Category Archives: Fourth Amendment

New York rolled out its attempt at a vaccine passport called the Excelsior Pass, but it is a blatantly authoritarian move.

The Excelsior Pass allows people to document their COVID-19 vaccination status or a recent negative test for COVID-19. In exchange, people will receive permission to be allowed into social gatherings such as sporting events, art performances, airplanes and just about any other venue one could imagine.

However, such a pass like this one, developed and rolled out on behalf of the government, is an incredible violation of peoples privacy rights.

The COVID-19 vaccines are incredibly new and though the Centers for Disease Control and Prevention said that the vaccines are safe and effective, the government cannot ignore the peoples right to deny such a new vaccine. Nobody is sure of the vaccines long-term effects, as they have existed for only a year, if even that long.

Public confidence in the COVID-19 vaccine is not exceptionally high, though there are many who are confident that the vaccines are safe and effective. According to statistics from the Pew Research Center, about 60% of Americans intend to get a vaccine when eligible.

With plenty of conspiracies already afloat about the vaccinations, such as those that claim that Microsoft founder Bill Gates might be implementing a microchip to track people, a government push to vaccinate people by threatening them with exclusion from social gatherings is sure to fuel these conspiracies and lower confidence even further.

If the government restricts the peoples rights to privacy by mandating a vaccine passport, many will suspect authoritarianism to be the aftermath of the pandemic.

The Bill of Rights was designed to protect the people from an overreaching government. In particular, the Fourth Amendment was written to protect the peoples privacy from unreasonable searches and seizures.

A vaccine passport required by the government unreasonably intrudes into peoples lives by requiring them to upload personal documents in exchange for their natural rights to gather with other people freely.

The American Civil Liberties Union published a blog post on March 31 arguing that theres a lot that can go wrong with vaccine passports.

But given the enormous difficulty of creating a digital passport system, and the compromises and failures that are likely to happen along the way, we are wary about the side effects and long-term consequences it could have, ACLU Senior Policy Analyst Jay Stanley said.

Florida Gov. Ron DeSantis issued a strong rebuke of vaccine passports on April 2, signing an executive order prohibiting government agencies and private businesses in Florida from requiring a vaccine passport.

Its completely unacceptable for either the government or the private sector to impose upon you the requirement that you show proof of vaccine to just simply be able to participate in normal society, DeSantis said at a news conference, as reported by The New York Times.

However, The New York Times does note that DeSantiss order could face legal challenges, including under the precedent of Supreme Court case Jacobson v. Massachusetts, where the high court upheld the authority of states to enforce compulsory vaccination laws.

Additionally, private businesses rights to require proof of vaccination could also challenge DeSantiss order.

Proponents of a vaccine passport argue that it is the safest way to reopen society. Disgraced New York Gov. Andrew Cuomo called the states Excelsior Pass thoughtful and science-based in his 2021 State of the State Address.

As more New Yorkers get vaccinated each day and as key public health metrics continue to regularly reach their lowest rates in months, the first-in-the-nation Excelsior Pass heralds the next step in our thoughtful, science-based reopening, Cuomo said.

However, vaccine passports are not necessary for safety.

Scientists and doctors, including Director of the National Institute of Allergy and Infectious Diseases Dr. Anthony Fauci, have repeatedly said that herd immunity is attainable when 70% to 85% of the population is immune to the virus. If this is true, the country wouldnt need a vaccine passport as it approaches this target.

Not only would a vaccine passport to engage in daily activity be an incredible violation of privacy, but it would also be useless.

More:
Vaccine passports are violations of personal privacy - The Ticker

Im writing to voice my opposition to Senate Bill 1110, which clearly is intended to prevent citizen-based initiatives. Heres why: It is damaging to our democratic republic.

Democracy is like the web of life pluck one part of the web, and the rest vibrates.

Should the Idaho Legislature decide it doesnt like bugs because they crawl, fly, bite, sting, make webs and lay eggs, and thus legislate the killing of so many of them that they wont survive, what will happen?

There soon would be no fruits or vegetables, then no meat-providing animals that feed on them and then no people.

SB 1110 would be like a leg toward constructing a totalitarian form of government. Such a government does not contain the seeds of its own demise; it is the seed of its own demise.

Our democratic republic was created as our basic form of government to prevent the disaster of a totalitarian form of government. Even so, it needs to be cared for and defended.

Keep democracy healthy in Idaho by defeating this unfortunate bill.

During a recent trip to the left U.S. (Oregon), we stopped for a walk in a small town of course it was mostly shut down by the virus B.S.

However, we saw a great sign posted on the door of one business, quoted as follows:

Those in government have ordered all persons entering indoor facilities wear a mask. If you have a medical condition that prevents you from wearing a mask you are exempt from this order. Due to HIPAA and the Fourth Amendment, we cannot legally ask you about your medical condition. Therefore, if we see you without a mask, we will assume you have a medical condition and we will welcome you inside to support our business.

Good sign. Good point. One piece of government overreach conflicts with the other piece of government overreach.

Original post:
April 9 Letters to the Editor: Our Readers' Opinions - Lewiston Morning Tribune

Can the police enter your home and confiscate your weapons without a warrant? Thats the question the Supreme Court is getting ready to decide in Caniglia v. Strom. But the answer wont be found in the Second Amendment. Instead, the Court will consider whether the police violated a Rhode Island mans Fourth Amendment right against government intrusions into the home when they entered his house to take away his guns without a warrant.

Mr. and Mrs. Caniglia had an argument the night before in which Mr. Caniglia dropped a gun on the table and dramatically told Mrs. Caniglia to shoot him and get me out of my misery. Understandably, she spent the night away in a motel room following this oral dispute. When Mrs. Caniglia came home the next morning, she brought the police with her because she worried Mr. Caniglia might have harmed himself. But when Mr. Caniglia answered the door, he dealt with the police rationally and informed them he was not suicidal. They ordered him into an ambulance for a psychiatric evaluation at a nearby hospital anyway, and then searched his house and confiscated his guns.

