Daily Archives: April 21, 2021

Police officers first deployed the earsplitting beeps against protesters more than a decade ago in Pittsburgh: Painfully loud noises emitted from a powerful speaker atop a police vehicle, a crowd-control device known informally as a sound cannon.

Since then the items, called Long Range Acoustic Devices, or LRADs, have provided a soundtrack to marches and demonstrations in New York, Portland, Ore., and other cities. They have functioned as giant megaphones to give commands, but also produced shrieks that can be louder than a lawn mower or a police siren.

Now, the New York City Police Department has agreed in a legal settlement to stop using the shrill beeping referred to as the deterrent or alert tone becoming one of the first big city departments to do so.

The legal settlement, filed with the court on Monday, comes five years after a group of demonstrators and photographers sued the city in Federal District Court in Manhattan, saying they had experienced migraines, sinus pain, dizziness, facial pressure and ringing in their ears after being exposed to blasts of high-pitched beeps from a hand-held LRAD in Midtown Manhattan in 2014.

One plaintiff, Anika Edrei, a photography student at the time, experienced a migraine headache for about a week after being exposed to the device in 2014 and steered clear of protests for some time after that, according to the lawsuit.

I was worried about getting injured again, Mx. Edrei said. It definitely had a chilling effect.

Under the terms of the settlement, police officers will still be able to make voice announcements on the devices, but the painful alert tone will be banned.

The city will also pay a total of $98,000 in damages to five plaintiffs as well as $650,000 in legal fees to their lawyers, according to court documents.

As part of the deal, the police have agreed to add a section to the departments administrative guide on when and how to use the devices. Some of the new language will say that police supervisors and department lawyers may authorize their use, but that officers must make reasonable efforts to maintain minimum safe distances between the LRAD and all persons within its cone of sound.

The department has also agreed to change its training materials on the devices and provide lawyers for the people who sued with details of those proposed amendments before implementing them.

The lawyers Gideon Oliver, Elena Cohen, and Michael Decker said in an email they would circulate the new training materials, providing some degree of transparency in a process that normally occurs behind closed doors and without any community input.

The lawyers said that it appeared that the police in New York had used the deterrent tone sparingly, if at all, since the lawsuit was filed.

The New York City Law Department described the settlement as in the best interest of both sides. The N.Y.P.D. has found a path forward that satisfies both law enforcement needs and the plaintiffs concerns about the use of the LRAD, a spokeswoman, Kimberly Joyce, said.

In response to a request for comment, the Police Department referred the law departments statement.

The Long Range Acoustic Device was developed in part as a response to a terrorist attack on a Navy destroyer, the U.S.S. Cole, off the coast of Yemen in 2000. It is capable of projecting a narrowly focused beam of sound loud enough to repel potential attackers and has been used to defend cruise ships and tankers against pirates.

But the devices have also been marketed to American police departments. In 2020, the company that produces them, Genasys Inc., said that agencies and departments in more than 450 U.S. cities used the devices.

News reports have described widespread use of the devices to transmit announcements in cities and towns like Rapid City, S.D., where one was used to broadcast a recorded message from a woman to her teenage grandson, whom the police wanted to question in connection with a shooting.

One of the first reported uses of the shrill tones in the United States came in 2009, during protests in Pittsburgh connected to the Group of 20 meetings. Demonstrators, journalists and onlookers fled, and some used moistened tissues or filters from discarded cigarette butts as improvised earplugs. The city later paid $72,000 to a university professor who said her hearing had been damaged.

Last summer and fall, as Black Lives Matter rallies swept the country, use of the sharp beeping tones was reported during protests in cities including Rochester, N.Y., and Kenosha, Wis.

The New York City Police Department bought two of the devices for $70,000 in 2004 as part of its preparations for the Republican National Convention, held that year at Madison Square Garden in Manhattan. At the time, police officials said that they would be used only for announcements, and that the deterrent function would not be employed.

