Category Archives: Fourth Amendment

Opinion Analysis ByJeffrey Bellin on Mar 25, 2021 at 5:15 pm

Against a backdrop of increasing national attention to police violence, the Supreme Court on Thursday issued an opinion in a closely watched criminal-procedure case that clarifies the meaning of the term seizure.

The Fourth Amendment provides important constitutional limits on abusive policing. These protections take shape in two ways: limits on the introduction of evidence obtained unconstitutionally, and civil suits against police who violate constitutional rights. But the Fourth Amendment does not regulate policing generally. It only prohibits unreasonable searches and seizures. Thats why the courts ruling in Torres v. Madrid preserving a broad understanding of the term seizure has important implications for regulating use of force by police.

The case concerned an attempt by two New Mexico police officers to stop a car driven by Roxanne Torres. The officers, who were trying to execute an arrest warrant for another person, approached Torres and her parked car. When they attempted to speak with her, Torres began driving away. Claiming to fear for their safety, the officers shot at the car, injuring Torres, who then drove off. The question the justices resolved on Thursday was whether this unsuccessful effort to stop Torres was a seizure. The officers claimed that people are seized only when they are stopped, while Torres kept going. The U.S. Court of Appeals for the 10th Circuit agreed, dismissing Torres civil rights claim against the officers for violating her Fourth Amendment rights.

In a 5-3 opinion written by Chief Justice John Roberts, the majority reversed, concluding that the officers seized Torres even though she subsequently fled. The outcome fits neatly into the closest precedent, the 1991 case California v. Hodari D. In that case, the court explained that [t]he word seizure readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. (Emphasis added.) Pointing to this and other language in that case, the chief justice notes in the Torres opinion that [w]e largely covered this ground in California v. Hodari D.

Roberts takes pains, however, to set the opinion on its own feet. Over a strident dissent, he explains that whether or not the court is bound by stare decisis (the justices on-again-off-again efforts to follow precedent), the justices independently reach the same conclusions here. The majority opinion does so on two primary grounds: history and text.

History often comes up short in Fourth Amendment cases because policing as we know it was almost non-existent in the 18th century. The majority insists, however, that this time, the cases and commentary speak with virtual unanimity on the question before us today. But the majoritys certainty rings hollow when it identifies the closest decision as the 1605 Countess of Rutlands Case. In that case, the serjeants-at-mace were executing a debt-collection judgment against Isabel Holcroft, an English noblewoman. The sergeants touched Holcroft with (you guessed it) a mace, while exclaiming we arrest you, madam. The majority explains that since an arrest is undoubtedly a seizure and getting touched with a mace is like getting hit with a bullet, this history points the way toward todays holding.

To be fair, the majority cites other old cases and treatise excerpts. But the dissent by Justice Neil Gorsuch, which is joined by Justices Clarence Thomas and Samuel Alito, points out that many cases of the era involved esoteric debt-collection practices. For example, debt collectors could only break into debtors homes if they touched them first, often accomplishing this by reaching in through a window! And all the cases involve the laying on of hands (or maces), not guns or projectiles. Gorsuch scores rhetorical points when he scolds the majority for wandering about the vast legal library of the common law, randomly grabbing volumes off the shelf, plucking out passages, scratching out bits and crafting a new pastiche. But Gorsuchs argument is really a critique of the limits of originalism in this context, not the particular rule announced in this case.

The majoritys textual interpretation is more straightforward. It recognizes that seizures most obviously occur when a person is stopped. But the majority points out that it is not ruling that Torres was seized from the point of the shooting onward. Instead, Roberts writes that the officers seized Torres for the instant that the bullets struck her. (Emphasis added.) Quoting Justice Antonin Scalia in Hodari D., the majority explains that a seizure is a single act, and not a continuous fact. Thus, at the time the Constitution was adopted, as now, an ordinary user of the English language could remark: She seized the purse-snatcher, but he broke out of her grasp. In prior cases, the court similarly explained that a seizure is the application of physical force that in some way restrain[s] the liberty of a person. Here, considering that Torres was shot twice in the back and suffered physical injuries, it seems reasonable to conclude that a restraint on her liberty, and thus a seizure, occurred.

The opinion offers two surprises. The most important is the majoritys broad holding. The majority goes out of its way to craft a clear line that reaches beyond the facts of this case. Both at the beginning and end of the opinion, the court announces: We hold 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. Notice that this captures not just significant restraints on liberty, but any touching at all. This is no oversight. Roberts downplays the implications of this breadth by explaining:

While a mere touch can be enough for a seizure, the amount of force remains pertinent in assessing the objective intent to restrain. A tap on the shoulder to get ones attention will rarely exhibit such an intent.

The majority is right that the intent requirement eliminates some minor touching from the seizure definition. But not all. Small intrusions, such as taps on the shoulder, will constitute seizures under the majoritys reasoning if they are intended as a prelude to restraint, even when the tap-ee flees into a crowd. The dissent hints at other scenarios that may come within the broad rule: laser beams that damage the retina, pepper spray that irritates the lungs, and loud noises that damage a suspects ear drums. Those are harder cases than the one presented here, and the court appears to (at least arguably) resolve them all with its broadly worded holding.

