Daily Archives: August 22, 2021

Fourth Amendment

By Debra Cassens Weiss

August 17, 2021, 2:50 pm CDT

Image from Shutterstock.

An en banc federal appeals court has upheld the pat-down search of a man during a traffic stop in a case that drew amicus briefs from several organizations that argued against the governments position in the case.

The appeals court majority ruled Monday that the February 2016 pat down of car passenger Calvin Weaver was reasonable under the Fourth Amendment, and the court was rejecting novel arguments to the contrary. Law.com has coverage.

A Syracuse, New York, police officer found a loaded semiautomatic handgun and cocaine during the search. Weaver appealed his conviction for being a felon in possession of a firearm.

Judge William Nardini wrote the majority opinion, joined in full by six other judges. Two other judges concurred in the result and three judges dissented.

The appeals court majority said a police officers subjective intent has no weight in determining whether a search occurs, and courts must consider the totality of circumstances when determining whether an officer has a reasonable suspicion that a suspect is armed and dangerous.

The concurrence argued the decision by the New York-based 2nd U.S. Circuit Court of Appeals was needlessly broad but said precedent required a ruling for the police officer.

The concurring judges and dissenters all raised concerns about precedent that allows police officers to make traffic stops based on pretextual reasons.

They argued the U.S. Supreme Court should revisit its 1996 decision Whren v. United States, which held that that any traffic violation by a driver provides probable cause for a stop. The subjective motivation of the officers is irrelevant when evaluating an alleged Fourth Amendment violation, the Supreme Court concluded in Whren.

While Whren states an important and correct general rule that removes an officers subjective intentions from Fourth Amendment scrutiny (and the reach of the exclusionary rule), there must be an exception for clear cases of racial bias, the concurrence argued.

Officers pulled Weavers car over for failing to turn on his indicator lights 100 feet before making a turn. Several groups submitted amicus briefs opposing the government position, including the NAACP Legal Defense and Educational Fund and the Center for Constitutional Rights, according to a preview of the case by Reuters.

Before the stop, officers had observed Weaver walking along a street, looking at their unmarked police car, tugging up his pants and getting into a sedan. The officers later stopped the vehicle in which Weaver was riding in an area known for gun violence. One officer saw Weaver push down his pelvic area and squirm during the top.

Weaver was ordered to get out of the vehicle and to stand with his hands on the trunk and his feet spread apart. Weaver pressed his pelvis against the vehicle and protested that the ground was slippery when told to step back from the car.

Our ordinary observer might then stop and wonder: wait, is that all it takes? wrote dissenter Guido Calabresi, in an opinion joined by the two other dissenters. A look and a tug, a delayed turn signal, and adjusting yourself in your seat, and now you are asked to step out and spread eagle across the trunk of a car? The ordinary observer might then ask: Could this happen to me?

Because this is a discomforting thought, I think many people would go onto find ways to distinguish themselves from Weaver. Unlike Weaver, many are fortunate not to live in so-called high-crime areas. And many might comfort themselves with the thought that they have nothing to fear from the police. The police dont look for people like us! Some observers might even tell themselves that the color of their skin would preclude police officers from forming such a suspicion about them in the first place.

Calabresi said the case reflects the deeply troubling state of our Fourth Amendment law.

Go here to read the rest:
En banc 2nd Circuit upholds pat-down search; five judges call for reevaluation of traffic-stop precedent - ABA Journal

PETITIONS OF THE WEEK ByMitchell Jagodinski on Aug 20, 2021 at 8:48 pm

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, a direct challenge to the courts ruling in McGirt v. Oklahoma, a confrontation clause question involving statements about possible future crimes, and a split over the scope of who is covered by the qualified immunity doctrine.

Last year, the Supreme Court ruled 5-4 in McGirt v. Oklahoma that the eastern half of Oklahoma (nearly 43% of the state) qualifies as Indian country for the purposes of the Major Crimes Act. The court thereby stripped Oklahoma state courts of jurisdiction over crimes committed by any Indian in Indian country, and bestowed the federal government with exclusive jurisdiction to try these crimes. Now, Oklahoma alleges in Oklahoma v. Bosse that due to the fallout from McGirt, district courts are overwhelmed and numerous crimes are going uninvestigated and unprosecuted.

