Category Archives: Fourth Amendment

The US Court of Appeals for the Eighth Circuit ruled Thursday that a SWAT team member must face First Amendment and battery claims from reporters he tear-gassed while they were covering public unrest in Ferguson, Missouri, after the fatal shooting of Michael Brown in 2014.

SWAT team member Michael Anderson claims that the reporters had been ordered to disperse before he deployed the tear-gas. He also asserts that there wereprojectiles launched from the reporters area, leading him believe that there was an imminent threat to safety. He claims that he had arguable probable cause to believe that the reporters were refusing to disperse, obstructing officers performing their duties, and interfering with officers in a way that impacted officer safety. If this mistaken belief was objectively reasonable, Anderson wouldreceive qualified immunity.

However, in its opinionthe Eighth Circuit implied that this version of the facts is blatantly contradicted by video footage from the reporters, Ash-har Quraishi, Marla Cichowski, and Sam Winslade of the Al Jazeera America news network, as well as at least three other videos. The ruling affirms the US District Court for the Eastern District of Missouris decision todeny Andersons motion for summary judgment and allow the plaintiffs to proceed:

The videos confirm the reporters version of the facts. They do not show dispersal orders or flying projectiles. They do not show orders to turn off the lights before the tear-gas. Rather, they show a peaceful scene interrupted by rubber bullets and tear-gas.Anderson presumes disputed facts in his favor, which this court cannot do because he moved for summary judgment. Taking the facts most favorably to the reporters, Anderson did not have arguable probable cause to use the tear-gas.

The video also contradicts Andersons claim that the Al Jazeera reporters were not engaged in activities protected by the First Amendment. The video supports the reporters claim that they were singled out by Anderson. A reasonable officer would have understood that deploying a tear-gas canister at law-abiding reporters is impermissible, the court said.

The court also ruled in favor of the plaintiffs regarding their state-law battery claims, noting that it was possible that Anderson acted with more force than [was] reasonably necessary to disperse the reporters, given that they were not engaged in unlawful activity.However, the court denied the reporters Fourth Amendment claims because it has not been clearly established that tear-gassing amounts to a seizure.

The Eighth Circuit remanded the case to the district court for further proceedings.

Continued here:
Federal appeals court allows reporters to sue SWAT officer who tear-gassed them during Ferguson protests - JURIST

In July of 2016, Angela Calloway arrived at the Augusta Correctional Center in Craigsville, Virginia, to visit with an inmate, Travis Talbert. She left soon after, having been told to remove her clothes and tampon so prison guards could inspect her vaginal and anal cavities for contraband.

Their search yielded no drugs, and Calloway has not returned to the prison since.

A federal court ruled last week that the guards involved in that invasive search did not violate the Fourth Amendment, simultaneously upholding a lower court ruling that awarded qualified immunity to the government employees. Calloway will thus not be permitted to sue over the incident.

"[T]he standard under the Fourth Amendment for conducting a strip search of a prison visitoran exceedingly personal invasion of privacyis whether prison officials have a reasonable suspicion" to believe such a search is necessary, writes Judge Paul V. Niemeyer of the U.S. Court of Appeals for the Fourth Circuit. In Calloway's case, that included the following: an unidentified inmate said two days prior that Talbert was "moving" contraband; a guard saw Calloway briefly touch her pants; that same guard had twice previously identified contraband smugglers.

After briefly meeting with Talbert in the visitation room, Calloway was removed by the guards and given the news. One officer "indicated that if Calloway did not consent to a strip search, she would not be permitted to come back to the prison," notes Niemeyer. According to Calloway, she was "bawling crying and didn't understand what was going on."

Upon entering the bathroom, Calloway was told to remove her clothes and "lift her arms and breasts, open her mouth, and lean over and shake her hair," which one guard also ran her hands through to check for drugs. The officers had her "squat and cough" to examine her anal and vaginal cavities; Calloway was menstruating, requiring her to remove her tampon, which the guards also inspected.

In order to successfully overcome a qualified immunity defense, plaintiffs must clear two hurdles: They must prove that their constitutional rights were indeed violated and that such a violation has been "clearly established" in previous case law. In other words, a court may rule that the defendant unequivocally infringed on someone's civil rights while subsequently taking away a victim's right to sueif the alleged misbehavior has not yet been outlined in a prior decision. Two officers in Fresno, California, for example, were afforded qualified immunity after stealing $225,000, because the U.S. Court of Appeals for the Ninth Circuit could not pinpoint a court precedent saying that it is unconstitutional for cops to steal.

But the Fourth Circuit did not clear Calloway on even the first prong, something that Judge James A. Wynn took issue with in a lengthy dissent.

"[V]iewing the evidence in a light most favorable to Ms. Calloway shows that the officers' lacked justification for initiating the search," he writes.

Such a personally humiliating exercise requires more "individualized, particularized information," he argues. Wynn cites Leverette v. Bell (2001): "'Courts examining the constitutionality of physically intrusive searches have distinguished between strip searches, visual body cavity searches, and manual body cavity searches,'" he quotes. "Unquestionably, the search of Ms. Calloway's bodywhich included a visual inspection of her anal cavity and an order to remove her tampon from her vagina in front of two officers and place her used tampon in an officer's hand for inspectionwas an intrusive search, more like a visual body cavity search than a standard strip search." The same precedent holds that a prison visitor "does not forfeit all privacy rights" when he or she enters.

That addresses the first qualified immunity prong. What about the second?

"The majority wisely does not address the qualified immunity analysis beyond concluding the search was supported by reasonable suspicion," Wynn writes. "But even if the majority were to reach qualified immunity, I believe the right of prison visitors to be free from strip searches absent reasonable suspicion was clearly established at the time of this search." He again cites Leverette, which requires that a visual body cavity search be accompanied by such suspicion.