The second surprise is the amount of disagreement. Since the case followed directly from Hodari D., a 7-2 textualist/originalist opinion penned by Scalia, some observers expected the court to come to greater agreement. Instead, the dissent spends 26 pages (nine more than the majority opinion) explaining why Scalia and the court were wrong in 1991 and Roberts and the majority are wrong in 2021. The dissent not only scoffs at the chief justices arguments but accuses the majority of outcome-determinative reasoning: an impulse that individuals like Ms. Torres should be able to sue for damages. Roberts offers a pained response: There is no call for such surmise. [W]e simply agree with the analysis set forth thirty years ago by Justice Scalia, joined by six of his colleagues, rather than the competing view urged by the dissent today.

The bright-line rule announced by the court signals that remaining questions will now be the responsibility of the lower courts. For Torres, her civil rights claims against the officers can continue, although, as the majority notes, she will still need to overcome several other obstacles such as showing that the seizure was unreasonable and that the officers are not entitled to qualified immunity in order to ultimately prevail.

The rest is here:
Divided court issues bright-line ruling on Fourth Amendment seizures - SCOTUSblog

UI Law alumni use their class Street Law to teach high school students about their Fourth Amendment rights.

Crystal Pound and Alex Lodge, both University of Iowa alum, have built on their efforts to inform the community on their rights protected by the Fourth Amendment which prohibits unreasonable searches and seizures by bringing that education into classrooms across the state.

Pound and Lodge recently earned a nonprofit status for their organization, Justice101, which partners with Iowa schools to teach young people about the Fourth Amendment. The curriculum educates young people on their rights when interacting with police, and what law enforcement legally can and cant do. Its goal is to alleviate anxieties of young people when interacting with the police, especially for students of color.

Justice101 is an extension of the Iowa chapter of Street Law, a class on Fourth Amendment rights that Pound and Lodge brought to Iowa following the killing of Michael Brown in Ferguson, Missouri. The first class was taught at City High in March 2016.

Pound, a co-collaborator of Justice101, practices law in Cedar Rapids. Pound helped found Street Law and Justice101 during her time at UI Law School, which she graduated from in 2016.

Pound said that Justice101 aims to create an equal interaction between police and citizens by informing the community of their rights when they encounter police.

I think games are only fair when everyone knows what the rules are, Pound said. One goal is to educate the students so that when they come into contact with law enforcement, they know whats allowed and whats not allowed and if something happens that isnt allowed, they know how to advocate for themselves later with their legal counsel.

A 2016 graduate and current patent attorney, Lodge said he goal of Justice101 is to educate the community, especially Black residents, on how complicated the law is and how to be protected during police interactions, Lodge said.

It was apparent that we were experiencing a disproportionate amount of police contact particularly with not only Black students at UI but Black residents in the city of Iowa City, Lodge said. Justice101 is continuing that effort and continuing to provide a resource to the community with respect to educating our community about Fourth Amendment rights.

RELATED: In Focus | Iowa police body camera video sometimes revealing if the public is allowed to see it

In Iowa, Black residents are much more likely than white residents to face use of force by state police officers. Although Black residents make up about 4 percent of Iowas population, 24 percent of use of force incidents were reported against Black people by officers in the Iowa Department of Public Safety in 2018 and 2019.

Prior to the COVID-19 pandemic, Justice101 presented its Street Law class to students at City High School in Iowa City, and Metro High School in Cedar Rapids, Iowa. Now, the founders are working to create virtual classes to continue their work in an online format.

Alex Lodge is a patent attorney who graduated from the College of Law in 2016. Lodge is a co-founder of the Street Law program and a co-collaborator of Justice101. The goal of Justice101 is to educate the community, especially Black residents, on how complicated the law is and how to be protected during police interactions, Lodge said.

It was apparent that we were experiencing a disproportionate amount of police contact particularly with not only Black students at UI but Black residents in the city of Iowa City, Lodge said. Justice 101 is continuing that effort and continuing to provide a resource to the community with respect to educating our community about Fourth Amendment rights.

Lodge said the best way to support Justice101 is to donate through the organizations website and spread the word about the program.

If you are in the education system or you work with vulnerable populations, particularly those who might be at risk of having a Fourth Amendment rights violation, please feel free to contact Justice101 to get the program to come out to talk to your community members, he said.

Brian Farrell, a UI College of Law lecturer, and Justice101 board member, said that the pandemic has brought forth the biggest challenges for the organization.

I think the pandemic has thrown a wrench into the efforts to take the curriculum and the model that had already been developed and re-establish and expand it, Farrell said. The idea of virtual delivery creates opportunities to allow it to not be geographically restricted, but at the same time potentially create some initial barriers, just in terms of the resources to get up and going.

Farrell said that Justice101 is valuable because it teaches students about the Fourth Amendment in an interactive and informal way that creates meaningful connections in the community.

Justice101 provides students with an in-depth explanation of their rights when interacting with law enforcement that is often not taught elsewhere, Farrell said.