The state invokes Chief Justice Roberts McGirt dissent, which predicted that the burdens on the state and local governments would be extraordinary. As a result of McGirt, the state says, over 3,000 applications for postconviction relief have been filed, and the Oklahoma Department of Corrections has released custody of over 150 prisoners (almost half of whom have been set free). More fallout is still to come as approximately a quarter of the postconviction challenges involve crimes already beyond the federal statute of limitations. Currently, almost two million people in Oklahoma reside in areas affected by the McGirt ruling and only 10-15% of these people are Native Americans. The total population of Oklahoma is just under four million residents.

Oklahomas new petition involves Shaun Bosse, who is not a Native American. Bosse murdered his girlfriend, Katrina Griffin, who was a Native American, and her two young children. Bosse was convicted of three counts of murder in Oklahoma state court and sentenced to death; however, 10 years after the murders occurred, the Oklahoma Court of Criminal Appeals granted postconviction relief based on McGirt reasoning that the crime occurred against an Indian in Indian country, and the federal government thus has exclusive authority to prosecute. In response, Oklahoma requested and was granted an emergency stay, which allows the state to retain custody of Bosse while its cert petition is pending. Oklahoma claims the appellate court improperly extended McGirt by applying it to crimes committed by non-Native Americans and asks the justices to resolve the issue by overruling McGirt.

In July, we covered two petitions involving the Sixth Amendments confrontation clause in the context of sexual assault nurse examiner testimony and accomplice testimony. An important feature of the confrontation clause is that it prevents admission of testimonial evidence unless the defendant has an opportunity to cross-examine their accuser. Wisconsin v. Jensen presents the justices with a new confrontation clause question over whether statements of fear about a possible future crime are testimonial.

Prior to Julie Jensens death, she told police that she was not suicidal and that if she died, her husband, Mark Jensen, should be considered a suspect. Julie later died and her husband was found guilty of her murder. Among the evidence presented at trial was a handwritten letter and voicemails to a police officer, in which Julie expressed fear that her husband was planning to kill her. The Wisconsin Supreme Court held that these statements were testimonial hearsay and thus inadmissible under the confrontation clause. The petition argues that other courts have held that statements about possible future crimes are almost never testimonial, and that the definition adopted by the Wisconsin Supreme Court is overly broad. The justices are asked for their review to consider whether forward-looking statements about future crimes should be considered testimonial.

Finally, Estate of Madison Jody Jensen v. Tubbs involves the scope of who is covered by the qualified immunity doctrine. Kennon Tubbs is a private medical doctor who provided medical services at a county jail in Utah. In 2016, Madison Jensen was arrested and detained on drug charges. Upon arrival at the jail, she began experiencing opioid withdrawal, but no medical treatment was provided. Four days later she died of dehydration, alone in her cell.

Madisons estate sued Tubbs, alleging a constitutional rights violation under 42 U.S.C. 1983. The district court found that the responsibility of Tubbs was a question of fact that should be decided by a jury. But the U.S. Court of Appeals for the 10th Circuit reversed, holding that qualified immunity barred the claim. This decision deepened an existing split over whether the doctrine is available to private medical professionals in prisons. The estate argues that doctors are subject to malpractice suits even for ordinary negligence, so Section 1983 liability should not be barred. The court is asked to resolve the split by determining whether private medical professionals may be entitled to qualified immunity.

These and otherpetitions of the weekare below:

Rojas v. Federal Aviation Administration21-133Issue: Whether the 9th Circuit, in a sharply divided en banc decision, erred by adopting the consultant corollary and holding that intra-agency memorandums or letters in Freedom of Information Acts Exemption 5 (5 U.S.C. 552(b)(5)) encompasses documents prepared by APTMetrics, a private, outside consultant.

Estate of Madison Jody Jensen v. Tubbs21-152Issue: Whether private medical personnel working in correctional or mental-health facilities can assert qualified immunity.

Oklahoma v. Bosse21-186Issues: (1) Whether a state may impose procedural or equitable bars to postconviction relief on the claim that the state lacked prosecutorial authority because the crime of conviction occurred in Indian country; (2) whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country; and (3) whetherMcGirt v. Oklahoma, should be overruled.

