Daily Archives: November 29, 2020

The U.S. Supreme Court recently agreed to decide whether a California regulation allowing union organizers to access employers property is an unconstitutional taking under the Fifth Amendment.

In the lower courts decision, Cedar Point Nursery v. Sheroma, a two-judge majority of the Ninth Circuit Court of Appeals rejected a claim by a group of employers that the regulation created uncompensated easements on their property. The California Agricultural Labor Relations Board regulation permits union organizers to use an employers property for up to three hours per day, 120 days per year, if they notify the employer in advance. The court reasoned that the regulation limits organizers access to the property and that violating the right to exclude is not a permanent physical invasion required for a per se taking. The dissenting judge stated that allowing ongoing access to private property multiple times a day for 120 days per year is a physical occupation and that the right to exclude is one of the most fundamental property rights. He also noted that union organizers could meet with employees outside of the employers premises and communicate with them through other means.

Given the current business-friendly makeup of the Supreme Court, we would not be surprised if it were to rule that the California regulation is an unconstitutional taking. In any event, the Supreme Courts analysis about what constitutes a per se regulatory taking may answer more general questions, such as how much access to property constitutes a taking and how important is the right to exclude. This analysis likely will apply to laws and regulations beyond those governing union organizers use of employers property, such as laws barring property owners from evicting tenants.

The rest is here:
SCOTUS Will Rule on a New Takings Case - JD Supra

To print this article, all you need is to be registered or login on Mondaq.com.

Eager to spark the socialist revolution, left-wing activistsseized Ramsett Park and the surrounding area and declared anindependent autonomous community dedicated to social and economicjustice. The activists threw up barricades and excluded both thepolice and the "bourgeoisie" owners of businessessurrounding the park. Fearing a primary challenge, Mayor Gundersonordered the police to withdraw from the area except forlife-or-death situations. As days turned into weeks, the areareverted to a Hobbesian state, with violence increasing and refugeaccumulating in the street. Mayor Gunderson belatedly ordered thearea cleared. When the business owners returned, they found theirbuildings vandalized and their property stolen or destroyed. Theylook to hold someone responsible. But the activists havedisappeared, and, in any event, hippies are notoriously judgmentproof. Can Mayor Gunderson and the City be held liable for notenforcing the law?

While that hypothetical may have appeared bizarre and improbablelast year, astrikinglysimilar situationoccurred in Seattle in June, asactivists seized control of a sixteen-block area that came to beknown as the Capitol Hill Organized Protest ("CHOP")Zone. Seattle did not order the police to clear the area for threeweeks, during which there was extensive violence and propertydamage. At the end of June, local businesses and property owners inthe CHOP area sued Seattle to recover for the damages they sufferedand the temporary loss of their businesses and land.

Last month, a federal judge in Washingtonheldthat the lawsuit could proceed and that the propertyowners had pled enough facts to show potential violations of theFourteenth Amendment's Due Process Clause (which prohibits thegovernment from depriving individuals of "property without dueprocess of law") and Fifth Amendment's Takings Clause(which states that "private property [may not] be taken forpublic use without just compensation"). This post will examinehow those claims would fare in Texas.

Successfully suing a city in Texas for violating the Due ProcessClause would be difficult. In 1989, the Supreme Courtheldthat the Clause generally does not require thegovernment to "protect the life, liberty, and propertyinterests of its citizens from invasion by private actors. In otherwords, the Clause's "purpose was to protect people fromthe State, not to ensure that the State protected them from eachother."

However, one exception to that general rule is the so-called"state-created danger" doctrine, under which thegovernment can be held liable for violating the Due Process Clauseif it created or increased the danger to the injured individual.The Supreme Court hasneverrecognizedthis doctrine. The Fifth Circuit hasnoteither and, in fact, has created such a stringent testthat it has never found a set of facts that could satisfy it. Underthattest, the plaintiff must show:

Even assuming that the Fifth Circuit would recognize thestate-created danger doctrine, the business owners in ourhypothetical probably could not satisfy it. First, the City did nottake an affirmative step to create the danger or make the businessowners more vulnerable to it. It was an omission, rather than anact of commission. And, if the government had no hand in bringingabout the peril but "simply stood by and did nothing whensuspicious circumstances dictated a more active role, it cannot beheld liable." Second, it is doubtful that the business ownersare "known victims" under the Fifth Circuit's test.That court hasheldthat the state-created danger doctrine does notextend to any foreseeable victim, because "increasing the riskof harm to unidentified and unidentifiable members of the public...is not sufficiently willful and targetedtoward specific harm to remove the case into the domain ofconstitutional law."

