Category Archives: Fourth Amendment

The Standing Committee of the 13th National Peoples Congress, Chinas top legislature, adopted the Fourth Amendment to the 1984 Chinese Patent Law on October 17, 2020. The Fourth Amendment follows a series of amendments that were last adopted in 2008 and will become effective on June 1, 2021. Among the provisions is Article 76, establishing a new pharmaceutical patent linkage system modeled after the U.S. Hatch-Waxman Act. Article 76 of the Fourth Amendment was implemented in accordance with Article 1.11 of the Economic and Trade Agreement Between the Government of the United States of America and the Government of the Peoples Republic of China.[1]

Key provisions of Article 76 of the Fourth Amendment include:

There are several key differences between the U.S. Hatch-Waxman system and the new Chinese law. Chinas patent linkage system is not limited to small molecules and also includes biologics and traditional Chinese medicine. Further, China provides a much shorter stay period of only 9 months. This 9-month stay period only applies to small molecules and excludes biologics or traditional Chinese medicine. The market exclusivity period for first generic entrants (12 months), however, is far longer than that of the United States (180 days).

The patent linkage system for pharmaceutical patents in China is just developing, and the resolution mechanism for patent disputes under Article 76 of the Fourth Amendment currently lacks detail for both generic market entrants and patentees. One notable piece of information missing in the current legislation is whether there is an obligation for the generic market entrants to notify the patentee of the non-infringement statement. In this regard, stay tuned for updates on finalized draft rules, which are expected to provide further guidance on Chinas new patent linkage system.

[1]The text of the Phase One Trade Agreement with China (2020) is available at: https://ustr.gov/sites/default/files/files/agreements/phase%20one%20agreement/Economic_And_Trade_Agreement_Between_The_United_States_And_China_Text.pdf. Article 1.11 begins on page 1-6 on Chapter 1 (page 7 of the PDF).

Continued here:
Chinas Hatch-Waxman Act: Patent Linkage System Implemented in the 4th Amendment to the Chinese Patent Law - JD Supra

The Fourth Amendment to the Chinese patent law will become effective on June 1, 2021. The Patent Law of the Peoples Republic of China, originally established in 1985, had its last amendment in 2008. Although the new amendment of the Patent Law is still pending implementation and the details awaiting clarification from the next version of patent examination guidelines, the amendment shows that Chinese patent law is moving towards harmonization with the laws of most other major markets. We highlight a number of the notable changes below.

Pharmaceutical patents

Amended Art. 76[1] introduces a patent linkage system. It enables an applicant or patentee of a pharmaceutical patent to challenge a generic drug for patent infringement by initiating a declaratory judgement (DJ) action of patent infringement against the generic during the its regulatory approval process with the China Food and Drug Administration (CFDA). The DJ action may potentially suspend the regulatory approval process of the generic. Also, the establishment of a system, similar to the Orange Book in the United States, i.e., a Chinese drug and patent recordation platform, has been delegated to CFDA.

Amended Art. 42[2] provides an opportunity for an applicant of a pharmaceutical patent to obtain patent term adjustment of up to 5 years to compensate for the regulatory approval process. For those patents receiving the five-year extension, the total effective term of the patent shall not exceed 14 years from the date of issuance.

Design patents

Significantly, amended Art. 2[3] allows protection of partial designs, i.e., design patents in China will cover a whole or a part of a product. This amendment aligns Chinese patent law closer to the rules in other major jurisdictions, such as the rules in the United States, European Union, United Kingdom, Japan, and Korea. But it remains unclear whether China will eventually allow the use of broken lines. Under the current practice, for example, an environmental article, such as a mobile phone, is required to be drawn in solid lines, even if a GUI on the mobile phone screen is the only claimed subject matter. The good news is, according to the draft of the rules for the Implementation Regulation of the Patent Law (November 27, 2020, public comment solicitation ended[4]), a partial design shall be depicted with a combination of broken lines and solid lines, or using other ways to indicate the scope of protection.

Amended Art. 42 also prolongs the term of protection for design patents from 10 years to 15 years from the filing date of the application.

Infringement Damages

Amended Art. 71[5] of the Chinese Patent Law promises that the rules on patent infringement damages are undergoing steady and patentee-friendly changes. The changes include: (i) increasing statutory damages (from RMB 10,000~1,000,000 to RMB 30,000~5,000,000), (ii) introducing punitive damages for willful infringements of serious circumstances, up to five times the damages determined in accordance with the law, and (iii) shifting the burden of proving damages in patent infringement actions (if the infringer fails to provide acceptable evidence, then the court may refer to the claims and evidence from the patentee to determine damages).

Other Notable Changes

Some other notable changes include: (i) amended Art. 70[6] enables the China National Intellectual Property Administration to determine patent infringement disputes of significant national impact, (ii) amended Art. 24[7] allows a 6-month disclosure grace period for non-novelty destroying publications that covers early publications made for the public interest in a national emergency or extraordinary situations occurring in China, (iii) amended Arts. 50 - 51[8] allow patentees to file a withdrawable declaration to implement an open license with the benefit of reduction or exemption of patent annuities, and (iv) amended Art. 47[9] extends the statute of limitation for patent infringement lawsuits from 2 years to 3 years.

See more here:
An Overview of The Latest Amendment to The Chinese Patent Law - Lexology

Vietnam on February 20, 2021, approved the fourth protocol amending the ASEAN Comprehensive Investment Agreement (ACIA); the Vietnamese Government issued Resolution No. 20/NQ-CP to this effect.

The Ministry of Planning and Investment (MPI) is assigned prime responsibility and will coordinate with associated ministries and agencies to implement the above protocol. The Ministry of Foreign Affairs will execute foreign affair procedures according to the appropriate regulations.

Firstly, the fourth protocol to amend the ACIA mentioned a prohibition of performance requirements and fundamentals in the Agreement on Trade-Related Investment Measures (TRIMs) that were agreed by all members of the World Trade Organization (WTO).

