Daily Archives: January 27, 2021

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.

Read the rest here:
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 -...