Category Archives: Fifth Amendment

Last Tuesday the Centers for Disease Control and Prevention (CDC) issued a new moratorium on evictions as part of an effort to fight the coronavirus pandemic. This represents a stark reversal from the administrations repeated statements that the CDC lacked the statutory authority to issue such a moratorium. While most of the public controversy over the CDCs action has been around its legality, another important question remains unanswered: What process did the Biden administration use to change its legal position? Although many questions remain unanswered, there is troubling evidence that either the Department of Justice was not consulted on a major legal issue or, in the alternative, the Biden administration has misrepresented its legal position to the public. Both of these possibilities raise questions about the Biden administrations commitment to restoring the norms of executive-branch functioning.

In September 2020, the CDC issued a nationwide moratorium on evictions, justifying its action on the grounds that evictions would spread the coronavirus and that the moratorium was thus a valid exercise of its power to make and enforce such regulations as in [the agencys] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases. The moratorium was challenged on constitutional and statutory grounds by rental-property owners and, in May, a judge in the U.S. District Court for the District of Columbia held that the order exceeded the CDCs statutory authority but stayed the judgment pending appeal. The U.S. Court of Appeals for the District of Columbia Circuit upheld the stay and, in an unsigned, 5-4 decision, the Supreme Court denied a request to lift the stay, allowing the moratorium to continue until its planned expiration at the end of July.

But the Supreme Court decision was not an endorsement of the moratoriums legality. In a one-paragraph statement, Justice Brett Kavanaugh, who voted to preserve the district court stay, wrote that he agree[d] with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium and that, in his view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31. The reason Kavanaugh did not vote to vacate the stay and enjoin the moratorium was that the moratorium was set to expire a month later, and those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds. Kavanaugh thus let the moratorium continue, but it appears that a majority of the courtKavanaugh and the four justices who would have granted the staybelieves that the CDC lacks the statutory authority to issue a nationwide eviction moratorium.

The Biden administration appeared to have initially understood the decision in the same way, stating, as late as July 29, that the Supreme Court has made clear that [the CDC eviction moratorium] option is no longer available. But Congress failed to act to authorize an extension of the moratorium, and progressive Democrats ratcheted up the pressure for the administration to act unilaterally to provide eviction relief. The Biden administration then abruptly changed positions, deciding sometime this past week that the CDC did, in fact, have the legal authority to issue a new, albeit somewhat narrower, moratorium. When asked about the legal basis for his administrations about-face, Biden asserted that [t]he bulk of the constitutional scholarship says that [the new moratorium is] not likely to pass constitutional muster but that, at a minimum, by the time it gets litigated, it will probably give some additional time for renters to get federal rental-relief payments. In other words, there is a possible, albeit not probable, case for the moratoriums legality, and by the time the courts weigh in one way or the other, the moratorium will have protected at least some renters from eviction. Unsurprisingly, the original eviction-moratorium plaintiffs have challenged this new moratorium, arguing that the administrations changing legal position is evidence of bad faith.

There are many legal issues to unpack around the new moratorium. Most obviously, theres the question of its substantive legality. The main statutory question, around which the litigation over the original moratorium centered, is whether the broadly but vaguely worded 1944 Public Health Service Act gives the CDC the power to block evictions on a mass basis in the service of contagious-disease prevention. There is also a constitutional question: Would the eviction ban constitute a taking under the Fifth Amendment that would require just compensation for landlords?

In addition, what, if any, guidance should the government take from the Supreme Courts actions on the moratorium question so far? On the one hand, the court has not officially held that the CDC lacks the statutory authority to issue a nationwide eviction moratorium, and the administration has emphasized this point in its defense of the new moratorium. On the other hand, there appear to be at least five votes to strike down the moratorium as exceeding the CDCs statutory authority, as Biden himself recognized at his press conference (albeit in somewhat garbled form): But the presentyou could notthe Court has already ruled on the present eviction moratorium. Whether as a matter of constitutional lawthe presidents obligation to take Care that the Laws be faithfully executedor even just prudence, should the president take action that he believes the courts will strike down, even if there is no controlling precedent exactly on point?

These are all important and difficult issues, but there is another question that has not gotten nearly as much attention: Who gave Biden the legal advice that apparently changed his mind about the legality of the moratorium?

In the press conference answering questions about the new eviction moratorium, Biden gave the following explanation:

Ive sought out constitutional scholars to determine what is the best possibility that would come from executive action, or the CDCs judgment, what could they do that was most likely to pass muster, constitutionally. The bulk of the constitutional scholarship says that its not likely to pass constitutional muster. Number one. But there are several key scholars who think that it may and its worth the effort.

According to reporting, these key scholars included well-known law professors at Duke and Harvard law schools, such as Walter Dellinger, Martha Minow and Laurence Tribe; Tribe in particular was recommended to Biden by Nancy Pelosi. Which if any scholars consulted by the White House counseled against the legality of a second eviction moratorium is still unclear.

When White House press secretary Jen Psaki was asked who gave the legal sign-off on the new moratorium, she identified other sources of legal advice:

The CDCs lawyers, as well as our Counsels Officeyes. Im not aware of the Department of Justices engagement, but of course, that might make sense. I would have to check on that.

She also said, in some tension with Bidens earlier admission that the bulk of the constitutional scholarship was skeptical of the legality of the eviction moratorium, that the President would not have supported moving forward if he did not support the legal justification. He is old school in that way.

Thus, the official position of the administration now appears to be this: It originally supported the legality of the first eviction moratorium, which it defended in court; after the Supreme Court signaled that a majority of the justices did not believe the moratorium was legal, it changed its position and concluded that the CDC could not, absent congressional action, issue a new eviction moratorium; and it then changed its position again, based on some combination of advice from outside legal experts, White House counsel, and the CDCs lawyers and decided that the CDC did indeed have the authority to issue an eviction moratorium, albeit a narrower one.

Taking this story at face value, the obvious question is where was the Justice Department in all of this? What was the position of the Office of Legal Counsel (OLC), which would ordinarily be the last word on high-profile, complex legal questions such as this one, or the Office of the Solicitor General and the Civil Division, which have responsibility for defending the new moratorium in court?

There are presumably three options. The first is that the Justice Department told the White House that the CDC did not have the authority to issue a new eviction moratorium and the White House ignored that advice. The second option is that the department wasnt consulted, either because of an oversight from the White House or because the White House, suspecting that the department would return an answer it didnt want, simply didnt ask the Justice Department. The third option is that the department was consulted, told the White House that the CDC did have this authority, and this fact has simply not been disclosed in the White Houses public messaging so far. More reporting is needed on this question, but its notable that, when Politicos Josh Gerstein asked Attorney General Merrick Garland whether the department signed off on the eviction moratorium, Garland did not answer the question.

All three of these options raise concerns. If the Justice Department was overruled or simply cut out of the process, this represents a serious breakdown in how executive branch legal decision-making is supposed to happen. To be sure, the president has the final word on executive branch legal positions. He has no constitutional or statutory obligation to consult with, let alone abide by, the legal opinions of the Justice Department. But over decades, a powerful norm has developed that the Justice Department, in particular, is the proper source of legal guidance for the executive branch. OLC is designed not only to produce legal analysis of the highest possible quality that is consistent across the executive branch and with prior executive branch precedent, but, through a combination of its culture, reputation, and institutional position within the Justice Department, is designed to be at least partially insulated from politics so as to provide advice based on its best understanding of what the law requiresnot simply an advocates defense of the contemplated action or position proposed by an agency or the Administration provide the president with the best view of the law. (Whether OLC has always lived up to this lofty standard, and whether past presidents have always treated OLC as authoritative, is a separate question.) And the Office of the Solicitor General and the Civil Division, the primary litigators for the executive branch, make sure that the executive branch upholds its credibility with the courts and takes positions that support the executive branchs overall legal interests, not to mention general rule-of-law norms. If Pelosi really did tell Biden to get better lawyers and Biden responded by going outside the Justice Department, that should set off alarms about the confidence that Biden has in the departments traditional role as the main source of legal advice and analysis for the executive branch.

