Category Archives: Fourth Amendment

The San Francisco police are using DNA samples collected from sexual assault victims to identify them as possible suspects in other crimes, the citys district attorney said this week, adding that he would encourage legislation to ban the practice.

The victims of sexual assault whose DNA samples are used in this way are being treated like criminals, the district attorney, Chesa Boudin, said in a statement on Monday. This practice treats victims like evidence, not human beings. This is legally and ethically wrong.

Aides to Mr. Boudin said the office learned of the practice last week when the Police Department identified a woman who was recently arrested on a felony property crime charge based on DNA samples that she had given earlier when she reported that she had been sexually assaulted. Her DNA had been collected by investigators in order to identify her attacker.

Rachel Marshall, a spokeswoman for the district attorneys office, said in an email on Wednesday that the office had dropped charges in the case, citing a violation of the Fourth Amendment, which protects people from unreasonable searches and seizures by the government.

The practice of using DNA from a rape kit to possibly identify the victim as a potential suspect in another matter is apparently widespread, according to Kate Chatfield, chief of staff to Mr. Boudin, who is the subject of a recall effort, testing the publics willingness to support progressive district attorneys amid headlines of rising crime. She said that using DNA from rape kits in this way might date back to 2015, when crime databases in the region were revamped.

After speaking with the director of the San Francisco Police Departments crime lab, Ms. Chatfield concluded: This is a standard operating procedure in the field. So we dont think that this practice is necessarily limited to San Francisco.

Chief William Scott of the San Francisco Police Department said in a statement on Monday that although he had been told that the suspect in the case in question had not been identified through a rape kit, the questions raised by our district attorney today are sufficiently concerning that he had asked his staff to look into the matter.

If its true that DNA collected from a rape or sexual assault victim has been used by S.F.P.D. to identify and apprehend that person as a suspect in another crime, Im committed to ending the practice, Chief Scott said. He also said, We must never create disincentives for crime victims to cooperate with police.

He also emphasized that the departments existing DNA collection policies have been legally vetted and conform with state and national forensic standards.

It was not immediately clear how many law enforcement agencies or crime labs use D.N.A. collected from victims of sexual assault to identify them as possible suspects in unrelated cases. Several law enforcement agencies contacted on Tuesday either denied using such tactics or did not respond to telephone calls and emails.

When asked if they use rape kits the way the San Francisco district attorney had complained about, Jeffrey F. Rosen, the district attorney in Santa Clara County, Calif., wrote in an email, We absolutely do not. And Jodi Silva, a spokeswoman for the Houston Police Department, said, Wow, adding that she was not aware of this being done at the department.

The Los Angeles Police Department said in a statement on Tuesday that it does not and has never used DNA from a sex assault victim to compare against that of a suspect from an unrelated crime.

Mr. Boudin said that he was encouraging local and state legislators to introduce legislation to end this practice in California. We should encourage survivors to come forward not collect evidence to use against them in the future, he said.

Advocates for rape victims bristled at the possibility that evidence used to catch attackers could actually be used against the victims.

Rape survivors do not give law enforcement a blanket waiver of their rights to not self-incriminate, Pamla M. Tate, co-executive director of Black Women Revolt Against Domestic Violence, said in a statement released by the district attorneys office. This type of misrepresentation will have a chilling effect to Black women and women of color in reporting crimes of sexual assault.

Camille Cooper, vice president of public policy at RAINN (Rape, Abuse & Incest National Network), said in a statement that the practice described by Mr. Boudin was horrifying and an egregious violation of the survivors privacy as well as indefensible.

Survivors who undergo rape kit exams, she went on to say, have consented to the collection of their DNA for a very specific purpose: to catch the person who raped them.

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Victims Rape Kit Was Used to Identify Her as a Suspect in Another Case - The New York Times

In the past month, this column has twice addressed the unbridled propensity of federal intelligence agencies to spy on Americans without search warrants as required by the Fourth Amendment to the U.S. Constitution.

These agencies believe that the Fourth Amendment which protects the individual right to privacy only regulates law enforcement and does not apply to domestic spying.

There is no basis in the constitutional text, history or judicial interpretations for such a limiting and toothless view of this constitutional guarantee. The courts have held that the Fourth Amendment restrains government. Period. Last week, Congress got burned when the CIA released a heavily redacted summary of its current spying in the United States.

Here is the backstory.

When the CIA was created in 1947, members of Congress who feared the establishment here of the type of domestic surveillance apparatus that the Allies had just defeated in Germany insisted that the new CIA have no role in American law enforcement and no legal ability to spy within the U.S. The legislation creating the CIA contains those limitations.

Nevertheless, we know from statements of former governors of several states that CIA agents claim to be physically present in all 50 statehouses in the United States.

The agents who have infiltrated state governments didnt arrive until after Dec. 4, 1981. Thats the date that President Ronald Reagan signed Executive Order 12333, which purports to give the CIA authority to spy in America supposedly looking for narcotics from foreign countries and keep from law enforcement whatever it finds.

Stated differently, while Reagan purported to authorize the CIA to defy the limitations imposed upon it by the Constitution and by federal law, he insisted on a wall of separation between domestic spying and law enforcement.