I dont think our civic education gets into practical aspects, Farrell said. Im guessing that in most cases they havent ever thought about or talked about how that plays out in a practical sense until perhaps theyre in a situation where they are confronted with some restriction or a challenge to their rights.

See more here:
UI Law alumni create nonprofit to educate the community on Fourth Amendment rights - UI The Daily Iowan

President Biden has just named 11 nominees to the federal bench, including his nominee for a vacant seat on the D.C. Circuit Court of Appeals. All told, there are over 100 federal court vacancies right now. President Biden should make filling them a priority, in part because courts are critical institutions in the fight against climate change and for environmental justice.

Unlike some other areas of law, there is no easy litmus test to tell if someone will be the kind of judge who is good for the environment, no one decision (like Roe v. Wade) or one law (like the Sherman Act) or even one constitutional provision (like the Fourth Amendment) to grill a nominee about. But that doesnt mean we dont know what kind of person we want to have deciding cases about the future of our planet and our health. Here are three questions that I think the Biden administration should be asking itself as it looks for judges who will support its environmental and climate agenda, along with one bonus questionabout the X factorto separate potentially good judges from potentially extraordinary ones.

Does the candidate recognize that the government has a responsibility to protect the environment, public health, and public lands for all people?

One of the most important areas where we need government to regulate private conduct is in the environmental arena. What you do with your patch of land affects what I can do with mine, what you discharge into the air and the water affects my health, and your energy generation and ecosystem impacts all affect my future. We need the federal government to make consistent national rules to regulate these things and to enforce those rules evenhandedly across the country.

Polluting industries like Big Ag, Big Oil, and Big Coal hate these kinds of rules because they limit short-term profits. A good judge doesnt need to be hostile to the industry perspective, but they do need to believe that the Constitution gives Congress broad and deep authority to regulate industries in the public interest. They also need to believe that Congress can delegate to the executive branch the complex and technical task of issuing enabling regulations. And when they try to understand what Congress was trying to achieve, a judge should be willing to consider any evidence, instead of ignoring evidence that contradicts the judges own preferences.

These arent revolutionary beliefs. To the contrarythey represent the foundational philosophies of the Warren, Burger, and Rehnquist courts, which presided over fifty years of sustained economic growth and environmental progress. Right now, though, these philosophies are under attack by a growing cabal of far-right activist judges (and Justices) who want to erode the foundations of government to serve an anti-environment and pro-industry agenda. We need judges who will strengthen those foundations instead.

Can the candidate tell the difference between science and politics?

Good science and careful factfinding begets good environmental policy. If you need proof, consider the fact that one of our most effective environmental lawsthe National Environmental Policy Act (signed by Richard Nixon)doesnt actually require the government to protect the environment. It just requires the government to consider the environmental impacts of decisions before making them, and to do so based on facts, science, and public input. Not politics.

This is why so many of our environmental laws require federal regulators to build a record of the work they did in reaching at their decisions. What factors did the government consider? Did it involve local communities? Why did it reject alternative options? This record gives judges the ability to make sure that the agency acted based on facts and science, not politics. A proper administrative record can be lengthy, technical, and blisteringly complex. A good judge has to be willing and able to roll up their sleeves, dig in, and review the record carefully for factual and legal integrity without yielding to the temptation to replace the agencys policy judgments with their own. More generally, a good judge should respect not just the scientific expertise of agencies, but the consensus of science itself.

Does the candidate understand that individuals need access to courts to hold government and industry accountable?

If theres one thing the Trump administration proved, its that strong environmental laws arent enough on their own. People need to be able to hold government accountable for upholding and following those laws, and, when necessary, sue industry itself to comply with them. Thats why most of our environmental laws explicitly authorize citizen suits.

You will not be surprised to hear that polluting industries and their politician friends generally hate citizen suits. And one way to escape accountability is by making it impossible to bring those suits in the first placeamong other things, by twisting doctrines like standing, ripeness, and finality into locks on the courthouse doors. That far-right activist cabal I described earlier? Its trying to do just that.

We need judges who recognize that access to the courts is a basic right no different than access to the ballot box. In particular, we need judges who recognize that poor communities and communities of color are disproportionately affected by environmental harmsand that the legal rights those communities have wont mean much if they cant use the courts to enforce them and provide a check on corporate interests and power.

Does the candidate have the X Factor?

While these three things are critical features of a good judge, history shows us that the best judges have one more characteristic: they influence the law beyond the scope of their own individual decisions. Appellate judges who sit on panels should be able to persuade colleagues through thoughtful behind-the-scenes reasoning and by building relationships across philosophical divides. District court judges should be able to write opinions that persuade appellate judges, even ones who do not generally share their point of view. And even if these judges dont win in the short term, they should know how to play the long game by writing eloquent opinions that shift legal doctrine and provide a roadmap to a better future.

Love him or hate him, Justice Scalia had this X Factor, as did Justice Oliver Wendell Holmes (who you can thank whenever you mention the idea of yelling fire! in a crowded theater). They both knew how to write to the future, and they had the intellect, interpersonal skills, and a way with words that gave them an outsized role in the present.

