Category Archives: Fourth Amendment

The Supreme Court heard arguments on Wednesday concerning Dobbs v. Jacksons Womens Health Organization. It's a case that judges the legality of Mississippis ban on nearly all abortions after 15 weeks.

While the pro-life movement has, for decades, hoped the Supreme Court would eventually hear a case that would challenge the legitimacy of Roe v. Wade, most were doubtful it would happen, let alone succeed. A few things should encourage pro-life advocates.

For starters: Mississippi Solicitor General Scott G. Stewart made it abundantly clear that the Supreme Court should abolish the so-called viability standard which made abortions legal until that point. Justice Samuel Alito hinted that this standard is illogical: "The fetus has an interest in having a life and that doesnt change does it? From the point before viability to the point after viability?" Even Chief Justice Roberts remained unconvinced of the validity of viability.

Justice Brett Kavanaugh confronted the idea that Roe should remain law simply because of stare decisis, or precedent. "If we think that the prior precedents are seriously wrong ... why then doesn't the history of this court's practice ... tell us that the right answer is actually a return to the position of neutrality?" Kavanaugh is right. Dozens of cases have been overturned in this manner.

Justice Clarence Thomas repeatedly, in multiple lines of questioning, simply asked where the heck the right to abortion could be found in the Constitution. "I understand we're talking about abortion here, but what is confusing is that we if we were talking about the Second Amendment, I know exactly what we're talking about. If we're talking about the Fourth Amendment, I know what we're talking about because it's written. It's there. What specifically is the right here that we're talking about?" Kavanaugh observed, "The court has been forced ... to pick sides in the most contentious social debate in American life ... [but] the Constitution is neutral on the question of abortion."

Justice Sonia Sotomayor made one of the most egregious comments of the day when she insinuated viability mattered because babies lack personhood. In fact, she said, they dont actually feel pain. Comparing an unborn baby to a brain-dead hospital patient Sotomayor said, "Literature is filled with episodes of people who are completely and utterly brain dead responding to stimuli."

In minutes, the state of Mississippi made a compelling case that Roe was always bad law, that science underscores this, and that the right to abortion exists nowhere in the Constitution in the first place. Ipso facto: abortion laws should be left to the states.

We should be clear that the pro-life movement goes far beyond those lawmakers in Mississippi who passed the bill this Supreme Court is now considering. We couldnt have gotten here without the thousands of people advocating for life. They have done so for decades, slowly building a movement in law, science, and culture. Justice Amy Coney Barrett, a mother of seven, got to challenge the basic tenets of Roe because the pro-life movement is the scared woman who feels that tiny kick for the first time and knows shes carrying a tiny person. Kavanaugh challenged Roes existence because of the brave reporters who covered cases such as abortion "doctor" Kermit Gosnell.

An enduring emphasis on a culture of life has formed a great alliance. Lawmakers in states kept drafting heartbeat law after heartbeat law knowing theyd be blocked. But still hoping, that is, that maybe one day one law would challenge Roe before the nation's highest court. Wednesday, that day came.

Nicole Russell is a contributor to the Washington Examiner's Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota. She was the 2010 recipient of the American Spectator's Young Journalist Award.

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Life at the Supreme Court - Washington Examiner

During the South Dakota State University Students Association meeting Nov. 29, Senators were addressed by the director of the Wintrode Student Success Center, Jody Owen, as well as the Little International and Formula SAE clubs. The Senate also passed three new amendments and tabled another amendment until the Dec. 6 meeting.

Wintrode:

Jody Owen, director of the Wintrode Student Success Center and coordinator for undergraduate academic advising, spoke to the Senate Monday about the efficacy of the center.

We served more than 4,300 unique students at SDSU, which is about 43% of the undergraduate population, and had about 28,000 visits, Owen said about the 2020 to 2021 school year.

The Wintrode tutoring program offers in-person and virtual options to accommodate most students. According to Owen, students may earn between half a letter grade and a full letter grade higher when they regularly participate in supplemental instruction.

The center also offers early-alerts for grades. 93 percent of students who receive the alert will take steps to improve in the class, Owen said.

Little International:

The 99th Little I will be a two-day event held April 1 -2. The 98th Little I was held March 26 -27, 2021 and marked a return to in-person events after the 97th was canceled in 2020 due to COVID-19 concerns. The club expects a high turnout this year despite continued pandemic concerns in some localities.

Were looking at ramping up the fundraising and sponsorships and getting the word out to as many people as possible, Dalton Howe, the clubs treasurer, said.

Last year, the club received $8,000 from the Students Association.

Formula SAE:

In the Formula SAE club, students build formula-style race cars. The club has about a year to design and build the car. From there, the car will have to pass a series of tests to go on to the convention. At the convention, SDSU will compete with colleges from around the world.

This year, the team of about 40 active students are trying to transition to a new engine to fare better in the competition.

Amendments:

The Senate passed three new amendments Monday and tabled another. The first amendment was 21-7-A, which provided clarity on how QR codes are to be used on Students Association campaign material. The amendment requires QR codes to be correctly labeled on materials. The Senate recognizes QR codes as a way to help increase voter turnout, which was less than 20% in 2021.

The second amendment passed Monday, 21-8-A, will require future SA campaign posters to include Sponsored by the Students Association, rather than sponsored by the Office of Student Activities.

The third amendment passed recognizes November as Native American Heritage Month.

