Daily Archives: September 5, 2023

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At the end of this year, Americas most important intelligence tool is set to expire. Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows the government to collect signals intelligence on foreign targets, even when that collection includes communications with Americans. However, Section 702 needs congressional approval to continue, and vocal critics both inside and outside Congress consider Section 702 unconstitutional.

On July 21, 2023, the government released a redacted version of the Foreign Intelligence Surveillance Courtys (FISC) most recent opinion (dated April 11, 2023) addressing the governments request for continued Section 702 surveillance authority. The opinion likely represents the FISCs last word before Congress decides whether, or on what terms, to reauthorize Section 702 before the authority expires on December 31, 2023.

Congress should reauthorize Section 702 because this critical intelligence collection program is conducted only in accordance with a carefully structured compliance regimen designed to minimize intrusions into US persons privacy interests. Every court to have considered the question has concluded that operating the Section 702 program using this compliance structure is reasonable under the Fourth Amendment of the Constitution.

Evaluating the significance of the FISCs conclusions requires some understanding of how Section 702 permits the government to acquire foreign intelligence information by targeting the communications of non-US persons reasonably believed to be located outside the United States. Conversely, the targeting of any US person, anywhere, at any time isspecifically prohibitedby Section 702. However, asCongress recognized, Section 702 acquisitions of foreign communications would also incidentally acquire the communications of those US persons communicating with foreign targets, and these communications, like those of the foreigners actually targeted, also are stored in the Section 702 database retained by the National Security Agency (NSA) which is the lead agency for Section 702 collection.

Since the foreign targets of Section 702 surveillance have no Fourth Amendment rights, neither probable cause nor a warrant are required to justify any particular targeting decision. Instead, to protect the rights of those Americans whose communications are incidentally acquired during authorized Section 702 acquisitions, Congress required that the attorney general adopt procedures that minimize the acquisition, retention, and dissemination of information concerning unconsenting US persons. These minimization procedures, along with targeting and querying procedures (the latter added by Congress as part of its 2017 reauthorization of Section 702), comprise the statutory architecture Congress created to protect the Fourth Amendment rights of those non-targeted US persons whose communications are incidentally collected during the course of lawful Section 702 acquisitions. The targeting, minimization, and querying procedures used with any Section 702 acquisition must be reviewed and approved by the FISC as consistent with the requirements of the Fourth Amendmentboth as written and as applied by each agency with access to Section 702-acquired communications.

The scope of incidental collection is not insignificant because Section 702 is a large, programmatic surveillance program collecting hundreds of millions of communications from its 246,073 foreign targets,so the number of incidentally acquired US person communications is also sizable. It is this incidental collection of US person communications acquired during the course of lawful Section 702 acquisitions directed at foreign targets, and, more specifically, the subsequent handling of those communications by US intelligence agencies, that lie at the heart of the debate over whether Congress should reauthorize Section 702 and, if so, in what form.

The Section 702 database maintained by NSA represents a sort of primordial vat where communications collected pursuant to FISC-approved certifications reside anonymously until retrieved by querying. The Director of National Intelligences most recent Annual Statistical Transparency Report describes a query as a basic analytic step foundational to efficiently and effectively reviewing data lawfully collected and already in the governments possession. In other words, the content of any particular communication in the Section 702 database and the identities of the participants in that communication, including the incidentally collected communications of US persons, are unknown until a query is initiated that extracts that communication from the database. Four agencies, NSA, CIA, the National Counterterrorism Center (NCTC), and the FBI, have access to all or some part of the communications stored in the Section 702 database.

Notably, the FBI, whose querying practices have been scrutinized, and criticized, repeatedly in FISC opinions receives access only to those communications actually generated by the particular targets that the FBI has nominated for collection based on their association with fully predicated national security investigations. In calendar year 2022, for example, this afforded the FBI access to only 3.2 percent of those Section 702 targets.

Of those agencies having access to Section 702-acquired information, only the FBI has a dual mission covering both foreign counterintelligence and law enforcement, and its use of Section 702 information has been the subject of vigorous criticism from Section 702 opponents both in and out of Congress. These opponents argue that the FBI wrongfully uses its access to Section 702-acquired communications to conduct back door searches directed at American citizens in violation of the Fourth Amendment. The FBI has an admittedly checkered record of past compliance with the querying requirements designed to protect the privacy interests of US persons but, over the past twenty-four months it has implemented a series of remediation measures intended to address its previous compliance issues. While identifying and disclosing compliance violations means little in the absence of discernible progress in remedying those violations, the returns on these FBI reform measures have been positive. As the FISC noted in its April 2022 Section 702 opinion released in redacted form by the Office of the Director of National Intelligence in May 2023, the Court is encouraged by the amendments to the FBIs querying procedures and the substantial efforts to improve FBI querying practices, including heightened documentation requirements, several system changes, and enhanced guidance, training, and oversight measures. There are preliminary indications that some of these measures are having the desired effect.

Similarly, the FBI querying statistics contained in the 2023 Annual Statistical Transparency Report reflecteda 96 percent reduction in the FBIs use of US person query terms in 2022, the first full year in which all of the aforementioned FBI compliance measures were in effect, are equally indicative of improved compliance performance. These improvements are also corroborated in a recent release by the FBIs Office of Internal Auditing which, in its first report documenting the FBIs compliance performance following the remediation efforts implemented in 2021-2022, announced that the FBI had a 96 percent compliance rate for FISA queries, a 14 percent improvement from [Office of Internal Auditing]s first baseline audit, which was conducted before the reforms.

The FISCs assessment of whether the compliance efforts of the executive branch, and most particularly the FBI, have continued to improve in executing the statutory and regulatory regimen designed to protect the Fourth Amendment rights of US persons should represent an influential consideration in the ongoing debate over the reauthorization of Section 702. Since Section 702 certification approvals by the FISC generally extend for one year, the FISCs most relevant assessment of the governments compliance performance is reflected in its review of the most recent request for new and reauthorized surveillance authority under Section 702 and is recorded in its recently released April 2023 opinion. After a thorough analysis, the court approved the certifications making these specific findings.

And, perhaps most significantly,

In sum, the FISC approved the governments requests for Section 702 surveillance authority as consistent with both FISAs statutory mandate and with the requirements of the Fourth Amendment.

Notwithstanding the FISCs conclusion that the procedures governing the acquisition and handling of Section 702-acquired communications satisfy the Fourth Amendment, most of the headlines covering the release of the courts opinion read like these appearing in, respectively, The New York Times, the Washington Post, and the Wall Street Journal.

All these headlines were generated by a half-page discussion in the FISCs opinion about three compliance incidents involving FBI querying practices. In one instance, in June 2022, an FBI analyst conducted four overly broad searches of a US senators last name against that part of the Section 702 database to which the FBI has access. The analyst also searched the database using the last name of a state senator. In each instance, the analyst had specific information that these legislators were being targeted by a foreign intelligence service, but Justice Department compliance inspectors concluded that the FBI querying standard was not satisfied. The third incident involved a Staff Operations Specialist running a single query using the Social Security Number of a state judge who had complained to the FBI about alleged civil rights violations committed by a municipal chief of police. The FISC concluded its half-page discussion of these incidents saying, despite the reported errors, there is reason to believe that the FBI has been doing a better job in applying the querying standard while observing that the government has not reported compliance violations of a comparable magnitude to those identified in the FISCs 2018 and April 2022 opinions.