In contrasts, the Ninth Circuit hasrecognizedthe state-created danger doctrine, and thecourt in the Seattle "CHOP" case held that the Plaintiffshad pled enough facts to satisfy it. It concluded thatSeattle's alleged "actionsencouraging CHOPparticipants to wall of the area and agreeing to a 'noresponse' zone within and near CHOP'sbordersforeseeably placed Plaintiffs in a worse positionthan they would have been in absent any City interventionwhatsoever."

The distinction between commissions and omissions isalsocriticalto the business owners' likelihood ofprevailing under the Takings Clause. When the government takesprivate property, it must pay "just compensation," thatis, the property's fair market value. The Supreme Courthasheldstatedthat a temporary takings claim can be maintained when thegovernment's action occurring outside the property gives riseto "a direct and immediate interference with the enjoyment anduse of the land." And, once the government has worked a takingof the property, "no subsequent action by the government canrelieve it of the duty to provide compensation for the periodduring which the taking is effective."

That being said, the Takings Clause requires compensation onlyif the property is taken by the government, not a third party. Forexample, the government is not liable under the Takings Clause if athief steals a car, even if the government could have done a betterjob of deterring the theft by erecting more street lights orincreasing the amount of police patrols.

But providing authority or assistance to that third partychanges the result. State governments have granted the power ofeminent domain on private companies, such as railroads andtelecommunication providers. Local governments have also seizedproperty themselves andtransferreditto private companies to promote "economic development."Whether the latter transfers are for "a public use"isdebatable(anddoubtful). But they are unquestionably takings for which thegovernment is required to provide "justcompensation."

The hypothetical above and the Seattle "CHOP" casefall between the government seizing property itself andtransferring it to a third party and the government merely failingto prevent theft of and trespass on private property. In thehypothetical, a claim under the Takings Clause would likely notsucceed because the City provided no assistance to theactivists.

On the other hand, the court in the Seattle "CHOP"case held that the Taking Claim was viable because the propertyowners had pled facts indicating that Seattle's"endorsement of, and the provision of material support to CHOPset in a motion a series of acts by certain CHOP participants, whothe City knew or reasonably should have known would deprivePlaintiffs of their protected property interest."Specifically, the Plaintiffs pointed out that Seattle had provided"medical equipment, washing/sanitation facilities, portabletoilets, nighttime lighting, and other material support." AndSeattle's mayor tweeted her support for the activists andinfamously predicted a "summer of love" in the area. Based on those facts, thecourt held that the City might be liable under the Takings Clause.While the Plaintiffs have not won the merits, the case is one towatch.

The situation in Seattle is undoubtedly an extreme situation,but it is an important reminder that the usual recourse for thegovernment's failure to enforce its laws is political, ratherthan legal. The Seattle "CHOP" case could begroundbreaking if the Plaintiffs ultimately prevail. Regardless ofits outcome, property owners should not rely solely on thegovernment to protect their property but rather make sure that theyare adequately insured against property damage and theft.

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

POPULAR ARTICLES ON: Government, Public Sector from United States

Stinson

The Contract Disputes Act (CDA) governs claims under FAR-based Government contracts. More than forty years after its enactment in 1978, we are apparently still not all in agreement as...

Cadwalader, Wickersham & Taft LLP

FinCEN advised financial institutions on recent updates to the Financial Action Task Force ("FATF") list of jurisdictions with strategic AML and Combating the Financing of Terrorism ("AML/CFT") deficiencies.

Envoy Global, Inc.

The Federal District Court in the Northern District of Illinois in Chicago, Illinois vacated the Public Charge Rule effective November 2, 2020

See the original post:
Dereliction Of Duty: Can Local Governments Be Liable For Not Protecting Property From Protestors? - Government, Public Sector - United States - Mondaq...

On September 22, a group of nine students at the University of Miami received a mysterious email from an administrator. Dr. Ryan Holmes is inviting you to a scheduled Zoom meeting to discuss [the] incident that happened on September 4, 2020, at the Whitten University Center, read the email, obtained by Teen Vogue. There was a Zoom meeting link, but no further explanation. The incident the email referred to, which all nine email recipients had attended, was a die-in to protest conditions for cafeteria workers on campus. In the Zoom meeting, the students say, Holmes gave a long speech about how they should have properly registered their protest. When they asked repeatedly how they had been identified, they report that the dean didnt have as much to say.