If youre reading this blog post, you know that the earth needs a good lawyer. It needs a good judge, toolots of them. Ones who arent afraid to grapple with the science and follow where it leads, who believe that the courthouse doors should be open to all, who believe we have the power to come together as a country and solve big problems. And, if were very lucky, ones who our great-grandchildren will quote when were long gone.

See the rest here:
The Earth Needs Good Judges. Here's What That Means. - Earthjustice

The Fourth Amendment stands for the principle that the government generally may not search its people or seize their belongings without appropriate process and oversight. Today, we are at a jurisprudential inflection point as courts grapple with when and how the Fourth Amendment should apply to the data generated by technologies like cell phones, smart cars, and wearable devices. These technologies which we rely on for enhanced communication, transportation, and entertainment create detailed records about our private lives, potentially revealing not only where we have been but also our political viewpoints, consumer preferences, people with whom we have interacted, and more. The resulting trove of information is immensely valuable to law enforcement for use in investigations and prosecutions, and much of it is currently available without a warrant.

This paper describes how the U.S. Supreme Courts 2018 decision inCarpenter v. United Stateshas the potential to usher in a new era of Fourth Amendment law. InCarpenter, the Court considered how the Fourth Amendment applies to location data generated when cell phones connect to nearby cell towers. The Court ultimately held that when the government demanded seven days of location information from defendant Timothy Carpenters cell phone provider without a warrant, it violated the Fourth Amendment. The decision sits at the intersection of two lines of cases: those that examine location tracking technologies, like beepers or the Global Positioning System (GPS), and those that discuss what expectation of privacy is reasonable for information disclosed to third parties, like banks or phone companies. In reaching its conclusion that a warrant was required, the Court upended existing precedent, ruling for the first time that location information maintained by a third party was protected by the Fourth Amendment.

In exploring the Courts decision inCarpenterand its application to data from a variety of technologies such as GPS, automated license plate readers (ALPRs), and wearables this paper argues that it is incumbent on courts to preserve the balance of power between the people and the government as enshrined in the Fourth Amendment, which was intended to place obstacles in the way of a too permeating police surveillance. Moreover, in determining the scope of the Constitutions protections for data generated by digital technologies, courts should weigh the five factors considered inCarpenter: the intimacy and comprehensiveness of the data, the expense of obtaining it, the retrospective window that it offers to law enforcement, and whether it was truly shared voluntarily with a third party. Section I is an overview of Fourth Amendment jurisprudence. Section II discusses theCarpenterdecision and its takeaways. Section III appliesCarpenterto various surveillance technologies and looks ahead at how Fourth Amendment jurisprudence might continue to develop in the digital age.

Continue reading here:
The Fourth Amendment in the Digital Age - brennancenter.org

Keep out of a womans right

I read the 66-page Roe V. Wade decision for the first time a few days ago and I have to admit it is a travesty. The Supreme Court had legal precedent to issue a definitive ruling, which would have nullified all the abortion bills winding their way through the Wyoming Legislature. But in true sausage making tradition, the nine male justices opted for Solomons Bargain, where they cut the Constitution in half and this decision has divided America ever since.

After mansplaining for 41 pages, the Justices chose a convoluted solution instead relying on the plain language of the Fourth Amendment. These diviners of our Constitution threw out the opportunity to set a clear definition on what is a private decision and instead opened Pandoras box with their misguided interpretation. The Founders would be horrified to find that the State had a compelling interest in that personal decision.

On Page 41 of the Decision, the nine, carried through with Solomons threat by collectively dividing the Constitution in half by chiseling the words: With this we do not agree. Had these men removed the do not from the previous sentence then the Constitution would be intact, and Roe would not have become the disaster we have come to know.

This punch line of the previous 41 pages was this monumental sentence:

On the basis of elements such as these, appellant and some amici argue that the womans right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.

Had these nine men agreed with the legitimate evidence that resulted in the sentence above, by using the words With this we agree, the abortion discussion would have been castrated in America. Instead, this decision has birthed a group that lives and breathes in the sanctity of the Second Amendment, while actively destroying the Fourth Amendment. Hypocrisy.

Americans that believe in America should fight for the entire Constitution and not just the part that suits them at the moment. It is clear that your neighbors and the State have no right to ask or interfere in ones pregnancy, just as the Fourth Amendment intended.

Greg Hunter

Laramie

Abortion interference in Wyoming

Over 30 years ago, I made a personal and public commitment to support access to abortion; it is unwavering. This is an action and decision of personal autonomy for the pregnant person supported by information via their medical practitioner. The decision is serious, worthy of regard and reason, without restriction to lawful, optimal medical procedures or access.

SF133, Prohibiting abortifacients and chemical abortions or HB134, Human heartbeat protection act, seek unfounded intrusion on inherent pregnancy risks within which time sensitive decisions must be made for the pregnant person. HB134 does nothing to protect the heartbeat of the pregnant person, why are heartbeats in competition? Both bills dismiss valid decisions for pregnancy termination. Why are Wyoming State legislators applying their will to force birthing?

Self-agency and communal regard is completely absent from the legislation; it ignores intricacies and considerations best met by the pregnant person. I urge defeat of SF133 and HB134 immediately.