Calloway brought her claim under the Civil Rights Act of 1871, the landmark law that allows citizens to sue for civil rights violations. The law provides (or is supposed to provide) the American public with appropriate recourse when state actors deny them their rights.

But the jurisprudence around the legislation, also known as Section 1983, often results in the direct opposite. That's particularly relevant with the addition qualified immunityan imaginative doctrine that the Supreme Court concocted out of thin air. Deference goes to the state, not to the victim.

"The question is whetherviewing the evidence in the light most favorable to Ms. Callowaya reasonable jury could conclude the search was not supported by the individualized, particularized information required by the Fourth Amendment," Wynn writes. Unfortunately for Calloway, she will not have the privilege to find out.

More here:
Prison Guards Who Forced Menstruating Visitor To Expose Vaginal and Anal Cavities Are Protected by Qualified Immunity - Reason

TORRINGTON Goshen County Right to Life held their annual candlelight vigil at the intersection of Highway 26 and Main Street in Torrington on Friday evening, Jan. 22, 2021. Friday marked the 48th anniversary of Roe v. Wade; the landmark court case that established a womans legal right to an abortion.

The U.S. Supreme Court ruled in a 7-2 decision that a womans right to choose an abortion was protected by the Fourth Amendment to the United States Constitution until the point at which the fetus becomes viable.

Goshen County Right to Life organizer Jan Long, said she is working to give a voice to the voiceless. Long has been actively involved in the pro-life movement for more than a decade.

One childs life is worth all of this, said Long.

Long and 19 other people lined Highway 26 with signs reading stop abortion now, we stand for life, adoption a loving choice and more. The participants held candles, waved at traffic driving by and displayed their signs.

We got a lot of thumbs up, lots of honks and lots of positive responses, vigil attendee Carol Lessard said. Lessard has been involved with Goshen County Right to Life for the past five years.

Long told the Telegram, the younger people that are coming up also, the ones that are college-age, either side, high school and just out of college; they call themselves the pro-life generation. They understand what has happened; they know that it is a person. Their goal is to stamp out abortion in their lifetime.

Correlating to the statement about the pro-life generation are the statistics stating abortions have decreased by nearly 20% in the past 10 years.

According to the Guttmacher Institute, Roughly 121 million unintended pregnancies occurred each year between 2015 and 2019. Of these unintended pregnancies, 61% ended in abortion. This translates to 73 million abortions per year.

In an article entitled The U.S. Abortion Rate Continues to Drop: Once Again, State Abortion Restrictions Are Not the Main Driver composed by Elizabeth Nash and Joerg Dreweke of the Guttmacher Institute, Nash and Dreweke reported abortions had decreased by 19% from 2011 to 2017. Nash and Dreweke also found 52 new abortion restrictions had been enacted in western states, resulting in the dissolution of seven abortion clinics.

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Voice for the voiceless - The Torrington Telegram

Matt Rourke / AP

This April 26, 2017, file photo shows the Twitter app icon on a mobile phone inPhiladelphia.

By Hillary Davis (contact)

Sunday, Jan. 24, 2021 | 2 a.m.

The Jan. 6 siege on the U.S. Capitol moved Twitter, Facebook, Instagram, even Snapchat and Pinterest, among other social media platforms, to dump former President Donald Trump for fomenting insurrection.

Amazon dropped the Henderson-based, conservative-friendly platform Parler from its web-hosting service after Google and Apple removed it from their app stores for the same. More recently, Twitter temporarily suspended Trump ally Georgia Rep. Marjorie Taylor Greene for promoting unfounded QAnon conspiracy theories.

Condemnation of the bans swiftly followed.

They are not unconstitutional attacks on free speech, says UNLV journalism professor Stephen Bates. Bates, who teaches classes on free speech, censorship, privacy, and media politics, tells the Sun more:

Legally, is deplatforming a violation of free speech rights?

No. The First Amendment protects you against the government. Thats called the state action requirement. A private entity can silence speech for any reason, with a few exceptions. Common carriers, such as the phone company, generally cant kick you off the platform because they dont like your message, but social media and internet providers arent common carriers.

When would deplatforming by a private entity be appropriate? When would it be appropriate by the government?

In court, you have to make legal arguments, but in everyday life, we talk about freedoms that go beyond the Constitution. If my daughter catches me reading her diary, she wont be placated when I tell her that theres no Fourth Amendment violation because Im not a cop.

Just as privacy is bigger than the Fourth Amendment, free speech is bigger than the First Amendment. As a matter of free speech, I think we should be wary of those who want corporations to police speech in this fashion. Sooner or later, the power to silence your enemies is going to get used to silence you.

As for the government, under the First Amendment, it can punish speech for various reasons, including inciting imminent violence. Whether its appropriate will depend on the circumstances.

How likely would a deplatformed plaintiff be to succeed if they sued on free speech grounds after being suspended or kicked off a service?

They would be exceedingly unlikely to win a First Amendment case. Antitrust and contract law are different, and the outcome would depend on the facts.

First Amendment law wont help plaintiffs in such cases. Other areas of law, such as contract, might help.

Could this be a critical entry into First Amendment canon at least the broader conversation, if not actual landmark case law?

Not likely. The state action requirement is bedrock constitutional law.

The rest is here:
UNLV professor on deplatforming Trump and limits of free speech - Las Vegas Sun

Ghislaine Maxwell spotted the agents, heard them shout FBI and ran to another room inside her secluded New Hampshire compound, slamming the door behind her.