Despite the FISCs conclusions, critics and media outlets persistently describe the Section 702 collection program as warrantless surveillancean appellation suggesting some sort of evasion of the Fourth Amendments warrant requirement. But this is accurate only in the same literal sense as saying I have an unlicensed microwave oventechnically true, but legally irrelevant because there is no legal requirement that my microwave has a license, just as there is no legal requirement that authorized Section 702 acquisitions be accompanied by a warrant. As the FISC has observed,

The touchstone of the Fourth Amendment is reasonableness [and] although [t]he warrant requirement is generally a tolerable proxy for reasonableness when the government is seeking to unearth evidence of criminal wrongdoing it fails to properly balance the interests at stake when the government is instead seeking to preserve and protect the national security.

The Fourth Amendment offers no guarantee that a warrant will be an essential prerequisite to a government search or seizure that might impact individual privacy interests. The FISC has repeatedly concluded that Section 702 acquisitions do not require a warrant, and all three federal appeals courts to have considered the issue have held that the incidental collection of US persons communications under Section 702 is reasonable and does not require a warrant.

The courts issuing these rulings all have recognized that the correct Fourth Amendment analysis for electronic surveillance conducted for foreign intelligence purposes examines the programmatic purpose served by that surveillance, whether that purpose serves a legitimate objective beyond routine law enforcement, and whether that purpose would be frustrated by insisting upon a warrant. Thus, the foreign intelligence focus of Section 702 surveillance triggers an entirely different reasonableness assessment under the Fourth Amendment than that used either for law enforcement purposes or to determine whether a US person can be targeted as an agent of a foreign power under the traditional electronic surveillance provisions of FISA first enacted by Congress in 1978.

Similarly, in the context of queries employing US person identifiers that are used to find and extract foreign intelligence information from the database of Section 702-acquired communications, this analysis recognizes both the existence of a foreign intelligence exception that exempts the query from the law enforcement-based warrant requirement, and that the application of court-approved minimization and querying procedures serves to make the querys intrusion into individual privacy interests reasonable when balanced against the governments interest in national securityan interest repeatedly recognized by the courts as being of the highest order.

In 2017, Congress added the requirement that agencies having access to the Section 702 database develop and use Querying Procedures to govern the act of querying that database to retrieve information. While asserting that the Fourth Amendment did not require such procedures, Congress implemented the querying procedures requirement as a compromise meant to provide additional protections for US person information that is incidentally collected under section 702. In its April 2023 opinion, the FISC amplified its previous conclusion from 2018 that the Querying Procedures expand statutory protections, not the scope of what constitutes an independent search under the Fourth Amendment. As the FISC has noted, the insistence that queries employing the use of US person identifiers represent an analytically separate Fourth Amendment event must be examined through the totality of circumstances that governs the Fourth Amendment reasonableness assessment. In the context of a query using a US person identifier to extract foreign intelligence information from the Section 702 database, such an assessment demands recognizing and acknowledging that the query is employed in examining information already lawfully acquired under a statutory framework that requires a judicial determination that the totality of attendant circumstances, including the acquisition retention and dissemination of such information, is reasonable. As the FISC now has repeatedly concluded, under such circumstances no warrant is constitutionally required.

As Congress considers whether Section 702 should be reauthorized and, if so, in what form, the outcome of that debate will reflect, at least in part, whether legislators are more influenced by the headlines describing the FISC opinion or by the FISCs actual analysis and conclusions. Section 702 opponents seized on the headlines to argue that even if the FBI had achieved perfect compliance with its rules, that wouldnt obviate the need for a warrant. But the FISC opinion bluntly repudiates that position and specifically concludes that the FBIs and other agencies implementation of their Section 702 procedures is consistent with statutory and Fourth Amendment requirements. Simply put, the FISCs last word before Section 702s sunset date is that the Fourth Amendments standard of reasonableness does not require a warrant either prior to acquiring communications pursuant to FISC-approved Section 702 certifications or for queries of those acquired communications using US person query terms that are reasonably designed to retrieve foreign intelligence information.

The evolution of technology and threats confronting the United States has only increased the importance of Section 702 in protecting national security. Initially focused principally on counterterrorism, Section 702 now provides critical reporting on Russian atrocities in Ukraine, Chinese threats to Taiwan, the fentanyl crisis, persistent interference in US elections by foreign actors, Russias global program of malign influence, Iranian nuclear efforts, North Korean nuclear and missile proliferation concerns, and the destabilizing impacts of climate change. Section 702 reporting now provides over 95 percent of the FBIs technical reporting on malicious cyber actors and more than 90 percent of its reporting on emerging technologies, including artificial intelligence. At a time when China has a bigger hacking program than every other major nation combined, Section 702 provides indispensable intelligence to assist in protecting US infrastructure, corporations and financial institutions from malicious cyber activity.

All of this explains why the Presidents Intelligence Advisory Board recently reported that history may judge a congressional failure to reauthorize Section 702 as one of the worst intelligence failures of our time. The board also noted that saddling a renewed Section 702 with a warrant requirement that is neither practical nor constitutionally necessary is unjustified. Congress may continue to address civil liberties concerns, for example, by requiring that the remediation measures that have produced the FISC-acknowledged improvement in the FBIs compliance performance be formally included in the statutory fabric of Section 702.

What Congress should not dowhat the FISC has clearly said is constitutionally unnecessary and the Presidents Intelligence Advisory Board has said is impractical and unjustifiedis shackle the critical querying function used to extract the communications collected by this indispensable intelligence tool with a prior requirement for a warrant or other form of court order where queries using US person identifiers are undertaken for the purpose of retrieving foreign intelligence information.

The views expressed in this article are those of the author alone and do not necessarily reflect the position of the Foreign Policy Research Institute, a non-partisan organization that seeks to publish well-argued, policy-oriented articles on American foreign policy and national security priorities.

Image: Photo byHarold MendozaonUnsplash

Excerpt from:
Congress Should Reauthorize a Key Intelligence Tool - Foreign Policy Research Institute

Kansas City police arrested at least four people on invalid warrants in 2021 following its transition from one tracking software program to another, The Missouri Independent has learned.

Its unclear from the records obtained by The Independent how many individuals were mistakenly arrested. The department had been warned of possible technical issues that could lead to false arrests, according to a court official who said those risks were ignored.

In March 2021, then-Deputy Police Chief Mike Hicks emailed staffers at City Hall asking for information technology employees to help troubleshoot issues with the warrant entry and cancellation process.

Over the past several weeks, KCPD has arrested four persons for municipal warrants that showed as valid that were later determined by the Municipal Court to not be valid warrants, Hicks said in the email, which was obtained by The Independent.

He went on: This is a priority due to the liability exposure of arrests made on warrants that were supposed to be canceled in MULES.

MULES is the Missouri uniform law enforcement system, a statewide communications system managed by the Missouri Highway Patrol.

The problem arose when the department switched from its previous warrant program, REJIS, to MULES, according to the email thread, which included members of theKansas City Police Departmentand city officials.

Megan Pfannenstiel, director of the municipal court, replied to others on the thread that a year and a half after the switch she was bringing up many issues of individuals falsely arrested or held because the warrants are not being cleared from MULES.

