Category Archives: Fourth Amendment

Federal jurors on Thursday found that two Bexar County sheriffs deputies violated the constitutional rights of a domestic violence suspect they shot and killed in a controversial 2015 case and awarded his family $10.35 million.

Relatives of Gilbert Flores, who had his hands up and held a knife when he was shot, wept upon hearing the verdict and hugged to console each other. They left the courtroom without comment after being advised by their lawyers not to talk. The trial attorneys also declined comment.

Deputy Greg Vasquez and since-retired Deputy Robert Sanchez turned to their lawyers in bewilderment upon hearing the verdict. They also didnt comment.

A video frame grab shows Gilbert Flores with his hands in the air and two Bexar County deputies, guns drawn, attempting to arrest Flores. Less than a second later, Flores would be shot and killed by the deputies. The video was shot by a neighbor and was released by the sheriff's department on Friday, 12/11/15.

A video frame grab shows Gilbert Flores milliseconds after being shot by deptuies while his hands were up but holding a knife. As he fell, the knife can be seen in his left hand as it touches the ground and Flores collapses. The video was shot by a neighbor and was released by the sheriff's department on Friday, 12/11/15.

Contributed

During the trial, the Flores familys lawyers argued that the deputies wrongly used deadly force and executed Flores in an incident that was captured on witness videos. They urged jurors to find that the deputies violated Flores Fourth Amendment right to be free from the use of excessive force.

The lawyers, with the Thomas J. Henry law firm, asked the jury to award six of Flores relatives at least $1.5 million apiece in compensatory damages, plus unspecified punitive damages.

One of the lawyers, Robert Wilson, told jurors to send a message with their verdict that similar conduct by police will not be tolerated.

If you talk with a meek voice, its not going to get the attention it merits, Wilson said. That voice has to be strong, it has to be powerful and it has to (say), No! No! No! Thats why a large amount is going to send that message.

After deliberating for more than four hours, the eight-member jury returned a verdict that found both Vasquez and Sanchez liable for violating Flores civil rights. Jurors also found a long-standing legal doctrine known as qualified immunity should not shield the deputies.

The jury awarded $1.425 million in compensatory damages against each deputy. Jurors also awarded $5 million in punitive damages against Vasquez and $2.5 million in punitive damages against Sanchez.

The family had also sued Bexar County, but a judge dismissed it from the lawsuit in 2017, leaving only the deputies as defendants. While the deputies may be on the hook, county officials have previously said the countys insurer might have to pay if the deputies lost because the deputies were on duty at the time of the incident.

According to testimony, Flores mother, Carmen Flores, called 911 on Aug. 28, 2015, to report her son had assaulted his wife, Maritza Amador, and their infant daughter at Carmen Flores home. Gilbert Flores could be heard on the call saying he was going to commit suicide by cop. Flores and Amador were living at his parents home in far north Bexar County at the time.

Vasquez responded first, with Sanchez arriving shortly thereafter. An encounter ensued during which Flores used a knife to try to stab the deputies, used a chair to block an attempt by one deputy to Taser him, tried to use the Taser against the deputies and attempted to get into a patrol SUV that had the keys in it and a rifle.

Over police radio, supervisors had given the deputies orders to use whatever means necessary to end the matter after learning of some of the things that Flores had done to endanger the deputies or to potentially endanger his own family in the house.

While those incidents were not disputed, the main disagreement was over whether Flores posed an imminent threat in the the final moments, when the two deputies decided to shoot him.

Wilson argued that testimony established that the deputies were no longer in imminent danger when Flores was standing still and raised his hands to surrender.

You just dont shoot somebody when they are standing still and surrendering, Wilson said.

Wilson and co-counsel Richard Hunnicutt accused the deputies of lying during subsequent investigations, such as Vasquez claiming Flores was advancing and 6 to 8 feet from the deputies when they fired. The family lawyers said the video contradicted the deputies and investigations determined Flores was more than 20 feet from either deputy.

But the deputies lawyers, Charles Frigerio and Hector Xavier Saenz, argued that neither deputy wanted to shoot Flores but did so because Flores continued to be a threat during the chaotic encounter and Flores refused repeated commands to drop his knife. The attorneys argued that the deputies had to make a quick decision during a tense situation and may have gotten some details innocently wrong.

In December 2015, a Bexar County grand jury declined to indict the deputies on criminal charges.

guillermo.contreras@express-news.net | Twitter: @gmaninfedland

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Jury awards more than $10 million to family of man shot by deputies while he had hands up - San Antonio Express-News

A 2016 dispute between neighbors that began when a 7-year-old boy was accused of littering escalated into a violent confrontation with Fort Worth police officer William Martin, who arrested the boy's mother, Jacqueline Craig, and three of his sisters. Craig says Martin, in addition to forcing her to the ground with a taser to her back, kicked her 15-year-old daughter ("J.H."), hit her 14-year-old daughter ("K.H.") in the throat, and, after handcuffing her 19-year-old daughter, Brea Hymond, "hyper-extended her handcuffed arms by flexing them above her head in order to cause pain." Martin's body camera video suggests all this happened because he was irked when Craig angrily berated him for condoning an assault on her son and criticizing her parenting.

Because the legal justification for Martin's use of force was unclear, a federal judge ruled that Craig could proceed with her lawsuit against him. But last month, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit concluded that Martin had done nothing illegal. That assessment seems highly dubious even based on the undisputed facts of the case.

Martin was responding to two 911 calls. One call was from Craig's neighbor, Itamar Vardi, who according to the 5th Circuit reported that "several people were on his property arguing, had refused to leave, and were intentionally throwing trash in his yard." The other call was from Craig, who reported that Vardi had admitted to grabbing her son by the neck, supposedly because he refused to pick up his litter.

From the outset, Martin did not take Craig's complaint seriously. "Why don't you teach your son not to litter?" he asked her. According to Craig, who is asking the 5th Circuit to rehear her case, her son had "accidentally dropp[ed] raisins on the sidewalk in front of Vardi's home." But even if the boy had deliberately littered, Craig told Martin, that did not give Vardi the right to lay hands on him. "Why not?" Martin asked. "Because it don't!" Craig replied. "What do you mean?"

Angered by Martin's blas attitude and his presumptuous criticism, Craig raised her voice, castigating him for his response. "Why are you yelling at me?" Martin said. "If you keep yelling at me, you're going to piss me off, and I'm going to take you to jail."

Things quickly got worse from there. But by Craig's account, neither she nor her daughters did anything to justify Martin's violent response. Martin's body camera video suggests he lost his temper because he did not like Craig's attitude.