On a desk was a cellphone wrapped in tinfoil, a clue that prosecutors claim shows just how far the accused sex trafficker went to avoid being traced. But the cellphone was her undoing after months in hiding, one she used under the name G Max to talk with secret husband Scott Borgerson.

On July 2, two dozen agents stormed the compound and arrested Maxwell for allegedly conspiring with ex-lover and convicted pedophile Jeffrey Epstein to lure and groom teenage girls for him. She has pleaded not guilty to the charges; he killed himself in jail.

The FBI had been tracking the British socialites number with cell tower data, but couldnt come any closer than a square mile of her exact whereabouts. So, the feds turned to cellular intercept, a technology that NYU professor Ted Rappaport helped pioneer.

Every cellphone has two unique numbers a Mobile Identification Number (MIN) and an International Mobile Subscriber Identity (IMSI) that make tracking the location possible, Rappaport told The Post.

In the Maxwell case, the FBI obtained a search warrant July 1 that allowed agents to both send and receive signals from the fugitives cellphone.

How agents exactly hunted down Maxwell wasnt laid out in court documents, but law enforcement agencies use two kinds of devices one that plucks a transmission out of the air, like Rappaports Cellscope receiver created in the late 1980s, and one that masquerades as a cell tower.

A receiver, also called an IMSI catcher, intercepts a transmission over the airwaves, locks on to it and allows a user to follow it with a directional antenna to find out where its coming from, said Rappaport, 60, founding director of NYU Tandons Wireless research center.

And, he points out, a transmission doesnt have to be a call, but simply a registration, or heartbeat, that the cellphone gives off every so often to indicate its on.

A cell tower imposter, also called a cell-site simulator, broadcasts a signal thats stronger than a service providers tower, tricking a cellphone into connecting with it instead.

Civil liberties advocates fiercely object to all kinds of surveillance technologies, especially cell-site simulators, contending they both violate peoples privacy and the Fourth Amendment, which prohibits unreasonable searches and seizures.

This tech that mimics a cell tower isnt just picking up the unique serial number, its getting lots of others nearby, ACLU staff attorney Nathan Freed Wessler told The Post.

The Justice Department does require bystander data to be deleted as soon as a cellphone is located and can be kept no longer than 30 days. Still, theres the inherent danger that police suck up information and violate peoples privacy, Wessler told The Post.

Until a policy change five or six years ago, he said, the FBI quite frequently used cell-site simulators without warrants.

Agents had a warrant to go after Maxwell, though Wessler predicted her lawyers would file a motion asserting the FBI violated their clients Fourth Amendment rights a standard argument in all kinds of criminal defense cases.

For Wessler, a positive development stemming from the Maxwell case is the unsealing of an affidavit for the search warrant in a matter of months.

Often, it takes a very long time and is hard for the public to know what kind of invasion technology that the government is using.

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How Ghislaine Maxwell was nabbed by the FBI via her cellphone - New York Post

FLINT, MI -- The city of Flint has agreed to settle a federal lawsuit brought against it by a woman whose dog Bailey, a 2-year-old white-black mix Labrador, was shot by police investigating a reported intruder in 2017.

The City Council approved the settlement earlier this month, ending the case brought by Kristen Wells, a former teacher, chaplain, therapist, and counselor of wounded veterans who was living in a group home on Commonwealth Drive on the citys east side at the time of the shooting.

In her U.S. District Court lawsuit, Wells said Bailey survived for four days after the shooting, enduring surgery, blood transfusions and spending time on a respirator, and Wells accumulated more than $19,000 in veterinary bills trying to save her pet.

Bailey was a calm, well-trained, friendly dog and had never indicated any sort of aggressive and/or violent tendencies, even in eventful situations, according to the lawsuit. Labradors are generally smart, non-aggressive, friendly dogs lacking any violent tendencies and Bailey was no different.

Jim Rasor, the attorney representing Wells, said his client hopes the settlement leads to greater training for police about dealing with dogs at a potential crime scene.

In this case, there was no risk, in our opinion, to the officer whatsoever, Rasor said. This was a service animal. This was like losing a family member.

A spokesperson for the city could not be reached for comment by MLive-The Flint Journal, but the city said in an answer to the lawsuit that officer Dion Reed backed away when Wells dog started charging him with teeth bared, lips curled back, and growling.

Reed, who was also named in the lawsuit, was one of two officers dispatched to Commonwealth Drive in the early morning hours of Oct. 1, 2017, in response to a 911 report that individuals were outside Wells neighbors home, trying to open his door and banging on it, both parties agreed.

Wells was outside with Bailey in a shared backyard, according to the lawsuit, unaware of the 911 report or that police were on the property.

Wells then heard a noise in the yard and saw a brief flashlight before Bailey ran in the direction of Reed, who fired a shot into the dog, according to her complaint, which claimed the city violated her Fourth Amendment rights prohibiting the government from unreasonably destroying or seizing a citizens property.

It also claimed the city had a duty to properly hire, supervise, monitor, train, control and/or discipline officers so as not intentionally violate the constitutional rights of individuals with respect to interacting with dogs while on duty.

In its answer to the lawsuit, the city said officers did not know Wells was in close proximity with her dog and did not have any facts upon which to assess how credible the callers (intruder) complaint was, but knows that Flint is a dangerous city, and takes calls like this one seriously.

The dog appeared subjectively ... like the dog was attacking, the court document said. (Officers did) not know anything about how well trained or violent the dog was before the incident which gives rise to this lawsuit, but the dog certainly did not behave in a well-trained, non-violent manner.