Pfannenstiel said in the 2021 email that the police department had been warned such an issue was possible when it switched systems.

The group tasked with this project were in such a hurry to cut ties with the REJIS systems they appeared to ignore the raised concerns and have increased the citys costs, Pfannenstiel wrote. Even knowing the potential pitfalls, KCPD went forward with the projects.

Hicks email does not include the names of the affected individuals.

The emails were provided to the Metro Organization for Racial and Economic Equity, or MORE2, by the Kansas City Police Department as part of a request under Missouris Sunshine Law. They were then turned over to The Independent.

Officer Alayna Gonzalez, spokeswoman for the Kansas City Police Department, said in an email to The Independent that determining how long the issue may have gone on would require searching through emails to and from Hicks, who is now retired.

It would take a lot of time, she said, to attempt and identify the length of time this occurred.

Asked about the courts warning before KCPD switched systems, Gonzalez said as technology advances, the department adapts to ensure we are utilizing our web applications and software effectively and efficiently.

MULES continues to be updated by (the Missouri State Highway Patrol) and the transition has been largely successful, she said.

Gonzalez said the department will continue to work tirelessly to ensure the communitys safety and privacy.

In an interview with The Independent, Pfannenstiel estimated between six and 12 people were either mistakenly arrested on warrants that had been canceled or interacted with police and were let go despite having an active warrant for their arrest.

She estimated the people mistakenly arrested were each held for a few hours.

Pfannenstiel said she wasnt sure if similar mistaken arrests happened before KCPD stopped using REJISs software, but said it was less likely because the court also uses REJIS, meaning the systems communicate easily.

The issue stemmed from a workaround after KCPD dropped REJIS. Following the switch, the municipal court generates a report every 15 minutes and sends it to the Missouri Highway Patrol to upload to MULES, but mistakes in the reports led the patrol to be unsure how to update the warrant information, leading to wrongful arrests, Pfannenstiel said.

Ben Trachtenberg, associate dean of academic affairs and a professor at the University of Missouri School of Law, said in an interview that, under U.S. Supreme Court precedent, such an arrest could violate a persons Fourth Amendment right if the police department were found to be reckless.

The Fourth Amendment protects against unreasonable searches and seizures, including arbitrary arrests.

The Supreme Court ruled 5-4 in 2009 that anarrest stemming from a bad warrant isnt necessarily a Fourth Amendment violationif the person was arrested based on reasonable but mistaken assumptions. The amendment does not demand all possible precision, Chief Justice John Roberts wrote in the majority opinion.

Justice Ruth Bader Ginsberg wrote in dissent that the majority underestimated the need for a forceful rule barring evidence obtained through an illegal search from being used against a defendant in court and the gravity of recordkeeping errors in law enforcement.

Jamie Cook, associate general counsel for the police department, suggested a temporary fix in reply to the 2021 email thread. The city, she said, could pay REJIS to transfer all warrant entry and warrant cancellation transactions to MULES.

However, this does cost money, Cook said.

Pfannenstiel told those on the email thread that the court which, at the time, had a budget less than 1/10th the size of KCPDs did not have the funds to pay for the fix.

The city allocated $254.6 million to police during the 2021 fiscal year compared to $18.3 million for the court. In the current fiscal year, the courts budget is less than 1/20th the size of KCPDs.

I do agree that the city is at a substantial risk for arresting someone on an invalid warrant, Pfannenstiel said in her 2021 email, but again, that is not necessarily the courts problem to solve at this point.

The email does not specify how much the solution Cook suggested would cost.

Pfannenstiel told The Independent this week that, at the time of the email exchange, she was frustrated.

I was bringing up these concerns, butnobody was, kind of, acting on it at my speed of trying to say we need to make this a high priority, she said.

Pfannenstiel said she recently received a report where there should have been a warrant out for an individual, but it didnt show up in MULES. An officer came in contact with the individual but didnt know to take them into custody.

But she said that was better than mistaken arrests because individuals liberties werent violated.

The Missouri Highway Patrol did not immediately respond to a request for comment.

Cathy Dean, president of theKansas City Board of Police Commissioners, reached by phone, said she could not comment on the situation because she had not seen the emails in question. She declined to answer any other questions.

Mayor Quinton Lucas office did not respond to requests for comment.

The number of arrests made on faulty or ghost warrants is hard to quantify, but it can affect people for years,according to the Marshall Project, a nonprofit news organization covering criminal justice, and The Guardian newspaper.

One New Orleans man was arrested in 2019 on a 25-year-old warrant. He had also been arrested in 2014, 2015 and 2017 based on a 2006 conviction, though his probation period should have long since expired.

The arrests, which didnt result in further charges, along with minor probation violations cost the man his job three times and his marriage, the news organizations reported.

Being arrested is a huge disruption to someones life, Trachtenberg said, and can be humiliating and undignified.

As a society, we tolerate all of the bad effects of arrests because we think theyre necessary for police functions, at least sometimes, he said, but anytime someone is arrested who isnt supposed to be arrested, theyre suffering all this for nothing.

Pfannenstiel said the only warrants the municipal court issues are for defendants failure to appear. For example, if an individual violates the terms of their probation, the court issues a summons, but if they do not appear, a judge can issue a warrant.

Something as simple as failing to pay a speeding ticket and not showing up to court to dispute it could result in a warrant.

If somebody had some paperwork problem that they then fixed, Trachtenberg said, its going to degrade peoples faith in the system if they get arrested for something when the warrant should have been canceled.

See the article here:
Kansas City police made arrests based on rescinded warrants ... - Kansas Reflector

A man on horseback sufficiently alleged excessive force claims against a Lynchburg police officer who tased him when he fled the attempted service of a permitted warrant, the Western District of Virginia found.

The officer moved to dismiss for failure to state a claim. But U.S. District Judge Norman K. Moon said the mans allegations were plausible and rejected the officers qualified immunity defense for now.

Taking all the allegations as true Plaintiff sufficiently alleges a violation of a clearly established constitutional right, the judge held. However, Defendant [] may raise qualified immunity again at a later stage in the proceedings.

The opinion is Rucker v. Miller (VLW 023-3-455).

In March 2021, the Lynchburg Police Department, or LPD, notified all units that a permitted warrant for an alleged protective order violation was outstanding for Steve Rucker Jr. A warrant is permitted if an officer is required to serve an individual and release them with a summons.

The notice to officers said Rucker was entering the city on horseback. Upon finding Rucker, an LPD officer activated his unmarked cruisers lights and siren. Rucker refused the officers request to stop. A chase ensued through downtown Lynchburg.

The chase lasted about seven minutes and Rucker turned down about a dozen streets. A pursuing officer told Rucker that they just had paperwork for him. Another officer tried to tase Rucker. He missed and caused the horse to speed up to about 25 mph.

A few minutes later, LPD officer Zachary Miller tased Rucker. The horse again sped up and Rucker fell off after two blocks. While Rucker lay in the street, LPD officer Michael Johnson Jr. jumped out of a nearby cruiser but it began drifting toward a retaining wall.

Johnson hopped back into his cruiser, turned it hard right and stepped on the accelerator. The cruiser rolled over Rucker, causing him multiple injuries that required hospitalization.