This month is focused on celebrating Native American people by highlighting contributions of Native people and also, highlighting different indigenous stories and culture, 21-13-R reads.

All three amendments passed unanimously.

A fourth amendment that was set to be voted on was tabled. 21-12-R is a move to reverse a South Dakota Board of Regents policy that restricts alcoholic beverages at athletic events by only allowing alcohol sales in box suites and lounge areas.

[UPD] sees tailgating as a problem. People will feel like they need to get drunk and will drink too much before the game, Senator Jonathon Sundet said about the SDBOR policy.

Sundet asked the Senate to postpone the vote to allow more time for revision.

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SA in brief: Little International, Formula SAE and amendments - SDSU Collegian

Imagine youre driving a car, and a police officer spots you and pulls you over for speeding. He orders you out of the car. Maybe he wants to place you under arrest. Or maybe he wants to search your car for evidence of a crime. Can the officer do that?

The Fourth Amendment is the part of the Constitution that gives the answer. According to the Fourth Amendment, the people have a right to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. This right limits the power of the police to seize and search people, their property, and their homes.

The Fourth Amendment has been debated frequently during the last several years, as police and intelligence agencies in the United States have engaged in a number of controversial activities. The federal government has conducted bulk collection of Americans telephone and Internet connections as part of the War on Terror. Many municipal police forces have engaged in aggressive use of stop and frisk. There have been a number of highly-publicized police-citizen encounters in which the police ended up shooting a civilian. There is also concern about the use of aerial surveillance, whether by piloted aircraft or drones.

The application of the Fourth Amendment to all these activities would have surprised those who drafted it, and not only because they could not imagine the modern technologies like the Internet and drones. They also were not familiar with organized police forces like we have today. Policing in the eighteenth and early nineteenth centuries was a responsibility of the citizenry, which participated in night watches. Other than that, there was only a loose collection of sheriffs and constables, who lacked the tools to maintain order as the police do today.

The primary concerns of the generation that ratified the Fourth Amendment were general warrants and writs of assistance. Famous incidents on both sides of the Atlantic gave rise to placing the Fourth Amendment in the Constitution. In Britain, the Crown employed general warrants to go after political enemies, leading to the famous decisions in Wilkes v. Wood (1763) and Entick v. Carrington (1765). General warrants allowed the Crowns messengers to search without any cause to believe someone had committed an offense. In those cases the judges decided that such warrants violated English common law. In the colonies the Crown used the writs of assistancelike general warrants, but often unbounded by time restraintsto search for goods on which taxes had not been paid. James Otis challenged the writs in a Boston court; though he lost, some such as John Adams attribute this legal battle as the spark that led to the Revolution. Both controversies led to the famous notion that a persons home is their castle, not easily invaded by the government.

Today the Fourth Amendment is understood as placing restraints on the government any time it detains (seizes) or searches a person or property. The Fourth Amendment also provides that no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. The idea is that to avoid the evils of general warrants, each search or seizure should be cleared in advance by a judge, and that to get a warrant the government must show probable causea certain level of suspicion of criminal activityto justify the search or seizure.

To the extent that a warrant is required in theory before police can search, there are so many exceptions that in practice warrants rarely are obtained. Police can search automobiles without warrants, they can detain people on the street without them, and they can always search or seize in an emergency without going to a judge.

The way that the Fourth Amendment most commonly is put into practice is in criminal proceedings. The Supreme Court decided in the mid-twentieth century that if the police seize evidence as part of an illegal search, the evidence cannot be admitted into court. This is called the exclusionary rule. It is controversial because in most cases evidence is being tossed out even though it shows the person is guilty and, as a result of the police conduct, they might avoid conviction. The criminal is to go free because the constable has blundered, declared Benjamin Cardozo (a famous judge and ultimately Supreme Court justice). But, responded another Supreme Court justice, Louis Brandeis, If the government becomes the lawbreaker, it breeds contempt for the law.

One of the difficult questions today is what constitutes a search? If the police standing in Times Square in New York watched a person planting a bomb in plain daylight, we would not think they needed a warrant or any cause. But what about installing closed circuit TV cameras on poles, or flying drones over backyards, or gathering evidence that you have given to a third party such as an Internet provider or a banker?

Another hard question is when a search is acceptable when the government has no suspicion that a person has done something wrong. Lest the answer seem to be never, think of airport security. Surely it is okay for the government to screen people getting on airplanes, yet the idea is as much to deter people from bringing weapons as it is to catch themthere is no cause, probable or otherwise, to think anyone has done anything wrong. This is the same sort of issue with bulk data collection, and possibly with gathering biometric information.

What should be clear by now is that advancing technology and the many threats that face society add up to a brew in which the Fourth Amendment will continue to play a central role.

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Interpretation: The Fourth Amendment | The National ...

Learn when the government can invade your privacy to hunt for evidence of a crime.

The Fourth Amendment to the U.S. Constitution places limits on the power of the police to make arrests, search people and their property, and seize objects and contraband (such as illegal drugs or weapons). These limits are the bedrock of search-and-seizure law. This article covers basic issues you should know, beginning with an overview of the Fourth Amendment itself.

The Fourth Amendment to the U.S. Constitution reads as follows:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The search-and-seizure provisions of the Fourth Amendment are all about privacy. To honor this freedom, the Fourth Amendment protects against "unreasonable" searches and seizures by state or federal law enforcement authorities.