So, if the CIA using unconstitutional spying discovered that a janitor in the Russian Embassy in Washington was really a KGB colonel who abused his wife in their suburban Maryland home, under E.O. 12333, it could continue to spy upon him in defiance of the Fourth Amendment and the CIA charter, but it could not reveal to Maryland prosecutors who can only use evidence lawfully obtained any evidence of his domestic violence.

All this changed 20 years later when President George W. Bush demolished Reagans wall between law enforcement and domestic spying and directed the CIA and other domestic spying agencies to share the fruits of their spying with the FBI.

Thus, thanks to Reagan and Bush authorizing it, and their successors looking the other way, CIA agents have been engaging in fishing expeditions on a grand scale inside the U.S. for the past 20 years. Congress knows about this because all intelligence agencies are required by statute to report the extent of their spying secretly to the House and Senate Intelligence Committees.

This, of course, does not absolve the CIA of its presidentially authorized computer hacking crimes; rather, it gives Congress a false sense of security that it has a handle on whats going on.

Whats going on is not CIA lawyers appearing before judges asking for surveillance warrants based upon probable cause of crime, as the Constitution requires. Whats going on is CIA agents going to Big Tech and paying for access to communications used by ordinary Americans. Some Big Tech firms told the CIA to take a hike. Others took the CIAs cash and opened the spigots of their fiber optic data to the voracious federal appetite.

If the CIA went to a judge and demonstrated probable cause of crime for example, that a janitor in the Russian Embassy was passing defense secrets to Moscow surely the judge would have signed a surveillance warrant. But to the CIA, following the Constitution is too limiting.

Thus, by acquiring bulk data fiber optic data on hundreds of millions of Americans acquired without search warrants the CIA could avoid the time and trouble of demonstrating probable cause to a judge. But that time and trouble were intentionally required by the authors of the Fourth Amendment so as to keep the government off our backs.

Not to be outdone by its principal rival, the FBI soon began doing the same thing gathering bulk data without search warrants.

When Congress learned of this, it enacted legislation that banned the warrantless acquisition of bulk data. Apparently, Congress is naive enough to believe that the CIA, the FBI and the National Security Agency, their cousin with 60,000 domestic spies, actually comply with federal law.

Last week, that naivete was manifested front and center when the CIA sent a letter to the Senate Intelligence Committee documenting the extent of its domestic acquisition of bulk data on Americans.

Two senators who should have known better claimed they were shocked at what they read. They read an admission of continued CIA warrantless bulk acquisition of personal data on unsuspecting and unsuspected Americans, and they saw large portions of the letter redacted so that the senators do not know the nature of the data received.

So, notwithstanding the persistent efforts of members of Congress from both parties to limit and in some cases to prohibit the warrantless acquisition of bulk data by the CIA from Americans, the practice continues, the CIA defends it and presidents look the other way.

In 1947, Congress created a monster which today is so big and so powerful and so indifferent to the Constitution and the federal laws its agents have sworn to uphold that it can boast about its lawlessness, have no fear of defying Congress and always escape the consequences of all this largely unscathed.

I suspect the CIA and its cousins get away with this because they spy on Congress and possess damning personal data on members who regularly vote to increase their secret budgets. When will we have a government whose officials are courageous enough to uphold the Constitution?

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CIA spies and their collaborators | News, Sports, Jobs - The Sentinel - Lewistown Sentinel

(NewsNation Now) Following a gesture to protect his friend, 14-year-old ZKye Husain says he was pinned to the ground and handcuffed by police after a fight with a Latino teen at a New Jersey mall.

A high schooler was bullying my friend. I didnt like the fact that he was bullying him because he was smaller. I say something about it and then its a heated conversation, Husain said on Morning in America. He puts his hands in my face. I smack it away after asking him twice to get his hands off my face. Then, he pushes me and then I start throwing punches.

A now viral video shows two police officers from Bridgewater Township separating the teens. One officer can be seen in the video pinning Husain to the ground and handcuffing him. Meanwhile, the other officer is seen pushing the Latino teen teen onto a couch before going to help the second officer.

The female officer leaves the high schooler to come help put her knee in my back and put handcuffs on me. They held me for 30 minutes, Husain said.

Police in New Jersey are now investigating the incident.

In a statement, Bridgewater police said, We recognize that this video has made members of our community upset and are calling for an internal affairs investigation. The officers were able to respond quickly to this incident and stop it from escalating because of a tip we received from the community. We have requested that the Somerset County Prosecutors Office assist us in this matter.

Husains mother, Ebone Husain, told NewsNation that police said they were following basic procedure when they handcuffed her son.

I havent heard an explanation. I havent heard from them at all, she said. They told me it was basic procedure. But basic procedure for who? just the Black kid?

The teens attorney, Benjamin Crump, says hes taking legal action to ensure accountability and that this isnt swept under the rug.

We believe that he was falsely detained in violation of the Fourth Amendment rights against unreasonable searches and seizures. So we are bringing a federal civil rights lawsuit in this matter to say to the Bridgewater, New Jersey police department, youre better than this, Crump said.

Crump says Husain was racially discriminated against. He says hes building the teens case with testimony and video from witnesses.