This means that no member state is allowed to enforce regulations that discriminate against foreign goods from other member states or implement any measure that might provoke obstructions for other member states to invest or conduct trade in the region. More specifically, member states are prohibited to:

Secondly, the amendment also includes an alteration in the current reservation list. A reservation list is a list of exceptions that do not conform to the other relevant chapters and commitments on liberalization.

There are two types of approaches to a reservation list: a positive-list approach and a negative-list approach. In this case, through the amendment, the current reservation list is switched from a single annex to a two-annex negative-list approach.

To elaborate, the first annex explicitly lists certain measures under National Treatment (no discrimination against foreign products), Prohibition on Performance Requirements, and Senior Management and Board of Directors, which is non-applicable.

The second annex dictates the sectors or sub-sectors, industries, products, or activities that are eligible for the exceptions mentioned in the first annex. In other words, these sectors are not obliged to a full commitment, and do not conform to certain measures of the regulations on liberalization.

This is because the listed measures are considered to act in opposition to the general liberalization principles, or also because a fully liberalized agreement among all member states cannot be reached.

Through the fourth protocol amendment, the ACIA takes a strong stance in establishing a more stable and fair investment environment for regional trade and integration. The amendment fortifies prohibitions on discrimination against foreign goods, enhancing equality between investors and domestic enterprises, and thus will encourage more investors to do business in the region.

Moreover, the prohibition on quantitative restrictions in the amendment is expected to improve exports and imports in ASEAN. Besides, the regulation of prohibiting exclusive delivery to certain markets eliminates the most-favored-nation treatment, offering the same service and products to all member states, and therefore improving trade activities in the region as a whole.

Further, the amendment on the reservation list offers a more transparent and predictable climate for trade and investment in ASEAN. Also, not every country will agree to a full commitment to liberalization. Thus, this amendment offers a compromise that is fair, transparent, and reasonable. With this in effect, every country in ASEAN will be satisfied with the terms and agreement, and as a result, will likely engage in further trade activities.

Being one of ASEANs member states, Vietnam sees a significant opportunity to benefit from enhanced trade activities in the region. Without restrictions or discrimination, other member states will be more willing to participate in trade in Vietnam, and vice versa.

In addition, the ACIA focuses on five major sectors: manufacturing, agriculture, fishery, forestry, mining, and quarrying, all of which are potential developing sectors in Vietnam. Thus, Vietnams trade and investment activities are expected to benefit as a result of the ACIA and the fourth amendment.

Since 2012 ASEAN member nations have signed a total of four protocols to amend the ACIA. Specifically, the first protocol in 2014 was signed to establish the process of amending the agreement and its reservations lists, aiming at further liberalization and facilitation of the investment environment.

The second protocol, signed in 2017, modified the definition of an investor as a natural person in the ACIA.

The third protocol to amend the ACIA, also signed in 2017, discarded paragraph 8 in the guidance on the application of the ACIAs reservation list, providing fair treatment for all investors of ASEAN member nations.

The most recently approved fourth protocol aims to amend the agreement to further bolster regional integration and attract more foreign investors.

Overall, the fourth protocol amending the ACIA proves to bring considerable positive effects on promoting trade in Vietnam as well as the wider ASEAN area, to attract more foreign investors.

Moreover, the common ground and effective negotiation demonstrated in this revised agreement indicates a political will among all ASEAN members, presenting a positive indication for the future of trade and investment in Vietnam and ASEAN.

In the near term, the ACIA is expected to enhance liberalization provisions and equality, moving closer towards the objective of presenting the ASEAN region as a single market, and an attractive destination for foreign trade and investment.

The ASEAN Comprehensive Investment Agreement (ACIA) is an ASEAN major economic tool, established as an approach to a liberate and transparent investment regime. The ACIA deliberately outlines the obligations of ASEAN countries to protect ASEAN investors and their investment activities in both absolute and relative terms.

According to the Vietnam Chamber of Commerce and Industry (VCCI), the agreements pillar goals are focused on liberalization, protection, facilitation, and promotion in regional trade and integration.

With that in mind, the ACIA aims to carry out one of ASEAN Economic Communitys most significant objectives: to become a single investment destination and production base, focusing on five core fundamentals: the free flow of goods, capital, services, investment, and labor.

The agreement is expected to create a more conducive business environment, attract investors outside of ASEAN to establish a business in the region, encourage confidence among current investors to sustain and expand their investments, and enhance intra-ASEAN investment.

The ACIA came into effect on March 29, 2012, and has efficiently boosted ASEAN trade and investment ever since. This was done by building a free, open, and integrated investment system for both domestic and international investors throughout the ASEAN member nations.

About Us

Vietnam Briefing is produced by Dezan Shira & Associates. The firm assists foreign investors throughout Asia from offices across the world, including in Hanoi and Ho Chi Minh City. Readers may write to vietnam@dezshira.com for more support on doing business in Vietnam.

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Vietnam Approves of Fourth Protocol Amendment in ACIA - Vietnam Briefing

This weeks IABs conference got off on a consumer-centric start Monday morning as a top Google executive and a U.S. Senator made cases for giving consumers even more control over theirpersonal data.

Citing Pew Research Center data that 81% of Americans dont believe the benefits of having their data tracked outweigh the risks, Google Vice President-GeneralManager for Ads Jerry Dischler reaffirmed the companys decision to abandon personal data tracking for advertising, but also unveiled a new initiative to leverage aggregated anonymized data tohelp the ad industry identify cohorts whose behaviors -- and performance -- could be lumped together in a way that helps advertisers measure and improve their advertising results.

He said the initiative, dubbed FLoC -- an acronym for federated learning of cohorts -- is already working with big advertisers and agencies, including Mondelez, Nestle,Unilever, Omnicon, PMG, S4 Capital and others, to begin identifying patterns that improve advertising performance in a 100% privacy-compliant way that also ensures a free and openinternet.

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He described FLoC as a community where advertisers and agencies can test and iterate together to hep develop privacy-compliant ways of ensuring thatadvertising continues to perform as cookies go away.