The first sustained use of the deterrent function in New York appeared during a wave of protests in 2014, after a Staten Island grand jury declined to indict an officer who had placed Eric Garner in the chokehold that led to his death.

The bulky square model used in New York during those protests can produce sound of up to 137 decibels at one meter, according to an instructors guide created by the Police Department in 2018, which was produced as evidence in the lawsuit. That guide describes a level of 130 decibels as the pain threshold.

According to the suit, officers used the device around 57th Street and Madison Avenue in Manhattan, sometimes turning it toward protesters who were within 10 feet while repeatedly firing its so-called deterrent tone. That violated the protesters constitutional rights, the suit argued.

The city responded that the use of the device had been objectively reasonable, because protesters had been blocking traffic; some had also thrown bags of garbage in the air and had hurled what were believed to be glass bottles toward police officers making arrests.

In 2017, Judge Robert Sweet ruled that use of an LRAD did not violate the First and Fourth Amendment rights of the demonstrators who had sued. But he also likened the devices to concussion grenades and found that there was an arguable claim that their use violated the 14th Amendment rights of the protesters to equal protection and due process.

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N.Y.P.D. to Limit Use of Sound Cannon on Crowds After Protesters Lawsuit - The New York Times

The problem is well known. The difficulty lies in resolving deeply felt concerns over any increase in government surveillance authority, no matter how important the purpose. We are also paralyzed by a sense of fatalism that cyber vulnerabilities are simply the price we pay for being online, and an erroneous belief that the Constitution stands in the way of any solution.

Most cybersecurity experts agree an effective public-private cyber information-sharing system is essential in stopping foreign cyber maliciousness before it causes too much damage. But information sharing isnt enough; it would be hamstrung from the start if the government cannot seamlessly and quickly track malicious cyber activity from its foreign source to its intended domestic victims. If some government agency had that legal power, then it could, for example, quickly check out a domestic IP address after an alert from the NSA that the address was communicating with a suspicious overseas server. If that IP address showed questionable activity, the government and the private sector jointly could take steps to reconfigure firewalls or otherwise curtail the hack. Admittedly, this wouldnt prevent hacks and attacks that were based on previously unknown software bugs (so called zero-day exploits). But the reality is that most large-scale hacks by foreign countries rely on already known software imperfections and hardware deficiencies.

The issue is that almost any kind of domestic cyber inspection, even in hot pursuit of a foreign adversary, would be considered a search within the Constitutions Fourth Amendment, which requires searches and seizures by the government to be not unreasonable and in many (but by no means all) cases to be based on a search warrant issued by a judge. The notion that searches could possibly be electronic was of course not in the framers minds when adopting the amendment in 1792, but the reasonableness standard has allowed courts over the years to apply it to new techniques and technologies, including cyber surveillance.

To track foreign cyber malevolence in a new domestic legal framework, we would need a cyber monitoring capability that was so limited and safeguarded that it didnt trigger the Constitutions warrant requirement. The judicial cases tell us this should be possible. After all, for over half a century, courts have approved a range of not unreasonable warrantless electronic surveillance under the Fourth Amendment, taking into account various subjective factors, including the exigency of the surveillance, whether the information had already been revealed to third parties, the level of personal sensitivity of the data, whether the surveillance is broad or tailored, how likely it is that information about nontargets will be scooped up in the surveillance, and whether there are effective oversight mechanisms.

Like a property owner who has put up a fence a few feet inside his property line just to be safe, Congress has established more restrictive structures and rules in our current system than what the Constitution would require for reasonable, warrantless monitoring. The task is to see whether a legislative solution can be crafted in that intervening space. The goal is to not change the property line; there should be no weakening of the Fourth Amendments limits.