Read more from the original source:
They held me for 30 minutes: Police probing mall fight where teen was handcuffed - NewsNation Now

ACLU says Journalists and Citizens Should Not be Barred from Public Meetings For years, Rebecca Glenberg has been fighting for the rights of freedom of speech and rights for the public. Many people dont know their individual rights in their city or suburban municipalities at public meetings as citizens and journalists.

Everyone should have the right to attend a public meeting, said Rebecca Glenberg, ACLU (American Civil Liberties Union) Illinois attorney. If people behave in a disruptive way or interrupt people while speaking, those are activities that could get you kicked out of a meeting. But if you are engaged in public comment, the fact that you express a very strong opinion, the fact that you criticize your government or members of the public body should not be grounds for cutting you off or removing you from the meeting.

She said only your individual conduct would cause any discipline from the board or public body. There are also some standard rights for journalists who attend public meetings.

Journalists have the same rights as the public to attend the meeting. They have the right to take notes, and by statute, have the right to record the meeting and report out anything that is said at a meeting. Journalists should not be barred from a public meeting merely because they are journalists or because they have said things that are critical to the public body in the past, added Glenberg.

For nearly 100 years, the ACLU has been our nations guardian of liberty, working in courts, legislatures, and communities to defend and preserve the individual rights and liberties that the Constitution and the laws of the United States guarantee everyone in this country. With more than 4 million members, activists, and supporters, the ACLU is a nationwide organization.

In addition to freedom of speech, the ACLU protects the right to be free from discrimination on the basis of race, religion, sex, LGBTQ status, national origin and religion. It protects the right to vote. It protects the right of immigrants to due process and fair treatment, said Glenberg. We really protect a broad range of issues related to civil rights and Constitutional rights. We are the biggest organization that tackles all these individual issues.

Some of the ACLU highlights include standing almost alone in denouncing the federal government intermittent presence of more than 110,000 Japanese Americans in concentration camps and representing an interracial couple in 1967 landmark Supreme Court cases Loving vs. Virginia. The court ruled that the state ban on interracial marriage was unconstitutional. In 2015, the ACLU won a constitutional case on same sex couples to marry, and in 2018 won a case where it was ruled that sensitive cell phone location data is protected by the Fourth Amendment, requiring the government to get a warrant to access it.

Glenberg also talked about protesting regulations. She said municipalities can require permits for large gatherings, especially those that will block a busy street, but they can not require permits for a small group of people who are going to be in an outdoor space or corner where there are no opportunities to disrupt traffic or businesses.

People have the right to protest in such a way that they do not block pedestrian or vehicular traffic unduly and dont cause property damage. You need to look at your particular city, town or county ordinance to see whether you may need a permit to protest, she said.

ACLU says Journalists and Citizens Should Not be Barred from Public Meetings

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ACLU says Journalists and Citizens Should Not be Barred from Public Meetings - The Southland Journal

One reason Texas highest courts have nine members is so that justices with different perspectives can test their ideas in conference. They challenge each others ideas until arriving at a majority opinion. The states final arbiter on cases involving everything from murder to public intoxication the Texas Criminal Court of Appeals ought to have at least one member with extensive experience in trials defending clients.

Currently, the judge on the court with that experience is Justice Scott Walker, 68, who is facing off against a Harris County assistant prosecutor in the March 1 Republican primary. A graduate of Dallas Baptist University and Baylor School of Law, Walker practiced law before judges and juries defending people facing civil and criminal charges. In 2016, he won a six-year term to Place 5 of the Texas Criminal Court of Appeals.

His opponent, Clint Morgan, 40, says Walker writes too few opinions and takes too long when he does. He told us he suspects thats because Walkers defense attorney mindset finds few converts on the all-Republican court, where no other member brings a substantial background as a defense lawyer. Morgan notes hes won 10 of the 12 cases hes had before the Court of Criminal Appeals. If elected, he says hed rely on his own substantial appellate experience to produce more opinions, and bring a prosecutors mindset to his work.

We believe Morgans criticisms miss their mark by a wide margin. Its not a defect that Walker brings a defense attorneys perspective into the justices deliberations. And we think Walker makes sense when he offers no apology for being assigned to write fewer majority opinions than other justices.

Im not going to change my mind or water it down so I can get the vote, Walker told the editorial board. Im very careful to follow the Constitution and the laws.

He argues that he has, over time, brought greater balance to the court. In Ruiz v. Texas, for example, Walker joined the majority in refusing prosecutors to use as evidence results from a blood-alcohol test taken without a warrant from a hospitalized, unconscious man who was suspected of drunken driving.

The 2019 decision impacted cases across Texas, and Morgan said it made prosecutors jobs harder in DWI cases. Its an example of an over-emphasis on procedure that is more typically part of a defense attorneys mindset, he said.

And yet both the district court and a court of appeals had already ruled that the evidence could not be admitted.

Walker defended the opinion on purely constitutional grounds.

The Fourth Amendment, and its protections from search and seizure, is the supreme law of the land, he said.