U.S. District Judge John McBryde concluded that the record, which includes Hymond's cellphone video as well as the body camera footage, "is too uncertain to discount the plaintiff's version of what transpired." McBryde rejected Martin's motion for qualified immunity, which shields police officers from liability when their alleged misconduct did not violate "clearly established" law. While "it may well be that a jury would determine that Martin did not use excessive force," he said, "the court is unable to determine as a matter of law that Martin is entitled to qualified immunity."

When Martin appealed, however, the 5th Circuit accepted his version of events, which it was not supposed to do at this stage unless the existing evidence "blatantly contradicted" Craig's claims. McBryde thought it did not. But the appeals court, for reasons that are not entirely clear, disagreed. In a decision written by Chief Judge Priscilla Owen, the 5th Circuit concluded that Martin's manhandling of Craig et al. "was not objectively unreasonable." In any case, the court added, his conduct did not violate "clearly established" law.

In their petition for an en banc rehearing, Craig and Hymond argue that the 5th Circuit panel improperly discounted their claims and improperly substituted its assessment of the evidence for McBryde's. They also argue that the panel erred by determining that Martin's use of force did not violate "clearly established" constitutional rights, since case law makes it clear that the Fourth Amendment prohibits using force against a nonresistant arrestee.

The Institute for Justice (I.J.), in a brief supporting Craig's petition, zeroes in on Martin's decision to use a "pain control maneuver" on Hymond after he handcuffed her because she "did not immediately answer" when he asked for her name and age:

After Martin secured Hymond's mother and little sister in the back of his police vehicle, after the situation was de-escalating, after any conceivable threat to anyone's safety was fully extinguished, Martin unnecessarily re-escalated the encounter by confronting Hymondwho had been recording the incident from a distance and yelling at the officer that she was doing sograbbing her, shoving her against his patrol car, ripping the phone out of her hand, and placing her under arrest for "interfering." But Martin's display of authority did not end there.

While Martin stood by his patrol vehicle, effortlessly holding Hymond by his side with a single hand, Hymond repeated that she saw Martin "kick her," referring to J.H. In response, Martin started questioning Hymond: "How old are you? What is your name?" Hymond did not immediately answer his questions. So, with Hymond's hands restrained behind her back, Martin jerked her arms up into the air, applying a pain control maneuver taught in police training, and repeated the question, enunciating in a slow, purposeful staccato: "What. Is. Your. Name?"

The 5th Circuit dismissed that use of force as "relatively minimal," adding that Martin jerked Hymond's arms "only after Hymond refused to provide Martin with her name." But deliberately inflicting pain on a nonresistant arrestee to obtain information is "obviously unconstitutional," I.J. says, and the appeals court's alarming acceptance of that practice needs to be corrected.

While the 5th Circuit described Hymond as "resisting," its basis for that characterization is thin. "Hymond was shouting at Martin throughout the entire confrontation," Judge Owen wrote. "She did not comply with any of Martin's commands or instructions.Hymond continued to verbally deride Martin while Martin was lifting her arms and immediately after he put her arms down. Given Hymond's continued resistance, Martin's use of force against Hymond was not objectively unreasonable."

Hymond's "shouting" was understandable given what was happening to her family, and criticizing a police officer, even loudly, is not a crime. Her alleged failure to comply with Martin's commands is likewise understandable given that he seemed to be arresting her because he was irked by her filming and her criticism. But notably missing from the 5th Circuit's summary is any allegation that Hymond assaulted or physically resisted Martin. And by the court's own account, the justification for the pain control maneuver was that Hymond refused to give Martin her name.

"Every reasonable officer would have known that inflicting pain to compel someoneto answer questions offends the Constitution," says the I.J. brief, which was joined by the American Civil Liberties Union. "If this decision stands, the law in this circuit is that an officer can purposefully inflict pain on a restrained, non-resisting person to compel her to speak, as long as, in the court's subjective opinion, the force was 'relatively minimal.'"

In reaching that conclusion, the 5th Circuit contrasted Martin's treatment of Hymond with cases in which police officers had inflicted more serious injuries. "The plaintiffs point to a case from this court in which the officer slammed a nonresistant suspect's face into a nearby vehicle, breaking two of her teeth," Owen wrote. "They point to a decision from another circuit in which multiple officers punched, kneed, and kicked a suspectwhile he was handcuffed on the groundseverely enough to fracture the suspect's neck." Martin's use of force against Hymond, the panel said, was "far less severe."

But the Supreme Court has warned that alleging a violation of "clearly established" law does not require locating a precedent with identical facts. The issue, it explained in the 2002 case Hope v. Pelzer, is not whether the "very action in question has previously been held unlawful" but whether officials had "fair warning that their alleged [misconduct] was unconstitutional." In Hope, the Court deemed it "obvious" that handcuffing a shirtless prisoner to a hitching post for seven hours in the hot sun violated the Eighth Amendment's ban on "cruel and unusual" punishment.

In two recent decisions that overruled the 5th Circuit, the Court reiterated that a constitutional violation can be obvious even when there is no precedent involving closely similar conduct. In the 2020 case Taylor v. Riojas, I.J. notes, "the Court reaffirmed that precedent was not necessary to fairly notify officials that forcing a prisoner to sleep in a cell teeming with excrement is unconstitutional; it was obvious that the 'conditions of confinement offended the Constitution.'" In the 2021 case McCoy v. Alamu, "the Court reversed this Court's grant of qualified immunity to an official who pepper-sprayed a prisoner in the face 'for no reason at all.'"

These rulings, I.J. says, establish that "obviousness can provide fair warning of unconstitutionality," which means Hymond need not locate "a factually identical case on pointone where an officer used a pain control maneuver on a restrained, non-resisting suspect to force her to answer his questions." Even without such a precedent, "every officer was on notice that he could not strike a non-resisting suspect, and it is well-established in this circuit that 'qualified immunity will not protect officers who apply excessive and unreasonable force merely because their means of applying it are novel.'"

While the issue for the 5th Circuit was whether Martin used excessive force while arresting Craig and her daughters, the arrests themselves seem utterly gratuitous. The circumstances suggest that Martin decided to punish Craig et al. because they were loudly questioning his demeanor, competence, and behavior.

Craig's initial offense supposedly was interfering with Martin's duties, but her interference consisted of yelling at him after he suggested that assaulting her son was a justified response to littering and faulted her for not raising him properly. The two other charges against her, resisting arrest and failing to identify herself, were contingent on Martin's hotheaded decision to arrest her in the first place.

Hymond likewise was charged with interference, which again was limited to yelling at Martin. As with Craig, Martin tacked on resisting arrest and failure to identify.

J.H., the 15-year-old, was handcuffed and forced into Martin's police car, but she was not charged with anything. K.H., the 14-year-old, was taken to a juvenile detention facility, where she was released without charges.