Heres what an effective new legal authority, fully consistent with the Constitution, might look like:

Any domestic inspection or monitoring would be expressly limited by the type of both target and information collected. It would be restricted to specifically identified IP addresses or other communications equipment located in the United States that was linked (by the U.S. intelligence community or the FBI) to a foreign person or country suspected of specific cyber wrongdoing. No other targets could be examined; there would be no bulk or indiscriminate collection of data. The activity might be limited to simply a traffic analysis seeing which U.S. or foreign IP addresses were communicating with the target or examining its logbook to look at historic connections. The government would not be allowed to look at emails or otherwise collect the substance of communications, except in the rare case (perhaps with additional approvals) when it was actually necessary for cybersecurity purposes.

Internal governmental approvals would be needed, with a senior official certifying the underlying facts as to why the domestic inspection was required. The requirement would depend on the circumstances, but would need to be explicit. For example, there could be evidence that a server known to be controlled by a foreign nation was communicating with a U.S. IP address, or that certain malware or techniques that the intelligence community knew were unique to foreign cyber malefactors were being tracked to U.S. internet servers.

Housing the legal authority in the FBI, rather than the NSA, might make sense. The countries with values closest to ours, such as the United Kingdom, Australia, Canada and New Zealand, have all placed their domestic cyber monitoring authorities within their foreign signals intelligence agencies (or in new affiliates). Locating this new legal authority in the NSA would follow that pattern, but the political reality is that this would be problematic. The FBI, which sits within the Department of Justice and already investigates malicious foreign cyber activity seems like a logical and acceptable alternative. Whichever agency is chosen, a governmental partnership is critical, with the NSA supplying technical expertise and foreign intelligence insights, the FBI bringing its longtime relationships with internet service providers and other communications infrastructure owners, and the Department of Homeland Security assisting with coordination and communications with the private sector, which should be equally engaged in the process.

The domestic monitoring would be limited in time. After an initial period of 72 hours, the monitoring should end, unless further corroborating information or a demonstrated need to do deeper analysis warranted a limited extension.

The resulting data could be used by the government only for cybersecurity purposes. Those purposes would, however, include thorough investigation into exactly what the foreign cyber malefactor did and with whom it was in contact. The data would have to be deleted after some period and couldnt be searched for general foreign intelligence or law enforcement purposes, or shared with other government agencies (presumably with some limited exceptions such as discovery of actual evidence of a federal crime).

Oversight should be required and modeled on the largely successful compliance scheme for the Foreign Intelligence Surveillance Act. For example, the attorney general or the Foreign Intelligence Surveillance Court could receive periodic reports of the legal authoritys use and audit the activity, and the Privacy and Civil Liberties Oversight Board could independently verify compliance. DHS could consult with the private sector and issue annual assessments of whether the authority was indeed effective in curtailing cyber hacks and attacks.

The private sector will be required to cooperate, and not simply shut down suspect accounts. Any meaningful understanding of compromised domestic networks will likely require the assistance of owners of the affected servers or cloud service providers, so they should be required under this new legal authority to cooperate with the government, much like the way telephone companies are obligated under current law to assist the FBI with lawful wiretaps.

This proposal is by no means the only solution; its merely one way to balance the need for more cyber visibility while preserving our constitutional freedoms. After all, the Constitution is designed to protect our liberties, not to provide authoritarian regimes with no use for such liberties a means to exploit our vital online systems with virtual impunity.

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Opinion | Theres a Big Gap in Our Cyber Defenses. Heres How to Close It. - POLITICO

On April 8th, President Joe Biden gave a speech to announce several executive orders on guns as well as to promote future legislation. During this speech he said, no amendment to the Constitution is absolute; you cant yell fire in a crowded theater. In a sense, he is correct; none of the amendments in the Constitution are absolute. Free speech does not protect inciting riots, free religion does not protect sacrificing people, requiring a warrant to search a home does not apply to emergencies. There are plenty of restrictions on guns that already exist and have been upheld in court.