Knights v. United States21-198Issues: (1) Whether a court analyzing if a Fourth Amendment seizure has occurred is categorically barred from considering a persons race; and (2) whether a seizure occurred under all the circumstances of this case.

Behrman Capital IV, L.P. v. Reynolds21-207Issue: Whether the derivative jurisdiction doctrine precludes federal courts from exercising personal jurisdiction following removal from state courts that lacked personal jurisdiction of the parties.

Wisconsin v. Jensen21-210Issues: (1) Whether a persons statement expressing fear about a possible future crime is testimonial under the Sixth Amendments confrontation clause; and (2) whether, when a person reports ongoing psychological domestic abuse and expresses fear about future physical harm, the persons statement aimed at ending an ongoing emergency is non-testimonial.

See original here:
Fallout from McGirt and testimony about future crimes - SCOTUSblog

Whytwan Versey was asleep in his home near North 11th Streetand West Keefe Ave. the morning of August 6,when Milwaukee police kicked in his front door. According to Milwaukee police, they were in pursuit of an armed suspect.

Around 1:30 a.m. Versey heard a loud bang and glass shatter, he went downstairs to see what happened and was greeted by "lights and guns" in his living room.

Versey said officers then demanded, multiple times, to know who was in the home. Versey said he repeatedly told officers that his fianc, nephew and his dog were the only ones in the home.

Police then ordered everyone out of the home. Versey said his nephew wasin the shower and only in a towel when police ordered him outside. "He's diabetic and only like 100 pounds," Versey said in describing his nephew.

Versey said officers ordered his nephew out of the home wrapped only in the toweland made him walk over the shattered glass from a mirror that was broke whenpolice entered the home. "They made him walk through the glass with no shoes on," said Versey.

Throughout this entire exchange, Versey said, Milwaukee police had their guns pointed at them.

Milwaukee police confirmed officers responded to a gun complaint and interviewed a subject whofled on foot. The officers gave chase andone officer said he saw the suspect enter Versey's residence.

Milwaukee police said in a statement: "Officers located a firearm outside in the vicinity of the residence."

"The U.S. Supreme Court for decades has mulled over the boundaries of the Fourth Amendment warrant requirement," said Jacinta Gau, professor of criminal justice at the University of Central Florida.

Gua is listed as anexpert in criminal justice with The American Society of Criminology.

"There's always a preference for police to get a warrant to enter somebody's home or other private property when possible but so many exigencies exist and there is ample legal grounds for officers to enter a home whenthere is some kind of emergency situation without a warrant," said Gua.

This is the standard operating procedure for Milwaukee police:

"When in pursuit of a fleeing subject for whom the police have probable cause to believe has committed a jailable offense (must be a misdemeanor or felony offense), an officer may enter a home without a warrant if he/she has probable cause to believe the subject is in the home. This hot pursuit exception is limited to a jailable offense (must be a misdemeanor or felony offense) situation and to a chase scenario."

Milwaukee Police add a note stating that officers must use discretion when conducting this practice as"it may not always be the best practice."

Throughout the incident, Versey said one officer kept saying that he saw an armed suspect enter the home. However, Versey said he has surveillance footage that shows no one entered his home.

Versey has surveillance cameras throughout his home and his fianc shared footage of the incident on Facebook.

At one point you can see an officer acknowledge the camera before signaling to a fellow officer that there is a camera.

Gua said, in this instance, Versey needs this evidence to prove Milwaukee Police lied or are mistaken.

"It's going tocome down to a question of facts as to what kind of evidence they can amass about whether somebody did or did not enter the home. Ifnobody entered the homethen the conversation completely changes," said Gua.

Versey said surveillance footage shows the officers knocking on the door. Versey said heand his fianc were sleep and therefore didn't hear the knocking.

Versey's nephew heard the knocking before a loud bang and someone yelling out "police!" Versey said, "(his nephew) stayed in the bathroom because he didn't want to come out and get shot."

"They went through my cabinets and everything. Like if you are looking for a person why are you looking through my cabinets?" asked Versey.