All the charges against Craig and Hymond were dropped. Whatever you make of the excessive force claims, it seems clear that the whole incident could have been avoided if Martin had not been so keen to assert his authority and protect his bruised ego.

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The 5th Circuit Approves a Cop's Violent Response to a Dispute Over a 7-Year-Old's Littering - Reason

True representative democracy depends on making access to voting a realistic option for all.

The fundamental task for American democracy today is to create an inclusive political order.

An inclusive order includes everyone. It fundamentally entails creating a political and constitutional structure that takes seriously the right to vote and assures that right is not undermined for any group, whether on the basis of race, ideology, or geography. The future of voting rights law and policy should focus on developing a new political and legal consensus in which voting is regarded as a universal and fundamental right, made available to all.

Throughout U.S. history, race and political power have long been interrelated. Structural political inequality and structural racial inequality have been mutually reinforcing, so solving racial discrimination in voting will require a vigorous commitment to resolving political inequalityand vice versa. In other words, commitment to political equality must include a commitment to eradicating racial discrimination in voting. To eradicate discrimination in voting and achieve real political equality, election law must become centralized and nationalized. States should thus be precluded from regulatory practices that undermine inclusiveness and political equality.

In an inclusive political order, the current conception of state sovereignty in setting election rules has no role to play. That current conception holds that a state can effectively discriminate on the basis of race because the only way to stop the state is by proving it acted on the basis of a racial motivation.

In effect, election law today allows a state to engage in a kind of legal arbitrage in their election rules. If states can justify election rules on the basis of politics or political ideology, even though these two things can be interrelated with race, the Court will not say anything about what the state has done. This practice must change. State governments should not regulate the elections franchise in ways that keep it from being effective for anyone. The franchise should be effective for all, and state governments should not be allowed to change voting rules to make it harder for citizens to vote on the basis of race, party, or other ideological grounds or impose other barriers to political participation. Only then can the United States break free of the ways in which structural political inequality and structural racial inequality are intertwined

Perhaps no other U.S. Supreme Court case as vividly presents the important symbiotic relationship between structural political inequality and structural racial inequality as does Gomillion v. Lightfoot, decided in 1960. In that case, the Supreme Court struck down on Fifteenth Amendment grounds the Alabama legislatures decision radically redrawing the electoral district for the city of Tuskegee to exclude Black people from the voting pool. A quick look back at that case helps map out the possibilities for thinking about how to deal with racial discrimination today. This examination can reveal insights about what is needed in the wake of efforts by many recent state legislatures to regulate the voting process in ways that purport to be based on grounds other than race, but which serve only to reinforce structural racial inequality.

Gomillion posed an epistemic challenge for civil rights advocates. They had to prove that the redrawing of the boundaries of Tuskegee was a racial gerrymandera segregation of the racesand not a political gerrymander or simply a remapping of the municipal boundaries. A racial gerrymander would have been unconstitutional, but a political gerrymander, or a mere change in the municipal boundaries, was within the states sovereign power under the law of the time.

Although the state statute in Gomillion did not say anything about race, or really anything other than latitude and longitude of the electoral district for the city of Tuskegee, there was no doubt that the remapping of Tuskegee was a blatant racial gerrymander. Sam Engelhardt, the state senator who authored the statute in the Alabama legislature, was crystal clear about the statutes purpose. He said he wanted to exclude colored voters who might become the balance of power in Tuskegee city elections.

But according to the existing legal doctrine of the time, state legislators motivations, as long as they did not appear evident in the terms of the statute, were not a relevant consideration for ascertaining the constitutionality of the statute. So, unless the plaintiffs could convince a court and the Supreme Court to take motive into account, or that the redrawing of the lines was a racial gerrymander, the courts would defer to Alabama, as they did in both the district court and the U.S. Court of Appeals in Gomillion. These lower courts deferred to the states argument that, as long as the state was not expressly engaged in racial discrimination, its sovereign right to implement its own conception of political equality ought to be respected.

Although Gomillions lawyers did not have much admissible evidence showing racial motivations, they did have the redrawn map showing the new boundaries of Tuskegee. The map itself illustrated the egregiousness of the states racial discrimination. Look at the map, the civil rights lawyers urged when the case reached the U.S. Supreme Court. The lines of the map represented how Alabama removed almost every single registered Black voter from the City of Tuskegee but not a single white person, much less a white voter. The jagged lines of the map made clear that this was not a normal redrawing of the municipal boundaries. After being redrawn by the state legislature, Tuskegee had gone from basically a large square to a much smaller 28-sided town. The new map removed every single one but four or five Black registered voters from the confines of the city. The states exclusionary purpose and effect was revealed by the map.

Everyone knew what the state was doing: preventing Black people from being able to register and to vote. Tuskegee was a racial oligarchy. Before the line redrawing, the majority population in Tuskegee was Black, outnumbering white people five to one. But white people held all the political power. No Black people held an elected position at any level in the city or county.

Legally, the challenge for the plaintiffs lawyers in Gomillion was getting around the states reliance on the theory of state sovereignty. That theory shielded the states voting discrimination against its Black citizens under the cloak of neutrality. The state argued that the redrawing of Tuskegees borders was just that: It was a map that drew new boundaries of a subsidiary of the state. It did not separate the races upon its face. Alabama even argued that lawsuits about political boundaries were nonjusticiable because they raised questions that the federal courts did not have the power to decide. The states arguments in Gomillion contained the seeds of what has become the modern legal framework, in which the Court declared in 2019 that challenges to gerrymandering are now nonjusticiable.

Gomillion vividly reveals the symbiotic relationship between structural political inequality and structural racial inequality. Alabamas plan to remove Black residents from Tuskegee was possible and submissible only because the Constitution allowed the states to create unequal political units. The Court had not been interpreting the Constitution to require states to create political units that weighed votes equally. Instead, the Court had allowed states to create oligarchies.

Alabama was thus subject to two different constitutional regimes: one that required it to grant its citizens equal suffrage rights on the basis of race, but another that allowed it to do whatever it wanted with citizens in its political units. In the first, the state was regulated, and, in the second, it was unregulated

Correspondingly, Black citizens were also subjected to two different types of legal regimes. If they were categorized on the basis of their race, they were entitled to equal suffrage rights. But if they were categorized by geography, political unit, or political party, they could then be treated unequally.

