccinated people no longer need to wear a mask or physically distance in any setting. The guidance also states that fully vaccinated people can refrain from testing and quarantine following a known exposure under certain circumstances.

However, most changes in federal guidance pertain to the public, and private employers are not the public. Accordingly, the CDC website sets forth the following caveat with regard to its most recent guidance on relaxed mask and quarantine guidelines: except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. (Emphasis added.) Moreover, although OSHA is advising employers to follow CDC guidelines for fully-vaccinated employees, the general duty clause under the OSH Act requires that employers keep their employees safe and recommends employers implement and maintain social distancing and shield or facemask measures for unvaccinated employees.

Thus, even though CDC guidance is becoming less restrictive, employers must still comply with applicable federal, state, and local workplace laws regarding mask mandates and quarantines. And because federal guidance and state reopening orders often contain detailed rules that vary by industry, it is vital that employers consider the fine print on all federal, state, and local rules and guidance. For example, following the May 13 federal CDC announcement, the state of Minnesota lifted its mask-mandate, only to have both the Minneapolis and St. Paul mayors announce that both cities are continuing to impose mask mandates.

In terms of vaccinations, it is in an employers best interest to have a fully vaccinated workforce (to the extent possible). However, in response to employer trends of incentivizing or even requiring vaccines, a countervailing state law trend is emerging to curb the ability of employers to promote vaccinations or treat vaccinated and non-vaccinated people differently. Several state governors (e.g., Texas, Florida, and Arizona) have issued executive orders limiting the use of COVID-19 vaccination documentation to confer certain rights or privileges on individuals. Also, Montana recently passed a law that, effective July 1, 2021, prohibits discrimination against non-vaccinated people.

With only a few exceptions, the Montana law prevents any entity from treating vaccinated and non-vaccinated people differently. Although employers in Montana can still recommend that employees receive vaccines, employer plans to only allow vaccinated employees to return to the office or only require non-vaccinated employees to wear masks have, in large part, come to a screeching halt.

III.International Travel Restrictions

Since his inauguration in January 2021, President Biden has kept his promise to roll back certain Trump administration travel and visa restrictions. For instance, President Biden has rescinded the so-called Muslim travel ban.

Biden has also rescinded Trumps categorical visa ban that prevented the issuance of certain common work visas, including H-1B and L-1 visas.

But the Biden administration remains strict about COVID-19 precautions, related international travel, and visa issuance. President Biden has maintained aspects of the previous Administrations travel restrictions and has even increased or added restrictions as global conditions evolve. Currently, there are four geography-based presidential proclamations that suspend entry into the United States of most foreign nationals who are physically present in any of 33 countries during the 14-day period prior to entry.

The geography-based travel ban countries currently include China, Iran, the Schengen Area, the U.K., Ireland, Brazil, South Africa, and most recently, India. While these orders only restrict the travel of individuals to the United States, anecdotally it has become clear that some U.S. consulates in these countries will notissue visas, even if the traveler intends to quarantine in a country not on the list and then enter the United States 14+ days later.

Fortunately, the geography-based travel/visa restrictions entail various exceptions. For instance, the restrictions do not apply to U.S. citizens and permanent residents (and parents of minor children who are U.S. citizens), and there are exceptions for travelers whose entry is deemed in the U.S. national interest.

Each U.S. consulate has its own processes to apply for a National Interest Exception (NIE), and thus travelers and employers are encouraged to investigate such processes on a consulate-by-consulate basis.

Besides the geography-based travel limitations, another way in which the Biden Administration is taking seriously the containment of COVID-19 is ongoing travelrelated mandates for masking and COVID-19 testing.

- With regard to masks, the administrations January 21, 2021 proclamation requiring airports, trains, intercity bus services, and other forms of public transportation to require masks to be worn in compliance with CDC guidelines appears to still be in force.

The most recent CDC guidelines regarding masks and public transportation, in turn, require travelers to wear masks, even if they are fully vaccinated.

This requirement is for travelers boarding, disembarking, or traveling on airplanes, ships, ferries, trains, subways, buses, taxis, and ride-shares. . . .

- With regard to COVID-19 testing, the same January 21, 2021, proclamation also requires all travelers (U.S. citizens and permanent residents included) to produce proof of a recent negative COVID-19 test prior to boarding an international flight to the United States and to comply with CDC guidelines concerning travel, self-quarantine, and self-isolation after entry. Critically, this requirement for a negative COVID-19 test prior to flying to the United States applies to everyone, including individuals who have been fully vaccinated.

IV.Data Security and Privacy: Considerations Related to U.S. Ports of Entry

As global travel slowly resumes, and employees embrace some of the work-from-home or digital nomad work arrangements permitted during the pandemic, employers should pay close attention to the data their employees store on company electronic devicesespecially if an employee will be traveling internationally and will be carrying a company electronic device. Given the explosion of work-from-home arrangements and the commensurate increase of employees taking company devices to their homes and with them while traveling, this is particularly timely.

Among professional-level employees, it is not always well-known how much discretion U.S. Customs and Border Protection officers at U.S. airports have in conducting warrantless searches of electronic devices carried by travelers. Americans generally assume they have a right to be free from unreasonable searches and seizures, as provided by the Fourth Amendment. But a well-established and significant exception to the 4th Amendment applies at U.S. ports of entry, whereby the U.S. government has nearly unfettered discretion to search individuals at the border and other ports of entry, including searching data contained on electronic devices. The extent of this broad power to search was recently confirmed by the First Circuit Court of Appeals in Alasaad v. Mayorkas, which involved challenges to the U.S. Customs and Border Protections (CBP) and U.S. Immigration and Customs Enforcements (ICE) electronic device search policies. See Alasaad, 988 F.3d 8 (1st Cir. 2021).