Were deeplycommitted to getting this right, he concluded.

Importantly, he said the law wouldensure that corporate executives are "held personally responsible when they lie about our information."

He cited a number of recent consumer data transgressions in which companies apologized,but then did nothing about it.

Separately, Wyden said he was working to "close a loophole" allowing federal agencies to utilize personal tracking data gathered by mobile app platforms tosurveil American citizens without a court order, effectively, violating their Fourth Amendment rights.

Read the rest here:
Google Touts Cohort Targeting, Hopes Advertisers Will FLoC To It 03/09/2021 - MediaPost Communications

The Karnataka High Court on Monday said it would on April 5 hear two petitions challenging the State amendment to the Bangalore Development Authority (Amendment) Act, which came into force on July 10, 2020 and the Karnataka Town and Country Planning (Fourth Amendment) Act KTCP Amendment Act which came into force on July 31, 2020.

The BDA Amendment Act seeks to inter alia, legalize the illegal occupation and construction on lands owned by the Bengaluru Development Authority. A division bench of Chief Justice Abhay Oka and Justice S Vishwajith Shetty was informed that the state government has not filed its statement of objections to the petition. To which the court orally said "One more instance of Covid-legislation. Ultimately the state will have to defend it. Amendment is by the state government. So it will have to respond."

During the hearing the bench pointed to few provisions and raised its objection. It said "One provision goes to the extent of saying that even land if acquired and not needed can be given back to the owner."

Senior Advocate Harish Narasappa appearing for the petitioner submitted "Not only that even if someone is in unauthorized occupation even he can be given. That is the egregious portion of the amendment. "While the party in person K B Vijayakumar submitted that "Even occupier of the property can apply for regularization." However, the state government advocate informed the court that safeguards are put in place.

The petition filed by Vijayan Menon states that "The BDA Amendment Act, like the Akrama Sakrama Scheme, is prima facie violative of Articles 14, 21 and 243ZE of the Constitution of India and is also contrary to the existing provisions of the Bengaluru Development Authority Act, 1976."

"The implementation of the BDA Amendment Act would render infructuous the current challenge to the Akrama Sakrama Scheme. The BDA Amendment Act detrimentally affects the residents of Bengaluru as the said Amendment Act incentivises land grabbers to illegally occupy government lands as the said illegal occupation would later on be legalized and regularized as a result of the said Amendment Act. The KTCP Amendment Act seeks to allow an increase in the floor area ratio for buildings by mere payment of premium charges to the Government."

It is further said that "The BDA Amendment Act, prospectively penalizes jurisdictional officers for their failure to prevent unauthorised constructions/occupations on BDA land from the date of the commencement of the BDA Amendment Act. In effect, the same amounts to excusing the jurisdictional officers for failure to prevent the unauthorized constructions/occupations on BDA lands prior to the date of the commencement of the BDA Amendment Act."

It is also claimed that The BDA Amendment Act has been enacted without due public consultation and the BDA Amendment Act has been enacted without having been brought to the notice of the Bangalore Metropolitan Planning BMPC which is a constitutional body set up under Section 503-B of the Karnataka Municipal Corporation Act, 1976 in accordance with Article 243ZE of the Constitution of India.

The plea says that if urgent interim reliefs and / or measures are not passed, it would result in irreversible damage to the urban landscape of the Bengaluru Metropolitan Area as several unauthorised constructions will be rendered legal.

The petition prays for a declaration that the BDA Amendment Act, the KTCP Amendment Act and the KTCP Amended Rules Notification as violative of Articles 14, 21 and 243ZE of the Constitution of India

See more here:
Karnataka HC To Hear Petition Challenging Amendment To BDA Act On April 5 - Live Law - Indian Legal News

Relist Watch ByJohn Elwood on Mar 5, 2021 at 9:46 am

The Relist Watch column examines cert petitions that the Supreme Court has relisted for its upcoming conference. A short explanation of relists is available here.

The Supreme Court has about 120 cases scheduled for resolution at Fridays conference. The court will be reviewing only two of them for the second time. Both raise the same basic issue, involving when people can sue the government for violating their rights when the suit might call into question the validity of a criminal conviction.

In Heck v. Humphrey, a 1994 decision of the Supreme Court, prisoner Roy Heck, who was serving a manslaughter sentence for killing his wife, sued police and prosecutors for federal civil rights violations under 42 U.S.C. 1983, alleging that they had knowingly destroyed exculpatory evidence and engaged in other misconduct to convict him. Because Hecks claims would undermine the validity of his conviction, the court reasoned that letting his claim go forward would allow prisoners to circumvent the restrictions Congress had placed on habeas corpus proceedings. Moreover, common-law malicious prosecution claims required plaintiffs to prove that criminal proceedings had terminated in favor of the accused. Accordingly, the court held that in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal courts issuance of a writ of habeas corpus. This is known as the favorable termination rule. This week, the court has relisted two cases testing the limits of that rule.

First up is Thompson v. Clark, 20-659, coming out of the U.S. Court of Appeals for the 2nd Circuit. Petitioner Larry Thompson was arrested for resisting arrest and obstructing government administration after bad diaper rash mistakenly led to a police visit for suspected child abuse. Prosecutors soon dismissed Thompsons obstruction case in the interests of justice. The 2nd Circuit held that dismissal wasnt enough to show favorable termination under circuit precedent requiring that a proceeding must end[] in a manner that affirmatively indicates [a defendants] innocence. Thompson alleges a circuit split between courts like the 2nd Circuit and other appellate courts that hold that Section 1983 suits can proceed if the criminal prosecution ended in a manner not inconsistent with the defendants innocence. (Thompsons case also raises a claim about which party in a Section 1983 suit against police has to prove exigent circumstances existed to justify a warrantless search.)