Debra East

Lander

Electric cars? Not viable. Not at this point in time

The current administration in Washington, D.C. is informing us that we must switch to electric vehicles by 2035. Just stating this will not make it so. The reason why we have wind turbines is that the government provides substantial subsidies that makes them profitable for the companies and the politicians who vote in these subsidies.

Electric vehicles are just not ready for public consumption. While lithium-ion batteries are cutting-edge technology for electric vehicles, a lithium-ion battery, at most, can store about 0.6 kWh per pound of battery.

In comparison, gasoline contains 6 kWh per pound of gasoline (or 36 kWh/gallon). A Tesla Model 3 has a standard battery pack capable of storing 50 kWh of energy and an average compact car with a 10-gallon tank is capable of storing 360 kWh. A gas car can be refueled in minutes and can travel almost twice as far as an electric that will take over night to recharge.

With gas prices going up, the electric has a small edge in fueling expense. Electric vehicles usually come with a standard 120v (Level 1) charger and this is fine to get you started, but if fully discharged it can take 24 hours to recharge. 240v (Level 2) chargers can recharge the same car in only seven hours but you just cannot plug these into a standard outlet.

A 40 amp Level 2 charger will have to be installed by an electrician and that may be a problem. Most houses in the U.S. have only 100 or 200 amp service and unlike other appliances in your home, when this charger is operating it will be drawing a continuous 32 amps and this is only for one car.

If every house on your block buys an electric car, the lines to and the transformer feeding your homes must be upgraded.

There are also several issues dealing with cold weather.

We will need a lot more power, but as we have seen wind turbines and solar panels are not dependable. What do you do when the power goes out and you have an emergency?

Derek Mancinho

Laramie

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March 21: Letters to the editor | Opinion | wyomingnews.com - Wyoming Tribune

Brackney said Woods re-engagement of Gilmore after apparently turning to leave, and not explaining to Gilmore why he wanted to see a license, made the incident that followed a violation of department policies.

Wood immediately re-engaged. Wood failed to articulate or justify his reason to reengage and reacted solely upon being challenged, Brackney said.

Gilmore, through his attorney Jeff Fogel, filed complaints with police accusing Wood of bias-based policing and violations of the Fourth Amendment for detaining, handcuffing and searching him and using excessive force.

Police ruled the bias charge unfounded because there were no racial slurs used or race-based reason for Wood to talk with Gilmore

Brackney said the internal affairs investigation found that Woods force in the takedown was not excessive because his seeking a drivers license for someone who he had seen driving was legitimate.

Wood articulated in his reports, although he did not articulate it to Mr. Gilmore, that he observed Mr. Gilmore driving, Brackney said. A license is required to drive a vehicle.

In a Feb. 23 letter to police, Fogel disagreed.

Race need not be the sole basis for detention or interdiction to violate the Fourteenth Amendments equal protection clause, he wrote. One would need to look at Officer Woods history with the department and any other evidence that may touch on his treatment of Black people. You did no investigation of this question and offer no reason why Officer Wood acted the way he did.

Read this article:
Officers who police say violated rights and policies are off the force - The Daily Progress

When Attorney General Merrick Garland was asked at his confirmation hearings earlier this month what his priorities would be if confirmed, he responded immediately that it would be a vigorous pursuit of domestic terrorism. He did not say he would lead vigorous prosecutions, just vigorous pursuits.

This is dangerous business for the Department of Justice because it transforms its role from prosecuting crimes after they happen to predicting who would commit crimes that never happen.

How could the feds predict crimes? They would attempt to do so by a serious uptick in domestic surveillance of broad categories of people based on political and ideological views. The government loves to cast out fishing nets so to speak and then intimidate or prosecute whomever they bring in.

The National Security Agency Americas 60,000-person strong domestic spying apparatus already captures all data transmitted on fiber optic cable into, out of, and within the U.S.; thats every email, text and phone call. But they dont admit to this. When the FBI desperately sought to gain entry to the cellphones of two deceased mass murderers in San Bernardino, California, a few years ago, the NSA would not help them because doing so would acknowledge the NSAs mass warrantless spying.

Stymied by their own colleagues refusal to admit their unconstitutional behavior, but emboldened that the NSA could get away with this, federal agents either would break the law themselves by engaging in warrantless surveillance or obtain warrants from the Foreign Intelligence Surveillance Act court by claiming foreign terrorism as a pretext for domestic law enforcement surveillance.

Under the unconstitutional standards employed by the FISA court, if the feds present probable cause of an Americans communication with a foreign person, the FISA court would issue a search warrant for surveillance of all communications of the American.

This is unconstitutional because the standard for obtaining search warrants from a judge is articulated in the Fourth Amendment, which neither the Congress nor the courts can change. That standard is probable cause of crime is it more likely than not that the place to be searched contains evidence of crimes not probable cause of communication with a foreigner.

The former is a high standard intended to compel the courts, before issuing search warrants, to take account of the natural right to privacy, prevent government fishing expeditions and force the government to focus its law enforcement efforts on real, not imagined, crimes.