The flip side is that the Fourth Amendment does permit searches and seizures that are reasonable. In practice, this means that the police may override your privacy concerns and conduct a search of you, your home, barn, car, boat, office, personal or business documents, bank account records, trash barrel, or whatever, if:

The Fourth Amendment applies to a search only if a person has a "legitimate expectation of privacy" in the place or thing searched. If not, the amendment offers no protection because there are, by definition, no privacy issues.

Courts generally use a two-part test (fashioned by the U.S. Supreme Court) to determine whether, at the time of the search, a defendant had a legitimate expectation of privacy in the place or things searched:

For example, a person who uses a public restroom expects not to be spied upon (the person has an expectation of privacy), and most peopleincluding judgeswould consider that expectation to be objectively reasonable. Therefore, the installation of a hidden video camera by the police in a public restroom would be considered a "search" and would be subject to the Fourth Amendment's requirement of reasonableness.

On the other hand, if an officer stops a car and, when talking to the driver, happens to notice a weapon on the passenger seat, there's been no search under the Fourth Amendment. That's because, even if the driver somehow considered the passenger seat to be a private place, society isn't willing to extend privacy protections to that particular location. In other words, there's no objectively reasonable expectation of privacy with respect to the gun because it was in plain view.

A good example of how this works comes from a U.S. Supreme Court case in which the court held that a bus passenger had a legitimate expectation of privacy in an opaque carry-on bag positioned in a luggage rack above the passenger's head. The Court held that the physical probing by the police of the bag's exterior for evidence of contraband constituted a search subject to Fourth Amendment limitations. (Bond v. U.S., 529 U.S. 334 (2000).)

If it turns out the police conducted an illegal search, does that mean the criminal case is over? Not necessarily, but consequences do exist.

If, upon review, a court finds that an unreasonable search occurred, any evidence seized as a result of it cannot be used as direct evidence against the defendant in a criminal prosecution. This principle, established by the U.S. Supreme Court in 1961, has come to be known as the exclusionary rule.

To this day, many commentators criticize the exclusionary rule on the ground that it unfairly "lets the criminal go free because the constable has erred." But the rule's supporters argue that excluding illegally seized evidence is necessary to deter police from conducting illegal searches. According to this deterrence argument, the police are less likely to conduct improper searches if the resulting evidence can't be used to convict the defendant. (There are, however, exceptions to the exclusionary rulefor one, see Police Searches and the Good Faith Exception.)

Not only is evidence that's the product of an illegal search generally inadmissible in court, but so too is additional evidence derived from the initial evidence. This principle is colorfully known as the "fruit of the poisonous tree" doctrine. The "tree" is the evidence that the police illegally seized in the first place; the "fruit" is the second-generation product of the illegally seized evidence. Both tree and fruit are typically inadmissible at trial. (For more, see Fruit of the Poisonous Tree.)

Some defendants believe that if they can show that a search was illegal, the case must be dismissed. Not true. If a prosecutor has enough other evidence to prove the defendant guilty, the case can continue. Also, the illegally-seized evidence can generally be considered by a judge when deciding on an appropriate sentence following conviction and admitted in civil and deportation cases. In some circumstances, a prosecutor can use such evidence to impeach (attack the credibility of) a defendant who testifies at trial.

To learn more about search-and-seizure law, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman (Nolo). If you might need to talk to a criminal defense attorney or want to know how the law may differ slightly in your state, you can turn to Nolo's trusted Lawyer Directory to find a lawyer near you.

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When Can't the Fourth Amendment Protect My Privacy? | Nolo

By Gwynneth Redemann

WOODLAND, CA- Judge David Rosenberg here in Yolo County Superior Court last week denied a motion by the defense to suppress DNA evidence collected from a cup used by Lot Guerra during an interview at the Yolo County Sheriffs Office because, the judge said, Guerra did not have an expectation of privacy.

Lot Guerra, charged with multiple felonies including burglary, assault with intent to commit rape, and sexual battery, was transferred from Los Angeles to Yolo County on Aug 28.

According to testimony from Yolo County Detective Randall Krantz, Guerra arrived by car at the Yolo County Sheriffs Office, where he was offered some water after the six-hour car ride.

Guerra drank many cups of water during the interview. At the end of the interview, Detective Krantz booked the cups into evidence because the cups contained DNA evidence.

Private Defense Attorney Steve Whitworth asked Detective Krantz whether he was the officer that Mirandized his client Guerra, and Krantz said yes.

Whitworth continued, asking if in that Mirandizing, is there any conversation about DNA or abandonment of items that may have DNA on them? And Detective Krantz replied, No, there is not.

Whitworth followed up by asking if he ever informed Guerra that anything left behind in the room could be used against him. Again, Detective Krantz responded with a no.

Whitworth proceeded to ask about the details of the trip from Los Angeles to Yolo County, but Detective Krantz knew little about the trip because he was not the detective who was there.

The prosecution, led by Stephanie Allen and supervised by Deputy District Attorney David Robbins, called Corporal Ryan Bowler, another detective, in this case, to testify.

Allen asked Corporal Bowler about the details of the trip from LA to Yolo County, and Bowler said they had stopped twice during the six-hour drive. Bowler had provided Guerra with a meal from McDonalds that came with a medium drink. Other than this meal, Guerra was not provided any other food or drink.

According to Bowler, the group drove directly to the Yolo County Sheriffs Office and Guerra was offered a chance to use the restroom and drink water provided by the officers before the interview.