None of this is to say that the sources on which the Biden administration reportedly relied were subpar, or that Biden was wrong to solicit a wide range of legal views in addition to those of the Justice Department, but rather that none of them provide the departments special sauce: the combination of high-level legal expertise and a degree of independence achieved through institutional design, internal culture or reputation. The White House counsels office is, if only by virtue of its proximity to the president, inclined to take a particularly aggressive view as to the legality of the presidents policy goals. The CDCs lawyers, while no doubt expert when it comes to the CDCs statutory authority, may not have sufficient distance from their own agencys equities to always provide the best view as to the scope of the CDCs powers. And outside scholars, no matter how illustrious, are precisely that: outside the government and thus outside the institutional structures that have been developed to provide appropriate legal advice within the executive branch and avoid the risk of cherry-picking, which is a particular concern in this case given the wide variety of sincerely held views across the legal academy. (Besides, the attorney general was, until recently, one of the most respected appellate judges of his generation, and OLC is headed by two widely respected constitutional law professorsthe Justice Department is more than qualified to give the White House all the legal advice it needs.) If the Biden administration decided to make an abrupt change in its legal position, these sources of advice should have been at minimum supplemented by the departments considered views.

If, on the other hand, the Justice Department did in fact sign off on the new order but the Biden administration simply hasnt said so, that would be its own, wholly avoidable error. Part of upholding the procedural norms of executive branch legal interpretation is stating publicly that those procedures were followed. If one follows a norm but acts as if one didnt, that undermines the norm as much as if one had actually flouted it.

There is, of course, another possibility: that the White House never actually believed that the CDC lacked the authority to issue another eviction moratorium, but that it said so to put pressure on Congress to act. This would certainly explain the Justice Departments apparent silence: OLC, the Civil Division, and the Office of the Solicitor General presumably all signed off on an interpretation of CDC authorities as including the power to issue an eviction moratorium, because they were defending the original moratorium all the way up to the Supreme Court. And given that the court hasnt issued a ruling on the merits, and the new CDC moratorium is narrower than the old one, there would be no need for the Justice Department to update its legal view, since the underlying issue had not changed.

This view is thus reassuring from the perspective of internal executive branch legal process, but it raises concerns of its own about the candor of the administrations statements about its view of the law. If the administration believed this entire time that the CDC could issue a moratorium, but publicly misrepresented its view to pressure Congress to act, that would seriously undermine its credibility.

A central message of Bidens campaign was that he would rebuild norms of transparency, procedure, and honesty in the executive branch, norms that had been severely weakened by four years of the Trump administration. Based on the record as it stands now, there is a serious cloud around whether in this case the Biden administration has lived up to that promise. At the very least, the administration should clarify its confusing and seemingly contradictory statements about the internal legal deliberations. Whether one supports or opposes the CDCs eviction moratorium, the question of how its legal basis was developed and whether that process was communicated truthfully and accurately to the public is a serious one, and one for which the Biden administration should be held to account.

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Did the Justice Department Give President Biden Legal Advice on the CDC Eviction Moratorium? - Lawfare

New York real estate heir Robert Durst took the stand in his own defense Monday during his murder trial.

Durst had been expected to become the rare defendant in a murder case who testifies in his own defense starting Thursday, but Judge Mark E. Windham said halfway through the day that court was adjourned until late Monday morning, apparently over an issue with a juror.

Durst, 78, is charged with killing his best friend Susan Berman, who was fatally shot in her home in 2000. He was arrested in 2015, and his trial finally began early in 2020, but the coronavirus forced a pause of more than a year before it resumed in May.

Durst told jurors Monday afternoon that he did not kill his friend and does not know who did.

DeGuerin asked Durst: "Did you kill Susan Berman?"

"No" Durst replied in a weak voice.

The prosecution rested its case last week.

It's considered exceedingly risky for a defense attorney to put their client on the stand in such a case and subject them to potentially damaging cross-examination, and the Fifth Amendment's protections against self-incrimination allow defendants to avoid it.

But it would be the second time Durst and DeGuerin have done it. It worked the first time. DeGuerin called Durst to testify in his 2003 Texas murder trial, where he was acquitted.

Durst was charged with killing his Galveston neighbor Morris Black while in hiding there after Berman's killing. He testified that Black was accidentally killed in a struggle after entering Durst's apartment with a gun. He admitted to chopping up and disposing of Black's body. He later pleaded guilty to evidence tampering and bail jumping, but the jury found him not guilty of murder.

While he is charged with just one killing in California, prosecutors at his trial have been allowed to present evidence from the Texas case, and evidence that Durst killed his wife, who disappeared in New York in 1982. Kathie Dursts body was never found, but she has been declared legally dead. Durst has never been charged in connection with her disappearance, and has denied having anything to do with it.

He has also denied killing Berman, who prosecutors say was about to talk to police about Durst's involvement in his wife's disappearance. Durst's attorneys have said that he found her body, panicked, and fled to Texas, sending a letter to police that read CADAVER with Berman's address.

Durst, the scion of one of New York's most prominent real estate families, gave a series of interviews that included seemingly damning statements about the cases for the 2015 HBO documentary series The Jinx."

Durst has bladder cancer and a urinary tract infection. He has been in a wheelchair and has a catheter inserted. His hair is shaved short because fluid had to be drained from his brain.

His lawyers have sought delays and a mistrial over his health troubles, but the judge has rejected them all, expressing sympathy for Durst's state but emphasizing that jail doctors have declared him fit for trial.

Link:
Robert Durst Takes the Stand to Testify at His Murder Trial - NBC Southern California

At the end of its recent term, the U.S. Supreme Court handeddown a new decision on the law of takings. The case, CedarPoint Nursery v. Hassid, was a labor relations disputedisguised as a takings case, but its resolution has importantimplications for the terms on which New York developers can getaccess to adjoining property in aid of their construction projects.In Cedar Point Nursery, a divided Court ruled, by a 6-3vote, that a state regulation authorizing very limited temporaryentry by union organizers onto private agricultural propertyamounted to a physical "taking" of property that violatedthe Fifth and Fourteenth Amendments to the Constitution.1 Thedecision expands the concept of what is a physical taking andraises questions about the further expansions of takings law thatmay follow.

The last clause of the Fifth Amendment to the U.S. Constitution,part of the Bill of Rights adopted in 1791, provides: "norshall private property be taken for public use, without justcompensation." Although originally applicable only to thefederal government, the Fourteenth Amendment, adopted after theCivil War, makes the principle equally applicable to the states andtheir political subdivisions.2

The most obvious example of a taking is when the government or a private party authorized by law to do so (such as autility) exercises the power of eminent domain to acquireactual ownership of private property, or at least a permanentinterest in property. In that situation, a public purpose and justcompensation are required by the Constitution.3 Other situations are notso obvious and have spawned a large body of court decisionsaddressing countless permutations.

Supreme Court precedent distinguishes between"physical" takings and "regulatory" takings.Physical takings are unconstitutional per se (i.e., automatically)in the absence of a public purpose and compensation. By contrast,an owner's claim that it has been subjected to a regulatorytaking in effect, a claim that although there has been nophysical invasion of its property, a law, regulation or othergovernmental action has intruded so far into its property rights asto amount to a taking must be analyzed and evaluated on afact-specific, case-by-case basis.

What rises to the level of a physical taking, however, isn'talways clear either, and the concept has expanded over the years.In 1946, the Supreme Court held that repeated low-altitudeoverflights by military aircraft approaching and leaving a nearbyairport, the effect of which was to destroy the owners' abilityto operate their chicken farm, constituted a taking.4 In 1979,the Court held that the government's claim of a navigationalservitude over private property, the effect of which was to allowthe public to access the property on a continuous basis,effectuated a taking.5 And in 1982, the Court held that even ade minimis permanent physical occupation of property is a taking;more specifically, the Court struck down as unconstitutional a NewYork statute requiring owners of apartment buildings to allow cableTV companies to attach their cables to the owners'buildings.6 Which brings us to the Cedar PointNursery case.

A regulation under California's Agricultural Labor RelationsAct gave labor organizations a limited right of access to privateagricultural property. Access was allowed in no more than four30-day periods in any one calendar year, and only during threehours during any one day one hour before work, one hourduring the lunch break and one hour after work. Access was limitedto two organizers per work crew, plus one additional organizer forevery 15 workers over 30 workers in a crew. The property owner wasentitled to prior notice. Disruptive conduct was prohibited, butthe union organizers were otherwise free to meet with employees todiscuss labor or union issues.

Cedar Point Nursery is a large California strawberry grower. Itclaims that, one morning in 2015, United Farm Workers organizersentered its property and disturbed its operations, causing someworkers to join a protest and others to leave the worksite. Alongwith a second grower, it sued in federal court, arguing thatCalifornia's regulation effected an unconstitutional physicaltaking of its property. The trial court dismissed the lawsuit, anda divided U.S. Court of Appeals for the Ninth Circuit affirmed thatdecision. The Supreme Court agreed to hear the case.