Read more:

Shooting in Flint leaves 2 men hospitalized

Flints deputy police chief to retire at end of month

Shooting in Flint leaves man in critical condition

See the original post here:
Flint to pay woman $35,000 after police shot her dog while investigating report of intruder - MLive.com

A completely innocent female visitor at a federal prison in Virginia was forced to take her tampon out of her vagina by prison guardswho then inspected the used menstrual product before throwing it away. A federal appeals court on Thursday signed off on the search by affirming that the incident did not violate the Fourth Amendment and extending a lower courts grant of qualified immunity.

The shocking 2016 incident is noted multiple times ina relatively brief ruling by the U.S. Court of Appeals for the Fourth Circuit.

The majority opinion by George H.W. Bush-appointed Circuit Judge Paul V. Niemeyer (which was joined by Bill Clinton-appointed Circuit Judge Robert Bruce King) notes the particulars of the search in question:

[Angela] Calloway was escorted to a private office by two female officers, Sgt. Heidi Brown and Officer Heather Hale, who were told that Calloway had signed the strip-search consent form. When they reached the private office, Calloway informed the officers that she was menstruating, and so the three women relocated to a womens restroom. Because the door to that restroom did not lock, Brown told Hale to stand at the door to ensure that no one entered. Brown explained the search procedure to Calloway and then had her remove her clothing one piece at a time, with each item being searched before another was removed. When Calloway had taken off all her clothes, she complied with Browns directions to lift her arms and breasts, open her mouth, and lean over and shake her hair. At Browns direction, Calloway next went into the bathroom stall and removed her tampon, which Brown inspected before disposing of it.

Calloway then twice performed the squat and cough maneuver, and, according to Calloway, she also spread her buttocks for the officers inspection, the opinion continues. When the search revealed no contraband, Calloways clothing was returned. She was also offered another tampon but stated that she did not need one.

Calloway sued various authorities for Civil Rights violations under color of law via 42. U.S.C. 1983. The appellate court discounted her version of the storyprioritizing the guards takeand dismissed that lawsuit on summary judgment.

To hear the prison guards tell it, Calloway had evidenced some behavior that suggested she might have contraband while visiting federal inmate Travis Talbertwhom Calloway had previously been cleared to visit by the prison after passing a background check.

Barack Obama-appointed Circuit JudgeJames A. Wynn noted in a fiery dissent nearly three times as long as the majority opinion, however, that the impressions of multiple prison guards at various times were combined in order to justify probable cause for the search.

This ex post facto aggregation and the timeline of the events, Wynn notes, is key to understanding what actually transpired because Sergeant Benjamin Lokey and Unit Manager Jeffrey Brown were the commanding officers who actually initiated the intrusive search.

Heres how Wynn described the search:

The officers accused Ms. Calloway of smuggling contraband, and they told her they had justification to strip search her. Two additional officers arrived and took Ms. Calloway into a bathroom, where one officer stood in front of the door and the other told Ms. Calloway to take off her clothing one article at a time. After Ms. Calloway completely undressed, the officers ordered her to twice squat and cough forcefully and to spread her buttocks for inspection of her anus. The officers also had Ms. Calloway remove her tampon from her vagina and give it to an officer. As it turned out, Ms. Calloway was completely innocent of the accusationthe officers found no contraband whatsoever.

[T]he majority opinion aggregates the knowledge of all officers involved in the search of Ms. Callowayno matter how tangentiallywithout regard to what information was actually known at the time by the decision-making officers, Lokey and Jeffrey Brown, Wynn writes. This is error. This Circuit does not permit the knowledge of several officers [to] be aggregated to create probable cause or reasonable suspicion.

Nevertheless, the majority opinion relies upon information unknown to those officers at the time of the decision, the dissent goes on.

Judge Wynn explains this discrepancy, at length:

[I]n his deposition, Lokey stated that no one told him, prior to the search, that Ms. Calloway had been acting nervously. Nonetheless, the majority opinion recounts that Heidi Brown later recalled that [Ms.] Calloway looked a little frazzled and kind of nervous, and finds that [Master Control Officer Jeremy] Nelson [who was watching the Calloway-Talbert visit via a choppy video feed, according to the majority opinion] thought that [Ms.] Calloway appeared to be nervous. Similarly, although the majority opinion reports that Nelson also thought that Talbert seemed to be keeping an eye on the correctional officers as they made their rounds through the visitation room, nothing in the record suggests that Nelsons observation was communicated to Lokey or Jeffrey Brown.

Significantly, Nelson and Heidi Browns uncommunicated observations are irrelevant to the analysis of whether Lokey and Jeffrey Brown had reasonable suspicion to justify the intrusive body search. By including these irrelevant details, the majority opinion fails to disregard information not known to Lokey and Jeffrey Brown at the time they decided to conduct an intrusive search of Ms. Calloways body.

All Nelson actually told Lokey and Brown at the time of the search was that he thought Calloway reached inside the front of her pants on or around where a button would be.

Wynn derides this justification in a footnote:

[A]s it appears in the video in the record, Ms. Calloways adjustment of her clothingdescribed by Nelson as reach[ing] inside the front of her pantswas innocuous and commonplace. Even compared to other conduct in the visitation room, it would be difficult to know that Ms. Calloways actions would rouse officers suspicion. For example, the video of the visitation room shows another visitor repeatedly placing his or her hands under the visitors shirt. Although Nelson described that conduct as inappropriate in his deposition, the video does not show that officers escorted that visitor out of the room or that officers suspected that visitor of smuggling contraband.

Moreover, the dissent argues in unusually accusatory terms, that the majority opinion takes everything the prison guards said at face value while discounting Calloways version of the story. This alleged error by the majority would equate to a violation of the Federal Rules of Civil Procedure because summary judgment motions must assess the facts in the light most favorable to the non-moving party; that is, to the party who wants the case to actually go to trial here, Calloway.

