Daily Archives: September 22, 2021

Although not mentioned in the Constitution, the right to privacy has been invoked by its enormous following as thoroughly American and indispensable to our conception of liberty and freedom.

It prevents the government from spying on the people. It protects personal data. It protects freedom of speech and freedom of religion. It protects ones reputation, voting rights and participation in politics.

The right to privacy, the Supreme Court has held, also encompasses the use of contraception, access to abortion and, of course, privacy in our homes.

The right to privacy is not enumerated in the Constitution. Its lack of textual paternity is not unique; the right to travel, the right to marriage and the freedom of association, universally valued by Americans, are other examples of unenumerated rights. Nor does the textual omission make them less important than enumerated rights.

Like other rights and liberties, the right to privacy enters the annals of Anglo-American legal history through mere assertions that form a rhetorical tradition. The immediate gateway is the Fourth Amendment, which provides protection from unreasonable searches and seizures of ones property.

English law and practice permitted governmental ransacking of private homes and places of business upon the flimsiest pretexts of illegal possessions, especially whenever the prospects for British revenue gleaned from taxation schemes were at stake.

The majestic Magna Carta, written in 1215, and exalted as the basis for English liberty, as well as the legal conceptions of due process and equal protection, both fundamental to American Constitutionalism, was linked in the 16th Century to the fiction that a mans home is his castle.

A clerk of the Privy Council Robert Beale connected the dots in 1589, when he asked, rhetorically, what had happened to Chapter 39 of Magna Carta, which provided the basis for the law of the land, when agents of the prerogative courts could enter mens homes, break up chests and chambers and cart away as evidence whatever they pleased. Beales conversion of Chapter 39 into a ban on general search warrants influenced Americans thinking about privacy rights.

It was a masterful speech to Parliament by William Pitt in 1763 that summoned the idyllic symbol of a mans castle assaulted by unlawful governmental intrusions that played upon the heartstrings of Americans in defending the privacy of their homes. Pitt famously stated, The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.

The repetition of this argument against general search warrants by great English legal scholars and statesmen created a tradition that was eagerly embraced by Americans.

In 1756, the Massachusetts Bay colony passed legislation that prohibited general searches. This landmark legislation would pave the way for the Fourth Amendment to the Constitution. What was missing on the American scene, however, was the sort of drama embodied in William Pitts speech to Parliament, a moment that might captivate the citizenry and become a cause.

That drama was supplied by a Boston attorney, James Otis Jr. who, in 1761 presented American colonists offended by the British practice of issuing writs of assistance, a kind of general warrant, that empowered the agent to enlist the help of English subjects American colonists to aid the search.

Otis arguments followed the familiar rhetorical tradition of asserting that the right in question had existed since time immemorial. Otis plea was futile, of course, for he was arguing before a panel of English judges committed to pleasing King George III, but he made history and, in the words of John Adams, who had decided to attend the argument so that he could watch the brilliant young lawyer at work, Otis was a flame of fire! He later wrote of Otis argument and eloquence: Then and there the child Independence was born.

Otis told the court that the only legitimate warrant was a specific one, directed to specific officers, to search certain houses, upon an oath sworn by the person who believes certain goods to be concealed. A writ that permitted a customs officer to enter private homes upon bare suspicion violated the liberty of every English subject, that of enjoying the benefits of a mans castle. With an eye to history yet to unfold, Otis declared such a writ represented a violation of the English Constitution and should be held by the court to be null and void.

Otis constitutional arguments lit the way for state legislation that required specificity in search warrants. His influence on American Constitutionalism, immeasurable in so many ways, was easily calculated in its impact on specific requirements for searches and seizures. Adams borrowed Otis learned courtroom reasoning in writing Article XIV of the Massachusetts Declaration of Rights of 1780. James Madison also drew upon Otis in his introduction of what became the Fourth Amendment.

While the right to privacy entered American law through the Fourth Amendment, it found expression and defense in other provisions of the Bill of Rights.

(This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.)

Read the rest here:
The origins of individual rights to privacy | The Journal - Journaltrib

A Toccoa man authorities describe as a known gang member has been arrested and charged with trafficking methamphetamine and heroin. 26-year-old Shaun Mayfield faces a host of other drug-related charges following a 6-month-long investigation, officials say.

On Friday, September 17, law enforcement officers executed a Fourth Amendment Waiver search on Mayfield at 1520 Defoor Road in Toccoa. During the search, agents say they found nearly $68,000 worth of illegal narcotics in his possession.

Law enforcement officers seized over nine pounds of marijuana, a half pound of methamphetamine, and 11 grams of heroin. They also seizedbutane hash oil,Ecstasy pills, and cocaine says Trent Hillsman, Special Agent in Charge of the Appalachian Regional Drug Enforcement Office.