The FISA standard which morphed by a series of secret judicial opinions from probable cause of being a foreign agent to probable cause of communicating with a foreign agent to probable cause of communicating with a foreign person is far easier for federal agents to demonstrate than is probable cause of crime. It means that a call to my cousins in Florence is a sufficient basis for the feds to get a search warrant to legally surveil all of my communications telephone, texting and emails.

FBI and other federal agents know this. They know how easy it is to get a warrant from the FISA court. The most recent statistics revealed that it granted 99.96% of all surveillance applications.

When FBI agents go to the FISA court with probable cause of communication with a foreign person, but they are really looking for their targets domestic criminal communications, they have engaged in an act of corruption, deceived the court and cut holes in the Constitution they have sworn to uphold.

Once they have all of a persons communications, their plan is to find something that would constitute probable cause of crime or enable them to use fear of exposure to induce the person to work for them undercover.

If your neighbor tells you on the phone how happy he is in his anti-government group, and then someone in the group trespasses on government property and is arrested, expect a knock on your door from the feds who will demand to know what you knew and when you knew it. If the trespass is a felony, they will claim that they can prosecute you for your silence. This, too, is unconstitutional. Silence is protected by the First Amendment.

This is the danger of the Garland devotion to predicting who would commit crime; and it will get worse. Expect the next legislative step to be proposals that impose the legal obligation to report suspicious activities and the failure to do would be a crime. This would turn the U.S. into East Germany where thousands were prosecuted for failure to report their neighbors, friends and family; and thousands more suffered from prosecutions based on false reports.

The Fourth Amendment was written to prevent this. Under the Constitution, the government may not seek punishment for silence, surveil for beliefs or charge for crimes not committed. But if a wired undercover agent can get someone the government fears to inculpate himself with his words and then persuade that person to take a small step in furtherance of those words even if no actual crime is committed this is enough to charge conspiracy; the prosecutors favorite crime because it is the easiest to prove.

In the years following 9/11, hundreds of folks in America were set up by the feds and prosecuted and convicted for crimes that they never committed, but which they merely agreed to commit when persuaded by an undercover agent.

The government loves to give the impression that it has caught bad guys before they struck, thereby keeping us safe. Dont believe it. The governments first task is to keep us free. But when it violates the Constitution, it keeps us neither safe nor free. Who will keep us safe from the government?

Here is the original post:
Napolitano: The coming war on privacy - Daily Herald

Reader submissions, Special to The Desert Sun Published 10:53 a.m. PT March 21, 2021

A screenshot shows an animal rights activist attempting to stop a member of the S at Rancho Mirage from shooting birds on March 4.(Photo: video courtesy of Bettina Rosmarino)

Re: "Rancho Mirage bird shoot canceled," Page A1, March 20.

How could anyone with a soul and a heart kill an innocent bird or any animal? These barbarians forget that they are Gods creatures and they will not be forgiven when they die and try to get into heaven.

Killing innocents who have done nothing wrong to be shot out of the sky to suffer a very cruel death? It is likely they will be going where it is very hot for eternity.

Much gratitude goes out to the animal activists who tried to stop them.

Lisa Robertt, Indio

Re: Letters, March 9.

Seriously? Mr. Berger really thinks that throngs will visit the art museum because of the road closure and "Forever Marilyn"?

As a museum member of many years, I agree that throngs of hundreds did visit the museum after or before viewing Marilyn when she was placed downtown in the past. Unfortunately, that only happened on Thursday nights when the museum was free.

The rest of the time, meh, not so much.

Reinstall "Forever Marilyn" where it isnt a travesty in front of the museum and keep Museum Way open as a needed traffic diversion from Palm Canyon. Win-win.

Barb Kaplan, Palm Springs

Just as Gov. Andrew Cuomo revealed himself to be the worst of all possible combinations, that of ignorance and arrogance, causing the deaths of thousands in New York, we are now seeing the same ignorance and arrogance repeated by the Biden administration.

Our southern border is being invaded by South America. And while the Biden administration saysCOVID-19 testing is being done, nothing is being said about those who are crossing the border undetected. Those people are making their way into the population, spreading out and spreading whatever infectious diseases they may have.

According to the Border Patrol, theres more to worry about than COVID-19. I have the distinct impression that many who voted for Biden are about to experiencebuyers remorse, on a scale no language can describe.

Charles Gabriele,Bermuda Dunes

The first year I voted in a presidential election was 1956. I voted for Eisenhower. The Republican Party platform for that election included federal assistance to low-income communities, protection of Social Security, asylum for refugees, extension of the minimum wage, increased coverage for unemployment benefits, strengthening of labor laws so that workers could easily join unions, and assuring equal pay for equal work.

Today, this would be labeled a radical leftist socialist agenda."Liberal" and "progressive" have become nasty words.The party that once stood for the abolition of slavery, voting rightsfor women and fiscal responsibility has become the party of white supremacy, voter suppression and huge tax cuts for the persons who need them the least.

Both parties have moved to the right of Eisenhower.

Dwight Fine, Palm Springs

Recently, everything gets politicized or someone's feelings come into play. Should we wear a mask? Is it ok to take the vaccine?Was the election a fraud?