The Court reversed the Ninth Circuit's decision and ruled infavor of the nursery. Perhaps not surprisingly, given thecase's origin in a dispute about union activity, the Courtsplit along partisan lines, with the six Republican-appointedjustices forming the majority and the three Democrat-appointedjustices dissenting.

Chief Justice John Roberts wrote for the majority that "theaccess regulation appropriates a right to invade the growers'property and therefore constitutes a per se physical taking."The opinion emphasized that the short duration of time during whichthe regulation allowed entry onto property was irrelevant, and thelength of the appropriation "bears only on the amount ofcompensation." The opinion affirmed that physical invasionsare takings even if they are intermittent instead of permanent,citing United States v. Causby, the 1946 decision in whichthe Court held that occasional low-altitude military overflightshad effected a taking (although in Causby the overflightshad destroyed the owners' business).

To reconcile this absolutist definition of a taking withcommonly recognized circumstances in which limited entry ontoprivate property has long been allowed, the majority opinionarticulated a series of exceptions to this per se rule. First,"isolated physical invasions, not undertaken pursuant to agranted right of access, are properly assessed as individual tortsrather than appropriations of a property right." Second,access that is "consistent with longstanding backgroundrestrictions on property rights," including "traditionalcommon law privileges to access private property," is anotherexception. And third, "the government may require propertyowners to cede a right of access as a condition of receivingcertain benefits, without causing a taking."

The dissenting opinion was written by Justice Stephen Breyer. Itargued that the California regulation did not effect a per setaking because it did not appropriate anything, but only regulatedemployers' right to exclude others from their property.

The Cedar Point Nursery majority and dissentersdisagreed about how to distinguish between the appropriation ofproperty and regulation of the right to exclude. Because the Courtheld that the California regulation allowing limited access byunion organizers to agricultural properties was in fact anappropriation, the decision raises questions about how much furtherthe Court might go and how far property rights advocateswill push the Supreme Court and lower courts in expandingthe concept of a taking.

To begin with, any law or regulation requiring that unionrepresentatives be given access to a workplace or job site is now to say the least constitutionally suspect.

In future cases, moreover, courts are likely to be asked toclarify the exception to the per se rule that Cedar PointNursery recognized for access that is "consistent withlongstanding background restrictions on property rights." Theopinion provided no further definition of this exception beyond areference to "traditional common law privileges." Priorcase law from around the country has recognized multiple situationsin which entry onto another's land without the owner'spermission is allowable, including, for example, to bypass animpassible section of a public road, to retrieve personal property,to abate a private or public nuisance, to stop a crime or to make alawful arrest.7Are all of these examples still good law after Cedar PointNursery?

Even if these cases remain good law, is only court-made lawstill valid? One possible implication of the absolutistinterpretation of a taking in Cedar Point Nursery is that,while court-made exceptions to the per se rule remain valid, stateand local governments are powerless to enact statutes thatrecognize limited rights of entry in defined circumstances.

In 1980, for example, a unanimous Supreme Court agreed thatCalifornia's Supreme Court could properly interpret its stateconstitution as protecting the right of peaceful protestors to setup a card table in a shopping mall's central courtyard,distribute pamphlets and collect signatures over the objection ofthe mall's owner, which maintained a blanket policy againstexpressive activity on its premises.8 In reaching this result,the Court's opinion, written by Justice (later Chief Justice)William Rehnquist, explained that, while "property does not'lose its private character merely because the public isgenerally invited to use it for designated purposes,'"that principle "does not ... limit the authority of the Stateto exercise its police power or its sovereign right to adopt in itsown Constitution individual liberties more expansive than thoseconferred by the Federal Constitution."9 In response to the mallowner's contention that "a right to exclude othersunderlies the Fifth Amendment guarantee against the taking ofproperty without just compensation," the Supreme Court'sopinion explained that "it is well established that 'notevery destruction or injury to property by governmental action hasbeen held to be a "taking" in the constitutionalsense,'" and "the determination whether a state lawunlawfully infringes a landowner's property in violation of theTakings Clause requires an examination" of multiplefactors.10

The only way to reconcile this case-by-case approach with theper se rule of Cedar Point Nursery is to rely on the factthat the shopping mall was open to the public, although not for thepurpose that the visitors in that case sought to use it, while inCedar Point Nursery the owners did not open their land tothe general public. But the Court specifically said in the shoppingmall case (and in prior cases) that private property does not"lose its private character" even if it is open to thegeneral public a point that is inconsistent with adistinction based on private property's status as open to thegeneral public.

Closer to home, New York has a statute, Section 881 of the RealProperty Actions and Proceedings Law, that empowers courts to grantlicenses allowing property owners to gain temporary access toneighboring property for the purpose of effectuating repairs orimprovements to their own property "upon such terms as justicerequires." The statute often has been used by developers andtheir contractors to compel recalcitrant neighbors to allow them toenter onto adjoining property to perform surveys and installprotective measures. The statute does not require compensation,although it is not unusual for courts, in the exercise of theirdiscretion, to require the payment of a fee if the entry is formore than a de minimis length of time for example, if thepurpose of the entry is to install and maintain temporaryprotective scaffolding. Is this statute unconstitutional due to itsfailure to expressly require the payment of "justcompensation" in accordance with the Fifth Amendment? Orperhaps due to its creation of a right of access in the service ofa private purpose rather than a public one? It seems inevitablethat these issues and others of a similar nature will be litigated in a future case. The risk of the issue beingraised should motivate developers to avoid litigation if possibleand to be prepared, if necessary, to augment the usual protectionsprovided in access agreements (such as indemnification andinsurance) with some amount of compensation for the temporaryintrusion onto a neighbor's property.

Footnotes

1 CedarPoint Nursery v. Hassid, 594 U.S. ___ (No. 20-107, June 23,2021).

2Chicago, Burlington & Quincy Railroad Co. v. City ofChicago, 166 U.S. 226 (1897).

3Id.

4United States v. Causby, 328 U.S. 256 (1946).

5Kaiser Aetna v. United States, 444 U.S. 164(1979).

6Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419(1982).

7See, generally, Restatement(Second) of Torts 195-211.

8PruneYard Shopping Center v. Robins,447 U.S. 74 (1980). Members of the Court issued multiple separateopinions explaining their reasoning, but all of the justices agreedwith the result.

9 Theinternal quotation in PruneYard is from the Court'sprior opinion in Lloyd Corp. v. Tanner, 407 U.S. 551(1972), where the Court upheld the right of a shopping mall ownerto prohibit public expression on its premises.

10 Theinternal quotation in this excerpt from PruneYard is fromArmstrong v. United States, 364 U.S. 40(1960).

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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The Supreme Court Further Expands The Definition Of A Physical - Mondaq News Alerts

At the end of its recent term, the U.S. Supreme Court handed down a new decision on the law of takings. The case, Cedar Point Nursery v. Hassid, was a labor relations dispute disguised as a takings case, but its resolution has important implications for the terms on which New York developers can get access to adjoining property in aid of their construction projects. In Cedar Point Nursery, a divided Court ruled, by a 6-3 vote, that a state regulation authorizing very limited temporary entry by union organizers onto private agricultural property amounted to a physical taking of property that violated the Fifth and Fourteenth Amendments to the Constitution.[1] The decision expands the concept of what is a physical taking and raises questions about the further expansions of takings law that may follow.

The last clause of the Fifth Amendment to the U.S. Constitution, part of the Bill of Rights adopted in 1791, provides: nor shall private property be taken for public use, without just compensation. Although originally applicable only to the federal government, the Fourteenth Amendment, adopted after the Civil War, makes the principle equally applicable to the states and their political subdivisions.[2]

The most obvious example of a taking is when the government or a private party authorized by law to do so (such as a utility) exercises the power of eminent domain to acquire actual ownership of private property, or at least a permanent interest in property. In that situation, a public purpose and just compensation are required by the Constitution.[3] Other situations are not so obvious and have spawned a large body of court decisions addressing countless permutations.

Supreme Court precedent distinguishes between physical takings and regulatory takings. Physical takings are unconstitutional per se (i.e., automatically) in the absence of a public purpose and compensation. By contrast, an owners claim that it has been subjected to a regulatory taking in effect, a claim that although there has been no physical invasion of its property, a law, regulation or other governmental action has intruded so far into its property rights as to amount to a taking must be analyzed and evaluated on a fact-specific, case-by-case basis.