In the video recording of the interview provided by the prosecution, Guerra is seen drinking multiple cups of water. He is later escorted by a female police officer out of the room, while the cups are left behind on the table.

During the cross-examination, Defense Attorney Whitworth asked whether Bowler had told defendant Guerra that he could take the cups as his property. Bowler indicated that he had not told Guerra this information.

Whitworth then asked why [Bowler] provided Guerra a meal during their travels and if any other drinks had been provided to Guerra during the car ride.

Judge Rosenberg interjected, seemingly annoyed with the length of this motion hearing, stating, Because people get hungry. Next question?

Whitworth continued, asking Bowler youve been trained that if you deny a person food or drink or to use the bathroom [while in custody] that that could be coercive, correct?

The prosecution objected to this question, stating that it is clear that all procedures were followed and that she doesnt see how this is relevant to the cups. The question was sustained by Judge Rosenberg.

Whitworth continued, Did you offer Guerra any other drinks besides the drink that came with the meal?

Bowler stated, No.

And so for 6 hours, the only drink that you are aware of that he had, including the interview time, was the soda he drank with his meal, asked Whitworth.

It was eventually concluded that that was in fact the only drink that Guerra had between 8 a.m. and the time of the interview.

In the final comments of the motion, Whitworth stated, I dont think law enforcement can place citizens in a position where they take them, deprive them of food and drink, and then [later] provide them with food and drink and then use that as a weapon to pierce the Fourth Amendment or as evidence against them.

Judge Rosenberg stated, Its an issue I dont see that often. However, in viewing what Ive seen in the video and carefully reading the briefs submitted by counsel, in this particular case, the defendant had no reasonable expectation of privacy in the used water cups that he drank from while he was in custodial interrogation.

The motion to suppress is denied.

This case will reconvene for a settlement conference on Dec. 6 in Yolo County.

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Judge Denies Motion to Suppress DNA Evidence on Cup Used by Accused in Police Interview; Defense Claimed Client Denied Water on 6-Hour Trip, then...

When Berkeley Law School Dean and constitutional scholar Erwin Chemerinsky taught Criminal Procedure in the Fall of 2019, he became frustrated when he realized many of the cases that were the subject of his lectures ended with the police winning and the rights of suspects losing.

While Chemerinsky doesnt believe public opinion canor shouldinfluence the Supreme Court, he is worried about Courts increasingly conservative trend. He believes, instead, that the political process operating through Congress, state legislatures, city councilsoffers the best hope of change.

In a wide-ranging conversation with The Crime Report, Chemerinsky discusses why modern policings roots as slave patrols is critical to an understanding of law enforcement today, why Terry v. Ohio was the biggest mistake made during the most liberal era in Supreme Court history, and why the concept of policing in a democracy has been struggling to regain its footing ever since.

[The following transcript has been edited for space and clarity.]

THE CRIME REPORT: To start, Im curious about why you think people might have the impression that the Supreme Court upholds rights when in reality the way you describe it in the book, they have made decisions that are pro-police?

ERWIN CHEMERINSKY: I dont think most people are aware of what the Supreme Court has done in the criminal justice context. I think people are aware of high-profile issues what the Supreme Court does on abortion, gun rights, affirmative action, but my guess is that people dont realize that there has been no Supreme Court decision since 1986, 35 years ago, about eyewitness identification. I dont know how much people realize the Supreme Court has made it very difficult for there to be remedies for Fourth Amendment violations the cases in this area dont usually make headlines, dont reach public awareness.

THE CRIME REPORT: Making public headlines and raising public consciousness seems to conflict with the idea of a Court standing outside politics. Could that high profile role operate in reverse, as a way to persuade Justices to take a different approach?

CHEMERINSKY: I think youre asking two things. One, Is public pressure in this area of life going to change the Supreme Court? And I think the answer is no. Im not saying there is no relationship between public attitudes and what the Court does, but I think in this area I dont see any indication that the Supreme Court is going to be changing its jurisprudence. None of the conservative justices have ever expressed reservations about how policing is done in the United States. Or [expressed] concerns about racialized policing.

The other thing you may be asking is are we likely to have people be more informed about what the Supreme Court does in regard to policing? I would have thought so more a year and a half ago after the death of George Floyd. The Supreme Court handed down two terrible decisions recently, both concerning excessive-force cases in which they found police officers were protected by qualified immunity.

THE CRIME REPORT: Are there other places where the Supreme Court might expand individual protections?

CHEMERINSKY: In the criminal justice context, no. I dont think youre going to see the Court on the side of criminal suspects. You ask about individual rights. I think they will very much expand Second Amendment rights.

THE CRIME REPORT: Moving very far backwards the way you describe the history of police was very interesting, particularly how the Court stressed sheriffs were paid to perform tasks that people wanted them to is part of your contention that the police evolved as a means of protecting property owners?

CHEMERINSKY: The first antecedents of modern police officers in the United States were the slave patrols. I think its an important thing that many people arent aware of, and I wanted to trace the historical origins of these forces.

THE CRIME REPORT: Important in what way?

CHEMERINSKY: I dont think people realize that police forces didnt exist as we know them today until well into the 19th century. It helps to explain why there are very few Supreme Court cases for the first hundred years of American history dealing with Fourth Amendment, Fifth Amendment rights.

THE CRIME REPORT: As in, it wasnt always this way, or are you suggesting or asking people to imagine how it might not always be this way?