The dissent notes, for example [emphasis added]:

The district court found that Nelson had a history of successfully identifying suspicious behavior that led to the interception of contraband. The majority echoes this naked characterization, concluding Nelsons report was especially meaningful to Lokey in light of [Lokeys] knowledge that Nelson [had] been very successful in the past [in] identifying suspicious actions [that] [had] led to the interception of drugs or other contraband.

[T]hat characterization of the record improperly accepts Lokeys perception as accurate and draws an inference against Ms. Calloway, Wynn concludes [emphasis in original].

The dissent also argues that the timeline doesnt quite add up.

Evidence in the record shows that Lokey and Jeffrey Brown had already decided they had reasonable suspicion to conduct an intrusive search of Ms. Calloways body before they removed her from the visitation room, Wynn writes. [T]he report documenting the search completed by Heidi Brown indicates a time of 1:50 p.m., more than five minutes prior to the time the video in the record shows officers entering the visitation room to remove Ms. Calloway. Ms. Calloways signature on the Consent for Strip or Body Cavity Search form indicates a time of 2:04 p.m. In her deposition, Heidi Brown indicated she thought she may have been summoned to perform the search before Ms. Calloway signed the consent form. That follows from the fact that her report bears a time stamp before the search and before the consent form was signed.

[V]iewing the evidence in a light most favorable to Ms. Calloway shows that the officers lacked justification for initiating the search, Wynn concludes.

Wynn goes on to excoriate his colleagues on the bench:

In short, the majority opinion, through subjective word choice and selective inclusion of information, paints the record not in the light most favorable to Ms. Calloway, the non-moving party, but rather to the officers. That runs counter to the most fundamental principles of summary judgment analysis because deciding whose account of events is more believable is not our task. Nor is our task to scour the record for details that legitimize, after the fact, the officers decisions. Instead, our task on review of summary judgment is only to decide whether, viewing the record in the light most favorable to Ms. Calloway and drawing reasonable inferences in her favor, a reasonable jury could conclude Lokey and Jeffrey Brown lacked individualized, particularized information about Ms. Calloway to support a reasonable suspicionI believe a reasonable jury could.

In addition to failing to apply key summary judgment principles, the majority opinion turns away from the promise of 42 U.S.C. 1983s remedial purpose and profound historical impact, the dissent intones. The historical context of 42 U.S.C. 1983 illustrates its purpose and significance. But here, by focusing on the governmental officers in this caseframing the issue as being about the officers instead of constitutional rights, improperly weighing the officers accounts over the plaintiffs testimony, and including supporting information unknown to the officers at the time of the alleged violationthe majority opinion betrays the promise of this historically significant statute.

[Image via 13News Now screenrab]

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Qualified Immunity: Federal Court Says No Violation Occurred When Prison Guards Forced Completely Innocent Woman to Remove Her Tampon for Inspection -...

On October 17, 2020, the Standing Committee of the NationalPeople's Congress ("SCNPC") promulgated the FourthAmendment to the China Patent Law ("CPL"), which willcome into effect on June 1, 2021.

It has been 12 years since the last amendment made in 2008 whenChina also formulated the Outline of the National IntellectualProperty Strategy ("Outline"). With the implementation ofthe Outline, China has gradually grown into a big intellectualproperty ("IP") country characterized by the number ofvalid invention patents increased from 84000 in 2007 to 1.86million in 2019, the total number of valid registered trademarksincreased from 2.35 million in 2007 to 25.22 million in 2019, andthe number of first instance IP civil cases (new cases received)increased from 22000 in 2007 to 390000 in 2019. The ever-growing IPactivities of the innovative entities urgently expect thelegislative department to refine the related legal system forguidance.

According to an inspection conducted in 2014 of the enforcementeffects of the CPL, there are many new issues in the patentprosecution, enforcement and exploitation. The number of patentapplications is growing dramatically, though there are relativelyfew high value patents. IP protection mechanism for new categoriesof invention-creations is desired. Patentees are confronted withdifficulties in proving infringement and damages, long cycle ofpatent litigation, high cost of enforcement and low damage awarded.The patent commercialization rate is quite low.

To resolve these issues, multiple draft amendments have beenmade in the legislative process since 2014 that absorbed millionsof public opinions to form the finally approved version. Below is abrief summary of the highlights of the 2020 amended CPL.

1. Strengthening the patent protection against infringement

1.1 Shifting the burden of proving damages to the accusedinfringer

According to the current CPL, the means of determining thedamages caused by infringement are with priorities. Actual lossesof the patentee come first, followed by the benefits gained by theinfringer, then multiples of reasonable patent royalties andfinally the statutory damages. However, due to the stringentevidentiary standard to prove losses or benefits, in a majority ofpatent infringement cases, statutory damages are awarded, which areusually low.

In order to encourage the patentee to prove the damages causedby the infringement as much as possible, instead of relying on thestatutory damages, Article 71 of the 2020 amended CPL removes thepriorities between the actual losses of the patentee and thebenefits gained by the infringer. The patentee can claim thedamages determined based on either the losses or the benefits.

Different from some other jurisdictions, there is no evidencediscovery process in China. Considering the difficulties for thepatentee to acquire the damage-related financial records that areusually hold by the accused infringer, Article 71 further providesa shift of the burden of proving damages to the accused infringer.The court can order the accused infringer to submit damage-relatedevidences such as financial books and materials. If the accusedinfringer refuses to submit or submit false evidences, the courtcould use the discretion to determine the damages based on theclaims or requests of the patentee.

In fact, a similar provision was first stipulated in theInterpretation II of the Supreme People's Court on SeveralIssues Concerning the Application of Law in the Trial of PatentInfringement Disputes ("Interpretation II") released in2016 and is now formally included in the 2020 amended CPL withminor wording adjustment to serve as measures against obstructionof proof of infringement damages.