These different regimes presented Alabama with an arbitrage opportunity. The constitutional system would prevent Alabama from denying suffrage rights to Black people, but would not prevent Alabama from favoring one set of political units over another. Alabama could still achieve its racially discriminatory aimoppressing the voting rights of its Black citizens by placing them in disfavored political units. The state simply needed to convince the federal courts that the Constitution gave it the right to elect between two different regulatory regimes. And so long as Alabama could shield its racism behind the veil of state sovereignty, despite what everyone knew was going on, Alabama could maintain both its racial and political oligarchy

But racial oligarchy and political oligarchy are intertwined, and it is hard to have one without the other. In Gomillion, the question was whether the federal courts were willing to go along. They almost diduntil the case reached the Supreme Court. The Court ultimately rejected the approach taken in the lower courts and decided that the unconstitutional racial purpose was evident from the map itself. It held that the Fifteenth Amendment barred the redrawing of Tuskegees boundaries in a way that removed virtually all its Black voters.

Nevertheless, Gomillion demonstrates the challenge that plaintiffs face today when bringing voting equality claims because of the legal systems default presumption of plenary and legitimate state power. The law in many respects still views state authority as presumptively legitimate. When the state regulates on the basis of its authority to structure its local electoral process, the courts tend to defer. In part, they do so because claims of racial discrimination can raise significant epistemic uncertainties; the questions can be very complicated. Is a voter ID requirement a racially discriminatory device? Or is it simply the state deciding for itself what to do with its local system?

Gomillion presented a multifaceted puzzle that has long bedeviled the courts. How should constitutional law respond to the intersection of structural racial and political inequality? Law and politics jurisprudence has generally offered four approaches when confronted with structural political and racial subordination.

The first approach is pure and unquestioned judicial deference to the states supposed sovereign right to determine its voting rules and arrange its electoral institutions in any manner consistent with the states values. This total deference approach rarely acknowledges either racial inequality or political inequality.

The second response is to acknowledge racial inequality but nevertheless defer to the state on plenary power grounds.

The third approach defers to the state on the theory that any racial inequality claim is, at bottom, a claim about political power and therefore indistinguishable from a claim of unequal political power.

Lastly, there is the approach of race exceptionalism, which is the argument that racial discrimination is an exception to the states plenary powers. A states officials can do whatever they want, and the courts will defer to themexcept when they are engaged in racial discrimination. This is the approach taken in Gomillion, where the Supreme Court decided that clear racial discrimination violates the Constitution even where the state has the right to structure its political framework in a manner it sees fit.

There is, though, still a fifth possible approach. But this approach has rarely found support in the courts. It concedes that structural racial inequality and political oligarchy are mutually symbiotic. Both types of inequality grow from each other, and the harm caused by one type is compounded by the other. Precisely because the harms caused by both types are compounded by their co-occurrence, they both require congressional or judicial oversight of state electoral policies. This approach is the one I recommend.

It is also an approach reflected in the Voting Rights Act (VRA), which was itself influenced by this idea that political equality and racial inequality are intertwined. For 50 years, the VRA provided the regulatory framework that placed the question of voting inequality at its center. Even though the Fifteenth Amendment was nominally the fundamental law of the land, the VRA gave promise and life to the Fifteenth and the Fourteenth Amendments and began to deliver on the implicit guarantees of self-rule under the Fourth Amendment. The VRA brought the South into the fold of representative democracy and signaled to the nation that a new era of both racial and political equality was at hand.

That regime ended in 2013 with the Supreme Courts decision in Shelby County v. Holder, in which the Court struck down Section 4(b) of the VRA, the provision that identified the jurisdictions required to obtain preclearance, and also sidelined Section 5 of the VRA, the provision that required preclearance. Section 5 of the VRA said that any state or locality subject to Section 4 had to preclear changes related to voting. The Courts decision in Shelby County, although not a surprise to voting rights experts, ended a regulatory framework in which racial discrimination was placed front and center in the regulatory firmament. From the Courts perspective, the VRA violated the conception of state sovereignty, the same basic idea that it had earlier rejected in Gomillion.

Shelby County thus effectively ended a regulatory regime that aimed for political inclusiveness, and its aftermath led to the current deregulatory world. The question, then, is where the United States ought to go from here?

The future of voting rights law should be grounded on full inclusivity and equality. Everyones right to vote must be taken seriouslyand conceptions of state sovereignty have no role to play in such a future. Neither the public nor the legal system should allow the government to regulate the franchise in ways that diminish its efficacy.

We need to mobilize today around the vision of inclusivity in much the same way that protest movements mobilized to bring about the VRA. Black activists saw the VRA as a means to remake the racial order by remaking the political order. That protest movement changed not only politics but also constitutional law. The task in the post-VRA world is to take the lessons learnednamely, that there is a strong relationship between racial hierarchy and political oligarchyand move forward toward a vision of a new world of equality.

What does this new world look like? It looks like two new statutes that have been proposed in Congress: the For the People Act and the Freedom to Vote Act. If you look at the Freedom to Vote Act, for example, it takes voting seriously as a fundamental right. It attempts to articulate best practices in organizing inclusive elections and then nationalizes those practices. It undermines the conception of state sovereignty in which the state has the right to create its political structure as it sees fit. It recognizes that the right to vote belongs to citizens, so it makes certain that everyone has access to practices such as early voting, mail voting, and no-excuse absentee balloting. It prevents partisan gerrymandering, provides remedies for vote certification, and modernizes voter registration. It recognizes the fundamental goal of making voting and political participation an important aspect of democracy.

To move forward in the 21st century, society must recognize that political equality and racial equality are mutually reinforcing and one cannot exist without the other. Admittedly, the U.S. public is extremely divided today and too many states are still engaged in discrimination on the basis of votingwhether on the basis of partisanship, race, or a combination of the two. And with current patterns of gerrymandering and redistricting in todays deregulatory environment, there are certainly reasons to be pessimistic.

But on the other hand, for the first time in a long time, a strong segment of the population wants to tackle not just voting equality questions, but also questions of electoral structures: the Electoral College, the composition of the Senate, different ways of organizing an alternative voting system. Today, all these issues are on the table. In addition, many jurisdictions have adopted same-day registration, early voting, and other best practices that make it easier for people to participate in elections. As a result, even though there are surely reasons for despair today, thinking about how far the United States has come in terms of political participation and anticipating where it might be five, ten, or fifteen years down the road, well, who knows? There is possibility for hope.

The question then becomes: How does the United States move beyond the present deregulatory posture of federal law and build a social movement for the purposes of making the legal change needed to ensure full democratic inclusiveness? I see that we need to build a new movement worthy of the civil rights movement that led in the mid-1960s to the Civil Rights Act and the Voting Rights Act. It is ultimately up to us to make that happen. It is up to us to move the ball forward to make political power and representative democracy true for everyone and for all of us.

This essay is based on remarks delivered at the Annual Distinguished Lecture on Regulation at the University of Pennsylvania Law School on November 2, 2021.