The problem with this argument is just because a right is not unlimited, that doesnt mean the right doesnt matter at all. For example, the tired clich you cant yell fire in a crowded theater is from the Supreme Court case Schenck v United States (1919) which was not about yelling fire, rather it was about encouraging people to resist the draft during World War I. This case was later overturned by Brandenburg v Ohio and established that for speech to be outside the scope of the First Amendment, the speech must be likely to promote imminent lawless action, with likely and imminent being the key words. You can encourage people to resist the draft, you can encourage genocide, you cannot incite a riot. The United States has more freedom of speech than any other country in the world, and it is because exceptions to free speech are very few and far between. Rights matter.

In 2018, two people were driving down Interstate 94 near Jamestown, N.D. A sheriff pulled them over because they were driving too carefully; it was suspicious they were driving 2 mph below the speed limit. They had 500 pounds of marijuana in the car and the judge threw out the case because the sheriff violated their Fourth Amendment right against searches and seizures. The sheriff had no legitimate reason to pull over the car. Rights matter.

Rights not being absolute is no excuse to piss on the Constitution and pass whatever law you think might make the country safer.Restrictions on guns fall into three categories: who can own guns, where people can carry guns, and what types of guns people can own.

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The Supreme Court in DC v Heller conceded that the Second Amendment was not absolute and explicitly did not address the first two categories, but they did talk about what types of guns people can own. At the bare minimum, an individual (unconnected to any militia) has a right to own a basic pistol. The court also shut down the argument that the right only applied to 18th century muskets; they called it frivolous. The types of guns that are protected are those that are in common use. For certain guns to be outside the scope of the Second Amendment, they must be both dangerous (meaning relative to other guns, not in general) and unusual. The AR-15 is the best-selling rifle platform in the country; half of all rifles sold today are AR variants; they are not unusual. Furthermore, ARs are not substantially more dangerous than other guns. They fire a weak varmint round (granted more powerful than pistols) at the same rate of fire as most other guns: 1 shot per trigger pull.

They are not military weapons, they are not machine guns, they are not designed to kill as many people as possible. The only reason people single out the AR-15 for banning is because it looks menacing. My evidence of this claim is that proposed assault weapon bans target menacing-looking cosmetic features, not the mechanical function of guns.

Tony Bender wrote a letter Can we talk about guns? and he repeated the same arguments that just because rights arent unlimited, everything is fair game. His very condescending argument is just more of the same bad-faith drivel that gun owners are used to listening to while our rights are chipped away. Maybe if he stopped straw-manning people would talk to him. Its my experience that gun owners love talking about guns when theyre not being insulted.

William Smith lives in Fargo.

This column does not necessarily reflect the opinion of The Forum's editorial board nor Forum ownership.

The rest is here:
Letter: 'Yelling fire in a crowded theater' - INFORUM

Protesters outside the Brooklyn Center Police Department on April 13, 2021, in Brooklyn Center, Minn., after the killing of Daunte Wright. (Chris Tuite / ImageSPACE / MediaPunch / IPX)

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Daunte Wright was pulled over by police officers on Sunday afternoon. The reason the police gave for the stop is that he was driving with expired registration tags on his license plate. The time was roughly 2 pm. Within minutes of being pulled over, Wright was dead.

What happened during those minutes is still being pieced together, but the essential horrors were captured on video. As the officers from the Brooklyn Center police approached Wrights car, they noticed that he had an illegal air freshener dangling from his rearview mirror. They then ran his plates and found that he had $346 of outstanding fines and an arrest warrant for misdemeanor offenses. At this point, Wright was scared enough to call his mother. But before he could finish the call, the officers removed Wright from his vehicle, and as one officer fumbled for the handcuffs, Wright panicked and attempted to get back into his car. Another officer, Kim Potter, then decided to electrocute him, but instead of pulling out her Taser, she pulled out her gun and shot Wright to death. He was 20 years old.

The particulars of Wrights murder have haunted me for a few days now. My own son, only 8, has a tendency to panic in stressful situations. I learned, very early, that the louder you talk to him, the less he hears you. The thought of a cop shouting instructions at him and then killing him for noncompliance keep me awake at night.