1.2 Increasing statutory damages and introducing punitivedamages

Article 71 of the 2020 amended CPL further increases the amountof statutory damages, in case the losses, benefits or multiples ofreasonable royalties are difficult to be proved, from currentlybetween 10,000 Yuan RMB and 1 million Yuan RMB to between 30,000Yuan RMB and 5 million Yuan RMB. As mentioned above, since thestatutory damages are widely granted in the patent litigationpractice in China, this new rule would be of great practicalvalue.

In line with the recent amendments to the China Trademark Lawand the China Anti-Monopoly Law, as well as the China Civil Code,Article 71 of the 2020 amended CPL also introduces punitive damagesup to 5 times the normal damages for serious willful patentinfringement.

1.3 Enlarging the authorities of patent administration

In China, administrative protection coexists with judicialprotection for IP rights, with the former being advantageous in itsfaster adjudication than typical court proceedings. Article 69 ofthe 2020 amended CPL stipulates that when handling the patentinfringement cases, the patent administration may make inquiries ofthe relevant persons, investigate into the matters, conduct on-spotinspection, and inspect the alleged infringing products, which areonly possible when handling patent passing-off under the currentCPL.

In addition, Article 70 of the 2020 amended CPL empowers theChina National Intellectual Property Administration("CNIPA") to handle patent infringement cases that havesignificant nation-wide impacts.

2. Adding restrictions to the patentee in patent application andenforcement

Article 20 of the 2020 amended CPL codifies the principles ofgood faith and prohibiting abuse of rights in patent related legalactivities. The application for patent and exercise of the patentright shall follow the principle of good faith, not harming thepublic interest. Abusing patent rights to exclude or restrictcompetition may trigger treatment under the Anti-monopoly Law.These rules provide legal basis for disciplining the irregularpatent applications of low qualities, e.g. those drafted based onfake information or by plagiarizing prior art technologizes, or theabuse of patent rights in the application of "Notification -Removal" rules in online transactions.

3. Strengthening the protection of design patents

3.1 Partial design allowed

Article 2 of the 2020 amended CPL expands the eligible subjectmatters of a design patent to include part of a product. There weresuggestions to allow partial designs ever before the thirdamendment to the CPL was made. Concerns at that time were that suchan expansion of subject matters might result in a large quantity ofdesigns with low quality. After evaluating the running designsystems of other countries or regions like USA, Europe, and Japan,China decides to accept partial designs so that distinctivefeatures of a product can be protected without the insignificantother features of the product.

3.2 Patent term extension for design patents

Article 42 of the 2020 amended CPL extends the patent term fordesign patents from 10 years to 15 years, which may be consideredas an effort to join the Hague Agreement.

3.3 Admitting domestic priority for design applications

Article 29 of the 2020 amended CPL admits domestic priority fordesign applications. Domestic priority was introduced for the firsttime for invention and utility model patent applications in theamendment to the CPL in 1992 to be in line with the PCTregulations, Domestic priority is quite useful to add new subjectmatters, change the type of the applications or revoke applicationsdeemed as being withdrawn. With this new rule, the priority of anearlier domestic design application can also be claimed to by alater design application within six months from the initialfiling.

4. Strengthening the protection of pharmaceutical-relatedpatents

4.1 Patent term compensation

Article 42 of the 2020 amended CPL provides compensation of thepatent term of pharmaceutical patents for the delays due to thetime-consuming approval process of new drugs for marketing. Thecompensated duration shall not exceed 5 years, and the totaleffective patent term shall not exceed 14 years from the approvalfor marketing of the new drugs.

4.2 Patent linkage system

Newly added Article 76 of the 2020 amended CPL introduces apatent linkage system for early resolution of disputes between apharmaceutical patentee and an applicant for drug marketinglicense. The patentee can file a lawsuit before a court or arequest for administrative ruling before the CNIPA if he believesthat a generic drug applying for administrative approval fallswithin the scope of his patent. The generic drug applicant is alsoable to file for declaratory judgment of non-infringement. TheChina National Medical Products Administration ("CNMPA")can decide whether the approval of the relevant drug for marketingis suspended, according to an effective judgement of the court.

The Implementation Measures of the Early Resolution Mechanismfor Drug Patent Disputes (Trial, for public opinion)("Implementation Measures (trial)") recently released bythe CNMPA and the CNIPA sets forth more details of the patentlinkage system. In line with the Implementation Measures (trial),the patentee must first register his patent(s) on the ChinaMarketed Drug Patent Information Registration Platform before hecan sue any potential infringers during the administrative approvalof generic drugs. The court or the CNIPA must make a decisionwithin 9 months. The CNMPA can decide to suspend the administrativeapproval for marketing based on the judgement by the court or theadministrative ruling by the CNIPA even if the judgement or theadministrative ruling is still appealable.

5 Patent term compensation

According to Article 42 of the 2020 amended CPL, at the requestof the patentee, the CNIPA shall adjust the patent term of aninvention patent to compensate for the unreasonable delay caused bythe CNIPA in the prosecution process, if the invention patent isgranted after 4 years from the filing date and 3 years from therequest for examination. Unreasonable delay caused by the applicantin the prosecution will not be compensated.

6 Promoting patent exploitation

6.1 Employment invention-creation

The right to file a patent application for an employmentinvention-creation belongs to the employer. Article 6 of the 2020amended CPL further stipulates that the employer may dispose theright to apply for a patent and the patent right to promote theutilization of the invention-creations. Article 15 of the 2020amended CPL encourages the employer to reasonably share the profitsbrought by the exploitation of the patent with the inventors.