CHEMERINSKY: I wasnt focused on using it to support a more normative claim about policing. I wanted to describe what policing was relative to answering the question why there were so few Supreme Court cases dealing with the Fourth and Fifth Amendments prior to the late 19th century.

THE CRIME REPORT: Is there a need for the general population to buy into the legitimacy of the Court for their decisions to matter. Is that a key to reinforcing the authority of Supreme Court decisions, or maybe will be in the future?

CHEMERINSKY: I dont know how much it has ever been part of Supreme Court decisions. There have been some justices who have stressed it. On the other hand, the Courts job is to interpret and enforce the Constitution, and Im skeptical that the Court should be basing its decisions on whats going to please the public. Ruling in favor of criminal suspects and defendants almost never enhanced the Courts overall image with the general public.

THE CRIME REPORT: What do you mean?

CHEMERINSKY: Rarely has a legislature expanded the rights of criminal suspects and criminal defendants and prisoners. Most people want to feel safe and so the Supreme Court, if it hands down decisions protecting criminal suspects and criminal defendants, is not going to please most of the public.

THE CRIME REPORT: Do you notice any differences? Youve obviously read a lot of cases in your career. do you notice a difference in language or the ways in which opinions are written as time passes?

CHEMERINSKY: Yes, opinions have become much longer and the justices have become much more sarcastic and acerbic in their language. I think this started with Justice Scalia and I think its had an effect in terms of how other justices write and on how lower court judges write.

THE CRIME REPORT: What do you think of that change?

CHEMERINSKY: I think its a terrible change. Ive written about this. Entirely apart from his jurisprudence, I think the sarcasm of Justice Scalia s opinions sets a terrible example for lawyers and law students on how to write.

THE CRIME REPORT: Because its not getting the point across?

CHEMERINSKY: Its not substantive, And its not civil. You know when Justice Scalia says if I ever was writing an opinion with the majority I wouldnt leave the house with a bag over my head. That doesnt add anything; its just mean.

THE CRIME REPORT: There was only one era in which there was a liberal majority that was able to push forward some of the protections that you write about in the book. What was the biggest mistake there?

CHEMERINSKY: Terry v. Ohio paved the way for what we have nowwhich is that police can stop virtually any person at any time. Its a power that is used in a very racialized way.

THE CRIME REPORT: What should they have done instead?

CHEMERINSKY: I think what they should have said is the Fourth Amendment standard is probable cause and police cant stop and search somebody unless they have probable cause a crime was committed. I think the court made a terrible mistake making a much more lenient standard reasonable suspicion.

THE CRIME REPORT: Why? Just because a reasonable standard is subjective?

CHEMERINSKY: Well, all standards are subjective. But the Court says more than a hunch, less than probable cause. Im critical of it because the Fourth Amendment standard is probable cause and the court abandons the standard from the Fourth Amendment. But most of all, Im critical of it because it really does make it possible for the police to stop virtually anyone at any time and then search them.

THE CRIME REPORT: Does that ever get changed? Or does stare decisis make it stuck as a precedent?

CHEMERINSKY: Anything the Supreme Court decides it could reverse. The Court could reverse Terry v. Ohio but theres no indication the Court is going to do so.

THE CRIME REPORT: What persuaded you to write this book?

CHEMERINSKY: Ive taught criminal procedure many times, and in the end I became frustrated that in every case the police win and the rights of suspects lose. I hadnt seen anybody write the book I wanted to, which focused on, historically, how has the Supreme Court dealt with [the challenge of] controlling the police?

What was I hoping to accomplish? I want to elaborate for a general audience how the Supreme Court has failed to enforce parts of the Constitution that affect criminal suspects. I want people to see that Supreme Court has contributed significantly to the problem of racialized policing in the United States. I want to offer remedies.

The solutions arent going to come from the Supreme Court. But I argue in the last chapter that the political processCongress, state legislatures, city councils, police commissionscan take action. State Supreme Courts can interpret state constitutions to protect more rights. The Justice Department can sue police departments for a pattern and practices of civil rights violations.

THE CRIME REPORT: I know that you say the Supreme Court cant solve these problems and wont.

CHEMERINSKY: They can, but they wont.

THE CRIME REPORT: If the Supreme Court is also unwilling to make decisions that impact things like voting rights or other types of protections in that way, what actually moves it forward, in your opinion?

CHEMERINSKY: I want to draw a distinction between two situations. One is where the Court fails to protect rights that should be protected. And thats where the political process and state courts can step in. The other situation is where the Supreme Court defines constitutional rights that limit what state and local governments can do. If the Supreme Court declares that all affirmative action violates equal protection, theres nothing a state government can do. Im focusing on the former situation: where the Court fails to find rights or remedies in the Constitution. And what I want to say, and I argue in the last chapter, is there are other agents for change who can be effective: Congress, state legislatures, city councils, police commissions, state supreme courts.

THE CRIME REPORT: What could happen at the state level?

CHEMERINSKY: There are lots of examples. A year ago, California adopted a law prohibiting the police from using a chokehold. Many cities have prohibited the police from using the chokehold. California changed the standard with regard to excessive force. Under Supreme Court precedent, police can use deadly force if its reasonable. California law now says police can use deadly force only when its necessary. California just adopted a law that requires a police officer to know the officers are violating the rights of someone.