View original post here:
Creating an Inclusive Political Order - The Regulatory Review

Kim Davis, the previous Rowan County in Kentucky, violated the constitutional rights of two same-sex couples by denying them the license needed for marriage. The marriage of same-sex couples was made legal by a declaration in the Supreme Court of the U.S. in 2015.

It is still under discussion whether Kim Davis would have to pay a fine in the form of damages to those couples who were denied the right to marry. Though the judgment in the landmark case of Obergefell v. Hodges stated that same-sex couples can marry in 2015, still Kim Davis did not allow that in her Court. Thus, she was charged with contempt of court for this six-year ago mistake.

This Friday a ruling was given by David Bunning, the Judge of District Court of the U.S. that marriage is a fundamental right and will be included as per the Fourth Amendment in the Constitution of the U.S. Thus, Kim Davis violated the fundamental rights of David Moore and David Ermold and Will Smith and James Yates.

As per Bunning, Kim Davis cannot get past her violation with the defense of her own constitutional rights which allows her to perform her tasks as an official elected in the judiciary. The same-sex couples are demanding compensation, damages, and even money for legal fees that they spent in huge amounts in this lengthy court fight.

In the words of Ermold, the couple demanded compensation due to their horrible experience and humiliation for having different sexual orientations. The second couple also said that the damages would compensate them for all the negative publicity and threats they received for their argument with Kim Davis.

The Court has already decided that Davis has indeed violated the constitutional rights and the amount of damage is only left to be decided.

Here is the original post:
Judgement Passed Against Kim Davis For Violating Constitutional Rights - The Union Journal

By Lisa Macpherson and John BergmayerMarch 21, 2022

You know the old proverb about new wine in old bottles? Derived from a biblical parable, it refers to an existing concept or idea being offered as though it were a new one.

In our view, the EARN IT Act of 2022 is justold. Despite overwhelming objections to the original version based on how it would threaten free expression and jeopardize access to encrypted services, its sponsors have brought back the act with virtually every one of its flaws still intact. And it still will not accomplish its stated goal: to encourage digital platforms to report and remove more child sexual abuse material, or CSAM, by threatening their Section 230 protections for hosting it.

First, some background: The EARN IT Acts of both 2020 and 2022 establish a national commission to develop best practices for interactive computer services to moderate material that sexually exploits children, including CSAM. The original EARN IT Act conditioned Section 230 liability protections to platforms that follow these best practices. We warned how this bill could threaten user privacy and security when it was originally introduced back in 2020 (fact sheet here, and blog posts here, and here). The new EARN IT Act simply eliminates Section 230 protections for any interactive computer services provider facing a claim derived from child exploitation law.

Heres the truth about the bill as it was reintroduced last month:

The best practices of the national commission are still likely to result in discouraging platforms from using privacy-protecting technologies such as encryption. End-to-end encryption is one of the best technological tools to protect user privacy and safety. It ensures that no one except the sender of a communication and its recipient or recipients can read it. Combined with device security, end-to-end encryption protects users from bad actors and cybersecurity threats. It benefits journalists, activists, domestic violence survivors, military personnel, and children. However, one of the bills principal sponsors, Senator Lindsay Graham, has been an outspoken critic of tech companies use of encryption; another sponsor, Senator Richard Blumenthal, has argued that technology companies might use a blanket exemption for encryption as a get out of jail free card when it comes to platforms monitoring what users say to each other; members of the Judiciary Committee have held multiple hearings emphasizing the challenges encryption creates for law enforcement; and the national commission will be dominated by law enforcement leaders. It seems highly unlikely that its recommendations will still allow for end-to-end encryption. Its also possible the commission may institute a best practice that requires platforms to monitor content, and encryption will de facto mean the platform is in breach of that duty.

The new version of EARN IT still holds the same perils for online safety. It includes a specious new carve-out for encryption that was designed to address the overwhelming pushback from digital rights organizations, activists, and academics about the likely impact of the bill. But read closely: It notes that the use of encryption cant serve as an independent basis for liability. That means a platforms use of end-to-end encryption (or its inability to decrypt their users communications) can still be used as evidence against them in court, and if a plaintiff or a judge can find just one more little thing to support it, the carve out no longer applies. This will have the same effect as the 2020 version: targeting platforms that use end-to-end encryption to protect the content and communications of their users.

This risk still extends to both federal and state civil cases. Federal criminal law already requires platforms to report any CSAM they discover. It bears repeating: Section 230 has never protected platforms from federal criminal law related to CSAM. However, without Section 230, state criminal, and state and federal civil law, could impose new duties on platforms not just to report CSAM they discover, but also to more actively scan and monitor their users to uncover more. Platforms could be liable if they have designed their services with privacy in mind, so the bill encourages platforms to drop such user privacy and security features.

In sum, the true primary goal of the EARN IT Act of 2022 is still to encourage digital platforms to more actively monitor user communications, even if that means that they may no longer offer secure, encrypted communications for users. It happens to accomplish that goal by removing their Section 230 protections for CSAM. What the standard of liability would be for a provider without Section 230 for this material, and what role the best practices play (if any), is necessarily uncertain, as the bill simply removes a liability protection. The best practices themselves are not legally binding. The law does not specify what the new standard of liability would be, and it could vary state by state and over time as new laws are passed. Nevertheless, a clear goal of this legislation is to incentivize, with the threat of massive liability, platforms to change how they are designed and how user communications are monitored changes that would necessarily affect all users all the time.

We had, and have, other concerns about the EARN IT Act relative to the principles we have articulated to ensure proposals for Section 230 reform protect free expression online. You can see these on our Section 230 Principles scorecard for this bill (although the goal of EARN IT has more to do with law enforcement than content moderation).

Lastly, others have made cases for the unconstitutionality of the EARN IT Act on the basis of either the First or Fourth Amendment or both.

A Lesson in Unanticipated Consequences

As we write this, Congress has also just reintroduced a bill calling for an assessment of the unintended impacts of SESTA-FOSTA, the combined package of the Stop Enabling Sex Traffickers Act (SESTA) and the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) that passed Congress in early 2018. SESTA-FOSTA holds websites liable for user-generated content that facilitates sex trafficking, but overwhelming evidence indicates that it has had profoundly negative effects on the health and safety of sex workers and people engaged in consensual, transactional sex. It should serve as a proof point and a lesson that in the face of uncertainty about what legal standards will apply to their content moderation and business practices, platforms will necessarily over-moderate, silence protected speech, and shut down accounts and pages in order to minimize legal and financial exposure. In the meantime, the bad actors move to offshore sites and the dark web, making enforcement even more difficult.