What rises to the level of a physical taking, however, isnt always clear either, and the concept has expanded over the years. In 1946, the Supreme Court held that repeated low-altitude overflights by military aircraft approaching and leaving a nearby airport, the effect of which was to destroy the owners ability to operate their chicken farm, constituted a taking.[4] In 1979, the Court held that the governments claim of a navigational servitude over private property, the effect of which was to allow the public to access the property on a continuous basis, effectuated a taking.[5] And in 1982, the Court held that even a de minimis permanent physical occupation of property is a taking; more specifically, the Court struck down as unconstitutional a New York statute requiring owners of apartment buildings to allow cable TV companies to attach their cables to the owners buildings.[6] Which brings us to the Cedar Point Nursery case.

A regulation under Californias Agricultural Labor Relations Act gave labor organizations a limited right of access to private agricultural property. Access was allowed in no more than four 30-day periods in any one calendar year, and only during three hours during any one day one hour before work, one hour during the lunch break and one hour after work. Access was limited to two organizers per work crew, plus one additional organizer for every 15 workers over 30 workers in a crew. The property owner was entitled to prior notice. Disruptive conduct was prohibited, but the union organizers were otherwise free to meet with employees to discuss labor or union issues.

Cedar Point Nursery is a large California strawberry grower. It claims that, one morning in 2015, United Farm Workers organizers entered its property and disturbed its operations, causing some workers to join a protest and others to leave the worksite. Along with a second grower, it sued in federal court, arguing that Californias regulation effected an unconstitutional physical taking of its property. The trial court dismissed the lawsuit, and a divided U.S. Court of Appeals for the Ninth Circuit affirmed that decision. The Supreme Court agreed to hear the case.

The Court reversed the Ninth Circuits decision and ruled in favor of the nursery. Perhaps not surprisingly, given the cases origin in a dispute about union activity, the Court split along partisan lines, with the six Republican-appointed justices forming the majority and the three Democrat-appointed justices dissenting.

Chief Justice John Roberts wrote for the majority that the access regulation appropriates a right to invade the growers property and therefore constitutes a per se physical taking. The opinion emphasized that the short duration of time during which the regulation allowed entry onto property was irrelevant, and the length of the appropriation bears only on the amount of compensation. The opinion affirmed that physical invasions are takings even if they are intermittent instead of permanent, citing United States v. Causby, the 1946 decision in which the Court held that occasional low-altitude military overflights had effected a taking (although in Causby the overflights had destroyed the owners business).

To reconcile this absolutist definition of a taking with commonly recognized circumstances in which limited entry onto private property has long been allowed, the majority opinion articulated a series of exceptions to this per se rule. First, isolated physical invasions, not undertaken pursuant to a granted right of access, are properly assessed as individual torts rather than appropriations of a property right. Second, access that is consistent with longstanding background restrictions on property rights, including traditional common law privileges to access private property, is another exception. And third, the government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking.

The dissenting opinion was written by Justice Stephen Breyer. It argued that the California regulation did not effect a per se taking because it did not appropriate anything, but only regulated employers right to exclude others from their property.

The Cedar Point Nursery majority and dissenters disagreed about how to distinguish between the appropriation of property and regulation of the right to exclude. Because the Court held that the California regulation allowing limited access by union organizers to agricultural properties was in fact an appropriation, the decision raises questions about how much further the Court might go and how far property rights advocates will push the Supreme Court and lower courts in expanding the concept of a taking.

To begin with, any law or regulation requiring that union representatives be given access to a workplace or job site is now to say the least constitutionally suspect.

In future cases, moreover, courts are likely to be asked to clarify the exception to the per se rule that Cedar Point Nursery recognized for access that is consistent with longstanding background restrictions on property rights. The opinion provided no further definition of this exception beyond a reference to traditional common law privileges. Prior case law from around the country has recognized multiple situations in which entry onto anothers land without the owners permission is allowable, including, for example, to bypass an impassible section of a public road, to retrieve personal property, to abate a private or public nuisance, to stop a crime or to make a lawful arrest.[7] Are all of these examples still good law after Cedar Point Nursery?

Even if these cases remain good law, is only court-made law still valid? One possible implication of the absolutist interpretation of a taking in Cedar Point Nursery is that, while court-made exceptions to the per se rule remain valid, state and local governments are powerless to enact statutes that recognize limited rights of entry in defined circumstances.

In 1980, for example, a unanimous Supreme Court agreed that Californias Supreme Court could properly interpret its state constitution as protecting the right of peaceful protestors to set up a card table in a shopping malls central courtyard, distribute pamphlets and collect signatures over the objection of the malls owner, which maintained a blanket policy against expressive activity on its premises.[8] In reaching this result, the Courts opinion, written by Justice (later Chief Justice) William Rehnquist, explained that, while property does not lose its private character merely because the public is generally invited to use it for designated purposes, that principle does not limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.[9] In response to the mall owners contention that a right to exclude others underlies the Fifth Amendment guarantee against the taking of property without just compensation, the Supreme Courts opinion explained that it is well established that not every destruction or injury to property by governmental action has been held to be a taking in the constitutional sense, and the determination whether a state law unlawfully infringes a landowners property in violation of the Takings Clause requires an examination of multiple factors.[10]

The only way to reconcile this case-by-case approach with the per se rule of Cedar Point Nursery is to rely on the fact that the shopping mall was open to the public, although not for the purpose that the visitors in that case sought to use it, while in Cedar Point Nursery the owners did not open their land to the general public. But the Court specifically said in the shopping mall case (and in prior cases) that private property does not lose its private character even if it is open to the general public a point that is inconsistent with a distinction based on private propertys status as open to the general public.

Closer to home, New York has a statute, Section 881 of the Real Property Actions and Proceedings Law, that empowers courts to grant licenses allowing property owners to gain temporary access to neighboring property for the purpose of effectuating repairs or improvements to their own property upon such terms as justice requires. The statute often has been used by developers and their contractors to compel recalcitrant neighbors to allow them to enter onto adjoining property to perform surveys and install protective measures. The statute does not require compensation, although it is not unusual for courts, in the exercise of their discretion, to require the payment of a fee if the entry is for more than a de minimis length of time for example, if the purpose of the entry is to install and maintain temporary protective scaffolding. Is this statute unconstitutional due to its failure to expressly require the payment of just compensation in accordance with the Fifth Amendment? Or perhaps due to its creation of a right of access in the service of a private purpose rather than a public one? It seems inevitable that these issues and others of a similar nature will be litigated in a future case. The risk of the issue being raised should motivate developers to avoid litigation if possible and to be prepared, if necessary, to augment the usual protections provided in access agreements (such as indemnification and insurance) with some amount of compensation for the temporary intrusion onto a neighbors property.

[1] Cedar Point Nursery v. Hassid, 594 U.S. ___ (No. 20-107, June 23, 2021).

[2] Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897).

[3] Id.

[4] United States v. Causby, 328 U.S. 256 (1946).

[5] Kaiser Aetna v. United States, 444 U.S. 164 (1979).

[6] Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

[7] See, generally, Restatement (Second) of Torts 195-211.

[8] PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980). Members of the Court issued multiple separate opinions explaining their reasoning, but all of the justices agreed with the result.

[9] The internal quotation in PruneYard is from the Courts prior opinion in Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), where the Court upheld the right of a shopping mall owner to prohibit public expression on its premises.

[10] The internal quotation in this excerpt from PruneYard is from Armstrong v. United States, 364 U.S. 40 (1960).

The author gratefully acknowledges the valuable contributions to this alert of Aaron Jacobs, a member of the Columbia Law School Class of 2022 and a 2021 Kramer Levin summer associate.

[View source.]

Continued here:
The Supreme Court Further Expands the Definition of a Physical Taking of Property That Violates Fifth Amendment Protections - JD Supra

Judge expected to rule Wednesday whether to charge Mensah in on-duty shooting

Former Wauwatosa police Officer Joseph Mensah shot, killed Jay Anderson in 2016

Updated: 8:48 AM CDT Jul 28, 2021

A judge is expected to rule Wednesday on whether to charge former Wauwatosa police Officer Joseph Mensah in one of his three on-duty shooting deaths. Dash camera video from 2016 shows Mensah shooting and killing Jay Anderson, who was asleep in his car in Madison Park.Milwaukee County's district attorney decided not to charge Mensah, but Anderson's family asked a judge to independently file criminal charges against Mensah.Mensah invoked his Fifth Amendment right and did not testify during the hearing in May.Wauwatosa's now-retired police chief did testify in the ongoing case. Mensah now works as a Waukesha County sheriff's deputy.He also shot and killed Antonio Gonzalez and Alvin Cole while on duty.

A judge is expected to rule Wednesday on whether to charge former Wauwatosa police Officer Joseph Mensah in one of his three on-duty shooting deaths.