Wrights death was not random. It happened because this society allows the police to prey on Black people. His murder took place just days after the world got to see video of Lt. Caron Nazario being pepper-sprayed and abused by Virginia State Police for driving his own new car. It took place 10 months and 10 miles from the murder of George Floyd. It took place in the long shadows of the murders and near-murders of Jacob Blake, Philando Castile, Sandra Bland, Walter Scott, and so many more. And it followed decades of Black drivers being pulled overand then, all too often harassed, fined, and arrestedas much as 40 percent more frequently than white drivers. Wright was right to call his mother.

There is, of course, a way to stop this needless slaughter of Black people for the apparently capital crime of driving while Black. We need not live in a world where the police can accidentally kill Black people who committed moving violations. The solution is simple and obvious: Abolish armed traffic stops. Use unarmed officers and ubiquitous technology to enforce the traffic laws instead. More Black people will live.

This isnt as radical as it might soundor as dystopian. Yes, cameras, drones, facial recognition technology, and the other apparatus of the surveillance state are just as racist as the people who program them. But I can argue a ticket much more effectively than I can dodge a bullet.

In most localities, we already have unarmed law enforcement officers issuing citations for minor vehicular offenses. Parking cops issue tickets all the time, but most of them are armed only with that unforgiving ticket-writing thingy, instead of a gun. And despite the fact that Ive seen people pull out a thesaurus to come up with the worst possible invectives to shout at these officers, when was the last time you heard about somebody killed by a parking inspector?Current Issue

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Theres no actual reason we should have armed police officers enforcing traffic laws. Government officials dont need to carry a gun to write a ticket or issue a summons. The state need not send armed paramilitary units to rove the streets looking for people who miss a turn signal. The option of shooting somebody over an air freshener should never be on the table.

Im not calling for traffic anarchy. Driving is a dangerous privilege. Road traffic accidents are the leading cause of deathfor people under 54 in the United States. Theyre the leading cause of work-related death in almost every industry. Im constantly aware that getting behind the wheel of a car is the most dangerous thing I do, and sitting in my car is the most dangerous thing my children do. I know Im much more likely to be killed by a fellow civilian speeding through an intersection than by a cop violating my constitutional and human rights. Cars are so dangerous the Federalist Society probably wants to invent a constitutional right for aggrieved white boys to drive them without a permit.

But we have no evidence that siccing armed police officers on people suspected of moving violations makes our roads safer. Indeed, technology has advanced to the point where many traditional traffic enforcement duties are being handled by the surveillance state instead of the police state. The last time I got a ticket for anything, I was busted by the robots: A red-light camera caught me making an illegal U-turn. Since it would be patently ridiculous to outfit the red-light camera with a ray gun and program it to zap me unconscious until the police arrived with my physical ticket, I received my ticket in the mail about a week later, and my illegal turning spree came to an end.

Between the cameras, which are everywhere anyway, and some unarmed traffic wardens empowered to pull over Lamborghinis and protect us from drunks, we could have all of the same safety benefits from road regulation that we do now. The only thing wed lose from traffic cop disarmament is the likelihood that allegedly clairvoyant police officers would use minor traffic violations to pull over Black drivers in the search for other crimes.

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Those stops, the fishing expeditions during which cops use a traffic violation as an excuse to search for drugs or guns or other illegal activity, should be unconstitutional anyway. The Fourth Amendment should require the police to have probable cause or reasonable suspicion that a driver is engaged in criminal activity before they can stop the person. But those normal rules are thrown out of the window once people sit behind the wheel of their vehicles. Courts have decided that citizens have fewer constitutional protections in their cars than nearly anywhere else in society. Judges act like the internal combustion engine is the Fourth Amendments kryptonite, and so cops can use simple traffic violationsfrom a broken taillight to a dangling air freshenerto stop and search people they would otherwise have no credible reason to question or harass.