City of Fairbanks, Alaska v. Roberts, 20-711, approaches the issue from the other direction. Respondents Marvin Roberts, George Frese, Kevin Pease and Eugene Vent were convicted of murder for the beating death of a teenager. But years later, someone else confessed to the crime and implicated others; during a court hearing, significant evidence was developed that this other group had committed the crime and the original defendants were innocent. The prosecution entered into an agreement with the four original defendants: The prosecution would move to vacate the conviction, and the four men would stipulate that their original convictions had been based on proof beyond a reasonable doubt and would release the state of Alaska and the city of Fairbanks from liability for their convictions. After their release from prison, the four men sued. A divided panel of the U.S. Court of Appeals for the 9th Circuit held that the settlement satisfied the favorable termination rule. Judge Lawrence VanDyke and Judge Sandra Ikuta dissented from denial of rehearing en banc.

The favorable termination rule has confused courts for years. On Monday, well have a better idea what the court plans to do about it.

Thats all for this week. Stay safe!

Thompson v. Clark, 20-659Issues: (1) Whether the rule that a plaintiff must await favorable termination before bringing aSection 1983action alleging unreasonable seizure pursuant to legal process requires the plaintiff to show that the criminal proceeding against him has formally ended in a manner not inconsistent with his innocence, as the U.S. Court of Appeals for the 11th Circuit decided inLaskar v. Hurd, or that the proceeding ended in a manner that affirmatively indicates his innocence, as the U.S. Court of Appeals for the 2nd Circuit decided inLanning v. City of Glens Falls; and (2) whether, when a Section 1983 plaintiff brings a Fourth Amendment claim for unlawful warrantless entry of his home and the government pursues a justification of exigent circumstances, the government has the burden to prove exigency existed (as the U.S. Courts of Appeals for the 3rd, 6th, 9th and 10th Circuits have held), or whether the plaintiff has to prove its non-existence (as the U.S. Courts of Appeals for the 2nd, 7th and 8th Circuits have held) .(relisted after the Feb. 26 conference)

City of Fairbanks, Alaska v. Roberts, 20-711Issue: Whether vacatur of a conviction by settlement qualifies as a favorable termination under Heck v. Humphrey when the vacatur was merely the ministerial recognition of a settlement agreement between respondents and the state.(relisted after the Feb. 26 conference)

Biden v. Knight First Amendment Institute, 20-197Issue: Whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies.(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15, Jan. 22, Feb. 19 and Feb. 26 conferences)

Chipotle Mexican Grill v. Scott, 20-257Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are similarly situated for purposes of the collective-action provision of the Fair Labor Standards Act.(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]

Texas v. California, 220153Issue: Whether Californias sanctions against Texas and Texans prohibiting state-funded or state-sponsored travel to Texas because Texas protects the religious freedom of faith-based child welfare providers within its borders are born of religious animus and violate the Constitutions privileges and immunities clause, interstate commerce clause and guarantee of equal protection. CVSG: 12/4/2020.(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19 and Feb. 26 conferences)

Dobbs v. Jackson Womens Health Organization, 19-1392Issues: (1) Whether all pre-viability prohibitions on elective abortions are unconstitutional; (2) whether the validity of a pre-viability law that protects womens health, the dignity of unborn children and the integrity of the medical profession and society should be analyzed underPlanned Parenthood v. Caseys undue burden standard orWhole Womans Health v. Hellerstedts balancing of benefits and burdens; and (3) whether abortion providers have third-party standing to invalidate a law that protects womens health from the dangers of late-term abortions.(rescheduled before the Oct. 9, Oct. 16, Oct. 30, Nov. 6, Nov. 13, Nov. 20, Dec. 4 and Dec. 11, conferences; relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19 and Feb. 26 conferences)

Massachusetts Lobstermens Association v. Coggins, 20-97Issues: (1) Whether, in conflict with the holdings of the U.S. Courts of Appeals for the 5th and 11th Circuits and the National Marine Sanctuaries Act, the Antiquities Act applies to ocean areas beyond United States sovereignty where the federal government has only limited regulatory authority; and (2) whether the president can evade the Antiquities Acts smallest area requirement, including designating ocean monuments larger than most states, by vaguely referencing resources or an ecosystem as the objects to be protected.(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19 and Feb. 26 conferences)

Harris v. Maryland, 20-101Issue: Whether, when preindictment delay has caused actual prejudice to the accuseds ability to defend himself, the due process clause requires that the defendant prove that the delay was driven by an improper prosecutorial motive, or that courts balance the particular prejudice to the defendant against the particular reasons (or lack thereof) for the delay.(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19 and Feb. 26 conferences)

Johnson v. Precythe, 20-287Issues: (1) WhetherBucklew v. Precytheestablished a categorical rule that a state may obtain dismissal of an Eighth Amendment method-of-execution claim by proffering a reason for rejecting the plaintiffs opposed alternative method of execution that is legitimate in the abstract, regardless of whether the plaintiff has plausibly alleged that the states proffered reason is not legitimate or sufficient on the facts of the case; and (2) whether, in the alternative, the U.S. Court of Appeals for the 8th Circuits refusal to permit Ernest Johnson, after the Supreme Courts decision inBucklewwas issued, to amend his complaint to propose a previously-used alternative method of execution warrants summary reversal.(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19 and Feb. 26 conferences)

United States v. Tsarnaev, 20-443Issues: (1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that Dzhokhar Tsarnaevs capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaevs case; and (2) whether the district court committed reversible error at the penalty phase of Tsarnaevs trial by excluding evidence that Tsarnaevs older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted.(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19 and Feb. 26 conferences)

Small v. Memphis Light, Gas & Water, 19-1388Issue: Whether Trans World Airlines Inc. v. Hardison, which stated that employers suffer an undue hardship in accommodating an employees religious exercise whenever doing so would require them to bear more than a de minimis cost, misinterprets42 U.S.C. 2000e(j) which specifies that religion includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employees or prospective employees religious observance or practice without undue hardship on the conduct of the employers business and should be overruled.(rescheduled before the Nov. 20, Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences; relisted after the Feb. 19 and Feb. 26 conferences)