The Fourth Amendment protects Americans homes from searches by government agents, whether they are police officers searching for evidence of crime or county inspectors looking for regulatory violations. This part of the Constitution protects our property in two important ways. First, it ensures due process of law by requiring government agents to justify a search or seizure by convincing a judge that it is necessary before carrying it out. And second, it relies on the separation of powers by insisting that a judge decide whether a search or seizure of a person or property is justified by law and sufficiently limited in scope to protect against arbitrary invasions of privacy.

Caniglia v. Strom presents the Court with the question of whether the officers were required by the Fourth Amendment to seek a warrant from a judge before entering the house, rather than deciding for themselves that a search was justified. There are obvious reasons why judges, rather than police officers, should decide whether a search or seizure is legal before entering someones home. Officers want to investigate and enforce the laws. Judges, by contrast, are neutral. To give police the power to decide whether their intrusions on private property are reasonable puts individuals property and privacy interests at risk.

But what about emergencies? Indeed, in the case of emergencies, there is no time to go through the formal process of obtaining a warrant. But the lower court in Caniglia specifically avoided considering whether the search of Mr. Caniglias house was based on an emergency. The decision of the federal Court of Appeals that Mr. Caniglia appealed from specifically set aside all of the legal doctrines that typically allow for warrantless searches and seizures in the context of emergencies. Instead, it decided that the police can enter a house any time they need when they are engaged in community caretaking functions. If youre confused about what a community caretaking function is, you arent the only one.

A rule that requires police to get a warrant before entering a home, except in emergency situations, is clear. The community caretaking justification offered by the appellate court provides little guidance to police officers or security to homeowners against unjustified searches and seizures.

If the Supreme Court affirms the First Circuits holding, then American homes could be opened up to more and more warrantless intrusions by government agents. It would be an open question whether an officer could enter a private home without permission to enforce COVID restrictions, or whether a social worker or other bureaucrat could enter to perform a suspicionless welfare check on children or pets.

In fact, during the recent oral arguments in the case, Justice Amy Coney Barrett asked the lawyer for the officers whether their proposed community caretaker rationale for home searches would let a police officer enter a residence without a warrant to enforce COVID restrictions limiting in-person gatherings. His answer was Yes.

Fortunately, the purpose, original meaning, and text of the Fourth Amendment are clear enough to give the Supreme Court justices all the reason they need to hold that in the absence of an emergency, the government must obtain judicial permission to enter a private house. Thats why Pacific Legal Foundation submitted this amicus curiae brief explaining why the fundamental property and privacy interests of American homes will yield to the government only where it has obtained judicial permission to enter or is responding to an ongoing emergency.

The Fourth Amendment was inspired by the Framers desire for more freedom against arbitrary government invasions of their property. With our help, the Court will hopefully remember this when deciding Caniglia v. Strom.

See the rest here:
Can the police enter your house and take your stuff without a warrant? - Pacific Legal Foundation (PLF)

A poster of George Floyd hangs outside the Hennepin County Government Center, where the trial of Derek Chauvin is taking place. (Chris Tuite / ImageSPACE / MediaPunch / IPX)

Thank you for signing up forThe Nations weekly newsletter.

There is nothing unique or interesting about the defense strategy employed by the lawyers for Derek Chauvin. The trial has produced no made-for-television stunts or rhetorical flourishes. Theres no bloody glove, no rhyming couplets. Chauvins defense is so basic that an attorney straight out of law school could pull it off. His lawyers are simply arguing that cops have the right to kill people, if they think they need to.

That strategy might seem foolish to the untrained eye. After all, there is incontrovertible video evidence that Chauvin did not need to kill George Floyd. The video shows that Floyd posed no threat to the police or anybody else: He was prone and handcuffed while Chauvin slowly choked the life out of him over the course of eight minutes and 46 seconds. Any reasonable human being can see that Chauvin should have taken his knee off of Floyds neck.

But the defense lawyers know that the law does not require Chauvin to behave like a human being; it only requires him to behave like a cop. It doesnt hold cops to an objective standard of behavior. Instead, the law allows an individual cops own frailtiestheir fears, their racist misconceptions, and even their own hysteriato define the scope of acceptable cop behavior. If Chauvins lawyers were better showmen, theyd be telling the jury, If Chauvin could imagine being hit, you must acquit.

As it is, Chauvins attorneys have taken to citing the 1989 Supreme Court case Graham v. Connorand doing it so frequently that youd think a man named Graham V. Connor told Chauvin he could get away with murder. In a way, thats exactly what the case did. Graham v. Connor changed the use-of-force guidelines for police all across the country, allowing them to be more violent and homicidal.

To understand how one case has authorized brutality, you have to appreciate that our only real constitutional protection from police violence is the Fourth Amendments prohibition on unreasonable search and seizure. Unreasonable was, naturally, poorly defined by the collection of white men who wrote and ratified the Constitution and determined that things such as slavery and genocide were totally reasonable uses of state power. Still, for most of American history, the Fourth Amendment followed a reasonable [white] man standard: The actions of the government, or its agents, were judged through the lens of what an average person would find reasonable.

In practice, this allowed for plenty of abuse. Victims of police brutality had to show that officers acted unreasonably and with malicious intent. As one can imagine, it was always hard for victims (or their surviving family members) to prove that a violently homicidal police officer intended to kill them. Before camera phones, it was nearly impossible to get white people to believe the cops acted like Black people have always said they do.

Graham v. Connor took this loophole and made it so big that whole police forces could simply saunter right through it. Instead of limiting police use of force to what a reasonable person might expect, the Supreme Court said that force could only be judged against what a reasonable officer on the scene would do. In the actual Graham v. Connor case, that meant the court found that a reasonable officer could slam Dethorne Grahams head into his car and break his foot, because Graham was resisting arrest, never mind that he was a diabetic going into shock who was being detained on the suspicion that he stole some orange juicewhich he did not.Current Issue

Subscribe today and Save up to $129.

Graham v. Connor was authored by the conservative Justice William Rehnquist, but the decision was unanimous. The liberals on the court thought this new reasonable officer standard was an upgrade over trying to prove malicious intent.