Dash camera video from 2016 shows Mensah shooting and killing Jay Anderson, who was asleep in his car in Madison Park.

Milwaukee County's district attorney decided not to charge Mensah, but Anderson's family asked a judge to independently file criminal charges against Mensah.

Mensah invoked his Fifth Amendment right and did not testify during the hearing in May.

Wauwatosa's now-retired police chief did testify in the ongoing case.

Mensah now works as a Waukesha County sheriff's deputy.

He also shot and killed Antonio Gonzalez and Alvin Cole while on duty.

Read more here:
Judge expected to rule Wednesday whether to charge Mensah in on-duty shooting - WISN Milwaukee

At an unnerving press conference last week, a reporter asked Rep. Marjorie Taylor Greene (R-Ga.) whether she's has been vaccinated against the coronavirus. The right-wing congresswoman replied, "You see, with HIPAA rights, we don't have to reveal our medical records, and that also involves our vaccine records."

The Republican's tone suggested she saw herself as an expert in matters related to the Health Insurance Portability and Accountability Act (HIPAA), and she was eager to lecture the reporter about the subject.

The problem, of course, was that Greene had no idea what she was talking about.

A week earlier, North Carolina Lt. Gov. Mark Robinson (R) said door-to-door vaccination information outreach might be "illegal" under HIPAA. That didn't make sense, either.

Alas, the Republicans aren't alone. Dallas Cowboys quarterback Dak Prescott spoke at a press conference of his own last week and was also asked about whether he's received a COVID-19 vaccine. "I don't necessarily think that's exactly important," the athlete said, adding, "I think that's HIPAA."

No, it's really not.

In case this isn't obvious, let's take a moment to shine a light on reality. HIPAA, which has been federal law for the last 25 years, relates to health privacy, but as the New York Times explained late last week:

The law applies only to companies and professionals in the health care field, although some people may incorrectly imply otherwise, as Ms. Greene did in suggesting that the measure offered Fifth Amendment-like protection against revealing personal health information.... [N]othing in the law prohibits asking about someone's health, be it vaccination status or proof that such information is accurate.

If someone called your personal physician asking for details from your medical records, HIPAA would prevent him or her from sharing that information without your approval.

But the law does not create a blanket prohibition on someone being asked about their health. In the case of Marjorie Taylor Greene, HIPAA doesn't create a "right" that makes a reporter's question improper.

Journalists can ask people about whether they've been vaccinated. So can employers. So can store owners make inquiries of customers.

Those who insist that HIPAA shields them from questions they're embarrassed to answer are mistaken.

Go here to read the rest:
Vaccine opponents appear increasingly confused about HIPAA - MSNBC

Regarding Texas Chief Justice Hecht is a champion of judicial reform. Now hes Exhibit A. (July 30: The debate over the election of judges recalls Winston Churchills famous quote that democracy is the worst form of government except for all the others. When I began my service as a commissioner on the legislatively-created 2020 Commission for Judicial Selection, I was convinced we needed to change our system of electing judges. But, as we researched other methods and heard testimony about the alternatives, I concluded that while our system of electing judges is flawed, no other system is clearly better. And some are much worse. I also came to appreciate more fully the integrity of our Texas judges, regardless of how they are selected.

Also, the article mentions our Chief Justice Nathan Hecht, who has ably led our judiciary with integrity. It is worth noting that he is a proponent of changing our elective system. I respect that point of view which roughly half the members of the commission voted in favor of. Nonetheless, few disagree that determining the best method of selecting Texas judges raises many complex issues.

Lynn Liberato, Houston

Regarding They went to hell and back for us on Jan. 6. The least we can do is listen. (July 27): Listening to the voices of the four Capitol police officers recounting their painful memories of the Jan. 6 riot at the U.S. Capitol should be enough to bring us together, determined to understand how such a challenge to the foundations to our democracy could happen and committed to a united effort to assuring it does not happen again. As a first time guest in Houston, I am grateful to the Houston Chronicle for publishing such a timely and powerful editorial. You gave us access to four police officers who represent real life heroes and voiced a clarion call we should all heed.

Grant Revell, Mechanicsville, Va.

What occurred on Jan. 6, 2021 in Washington, D.C. was awful. However, the riots across America in 2020 and the hostility toward so many of our patriotic people of all races, colors and genders was barbaric and dishonored our patriotic country. This is not just what people do or a myth. Every one of these violent demonstrations did occur and a great deal of harm to America resulted from the actions of those that have no regard for others, their properties and their values. Never again should riots be how we deal with the issues that our amazing nation encounters. Lets all take a breath and eloquently voice a protest in challenge of an issue going forward to illuminate a better and more just solution by we the people in a dignified and respectful manner.

Robert Petty, Houston

Democrats along with carefully selected Republicans who previously voted for Trumps impeachment are staging political theater which theyve labeled hearings. If the hearings were actually seeking answers to serious and lingering questions about exactly what happened and why, then I might support them, but whats actually going on is something else altogether. Were there some Trump supporters who broke the law by forcibly entering the Capitol building, damaging property and threatening people? Of course weve all seen the videos. So wed already established that there are some crazies who showed up at Trumps rally and then broke the law. Theyre being prosecuted for their crimes.

My humble suggestion is that Congress instead should spend its time and energy recognizing and addressing the concerns shared by the half of Americans who have supported Trumps America First agenda. Even if Congress succeeds in keeping Trump off the ballot in 2024, someone will take Trumps place to represent these Americans. The Trump movement is not a cult of personality as some clueless liberals continually chant, but rather its a wakening of a silent majority no longer silent. It will not go away even if Trump does.

Greg Groh, Houston

Despite loud protests and diversionary hype, the facts of the U.S. Capitol siege are under the microscope. Now, we must have the subpoena power of Congress require individuals to appear in person. Position them before the committee, in full view of the public and ask those questions that need answers. Play their videos, display their speeches and writings expressing a consistent viewpoint. Scan the army of attorneys at their side as they invoke their Fifth Amendment rights. Provide us all the opportunity to see and hear these witnesses, weigh what they are saying and when they refuse to speak up. That will speak volumes.

Cliff Boden, Humble

Read the original post:
Opinion: Elections are the worst method of picking judges except for all the others - Houston Chronicle

By Eliott C. McLaughlin, CNN

(CNN) -- Voice quavering, Rick Wershe Jr., who as a teen in 1980s Detroit was painted as a murderous drug kingpin, dabbed his eyes as he recalled one of the last conversations he had with his father, who he'd always looked up to as a strong man.

Suffering from brain cancer, his dad often moaned in pain over the phone. During this 2014 call, Rick Wershe Sr. told his imprisoned son he was "scheduled to die" that day, which the younger Wershe told him wasn't true. His mind "playing tricks," the ailing father insisted, Wershe Jr. recalled.

"I lost it, and it's hard for me to talk about," he tearily told CNN. "I broke down that day, and I happened to be in my counselor's office. ... I had a lot of pride, and I remember the counselor, he gave me a hug and he wouldn't let me leave his office and I just wanted to get back to my cell to be alone. He said, 'Rick, just stay here,' and I'll never forget that."

Rick Wershe Sr. died about two weeks later, on October 2, 2014. Wershe Jr. wasn't allowed to attend the funeral.

It's one of myriad milestones Wershe Jr. -- who the media and Hollywood christened "White Boy Rick" -- says he missed because the FBI and Detroit police groomed him to be a drug informant at age 14. They taught him the tricks of buying and selling narcotics, while providing him money, drugs and a fake ID -- only to disavow him when he was arrested for cocaine, he says.

Now 52 and having served more than 32 years -- all but a year of adulthood -- in prison, Wershe filed a federal lawsuit July 20, the first anniversary of his prison release. He demands authorities acknowledge they indoctrinated him and broke promises to help him. Wershe served the longest sentence of any nonviolent minor in Michigan history, according to his lawyer, Nabih Ayad, because the information he provided helped take down crooked police.

Wershe wants $100 million for his trouble, a sum Ayad says amounts to about $3 million for each year of incarceration, during which Wershe has suffered anxiety, depression and abdominal pain from an assassination attempt that ripped his colon in half when he was 15.

Despite the ailments, Wershe is striving to forge a new reputation -- an endeavor he began in prison organizing holiday food drives. In the last year, he's worked to improve mental health resources and the foster care and criminal justice systems in Detroit.

Ayad is requesting an extension to the statute of limitations, which case law supports when someone fears retaliation from those imprisoning him, he told CNN. Wershe's previous lawyers advised him not to seek redress until he was released, Ayad said.