"You come upstairs and you mess up the bedroom and throw everything around in the room. That's not looking for somebody."

Versey said the officers said, "sorry for the inconvenience" before handing him a damage notice with a number onthe back to "handle" the damage. Versey said the officer said "they'll fix your door."

Versey said he called the number and was told that he would receive something in the mail. Versey said that never arrived.

"I would hope that the city has some sort of program for people who are in that situation," said Gua.

In addition to the aforementioned statements from Milwaukee police, they said "no further information is available at this time as this incident is under review." Versey is seeking legal representation.

Contact Drake Bentley at (414) 391-5647 orDBentley1@gannett.com. Follow him on Twitter at @DrakeBentleyMJS.

Our subscribers make this reporting possible. Please consider supporting local journalism by subscribing to the Journal Sentinel at jsonline.com/deal.

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Milwaukee police kick in the door of a northside home while in pursuit of an armed suspect - Milwaukee Journal Sentinel

CHARLOTTESVILLE (WINA)- The City of Charlottesville has responded to the recent survey that was released by the Police Benevolent Association. The full statement is below:

Yesterday, the Virginia Police Benevolent Association, Central Virginia Chapter (PBA) announced to the press that it has performed a survey of its membership, and that the results of the survey indicate dissatisfaction by the PBA membership with Command Staff within the Citys Police Department. The PBAs efforts and ongoing media campaign surfaced within the context of a difficult reorganization and the recent terminations of employment of members of the Citys SWAT Team.

The events of 2017 forced the City of Charlottesville and the Charlottesville Police Department (CPD) to perform a critical self-assessment of its approach to public safety, and policing. After a review of 169 applicants, a selection process was initiated that included members of the community, members of the Charlottesville Police Department (CPD) and City Councilors. That process resulted in the appointment of RaShall M. Brackney, Ph.D. as Chief of Police in June 2018. Chief Brackney was tasked with updating and reforming how police services are provided within the City of Charlottesville, as well as working to bridge a divide between the citys citizens, especially African American residents, and law enforcement. Chief Brackney, and CPD Command have been reflective, introspective, and proactive as part of their ongoing efforts to dismantle decades old, policing practices within the department.

When Chief Brackney commenced her work, the climate and culture of CPD was embedded in traditional, procedural policing approaches that created an us vs them mentalitya warrior mentalitywhich had not embraced, trained, or espoused the concepts of 21st Century Policing demanded by the Citys diverse residents. Police services were based on a traditional model of overreliance on outdated policies, practices, and training, as the use of specialized units (such as the Strategic Policing Bureau, the Jefferson Area Drug Enforcement (JADE), and SWAT) that developed their own sub-cultures within CPD.

Chief Brackney is engaged in a difficult process of remodeling CPD to embody modern concepts of trust, transparency, and legitimacy. One of the first efforts she undertook, in July 2018, was to engage Dr. Phillip Atiba Goff and Dr. Tracie L. Keesee , co-founders of the Center for Policing Equity (CPE). The purpose was to empirically determine the potentiality for disparate impact under CPDs current approach to policing, and to co-create a more just and fair system of public safety in Charlottesville. That process is still ongoing.

Next, Chief Brackney undertook a multifaceted review of CPD operations and internal accountability systems. Studies of the social structures within municipal police departments have shown that autonomous, specialized units, such as narcotics and SWAT, can develop a culture of aggression that negatively impacts both the individuals participating in those units and other members of a department who regularly interact with them. Chief Brackney reviewed outstanding Internal Affairs cases, the effectiveness of specialized units, examining CPDs relationship to JADE, and the role of School Resource Officers (SROs) in Charlottesville City Schools (CCS). The outcome of this review process was that CPD severed its relationship with JADE, removed SROs from Charlottesville High School, dissolved Specialized units within CPD, hired a Fourth Amendment Analyst, and began publishing statistics regarding CPDs encounters and detentions; posting summaries, outcomes and corrective actions associated with all Internal Affairs Investigations; posting all General Orders online, and publishing each Response to Resistance incident in which force was utilized.