Another example: Three cities in North Carolina said police [require] consent to search, and it needs to be written consent. They found a tremendous decrease on searches based on consent when people were informed of their rights in writing. It can be done by states, it can be done by Congress.

The difficulty of relying on state and local governments is theres tremendous variation across the country and politics. Some will act. Many wont.

THE CRIME REPORT: Please discuss the City of Los Angeles v Lyons case in which the Supreme Court limited the ability of individuals to sue police for injunctive relief.

CHEMERINSKY: The Supreme Court says a person cant sue for an injunction unless the person can prove that the harm is likely to happen to him or her personally again in the future. Lyons had been choked by Los Angeles Police officers and wanted an injunction to stop the use of the chokehold. The Supreme Court said Adolph Lyons cant show hes likely to be choked in the future. No one ever will be able to show they are likely to be choked in the future, because you cant prove thats going to happen in that way.

This is a Court thats very restrictive with regard to the ability to sue police and thats found in the latter part of Justice Whites opinion. Ill always wonder if that case had come out differently, and the court had found the chokehold unconstitutional, would it have saved the lives of people like Eric Garner and George Floyd and many others?

THE CRIME REPORT: How would you describe the current Supreme Court?

CHEMERINSKY: Conservative. Its a very conservative court. There are six conservative justices appointed by Republican presidents.

THE CRIME REPORT: Does that frustrate you?

CHEMERINSKY: The Warren Court ended in 1969, six years before I started law school. My professional career has been with Supreme Courts that are ever more conservative. Its just gotten gradually more conservative with each era. Now its the most conservative its ever been since the 1930s. To use your word, is that frustrating, infuriating, sad, tragic? Ill agree to all those words.

THE CRIME REPORT: It is interesting that a Court which wants to be seen as apolitical reflects the politics of a segment of the population that increasingly leans right.

CHEMERINSKY: I think of the American people as a little bit left of center. Between 1992-2020, Democrats won every popular vote in every presidential election but one in 2004. On the other hand, Trump was three million votes from winning the popular vote in 2016, seven million in 2020. Look at what happened this month in Virginia. Maybe now were a little right of center But with five justices on the Supreme Court who are far to the right of center, whats that going to mean in the long term?

THE CRIME REPORT: How does that influence your perspective on the future of our democracy?

CHEMERINSKY: I think our democracy is in more danger than at any time in American history. We almost had a coup on January 6. Had Mike Pence done what Donald Trump wanted and declared Trump President, we would have had a coup for the first time. Thirty percent of the American people and 70 percent of Republicans believe the election was stolen from Donald Trump. No evidence to support that whatsoever. It makes me really worried about the future of democracy.

THE CRIME REPORT: These are justices who are educated and for the most part would say they believe in the rule of law. What about that, if anything, makes you optimistic about the Court?

CHEMERINSKY: What makes me optimistic is the sweep of American history. Over the course of American history, there have been tremendous advances in equality and freedom. Our country has a huge way to go in racial equality, but compared to 1787? Or even when I was born in 1953? We have an enormous way to go in gender equality. But theres no doubt its radically different than it was.

With regards to sexual orientation, its just six years since the Supreme Court found a right to marry for gays and lesbians. Freedoms have expanded over time. Thats what gives me optimism. Even if were in for a period of retrenchment with this Court, Im optimistic for the future.

Lauren Sonnenberg is a California-based contributor to The Crime Report.

Read more:
How the Supreme Court Laid the Foundations for 'Racialized Policing' - Crime Report

By The Associated Press

KANSAS CITY, Mo. A judge will determine the fate of a white Kansas City police detective charged with involuntary manslaughter in the 2019 shooting death of a Black man.

Closing arguments were held Friday in the trial of Eric DeValkenaere, who is accused of killing Cameron Lamb in December 2019. Lamb, 26, was backing his pickup truck into his garage in the backyard of his home when he was shot.

DeValkenaere and another detective said during the trial that they ran into Lamb's backyard after seeing him speeding and chasing another vehicle. The defense team argued DeValkenaere fired because he believed Lamb was pointing a gun at his partner, Troy Schwalm.

Prosecutors said the officers didn't have a search warrant and had no reason to be in Lamb's backyard. Prosecutor Dion Sankar said clearing the detective of the charges would shred the Fourth Amendment, which prohibits unreasonable searches and seizures, KCTV reported.

Defense attorney Dawn Parsons said DeValkenaere was doing his job, and maintained that a vehicle going 60 to 90 mph and running red lights was as dangerous as a bullet.

This case is about (the) everyday reality of policing in this city, Parsons said.

Prosecutors have suggested during the trial this week that police might have planted a gun that was found on the ground under Lamb's hand after he was shot. They said Lamb had previously injured that hand and could not have shot a gun with it.

The defense team presented photos from social media that show Lamb using his left hand and driving with a gun in his lap.

There is no body camera evidence in this trial. The shooting took place before police began widely using body cameras in April 2021.

Presiding Jackson County Judge J. Dale Youngs took the case under advisement and indicated he likely would make a decision next week.

The case is a rare example of a white officer from the city being criminally accused of killing a Black man. In 1942, two officers were acquitted in a killing, The Kanas City Star reported.

___

This story was first published on Nov. 12. It was updated on Nov. 19 to correct that DeValkenaere was not the first white officer in the city to be charged in the death of a Black person. Such a case happened in 1942.

Originally posted here:
Kansas City police officer's shooting trial goes to judge :: WRAL.com - WRAL.com

Published Friday, Nov. 19, 2021 | 1:11 p.m.