Hillsman says Mayfield is a known member of the Gangster Disciple criminal street gang. He was on active probation at the time of his arrest.

During Fridays search, officers also reportedly discovered an AR15 style rifle, semiautomatic pistol, and revolver.

In addition to the trafficking charges, agents charged Mayfield with six weapons violations, felony possession of marijuana,possession with intent to distribute Ecstasy, butane hash oil, marijuana, and cocaine, andfelony theft by receiving a stolen motorcycle.

The Stephens County Sheriffs Office, Toccoa Police Department, Department of Community and Supervision, FBI, and ARDEO participated in the investigation.

The case is still active and ongoing and, according to Hillsman, additional charges may be filed.

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Reputed Toccoa gang member charged with drug trafficking - Now Habersham

REXBURG A man shot by a Rexburg Police officer in 2019 has filed a lawsuit against the city, its police department and several officers.

Ashtyne Lane Whitings attorneys filed the federal lawsuit Wednesday, 21-months after then Madison County Prosecuting Attorney Sid Brown cleared Rexburg Police Officer Bransen Devey of any wrongdoing. Whiting is suing for an unspecified amount above $10,000 for damages he says he incurred after the Oct. 22, 2019, officer-involved shooting.

Whiting accuses the city and its officers of violating several of his rights and of violating laws, including that officers violated his Fourth Amendment right protecting him against unreasonable searches and seizures. The attorneys also claim the city engaged in malicious prosecution, failure to train, lack of policy, or having an unconstitutional policy.

RELATED | One man injured after officer-involved shooting in Rexburg

The incident in question began when Devey responded to a 911 call on 222 West 2nd North around 1 a.m. A woman reported her boyfriend, Whiting, was angry, drunk, suicidal and possibly armed with a knife.

Whiting left the home in his car by the time Devey arrived, but seconds later, Whiting sped down the street in front of the apartment building. He stopped, revved his engine, turned around and sped toward the area where the officer was standing, Rexburg Police Chief Shane Turman said at a 2019 news conference.

Believing he was in imminent danger, Devey drew his weapon and fired.

Prior to firing upon Ashtyne, Officer Bransen (Devey) did not issue any command or warning to Ashtyne to stop or exit the car, Whitings attorneys write in the lawsuit. Furthermore, he did not even make himself known to Ashtyne.

READ THE ENTIRE LAWSUIT HERE

An investigative report obtained by EastIdahoNews.com shows Devey fired 10 shots followed by an additional four. As Devey was firing, Whiting stopped the vehicle, and one bullet hit him in the left shoulder, and another grazed his calf. He was taken to Madison Memorial Hospital and released a few hours later.

As a result of defendants tortious and unconstitutional behavior, Ashtyne suffered severe pain, lost a significant amount of blood, and had to undergo surgery to remove the bullet in his shoulder and to repair (his) other gunshot wounds, the lawsuit alleges. To date, Ashtyne continues to suffer the physical and mental trauma caused by Defendants unconstitutional and tortious conduct.

RELATED | Officer shot driver who was speeding toward him, say Rexburg Police

Following the shooting, the East Idaho Critical Incident Task Force, led by the Idaho Falls Police Department, investigated the incident and interviewed Whiting, Devey, Whitings girlfriend and other officers who responded to the scene, as well as other witnesses.

When their investigation was complete, Brown and Turman asked the Force Science Institute in Illinois to review the case. The institute interviewed Devey, reviewed body camera footage and investigative documents. Experts with the organization deemed Deveys actions were typical of others in similar situations.

RELATED | Rexburg police officer cleared in shooting that wounded driver

It is my conclusion that Ashtyne Whiting took actions and drove his vehicle in such a manner as to create in Officer Devey a well-founded and reasonable fear that his life, and possibly the life of (Whitings girlfriend), was in imminent danger, Brown wrote in a 2019 letter clearing the officer of criminal wrongdoing. Officer Devey was justified and acted reasonably in opening fire on the rapidly approaching vehicle. I believe that all of the shots fired by Officer Devey were a result of Officer Deveys perception of a continuing threat and his effort to bring the vehicle to a stop and end that threat.

Following Browns decision, Turman convened an officer-involved shooting review board to determine if department policies were followed during the incident. The board concluded Devey acted appropriately, and he was permitted to come back to work.

Whiting was charged with misdemeanor DUI as he told police he had drunk whiskey that evening. His blood-alcohol level was nearly double the legal limit when he was arrested, according to police documents. However, the case was eventually dropped by the Madison County Prosecutors Office.

As the officer defendants were the ones to decide to initially arrest and charge Ashtyne, they are the prosecutors for purposes of a claim for malicious prosecution, the lawsuit alleges.