During this time, police officers have come under more scrutiny than ever before, including as a result of tragic incidents that received national attention, such as the death of Marcus-David Peters (who was killed by a police officer in Richmond in 2018 while experiencing a behavioral health crisis) and the murder of George Floyd in Minneapolis in 2020 while being arrested on suspicion of using a counterfeit $20 bill , and so many others who have died at the hands of police. As cities across the nation undertake major reform actions, police departments face challenges with officer retention, morale, and recruitment.

In response to those challenges, in August 2020, officers within CPD, with the assistance of Chief Brackney, initiated an internal survey and received approximately 85 responses. The survey included both yes/no type questions, but also invited officers to submit comments containing personnel information regarding identifiable supervisors and staff. Before Command staff could sort through and analyze all the information, the City began receiving FOIA requests for the forms. A decision was made to maintain the confidentiality of the information provided regarding identifiable individuals, in order that the results could be considered and utilized in a productive manner. To date only singularly redacted survey forms have been publicly released to FOIA requesters.

To date, in response to Command Staff recommendations, Chief Brackney created a Command Advisory Board, comprised of rank and file members, both sworn and civilian, to which any member of CPD may offer information, recommendations, or suggestions for changes. To date few suggestions have come forward that would improve the City workplace or officers service to the community, but the Chief remains hopeful that the Advisory Board can provide a voice for a wide range of officers. The City Council has also recently requested the City Managers Office outline a timeline for development of a collective bargaining ordinance, which may provide a new avenue for public safety employees to have a voice.

Putting this in context as it relates to the current climate and culture of CPD: in June 2021 a member of the public sent Chief Brackney a video made by a police corporal who was a member of the SWAT team, a supervisor of police officers, and a field training officer responsible for preparing new police recruits to perform the duties of their position. The video was made by the corporal in April of 2020 while he was in uniform, wearing a different officers name tag, sitting in a police patrol car, and utilizing a City-issued phone. He sent the video via group text message chats to his fellow SWAT team members, other police officers, and citizens. The video contained profanity and language indicative of the very subculture of aggression that Chief Brackney is committed to eradicating from Charlottesville policing. The police corporal in the video stated that unspecified things are f***d up, expresses dissatisfaction, and states that he is looking forward to when we can get back to some hood gansta sh**t. At one point, he states I hope yall havent killed your f***ng wives or children yet. This police corporal also participated in text message chats in which he commiserated with officers making comments about City command staff such as: I say we kill them all and let God sort it out. He participated in other text message exchanges targeting two CPD officers with whom he was angry, stating, lets take em both out.

A subsequent internal affairs review of the corporals on-duty behavior in relation to officers he was responsible for training and supervising, and with whom he served on the SWAT Team, revealed several disturbing behaviors, particularly in connection with training and operations of the SWAT Team. Those activities run the gamut from videoing simulated sex acts, circulating nude videos of females and themselves, to videotaping children of SWAT members detonating explosives, and firing police department-issued semi-automatic weapons, at unauthorized training events. The PBA dismisses the actions documented within the corporals video, and presumably would also dismiss the other videos generated by SWAT Team members while performing their job duties, as Its officers just being silly.

In response to the discoveries, the Chief took swift action to dissolve the SWAT Team. The Chief gave notice of possible disciplinary action to the police corporal, who then resigned from employment. The Chief referred three other collateral matters for criminal investigation by outside agencies, who declined to find any unlawful conduct; subsequently, the Chief gave notice of possible disciplinary action to two other SWAT Team members, one resigned and one was subsequently terminated from employment. These actions have not been well received by the former members of the SWAT team, or by officers who are former members of other special teams previously disbanded by the Chief. The timing of the PBAs media releases should be considered in this context.

While these internal investigations were pending, and while disciplinary proceedings remain where in progress, attorneys for the Virginia Police Benevolent Association, Central Virginia Chapter (PBA) contacted two City Councilors in June 2021, in a thinly veiled attempt to encourage them to influence the disciplinary process, a process matter that Councilors generally have no role in. The City Councilors have been briefed and they expect the City Manager and Chief of Police to continue their efforts to ensure that aggressive, misogynist, machoistic, paramilitary-style and racist attitudes and behavior will not be tolerated within the workplace, as it presents a threat to public safety and to the safety of all the officers who diligently, conscientiously and lawfully perform their duties every day.