Why not let the scientists and doctors decide the medical issues?If the doctor says to wear a mask, then you must wear a mask. Why would a politician know more than a doctor or a biologist? Read Dr. Mona inthis paper and you are covered. Why turn the election into a political item?What is the evidence and what does it point to?Who cares whether you are a Republican or a Democrat?Let's look at the facts and get to the truth.

So, look only at nonpartisan news, and assess the facts with your brain, and do your own thinking.There are a lot of angry people around whose brain capacity is obliterated by emotions, opinionsor political leaning.Learn to listen to the other side they can't always be wrong, because if they are, there is something wrong with your line of reasoning.

Opinions, feelings, and politics don't count. Your brain does, and if you use it wisely, a lot of discord can be eliminated, and we can move forward. This is how we heal our country, no matter what anyone says.

Alan Goldstein, Rancho Mirage

The recent opinion piece (Bob Henry, Valley Voice, March 1) on repealing the second amendment was very disturbing. Removing guns from law-abiding citizens and giving government control over guns reeks of pure socialism and the unlimited control of individual rights.

The authors of the Constitution personally all suffered the injustices of tyranny and the denial of individual rights. The Bill of Rights was written to ensure the freedoms they were denied could be restored for the new nation. The authors were acutely aware of the evils of total government control and without protections written in law that our freedoms could be again taken away.

Repealing the Second Amendment would turn many Americans into criminals. The next step would be to remove the guns from owners.That would require search and seizure so repealing the Fourth Amendment's rights would be necessary.Where would it end?

The author of the opinion piece, a retired public school educator, contends no one needs guns for their protection as we have police for that. Unfortunately, the police are being defunded by liberal progressives who believe we don't need them. It is unfortunate for the youth of America that public education and higher learning schools offer too much political and social bias from "educators."

James Dravage, Indio

Read or Share this story: https://www.desertsun.com/story/opinion/readers/2021/03/21/letters-kudos-those-who-stopped-bird-shoot-and-marilyn-wont-help-museum/4775007001/

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Letters: Kudos to those who stopped the bird shoot. And Marilyn won't help the museum. - Desert Sun

As debates about policing pervade the public conversation, Professor Rachel Harmon of the University of Virginia School of Law has written the first casebook to look at the laws that govern police conduct in the United States.

The Law of the Police, published by Wolters Kluwer and available now, takes on the question of how the law shapes police-citizen encounters and how the law might be leveraged to make policing serve the public better.

Harmon, a former federal prosecutor who directs the Law Schools Center for Criminal Justice, has taught a course on the laws governing police for 15 years. She came to UVA Law in 2006 after spending eight years as a federal prosecutor in the U.S. Department of Justices Civil Rights Division.

Throughout her time in academia, she has wrestled with what role, if any, policing should have in peoples lives, and how best to prevent misconduct.

I came to the Law School from practice, where I spent years prosecuting civil rights cases, including against police officers, she said. Over time, I got frustrated with criminal prosecution as a response to police misconduct. Prosecuting illegal police violence can be important, but I knew there had to be better ways to prevent problems in policing.

Among her goals for the book, she said, was to look at how different laws and legal rules make policing more or less harmful.

The book is a reaction to the traditional approach to policing the police, which is rights-focused. For example, a common police practice she considers problematic is selectively asking drivers, based on a gut feeling, to open their trunks during a traffic stop with all of the officers conscious and unconscious biases in tow.

Lawyers have typically looked at such problems and argued that they violate Fourth Amendment doctrine or, if they dont, that the doctrine should be changed, she said. I see things differently.

In the evolution of her thoughts, Harmon first looked at how existing rights and remedies might be applied to curb policing that works against the public interest.

I spent my first couple of years as an academic looking at legal remedies to see whether they could be used to prevent problems in policing and tossing them over my shoulder, Harmon said. So civil rights damages actions, is that going to work? No, thats not going to work a lot of the time. Justice Department investigations of police departments, is that going to work? No, that wont work well enough either.

She then suggested enhancements to these existing tools, before going another way.

I wrote a couple of articles trying to improve rights and remedies before I started to write about how to think more broadly about police misconduct as a regulatory problem. The question is not only how to remedy police misconduct, but how to use law to get the public safety we want, both through policing and through other means.

Focusing on that question led Harmon to study the harms of policing and how the law overlooks them or contributes to them.

Moreover, studying the vast array of legal rules that shape policing and police departments led Harmon to realize how little of it lawyers and law students may know, she said.

Hopefully, the book can be a resource, not just for law students, but for academics, lawyers, police chiefs, journalists, activists, judges or just about anyone interested in how the law actually governs policing and how it might do so differently, whether thats reforming police departments or turning public safety over to nonpolice actors, she said.

She noted that the book is different than a criminal procedure textbook, which specifically prepares lawyers for the concepts they will need to know as future prosecutors or defenders. Her book is organized by police practices, such as stopping traffic, using force, maintaining order, and policing resistance and protests, rather than legal categories dictated by Fourth and Fifth Amendment law. The book covers departmental policies and local and state law, as well as federal statutes and cases. It also addresses topics law students rarely study and on which there are few resources for lawyers and commentators, such as asset forfeiture, protest policing, video recording the police, and criminal investigations and prosecutions of police officers.