By any definition, Walker is a conservative justice. But even during a surge in violent crime perhaps especially during such a time Texass highest criminal court benefits from judges who bring as wide a variety of backgrounds as possible, and ones who arent afraid to remind their colleagues of defendants fundamental rights.

We should strive for an efficient system that follows the law and Constitution. Towards the end of our call with Walker, he talked about a tremendous workload before the court. Primary voters should give him a chance to continue should he prevail over Democrat Dana Huffman in the general election.

More Recommendations from Editorial Board

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Editorial: We recommend Scott Walker in the GOP primary for Criminal Court of Appeals, Place 5 - Houston Chronicle

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The 1963 mug shot of Dr. Martin Luther King Jr. after his arrest in Birmingham, Alabama, for leading marches against segregation.

Martin Luther King Jr.s words written from a jail cell in Birmingham, Ala., in 1963 resonate today when considering the current state of criminal justice in Massachusetts. Dr. King summed up his disappointment with white moderates saying: The white moderate would understand that law and order exist for the purpose of establishing justice and that when they fail to do this they become the dangerously structured dams that block the flow of social progress.

He had grown tired of hearing the word wait from those who believed that time, on its own, would solve grave racial injustices because [t]his wait has almost always meant never. Anyone who spends time in a courthouse in Berkshire County will witness the enduring truth of Dr. Kings words. In Massachusetts in 2016, Black people were six times more likely to enter jails or prisons than whites. In Berkshire County in 2015, cash bail amounts imposed on Black people was five times greater than their white counterparts. Although Black people make up only 6.5 percent of the states population, they are the subjects of 17.1 percent of criminal court cases, and Black people receive sentences an average of 168 days longer.

These numbers dont lie. White moderates in liberal Massachusetts have been complicit in perpetuating an oppressive criminal legal system. This system is a relic of the reconstruction era that was intentionally designed and implemented as a means of power and control over Black people as a substitution to slavery.

These stark realities fuel distrust in the legal system, especially for those who are the most vulnerable to victimization. All over Berkshire County, Black and Brown people tell me that they are afraid to report crimes. This distrust undermines the essential work of law enforcement to protect victims and public safety. An egregious example of this is the ineffectiveness of the legal system in addressing intimate partner violence perpetuated against Black women who suffer even higher rates of domestic violence than White women. The violence that Black women endure is largely driven by victims reasonable fear of the justice system. While White victims fear that seeking help wont result in a strong enough response from law enforcement, Black women tend to fear that law enforcement will be overly punitive to themselves and their intimate partners. In my experience as a defense attorney and as a prosecutor, these fears are well-founded.

Fear and distrust of the legal system also impedes my offices efforts to investigate crime and solve homicides. Building trust among our diverse communities and eradicating the scourge of racism from our criminal legal system is central to the mission of law enforcement and is necessary to our public safety.

My office is taking ownership of the prosecutors role in correcting an unjust system. We recognize that vulnerable communities are at heightened risk for landing in the justice system because for decades our society used the judicial system to stigmatize people with mental illness, substance use disorder, and those living in poverty. The prosecutors in my office decline to prosecute cases where people who present minimal risks to the public face charges resulting from symptoms of mental health or substance use disorder, and I actively advocate for the public health system to address public health issues.

Prosecutors in my office recognize that their power to punish through the courts has real-world, high-stakes consequences for those involved and their families, and we seek alternatives to incarceration. Our approach has impacted thousands of people and families in positive ways.

One of the more painful conversations that I have had since being elected was with an elderly, formerly incarcerated Black woman from Berkshire County at a talk that I gave about my offices preference for non-violent people to receive treatment for substance use disorder over incarceration. This woman was heartbroken that she did not have an opportunity to receive treatment in a therapeutic setting. She and her children, including a child who was incarcerated at the time, suffered horribly throughout their lives because of the punitive and oppressive war on drugs. She is among hundreds of thousands of Americans who have suffered thanks to an oppressive system designed to punish.

Conversely, I have a dear friend who is in recovery from problem opioid use. He has a thriving family and is making valuable contributions professionally to his community. He credits his recovery and success on his privilege he had never been charged with a crime even when he was stopped by police while carrying drugs. He speaks eloquently on the impact of his privilege as a white person and how devastating the shame and trauma that arise from arrest, prosecution and incarceration would have been for his recovery, not to mention the lifelong impacts of having a criminal record. Every member of our community deserves medical treatment in a health setting. Relying on incarceration as a substitute for high-quality treatment for substance use and mental illness has perpetuated long-term and multi-generational hardships for individuals, families, and ultimately for our entire community. Over-represented communities of color carry this burden at a vastly higher degree. Since taking office, the number of people newly incarcerated in Berkshire County has decreased thanks to my reforms.

My office will not participate in the over prosecution of communities of color. Instead, we redirect our resources toward investigating and prosecuting domestic violence, sexual assaults, and homicides. We are working with our community partners to organize the community around public health solutions to public health problems.

I made this cultural shift in the Berkshire District Attorneys Office by instituting a values-based review system for assistant district attorneys and staff members. I have provided prosecutors with the training and tools necessary to make decisions that are fair and just as opposed to the length and number of convictions that they obtain.