6.2 Open licensing

Articles 50-52 of the 2020 amended CPL establish a framework ofan open licensing system. Patentees can voluntarily file a writtendeclaration to the CNIPA to state their willingness to provide anopen license and the method and standard for licensing fees. TheCNIPA will publish the open license related information. Patentannuities during the open license period will be reduced orexempted. The open license can be withdrawn via a writtendeclaration to the CNIPA. Open license can be switched into acommon license, but cannot be coexistent with a sole or exclusivelicense unless it has been withdrawn. Disputes over an open licensemay be resolved by negotiation between the related parties, or byadministrative mediation from the CNIPA or a judgement by thecourt.

Other notable changes in the 2020 amended CPL include: enrichingthe pre-suit injunction measures against the accused infringer toinclude property preservation, ordering to take certain actions orprohibiting from taking certain actions (Article 72); extension ofthe statute of limitation on an action against patent infringementfrom 2 years to 3 years (Article 74); allowing the accusedinfringer to proactively submit the evaluation report for utilitymodel or design patents (Article 66); allowing disclosure forpublic interest without loss of novelty when an emergency orextraordinary situation occurs (Article 24); and up to 16 monthsfor filing priority documents for invention and utility models(Article 30).

In addition to this latest amendment to the CPL, China has takenintensive actions in refining other IP laws and regulations basedon efforts of its legislature, judicial and administrativeauthorities in the recent two years, showing a strong will toprotect IP and promote innovations. How the 2020 amended CPL willbe put into practice remains to be seen after the ImplementingRules and the Guidelines for Patent Examination are amendedaccordingly, but it can be clearly expected that China will becomea more favored place for patent application and patent rightexercise.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

Original post:
Introduction To The Fourth Amendment To The China Patent Law - Intellectual Property - China - Mondaq News Alerts

Posted Thu, December 24th, 2020 11:30 am by Andrew Hamm

This week we highlight cert petitions that ask the Supreme Court to delve further into contentious issues of immigration policy. One group of cases challenges the Trump administrations attempt to crack down on so-called sanctuary cities. Another case involves certain construction projects that are part of the U.S.-Mexico border wall. If the justices take up the border-wall case, it will be the second case added to the courts docket this term involving the legality of border-wall construction.

Three petitions ask the justices to review disputes between the Department of Justice and state or local governments that do not cooperate with federal immigration authorities. The disputes involve the Edward Byrne Memorial Justice Assistance Grant program, the largest source of federal funds for state and local criminal-justice efforts.

In 2017, the Department of Justice adopted three conditions for program eligibility, which the department describes as notice, access and certification. The notice condition requires state and local governments to adopt policies to ensure that jailed and other detention facilities provide, upon request by the Department of Homeland Security, advance notice of the scheduled release date and time for particular noncitizens. The access condition requires policies to give federal authorities access to detention facilities to meet with noncitizens. Finally, the certification condition requires grant recipients to certify compliance with 8 U.S.C. 1373, which generally bars state and local governments from restricting the sharing of information regarding the citizenship or immigration status of any individual with federal immigration authorities.

In Barr v. City and County of San Francisco, California, the Department of Justice seeks review of a decision by the U.S. Court of Appeals for the 9th Circuit that the department lacked authority to impose the notice and access conditions. In addition, the 9th Circuit concluded that the department may not withhold the funds from California and the city and county of San Francisco for noncompliance with the certification condition because their sanctuary laws do not violate 8 U.S.C. 1373. In New York v. Department of Justice and City of New York v. Department of Justice, after a district court ruled for the challengers, the U.S. Court of Appeals for the 2nd Circuit reversed and allowed the conditions. New York City, New York state and several other states seek review of that decision.

In October, the Supreme Court agreed to hear oral argument in Trump v. Sierra Club, a dispute over the funding for portions of President Donald Trumps border wall. That case involves the administrations transfer of funds between Department of Defense appropriations accounts under Section 8005 of the Department of Defense Appropriations Act. In November, the administration filed a separate cert petition, also called Trump v. Sierra Club, on a slightly different border-wall issue. The new petition concerns whether a presidents declaration of a national emergency authorizes the secretary of defense to undertake military construction projects not otherwise authorized by law that are necessary to support such use of the armed forces under 10 U.S.C. 2808. In both cases, the U.S. Court of Appeals for the 9th Circuit ruled against the administration.

These and otherpetitions of the weekare below:

Birt v. United States20-291Issue: Whether the term covered offense in the First Step Act of 2018 includes violations of21 U.S.C. 841(a)involving crack cocaine to which apply the penalties in Subparagraph (b)(1)(C) (as the U.S. Courts of Appeals for the 1st, 4th and 7th Circuits have determined) or not (as the U.S. Courts of Appeals for the 3rd, 6th, 10th and 11th Circuits have held).

Thompson v. Clark20-659Issues: (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).

Barr v. City and County of San Francisco, California20-666Issues: (1) Whether the Department of Justice has statutory authority to impose notice and access conditions on grantees that accept Edward Byrne Memorial Justice Assistance Grant awards, a program that provides millions of dollars in financial assistance to law enforcement; and (2) whether the department may withhold Byrne JAG funds from the city and county of San Francisco, California for noncompliance with8 U.S.C. 1373, which generally bars state and local governments from restricting the sharing of information regarding the citizenship or immigration status of any individual with federal immigration authorities.

Trump v. Sierra Club20-685Issues: (1) Whether the Sierra Club has a cognizable cause of action to obtain review of the secretary of defenses compliance with10 U.S.C. 2808in reprioritizing appropriated but unobligated funds for the military construction projects involving border barriers being authorized; and (2) whether the secretary exceeded his statutory authority under Section 2808 in reprioritizing appropriated funds for the military construction projects following the presidents declaration of a national emergency requiring the use of the armed forces at the southern border.