Most recently, On August 10, 2021 Michael Wells, President of the PBA Virginia Police Benevolent Association, Central Virginia Chapter (PBA), transmitted a letter to the Mayor and City Council. The letter expressed concerns that the PBA membership has with the Police Department Command Staff, specifically targeting Chief Brackney, in their survey. (Membership in the PBA includes many individuals who are not current City employees, and extends to all sworn and retired law enforcement personnel and law enforcement support personnel employed by any public employer)

The City Council, City Manager and Chief Police understand that the Charlottesville community expects a unified organizational approach to dismantling systemic racism and eliminating police violence and misconduct in Charlottesville and across the nation. This cannot be done without discomfort, and the City officials responsible for undertaking this work will not be popular among the individuals whose behavior is being required to change. We must continue to build on the progress made during this historically, momentous period of criminal-legal justice reform. It requires the leveraging of all available resources such as a professional, well-trained oversight body to support police work, and local support from community and community leaders. We must remain committed to building community partnerships, while proactively addressing conditions that cultivate crime and social disorder. We must remain committed to promoting transparency and fostering trust between the community and CPD. We must remain committed to Service Beyond the Call.

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The City of Charlottesville Responds to the Police Benevolent Association Survey | NewsRadio WINA - WINA AM 1070

The university employs over 9,800 employees over multiple campuses and UConn Health. All will have to show proof of vaccination by October 15

MANSFIELD, Connecticut Staff at all of UConn's campuses and UConn Health in Farmington will have to be vaccinated for the new school year.

Interim President Dr. Andrew Agwunobiannounced the requirement. Students are already required to be vaccinated with some exemptions in place.

Employees must show evidence of vaccination by October 15th or request an exemption or deferral which would require them to be tested weekly, the school said.

UConn has about 9,800 full and part-time employees.

A federal lawsuit filed against UConn's vaccine mandate requiring all students to be vaccinated against COVID-19 was dismissed by a judge on Monday.

The university is requiring mandatory vaccines for most students in order to come back to school for the 2021-2022 school year. Its policy was challenged with a lawsuit.

The lawsuit argued, "imposing mandatory vaccinations as a condition for attending UConn violates their Fourth Amendment procedural due process." It went on to say it violated state and federal laws that give individuals an option to choose.

The university is pleased with the courts decision. Our student vaccination program continues to be very successful, and we look forward to reopening for the fall semester with our campuses as safe and healthy as possible," said UConn in a written statement.

UConn hasalready given more than 500 non-medical vaccine exemptions as of August 4.

UConn is not the only school being sued over its vaccine requirement. It was only last week that Supreme Court declined to hear the lawsuit over Indiana Univerisity's vaccine mandate. Justice Amy Coney Barret denied the challenge with no notes of dissent from the other judges.

Quinnipiac University recently announced students who fail to show proof of vaccination will be subjected to a weekly fine and other penalties.

In other efforts to protect students across the state, Gov. Ned Lamont announced Tuesday that K-12 students will be required to wear their masks for at least the first month of the school year. Lamonts executive order requiring masks in schools is set to expire with the rest of his emergency executive powers on Sept. 30.

But Martin Looney, the Democratic president pro tempore of the state Senate, says lawmakers will meet next month to decide whether to extend those executive powers, possibly until the start of the next legislative session in February.

Last week, the Connecticut Interscholastic Athletic Conference (CIAC) announced its guidelines for student-athletes for this coming fall.

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UConn to require staff to be vaccinated against COVID-19 - FOX 61

Qualified immunity, again. This time for a Springdale cop's stop of two innocent youths - Arkansas Times

On

Springdale boys, ages 12 and 14, were stopped in 2018 by a cop seeking fleeing suspects because they were both wearing hoodies and near the scene of a crash from which four people were seen fleeing. He pointed a gun at them. They were made to lie on the ground, handcuffed and frisked. In addition to being innocent of wrongdoing, they were compliant. So were their parents, who tried to explain the cops were making a mistake. When other officers arrived, the boys were released.