That was the ruling by the Supreme Court in a 1996 case called Whren v. U.S. In that case, cops patrolling a high drug area (really just a predominately Black part of Washington, D.C., but whatever) observed a motorist stopped at a stop sign for an usually long time. The car then abruptly moved and turned without signaling. The police stopped the car for the traffic violation (which, again, they didnt care about) and found the drugs they were really looking for. The Supreme Court ruled that the arrest was valid, even though the officers had an ulterior motive for the traffic stop.

Antonin Scalia wrote the opinion, but the ruling was unanimous. Somehow, eight white people and Clarence Thomas decided that the Fourth Amendment should not matter if the cops claim you forgot to hit your turn signal.

It is decisions like Whren that killed Daunte Wright. Brooklyn Center police didnt actually care that Wright was driving with expired tags on his plate. They were hoping to catch him doing something else, something actually criminal. When they came up empty for a real crime, they started scrambling through air fresheners and prior moving violations looking for anything to justify their pointless stop of a 20-year-old kid.

Once that process of Supreme Courtapproved harassment started, it was Wright, not the cops, who justifiably feared for his life. If youve never been pulled over by the police for a pretextual stop, I dont think you can appreciate how frightened Wright must have been. Theres no telling what a cop willing to arrest you over an air freshener might also do. Every Black person who has been stopped by a cop for no good reason knows theres a chance the cops will plant or straight-up invent a good reason. Every Black person knows that the kind of cop who would stop you for driving while black is exactly the same kind of cop who would kill you for being Black.

Ive been there. I was pulled over in Indiana, back when I was about the same age as Wright. When my tormentor approached my car, he said it smelled funny. I had just gotten it washed. I responded with something flippant, channeling my inner Sharon Stone with something like, What are you going to do, arrest me for having my car washed? The next thing I knew I was being pulled out of my car, and my head was then slammed onto its hood.

I was so scared. And watching the video of Wrights murder, I could feel his fear rising. Even though I already knew what would happen to him by the time I watched it, I wanted to scream, Stay calm, brother! Stay calm and we will live and grow and have a family and children. We can survive this! Dont let them take us now.More from The Nation

The flight response overpowered him. We dont even know if he was trying to flee; he might have been just trying to get back into his car where he felt safer. The cops could have let him sit down; they could have tried to calm him. They could have talked to him. They could have seen him.

Instead, they shot him.

Daunte Wright was no threat. Even if he had driven away, so what? The officers still had his plate, the information from his drivers license, and the make and model of his car. The police could have driven to his mothers house and handed her the summons for the freshener violation. An unarmed cop might have put the ticket in the mail.

But that didnt happen, because the officer playing at traffic cop still had her gun. An otherwise ordinary example of court-approved racism escalated to state-sponsored homicide, because we allow the cops to turn traffic infractions into capital crimes.

Armed cops should not be allowed to pull us over for traffic violations. They cant be trusted with that power.

Originally posted here:
Its Time to Kick Armed Cops Off the Road - The Nation

(Photo by PATRICK T. FALLON/AFP via Getty Images)

A 69-year-old woman was walking her poodle in a public park in Northern California in late November. She was not wearing a mask.

She walked by groups of people who were.

A police officer, meanwhile, monitored her movements from the security of his squad car.

As she moved past the park into a middle-class neighborhood, he clandestinely trailed her. She walked past other people who were also out for strolls sometimes coming within three or four feet of them.

Being friendly neighbors, they nodded and smiled.

Then this dog walker turned into a driveway. The police officer turned on his overhead lights and pulled up as fast as he could to the front of her house.

By the time he got out of his car, she was already moving through her front door. Before she could completely shut it, however, he slammed his boot into it and knocked it open.

He then entered her foyer and asked her if she had even been carrying a mask on her walk. She said no.

He said, "You are under arrest."

This is not a true story. It is hypothetical. But is it so fantastical it could never happen?