Dalberiste v. GLE Associates, Inc., 19-1461Issue: Whether the Supreme Court should reconsider Trans World Airlines Inc. v. Hardison and set a proper legal standard for determining what constitutes an undue hardship under Title VII.(rescheduled before the Oct. 9, Nov. 20, Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences; relisted after the Feb. 19 and Feb. 26 conferences)

Chavis v. Delaware, 20-317Issue: Whether the confrontation clause permits DNA evidence obtained as the result of a multi-analyst testing process to be introduced against the defendant at trial through one of the testing analysts who has no personal knowledge of the basis for the out-of-court testimonial statements made by the other nontestifying analysts who participated in the testing.(relisted after the Feb. 19 and Feb. 26 conferences)

Smith v. Titus, 20-633Issue: Whether the Sixth Amendments public trial guarantee, within the review apparatus imposed by the Antiterrorism and Effective Death Penalty Act of 1996, applies (1) to all phases of a defendants criminal trial; or (2) only to pretrial suppression hearings and juror voir dire.(relisted after the Feb. 19 and Feb. 26 conferences)

Taylor v. Illinois, 20-5344Issue: Whether a defendant is denied his Sixth Amendment right to be confronted with the witnesses against him when a court admits into evidence a certified autopsy report, without requiring the state to present the testimony of the author, and the state then relies on the authors observations, not just to show cause of death, but as the sole evidence supporting its argument that the defendant fired two shots, when the defendant consistently denies firing two shots, when his denial is supported by each eyewitness and the physical evidence and when the states two-shot theory is crucial to its argument that the defendant committed knowing murder and not a lesser offense.(relisted after the Feb. 19 and Feb. 26 conferences)

Read the rest here:
A pair of petitions on the favorable termination rule - SCOTUSblog

The mayor of Lansing has been added to afederal lawsuit that alleges excessive force by city police caused the death of a 54-year-old man last year in the city's jail.

Mayor Andy Schor was named as a defendant in the lawsuit filed last Octoberin U.S. District Court for the Western District of Michigan by the Southfield law firm of Buckfire & Buckfire.

The lawsuit states Schor"pursuant to the Charter, at all times relevant, was granted final decision-making authority concerning the supervision of the LPD."

The complaint alleges that Schor and police chief Daryl Green"knew or reasonably should have known, that the force used by the Defendant officers was excessive and in violation of the Fourth Amendment and the LPDs policies and procedures regarding the use of handcuffs and restraint devices."

Lansing city attorney Jim Smiertka, who is representing the mayor and others named in the lawsuit, said Wednesday, "We're going to file a motion to dismiss." He saidthe city has "tons" of video and bodycam video footage that dispute the allegations in the lawsuit.

"(The lawsuit) doesn't have any base or fact in law," added Smiertka. He said videos in the lawsuit have been forwarded to the Michigan Attorney General's Office for an investigation.

Anthony Hulon(Photo: Buckfire Law Firm)

The lawsuitalleges that officers used "excessive force" and the department permitted "collusive statements" by the officers in the death of Anthony Hulon of Lansing.

Hulondied April 11 while restrained face-down in police custody in the Lansing jail aftertelling officers, "I can't breathe." Hulon was handcuffed behind his back and pinned to the ground by Lansing police in a cell, according to the lawsuit.

The lawsuit, filed on behalf of Hulon's family members, names as defendants the mayor, police chief and officersGary Worden, Charles Wright, Trevor Allman, Bill Windom and Edgar Guerra, plusthe city of Lansing.

Wordenhad written in an incident report that Hulon "was visibly under the influence of narcotics believed to be meth.Hulon was escorted to cell 6-3 without any issues. Hulon then started taking clothes off and was pacing the cell and yelling. Hulons behavior continued for approx. 8 hrs at which point Hulon stated he was very sweaty and hot. Sgt.Windham [sic] notified dispatch to have LFD and an Ofc transport Hulon formedical evaluation.

Read or Share this story: https://www.detroitnews.com/story/news/local/michigan/2021/03/03/lansing-mayor-added-suit-against-police-over-man-death/6910054002/

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Lansing mayor added to suit against police over man's death - The Detroit News

I really didnt want to write about drama surrounding local homelessness issues again this week. After all, theres a much better homelessness story on the front page, and unlike what Im about to write here, that story focuses on people who are actually homeless.

But considering recent events, I feel obliged to deliver the following.

Simply put, things have taken a sharp turn from Your run-of-the-mill Chico drama into So weird, this is Annie Bidwell-through-the-looking-glass territory. Id say You cant make this stuff up, but we rounded that jagged corner a long time ago.

First, Im going to point out some things that may sound shocking and maybe even give everyone pause: Chico, each of you with roofs over your heads have a lot to be happy about today.

First, for Chico First and Citizens For A Safe Chico folks: Seen our parks lately? Arent most of them nice and clean? Generally free of homeless encampments and mounds of garbage? Be happy. The new city council is doing exactly what most of the voters wanted them to do, and its made progress down that avenue in a big hurry.

Next, for groups in the homeless-advocacy category: Look! CHAT got $300,000 for shelter help, following a motion made by Sean Morgan (whether you like that part or not). Safe Space found some churches to help with shelter and medical care this winter. The new Jesus Center opens soon and Torres has taken in some people. Its actual progress the likes of which we havent seen in a while, and everyone involved with this is working hard to somehow fix a statewide and national problem that never should have created such a burden on the shoulders of small communities in the first place.

Yet almost nobody in this big tent seems happy. Why? Because nobodys winning. It seems half the town is mad because the homeless people havent gone away, regardless of how many times the city plays whack-a-mole with the encampments; and the other half is mad because unsheltered people are constantly being told go somewhere else without having anyplace they can actually go and who can blame them?

So nobodys completely getting their way, and a few are doubling down in hopes of picking up the pace.

Which leads us to the past 10 days.