Updated 1 hour, 14 minutes ago

KANSAS CITY, Mo. (AP) A judge will determine the fate of a white Kansas City police detective charged with involuntary manslaughter in the 2019 shooting death of a Black man.

Closing arguments were held Friday in the trial of Eric DeValkenaere, who is accused of killing Cameron Lamb in December 2019. Lamb, 26, was backing his pickup truck into his garage in the backyard of his home when he was shot.

DeValkenaere and another detective said during the trial that they ran into Lamb's backyard after seeing him speeding and chasing another vehicle. The defense team argued DeValkenaere fired because he believed Lamb was pointing a gun at his partner, Troy Schwalm.

Prosecutors said the officers didn't have a search warrant and had no reason to be in Lamb's backyard. Prosecutor Dion Sankar said clearing the detective of the charges would shred the Fourth Amendment, which prohibits unreasonable searches and seizures, KCTV reported.

Defense attorney Dawn Parsons said DeValkenaere was doing his job, and maintained that a vehicle going 60 to 90 mph and running red lights was as dangerous as a bullet.

This case is about (the) everyday reality of policing in this city, Parsons said.

Prosecutors have suggested during the trial this week that police might have planted a gun that was found on the ground under Lamb's hand after he was shot. They said Lamb had previously injured that hand and could not have shot a gun with it.

The defense team presented photos from social media that show Lamb using his left hand and driving with a gun in his lap.

There is no body camera evidence in this trial. The shooting took place before police began widely using body cameras in April 2021.

Presiding Jackson County Judge J. Dale Youngs took the case under advisement and indicated he likely would make a decision next week.

The case is a rare example of a white officer from the city being criminally accused of killing a Black man. In 1942, two officers were acquitted in a killing, The Kanas City Star reported.

___

This story was first published on Nov. 12. It was updated on Nov. 19 to correct that DeValkenaere was not the first white officer in the city to be charged in the death of a Black person. Such a case happened in 1942.

Original post:
Kansas City police officer's shooting trial goes to judge - Las Vegas Sun

Four years ago, Tarana Burkes longstanding #MeToo movement went viral, sparking a global movement to address workplace harassment across industries. Yet today, the federal judiciary, the very institution tasked with enforcing anti-discrimination laws, has yet to fix the issue in its own houseand the Department of Justice is backing the judiciary.

On Nov. 3, DOJ attorneys filed a reply brief in Roe v. United States, et al., a case brought by a former public defender who experienced pervasive workplace sex discrimination, including sexual harassment and retaliation. In it, the government asked the appeals court to effectively sanction the federal judiciarys woefully inadequate procedures for addressing workplace harassment by dismissing her case outright.

Such an endorsement might sound ridiculous, but thanks to a loophole in federal law, and some watered-down Constitution-based jurisprudence, it could very well happen. Luckily, we see potential for a fix that could more significantly protect judicial branch workers.

Most federal employees, like most private sector employees, have the protection of Title VII of the Civil Rights Act of 1964. The federal law shields employees from discrimination on the basis of race, color, religion, sex, national origin, and other protected categories. It provides employees with a cause of action, meaning that if they have been discriminated against, they can sue in court.

But for reasons that defy logic, Title VII does not cover judiciary employees. Time and again, the judiciary has professed that its employment dispute resolution procedures, which do not include a cause of action in federal court, are sufficient. As such, judiciary employees dont receive the benefit of the anti-discrimination protections Title VII offers, and Roe cant use it to sue for discrimination.

This doesnt mean Roe has no claim here. Even without Title VII, if government supervisors subject their employees to sexual harassment and retaliation, one may argue they violate the employees constitutional right to equal protection under law. That idea comes from a 1971 Supreme Court case, Bivens v. Six Unknown Named Agents.

In Bivens, the court held that an individual, in that case Webster Bivens, could sue federal officers from the Bureau of Narcotics for violating his Fourth Amendment rights in an improper search of his residence. The officers had no warrant or probable cause, but they still arrested him, manacled him in front of his wife and children and threatened the entire family. The court ruled Bivens could sue the officers directly under the Constitution without relying on any specific federal law.

Unfortunately, in recent years Bivens has become increasingly disfavored. This past March, U.S. Court of Appeals for the Fifth Circuit Judge Don Willett expressed its current state in no uncertain terms: Bivens today is essentially a relic, technically on the books but practically a dead letter, meaning this: If you wear a federal badge, you can inflict excessive force on someone with little fear of liability.

This means that in Roes case, even if a constitutional violation did occur, there may be no judicial remedy available to compensate her for the harm. Constitutional rights without remedies cannot be properly understood as true constitutional rights.

Since the judiciary created this problem, the judiciary can fix it, too. The Supreme Court could reinvigorate Bivens by holding once again that individuals can sue federal officials who violate their constitutional rights. On Nov. 5, the court granted granted a Bivens case that will be argued early next year.

In the meantime, Congress can help employees of the federal judiciary by expanding Title VII. In July, a bipartisan, bicameral group introduced a bill to do exactly that. The Judicial Accountability Act would extend the same workplace protections other federal employees enjoy to third branch employees.

Significantly, there might be some momentum behind congressional action. Earlier this month, Republicans and Democrats in both the House and Senate advanced a different but related workplace conduct bill one that would prevent employers from sweeping sexual assault or harassment claims under the rug by enforcing mandatory arbitration agreements.