"They were hoping he dies in jail. They were hoping someone kills him in jail. They were hoping their story will never get out, never, because they knew what they did was wrong -- morally, ethically, principally," the attorney said at a news conference.

Detroit's city attorney did not respond to a request for comment. In an email signed by Mayor Mike Duggan and Police Chief James White, the city and its police department declined to comment, as did the FBI, through its Detroit field office.

The story of White Boy Rick has long titillated audiences, whether it's told in newspapers, magazines, documentaries, books or an eponymous feature film with Matthew McConaughey. Wershe Jr., unconvinced all his story's tellers have fallen on the side of accuracy, has his own documentary in the works.

While the particulars shift from one account to the next (Wershe hasn't seen the McConaughey movie but refutes the accuracy of certain scenes relayed to him), the narratives stick close to the lawsuit. It's the story of a White teen operating among Black drug dealers in a corrupt and treacherous city during the crack epidemic.

His dad owned a gun store, through which he'd made acquaintance with FBI agents, Wershe Jr. said, explaining his father reached out when he learned his daughter was dating a drug dealer. An agent dropped by the house but told Wershe Sr. he couldn't help him without some quid pro quo, his son said.

Wershe Sr. didn't know much about the streets, according to his son. He later met the agent at a fast food joint and was shown images of people the agent wanted identified, the lawsuit says. Wershe Sr. couldn't help, but his son knew some of the characters from the east side of Detroit and provided names, according to the lawsuit.

Realizing the son was the better source, the agent pulled up to the junior Wershe one day as he walked home from school, telling the 14-year-old, "Get in," the lawsuit says. Another federal agent began asking him to "engage in extremely more dangerous criminal drug-related activity," and the agents introduced him to Detroit Police Department officers on a drug task force targeting gangs and corrupt police, according to the lawsuit. Both would become fearsome enemies, Wershe Jr. said.

The teen "was of a malleable and impressionable mindset and did what the FBI agent and DPD officers demanded he do, that is go into drug houses he did not know, in areas of the city he did not know, and ask to buy drugs from people he did not know," the lawsuit says.

Gregarious and affable, qualities he still exudes today, Wershe Jr. was good at the work -- the details of which he kept from his father. Shortly after turning 15, the lawsuit alleges, he was operating throughout greater Detroit, and his handlers let him keep some of the seized drugs to sell himself. But he'd begun to draw suspicion.

In November 1984, Wershe told CNN, he was called to a house. He declined to divulge who summoned him but said he was in the basement when an "associate" called him up. When he got upstairs, the associate shot him with a .357 Magnum, the bullet ripping through his large intestine, he told CNN.

"No words were said," he recalled. "All I remember is waking up at the bottom of the stairs in this agonizing pain, and I was 15 years old. I thought I was going to die."

The shooter's girlfriend arrived within a minute, Wershe said. Panicked, she called 911. The shooter and his friend put Wershe in a car -- whether to transport him to a hospital or a secluded place to die, he's not sure -- and as they pulled out, an ambulance blocked the car. Wershe remembers a paramedic telling his shooter, "Nuh-uh, we're taking him."

"Thank God his girlfriend showed up. Thank God she called 911, or I wouldn't be talking to you today," Wershe said.

Here might have been a fine time for police to reflect on the pitfalls of employing a teenager as an informant. Instead, they came to the hospital and instructed Wershe to describe the shooting as an accident to boost his street cred, the lawsuit states.

Within six months, they thrust him back into the snitch game, providing him accommodations, money and a fake ID to continue his undercover work in Las Vegas, where several Detroit drug lords were attending a bout between Thomas Hearns -- a favorite son of the Motor City, ironically nicknamed "The Hitman" -- and Marvelous Marvin Hagler, Wershe and the lawsuit say.

The media took notice of the splashy Wershe, according to the lawsuit, and the sobriquet "White Boy Rick" began appearing in headlines, spinning the legend of a teen kingpin. Wershe was too naive to fathom the folly of being a familiar White face in a city where seven in 10 residents were African American and locals were demanding answers to the drug scourge, he says.

The feds and police cut off contact by the time he was 16, "likely to save themselves from legal action should they have been caught using a 14/15-year old as a drug dealer-informant," the lawsuit says. Wershe had become a celebrity of the worst kind -- known to reporters, gang members and police who had no idea he was an informant because officers had used his dad's name on the paperwork, according to the lawsuit.

"If that's not child endangerment of the highest level, I don't know what you call it," Wershe told CNN.

There were at least three more attempts on his life, including one in which bullets narrowly missed his father as he watched TV, the lawsuit says. In the 2017 documentary "White Boy," contract killer Nate Boone Craft, who served only 17 years after turning informant himself, recounted his two attempts to kill Wershe.

The orders arrived from a now-deceased city official, the hitman alleged. Wershe had reportedly implicated the official in a coverup involving the drive-by murder of a 13-year-old.

"I was told to kill White Boy Rick. We heard that he was telling, so they said, 'We got to kill that White boy,'" Craft told filmmakers. "We got to make sure that it don't lead back to no one, and I said, 'Well, you know me. All my hits don't lead back to no one.'"

Wershe made a narrow escape from an intersection just north of Interstate 94, the lawsuit says. Craft pulled alongside the youngster's vehicle, and his accomplice opened fire, but "the Mac jammed on us," Craft said, referring to the brand of machine pistol. Craft later tried to kill Wershe using a scoped rifle before a court hearing, but the teen used an underground entrance into the courthouse, the killer said in the documentary.

"Hitmen should not have been Plaintiff's only concern," the lawsuit says. "Thanks to Defendants, Plaintiff had become a target for the drug gangs as well as a target for law enforcement."

Wershe's drug-dealing days ended May 22, 1987. The 17-year-old and a friend were pulled over and Wershe ran. Officers caught him, beat him badly enough to go to the hospital and later informed him they'd received a tip leading them to 18 pounds of cocaine they said he'd stashed in his neighbor's yard, the lawsuit and local news reports say.

Wershe is candid about his drug dealing. When he was pulled over, he was carrying a knot of drug proceeds, he concedes. He believed he was still under police protection, he said, but the box of cocaine -- which contained far more than 650 grams, enough to put a drug dealer away for life -- was a setup, Wershe insists. When the court ordered him to provide fingerprints, he told the judge no order was needed because he hadn't touched the box, he said.

"I was selling drugs. I had money on me," he told CNN. "Still to this day, I'm out of prison, and I'll say the same thing: I never touched that f**king cocaine. I'm adamant about it. I'll tell you, I sold drugs. That box is a goddamned lie, pardon my language."

Prosecutors cast Wershe as one of Detroit's most dangerous dealers, a story many reporters were all too happy to take to editors. The jury declared itself deadlocked for a spell, according to reports, but ultimately found him guilty. Under Michigan's 650-Lifer Law, Wershe was sent to prison forever. No parole.

One of his FBI handlers visited him in 1991 with a federal prosecutor who needed help with a sting targeting dirty policemen and politicians, and he promised to fight for Wershe's release, the lawsuit says. The 20-year-old reluctantly obliged. Operation Backbone was a success, nailing 13 Detroit police officers and public officials, according to the lawsuit.

Wershe wasn't released. He was sent to Florida to serve his time in witness protection, largely cutting him off from his family for 15 years, the lawsuit says.

Another federal prosecutor visited the following year, promising to advocate for a commutation if the young man testified against a drug gang, the lawsuit says. Again, Wershe delivered, with an assurance his grand jury testimony would never be turned against him, according to the lawsuit.

In 1998, Michigan revised its 650-Lifer Law. Wershe could seek parole beginning in 2002. Before a 2003 hearing, the lawsuit says, he called in his chips but was informed the federal prosecutors who promised to help were barred from doing so.

"Plaintiff's nightmare turned surreal as Detroit Police Officers that he had never met before testified at his hearing, quoting directly from Plaintiff's sealed grand jury testimony," linking him to the drug gang he helped take down, the suit says.

The testimony "absolutely materially was the dispositive factor in the Board's decision to not allow Plaintiff parole," the lawsuit says, demanding prosecutors acknowledge they violated his Fifth Amendment rights.

Wershe's attorney at the time told him that, for his safety, he shouldn't level accusations over the grand jury testimony until he got out, the lawsuit says. He felt helpless, it says, and a "deep depression" set in.

Gina Balaya, spokeswoman for the US Attorney's Office for the Eastern District of Michigan, did not return a message seeking comment.

While serving time in Florida, Wershe was implicated in a stolen car ring, the details of which he disputes. He pleaded guilty to racketeering, he says, after prosecutors threatened to arrest his mother and sister.