First, local attorney Rob Berry drafted a letter to the Chico city manager, city attorney and chief of police saying he intended to use his legal authority to place people under citizens arrest if he saw them breaking laws. In particular, he mentioned Councilor Scott Huber and other local homeless advocates because theyd helped move people out of illegal camping sites and driven them elsewhere where, one can assume, they illegally camped again.

Full disclosure: Berry is a contributor to our Pro vs. Con series and a frequent writer of letters to the editor. Ive had several discussions with him the past couple of years, just as Ive had discussions with people of every political stripe, including everyone mentioned in this column. Sometimes I agree with these people and sometimes I dont, and vice-versa. But we keep communicating, which I think is always a good thing.

Not surprisingly, Berrys letter quickly made the rounds. Stand Up For Chico, the PAC fronted by Angela McLaughlin, issued a response expressing their horror especially the possibility that citizens could be detained by another citizen in the middle of helping homeless people move, and how exactly was that going to work, given the high levels of animosity that already exist between the various parties? The group urged the city to step in with some guidelines, calling Berry everything from a pettifogger to a vigilante in the process.

Thus, the powder keg was lit, and nothing short of a perfectly worded response from a city official could defuse it. Enter Chief of Police Matt Madden, who wrote a response so sublime, I wish I could call it my own.

Among the highlights from Maddens release on the topic of citizens arrests:

If a citizen sees a crime that has occurred, is occurring, or about to occur, law enforcement should be contacted immediately, and the citizen should avoid taking matters into their own hands.

The citizen making the arrest takes on the civil liability of making potential false arrests and could be held criminally responsible for rights violations, such as the Fourth Amendment of the United States Constitution.

And finally, Due to the potentially high level of danger to the public, we encourage citizens to contact the Chico Police Department and allow our staff to investigate crimes in progress.

The statement didnt include any provisions like Unless, of course, you see a member of the city council loading a homeless persons tent into the back of his truck, in which case you should follow him, so the message seemed clear: Let the police do their jobs.

What a concept. So, lets take a big-picture look here.

For all the assaults, burglaries, stabbings, shootings, robberies and other crimes that keep our police busy involving the unsheltered and yes, even people with a front door that locks its clear theyd much rather respond to a call themselves than end up in the middle of any citizen-arrest dramas in this particular arena, especially if those catch on and become the new thing to do.

Honestly, thats the biggest worry here. Its not the thought that an attorney whos not shy about insisting laws are followed is threatening citizens arrest on a councilor who isnt shy about his feelings that the homeless need some place to actually be.

A bigger concern for me, in this age of oft-dangerous political extremism, is what happens next? Who else will decide they want to follow people around town in hopes they catch them in an illegal act? Whos itching to one-up the dreaded other side with threats of arrest? What happens if someone places someone else under citizens arrest and the other person doesnt feel like being citizen-arrested? What if that person citizen-arrests the first person back? Howd you like to write up that police report, and does any of this sound like a good use of our police departments time?

Bottom line, dont police have more important things to worry about than whether or not someone is giving a homeless person a ride across town? Cant people who are rightly proud to say I support the police at least agree on that, especially since our district attorney, Mike Ramsey, told Action News that theres no crime here unless aid was given in physically setting up camp in a new illegal place? Hasnt it occurred to anyone that if a homeless person gets kicked out of a park and doesnt have a ride, hes going to end up someplace else anyway probably someplace many people in this town wont approve of? And where are they supposed to go, anyway?

I wish I had all of the answers. Its exasperating that I even have to ask some of these questions.

But, if I may dish out some advice that I expect absolutely no one will follow, I think we all need to take a deep breath here. Be happy about any progress that is made. This is a huge statewide and even national problem and there is no easy fix. Keep doing everything you can for what you believe and, just for the weirdness of it, try looking at things from another point of view once in a while. I may stand alone with this thought, but many of you are not as far apart in your beliefs as youve convinced yourselves that you are.

Anyway, lets see if we can un-torque the tension meter a few notches and enjoy this Sunday. Ill do my part by promising never to touch this particular subject in this particular space again until the thermometer hits triple digits, regardless of how heated the rhetoric gets in the meantime.

Finally, if you havent already done so, please read the story on the front page. As I said at the beginning, its a heck of a lot more important than this one.

Mike Wolcott is editor of the Enterprise-Record. You can reach him at mwolcott@chicoer.com.

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The (homeless) road goes on forever, and the drama never ends | Editors notes - Chico Enterprise-Record

The Fourth Amendment is among the most sacred safeguards of individual liberty embedded in our Constitution.

The amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In just 54 words, the Fourth Amendment packs a lot of significance, and interpreting their meaning has kept judges and lawyers busy for centuries.

The basic premise of this amendment is to protect Americans from unreasonable searches and seizures of their property by the government. (Keep an eye on the word unreasonable, because its going to be important.)

It is for this reason that a police officer cannot stop you while youre walking down the street and arbitrarily search your purse or pockets.

These protections did not just come about spontaneously. Like all amendments included in the Bill of Rights, the Framers learned from their experience as royal subjects and added safeguards against the abuses they routinely endured by British agents.

To better understand why the ratification of the Fourth Amendment was so important to our Framers requires a deep dive into the historical context of 18th-century colonial America.

The colonists, still under the thumb of the British king, were subject to arbitrary and invasive searches under the Writs of Assistance, which allowed British troops and government officials to search homes and private property looking for goods that were imported illegally or on which a tax had not been paid. Needless to say, such abuses were a sore point for the aggrieved colonists.

A particularly notable figure of the colonial revolutionary era is James Otis, a Massachusetts lawyer and political activist who has been described as the Founding Father of the Fourth Amendment.

In a famed 1761 oration against the Writs of Assistance, Otis painted a vivid portrait of how unlimited government search powers were a threat to the liberty and tranquility of the people:

Now one of the most essential branches of English liberty is the freedom of ones house. A mans house is his castle; and while he is quiet, he is as well guarded as a prince in his castle.