Our team has created a culture in the office that analyzes every aspect of our decision-making for bias and systemic racism. We carefully scrutinize cases arising from motor vehicle stops and decline to prosecute those that indicate any element of racial profiling while actively engaging with law enforcement officers to explain our decisions and the legal requirements of the Fourth amendment. We removed race-based questions from our jury selection process. We have created a diverse inner office working group led by retired Superior Court Justice and former prosecutor Tina Page to review and develop further recommendations for anti-racist prosecution policies.

I am proud of the strong cooperation from my law enforcement partners in establishing policies that ensure convictions are based on fairness, such as our Brady Policy which asks police departments to review their records for the last decade and provide my office with information that could undermine the credibility of a conviction to disclose to defense counsel.

My office virtually eliminated the use of cash bail, replacing the wealth-based model of pre-trial detention shown to perpetuate racial disparities for one that protects both a defendants due process rights and public safety.

Most cases are resolved through pleas as opposed to trials. This process has historically been cloaked in secrecy and rife with racial inequity. My office is opening that black box to identify bias that unfairly impacts how prosecutors use their discretion. Our plea tracker project is the first in the nation to allow researchers unprecedented access to our decision-making process. We are grateful for a partnership with the nations leading criminal justice scholars at the Wilson Center at Duke Law for their expertise in bringing this bold initiative to life. This tool will identify and remedy systemic racism in the plea process and serve as a national model.

These actions are designed to treat all members of our community with dignity. Our actions moves our historically oppressive system towards one that guarantees justice for all. That is how we will earn trust in the justice system.

Time in itself does not make change; actions do. I am humbled to lead a staff of public servants who care deeply not just about accountability but about justice. We are making substantial changes to reform the system to value the needs of the people that we serve over the desires of the powerful. We recognize that we have much work left to do, and we are acting with urgency to correct injustices others are scared to acknowledge because it upsets the status quo. This work takes courage.

This weekend I remember Martin Luther Kings words, Time is neutral. It can be used either destructively or constructively. I am coming to feel that the people of ill-will have used time much more effectively than the people of good will. We will have to repent in this generation not merely for the vitriolic words and actions of the bad people but for the appalling silence of the good people.

As your district attorney, I understand that justice goes beyond accountability and that it is my responsibility to correct the injustices prosecutors have historically perpetuated. I am leading my team of prosecutors to act with urgency because the community has bestowed a responsibility to uphold justice upon us rather than simply maintaining order. There is much left to do and continuing this work will require good people to speak out for the cause of justice.

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Action toward justice: Reforming Berkshire County justice system in the spirit of Martin Luther King Jr. - theberkshireedge.com

Dear Reader(unless youre waiting for a subpoena, like Kevin McCarthy),

So I had a long rant in the Wednesday G-File about Bidens voting rights speech (actually, in fairness to me, only the end of it was ranty). While I could go on for another couple thousand words, the thing is already a dead letter. Kyrsten Sinema announced she wont nuke the filibuster to pass the Democrats election reforms, and Joe Manchin backed her up, so the whole speech was a pointless exercise.

Some think the idea was to pressure Sinema and Manchin into caving on a filibuster carve out. If so, that sounds great as a plot device for The West Wing.

I was going to make thenow clichdpoint that the Biden White House lives in the Veep timeline. But then I stopped myself because the truth is that it actually exists in the real world, the meatspace where things dont unfold according to preconceived storylines.

Remember that old joke about the academic who says, Sure it works in practice, but does it work in theory? The problem for the Biden administration is that they come up with theories about what to do that dont actually work unless youre drunk on the Kool-Aid and they work even less in reality. From Afghanistan to Build Back Better to COVID to inflation to this voting rights debacle, its like the White House just says Lets just do it and be legends.

Theres a lot of talk in Washington about how Biden isnt really running the show. That may be true on one issue or another, but on the broad direction of his presidency, I think this is wrong. Biden has a very long history of being unjustifiably confident about how the world works and being proven wrong. If thats the theme of his life in politicsand I think it isit would be kind of weird to exonerate him from the charge when hes actually the president of the United States and his presidency has displayed exactly that: invincible confidence in the rightness of what hes doing even as he walks from one smack in the face to another like Sideshow Bob stepping on rakes.

Dont worry, Im not going to run through all of that here because, frankly, Im exhausted with punditry right now. Instead, Id like to focus on something he was wrong about in his speech that an enormous number of other people are also wrong about.

Democracy versus liberty.

Biden said that the fundamental right to vote is the right from which all other rights flow. This is a common view, and one that Biden has subscribed to for a while. As vice president in 2015, he issued a statement on the 50th anniversary of the Voting Rights Act: Voting is the engine that drives all civil rights, all human rights, and all economic rights in this country. Its the right from which all other rights flow. Robert Kennedy said the same thing a half-century ago.

Now, I think voting is very, very important. What has two thumbs and likes democracy? This guy.

But neither the right to vote, nor democracy itself, are the source of all of our other rights.

This isnt a pedantic point.