New York v. Department of Justice20-795Issue: Whether Congress authorized the Department of Justice to condition funding for the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) program which sets aside funds for state and local criminal justice priorities on acceptance of DOJs new requirements that state and local government grant recipients (1) respond to ad hoc requests from federal officials for the release dates of non-citizens in grantees custody, (2) provide federal agents with access to grantees jails and police stations in order to question suspected non-citizens, and (3) certify compliance with8 U.S.C. 1373, which purports to prohibit state and local governments from regulating when their employees may share information with federal officials regarding a persons citizenship or immigration status.

City of New York v. Department of Justice20-796Issue: Whether Congress authorized the Department of Justice to condition funding for the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) program which sets aside funds for state and local criminal justice priorities on acceptance of DOJs new requirements that state and local government grant recipients (1) respond to ad hoc requests from federal officials for the release dates of non-citizens in grantees custody, (2) provide federal agents with access to grantees jails and police stations in order to question suspected non-citizens, and (3) certify compliance with8 U.S.C. 1373, which purports to prohibit state and local governments from regulating when their employees may share information with federal officials regarding a persons citizenship or immigration status.

Posted in Birt v. U.S., Thompson v. Clark, Barr v. City and County of San Francisco, California, Trump v. Sierra Club, New York v. Department of Justice, City of New York v. Department of Justice, Featured, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week: Federal funding for sanctuary cities and another dispute about the border wall, SCOTUSblog (Dec. 24, 2020, 11:30 AM), https://www.scotusblog.com/2020/12/petitions-of-the-week-federal-funding-for-sanctuary-cities-and-another-dispute-about-the-border-wall/

See the original post:
Petitions of the week: Federal funding for sanctuary cities and another dispute about the border wall - SCOTUSblog

Several Chicago aldermen said Tuesday that the systems of accountability created in the wake of the Laquan McDonald murder failed Anjanette Young in 2019 when police entered her home and handcuffed her while she was naked and screaming that they had the wrong house.

That was the main takeaway from some aldermen who took part in a day-long hearing questioning Chicago Police Supt. David Brown, Civilian Office of Police Accountability Chief Administrator Sydney Roberts and others tasked with investigating police misconduct.

Tuesdays hearing marks the latest chapter in a scandal that has engulfed Mayor Lori Lightfoots administration for more than a week. It started when CBS 2 in Chicago first aired police body camera footage from the botched raid on Youngs house in February 2019.

The fallout prompted City Halls top lawyer to resign last weekend, after it came out that his office sought to prevent the television station from airing the footage and asked a judge to punish Young for sharing it. Lightfoot has requested a review of all pending search warrant cases, and she announced a new policy that gives people full access to police footage related to their arrest.

Much of the questioning at Tuesdays hearing centered on COPA, the city agency created in the wake of the McDonald scandal to fix the deficiencies in how the city investigates allegations of police misconduct.

But Ald. Maria Hadden, 49th Ward, said it seemed Youngs case had fallen through the cracks. Though the Young raid happened early last year, COPA didnt open an investigation until November, when Young filed a civil suit against the city.

Why werent we dealing with this sooner? Hadden asked. The truth of the matter is that its just all too common for Chicagoans in Black and brown communities to have our rights violated, to have our homes invaded and to be humiliated and treated as less than human.

Roberts said COPA wasnt even made aware of the incident until a reporter asked whether there was an open case regarding the wrong raid on Youngs home.

Our staff reviewed our database [and] found out we didnt have an open case, Roberts said. We found out kind of in a nontraditional manner.

Yeah, I think thats about as polite a way you could put it, Ald. Matt Martin, 47th Ward, responded sarcastically.

Martin said the lack of notice from the citys Law and Police Departments was incredibly problematic.

Ald. Jeanette Taylor, 20th Ward, was more brash in her assessment, calling the investigative agency professional time-wasters when no one could answer who gets fired for not knowing that the offender CPD was looking for during the Young raid lived a couple doors down from Youngs home with an electronic tracking band on his leg.

So why are we even on this call? Taylor shouted in the virtual hearing. Because you all havent been able to answer anything that were actually asking.

At one point, when Taylor asked why the cops involved in raiding the wrong house werent immediately suspended, Supt. Brown quipped you will have to ask Eddie Johnson, referring to his predecessor. Brown has been on the job for less than a year.

The 12 police officers and one sergeant involved in the Young incident were active until Brown placed them on desk duty this week. He said he cant take further action until COPA finishes its investigation, which wont be done until early next year.

Brown said the Chicago Police Department conducts about 1,500 searches in a given year, adding that there arent enough resources to review the camera footage for each one. Instead, he said, police body camera footage is reviewed in a randomized way.

For his part, Brown said he was committed to ending all no-knock raids where police raid a home without knocking before they enter unless someones public safety is at risk. The Young incident was not a no-knock raid, and the cops involved did identify themselves a point that was repeated throughout the hearing.

Meanwhile, Deborah Witzburg, Chicagos Deputy Inspector General for Public Safety, said her office has had difficulty counting how many wrong raids occur in a given year.

Witzburg said her team is currently working on an analysis using CPD data to differentiate between two types of wrong raids: one where police go to the wrong home, and one where the search warrant was the product of faulty information from an informant.

Witzburg said while the particulars of the Young case are unique the fact that she was handcuffed naked Youngs allegations of being denied her Fourth Amendment rights is a common complaint in these types of cases.

Claudia Morell covers city of Chicago politics for WBEZ. Follow her @claudiamorell.

See original here:
Aldermen Grill Chicago Police Brass And Oversight Leaders About The Botched Anjanette Young Raid - WBEZ