We do not have to sacrifice the privacy and security of our online communications to stop the exploitation of children. There are ways that Congress can truly address the scourge of CSAM, like providing more enforcement resources and victim assistance or addressing the poverty and housing instability that make children more vulnerable. They can also adopt and pass the various bills designed to directly address real-life violence and abuse of women and children. Unfortunately, the new EARN IT Act still distracts from achieving that result and instead harms CSAM victims by giving the broader public the impression that EARN IT will actually do something to help them and future victims.

Any way you look at it, the new EARN IT Act is an old idea. Dont buy it.

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Is the new EARN IT Act new wine in an old bottle? Whatever it is, we're not buying it. - Public Knowledge

SAN ANTONIO A federal trial is scheduled to start today in a controversial 2015 case in which two Bexar County sheriffs deputies fatally shot a domestic violence suspect who raised his hands in apparent surrender.

The shooting came near the end of a 12-minute encounter with varying angles captured by witnesses videos.

Deputies Robert Sanchez and Greg Vasquez shot Gilbert Flores on Aug. 28, 2015, outside his parents home in north Bexar County, arguing that he still had a knife in his hand. They had been called to the home by his mother, who told dispatchers that Flores had assaulted his wife and their infant daughter, that there was blood everywhere, that he had a knife and was acting crazy. Flores, 41, is heard on the 911 tape saying he planned to commit suicide by cop.

U.S. District Judge Robert Pitman in 2017 dismissed Bexar County from the lawsuit filed by Flores family, but he determined Deputies Sanchez and Vasquez should stand a civil trial. The deputies appealed, but their arguments to toss the case failed.

Today a jury is scheduled to be picked for the trial before Senior U.S. District Judge Royce Lamberth.

A witness cellphone video of the shooting was first broadcast by a local TV station the day of the incident and went viral. A second one recorded by a neighbor from a closer angle emerged months later. The trial could include both recordings, testimony about the whole encounter, and what led to deputies being called to the home of Flores parents in the 24000 block of Walnut Pass, near Scenic Loop Road.

The familys lawyers, with the Thomas J. Henry law firm, and the deputies attorney, Charles Frigerio, filed trial briefs last week arguing what should, and should not, be put in front of jurors.

In the appelate file, justices noted that during the time his family called police, Flores can be heard on a 911 call saying: I got a knife and Im going to suicide by cop, so bring a SWAT team, or uh uh uh or whoever is going to be ready to pull the trigger because Im going to die today.

The familys lawyers argue the deputies unreasonably used deadly force in violation of Flores constitutional rights. They argue that one deputy turned to the other in a sign that they would not let the incident drag on and that they were going to follow a supervisors commands to do whatever you have to do.

The deputies agreed on ending this and opened fire, one after the other, just as Flores who earlier had tried to stab them, took away a police Taser, and came close to getting a deputys AR-15 rifle had seemed to stop his erratic behavior and raised his hands above his head in what appeared to be surrender, the family lawyers filings said.

In the deputies filings, Frigerio said the totality of the circumstances have to be taken into account, not just the final moments. Throughout the confrontation, Flores kept yelling and taunting the deputies to shoot him because he did not want to go back to prison, and at times used the knife to stab at deputies.

Frigerio argues that nonlethal attempts to de-escalate the situation were unsuccessful. He argues the deputies used lethal force after being instructed by supervisors to keep Flores from getting back into the house, where he could further assault family members, and to prevent him from taking a patrol car or grabbing the AR-15 after he opened the vehicle door once.

Court documents said the videos showed Flores in the driveway, about 30 feet away from the deputies with his arms in the air. Frigerio argues Flores still had the knife in one hand and posed a threat.

In October 2017, Judge Pitman dismissed the county from the case, but found there are factual disputes that need to be decided by a jury to determine whether the deputies are shielded by a long-standing legal principle called qualified immunity.

While agreeing with the deputies that their conduct should be judged based on the circumstances, Pitman saw a big problem with the final actions they took shooting Flores when he did not appear to be an imminent threat.

Based on the circumstances facing Vasquez and Sanchez right before they shot Flores and construing the facts in favor of plaintiffs, the court finds that a reasonable officer would have concluded that Flores, who was stationary for several seconds and put his hands in the air while remaining otherwise motionless, was no longer resisting and had signaled surrender, Pitman wrote. Therefore, the deputies use of deadly force was not reasonable.

The deputies appealed to the U.S. 5th Circuit Court of Appeals in New Orleans. That court agreed with Pitmans determination that a jury needs to hash out the dispute and dismissed the appeal.

Flores had a knife, not a gun; was several feet away from the officers, the house, and the vehicle; had his hands in the air in a surrender position; and stood stationary in the officers line of sight, the 5th Circuit wrote. Under these facts taken in the light most favorable to Plaintiffs, we conclude that the district court correctly identified material factual disputes as to whether the officers violated Floress Fourth Amendment rights.

The deputies filed a petition for the U.S. Supreme Court to review the case, and several police and municipal organizations filed a brief supporting their request.

Records show the Supreme Court, without comment, denied the petition in March 2021.

In December 2015, a Bexar County grand jury declined to indict the deputies on criminal charges. Bexar County officials have said that the countys insurer may have to pay if the deputies lose and the jury assesses damages.

guillermo.contreras@express-news.net | Twitter: @gmaninfedland

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Im going to die today: Trial begins in controversial 2015 killing by Bexar deputies; man was holding his hands up - San Antonio Express-News

from the you-absolute-idiots dept

The New York Post editorial team has apparently decided some rights are more important than others. The Post has the First Amendment right to publish its opinion on other rights, even when its clearly in the wrong. And its willing to do so because it has long enjoyed an unhealthy relationship with the citys police force, which often makes the Post appear to be part of the NYPDs PR unit.

A recent arrest of a 16-year-old rap artist has triggered the Posts editorial team. Not the arrest itself, which resulted in a struggle between NYPD officers and Camrin C Blu Williams that ended with an Williams allegedly shooting a cop by [checks report] shooting himself in the groin.

Heres how the NY Post reported the aftermath of the alleged shooting:

A 16-year-old reputed gangbanger charged in theshooting of an NYPD copwas ordered held on $200,000 bail Thursday despite a request by prosecutors that he be locked up.

Camrin Williams anup-and-coming rapperknown as C Blu was arraigned on charges of felony assault and criminal possession of a weapon in Bronx court for the Tuesday night tussle with police in Belmont that left a 27-year-old cop with a wounded leg.

He could also face an attempted-murder rap from a grand jury, law-enforcement sources said.

The Bronx prosecutor wanted Williams held without bail and tried as an adult. The judge Naita Semaj disagreed. It wasnt because Judge Semaj thought Williams was being treated too harshly. Its because the cops lied.