Lets start with the subject of Jim Crow. Extending voting rights to blacks in the South was important, morally necessary, and just. But Jim Crow didnt end in the South because blacks got the vote. A full 10 years before the Voting Rights Act 1964 was passed, the Supreme Courtnot exactly a very democratic institutionruled that racial segregation in schools was unconstitutional in Brown v. Board of Education. More to the point, in at least some Southern states, if segregation had been put up for a vote it would have been sustained by a majority of the voterseven if blacks could vote. The process of desegregation began at gunpoint by federal troops enforcing the Supreme Courts rulings.

There is nothing inherent to democratic theory that says the people can be counted upon to vote in favor of sustaining their rights, never mind the rights of other people. Thats why the Constitution protects our rights from democracy. The Bill of Rights explicitly makes it hard for government to infringe on our rights because our rights are considered prior to or above the whims of the voters. In a pure democracy, 50.1 percent of the people can pee in the cornflakes of 49.9 percent of the people.

If voting always breaks in favor of protecting our rights, why are Democrats so upset that elected officials in various states are restricting the right to vote? That should be impossible. Voting is a fundamental right, the fundamental right, they insist. Well, people voted for Republican-controlled legislatures and those legislatures are, Democrats tell us, restricting a fundamental right. Paradoxical! By the way, the fact that this is being done on a party line basis shouldnt be an issue either, given that Democrats at the national level think they should do everything and anything they want on a party line basis. If voting in partisan lockstep to tighten voting procedures is illegitimate, voting for expanding or federalizing them should be too. Ditto Build Back Better and the rest.

One of the central insights of both liberalism and conservatism, rightly understood, is that sometimes the people can be wrong. Thats why the Founders made it hard to change the Constitution. Thats why they envisioned the Senate as a cooling saucer that tempers the passions of the House. And thats why this country has elections all the time. Because the Founders understood that sometimes the people can get riled up, angry, confused, misinformed, petulant, or vengeful. Having lots of elections allows the voters to recognize that maybe they went too far in the previous election. Its part of the process of democratic self-correction and renewal. There have been plenty of times in American history when the people were in a bad enough mood to vote away various rights if they had the power to do it. Making it hard for those temper tantrums to do lasting damage is one of the great things about our system. (I suspect that if you put free speech rights up for a vote today, we would have fewer free speech rights tomorrow.)

Where do our rights come from?

What is the singular right that makes all other rights possible? I think this is a problematic question, but lets take a stab at it. There are a lot of answers to this question. They largely fall into two broad categories Ill call philosophical and anthropological, though theres a lot of overlap between the two.

Ill start with the anthropological. Theres a strong case that securitybasic personal safetyis the fons et origo of all other rights. Thomas Hobbes and John Locke would agree (I told you there was overlap!). In a state of nature, force settles all disputes. Talk all you like about your property rights, but if I hit you over the head with a rock, I can take your stuff. Cry about how your rights were violated, it will do you no good unless youand maybe some friendsget some rocks and take your stuff back. My apologies to all of the anarchists out there, but Hobbes, Locke, Weber, et al., were right that without the state and its monopoly on violence, no other rights are secure. This is why some argue that the right to life is the source of all other rights.

The reason I call this the anthropological argument is that this is almost surely where government comes from. As I discuss at length in Suicide of the West, the first states emerged from what Mancur Olsen called the stationary bandit. In a state of nature, roving banditsthink Viking pillagerscome riding into town a whoopin and a stompin and take whatever they can carry. At some point, one of these wandering warlords realizes that if he stays put and agrees to protect the villagers from other roving bandits he can extract more wealth or rents from the villagers. Importantly, over time he realizes that its in his interest to invest in this community so his slice of the pie can grow. Protecting their property rights from all theftsave taxationyields greater prosperity. Eventually, the stationary bandit becomes a chieftain or king and a whole political theology becomes invested into perpetuating his rule and the rule of his progeny. This is where the anarchists have a point about how the state was created as a glorified criminal enterprise.

Then theres the philosophical argument. This is a bit of a misnomer because it can rightly be called a theological argument as well. Its pretty straightforward. We are created by God. Our rights derive from this fact, and it is the job of the state to protect those rights. I can spend the next 10,000 words expanding and elucidating this idea, but I dont see the point.

Some atheists and humanists dont like this formulation for some obvious reasons (and some exhaustingly obscure ones). But the simple fact is that without the essentially Judeo-Christian view of humans as being equal in the eyes of God, we wouldnt have the idea of inalienable rights today. This isnt to say you cant make an atheistic case for human rightspeople do it all the frickn time. Its simply to note that the atheists are standing on the shoulders of the people who made the case for rights as God-given. And if you think Im being too much of a Western chauvinist, thats fine. All I ask is that you point out to me where in the history of the non-Western world the idea of universal human rights not only emerged (it must have somewhere) but actually took hold.

While you get that blistering email together for me, lets talk about the overlap. Most of the rights we think of as our rightsincluding the right to votetook hold during the Enlightenment. Of course, as a matter of intellectual history, most of them are conceptually much older. Democracy, free speech, property rights, etc. have antecedents in the ancient world, and not just in the West. And some started as pre-Enlightenment cultural norms in England or elsewhere (the Fourth Amendment starts with the quirky custom of a mans home being his castle). Freedom of conscience begins not as some grand theological or philosophical principle, but as a kind of Westphalian truce in the wake of the wars of religion. As Herbert Butterfield put it, religious tolerance was the last policy that remained when it had proved impossible to go on fighting any longer.