Sexual harassment, and indifference to it, are not unique to our third branch of government. Whats different is the lack of legal options available to wronged judiciary employees.

With Bivens on the ropes, Jane Roe might not receive the justice she deserves. Thats beyond shameful. For both her and the 31,000 others who work in the federal judiciary, meaningful remedies cant come soon enough.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Ally Coll is the president and co-founder of the Purple Campaign, a non-profit organization dedicated to addressing workplace harassment in the wake of the #MeToo movement.

Dylan Hosmer-Quint is a law clerk at Fix the Court, a non-profit that advocates for greater transparency and accountability in the federal judiciary.

Read more:
The Federal Judiciary Has a Harassment ProblemBut There's a Fix - Bloomberg Law

There are plenty of really good reasons to improve micromobility infrastructure. While EVs are better than gas or diesel-powered vehicles, an e-bike, electric scooter, or human-powered vehicle is even better. Not only does micromobility emit less pollution and greenhouse gases, but it also contributes far less to pollution, space issues, and loss of life in cities. These reasons alone are enough to build protected micromobility lanes in cities. What I didnt know until today is that its also a civil rights issue. The lack of cycling space in Los Angeles County forces cyclists to commit a petty crime, which is technically enough justification for LA County Sheriff deputies and police officers to deny cyclists their civil and human rights.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. US Constitution, Amendment IV

One thing I like to point out about the US Bill of Rights is that none of the first nine amendments says we hereby grant or this constitution gives citizens They all mention pre-existing human rights people have, and demand that governments protect rather than violate those rights. Why? Because as the Declaration of Independence says, people have a right to alter or abolish governments that dont protect their human rights. This was a radical concept in the eighteenth century to most European powers, but its something we take for granted today in civilized countries.

Theres one problem that the ratifiers of the Fourth Amendment didnt anticipate, though. They didnt foresee the time when governments make all sorts of innocent things a crime. It seemed reasonable at the time to include probable cause as an exception to the right to be free from warrantless detention, search, and seizure, but that exception is now heavily abused by police officers.

Something as trivial as a cracked windshield, a broken tail light, or even riding a bicycle on the sidewalk is now used to rob people of their human rights.

If you live in a country with good bicycle infrastructure or streets that otherwise are friendly to cyclists, you may think criminalizing riding a bike on the sidewalk is a good idea. While a car is probably going to be more deadly, getting run into by a cyclist or scooter rider can cause fairly serious injuries and even death. This is especially true for electrified micromobility, where the speeds can be much higher.

But much of the United States doesnt have good streets and roads. Instead of having low-speed streets and high-speed roads and highways, we have a bastardized mix of street and road that some cycling advocates call stroads.

These stroads have cars going 40-60 miles per hour, and usually dont have a bike lane. When they do have a bike lane, its just a stripe dedicating the last 3-4 feet on the side for cyclists, and not a protected lane, so people looking at cell phones often drive into them.

So, cyclists are faced with an awful choice: ride on the stroad with fast cars driven by distracted drivers, or ride on the sidewalk and hope the cops dont bother you.

When cyclists make the sane choice and use the sidewalk, the cops arent detaining them to give them a ticket for riding on the sidewalk. Instead, they use this crime as a pretext for long detentions, searches, and seizures.

As youd probably expect if youre familiar at all with the US justice system, the cops dont pull over just anybody driving a bike. According to the LA Times, the LA County Sheriff and other police are targeting minorities. 7 out of every 10 people detained for riding on the sidewalk are Hispanics. 85% of people stopped on the sidewalk are searched for illegal items, and only 8% have something illegal, probably mostly drugs. Weapons are found only one half of one percent of the time.

In other words, theres no real arguable public safety benefit that comes from depriving tens of thousands of cyclists of their human rights. Even worse, some cyclists have been detained like this multiple times, but have no choice but to continue riding their bike on the sidewalk in a city where only 1% of roads have a bike lane.

The obvious first thing thats needed is police reform. Instead of focusing on real community safety and crime problems, police are wasting their time hassling citizens of low-level crimes where theres no victim and no harm done. Riding a bike on the sidewalk on a stroad with no bike lane, broken or missing lights, or other petty things shouldnt merit the time of police officers.

Instead, Los Angeles County and everywhere else should do what theyve done in Philadelphia and completely eliminate low-level traffic stops. Its a waste of police resources, a drain on the time and human rights of the citizenry, and just generally makes no sense to stop people over minor things. Motorists with missing equipment can still be mailed a notice that they need to fix their headlights or whatever it is thats a problem, while police can spend their time actually doing community policing.

We also need legislators to repeal laws banning riding on sidewalks until we have much better micromobility infrastructure. If theres not a safe alternative to the sidewalk, police have no business criminalizing cycling.

Finally, we need that micromobility infrastructure to actually get built. We need protected bike lanes on stroads, and not protected with a stripe. Bollards, Jersey barriers whatever it takes. We need these lanes to be open to both human-powered and electric micromobility, with some rules of the lane to make a safe mix between slower and faster micromobility traffic. We also need new roads built to have a sane separation between streets and roads, and not a haphazard mix that serves no user truly well.

Featured image by Los Angeles County Sheriffs Office.

See the article here:
LA County Sheriff Leverages Poor Micromobility Infrastructure To Deprive Minority Cyclists Of Their Human Rights - CleanTechnica