There was absolutely zero reason for any of those officers to approach this individual. They approached him, they detained him, they searched him, and no officer even bothered to come up with a halfway legitimate reason for any of that, Semaj said, making an emotional ruling in Bronx Supreme Court Tuesday.

Recordings of the incident contradicted testimony given by officers, who claimed Williams refused to take his hands out of his pockets when being questioned by police during their policing of a disorderly crowd. The judge noted the recording showed Williams being extremely cooperative and that it was officers that not only searched him without probable cause but escalated the situation.

While there is no disputing the fact that Mr. Williams had a gun on him that night He literally does everything you tell your child to do when theyre approached by cops. He literally kept his hands up. He literally tried to record to make sure there was proof. He answered questions he had no obligation to answer, Semaj said.

Without calling the testifying officer a liar, Judge Semaj called the officer a liar.

I cannot state how absolutely incredible his testimony was. It was inconsistent with the video, it was inconsistent with his fellow officers testimony, it was self-serving, it had no value, she said.

So, instead of being tried as an adult and held without bail, Williams is out on bail and will be tried as a juvenile. Somehow, police officer perjury has led the NY Post editorial board to call for an end of respect for the Fourth Amendment, both by police officers and the courts handling their cases. (Emphasis in the original.)

[Judge] Semaj seems to think that,even ifsomeone is doing something illegal, andeven iftheres no disputing it, a police officerstillcant make a quick decision based on intangibles to take action.She doesnt even seem to provide a definitive standard under which an officermighthave validly stopped and searched Williams.

If public orders to be restored, cops must be able to use their professional instincts on the street, in real-time. And no judge who thinks otherwise should be anywhere near criminal or even family court.

This is completely wrong and it basically calls for the Fourth Amendment to be ignored in favor of inarticulable hunches, allowing cops to work their way backwards from their stops and seizures should they happen to result in the uncovering of criminal evidence.

Heres Scott Greenfield, explaining one of the many ways this NY Post editorial board hot take is completely fucking stupid.

On the contrary, its not up to the judge to provide a definitive standard when the Constitution already does so. In the absence of probable cause, there is no authority to search and seize. Whether Williams was doing something illegal is irrelevant if the police are incapable of articulating the basis for their actions. Of course, here they tried, but the darn video proved they were lying about it. Thats a different problem.

But thats what the NY Post apparently believes: cops should have free reign to perform stops and seizures at their discretion. And any judge that attempts to hold them to constitutional standards should be removed from their position. That opinion is inconceivably stupid. And that its held by the entirety of the Posts editorial board is inexcusable. A beneficiary of constitutional rights shouldnt be declaring other rights less important than the ones that shield it from government overreach.

Filed Under: 4th amendment, c blu, camrin williams, illegal search, naita semaj, nypd, stop and frisk

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Beneficiary Of First Amendment Protections Says Fourth Amendment Shouldn't Be Respected By Cops, Courts - Techdirt

Today, NRA-ILA filed an amicus curiae (or friend of the court) brief in a case pending before the Second Circuit Court of Appeals concerning how the police may respond when presented with a concealed carry permit.

This case began when a Connecticut police officer approached a man who pulled over to fix his phones GPS. Upon being stopped, the man presented the officer with his drivers license and state-issued license to carry a firearm. At the same time, he informed the officer that he had a lawfully carried pistol in the drivers side door of his car. In response, the officer forcibly removed the man from his vehicle, handcuffed and frisked him, and then put him in the back of the squad car. It was not until after forcefully arresting the man that the officer checked to determine whether the license to carry was valid. And even after verifying that the license was valid, the officer still searched the entirety of the mans vehicle and seized the mans money and a hard drive containing pictures and videos of his deceased father.

The driver sued the officer for violating his Fourth Amendment rights. The District Court ruled in favor of the wrongfully detained driver, and the officer appealed to the Second Circuit Court of Appeals. NRA-ILAs argument is straightforward: wrongfully arresting, searching and seizing the property of innocent firearm owners constitutes a gross violation of both the Second and Fourth Amendments.

A state-issued license to carry a firearm does not give the state license to arrest the individual for carrying a firearm, the brief argues. The Fourth Amendment requires more from the arresting officer. Upholding the officers actions would set a dangerous precedent against every innocent driver who dares to exercise his or her right to keep and bear arms.

NRA-ILA is dedicated to ensuring that law-abiding citizens have the right to freely carry firearms outside of the home for the protection of themselves and their family.

The case is captioned as Soukaneh v. Andrzejewski.

Please stay tuned towww.nraila.orgfor future updates on NRA-ILAs ongoing efforts to defend your constitutional rights.

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NRA-ILA Files Friend of the Court Brief in Key Concealed Carry Case - NRA ILA

Few things ruin a combo 21st birthday/New Years Eve party quite like a Fourth Amendment violation. Georgia police (read: taxpayers) were ordered to pay almost $1M after they arrested 65 people over an ounce of weed back in 2017. Which, besides being a violation of liberty, is just bad math an oz. only cost ~$320 in Georgia back then.And while charging guidelines allow for such a thing, I find it to be ridiculous.

While I personally do not dabble in the marijuanas, word from a trusted source told me that an ounce would cover about 14 people or so at a party. Said source added that For that to get 65 people charged, that would have to be the skimpiest joint you ever saw in your f*****g life. I found it necessary to include this additional information for the attorneys who are not currently admitted to practice in California and/or Oregon.

Gerald Griggs, an attorney who works with the NAACP, stated that Its a very large settlement, so it sends a message to Georgia that if you violate somebodys civil rights, the NAACP and civil rights attorneys will hold you to task and protect those young peoples rights.

And thats a beautiful thing. But some are more focused on the interpersonal realities of having the cops barge into your party and handcuff several basketball teams worth of young adults over what would appear to be oregano from a small distance.

Deja Heard, the birthday-haver whose party was crashed over what was likely some mid, stated that I literally was in shackles from my arms, and they were tied around my ankles as well it was very traumatic. Its an issue not just with Blacks. I feel like this is an issue with everyone in my community with corrupt police[.] She walked away from her ordeal with some easy-to-implement reform strategies for the badged among us.

Its OK to be wrong sometimes. And were all human, we all make mistakes. Just going forward, correct yourselves. Apologize. I mean, yes, a settlement, like I said Im very greatly appreciative of it, but no one has actually sat down and said that we apologize for being in the wrong, were sorry for what we did to you, were sorry for treating you inhumane,

And while most of the attendees of her party were Black, shes right. While there are clear racial discrepancies in how it pans out, overpolicing and liberty violations impact us all. While there is much talk about how unarmed Blacks are disproportionately shot and killed by police, because its true, the gross number of people murdered by those meant to protect them are more sunburned than sunkissed.