But it was the rise of the middle class in England and France that forced recognition of rights as indispensable to political legitimacy. No taxation without representation is where democracy in the modern world begins. From it flows the idea that we are citizens, not subjects: We dont work for the government, the government works for us.

And that brings me back to where I began. The government works for us, but part of its job is to protect our rights for posterity, even when a temporary majority wants to abandon them. This is where the anthropological and the philosophical visions merge into a cultural synthesis. Contrary to a lot of prattle from post-liberals, progressive technocrats, and populist grifters of the right and left, we live in a liberal culture. Thats why I think the question of What right makes other rights possible? is so problematic. It works on the assumption that Americans love and enjoy their rights based on some commitment to abstract liberal theory alone. Liberal theory is important. But far more important is liberal culture. Americans like our freedoms because were Americans, damn it. So sure, sometimes voting is the great protector of our rights, and sometimes its not. In other words, its complicated because culture is complicated.

I am open to the idea that our rights dont come from God, but I thank God every day I live in a culture that operationally believes they do. Because that is the best bulwark against the machinations of populists and politicians who set out to inflame passions for short-term gain at the long-term expense of our rights.

And such leaders are all around us. For example, Joe Biden said this week that all of our rights come from voting and that people who disagree are on the side of racists and segregationists. He did this, I believe, solely so he could push through a political agenda and placate the passions of his partisan base. If you think thats not the case, fine. But maybe you can explain how, just eight months ago, Biden had a completely different philosophical explanation for where our rights come from?

On May 28, he told American service members: None of you get your rights from your government; you get your rights merely because youre a child of God. The government is there to protect those God-given rights. No other government has been based on that notion. No one can defeat us except us.

He was right then. And his abandonment of that view for political expediency this week was worse than a defeat, it was a surrender to the sorts of petty political corruptions our system was created to protect us against.

Various & Sundry

Canine update: This always happens when the Fair Jessica leaves town: The girls are getting super needy. They lie to me every day about how starving they are and how I forgot to feed them. They pretend that I never took them for a walk and they follow me around the house like Im planning some escape. In the morning Zo aroos at me if I take too long getting dressed for the morning walk and she aroos at me at the end of the day when I come back from abandoning them for several lifetimes (Zos words). Pippa especially has become obsessed with jumping up next to me and throwing her head back onto my lap to say, Love me. If my lap is unavailable, shell use Zo.

ICYMI

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The new years first Ruminant

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Dont cave to Russia

Wednesdays newsletter on Bidens Georgia speech, released to the masses

The Dispatch Podcast on Bidens voting rights pivot

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All work and no play

Nordic socialism

Sharp dressed men

Devils advocate

Doctor who

Continued here:
Rites About Rights - The G-File - The Dispatch

Weve all watched the cringeworthy hearings where senators take turns grilling Big Tech CEOs over why their constituent emails have such low open rates. While the fight over regulating Big Tech rages, Americans 4th Amendment rights continue to be abused in other areas that do in fact require a measured response. As it turns out, such a remedy already exists.

Last April, a group of bipartisan senators introduced The

Fourth Amendment Is Not For Sale Act (FANFSA).

In the Senate, the bill enjoys 20 co-sponsors ranging from Sens. Rand PaulRandal (Rand) Howard PaulDems block Cruz's Nord Stream 2 sanctions bill Scientists, medical professionals defend Fauci after heated exchanges with Republicans The Hill's Morning Report - For Biden, it goes from bad to worse MORE (R-Ky.) to Bernie SandersBernie SandersOvernight Health Care Biden's Supreme Court setback Republican rep who voted to impeach Trump running for reelection Biden's FDA nominee advances through key Senate committee MORE (I-VT). While the House companion bill is sponsored by Judiciary Chairman Jerrold NadlerJerrold (Jerry) Lewis NadlerAndrew Cuomo attorney says AG investigation was 'shoddy,' outcome was 'predetermined' Democrats quietly explore barring Trump from office over Jan. 6 The Memo: Nation's racial reckoning plays out in 2021's big trials MORE (D-N.Y.), the bill has yet to see the light of day. That must change.

The Fourth Amendment protects the right to be free from unreasonable searches and seizures, unless the government acts with a judicially granted warrant supported by probable cause or there is an applicable exception to the warrant. The Supreme Court has recognized

that the Fourth Amendment provides protection from government searches when a person has a subjective expectation of privacy that society recognizes as objectively reasonable. See Katz v United States (1967) (Harlan, J., concurring). However, the Court has also held that a person does not have a legitimate expectation of privacy in information knowingly shared with third parties. See Smith v Maryland (1979).

The Court chipped away at this so-called third party doctrine in Carpenter v United States (2018). The issue in Carpenter was whether there was a legitimate expectation of privacy in cell-site location information (CSLI). A CSLI is created every time a phone connects to a cell site, often found on a tower. Wireless providers store this information. The FBI sought CSLIs from wireless providers to find out how close Carpenter was to a string of robberies. Even though CSLIs are held by third parties, the Court held there was legitimate expectation of privacy. However, the Court noted that its holding was narrow.