Rucker sued Miller and Johnson in the Western District of Virginia for excessive force under 42 U.S.C. 1983, as well as state law claims for gross negligence, willful and wanton misconduct and battery.

Arguing that Rucker failed to state a claim and that qualified immunity shielded him from liability, Miller moved to dismiss.

All claims that law enforcement officials have used excessive force deadly or not in the course of an arrest, investigatory stop, or other seizure of a free citizen are properly analyzed under the Fourth Amendments objective reasonableness standard, Moon explained.

The court must consider the severity of the crime at issue, whether the suspect poses a threat to the safety of the officers or others and whether the suspect is resisting arrest or attempting to flee arrest.

A court must also consider that officers must make split second judgements in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation, the judge added.

Moon said the first factor weighed heavily in Ruckers favor because he wasnt wanted for any crime when the pursuit began.

Plaintiff does not suggest he was resisting arrest, but merely avoiding service of a summons. Plaintiff argues that he was also not fleeing arrest because there was no arrest to begin with. Again, considering the allegations in the light most favorable to Plaintiff, the factors demonstrate a plausible claim of excessive force against Defendant Miller.

U.S. District Judge Norman K. Moon

The circumstances of the alleged protective order violation werent detailed; nothing established that Rucker committed or was suspected of committing any violent or other serious crime.

The second factor also favored Rucker. Moon noted that the allegations didnt indicate Rucker was armed, violent or a threat to officers or the public, nor was there a suggestion that Rucker was riding in a violent or reckless manner.

The officer claimed that riding a horse at night through traffic posed a danger. Moon wasnt swayed but acknowledged that further facts may support a different conclusion.

The third factor also tipped in Ruckers favor, Moon said.

Plaintiff does not suggest he was resisting arrest, but merely avoiding service of a summons, the judge noted. Plaintiff argues that he was also not fleeing arrest because there was no arrest to begin with. Again, considering the allegations in the light most favorable to Plaintiff, the factors demonstrate a plausible claim of excessive force against Defendant Miller.

Moon then pointed out that, according to the 4th U.S. Circuit Court of Appeals, using a taser is a serious use of force that should only be deployed in dangerous situations.

The Fourth Circuit further held that [t]asers may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk and that is reasonably likely to be cured by using the taser, the judge wrote.

Based on its analysis, Moon found that Rucker didnt pose a safety risk to the officer or the public to warrant use of a taser.

Rucker claimed he sufficiently alleged a violation of a clearly established constitutional right. As such, Miller wasnt entitled to qualified immunity. Rucker also contended that the court should wait to decide on qualified immunity until the record was more developed.

Moon acknowledged that excessive force by police is a clearly established violation of the Fourth Amendment and that use of a taser except in exceptional circumstances is excessive force.

Thus, as Plaintiff has sufficiently alleged an excessive force violation and Defendant is not entitled to qualified immunity at this stage in litigation, Defendant Millers motion to dismiss will be denied as to the excessive force claim, Moon wrote, adding that the officer may raise qualified immunity at a later stage in the proceedings.

Richmond litigator Mark Dix, who represents Rucker, said his client was hospitalized for almost a month and incurred more than $288,000 in medical bills from his injuries.

We are very confident that qualified immunity would not provide any kind of obstacle to us getting to the jury, he told Virginia Lawyers Weekly. The Fourth Circuit has been clear as day since 2016 in Armstrong v. Village of Pinehurst that you do not use a taser to enforce compliance.

He pointed out that his brief cites scholarship about qualified immunity being based on factual fiction.

It turns out that this doctrine of qualified immunity was based upon somebody altering the United States Code in the late 1800s or early 1900s, but the Fourth Circuit found it was bound to apply stare decisis, Dix explained. At some point, courts are going to have to grapple with the sordid history of how 1983 was altered.

He noted that there are cases about the validity of qualified immunity making their way to the U.S. Supreme Court.

Dix said he hasnt received an offer of settlement from the city. The case now proceeds to discovery.

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Tased horsemans excessive force claims clear bar - Virginia Lawyers Weekly

BANGLADESHS next general election is hanging over the nation like the proverbial sword of Damocles. The nation is most likely to slide into a nightmare unless the election is held peacefully. The Awami League regime wants it according to the 15th amendment that it adopted in June 2011 with its absolute majority and many legal, judicial and constitutional questions concerning it. It held two elections under it. Both were controversial.

The opposition parties led by the Bangladesh Nationalist Party will not participate in an election under the 15th amendment to the constitution of Bangladesh because they believe that the amendment is the Awami Leagues constitutional insurance for the one-party BKSAL vision and the BNPs death trap. It, therefore, wants the prime minister to hand power to the caretaker government to hold the next general election. The BNP would not mind if the caretaker government is called by any other name as long as the election-time government is not the Awami League government.

The Awami Leagues stand would appear to be the right way to hold the election for anyone unaware of Bangladeshs history and politics. The Awami League would even receive a pat on the back for its faith in the constitution, something commendable in any developing country. Nevertheless, the story is quite different to those aware of Bangladeshs history and politics.

In 1975, the first AL regime changed the 1972 constitution from a parliamentary democracy into a one-party or BKSAL dictatorship by adopting the fourth amendment with its absolute majority in the parliament in a matter of minutes. The fourth amendment met its tragic end following the events of August 15, 1975 and was annulled by the fifth amendment, which restored the multi-party system in the constitution.

The Awami League again flagged that it believed the constitution could be amended or changed at any time or in any manner to serve its political interests during the BNPs 199196 term. The Awami League with the Jatiya Party and Jamaat as allies brought the country to a standstill with 173 days of general strike and violence to amend the constitution to adopt, believe it or not, the caretaker government system as the election-time government in place of the constitutionally mandated government of party in power. Sheikh Hasina had such profound faith in the caretaker government system in that era that she wanted it to be in the constitution forever.

The BNP acceded to the Awami Leagues demand for the caretaker government after winning the February 1996 election by a landslide that the Awami League-Jamaat-Jatiya Party abstained on the caretaker government issue. The BNP adopted the 13 or the caretaker government amendment, in March 1996 to save the country and democracy. It held the first election under the caretaker government system in June 1996 and lost it to the Awami League marginally. The BNP paved the way for the Awami League to come to power for the first time after 26 years although it could have remained in power for a full term, constitutionally.

The Awami League, after winning the December 2008 election by a two-thirds majority, saw the opportunity for which it had been waiting since 1975, the opportunity to amend the constitution to re-install its BKSAL vision in it. The Awami League first declared the 13th or the caretaker government amendment, the fruit of its 199196 movement, unconstitutional through the High Court that in a ruling in 2004 declared it constitutional and then adopted the 15th amendment that is the Achilles heel proof constitutional guarantee of its BKSAL vision.

The Awami League regime made mincemeat of the independence of the judiciary to declare the 13th amendment unconstitutional and illegal through Chief Justice Khairul Huq in May 2011. The prime minister then made mincemeat of the independence of the legislature when, as the head of the executive branch, she acted as both the judge and the jury to enact and adopt the 15th amendment in June 2011. The AL regime, thus, trashed the principle of separation of powers enshrined in the constitution.