Wershe -- a father of three 30-something children, all born in the three years before he went to prison -- was in solitary confinement in Florida in 2005 when a jailer told him his oldest daughter had delivered his first grandchild, a boy, he said.

"I said, 'Oh, you must have misunderstood. My daughter was having a girl,' and she said, 'No, you had a grandson.' She said sometimes those things are wrong, and today he's a 16-and-a-half-year-old kid, an honor roll student and going to graduate school a year early and get a jump on college," the proud grandfather said.

Wershe would miss the births of all six of his grandchildren, one of whom he will meet for the first time on a road trip to Indiana next month. The youngest is 7.

He was sent back to Michigan after his racketeering plea. Upon winning parole, he walked out of prison in August 2017 -- and into the transport van of US Marshals, who took him back to Florida, where he would serve three more years.

Pivotal to his release was the testimony of two ex-FBI agents, one of whom is named in Wershe's lawsuit. The other is Gregg Schwarz, who confirmed in a 2012 letter to Michigan's parole board that Wershe had worked undercover and assisted with investigations into the 13-year-old's murder, the Detroit drug gang and Operation Backbone.

"At the time, his age was a factor and would have been an embarrassment to the federal government," Schwarz wrote. "Several agencies promised intervention but it never occurred. Richard continued to cooperate."

In the "White Boy" documentary, Schwarz joined other sources, including a gang leader and convicted drug trafficker, in telling filmmakers Wershe had no henchmen, no territory. Tales of him being a ruthless kingpin are overblown, they said.

"I'm sorry to tell you that the legend of White Boy Rick is just not true," Schwarz said.

Released on July 20, 2020, Wershe has been working to cement that message. His Instagram feed contains no glorification of his days as a baller. Rather, it shows him golfing, fishing and hanging out with fiance Michelle MacDonald. The two met in middle school and cultivated a romantic relationship about five years ago.

They've adopted two feral cats -- Bonnie and Clyde, he says, smirking, sipping from a water bottle -- and a pair of rescue Shih Tzu-Pomeranians, Sophie and Rosie, who are heavily featured in his timeline. Alongside the pups are images of Wershe chumming about with business owners and celebrities, including "Hitman" Hearns and Hall of Fame running back Barry Sanders, another of Detroit's favorite sons, although adopted.

"The circle that I'm around is amazing," Wershe said. "The love and support that I'm getting is amazing."

It hasn't been all celebration. In an affidavit, MacDonald said her fianc suffers trauma stemming from his experiences with Detroit's underground and the broken promises from authorities.

"Rick frequently wakes us both up from sleep by having nightmares, which jar him awake and which he has told me are about his being shot when he was 15, and then later his being left in prison," she wrote.

Wershe gets anxious passing prisons, remembering the horrors he's seen, including inmates stabbed in the neck and sliced from mouth to ear, he said. One of his neighbors hanged himself in his cell, he said.

After his release, he was pulled over for speeding, and "I truly felt like I was going to have a heart attack because of the fear," he said, growing emotional again. The officer gave him a warning and told him to slow down.

Detroit school board member and former state lawmaker Sherry Gay-Dagnogo met Wershe in January. At last week's news conference, she lauded the work he's done to improve the criminal justice and foster care systems, while feeding and clothing the less fortunate and helping build a ramp for a paraplegic friend.

"He's trying to find a way to make his life -- the pain and suffering that he endured -- a pathway and a light to guide those so they will never ever have to deal with situations like that," she said.

Speaking to CNN, she praised his involvement with the Team Wellness Center, a local mental health services provider, and said so much of Wershe's work is aimed at combating inequity and creating alternatives for those headed toward incarceration. He also speaks with ex-convicts who "don't understand the path forward," she said.

"Rick has continued to mushroom in this space, growing in this space of being a voice, being an advocate, giving back," she said. "He's a connector."

Wershe enjoys helping others, but he prefers being a role model, he said: "If I set an example and get other people to follow me, I think I'm doing more than just feeding somebody for a day."

Gay-Dagnogo doesn't believe he has revenge in his heart, she said. He vacillated for months on whether to file his lawsuit, ultimately deciding he wanted his story on the record to ensure no more youngsters faced his travails, she said.

The White Boy Rick persona wasn't Wershe's idea, he told reporters this month, addressing many of them by name. But if he can use it as a platform to draw attention to important initiatives, he's fine with the moniker.

Asked where he finds inspiration after 32 years and seven months in a cage, Wershe said he read loads of books in prison, but he brought only one home: Viktor Frankl's "Man's Search for Meaning," sent to him by screenwriter Scott Silver of "Joker" and "8 Mile" fame. The book chronicles Frankl's and fellow prisoners' experiences in Nazi concentration camps.

"When I read it, it just gave me meaning. It showed me that what I was going through is nothing compared to what this man went through, so it made me stronger, and I needed that push at the end (of my time in prison)," he said.

He can't let anger consume him, he said. It will eat away at him. It won't touch another soul, he said.

"People say, 'It's amazing to me you're not bitter,'" he said. "I'm not bitter because if I'm bitter, they're still winning."

The-CNN-Wire & 2021 Cable News Network, Inc., a WarnerMedia Company. All rights reserved.

View original post here:
FBI and Detroit police taught 'White Boy Rick' the drug game then double-crossed him, he says. Now, he wants $100 million - WDJT

This past Friday, attorneys for disgraced Dodgers right-handed pitcher Trevor Bauer and the petitioner who accused him of sexual assault in the civil restraining order case against him appeared in court. The headlines were that the hearing was continued to three days in August for the presentation of testimony and evidence by the two sides, but what occurred at the hearing before the continuance was issued perhaps was of greater import.

Bauer was represented at the hearing by Shawn Holley, who is widely considered among the best criminal defense attorneys in the country in private practice. Holley has represented Lindsey Lohan, the Kardashian and Jenner families, and served on O.J. Simpsons defense team, among other notable cases. In short, Holley is really good. That made her strategy at Fridays hearing notable when it came to a colloquy about Bauer himself testifying.

There is a pending criminal investigation, Holley said to Superior Court Judge Dianna Gould-Saltman. For that reason, I and Mr. (Jon) Fetterolf (Bauers agent) have advised Mr. Bauer not to testify about any of the substance of this matter. My question is ... does the court intend to have him take the stand and invoke?

Holley suggested Bauer could invoke the Fifth Amendment privately in chambers instead of open court and also suggested the judge ask him at the appropriate time whether or not he intends to follow my advice.

Having him take the stand and invoke with each question has no probative value at all (and would be) nothing more than a prejudicial exercise given the media attention in this matter, Holley said.

An attorney for the woman said, Under civil law, he does have to take the stand.

He does have to invoke his right with respect to each question, so we would ask that he do so, said the attorney, Lisa Helfend Meyer. There may be some questions that answers might not tend to incriminate.

The judge indicated Meyer was correct.

Lets break down what this means, and then well dive into why this matters.

The Fifth Amendment to the United States is one of the most important. Most people think of it as the amendment that talks about your right to remain silent, but it actually doesnt say that exactly. Ive boldfaced the part that matters to us here.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In other words, the Fifth Amendment says that the government cant compel you to testify against yourself, which includes a right against self-incrimination. The most basic application of this right is that the prosecution cant call you as a witness in your own criminal trial, and cant ask the jury or judge to draw any adverse conclusions from your refusal to testify. The more modern conception of a right to remain silent comes from the U.S. Supreme Court decision in Miranda v. Arizona, and yes, that is where the term Miranda rights - which youve seen on every cop show - comes from. Miranda explained that the Fifth Amendments protection against self-incrimination means little if you can be forced to speak or incriminate yourself before the trial begins. Cue Chief Justice Warren:

Our holding will be spelled out with some specificity in the pages which follow, but, briefly stated, it is this: . . . Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

What does this have to do with Bauer? Actually, quite a lot. You see, the restraining order case is civil - and the plain language of the Fifth Amendment means that it applies to criminal cases and proceedings, not civil cases. In other words, you can be called as a witness against yourself in civil proceedings, and the Fifth Amendment is not a defense to purely civil matters. However, since the U.S. Supreme Court case of Pillsbury Co. v. Conboy, its been clear that statements you make in a civil matter can be used against you in a criminal case. So how do you navigate this?

In other words, lets say that John and Jacob are in a car accident. There are no criminal statutes implicated; no one did anything criminally wrong, but John was civilly negligent. Perhaps he failed to brake quickly enough, or he was following too closely, or there was someone in his blind spot; it doesnt matter. Jacob can call John as a witness and force him to answer questions about the accident and his negligence.