History has proven them woefully wrong. Graham v. Connor is the reason every officer accused of murder claims I feared for my life. Its the reason most officers are never charged in the first place and the reason a police officers saying I thought he had a gun nullifies the objective truth that a suspect was unarmed. Since Graham v. Connor, it doesnt even matter if the police are malicious or not; they can be malicious so long as they can argue that a reasonable police officer would be just as malicious under the circumstances. The result is a self-fulfilling loop of violence: As additional officers respond violently to situations, it becomes easier for other officers to argue that violence is a reasonable police response in a similar situation in the future.

And Graham v. Connor does all that before we get to the racism. Those who have watched the Chauvin trial have undoubtedly noticed the string of racist bread crumbs laid out by the defense about Floyds apparent strength. There is a long and ugly history of white people ascribing super strength to Black people as a way to justify the use of deadly force against those Black people. Theres even a controversial medical term, excited delirium, that is often cited by the police to explain why they just had to kill an unarmed Black person.

At trial, Chauvins lawyers have argued that even after Chauvin choked Floyd unconscious, he needed to keep choking him, lest Floyd regain consciousness and access his hidden reservoir of big Black power. Theyve argued that the crowd, the group of bystanders who filmed the murder, might have encouraged Floyd to wake up and start beating Chauvin and the other police officers at the sceneall by himself. When the defense gets to call witnesses, I half expect them to put Bruce Banner on the stand to testify that its not gamma radiation but colored melanin that makes him swole.

If you like this article, please give today to help fund The Nations work.

All of this racism isnt being offered by the defense to confuse the issue. Its not a sideshow. It goes to the heart of their Graham v. Connor defense. If they can convince even a single juror that large Black people can beat up four cops while almost dead, then they can convince them that a reasonable cop would keep his knee on a mans neck for nearly 10 minutes. Thats why, during cross-examination, the defense keeps asking the cops who are testifying as witnesses against Chauvincops who are being called specifically to rebut Chauvins idea of a reasonable officerquestions prefaced with Is it possible? and Have you ever heard of? Is it possible that Floyd could have entered an excited delirium state and then posed a threat to the officers? Have you ever heard of a person waking up from being choked unconscious and then hurting somebody?

The defense lawyers arent asking about what actually happened. In reality, Floyd never posed a threat and never was allowed to wake up, because Chauvin killed him right there on the street. His lawyers are asking about a fantasy world of what might have happened if Floyd were the supernaturally dangerous man Chauvin wanted him to be, instead of the real world where Chauvin tortured and murdered a normal man in a cold-blooded way.

This will all come together during closing arguments. Chauvins lawyers will argue that if its possible that Floyd could have called upon the strength of his ancestors and the spirit of the Black Panther to re-breathe and crush his enemies, if Chauvin could have reasonably feared that zombie-Floyd would reanimate himself and come for Chauvins brains, then a reasonable police officer would continue suffocating him until there was no chance of revival. Because police officers have the right to go home.

Thats an entirely valid legal argument under our current laws. The legal debate about whether an officers actions are justified now takes place within the hysterical headspace and fever dreams of a cop, instead of on the plane of objective reality.

I dont know if the cop defense will work this time. First of all, Black people do not have superpowers, and it is unreasonable to think that they do. Secondly, Im not the only one saying that: This time, there are other cops testifying against Chauvin, arguing that what he did absolutely defied police training, policy, and procedure. I think its pretty hard to argue that you are a reasonable cop when other cops testify against you.The Chauvin Trial

But the fact that this is even considered a valid defense strategy illustrates, once again, that our laws are objectively pro-police brutality. The Supreme Court has given cops license to kill people, and the only limit it has placed on that violence is what another cop would do in the same situation. Its like a chef telling sheep the wolf gets to set the menu.

Congress could repudiate the courts holding in Graham v. Connor and set a new national use-of-force guideline tomorrow, if it wanted to. State governments could define reasonable force as something more robust than whatever the cops say, if they wanted to. Many Democratic presidential candidates, from Julin Castro to Cory Booker to Kamala Harris, supported new national use-of-force guidelines and restrictions that, if adopted by states, could render the Chauvin defense inoperable for future murderous cops. But the person who won, President Joe Biden, was not one of them. Biden favors community policing, accountability review boards, and bringing people together to figure it out, but he hasnt been out front on changing the actual legal standard cops use to get away with murder (or packing the Supreme Court with the kind of liberals who will do it on their own).

Unless Biden and the Democrats use their moment of total control of government to change the Graham v. Connor standard, the next cop who shoots an unarmed Black person will claim he feared for his life. And the next one after that. And all the other next ones who will brutalize and kill in this country that refuses to address the state-sponsored terrorism directed against Black bodies.

When you watch the Chauvin trial and listen to the defense put on their case, remember that all the victim blaming, fearmongering, and racism is not a fancy lawyer trick aimed at subverting justice. Its a policy choice, made by the Supreme Court.

Read the original:
How the Supreme Court Gave Cops a License to Kill - The Nation

Every day, Kimberly Beck wakes up feeling empty.

In her head, she runs through the body cam footage that shows the last moments of her sons life.

At the end of her day, she goes to bed missing a piece of her, missing her son, and then repeats the routine the next day.

Its been over a year since Gage Lorentz, 25, died at the hands of National Park Service Ranger Robert Mitchell in New Mexico at Carlsbad National Park.

And the family says they are still seeking justice.

It doesnt get any easier, Beck told The Daily Sentinel. I think one of the most difficult things is having to sit and watch no one be held accountable and try to put together the pieces of how this could have even happened.

Beck and Lorentzs father, Travis, have employed the help of Shannon Kennedy, a New Mexico civil rights attorney who represented the family of James Matthew Boyd, a man who was shot to death by police in Albuquerque in 2014.

The family filed a lawsuit against Mitchell, the ranger involved with Lorentzs death. The suit alleges that Mitchell used excessive force in a violation of Lorentzs Fourth Amendment Rights.