Even so, that hasnt stopped some professors who have given her book a test run from using it in their criminal procedure courses. Harmon said that the book was not conceived with that purpose in mind, but she has grown more comfortable with the idea that it can be used to teach an alternative version of criminal procedure, one in which the police are front and center.

Harmon is a member of the American Law Institute and serves as an associate reporter for ALIs project on Principles of the Law of Policing. She advises nonprofits and government actors on issues of policing and the law, and served as a policing expert for the independent review of the white supremacist events of Aug. 11-12, 2017, in Charlottesville, Virginia.

In December she co-authored a report, Policing Priorities for the New Administration, advocating for a stronger regulatory approach. The report, in collaboration with Barry Friedman and the Policing Project at the New York University School of Law, urged the White House to appoint a policing czar and require that all of the more than 80 federal law enforcement agencies meet basic standards for transparency, among other clear and actionable measures.

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Harmon's New Casebook Is First to Look at Law of the Police - UVA Law

On March 12, 2021, ALJ Clark Cheney issued the public version of Order No. 22 (dated January 7, 2021) denying Respondent Regeneron Pharmaceuticals (Regeneron) motion to terminate the investigation for lack of standing in Certain Pre-Filled Syringes for Intravitreal Injection and Components Thereof (Inv. No. 337-TA-1207).

By way background, this investigation is based on a June 19, 2020 complaint filed by Novartis Pharma AG, Novartis Pharmaceuticals Corporation, and Novartis Technology LLC (collectively, Novartis) alleging a violation of Section 337 by Regeneron in the importation and/or sale of certain pre-filled syringes for intravitreal injection and components thereof by reason of infringement of claims 1-6 and 11-26 of U.S. Patent No. 9,220,631 (the 631 patent). Regeneron filed a motion to terminate the investigation for lack of standing on the grounds that Novartis does not have a statutory cause of action to assert the 631 patent without adding non-party Vetter Pharma International GmbH (Vetter) as a complainant.

According to the Order, the relationship between Novartis and Vetter dates back to 2009 and was memorialized in an agreement dated January 27, 2009. Novartis was involved in the manufacture and sale of pharmaceutical products and Vetter supplied Novartis with pre-filled pharmaceutical products. On February 14, 2013, Vetter informed Novartis that pursuant to the terms of the 2009 agreement, Vetter owned certain intellectual property claimed in Novartis patent applications. Specifically, Vetter asserted ownership in a German patent application filed by Novartis (DE 20 2012 011 016 U), one of the foreign priority applications identified on the face of the 631 patent asserted in this investigation. The 2013 dispute led the parties to execute a fourth amendment to the 2009 agreement acknowledging a dispute as to the ownership of, and the rights of and the use related to, the intellectual property, including the 631 patent. On December 19, 2019, the parties executed a seventh amendment (the 2019 Amendment) to the 2009 agreement.

Regenerons motion to terminate focused on the scope of patent rights granted to Vetter in the 2019 Amendment. In particular, Regeneron argued that the 2019 Amendment granted Vetter such substantial rights in the 631 patent that Vetter must be joined as a co-complainant in this investigation, relying on language from the 2019 Amendment granting Vetter a co-exclusive license. ALJ Cheney disagreed, and found that the co-exclusive license to the 631 patent was limited and not enough to confer standing on Vetter. The ALJ noted that the assignment history of the 631 patent demonstrated that the inventors assigned their rights in the 631 patent to Novartis, and that Regeneron did not dispute that Novartis owns the 631 patent. ALJ Cheney then determined that Vetter was not granted exclusionary rights regarding the 631 patent sufficient to confer standing, stating that Vetters rights to exclude others from using the claimed invention are wholly contingent on the actions of Novartis and are limited and illusory. For example, the ALJ pointed to Vetters limited right to sublicense the 631 patent under the 2019 Amendment.

Regeneron also argued that the potential for serial litigation weighs in favor of making Vetter a party to this investigation. But ALJ Cheney found that the provisions of the 2019 Amendment demonstrate that Vetter has no right to re-litigate the investigation as complainant after the investigation is terminated. For example, Regeneron asserted that, when litigation between Novartis and Regeneron concludes, there is nothing in the [2019] amendment to the Agreement to prevent Vetter from providing a notice of infringement and, after six months, filing a lawsuit against Regeneron in its own name and under its own direction and control. The ALJ, however, stated that Regenerons argument seems predicated on the assumption that Vetter would notify Novartis of the same allegedly infringing acts at issue in this investigation, i.e., the importation into the United States of the EYLEA pre-filled syringe, and observed that that infringement (as defined in the 2019 Amendment) is in fact being litigated by Novartis in this investigation and that [t]he 2019 Amendment does not permit Vetter to bring suit regarding that act of alleged infringement once Novartis has done so.

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ALJ Cheney Denies Motion to Terminate Investigation in Certain Pre-Filled Syringes (337-TA-1207) - Lexology