A great deal has already been said and written that exposed the 15th amendment as a story of intrigue and conspiracy. Therefore, the Awami Leagues dismissal of BNPs demand for election under the caretaker government system which is also supported by most of the people on constitutional grounds is palpably untenable, given its history of treating the constitution. Clearly as daylight, the Awami League wants the 15th amendment not because of its faith in the constitution but because it will not lose the election under it. The reasons are self-explanatory.

The 15th amendment will allow the AL regime to hold the election under Sheikh Hasina as the prime minister. The parliament will remain unannulled under it, something unheard of in a parliamentary election anywhere. This would allow the Awami League and its allies who hold all 300 seats in the present parliament to nominate a member of parliament in each of these seats in the next election if they want. They cannot, therefore, dream of a more uneven field against their opponents in a general election other than one under the 15th amendment.

There is even worse news for the BNP-led opposition in an election under the 15th amendment. It is now palpably evident that the Election Commission will support the Awami League and its allies candidates to tilt in an election under it. So will the law enforcement agencies and the civil bureaucracy. The members of these two critical institutions for holding a general election are now more loyal and dedicated to the Awami League than AL members and activists.

There are, thus, zero incentives for the BNP and allies to contest in an election under the 15th amendment unless it wanted to commit hara-kiri. The Awami Leagues determination to reject the BNPs demand for the caretaker government and hold the next general election under the 15th amendment, instead, is also based upon the fear that it would not only lose an election under the caretaker government or its equivalent by a landslide, but the lives of its leaders and supporters would also be at risk. Many AL leaders fear that the party would be wiped out the very night it loses the election.

The Awami League has been in power for 14 years. Ten of these years were practically through non-elections. The voters of the country would be desperate to vote in the next general election having not voted in the last two elections. More importantly, the next general election will also be one for which the BNP which has suffered persecution including enforced disappearances, incarcerations and framed and fictitious court cases in hundreds of thousands and extrajudicial killings, has finally put its act together. Its supporters and allies backed by the people have come out to the streets in a movement that shows the potential to become the most powerful political movement since the war of liberation.

The millions of supporters of the BNP and its allies backed by people would now fight not just for their democratic, human and electoral rights but also for their survival aware that Bangladeshs external stakeholders are supporting their causes. The AL regime is alone but determined to hold another election like the two previous ones. Bangladesh will, thus, face an existential crisis very soon unless it succeeds in holding a free, fair and peaceful general election in which all eligible voters can vote.

The Awami League introduced the caretaker government system in Bangladeshs politics during the BNPs 199196 term as the panacea for a free and fair election. The caretaker government system is also one of the very rare instances in the politics of Bangladesh upon which the Awami League, the Bangladesh Nationalist Party, the Jatiya Party and Jamaat had reached a political consensus. The caretaker government system or its equivalent mechanism only can now stop the proverbial sword of Damocles from falling on Bangladesh. The ball is now in the Awami Leagues court to put the nations interest before its own.

M Serajul Islam is a former career ambassador.

See more here:
Ball is in AL's court - newagebd.net

Shhhh. Did you hear that noise? Another shoe dropped in the ongoing drama surrounding the police raid on the Marion County Record.

Reporter Deb Gruver has sued police Chief Gideon Cody. According to Kansas Reflector editor Sherman Smiths story: A lawsuit Gruver filed Wednesday in federal court that says Cody had no legal basis for taking her personal cellphone. She is seeking damages for emotional distress, mental anguish and physical injury as a result of Codys malicious and recklessly indifferent violation of her First Amendment free press rights and Fourth Amendment rights against unlawful search and seizure.

This counts as the most recent footwear to hit the linoleum after Marion County attorney Joel Ensey withdrew the search warrant that prompted the newspaper raid. All seized equipment was returned. Smaller shoes, perhaps toddler-sized, hit in subsequent days as the Records lawyer demanded the destruction of evidence copied from newspaper computers.

A story like this, one that mixes frothy small-town politics with weighty constitutional issues, comes along once in a generation. Whole closets full of shoes wait offstage, just waiting for an opportunity to fall from above.

A fuzzy slipper will tumble down with nary a warning: Marion Police Chief Gideon Cody is battling a fraud suit filed Feb. 27 in Leavenworth County over his real estate dealings.

The Record published that story just this week.

The first few days after the Marion raid, I followed Google News attentively to see what outlets had picked up the story and what angles they chose to pursue. You could watch in real time as reporters and editors struggled to make sense of the raid, the stakes and the players. The Reflectors inaugural storyAug. 11 set the parameters for a day or two. Then, as usually happens, other reporters began to poke and prod.

The Reflector's inaugural story Aug. 11 set the parameters for a day or two. Then, as usually happens, other reporters began to poke and prod.

On Aug. 13, KSHB-TV reported that Cody had taken the Marion job after retiring from the Kansas City, Missouri, Police Department.

Look at this, I told my husband. This is just the beginning. Watch what happens now.

I knew that once reporters got wind of a story, especially one as juicy and multifaceted as the Marion raid, they were going to follow every lead. If Cody had faced allegations in his past of impropriety, we would know soon enough.

And so we did. On Aug. 16, the Kansas City Star headline read: Before Kansas newspaper raid, police chief left KCPD under cloud, facing discipline. The Record followed with its own comprehensive coverage.

After the raid, I wrote that we needed to be careful about the facts in this case and in how we treat the individuals involved. I still believe that. Folks in small towns and the rest of the world must have the option of retaining their privacy when national outlets come calling. But we also cant ignore that both restarauter Kari Newell and Cody have seized on the opportunity to make their voices heard.

Cody told the Washington Post: If you live in Marion, you understand. If you dont live in Marion, you dont understand.

Newell told the Star: I dont think I can be angry at myself for standing up for myself.

With self-righteous characters like this at its center, the drama doesnt look to burn itself out anytime soon. Instead, smouldering embers will ignite innumerable small blazes, and reporters from state and national news media will doggedly cover every one. This is how news works. One way or another, this is how news has always worked. Reflector staff members will follow along, doing our best to distinguish sparks from flames.

More shoes will drop, to remix the metaphor.

The biggest shoe that Im waiting for is the newspapers potential suit against city and law enforcement officials. Bernie Rhodes, an attorney for the Record, has been keeping a close watch on developments. Given the scale of the story and the implications of authorities actions, one can only speculate.

We will hear more about Marion city leaders too, not to mention Magistrate Judge Laura Viar. Shes escaped the harshest possible coverage so far, but her approval cleared the way for this gross violation of free speech rights.

Stay tuned, friends. Watch out for those sandals and high heels and cowboy boots.

Clay Wirestone is Kansas Reflector opinion editor. Through its opinion section, Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.

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Lawsuit against police chief just the latest shoe to drop in Marion ... - Kansas Reflector

As Hurricane Idalia tore through Madison County, just south of the Georgia-Florida border, residents flocked to the local Madison Fl Word of Mouth Facebook page.

Anybody know where to get diesel? Anyone at the Madison school shelter? Who do we tell about down power lines?

The questions, along with updates about blocked roads and photos of downed trees, kept pouring in as the storm passed overhead and into Georgia. In a small town like Madison the seat of Madison County the Facebook page has helped fill in gaps in local news coverage, said creator Jill King Spicer.