Lawyers used to say that federal court is where civil rights cases go to die, Kennedy said. But were not going to let that happen. This case will not die. Justice will be served.

On March 21, 2020, Lorentz was driving home to Montrose from working in a Texas oil field when Mitchell pulled over Lorentz for allegedly speeding. Body cam footage shows Mitchell asking Lorentz to take his hands out of his pockets, then quickly draws a taser and appears to fire.

Then, the footage stops for about 26 seconds.

When it resumes, Lorentz, is on the ground and Mitchell appears to shoot Lorentz twice once in the leg and another in the chest. Mitchell claims it was out of self defense.

The rangers actions were out of line and the first shot rendered my son helpless. And there was no need for him to fire that second shot, Beck said. Where do you draw the line between what is abuse of power by these people in a position of law? Theyre supposed to serve and protect, yet theyre taking lives.

On Wednesday, Kennedy submitted a stipulated dismissal of the claim that Mitchell failed to provide adequate medical care after the first shot to Lorentz. Video shows that Lorentz didnt receive first aid until about 12 minutes after being shot. The U.S. Attorneys Office claimed qualified immunity on that count, so Kennedy said withdrawing the charge will avoid unnecessary delay in the case.

While the civil court battle ensues, the family is trying to raise community awareness.

In October, Lorentzs family and friends organized a march through downtown Grand Junction. They organized another through downtown Montrose last month to coincide with the one-year anniversary of Lorentzs death. That demonstration drew a crowd of about 50 people, which was inspiring to Beck given the size of Montrose.

Raising awareness is key to their fight. Part of the suit is to pursue monetary gains, but the family is vocal about wanting to ensure that the shooting deaths of unarmed citizens comes to an end.

Weve tried to wake people up to being aware that this is happening in your own backyard, and it can happen to you and your family. Gage was a Fruita boy and was a country boy. Youre not immune to it, Beck said. This should matter because of the fact that somebody in a position of power abused that and stole my sons life. If we dont do something, its going to keep happening.

Beck and her family arent alone.

Lorentzs death is one of the pieces in a national movement against the shooting deaths of unarmed people at the hands of law enforcement.

The trial of Derek Chauvin is underway. Chauvin, a white Minneapolis police officer, is accused of murdering George Floyd, a black man. Floyds death sparked one of the largest civil rights movements in U.S. History.

Though circumstances around Floyds and Lorentzs death differ as do the ensuing legal battles Kennedy thinks both cases are alike.

Both were denied medical care. The shot to Gages upper thigh was very treatable had he received medical care instead of a shot to his chest. In both cases, we see depravity from officers, Kennedy said. I hope this is one of the last cases like this I have to take. I think were at a turning point in our culture. With the death of Gage and the footage of George Floyd, I hope well take a look and say that we need to invest in change.

Kennedy and Beck are calling for cultural change, too. Kennedy said that Mitchell displayed whats called the warrior mindset, a mantra that argues for officers to act as a soldier or fighter.

Instead, Kennedy said, they want park rangers to abide by the guardian mindset, which considers officers as defenders.

On the legal side, Kennedy is pushing for the missing 26 seconds of body cam footage to be released.

Nothing will fill the hole left by her son, but Beck hopes systemic change will spare other families from the same pain.

Everything else across the country has steps and things taking place. Here, we have no answers, Beck said. Its been one of the most difficult things, and all I can do is stay strong because I know thats what my boy would want.

Read the rest here:
Montrose family continues fight after shooting death of son - The Grand Junction Daily Sentinel

In the 1950s and '60s we were taught government, including the U.S. Constitution, in a boring fashion by the football coach. Most people my age can relate to that experience. Here are three thoughts (from unlimited examples) of how our government is abusing our Constitution and how we are allowing it to happen.

Voting rights 10th Amendment: the states specifically are in control of their voting laws. By U.S. law the federal government has no say on this. Georgia, Iowa and many other states are trying to make voting more secure, while the federal government and a few states in the last election are trying to loosen voting requirements under the guise of voting rights being too restrictive. This interference is prohibited by the constitution. Nancy Pelosi finally gave up to overturn a legally certified vote in Iowa as this is an attack on our U.S. Constitution and U.S. law. President Joe Biden has even been on TV claiming the legal system of states rights in voting is despicable, terrible, racist, sick and un-American. Pelosi, Biden, and all other politicians are sworn to defend, not attack, the Constitution. Federal interference is illegal.

Unreasonable search and seizure Fourth Amendment: There is a case before the U.S. Supreme Court where a man had two guns illegally taken by police with no warrants or cause. The government and Biden are arguing in court this is somehow legal. If this illegal search and seizure is allowed to become precedent, then the Fourth Amendment is gone and gun seizure will happen.

Right now the U.S. Capitol is surrounded by Federal troops to protect our government officials. You cant call the White House to leave a message. Our government is ignoring federal law by not closing our southern border. This is the United States?

Read the original post:
LETTER: We are allowing abuse of the Constitution - Dyersville Commercial

Together, the Declaration of Independence and the U.S. Constitution form what Gunnar Myrdal called the American Creed. The Declaration, written in eloquent, glittering generalities, invokes the Deity and inalienable rights, speaks of self-evident truths and asserts the right of revolution in the event that government grows tyrannical. It reflects passion, drama, hope and certitude. It speaks of majestic ends, which Abraham Lincoln characterized as the sheet anchor of the republic. It is relevant, personal and present. No wonder the masses gravitate to its trumpet call. The Declaration is warm and emotionally available.

If, for Americans, the Declaration of Independence is poetry, the Constitution is prose. The Declaration supplies the ends, the Constitution the means. But lets be fair to the Constitution, which, while it lacks the elegant expressions and grand language that shape the Declaration, is not without its own glory, creation story and unique standing in the history of the world.