But now lets assume that John was texting whilst driving and that doing so is a crime in the state of Jingleheimer. Jacob can call John to the stand and ask him questions, but if John answers, those statements can be used against him in a later criminal proceeding. So John has two choices:

Most attorneys correctly conclude that being ordered to pay money is better than being found guilty of a crime, and so Ms. Holley, quite correctly and properly, has instructed Bauer to remain silent and invoke his Fifth Amendment rights. Now, in order to invoke this right to remain silent, you - somewhat paradoxically - cannot remain silent. The Supreme Court held in a case called Salinas v. Texas that you must properly say you are invoking the right to remain silent, not just sit there and be silent. On television, you often see a dramatic moment where a person cries I invoke my right to remain silent under the Fifth Amendment on the grounds that the answer might serve to incriminate me, which is a terrible answer that actually does a really bad job of invoking the Fifth Amendment. In reality, I invoke the Fifth Amendment is often enough, but its a lot more boring for television.

In any event, this creates a scenario where, in civil cases, a defendant or witness can answer I invoke the Fifth Amendment over and over again in response to questions. Thats why Ms. Holley wanted Bauer to invoke the Fifth Amendment just once in chambers because the spectre of Bauer invoking the Fifth Amendment repeatedly will justifiably cause the court to draw adverse inferences from his answers. The problem for Bauer - as Meyer correctly pointed out - is that drawing such an adverse inference in this particular case is entirely proper. Bauer is allowed to invoke the Fifth Amendment so as to avoid having his testimony be used against him in a later criminal proceeding. However, in doing so, he necessarily accepts the adverse inference in the civil case associated with his invocation.

Ms. Holley knows this, of course, and she also knows that because California follows the adverse inference rule for invocation of the Fifth Amendment in civil cases, it doesnt really matter where the invocation occurs; the court will draw the same adverse inference wherever Bauer invokes the Fifth Amendment. The evidentiary standard for a civil proceeding, like this restraining order hearing, is a preponderance of the evidence; that is, more likely than not. It is proper for a judge to conclude in a civil case (but never in a criminal case) that based on Bauers invocation of the Fifth Amendment, it is more likely than not that he did what is alleged in the petitioners pleadings, and Holley knows this too.

However, Holley noted the media attention in this matter, and thats what she actually cares about. After weeks of protesting his innocence in the media, Bauer would look, frankly, really bad if hes invoking the Fifth Amendment in the restraining order case on question after question. Holley doesnt want the media to draw the same adverse inference as the court will. After all, the existence of the adverse inference will make it really hard - though by no means impossible - for Bauer to win this hearing.

Now, to be clear, Bauer - and every other person facing potential criminal or civil liability - is and should be entitled to excellent legal defense. However, thats not whats happening here. Holley - and the rest of Bauers team - are fighting this case in the media. They want to keep Bauer off the stand because of how it will look when he testifies. Thats also why his team continues to harass and threaten members of the media (though with far less skill).

Holley also filed a motion asking for $30,000 in attorney fees as sanctions from the petitioner for purportedly improper subpoenas, a hyperbolically overinflated request even if the motions had merit. Again, this entire strategy seems designed to harass and disincentivize other potential witnesses and accusers.

At a certain point, though, Bauers scorched earth approach will backfire in the courtroom as well. Reports surfaced this weekend that the majority of Bauers teammates dont want him back in the clubhouse under any circumstances. Given Bauers conduct, thats perfectly understandable.

Sheryl Ring is a consumer rights and civil rights attorney practicing in the Chicago, Illinois area. You can reach her on Twitter @Ring_Sheryl. This post is for informational purposes only and is not legal advice, and does not create any attorney-client relationship.

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Trevor Bauers Hearing Strategy Is A Trial In The Court of Public Opinion - Beyond the Box Score

BRONX, N.Y. (WROC) New Yorkers will be shocked when they hear the full story regarding the New York Attorney Generals investigation into sexual harassment claims made against Gov. Andrew Cuomo, the governor said Monday.

The governor made the comments during the question and answer session of a coronavirus briefing at Yankee Stadium. When asked about the investigation, the governor said:

In general, with the attorney generals review, let the process continue, Gov. Cuomo said. Let the facts come out. Im very eager to get the facts to the people of this state, and I think when they hear the actual facts of what happened, and how the situation has been handled, I think they will be shocked.

Shocked because at the end of the day, the truth wins, and facts when, and then I dont care what your bias, whether youre a reporter, and I am eager for the truth to come out and New Yorkers will be shocked, Gov. Cuomo said.

Investigators recently appeared to be close to finishing their investigation into the sexual harassment and misconduct allegations that have shadowed the governor for months.

The probe overseen by state Attorney General Letitia James, a fellow Democrat, is not a criminal inquiry but it could have significant influence on an impeachment inquiry in the state legislature that could result in the third-term Democrats removal from office. Any findings from the investigation that corroborate the allegations could sway impeachment proceedings or add to already sizable pressure for Cuomo to leave voluntarily.

Cuomos accusers gave sworn depositions to investigators, meaning they were under oath and faced the possibility of perjury charges if they lied. Andrew G. Celli Jr., an attorney who was chief of the civil rights bureau in the attorney generals office from 1999 to 2003, said he expects that Cuomo will be questioned under the same conditions.

Im sure it will be respectful but it will be rigorous. It will be detail oriented. It will not be a conversation or a chat or a discussion. It will be this question and answer format. Its very much unlike a press conference, said Celli, who is now at the firm Emery Celli Brinckerhoff Abady Ward & Maazel LLP.

Though the investigation is not criminal in nature, Celli said Cuomo can assert his Fifth Amendment right and refuse to answer questions he feels may incriminate him.

Celli Jr. recently served as the special investigator who oversaw Rochester City Councils independent investigation into the citys handling of Daniel Prudes death.

Thetiming of Cuomos interview with investigatorswas confirmed Thursday to The Associated Press by two people familiar with the investigation. They were not authorized to speak publicly about the case and did so on condition of anonymity.

Cuomo, in office since 2011, has rebuffed those calls and is moving forward with plans to run for a fourth term next year. Rivals, though, see a Cuomo weakened by scandal as politically vulnerable.

Cuomo raised $2.3 million from January through June down from $4 million in the second half of 2020, according to campaign finance filings released late Thursday.

James, who is independently elected and does not report to the governor, hired former Acting U.S Attorney Joon Kim and employment discrimination attorney Anne Clark in March to lead the inquiry. Their findings will go in a public report.

Several women have accused Cuomo of unwanted kisses, touches and groping and inappropriate sexual remarks. Former aide Lindsey Boylan said Cuomo once suggested a game of strip poker aboard his state-owned jet. Another former aide, Charlotte Bennett, said Cuomo made sexual advances by making unwelcome comments, including asking if she ever had sex with older men.

Cuomo initially apologizedand said he learned an important lesson about his behavior around women and would fully cooperate with the investigation. Since then, hes denied that he did anything wrong and questioned the motivations of accusers and fellow Democrats who have called for his resignation.

Cuomos spokesperson, Rich Azzopardi, on Thursday claimed without evidence that leaks about Cuomos interview were more evidence of the transparent political motivation of the attorney generals review.

Debra Katz, Bennetts attorney, said the governor is deflecting from his own conduct by trying to attack the attorney general and the investigation.

It suggests hes trying to give himself an out if he doesnt like what they come up with, Katz said.

There is no deadline for completing the investigation. A 2010 probe Cuomo oversaw as attorney general into his predecessor, Gov. David Paterson, lasted about five months.

The state Assemblys Judiciary Committee, which is conducting the impeachment inquiry, also has the power to subpoena documents and witness testimony. It could rely on work done by the attorney generals team of investigators, or gather its own evidence.

The scope of its inquiry goes beyond Cuomos conduct with women. The governor is also under fire for his handling of theCOVID-19 crisis in the states nursing homes.

The committees work could result in the drafting of articles of impeachment against Cuomo, though that outcome is far from certain.

Cuomos campaign has paid $285,000 in legal fees to a firm representing him as he faces the sexual misconduct allegations. Taxpayers are on the hook for nearly $760,000 in legal fees to a law firm representing the governors executive chamber as federal prosecutors probe how the Cuomo administration reported coronavirus deaths of nursing home residents, according to the campaign finance filings.

___

Sisak reported from Port St. Lucie, Florida. Associated Press writer Michael Balsamo contributed from Washington, D.C.

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Gov. Cuomo: New Yorkers will be shocked when they hear facts of AGs harassment investigation - RochesterFirst