Madison County, population 18,000, has two newspapers, The Madison County Carrier and The Enterprise-Recorder, which publish twice a week. For breaking news events like storm coverage, residents often turn to WCTV a CBS affiliate based more than 50 miles away in Tallahassee or the Word of Mouth Facebook page, Spicer said. She started the page five years ago to help the community access information they might not have otherwise been able to find.

Most people, especially people new to the community, have expressed gratitude for the page as they were able to find stuff they otherwise didnt know how to get, Spicer told Poynter in an interview over Facebook Messenger.

Idalia is one of the biggest storms the area has ever seen. The National Weather Service in Tallahassee called it an unprecedented event because no major hurricane has been recorded going through the nearby Apalachee Bay and into Floridas Big Bend region. On Wednesday, Tri-County Electric announced that 100% of its systems had been impacted, leaving 20,000 meters without power.

Spicer is one of those affected and said she also has very little service. Downed trees blocked roads into town, and one fell on her carport.

In regions where there isnt a robust news presence, local residents often turn to social media. While places like Facebook pages can help people find up-to-date information quickly, they can also perpetuate unverified rumors and misinformation. The information found on those pages may also not be as comprehensive as that found in a traditional newspaper.

Spicer and the pages two other moderators are not professional journalists and work in careers unrelated to media. Though people occasionally post inaccurate information to the Word of Mouth page, Spicer said that they are able to monitor it pretty well. She estimated that between the three of them, they usually have the page covered 20 hours a day.

Pinned to the top of the Facebook page Wednesday were posts from the local sheriffs office, the electric company, and the countys emergency management department. Residents have also been sharing information about store openings and businesses that are offering storm-related repairs.

Madison is a small town, a close community, and everyone knows everyone, so by having my page, the majority of the people are able to find resources by mostly word of mouth, Spicer said. It takes me and two other ladies a lot of volunteer time to make it successful, but we do it for our community.

By Angela Fu, media business reporter

A stack of the weekly edition of the Marion County Record sits in the back of the newspapers building, awaiting unbundling, sorting and distribution, Wednesday, Aug. 16, 2023, in Marion, Kan. (AP Photo/John Hanna)

The police raid of the Marion County Record, which garnered national outrage and support for the small town Kansas newspaper, has spurred a federal lawsuit filed against the citys police chief by a reporter.

As reported by The Kansas City Star, Record reporter Deb Gruver filed suit this week against police chief Gideon Cody, claiming Cody caused emotional distress, mental anguish and physical injury.

Gruver is seeking damages for the deprivation of her constitutionally protected First Amendment rights as a reporter and the violation of her Fourth Amendment rights against unreasonable search and seizure.

She contends that as she reached for her cellphone to call the papers publisher, Cody snatched the phone from her hands, injuring her finger in the process.

The lawsuit also claims that under the search warrant, there was no factual basis for seizing Gruvers cellphone, as she was not the reporter whose work was being investigated.

Gruver is seeking a minimum of $75,000 in compensatory damages and $75,000 in punitive damages from Cody.

By Annie Aguiar, audience engagement producer

Speaking of the raid on the Marion County Record, an opinion piece in the Los Angeles Times takes issue with the definition of computer crimes used to justify the search warrant.

The search warrant for the raid listed violations including unlawful acts concerning computers, a statute typically used for charges related to malware or bank account fraud.

But these laws are so vague that they can be deployed to penalize reporters for using computers to find information online as part of routine journalism, write Reporters Committee for Freedom of the Press executive director Bruce D. Brown and Technology and Press Freedom Project director Gabe Rottman.

Brown and Rottman point to other cases in which computer crimes were used to target news publishing: the St. Louis-Dispatch reporter targeted in 2021 as a hacker by the governor of Missouri under computer crime laws for discovering a flaw in a state website, and a 2019 lawsuit against a California blog for reviewing information on a city Dropbox page.

With more newsgathering now taking place online, the endlessly elastic nature of computer fraud laws is a special problem for the press, Brown and Rottman write. The temptation for public officials to employ these laws against reporters especially those uncovering news they would prefer hidden will be difficult to resist.

By Annie Aguiar, audience engagement producer

Like many others on Wednesday, I saw the tweet from Caitlyn Yaede, the Tar Heels print managing editor. The Daily Tar Heels front page was spreading far and wide.

I shed many tears while typing up these heart-wrenching text messages sent and received by UNC students yesterday, Yaede wrote of the accompanying image of the front page filled with bolded, all caps messages from students who were on the University of North Carolina at Chapel Hills campus Monday, during a shooting. Beyond proud of this cover and the team behind it.

I read the first few lines of the front page and launched into work mode reaching out to a few people at the independent student newspaper in hopes that theyd give me a few minutes of their time. As I waited to hear back, I studied the front page. I felt panic in my body as I took in the entirety of the text. I quickly corrected myself: What I felt could not compare to what Yaede and her peers felt that day. But I could imagine the anguish behind those text messages.

After we published the story behind the front page, many people shared their reaction and commented on the editorial decisions made by these student journalists. The Daily Tar Heel staff was showered with praise by many people, including professional journalists.

The front page even drew the attention of the Biden administration. On Thursday, I was surprised to see President Joe Bidens official X account tweet a photo of Bidens hand holding a phone with a photo of the front page. This was the front page of UNC-Chapel Hills Daily Tar Heel, the tweet read. No student, no parent, and no American should have to send texts like these to their loved ones as they hide from a shooter. Ill continue to do all I can to reduce gun violence and call on Congress to do the same.

It was a pretty striking thing to see the president of the United States give what appeared to be a nod to student journalism.

By Amaris Castillo, contributor

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In the wake of Idalia, residents of one Florida town are turning to ... - Poynter

What to Know

Those attending outdoor parties or barbecues in New York City this weekend may notice an uninvited guest looming over their festivities: a police surveillance drone.

The New York City police department plans to pilot the unmanned aircrafts in response to complaints about large gatherings, including private events, over Labor Day weekend, officials announced Thursday.

If a caller states theres a large crowd, a large party in a backyard, were going to be utilizing our assets to go up and go check on the party, Kaz Daughtry, the assistant NYPD Commissioner, said at a press conference.

The plan drew immediate backlash from privacy and civil liberties advocates, raising questions about whether such drone use violated existing laws for police surveillance

Its a troubling announcement and it flies in the face of the POST Act, said Daniel Schwarz, a privacy and technology strategist at the New York Civil Liberties Union, referring to a 2020 city law that requires the NYPD to disclose its surveillance tactics. Deploying drones in this way is a sci-fi inspired scenario.

Schwarz further elaborated in a subsequent statement saying: Deploying surveillance drones over New Yorkers gathering with their friends and families to celebrate Jouvert is racialized discrimination and it doesnt make us safer. The NYPD is playing fast and loose with our First and Fourth Amendment protections and continues to undermine the POST Act requirements to transparently disclose their surveillance technology policies -- and follow them. Pervasive drone surveillance can be easily misused to exploit and discriminate against New Yorkers, putting all of our privacy at risk. As the NYPD keeps deploying these dystopian technologies, we must push for stricter guardrails especially given the departments lengthy history of surveilling and policing Black and Brown communities.

The move was announced during a security briefing focused on Jouvert, an annual Caribbean festival marking the end of slavery that brings thousands of revelers and a heavy police presence to the streets of Brooklyn. Daughtry said the drones would respond to non-priority and priority calls beyond the parade route.