The Constitution is also relevant, present and personal. It is the nations governing document, indeed, the law of the land, but it is not remote. In fact, its limitations on governmental power are real, reassuring and protective in nature. Its declaration of rights, liberties and freedoms asserts the nobility, integrity and dignity of the American people. The relevance of the Constitution to every generation is self-evident, glimpsed in the availability of the Amendatory Clause, which may be utilized to render the Constitution more adequate to changing circumstances and needs of the times. In fact, the Constitution has been amended 27 times by the citizenry across a vista of two centuries for the purpose of expanding the rights and liberties of more Americans as views and values about inclusion have evolved over time.

The Preamble to the Constitution waded hip-deep into the centuries-old debate about the purpose of government and boldly declared the American perspective, grounded in the radical, democratic idea that We the People through ratification, do ordain and establish this Constitution. That lofty statement, alone, deserves a salute, for it represents the culmination of an historic effort, launched by dissenters in 17th Century England, to place the ultimate legal and political authority of a nation in the hands of the sovereign people.

Approval of the Constitution by the citizenry, the fulfillment of the Declarations assertion of the right of the people to consent to governmental authority, made it personal. The Constitution had not been imposed or forced upon the nation; rather, it reflected choices made by the people themselves. No other nation in the history of the world could lay claim to such a unique status.

The Constitution is relevant to the lives of the American people, often on a daily basis. Consider, for example, that because of the First Amendments Free Speech Clause, the government in the United States cannot tell us what to think or believe about politics, religion, art, science or literature. This libertarian philosophy was beautifully captured by Justice Robert H. Jackson in his landmark opinion in West Virginia Board of Education v. Barnette (1943), in which the Supreme Court struck down a compulsory flag salute statute. If there is any fixed star in our constitutional constellation, Jackson wrote, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

The personalized Constitution protects the right of Americans to exercise freedom of religion, if they choose to do so, the right of the press to inform the citizenry through the Free Press Clause, the right to keep and bear arms through the Second Amendment and protection against unreasonable search and seizure by virtue of the Fourth Amendment.

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.

Send questions about the Constitution to Dr. Adler at NDWTPColumn@gmail.com and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.

The personalized Constitution, moreover, protects the right to privacy and birth control on the basis of the Ninth and 14th amendments, the protection of private property through the Fifth and 14th amendments, the guarantee of equal protection of the law as a consequence of the 14th Amendment and, on the basis of the Sixth Amendment, the critical right to counsel, a speedy and public trial and the right to an impartial jury.

Many parts of the personalized Constitution still command our loyalties, respect and even affection. As much as anything else, this personal Constitution invites us to think critically about its adequacy, for we are free to amend it when desirable.

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.

Send questions about the Constitution to Dr. Adler at NDWTPColumn@gmail.com and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.

See original here:
Personalizing the Constitution | Columnists | willistonherald.com - Williston Daily Herald

Torres v. Madrid et al.U.S. Supreme CourtMarch 25, 2021

Officers Madrid and Williamson entered an apartment complex to execute an arrest warrant for a woman accused of white collar and violent crimes. The officers observed Torres standing near her car in the parking lot and approached her. Torres, at the time experiencing methamphetamine withdrawal, got into the drivers seat and, thinking the officers were carjackers trying to steal her car, hit the gas to escape them. Both officers fired 13 shots to stop Torres, striking her twice in the back and temporarily paralyzing her left arm. Torres sought damages alleging a civil rights violation under 42 U. S. C. 1983. She argued the shooting was a seizure under the Fourth Amendment, even though she was not subdued; and that the officers used excessive force. The District Court granted summary judgment to the officers and the Tenth Circuit affirmed.

The Supreme Court analyzed whether the application of physical force is a seizure if the force, despite hitting its target, fails to stop the person. In a 5-to-3 split decision, with Justice Barrett taking no part, the Court held that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued. As such, the officers seized Torres by shooting her with intent to restrain her movement.

The majority reasoned that the application of physical force to a persons body for the purpose of arresting him or her is an arrestnot an attempted arresteven if the person does not yield. Mere touch is sufficient for arrest; and no party or amicus curiae had argued that use of bullets to restrain Torres made a difference in the analysis. The majority also clarified that the use of force must be made with objectively manifested intent to restrain in order to constitute an arrest. The seized persons subjective perceptions do not alter the objective test, which is measured by the officers conduct.

The dissenting Justices criticized the majority for applying principles of common law civil arrests (of debtors) to a criminal arrest. They argued that criminal arrest requires an officer to acquire possession, focusing on intentional acquisition of physical control. It warned that the majority was creating a new cause of action in exceedingly rare cases: non-conscience-shocking-but-still-unreasonable batteries intended to result in possession that dont achieve it. The dissent also tested the scope of touchings by giving examples of other weapons possibly used during arrest. The majority had limited its holding to force used to apprehend and declined to opine on matters not presentedpepper spray, flash-bang grenades, lasers, and the like.

The decision was limited to the seizure issue and did not address Torres claim that the seizure was unreasonable. The Court remanded the case for decisions on the reasonableness of the seizure, damages caused by the seizure, and the officers entitlement to qualified immunity.

See more here:
The Application of Physical Force to the Body of a Person with Intent to Restrain Is a Seizure Even if the Person Does Not Submit and Is Not Subdued -...

On January 8, 2014 Alexander Baxter was sitting on the basement floor of a Nashville home with his hands in the air. He had been chased by the police after committing a burglary and now he had surrendered. According to Baxters court claims, even though he was not a threat to police, they released a police dog named Iwo on him and the K-9 proceeded to bite him. Availing himself of the protections of the Civil Rights Act of 1871, he sued officers Brad Bracey and Spencer Harris for violating his constitutional rights. But his claim quickly ran into the buzzsaw of qualified immunity, a judicially created principle which protects government agents from being personally sued.

Qualified immunity is not a law passed by Congress and signed by a president, but a doctrine created by the Supreme Court in the 1960s and expanded in the 1980s. It began as an attempt to shield government officials who, acting in good faith, had nonetheless violated someones rights. In less than two decades the protection expanded to protect even those who had knowingly violated someones rights. Decade after decade the bar that a victim had to clear in order to seek relief got higher and higher, finally culminating with the idea that the constitutional violation had to be clearly established by another court in a previous ruling. Courts, including the Supreme Court, interpreted this to mean that in order to sue, a victim would have to point to another very similar case in which a court had ruled that someones rights had been violated and could sue the person responsible.