Everyone was kind of wondering how we were identified as being at the protest, Mars Fernandez, a graduate student at the University of Miami, tells Teen Vogue. At one point someone just outright asked, Was it some sort of supersecret surveillance technology? The dean just kind of laughed, and then said something about how its no different than if the school were to use facial recognition software to find a students laptop that goes missing from the library.

In late October, another group of University of Miami students got in trouble for removing banners from campus that had been placed by the universitys College Republicans club. University of Miami president Julio Frank emailed the student body with a message, obtained by Teen Vogue, that a pro-Trump banner approved to be displayed on campus had been vandalized and that those found responsible will be held accountable. Soon after, several students who removed the Trump signs say they were called in by the police. Although they did not ask how they were identified as the individuals behind the action, the students who spoke with Teen Vogue say many suspect facial recognition technology was involved.

One student who removed a Trump sign tells Teen Vogue they did so to ensure marginalized students felt safe on campus. To me, that sign was a disgusting display of a hateful belief system that has somehow become socially acceptable with the rise of Trump, says the student, who prefers to remain anonymous. I was contacted by the police a couple days after. The student says they felt as if the police were trying to intimidate them and the matter was being treated as a criminal investigation. Since they used the word criminal, a lawyer informed me that it was within my fifth amendment rights to not show up and testify against myself," the student explains. "The lawyer reached out and told the police she was representing me, and I havent heard from them since. Teen Vogue has reached out to the University of Miami Police Department multiple times for comment.

Stay up-to-date with the Teen Vogue politics team. Sign up for the Teen Vogue Take!

In a statement emailed to Teen Vogue, the University of Miami denies any use of facial recognition technology on campus. The University does not employ facial recognition technology in its security measures, the statement reads. The University was criticized, wrongly, for allegedly using facial recognition technology to identify students who attended a September protest.

However, the resume of David Rivero, the chief of police with the University of Miami Police Department, touts the universitys usage of a camera system that employs facial recognition. One of the largest security project[s] added during Chief Riveros tenure was the creation of the new university-wide camera system, reads Riveros resume, obtained by Teen Vogue. The system now includes 1,338 cameras, recording 24 hours a day, and featuring video analytics, which is the use of sophisticated algorithms applied to a video stream to detect predefined situations and parameters such as motion detection, facial recognition, object detection, and much more. In an October 4 interview with Distraction, a student magazine at the university, Rivero admitted to using facial recognition to catch a few bad guys on campus. According to the universitys statement, though, Rivero denies the use of facial recognition technology during the September protests on campus.Teen Vogue has reached out for clarity surrounding the matter, but has not received a response.

See more here:
Facial Recognition Technology Is Being Used on More Campuses During COVID-19 - Teen Vogue

PRPhotos.com

Harvey Weinstein is asking a federal judge in New York to halt the proceedings in a civil suit brought by Alexandra Canosa, a former Weinstein Company employee. Canosa sued him, the Weinstein Company and several of its directors and executives, claiming he raped and assaulted her repeatedly, while threating to retaliate against her at work.

Weinsteins attorney Imran Ansari told the court that he would not be able to sit for a deposition due to his ill health, and that the matter should be put on hold pending outcome of the assault and rape charges hes facing in L.A. Under the current timeline, Weinstein would have to complete the deposition by January 19th.

Ansari writes in the motion: Mr. Weinsteins health has had a dramatic decline this week, as heavily reported in the media. These health concerns make it practically impossible to conduct his deposition and impedes his fundamental right to participate in his defense.

The health concerns reportedly include diabetes mellitus, extensive coronary artery disease, high blood pressure, sleep apnea, chronic leg pain, arthritis, anemia, spinal stenosis and several others, which Ansari argues put him at heightened risk for contracting COVID-19.

Notwithstanding Mr. Weinsteins vehement denials of these salacious accusations, and evidence to support that any sexual relationship was completely consensual, these allegations closely resemble the charges of sexual misconduct in the Los Angeles County District Attorneys Office, writes Ansari. In the absence of a stay, Mr. Weinsteins constitutional rights to defend himself against the criminal allegations are unreasonably and unfairly burdened. Mr. Weinstein would be forced to make 'the difficult choice between being prejudiced in the civil litigation,' if he asserts his Fifth Amendment privilege, 'or from being prejudiced in the criminal litigation if he waives that privilege in the civil litigation.'

He is facing 11 felony charges in L.A., including rape and sexual battery. Extradition to California has been put on hold amid the pandemic, but his attorney says its imminent.

Read more from the original source:
Harvey Weinstein Tries To Pause Suit Over Ill Health - 106.3 The Groove