Congress has passed several statutes to combat the third-party doctrine that provide protection when the government seeks your information from internet, wireless, social media, or email providers. Under the Stored Communications Act (SCA) passed in 1986, these providers

are among a class of providers considered electronic communication services (ECS) or remote computing services (RCS). Most importantly, this means the government needs some form of court approval to access your content from a provider. For example, when a subpoena required Facebook to disclose private messages, a federal court quashed the subpoena because it did not comply with the stringent standards of the SCA. See Crispin v. Christian Audigier, Inc. (C.D. Cal. 2010).

At 36 years old, the SCA needs an update. The SCA does not protect consumers from data brokers that collect consumer information from common apps or websites. Because these data brokers do not provide the ability to send or receive the content at issue, they do not fall within the reach of the SCA. Therefore, if the government wants your information, they need no court approval. As a result, data brokers like Venntel can collect location data from smartphones and sell it to government agencies. Or even worse, data broker Clearview AI can create a massive database of photos from Facebook, LinkedIn, and Twitter and sell it to government agencies.

FANSFA would amend the SCA to treat data brokers just like it treats an ECS or RCS. In other words, the same court approval standards that apply when the government wants your personal messages from Facebook or Twitter will now apply when the government wants your information from Venntel, Clearview AI, or any other data broker. The statute explicitly prohibits the government from getting access to your information held by data brokers unless SCA processes are followed. Moreover, the bill prohibits the government from purchasing your information from data brokers.

There are other important structural reforms, too. In the event the government does illegally obtain your data, it cannot be used as evidence elsewhere like a court or legislative body. FANFSA also prohibits the attorney general from offering civil immunity to providers

that assist the government in illegal surveillance. Importantly, providers retain immunity if surveillance assistance is ordered by a court.

Because of the everyday advancements in our technological world, Congress often fails to keep up. FANSFA is a rare exception. This legislation requires the government to go through the same court approval process as if it sought your personal messages from Facebook or Twitter. Your information is important. The government should not be able to buy it from data brokers because you decided to browse the internet. Congress must reignite the fight to protect the privacy of all Americans and pass FANSFA to correct this loophole.

Alex Deise is the Policy Manager at FreedomWorks.

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Congress should pass the 'Fourth Amendment Is Not For Sale Act' | TheHill - The Hill

The city of Baton Rouge tried to throw a law professor in prison after he shared publicly available body camera footage showing police officers strip-searching a minor in public. On Friday, a federal judge ruled that this violated the First Amendment.

That footage, originally shared withReason,was captured at a 2020 traffic stop. Baton Rouge Police Department (BRPD) officers cuffed 23-year-old Clarence Green and his 16-year-old brother, pulling down their pants on the sidewalk to look for drugs. Officer Troy Lawrence Jr. and thenSgt. Ken Camallo subsequently went to the family's home and searched it, weapons drawn, without a warrant.

When the story sparked considerable outrage, the government zeroed in on Thomas Frampton, the attorney who represented the Greens and disseminated the clips, which were already a part of the public record. During a May press conference convened to address the video, East Baton Rouge Parish Attorney Anderson "Andy" Dotson III notified Frampton that the government would seek to hold him in contempt of court, which carried up to six months in the East Baton Rouge Parish Prison.

"In measuring 'the significance of [Frampton's] alleged criminal activity', the Court finds under the circumstances of this case, there was no criminal activity," writes Judge John W. deGravelles in a 92-page opinion published Friday. "Frampton released a Video that was in the public domain, belonged to his clients, and he released it on the instructions and with the knowledge of his clients."

The footage of Camallo's warrantless home entry might be an even bigger headache for the BRPD that thepublic strip-search. This was his third such search in under three years. He has since been demoted, but he's still with the department.

"BRPD officers' contempt for the constitutional rights of everyday Baton Rouge citizens, like the Green Family, is jaw-dropping," Frampton declared in a public statement. "But then you see how the lawyers who defend and enable these officers act, and it makes a lot more sense. Sadly, it's the taxpayers who will end up paying for their misdeeds."

Indeed, the Green family reached a $35,000 settlement with the city after Clarence spent five months in jail. The government moved to dismiss its case against him, and a federal judge agreedbut not without first benchslapping the state for actions that could be criminal.

"Such an intrusion, in abject violation of the protections afforded by the Fourth Amendment of the United States Constitution, which protects citizens against unwarranted governmental intrusions in their homes, may justifiably be considered to be a trespass subject to prosecution under" Louisiana law, wrote Judge Brian A. Jackson of the U.S. District Court for the Middle District of Louisiana.

The city of Baton Rouge insisted that it was Frampton who violated the law, by disseminating the video. But it was the city that put that footage into the public record in the first place.

DeGravelles thinks this was never really about prosecuting someone for breaching the law. Instead, he says, it was about revenge and skirting accountability. "The record is replete with evidence," he writed, "that the City/Parish would not have pursued this matter in the absence of its bad faith motive to retaliate."

Read more:
Judge: Baton Rouge Violated the First Amendment by Trying To Imprison a Professor for Sharing Body Camera Footage - Reason