EastIdahoNews.com has reached out to Rexburg City Attorney Stephen Zollinger for comment. We will update this story if we received one.

Read the rest here:
Man shot by officers sues city of Rexburg and its police department over 2019 incident - East Idaho News

Image courtesy of CNN

By Fabrizio Gowdy

This week, we marked twenty years since 9/11. With each passing year, an uncomfortable truth becomes more obvious: the terrorists won, not because of what they did on September 11, 2001, but rather as a result of the United States response in the months and years after the attack. We plunged into costly, prolonged military intervention in the Middle East.

Domestically, we quickly surrendered our liberty and privacy rights for the promise of security. And on the most fundamental level, we seem to have accepted a new permanent status quo of surveillance and paranoia that represents a departure from the American cultural identity and way of life. Our response to 9/11 has made us weaker, poorer, and less free.

On September 10, 2001, America stood atop the world, a lone superpower still basking in its triumph over the USSR. September 11th should be considered the beginning of our decline from the height of our global power. We invaded Iraq and Afghanistan, wars that to date have cost American taxpayers $2 trillion and $2.3 trillion respectively. An estimated 801,000 Afghans and Iraqis perished in these wars, 335,000 of whom were civilians.

In the end, what did we achieve? We handed Afghanistan back to the Taliban, only now they have billions of dollars worth of state-of-the-art military equipment.

We also rarely consider the possibility that our constant meddling in the Middle East is the cause of much of the anti-American sentiment in the region. We cant expect to strip people of their sovereignty and control other nations domestic affairs without experiencing massive blowback. In 1953, the U.S. engineered a coup and installed the Shah in Iran; 26 years later angry Iranians took our embassy and 66 hostages.

Our failed invasion and occupation of Afghanistan will be remembered for its hubris, especially in regards to our ill-advised attempt to install a Western-style democracy. How arrogant is the U.S. to think that it can defy all historical precedent? Why did the U.S. Military think it could march into the graveyard of empires, politically unify a country that has consisted of feuding warlords for virtually all its history, and establish a democracy where one has never existed?

Democracies cannot be willed into existence; they develop painstakingly slowly along with cultural attitudes and views on individual rights and human liberty. Britains democracy is healthy and functioning because it has 800 year-old roots going back to the Magna Carta.

Afghanistan has no such history. Furthermore, why is it our role to go around forcing democracy on people who do not want it? Many undemocratic countries exist today; we dont possibly have the money or manpower to invade and occupy them all for decades on end until Western democracy flourishes. Empires die when they overextend and spread themselves too thin militarily, incurring massive debt in the process and neglecting domestic issues.

Ironically, as we were busy trying to secure freedom and democracy for the people of Afghanistan, our government was actively restricting American citizens freedoms. The 2001 USA PATRIOT Act, the most unpatriotic of acts, as Kentucky Senator Rand Paul dubbed it, quietly authorized unconstitutional operations of mass surveillance against the general American populace and allowed for bulk data collection.

The act was an assault on the Fourth Amendment; if widespread, indiscriminate surveillance and collection of Americans activities and records is not unreasonable search and seizure, then what is? Rather than prosecuting whistleblower Edward Snowden, we should give him a pardon and a medal of freedom for defending Americans constitutional rights.

The FISA courts meant to check the surveillance state have proved to be a rubber stamp, denying just 12 warrants out of over 33,000 requested. The framers specifically included the 4th amendment because of the British writs of assistance, essentially generalized search warrants. The British officials who broke down colonists doors and trifled through their papers would be envious of the ease with which the NSA can monitor millions of Americans.

On a deep, cultural level, 9/11 caused a shift in the way Americans view and assess risk. Since 2001 the balance between freedom and security has slanted heavily in the direction of security. Weve become a far more paranoid and risk-averse society, which runs contrary to Americas notorious history of pioneers, risk-takers, and daredevils.

Weve accepted heightened security measures at airports, concerts, and sporting events. Weve accepted a stringent new regime of anti-money laundering laws meant to prevent financing of terrorism, laws that have hurt American banks and compromised our financial privacy. Even the Statue of Liberty, one of Americas most iconic and recognizable monuments, did not escape this cultural shift. Following the 9/11 attacks, the National Park Service permanently closed the statues crown to visitors, citing security concerns.

Now two decades out from 9/11, we are in need of a course correction, both domestically and with regards to our foreign policy. Lets stop deploying troops all over the world and consolidate our attention on true national security threats, like the rising Peoples Republic of China. Lets protect the Fourth Amendment by rolling back the powers of the NSA. Rather than living in fear and embracing the surveillance state, the best way to honor the legacy of those killed on 9/11 is to defend the American way of life and the freedoms our country was founded upon.

See the article here:
The Terrorists Won - Catholic University of America The Tower