As described in Alasaad, there is a distinction between basic searches and advanced searches under the border search exception. Basic searches are routine searches that do not require reasonable suspicion. The scope of a basic search is relatively limited but it is far from non-intrusive. Border agents can make travelers present and unlock their electronic devices, and can then search for information on the device that is accessible through software applications present on the device.

Anyone who refuses the search can have their device seized for a certain number of days, can be detained themselves, and foreign nationals can be denied entry.

In advanced searches, officers can connect[] external equipment, through a wired or wireless connection, to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents. Alasaad, 988 F.3d at 13. According to the First Circuit, when it comes to advanced searches, officers only need reasonable suspicion of any crime. See id. at 20.

Note that CBP policy does not allow officers to search remote access data, that is, data in the cloud.

Employers should actively consider the potential costs and benefits to allowing employees to have access to work data on smartphones and other electronic devices. If allowed such access, employers should take several precautions, such as using strong encryption methods and requiring employees to completely shut down electronic devices before reaching any airports, deleting unnecessary sensitive data from their devices, and saving all sensitive data remotely (to the cloud).

Here is the original post:
The Great Reopening: Considerations for Employers as Employees Begin to Travel and Return to the Office - JD Supra

Scary Mommy and Nathan Howard/Getty

On May 13, the CDC (somewhat abruptly) issued new guidance for vaccinated folks. They wrote that vaccinated individuals no longer need to wear a mask in outdoor or indoor settings, except in hospitals, on public transit and unless required by state, local, or private mandates.

The new guidance came as a surprise for most of us, who assumed masks would be the last of the pandemic public health mandates to be lifted. The new guidance was met with an equal amount of hope (because it signals that the pandemic is nearing an end) and confusion. Confusion because the guidance doesnt recommend how to determine whether someones been vaccinated.

Businesses that dont want to rely on the honor system may begin to consider asking employees and customers for proof. Enter discussions about HIPAA. Folks who dont want to disclose their vaccination status are quick to point to HIPAA. Theyre wrong. Asking for proof of COVID vaccination is not a HIPAA violation.

HIPAA stands for Health Insurance Portability and Accountability Act. Its a federal law that was signed in 1996. Arguably, its one of the most misunderstood health laws in our country.

Originally, its purpose was to secure health insurance for employees when they were between jobs. In 2003, the Privacy Rule was put into effect. This rule does two things. One, it gives people the right to access their own medical information. And, two, it limits covered entities ability to access and share other peoples medical information without consent.

HIPAA prevents a covered entity from accessing or sharing your medical information without consent. Covered entities include health care providers, healthcare plans, and healthcare clearing houses (like billing companies), according to Katelyn Jetelina, who holds a Masters in Public Health and a PhD in Epidemiology and Biostatistics.

HIPAA is not a comprehensive privacy law. It applies to a very specifically defined subset of healthcare providers and folks who work in the healthcare space. Airplanes, grocery stores, your favorite restaurants are not covered entities and therefore not subject to HIPAA laws.

Kayte Spector-Bagdady, a medical ethics researcher at the University of Michigan confirmed as much. She wrote, HIPAA does not apply to the average person or to a business outside health care. It doesnt give someone personal protection against ever having to disclose their health information.

HIPAA does not protect someone from ever having to disclose their personal medical information. That includes disclosing whether theyve been vaccinated. Institutions can and often do require proof of vaccination before allowing admission.

Spector-Bagdady notes that, Institutions rarely have the right to require that you actually get vaccinated, but if you want to work somewhere in particular, or want others to provide you services (such as schools, or businesses, or travel), they might have the right to ask you to provide proof of vaccination first.

Thats why schools can require kindergarteners to show proof of vaccination before beginning school, why international travelers are required to show proof of vaccination to board plans to exotic locations, and why college students are required to show proof to live in a dorm.

More than simply being permitted to ask for vaccination status, Spector-Bagdady writes that some institutions may even have a legal obligation to protect others.

Jetelina, who writes as Your Local Epidemiologist, even encourages businesses to ask for proof of vaccination. She notes that doing so protects employees, the unvaccinated, and the immunocompromised, as well as the healthcare system itself from another surge.

Asking for proof of vaccination does not violate HIPAA, nor does it violate the Fourth Amendment or the 1964 Civil Rights Act. The Fourth Amendment, which protects folks from unreasonable search and seizure, applies only to the federal government. It does not apply to private businesses.

Likewise, neither the Americans With Disabilities Act nor the 1964 Civil Rights Act would prevent a business from asking a customer or employee about their vaccination status. The U.S. Equal Employment Opportunity Commission has confirmed that. In their guidance, the EEOC wrote, Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.

Businesses that ask for proof may be subject to other federal privacy laws, according to Carmen Roe, a legal analyst for KHOU. These laws have not yet been tested in courts in the way vaccination status would test them, and the result is unclear.

When businesses require proof of vaccination they are not requiring you to vaccinate. The choice to vaccinate or not is still yours. They are simply putting limits on what you can do in their space. Howard Markel, M.D., Ph.D., Director of the Center for the History of Medicine at the University of Michigan, explains it like this: You are free to make choices about vaccination, but all of our choices have consequences. It simply means you wont be able to go places or do things that will require you to show youve been vaccinated.

The COVID-19 vaccines are our path out of this pandemic. But they only work if theyre usedshots in arms. With mask mandates disappearing, its even more important that the unmasked person beside you in line is vaccinated, too. Businesses want to protect their employees and customers. In terms of requiring proof of vaccination as a way to provide that protection, HIPAA wont stand in their way.

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No, Asking For Proof Of Vaccination Is Not A HIPAA Violation - Scary Mommy