In Baxters case it seemed like even that high bar would be cleared: a precedent appeared to be in place that would allow him to sue. In a 2012 decision the Sixth Circuit Court of Appeals had ruled in Campbell v. City of Springboro that a man who had lain down on the ground to surrender to police and was nonetheless attacked by their dog could sue the officers involved for excessive force. In the Campbell and Baxter cases both men had already surrendered to police; both men were on the ground and both men were attacked by police dogs. It seemed clear that these similarities would allow the high bar of qualified immunity to be overcome.

The district court agreed and said that the police officers could be sued. However, a different three-judge panel of Sixth Circuit Court of Appeals, the same court that had ruled previously in the Campbell case, decided the officers involved in Baxters case could not be sued, writing in their decision that the officers conduct...did not violate any clearly established right. Moreover, they wrote we have held that officers cannot use an inadequately trained canine, without warning, to apprehend two suspects who were not fleeing. But just as clearly, we have upheld the use of a well-trained canine to apprehend a fleeing suspect in a dark and unfamiliar location.

For the three judges of the Sixth Circuit who heard Baxters appeal the differences between his case and Campbells were significant enough to mean that Baxter did not have a clearly established constitutional right to not be bitten by a properly trained police dog after surrendering while sitting on the floor with his hands in the air.

Rather than decide if the officers conduct was constitutional to begin with, when it comes to qualified immunity a court need only consider a different question: whether the constitutional right being violated had previously been clearly established by another court. If the answer is no, then the case is dismissed without ever answering the first question.

Through qualified immunity law enforcement officers and other government employees enjoy a kind of personal legal shield that members of the private sector do not. Even after a year of Black Lives Matter protests the doctrine of qualified immunity remains unknown to most people though it is one of the strongest protections law enforcement officers have.

In August of 2020, Baxters case was one of seven involving qualified immunity that the U.S. Supreme Court declined to hear, effectively ending his search for justice. Strikingly, conservative Associate Justice Clarence Thomas dissented, stating that the court should have given Baxter his day in court. Justice Thomas noted the history of the Civil Rights Act of 1871 in his dissent, writing: Congress sought to respond to the reign of terror imposed by the Klan upon Black citizens and their white sympathizers in the Southern States. In his dissent Thomas stated that the law gave individuals a right to sue state officers for damages to remedy certain violations of their constitutional rights and that I continue to have strong doubts about our qualified immunity doctrine.

The central problem of qualified immunity is that it allows officers to get away with violating the Constitution, said Scott Michelman, legal director the ACLU of Washington, D.C., who represented Baxter. Because the court of appeals held that immunity applies, Mr. Baxter will get no compensation for the vicious dog attack that he experienced and that sent him to the hospital. So qualified immunity is the difference between compensation for constitutional violations leading to serious injuries and completely being shut out of court, he added.

Ignorance of law excuses no one except perhaps a police officer

It is a concept ancient enough to be enshrined in the Old Testament in Leviticus and have its own Latin catchphrase, ignorantia juris non excusat. Just because you dont know that you are breaking a law doesnt mean that you wont be held responsible for your misdeeds. Except, perhaps, if you are a police officer accused of stealing more than $200,000. The U.S. Ninth Circuit Court of Appeals ruled that Fresno, California police officers who were accused of stealing money while serving a search warrant, were protected by qualified immunity.

Judge Milan Smith wrote in his opinion for the three-judge panel that At the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant. For that reason, the City Officers are entitled to qualified immunity.

The court found that even though there was a previous case that ruled that theft by police officers was unconstitutional, the facts in this case differed enough that the high bar to overcome qualified immunity was not satisfied. Going further, Judge Smith wrote, Although the City Officers ought to have recognized that the alleged theft of Appellants money and rare coins was morally wrong, they did not have clear notice that it violated the Fourth Amendment.... Not all conduct that is improper or morally wrong, however, violates the Constitution.

When it comes to really anybody except for government officials and law enforcement officers theres an expectation that people will follow the law, Amir Ali, deputy director of the Supreme Court and Appellate Program at the MacArthur Justice Center, said in an interview. And you can show that a law enforcement officer violated your constitutional rights, meaning that a police officer did something that no reasonable officer would have done in the circumstances to you... and thats not going to be good enough. A court will tell you thats fine, but to overcome the defense of qualified immunity youve got to show something more and governments have really been handed this powerful defense that allows them to escape accountability for even rather egregious acts, he added.

A hard fight made harder

Even when someone is allowed to sue, and a jury finds police officers liable, qualified immunity can still be used as grounds to reverse the jurors decision.

It was a spring evening in 2015 when Matthew Jones walked down the stairwell of his East Harlem apartment building in New York City. He was meeting his uncle to return a prescription bottle and some cash that he owed him. As he met his uncle, they were stopped by officers Michael Vaccaro and Adam Muniz on suspicion of selling drugs. The officers told Jones and his uncle to step out of the stairwell and into a hallway, which they did. Jones also consented to be searched which is when the officers found the prescription bottle, and they then used this as grounds to arrest him. The uncle fled and the officers tried to handcuff Jones who began asking what he did wrong.

The officers claimed that Jones tried to turn around and swing at them which is why they swept his legs out from under him and pinned him to the ground face down. They called for backup and other officers soon arrived on the scene. At this point Jones was still face down and pinned but not fully cuffed and, according to court records, officers hit him with a metal baton on his arm and used pepper spray on him as well, claiming he was resisting arrest, which Jones claimed during the trial was false.

Sergeant Christopher Treubig (who was later promoted to lieutenant and captain) arrived on the scene and, according to court records, Lt. Treubig announced that he was going to use his taser which Jones said he did not hear. The lieutenant used his Taser once for five seconds, sending a powerful electric shock through Joness body, which left him lying on the ground, helpless. Still, the lieutenant felt Jones was not sufficiently incapacitated and pressed the trigger on his Taser again, sending more electricity into the suspect. After this Jones was handcuffed but had sustained enough injuries that he was brought to the hospital. According to court documents he was charged with resisting arrest among other things, but the charges were eventually dismissed.