This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient. This wanton exercise of this power is not a chimerical suggestion of a heated brain

In making the case against the wanton exercise of this power over the American colonists by agents of the British crown, Otis articulated the intellectual and moral principles that would later come to undergird the Fourth Amendment in the Bill of Rights. He thus laid the groundwork to ensure that such abuses of power would not be allowed to continue, should America earn its independence.

A young John Adams was in the audience when Otis gave this speech and later wrote then and there the child independence was born.

The principles passionately supported by Otis would come to serve as the foundation of individual liberty, private property protection, and privacy law.

So next time you see a television cop taking time to secure a search warrant from a judge to allow him to pursue an investigation against a criminal suspect, youre watching the Fourth Amendment in actionand you can thank James Otis for that.

Over the past century, the Fourth Amendment has grown in importance, owing to the expansion of government powers and the rapid pace of technological change. During that time, the courts have paid increasing attention to Fourth Amendment issues.

A particularly important landmark was the Supreme Courts decision in Weeks v. United States (1914), which established that evidence obtained through unconstitutional means was inadmissible in court. This is known as the exclusionary rule, which is important because it provides an incentive for law enforcement personnel and other government agents to be scrupulous in respecting Fourth Amendment protections.

Another seminal case in 20th-century Fourth Amendment jurisprudence was Katz v. United States (1967). Charles Katz was a sports gambler known for his skill at handicapping college basketball games. Unfortunately for Katz, his gifts brought him to the attention of federal investigators. Seeking to avoid law enforcement scrutiny, Katz often used a public phone booth near his Los Angeles apartment to conduct his less-than-legal business affairs. To build the case against him, the FBI tapped the phone booth, which resulted in criminal charges and a conviction against Katz.

Katz appealed his case, but the 9thCircuit upheld the search because it did not penetrate the telephone booths walls. However, the Supreme Court reversed the lower courts call, throwing out the FBIs wiretap evidence and overturning Katz conviction based on the new doctrine of a reasonable expectation of privacy.

This was a landmark moment for privacy law: by divorcing the FourthAmendment from concepts of property invasion, the Court fundamentally altered the jurisprudential landscape surrounding government searches and seizures.

While in some respects this decision expanded individual protections against government snooping, in other respects it weakened the protection against incursions on private property. Moreover, no one has ever been able to come up with a good explanation of exactly what a reasonable expectation of privacy is supposed to mean.

In reaction to the imprecision of the reasonableness standard, lawyers and scholars with an interest in property law have sought to rejuvenate Fourth Amendment jurisprudence with a renewed focus on incursions on private property rights. Along those lines, key Fourth Amendment cases from the past couple of decades include the following:

As noted above, the growth of governments enforcement powers and the proliferation of technological changes have opened up new frontiers for potential Fourth Amendment violations that challenge traditional understandings of search and seizure.

For example, PLFs has written about the questions surrounding digital privacy with regard to potentially intrusive technologies like surveillance and digital tracking, urging greater protections for individuals against potential violations of privacy.

Many digital privacy cases working their way through the courts now are incredibly important in defining what types of digital privacy the Fourth Amendment protects, Woislaw notes. The Fourth Amendment is our best line of defense against the pervasive surveillance stateso now is the time for judges to clarify with greater precision how the Constitution protects digital privacy.

Likewise, there are also issues dealing with administrative searches that permit government to search the physical sites of highly regulated industries with minimal warrant protections. These include gun shops, liquor stores, bars, industrial facilities, and the like. Its another area where courts should look to rein in potential government abuses of Fourth Amendment rights.

Such challenges only underscore the fact that protection of private property from government search is a key to securing individual liberty for all Americans.

The Fourth Amendment is much more than a matter of criminal procedureby limiting the power of government to target citizens through unreasonable searches and seizures, its one of our most important bulwarks in defense of privacy and individual liberty. It is essential, therefore, that the protections to private property granted by the Constitutions Fourth Amendment (and its close neighbor, the Fifth Amendment) be zealously guarded.

See the original post here:
The Fourth Amendment to the Constitution: A Primer - Pacific Legal Foundation (PLF)

CASE PREVIEW ByAmy Howe on Feb 23, 2021 at 5:56 pm

An old English maxim instructs that a mans home is his castle a refuge from the outside world. On Wednesday the Supreme Court will hear oral argument in a case testing how much protection the Constitution provides to the home. At issue in Lange v. California is whether, when police are pursuing someone for a misdemeanor, that is always an exigent circumstance that will allow the officer to follow the suspect into a house without a warrant.

The defendant in the case is Arthur Lange, who in 2016 was returning to his home in Sonoma, California, in his car. While driving with his windows down and listening to music, Lange also honked his horn a few times. Lange caught the attention of Aaron Weikert, a California highway patrol officer who followed Lange from a distance into his residential neighborhood.

Weikert turned on his overhead lights as Lange approached his driveway, but Lange who later said that he had not seen Weikert pulled into his garage. Weikert parked in Langes driveway and, as Langes garage door began to close, stuck his foot under the door to block it from closing. When the door reopened, Weikert entered the garage where, he said, he smelled alcohol. Lange was later taken to a hospital, where testing determined that his blood-alcohol level was 0.245%, more than three times the legal limit.

Lange was charged with driving under the influence and a noise infraction. He asked the trial court to bar prosecutors from using evidence obtained in the garage, arguing that Weikert had violated the Fourth Amendment when he entered the garage without a warrant. The California Court of Appeal upheld Langes conviction. It ruled that Weikert had probable cause to arrest Lange when Lange continued to his driveway and into his garage after Weikert turned on his lights. And because Weikert was in hot pursuit of Lange, his entrance into Langes home was justified, even though Weikert did not have a warrant. After the California Supreme Court declined to weigh in, Lange asked the U.S. Supreme Court to take up his case, which it agreed to do in October 2020.