Occasionally, when people talk about police conduct and apples in varying conditions of goodness, the word complicity gets thrown about. Were all complicit in a lot of things worth speaking out on, like America being one of the largest slave nations in the history of our species past or present despite all of our liberty talk, or being all for democracy assistance promotion so long as its not on our soil, the list goes on.

But when you think about systemic complicity in abstract terms, it can be hard to comprehend what complicity looks like in a real, tactile way. Weve seen examples of geopolitical complicity acknowledgement recently, with firms jumping to announce that theyre dropping their Russia matters in an act of solidarity. When it comes to race and policing in America, I wonder what it would look like if we changed what our complicity with policing patterns looks like. Its pretty obvious what was wrong here: knowing that, barring some Matthew 15:32-39 scenario, there was no way that 65 people each owned the same bag of weed, yet charging them for it anyway. Prosecutors okaying penalties for sisters, brothers, cousins kids, really and the only thing approaching an apology is the police department saying that theyll keep doing their jobs. Shouldnt we as a profession be more vocal when stuff like this happens? We should expect better of the cops and prosecutors who charge and enforce the stuff we rushed to learn in crim law.

Because young people are out there living with the consequences of it. While this group of 65 young adults got some measure of redress, you best believe there are legion of others who only got more of [We] will continue to honor the 4th Amendment, which protects people from unreasonable searches. And while I wish the interaction went more like this, can we just federally legalize the damned plant already? Please and thanks.

Police Ordered To Pay Nearly $1M Settlement After Arresting 65 Young People At House Party [WSBTV]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord in the Facebook groupLaw School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim,a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email atcwilliams@abovethelaw.comand by tweet at@WritesForRent.

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Now That Is Some Expensive Pot, Officer - Above the LawAbove the Law - Above the Law

A new report by an FAA aviation rulemaking committee (ARC) has drone operators feeling sky-high.

Under current regulations, drone delivery services must operate within the visual line of sight of the operator, necessitating the use of a ground-based observer either on foot or in a vehicle. Consequently, drone delivery trips are shorter than most operators would like them to be because flights in the air are limited by terrain and infrastructure on the ground.

But according to last weeks ARC report, that may not be the case for much longer. Established by the FAA in June, the Beyond Visual Line of Sight (BVLOS) ARC delivered a set of recommendations to the aviation authority, including a push for a case-by-case approach to BVLOS operations.

Key recommendations from the committee include:

If the FAAs handling of previous regulations like Remote Identification provision or the Operations over People rule are any indication, it will be one to two years before the agency follows through on BVLOS. But industry stakeholders believe it is a step in the right direction.

Unlocking BLVOS will have a tremendous impact on the world, opening up opportunities only dreamed about in science fiction, John Vernon, chief technology officer of ARC member company DroneUp, told Modern Shipper. This reports feedback and commonsense proposals represent the best from the technology, aviation, municipal and societal leaders and provide a solid list of recommendations to rule-makers.

Currently, the FAA awards BVLOS waivers on a conditional basis, but so far only 86 have been issued since March 2018, with many going to research and development programs rather than commercial services. That means that only a handful of companies each year have been able to test drone deliveries longer than a mile or two.

But according to Zipline, another ARC member, the value of drone delivery is highest when drones can travel longer distances: We appreciate the hard work by the FAAs beyond visual line of sight aviation rulemaking committee. Enabling long-distance autonomous flight is a critical step forward making safe, clean, on-demand delivery available to all and ensuring Americas continued leadership in the skies, the company told Modern Shipper.

Yariv Bash, CEO of Flytrex, also sees plenty of potential. But its a very hard problem which will take tons of time to solve because the sky is already filled with humans flying airplanes, and you dont want to jeopardize that, Bash said. Aviation is one of the safest industries, and its important to keep it that way.

Having said that, the FAA is really investing a lot of effort into solving [BVLOS regulations], so I think that in the next two to three years, thats going to be solved as well. And then the skys the limit for drone deliveries.

Flytrex is in the business of delivering to homes via drone, airdropping drinks, groceries and hot food like chicken wings directly into customers backyards. While Flytrexs local deliveries would be largely unaffected by the BVLOS recommendations, Bashs experience with FAA regulations gives him hope that the organization will follow through.

I think that the FAA took a very holistic approach, and its doing it with commercial drone deliveries in a very different way than most other regulators in the world, he explained. Theyre investing an order of magnitude more resources into solving this, and were already seeing the fruits of that investment.

The FAAs efforts to promote commercial drone delivery began in 2017 with the launch of the Integration Pilot Program, an initiative that aimed to bring state, local and tribal governments together with private-sector drone operators and manufacturers.

That program, of which Flytrex was a member, concluded in October 2020 before the FAA launched a new program, BEYOND, which included most of the same participants. BEYOND aims to certify drones as if they were normal aircraft, and the initiative is nearing completion for several member companies.

The next big move by the FAA was the introduction of Remote Identification (RID) provisions. The final RID rule, published in January 2021, mandates that all unmanned aircraft heavier than 0.55 pounds be equipped with beacons that transmit identification and location data to the FAA and law enforcement.

Developed with safety in mind, that regulation helped improve the visibility of operations and again moved the commercial drone industry forward.

Its like adding license plates to cars back in the 1920s, Bash remarked.

Also published in January 2021 and amended two months later was the Operations Over People rule, which does exactly what its name implies: It permits drone flights over people and in busy areas, as well as at night under certain conditions. That provision took effect last April.

Thats not to say its all clear skies for the FAA. The administration is currently contending with a lawsuit challenging the RID regulations, alleging that the provision violates the constitutional rights of recreational drone users under the Fourth Amendment.

The suit, backed by drone equipment retailer RaceDayQuads, lays out the argument that first-person-view drone racers, who often cannot afford expensive RID equipment and typically fly in RID noncompliant locations like their backyards, would be subject to unreasonable searches from the government for flying on their own property.

However, the BVLOS ARC recommendations figure to make life easier for both hobbyists and fledgling drone companies trying to find their wings.

I think [BVLOS is] the last largest barrier to the market, Bash explained. It doesnt mean that a new company entering will be able to scoot through everything and just start operating. But once you start to structure everything and remove all the unknowns from that process, it really helps a lot.

Drone Racing League now an FAA-approved drone event organizer

DroneUp acquires airspace traffic management company AirMap

Elroy Air, AYR Logistics partner to use drones for humanitarian aid

The leading voices in supply chain are coming to Rogers, Arkansas, on May 9-10.

*limited term pricing available.

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Expanded drone delivery taxis toward takeoff with new FAA recommendations - FreightWaves