Mom sued for constitutional violations. District Judge Timothy Brooks agreed the boys had a case to take to trial against one officer. In a 2-1 decision today, the 8th Circuit Court of Appeals reversed, saying Officer Lamont Marzolf had not acted unconstitutionally and thus enjoyed qualified immunity from the lawsuit. They said he had a reason for the detention; that use of handcuffs did not make this a de facto arrest; that the frisking was lawful because the stop was lawful and one of the boys reached toward his waist at one point, and that pointing a gun was not excessive force because the officer was waiting for a backup to be sure the situation was under control.

The judges, Steven Grasz and Jonathan Kobes, who formed the majority shed a tear for the boys and their mother:

Although it may be of little consolation to Pollreis and her children, it bears emphasizing that neither W.Y. nor S.Y. did anything wrong, nor anything deserving of such a harrowing experience. The boys simply happened onto the stage of a dangerous live drama being played out in their neighborhood because of criminals fleeing police nearby. W.Y. and S.Y. acted bravely, respectfully, and responsibly throughout the encounter, and their family would rightly be proud of them. Likewise, their family acted responsibly and respectfully during what would have undoubtedly been a frightening experience. In this situation, though, Officer Marzolf was doing his job protecting the people of Springdale from fleeing criminal suspects under challenging conditions.

Judge Jane Kelley dissented, commenting:

Officer Marzolf may have been justified in his initial decision to stop W.Y. and S.Y. and even in his use of some force against them as he determined whether they posed a threat to his safety and the safety of others. But I disagree with the courts conclusion that at no point over the course of their detention did he violate their Fourth Amendment rights. I write separately because I believe that the stop escalated to an arrest without probable cause; that Officer Marzolf unlawfully searched W.Y.; and that he used excessive force by continuing to point his gun at W.Y. and S.Y. as they lay on the ground. I would therefore affirm the district courts ruling.

The case returns to the district court for an order grantng Marzolf summary judgment on the immunity claim. Judge Timothy Brooks had earlier dismissed another officer named in the suit, but allowed the case against Marzolf to continue.

Heres the full 8th Circuit opinion.

Read the rest here:
Qualified immunity, again. This time for a Springdale cop's stop of two innocent youths - Arkansas Times

ATTN LANDLORDS: Thank you for your compliance. If you violate the CDCs eviction order, you and/or your business may be subject to criminal penalties, including fines and a term of imprisonment.

When was the power to make law in our nation passed to unelected bureaucrats? If you hadnt noticed, thats been happening for decades. The unelected potentates of the Environmental Protection Agency, Internal Revenue Service, Department of Justice, and now the CDC are just a few of the agencies writing regulations to execute their legislatively assigned duties. These regulations are not all created equal and there are many examples of some that go well beyond the intent of the original legislation.

Wetlands regulations crafted by EPA civil servants are a classic example of bureaucratic imperialism. Regardless of what the actual legislation says, if a regulator comes up with a good idea that can somehow be justified by the original legislation, they can institute it with nary a blink from the peoples House unless the regulation interferes with an organization of significant lobbying capability. For a nation of free men and women founded on the premise that our rights come from God and not the government, its amazing that we allow such activity to infringe on many of our most basic rights. The Aug. 3 dictate from the CDC is another example of this and is an exceptionally bold example to boot!

Shall we continue to accept an ever-burgeoning executive bureaucracy that thinks it knows better than those to whom it is supposed to be accountable? In one draft of our Declaration of Independence it was offered that among our unalienable rights were life, liberty, and property! Property, not the pursuit of happiness? Why would property be so important as to rank as one of the three most important rights bestowed on us by our Creator? Perhaps it was because prior to the Declaration of Independence the king (representative of government) held the trump card regarding any and all property.

Although property didnt make the final cut of the opening of the Declaration of Independence, it was considered critical enough to be enshrined in the Fourth Amendment to the U.S. Constitution. The Constitutions protections against unreasonable seizure are essentially shredded by the CDCs eviction moratorium. Today landlords lose control of their property. Tomorrow?

What should we do? First, elect people of good character, knowledge of, and commitment to the entire U.S. Constitution. Second, hold them to their oaths of office. Erosion of our rights must stop less we lose what made our nation exceptional. Enough is enough!

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LETTER TO THE EDITOR: CDC shouldn't have eviction power - The Central Virginian