Jones filed a civil rights lawsuit against Lt. Treubig for excessive use of the Taser and a civil jury found in his favor, awarding him $30,000 in punitive damages. During the trial Lt. Treubigs attorneys tried to get the case dismissed under qualified immunity, but the judge denied that motion and allowed the case to go to the jury. The NYPD lieutenant then challenged the verdict against him, again claiming that he was protected by qualified immunity. The district court at this point found in his favor because, at the time of Jones arrest, the court said there was no clearly established law that using a Taser two times in rapid succession constituted excessive force under the particular circumstances of this case.

If any other person had violated Mr. Jones rights, if it were a doctor who violated the law or a construction worker who violated the law, the question in court would be: did that person violate Mr. Joness rights? And thats what he would be expected to prove to get relief. But thats not so when it is a police officer or other public official, Amir Ali, who is representing Jones in his lawsuit, told the Amsterdam News.

In that case, its not enough to show that the person violated your rights. In fact, in Mr. Joness case, a jury specifically found that his constitutional right to be free of excessive force was violated, and neither the District Court nor the city disputed that after the trial. Everybody agreed that this officer, by Tasing Mr. Jones when he was already incapacitated, violated his constitutional rights, he added.

When Jones appealed, the U.S. Court of Appeals for the Second Circuit did something astonishing: it threw out Lt. Treubigs claim of qualified immunity and ruled in favor of Jones. The court ruled that before Lt. Treubig used his taser on Jones that it was clearly established in this Circuit that it is a Fourth Amendment violation for a police officer to use significant force against an arrestee who is no longer resisting and poses no threat to the safety of officers or others.

The case the court cited involved the excessive use of pepper spray and not a Taser, which other courts could have used as a reason to uphold a qualified immunity defense. But the Second Circuit ruled otherwise writing notwithstanding that the focus of this appeal is the use of a taser, not pepper spray, we have warned that [a]n officer is not entitled to qualified immunity on the grounds that the law is not clearly established every time a novel method is used to inflict injury.

This is significant because the Supreme Court has essentially instructed lower courts that they need to find a nearly identical case that proved an officers actions were already considered unconstitutional. But this court ruled that it was not the detail of pepper spray or Taser that was important, it was that excessive force was used even after the suspect was not a threat that was central to the claim.

The high bar the Supreme Court has set has been a huge obstacle to those trying to file civil rights lawsuits.

Because courts can dismiss cases by saying the violation was not clearly established at the time the officer acted, the courts never actually get around to deciding whether what the officer did was, in fact, a violation, said Brian T. Fitzpatrick, the Milton R. Underwood chair in Free Enterprise at Vanderbilt Law School, in an interview about the challenges qualified immunity poses.

The courts never get to the merits of the actual case. They just dismiss it at the beginning by saying Oh, even if this was wrong, it wasnt clearly established, so we never get law that is clearly established that people can use to sue later, because the courts dismiss every new factual case that comes before them on qualified immunity grounds. So, it basically never allows the law to develop and never allows new things to become clearly established, and so it really puts people who have been victims of illegal conduct by government officials in a no-win situation. You cant sue because it wasnt clearly established, and you cant clearly establish it because youre not allowed to sue, he added.

In the end Jones, unlike hundreds of others, was able to hold a police officer accountable for violating his civil rights, though he is still waiting for his settlement. Treubig is now a captain in the NYPD and, according to a search of publicly available records, he was not disciplined by the NYPD for actions that a jury found were an unconstitutional violation of Jones rights. Without the ability to sue Treubig directly it is possible that Jones would have never found even the small measure of justice his modest jury award will give him.

Cases like these, along with the continued outrage provoked by the unjustified killing of Black and Brown Americans by police officers, has led to a movement to reform or outright abolish qualified immunity as a protection. In part three of this series, we will explore the legislation that has been proposed, and in a few cases already passed, to chip away at this invisible legal shield.

This series was made possible by grants from the Fund for Investigative Journalism and the Solutions Journalism Network

Originally posted here:
The invisible shield: how qualified immunity prevents victims of police abuse from seeking justice, Part 2 - Amsterdam News

from the training,-sure...-but-is-it-really-'expertise?' dept

It doesn't happen often, but it's always good to see a federal court push back against claims of "training and expertise." This phrase is often used to excuse rights violations and horrendous judgment calls -- somehow asserting that the more cops know, the less they should be held directly responsible for their acts.

The case being handled by the Fourth Circuit Appeals Court deals with some drug warriors and their willingness to work backward from their assumptions to something they sincerely wanted to believe was probable cause for a search. But the Appeals Court sees no "training and expertise" here. Instead they see officers motivated by hunches, which are not synonymous with probable cause, much less reasonable suspicion.

Here's the court's ultimate conclusion [PDF], which is supported by the lack of support for the cops' arguments, which relied heavily on assertions of "training and expertise."

In order to sustain reasonable suspicion, officers must consider the totality of the circumstances and, in doing so, must not overlook facts that tend to dispel reasonable suspicion. Here, officers relied on general information from a confidential informant; two interactions that officers believed were consistent with the manner in which illegal drugs are bought and sold, but in which no drugs were found; and a single officer witnessing a handshake between Appellant and another man and concluding that it was a hand-to-hand drug transaction, even though the officer did not see anything exchanged. Moreover, the officers concluded this amounted to reasonable suspicion, overlooking the facts that the interaction took place in a public space, in broad daylight, outside of the vehicles, and in front of a security camera; and after the interaction, Appellant went into a store, rather than immediately leaving the scene. On these facts, we agree with Appellant that the officers did not have more than a mere hunch that criminal activity was afoot when they stopped Appellant.

The broad brush of this summary is pretty damning. The details, even more so.