In his brief on the merits, Lange urges the justices to reverse the state courts ruling. Although searches and seizures without a warrant may frequently be allowed outside the home, even when relatively minor offenses are involved, Lange stresses, a different rule applies inside the home. A core principle of the Fourth Amendment, Lange contends, is that police officers generally need a warrant to enter a home. The Supreme Court has carved out an exception to this general rule for exigent circumstances, but it is limited, Lange stresses: The court has repeatedly made clear that the exception applies only in genuine emergencies, when there isnt enough time for police to get a warrant.

Any determination of whether there are exigent circumstances allowing police to enter a home when they are in hot pursuit of a suspect should always be made on a case-by-case basis, regardless of what kind of crime police believe the suspect committed, Lange contends. But at the very least, Lange continues, the court should reject a categorical rule that would allow police to enter a home without a warrant whenever they are following someone whom they believe committed a misdemeanor. There is a wide range of misdemeanors, Lange reasons, some of which like jaywalking and loitering are not at all violent. Creating a categorical exception, Lange writes, would ignore those distinctions, treating pursuit of teenagers walking home just after curfew the same as pursuit of a fleeing armed robber.

Lange pushes back against any suggestion that a categorical rule would benefit police officers, noting that officers make case-by-case determinations in other situations all the time. When police officers determine that they do need to enter a home without a warrant for example, to ensure that evidence is not destroyed or to protect another person courts routinely uphold those entries, Lange adds. By contrast, Lange continues, a categorical rule would have high costs generally, by allowing police to enter homes even when there is no emergency, but especially for people of color, who are more likely to have the kind of contacts with the police that could lead to the police pursuing them for misdemeanors.

California initially told the court that it should deny review, but in its brief on the merits it urges the justices to vacate the state courts ruling although both its reasoning and the result it asks the justices to reach are slightly different than Langes. California concedes that the Supreme Court has created a categorical rule allowing police officers to enter a home without a warrant when they are pursuing someone whom they believe has committed a felony, but the state argues that the court should draw the line there. The interests justifying the exception to the general warrant requirement for pursuit in the context of suspected felonies for example, the possibility that the suspect will escape or destroy evidence are less likely to be present in misdemeanor pursuits, the state contends. And in any event, the state continues, when police are pursuing a misdemeanor suspect, they may determine in some cases either that there is an emergency that would justify entering the suspects house without a warrant, or they can apply for a warrant quickly.

California suggests that even if the Supreme Court agrees that a categorical rule does not apply to the pursuit of someone suspected of committing a misdemeanor, it should nonetheless send the case back to the state courts so that they can consider whether the evidence that Lange was under the influence should still be admitted. The state courts can consider that evidence, California posits, because the officer acted in good faith even if he was ultimately wrong about what the Fourth Amendment requires.

Because California declined to defend the state courts decision, the Supreme Court appointed Amanda Rice, a Detroit lawyer who clerked for Justice Elena Kagan, as a friend of the court to do so instead. Rice stakes out a broad position, arguing that the Supreme Courts cases allow police to enter a home without a warrant whenever they are in hot pursuit of a fleeing suspect without any suggestion that the ability to do so hinges on whether the underlying offense is a felony.

Such a rule, Rice contends, reflects an appropriate balancing of the interests involved. Regardless of what the underlying offense is, the government has a strong interest in discouraging a suspect from fleeing police, and it generally also has a strong interest in identifying a suspect. On the other hand, a suspects privacy interests are reduced. He can maintain the privacy of his home by surrendering to police outside the home when he is being pursued; if he opts to go inside his home instead, he has to expect that the police officer will follow him to arrest him, and he therefore gives up any expectation of privacy. The rule boils down to common sense, Rice concludes: Whatever the classification of his initial crime, a fleeing suspect cannot graft the protections of the home onto a lawful arrest begun in public by running inside.

Rice extols the benefits of a categorical rule, telling the justices that it will give police officers the clear and unequivocal guidelines they need to do their jobs. By contrast, she contends, Langes case-by-case rule would require police officers to make split-second decisions based on rapidly unfolding facts, transforming each exercise of an officers discretion into an occasion for constitutional review and potential civil liability.

Rice goes a step further than California in the outcome that she proposes for Langes case. Even if the Supreme Court rejects a categorical rule, she suggests, it should still uphold the California Court of Appeals decision because Weikert was relying on decisions by state appeals courts when he followed Lange into his garage. Moreover, Rice adds, Weikerts decision to follow Lange was reasonable on its own terms anyway.

The federal government filed a brief in which it also urged the justices to affirm the state courts ruling. Although the Supreme Courts cases involving hot pursuit have involved probable cause to believe that the suspect committed a felony, the government acknowledges, all of the same considerations that justify allowing a police officer to enter a home without a warrant when pursuing a suspect for a felony will typically, if not invariably, extend to cases involving a misdemeanor as well. Even if there is not a categorical rule allowing police officers to enter a home without a warrant when they are in hot pursuit of a suspect in cases involving misdemeanors, the government continues, there should at least be a general presumption that such warrantless entries are reasonable which, the government adds, Weikerts was.

Ten different friend of the court briefs were filed in support of Lange, representing a wide range of views everything from the American Civil Liberties Union and the National Association of Criminal Defense Lawyers to a group of gun owners. A brief by privacy advocates cautions the justices about the broader implications of their decision, warning that a ruling upholding the state courts categorical rule could eventually allow police to conduct searches without a warrant, sometimes even remotely, in other contexts, such as cellphones and electronic devices, which usually contain the kind of personal information once found only in the home.

State governments and law-enforcement groups dominate the six friend of the court briefs filed in support of Rice and the judgment below. A brief by the National Fraternal Order of Police stresses that it is not asking for unrestrained ambition for its officers to effectuate lawful stops and arrests. Instead, the group emphasizes, the categorical rule outlined by the state court is a narrow one that applies only in a very limited set of circumstances. Well know more on Wednesday about whether the justices see the case the same way.

This article was originally published at Howe on the Court.

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Justices to consider whether hot pursuit justifies entering the home without a warrant - SCOTUSblog