Like many cities, New York is increasingly relying on drones for policing purposes. Data maintained by the city shows the police department has used drones for public safety or emergency purposes 124 times this year, up from just four times in all of 2022. They were spotted in the skies after a parking garage collapse earlier this year and when a giveaway event devolved into teenage mayhem.

Mayor Eric Adams, a former police captain, has said he wants to see police further embrace the endless potential of drones, citing Israels use of the technology as a blueprint after visiting the country last week.

But as the technology proliferates, privacy advocates say regulations have not kept up, opening the door to intrusive surveillance that would be illegal if conducted by a human police officer.

One of the biggest concerns with the rush to roll out new forms of aerial surveillance is how few protections we have against seeing these cameras aimed at our backyards or even our bedrooms, said Albert Fox Cahn, the executive director of the Surveillance Technology Oversight Project (STOP).

The NYPD did not respond to an email seeking further information about its drone policies.

In response to a request for comment, a spokesperson for Mayor Adams shared a link to new guidelines that make it easier for private drone operators to fly in the city, but which do not address whether the NYPD has any policies for drone surveillance.

Around 1,400 police departments across the country are currently using drones in some form, according to a recent report from the American Civil Liberty Union. Under federal rules, they are generally limited to flying within the operators line of sight, though many departments have requested exemptions. The report predicted the use of drones was poised to explode among police departments.

Cahn, the privacy advocate, said city officials should be more transparent with the public about how police are currently using drones, with clear guardrails that prevent surveillance overreach in the future.

Clearly, flying a drone over a backyard barbecue is a step too far for many New Yorkers," Cahn said.

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NYPD using drones to monitor NYC backyard Labor Day parties, spurring privacy concerns - NBC New York

GRAND RAPIDS, Mich. The City of Grand Rapids is dismissed, says U.S. District Judge, Paul Maloney, however, Christopher Schurr will still face allegations in a lawsuit filed against both parties relating to the death of Patrick Lyoya.

The lawsuit, filed by attorneys for Peter Lyoya who acts as Personal Representative for the Estate of Patrick Lyoya in December of 2022, raised a Monell municipal liability claim, which alleges a municipality is liable for an official's actions if those actions violated a constitutional right and stem from an illegal policy, practice, or the municipality's deliberate indifference to a failure to train or supervise the officer.

Attorneys originally claimed they had "overwhelming evidence" of racial profiling and unnecessary force against Patrick Lyoya on the day he died, and could show the City of Grand Rapids (the City) should be liable.

Judge Maloney disagreed in part.

According to the lawsuit, the City received 79 citizen complaints of excessive use of force against the Grand Rapids Police Department between June 1, 2015 and May 21, 2020.

Court documents say that while these complaints are a matter of record, their existence does not show possible liability on the part of the City in this case as the plaintiff was not able to provide specific evidence demonstrating Lyoya's death was directly caused by a municipal custom or policy.

"The complaint instead focuses on the Citys treatment of Schurr after he allegedly used excessive force, not before," writes Maloney. "Indeed, the complaint fails to identify any connection between the lack of training and Schurrs specific use of force on Patrick."

READ MORE: FOX 17's coverage of the shooting death of Patrick Lyoya

As for not dismissing the suit against Christopher Schurr, Maloney writes the former officer may not be protected by qualified immunity in this case, and the courts must make that determination first.

The opinion and order regarding the motions to dismiss says the Plaintiff was able to provide a plausible argument showing Lyoya's Fourth Amendment Rights may have been violated at the time of his death.

You can read that full opinion here:

Christopher Schurr will face the Court of Appeals regarding the criminal charges relating to Patrick Lyoya's death on September 6. There is no date published for when this lawsuit will continue arguments.

Should the appellate court deny Schurr's appeal, the criminal trial is set to begin on October 24.

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City of Grand Rapids dismissed, lawsuit against Christopher Schurr ... - FOX 17 West Michigan News

Federal safety officials have just made good on one of their promises by issuing a proposed rule that would give a designated union representative the right to accompany an OSHA inspector during a facility walkaround regardless of whether the representative is your employee or the facility is a union shop. What do you need to know about this proposed rule released today, what can you do in response, and what are the seven key steps you can take to prepare?

What is the Proposed Rule?

OSHAs new proposed rule alters the current regulation by removing the explicit regulatory requirement that an employee representative be an employee of the employer being inspected. Instead, the proposed rule now states that the representative(s) authorized by employees may be an employee of the employer or a third party. The proposed rule also authorizes a third party who can be used to assist OSHA during an inspection based on their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills.

As we discussed earlier this year, the proposed rule mirrors a similar rule in place during the Obama administration implemented through a 2013 letter of interpretation known as the Fairfax Memo rather than going through the formal rulemaking process OSHA is using now until it was rescinded by the Trump administration in 2017. In the Fairfax Memo, OSHA declared that workers at a worksite without a collective bargaining agreement may designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative.

OSHAs proposed rule mirrors its position in 2013 that the OSH Act authorizes participation in the walkaround portion of an OSHA inspection by a representative authorized by [the employers] employees, without any limit on whom the employees can choose for a representative. Similarly, the proposed rules reasoning relies on the OSHA Act and its longstanding regulation that allows the agencys compliance officer to decide to allow a non-employee to participate in an inspection of an employers worksite if it is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.

This proposed rule goes even further than OSHAs position in 2013, where OSHA contemplated only non-employees assisting in the inspection if they were an industrial hygienist or a safety engineer. The new proposed rule would allow employees to even designate third-party interpreters to accompany OSHA during the inspection of a workplace.

When Will the Proposed Rule Go Into Effect?

Most proposed rules go into effect no earlier than six months from when they were proposed. OSHA has opened up a comment period through October 30 for employers, employee advocates, unions, and other groups to submit public comments on the proposed rule. Then, the agency will finalize and publish its final rule in the Federal Register with an effective date noted in that final rule.

Even if the proposed rule becomes a final rule, remember that business groups challenged the Fairfax Memo and OSHAs use of non-employee representatives till the practice was abandoned by OSHA in 2017. This time around, the final rule will need to be formally challenged in the court system to have the rules enforcement stayed, much like OSHAs vaccine ETS and the Federal Contractor Vaccine Mandate.

Remember also that if you do business in a state wherea state agency rather than federal OSHAenforces the OSH Act (such asCalifornia,Kentucky, North Carolina, or elsewhere), those state agencies employee representative regulations and timelines to adopt the eventual federal rule may differ.

Do Employers Have a Say in OSHAs Rulemaking Process?

Yes. Starting August 30, employers may submit comments on the proposed rule. Comments, along with any submissions and attachments, should be submitted electronically atthe Federal e-Rulemaking Portal. Follow the instructions online for making electronic submissions. After accessing all documents and comments in the docket (Docket No. OSHA-2023-0008), check the proposed rule box in the column headed Document Type, find the document posted on the date of publication of this document, and click the Comment Now link.

What Can Employers Do? Heres Your 7-Step Action Plan

As we noted in 2013 when the Fairfax Memo was issued, there is an obvious concern that such a policy will encourage unions to get involved in OSHA inspections and complaints in non-organized facilities as a means of gaining access to the facility when they normally would not have such access. This change in policy could be a big boost to union organizing and has been widely applauded by most, if not all, labor unions.