It all started with a "tip" from a confidential informant. The informant told law enforcement a black fellow might sell some drugs. As the court notes, the CI's "tip" contained nothing that would turn this into probable cause. It didn't say the person had sold drugs in the past. It offered no suggestion the person was going to sell drugs to the CI in the future. The only solid info officers had was that the vehicle tags provided by the CI were linked to someone who had been arrested for drug offenses in the past.

The cops got the tip in August 2017. But they did nothing until October 2017. Surveillance of the house listed on the vehicle registration began. The house was surveilled ten times and no drug transactions were witnessed. Investigators moved on to surveilling the resident of the suspect's assistant. The residence was "observed" over 30 times and no drug transactions were seen.

A car driven by someone who had sat in a car with the original suspect was stopped. No drugs were found, despite the drug dog's "alert." Detectives speculated the presence of syringes in this car indicated the driver was a drug user.

Officers began tailing the suspect. They observed him sitting in a gas station parking lot where he never interacted with anyone. They observed him going home. They observed him visiting a house and later leaving carrying a bag to his car. And their informant later told them that the suspect had called and said he had drugs to sell.

No controlled buy was ever set up using the informant. Instead, officers followed the suspect to a car stereo dealer. And this is where the "training and experience" apparently kicked in.

Detective Moore testified that the surveillance team was expecting someone to meet [Appellant] and this to be like the other occasions when somebody would meet him. J.A. 78. Detective Moore testified that this stop was consistent with how he would expect a drug transaction to occur.

If this was a drug transaction, it was a terrible place to engage in illegal activity. First off, the alleged incident happened in broad daylight in a busy public parking lot. Second, it occurred directly in front of the business's surveillance cameras.

Despite this, Detective Douglas Moore was sure the suspect was engaging in drug sales. He testified that his "training and experience" made it clear regular-ass handshakes are "hand-to-hand" drug transactions.

[O]n cross-examination, when specifically asked if he saw drugs or money exchange hands, Detective Murphy testified that it was just the actions and mannerisms that indicated to him that it was a drug transaction. He did not actually see drugs exchanged. Nor did he see money exchanged. See J.A. 120 (Q. So you didnt see any drugs or money exchange, just the actions and the mannerisms and it being a second handshake and it being longer than the first handshake, you believed it to be a hand-to-hand? A. Yes, sir.). Detective Murphy provided no further detail about why this second handshake led him to conclude that a hand-to-hand drug transaction had occurred. In fact, when asked to describe why he thought the second handshake was a hand-to-hand transaction versus just another greeting, Detective Murphy testified, only, Well, the first interaction was brief. The second, what I believe to be the hand-to-hand transaction, was more deliberate and it wasnt as brief as the first action.

So, the difference between a legal handshake and an illegal handshake is in the eye of (only one) beholder. And that's what instigated a search and the discovery of drugs.

No good, says the Appeals Court. Give this "training and expertise" bullshit a rest. It dismantles every single one of the detective's arguments in favor of presumed probable cause. First, the information obtained from the confidential informant:

[T]he only information that proved useful to detectives in connecting the informants tips to Appellant was the vehicle tag number that was connected to him. But that alone does not connect him to drug trafficking. It connects him to a vehicle and that is it.

Then the second handshake, which Detective Moore claimed was actually the consummation of a drug transaction:

As to the notorious second handshake, the Government contends this second handshake provided the officers with reasonable suspicion because Detective Murphy testified that the second handshake was a hand-to-hand transaction. However, Detective Murphy never provided more than this conclusory testimony. In fact, Detective Murphy never witnessed drugs or money change hands, and his testimony did not provide any details about the handshake that allows us to view this second handshake as suspicious.

Do better, says the court:

[W]e cannot hold that officers bare suspicion of drug trafficking -- without more -- can allow even an experienced officer to reasonably conclude that such a benign and common gesture can be viewed as an exchange of drugs. This cannot amount to reasonable, particularized suspicion.

The ends cannot be used to reverse-engineer justification for the means.

The Fourth Amendment does not allow the Government to label a person as a drug dealer and then view all of their actions through that lens.

And here's the concurrence, setting fire to speculative "training and expertise" assertions. Trying to convert a seemingly harmless handshake into "reasonable suspicion" just because it seemed more "deliberate" than the first one the detective observed does direct harm to citizens, especially when courts decide an officer's speculation is more trustworthy than actual facts.

We therefore have thin factsthe handshake appeared long and purposeful bolstered by a thinner interpretation of those factsthe handshake was consistent with a drug transaction. Such meager testimony would not have received the same degree of deference had it come from someone other than a law-enforcement officer. But in the half-century since Terry v. Ohio, we have afforded greater and greater weight to officers training and experienceoften at the expense of the robust judicial scrutiny that the Fourth Amendment demands.

[...]

Our practice of affording strong deference to training and experience has costs. [...] It incentivizes veteran officers to lean on their impressions instead of doing the hard work of building a case, fact by fact.

As the concurrence points out, granting this much deference to cops does little more than offer judicial blessing for biased policing and rights violations. If cops want to be trusted in court, they need to earn it, not expect it.

In my view, judges can begin to curb these ill effects by dialing down the deferenceeven slightlyand treating police officers like other expert witnesses. Doing so would be consistent with both precedent and common sense. If a veteran officer catches something that would elude a novicea code word, a pattern, etc.he may of course rely on it, so long as he can later explain in court why the fact is significant. But if an officer's explanation is paltry or conclusory, as in this case, the judge must not hesitate to assign it less weight.

That would be a welcome change from the current status quo -- one that says cops are full of knowledge and everyone accused of a crime is full of lies. The burden of proof still remains on the government. And this burden should include offering evidence that supports "training and experience" assertions made by officers, rather than assuming anyone with a few years on the force is inherently an expert on illegal activity and human behavior.

Thank you for reading this Techdirt post. With so many things competing for everyones attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise and every little bit helps. Thank you.

The Techdirt Team

Filed Under: 4th circuit, police, qualified immunity, training and expertise

Read more:
Fourth Circuit Appeals Court Takes Aim At Police Officers' 'Training And Expertise' Assertions - Techdirt