Consider a true story now being pondered by the Supreme Court in the case of Lange v. California.

"One evening in October 2016, petitioner Arthur Lange was driving home in Sonoma, California," said the petition Lange's lawyers submitted to the Supreme Court asking it to take up his case.

"He was listening to loud music and at one point honked his horn a few times," said the petition.

"A California highway patrol officer, Aaron Weikert, began following Mr. Lange, 'intending to conduct a traffic stop,'" it said. "Officer Weikert later testified that he believed the music and honking violated Sections 27001 and 27007 of the California Vehicle Code.

"Those noise infractions carried base fines of $25 and $35," it said.

In other words, the officer was following a driver he suspected may be committing $60 worth of traffic violations.

"Officer Weikert initially followed at some distance and did not activate his siren or overhead lights," said the petition. "He neared Mr. Lange's station wagon only after Mr. Lange turned onto his residential street. Approaching his house, Mr. Lange slowed and activated his garage door opener. As Mr. Lange continued toward his driveway, Officer Weikert turned on his overhead lights, but not his siren or megaphone.

"At that point, Mr. Lange was about as far from his driveway as first base is from second," said the petition.

Lange pulled into his garage. But he did not make it safely home.

"As the garage door began to descend," said the petition, "Officer Weikert left his squad car, stuck his foot under the door to stop it from closing, and entered the garage."

The officer then discovered Lange might be responsible for more than just playing loud music and honking his horn.

"Upon entering the garage and questioning Lange, the officer observed signs of excessive intoxication, such as slurred speech," said the brief that then-California Attorney General Xavier Becerra submitted to the Supreme Court asking it not to take up this case.

Lange was given a blood test.

"Here, the Sonoma County District Attorney charged Lange with two misdemeanor violations of driving under the influence of alcohol ... and with an infraction for operating his car's sound system at an excessive level," said Becerra's brief. "Lange moved to suppress the evidence obtained after the officer entered Lange's garage, arguing that the officer had no justification to enter without a warrant."

Now, think of the hypothetical 69-year-old woman who walked her poodle without a mask. Was she a criminal?

On June 18, 2020, the California Department of Public Health issued a mask mandate under the authority of Gov. Gavin Newsom that said, in part: "People in California must wear face coverings when they are in the high-risk situations listed below: ... While outdoors in public spaces when maintaining a physical distance of 6 feet from persons who are not members of the same household or residence is not feasible."

The Los Angeles Times reported then: "Under state law, residents who violate the new requirement could be charged with a misdemeanor and potentially face a financial penalty, according to a representative for the Newsom administration."

On Nov. 16, 2020, the Newsom administration published an updated and somewhat stricter mandate.

"People in California must wear face coverings when they are outside of the home, unless one of the exemptions below applies," said the November update.

"Individuals are exempt from wearing face coverings," it said, "in the following specific settings: ... Persons who are outdoors and maintaining at least 6 feet of social distancing from others not in their household. Such persons must have a face covering with them at all times and must put it on if they are within 6 feet of others who are not in their household."

The hypothetical dog walker violated this mandate.

But did the government law enforcement agency that entered her hypothetical home or Lange's actual garage violate the Fourth Amendment? It says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

In a brief in Lange v. California that was joined by the American Conservative Union Foundation and the Cato Institute, the American Civil Liberties Union says: "By categorically permitting police officers to enter a home without a warrant whenever they pursue a suspect they have probable cause to arrest for a misdemeanor, the California Court of Appeal violated petitioner's Fourth Amendment rights."

This is the right position.

If a law enforcement officer suspects someone is driving under the influence as opposed to playing loud music and honking his horn he should pull him over immediately to protect both that person and the public.

But when a law enforcement agency wants to enter someone's home other than to protect people there from a life-threatening emergency it should get a judge to give it a warrant.

(Terence P. Jeffrey is the editor in chief of CNSNews.com.)

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When Can Government Kick Open the Door of Your House? - CNSNews.com