Its now 10 years later, and as we recently discussed here, strike activity and union organizing is expected to continue to increase significantly. Thus, its important for employers to take action in light of this proposed rule. Heres a seven-step action plan:

1. Know Your Rights

Keep in mind that employers have Fourth Amendment and state property rights, and nothing in the proposed new rule changes that. Even under the new rule, OSHA can only inspect worksites with the employers consent unless the agency has a warrant. Therefore, employers are still entitled to control how OSHA accesses company property and the areas covered during an inspection unless the agency has a warrant. Work with your counsel if you have questions and to understand the ramifications that might result if you push the agency representatives to demand a warrant.

2. Revisit Your Procedures For When OSHA Shows Up to Conduct an Inspection

Review these comprehensive OSHA Inspection FAQs, then put together a plan for when OSHA arrives at your worksite. For example, designate one supervisory employee to be the contact person when OSHA arrives and ensure OSHAs inspector stays within the inspections scope. A designated manager or coordinator should stay with each OSHA compliance officer at all times during the inspection, except during interviews with non-supervisory employees who do not request a managers presence. It is a strategy question whether to use the safety manager in this role. Be sure you are ready to take side by side photos, sampling, and tests when OSHA requests to do so.

3. Know How to Survive an OSHA Inspection

Review our Focus 4 Threshold Tips for Surviving an OSHA Inspection that every employer should know: (1) dont permit any manager or supervisor interviews by OSHA on the day the agency arrives; (2) dont give federal OSHA any documents other than your OSHA 300 logs, 300A summaries, 301 forms, and relevant safety data sheets (SDS) on the first day of the inspection; (3) take the OSHA inspector straight to and straight from the area of the referral, complaint, or even the pertinent area of an emphasis program inspection; and (4) ensure your employees are refraining from any high hazardous activities occurring while OSHA is present.

4. Protect Your Trade Secrets

Even if your procedures during an OSHA inspection are not fully developed, a top priority is to ensure that site management knows what areas of the worksite contain trade secrets or other confidential commercial information that you would not want a third-party to see or access. For those areas, you should insist that no third party access these areas, and OSHAs photos should be marked trade secret.

5. Establish or Recommit to a Safety Committee

If your worksite does not have a safety committee already in place, consider establishing one ASAP. That committee arguably would hold the representative role in walkaround inspections, and employees may designate a safety committee member as their representative instead of a union member. Note that when setting up safety committees, you must be aware of the National Labor Relations Act and unfair labor practice concerns if the safety committee is not properly implemented. So, youll want to seek legal counsel before implementation.

6. Decide if the penalties for refusal warrant a denial of a Third-Party Representatives Access to your worksite

After you have followed the steps above, you may decide as a matter of policy to refuse requests for third parties to accompany OSHA. One option is to advise the OSHA compliance officer that they may conduct their inspection, but you are choosing to deny entry to any third party. You have the Fourth Amendment right to refuse a walkaround inspection on any basis and require OSHA to get a warrant to conduct its inspection. But you should note that OSHA may treat this refusal to allow a third-party on-site as a refusal of entry and seek a warrant. Seek legal counsel to decide if refusing entry is the right option for you.

7. Prepare for an Increase in Labor Actions and Union Organizing

See our prior Insight for a thorough discussion of what is happening across the country on the labor front and things you can do to immediately and efficiently respond to union organizing and work stoppages. For the most up to date information, make sure you review our Labor Relations Insights, since there has been much activity from the NLRB in the recent days and weeks. On the front end, your action plan may include maintaining effective lines of communication with employees, consistently applying work-related policies and procedures, having an effective complaint resolution process in place, and proactively reviewing compensation packages to ensure you remain competitive.

Conclusion

You should understand your rights if OSHA arrives at your worksite and have a plan before you are asked to allow a non-employee to accompany an inspector at your worksite. If you have any questions, contact the authors of this Insight, your Fisher Phillips attorney, or any member of our Workplace Safety Practice Group or Labor Relations Practice Group. Make sure you are subscribed toFisher Phillips Insight Systemto get the most up-to-date information on OSHA issues.

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OSHA's Proposed Rule Would Allow Union Walkthroughs of All ... - Fisher Phillips

Are they really OK if they obey laws?

In the Aug. 10 edition, Nickie Clawson wrote regarding the incident with a Black couple at Winco: Obviously, this older Black couple stole something. It doesnt matter if you are white, Black, or brown if the deputy tells you to put your hands behind your back, do as you are told. Obey the laws and you wont get hurt.

Assuming Ms. Clawson is white and conservative, if she had minorities as friends, she would not have written a letter like this. It always astounds me as to the availability of the Internet to see how police have treated minorities over the years, but Ms. Clawson picks one incident to show where it is always the minoritys fault. Ms. Clawson did not respond to my letter weeks ago when I wrote that only the husband and not the wife was arrested who is allowed to video the incident.

Lets test Ms. Clawsons opinion that if minorities would just obey the laws, everything would be OK. In 2013, the sheriffs department had an agreement with the Department Of Justice that requires the sheriff to provide bias-free policing and to train its deputies on stops, searches and detention so that they do not make arbitrary searches and only make stops warranted by reasonable suspicion.

The Department Of Justice found the following: African Americans, and to a lesser extent Latinos, are more likely to be stopped and/or searched than whites, even when controlling for factors other than race, such as crime rates. The widespread use of unlawful backseat detentions violating the Fourth Amendment and LASD policy [including] a pattern of unreasonable force, including a pattern of the use of force against handcuffed individuals.

There were African-American New York policemen that were treated differently due to their race when they were off-duty: The officers said this included being pulled over for no reason, having their heads slammed against their cars, getting guns brandished in their faces, being thrown into prison vans and experiencing stop and frisks while shopping. The majority of the officers said they had been pulled over multiple times while driving. Five had guns pulled [on them]. (Off Duty, Black Cops In New York Feel Threat From Fellow Police, Reuters, December 2014.)

Its up to the reader to believe Ericksons opinion or the facts presented.

On VP, inflation, AVUHSD board

I made a list of all Vice President (Kamala) Harriss accomplishments for presentation here.

Bidennomics lower inflation same high prices what a deal.

Reading Antelope Valley Press articles on Antelope Valley Union High School District board meetings makes me wonder if Board President Hughes is an acolyte of former board president Bob Davis. Mr. Hughes my way or the highway of leadership style are reminiscent of Bob Davis.

I read The Hangar will be converted into a soccer facility via major renovations costing $11 million. While I hate to see losing it as a baseball stadium, it may as well be repurposed for soccer, considering the billionaires of MLB abandoned Lancaster.

Energy Secretary Jennifer Granholm is hitting us in the pocketbook once again. This time she is attacking ceiling fans, requiring more energy efficient fans. The DOE says annual savings would be $39 per year or a whole $3.25 a month assuming you believe the DOE. Your current $150 ceiling fan will become your new $250 energy efficient ceiling fan.

How does a resident of Lancaster find out how Measure AV funds are spent? Ive done google searches but come up empty.

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Letters From Readers, Aug. 31, 2023 | Opinion | avpress.com - Antelope Valley Press