Category Archives: Fourth Amendment

The Supreme Court, which appointed an expert committee to inquire into Pegasus snooping row, Wednesday said its effort is to uphold the Constitutional aspirations and rule of law without being consumed in the ''political rhetoric'' even as it observed that the petitions filed in the matter raised Orwellian concern.

Quoting English novelist George Orwell, a bench headed by Chief Justice N V Ramana said, ''If you want to keep a secret, you must also hide it from yourself.'' Petitions seeking an independent probe into alleged snooping row raise an Orwellian concern, about the alleged possibility of utilizing modern technology to hear what you hear, see what you see, and to know what you do, the apex court said.

''Orwellian'' refers to a dystopian, totalitarian state which is destructive to the welfare of a free and open society.

''In this context, this Court is called upon to examine an allegation of the use of such a technology, its utility, need, and alleged abuse. We make it clear that our effort is to uphold the constitutional aspirations and rule of law, without allowing ourselves to be consumed in the political rhetoric.

''This Court has always been conscious of not entering the political thicket. However, at the same time, it has never cowered from protecting all from the abuses of fundamental rights,'' said the bench, also comprising Justices Surya Kant and Hima Kohli.

The further said: ''We live in the era of an information revolution, where the entire lives of individuals are stored in the cloud or a digital dossier. We must recognize that while technology is a useful tool for improving the lives of the people, at the same time, it can also be used to breach that sacred private space of an individual.

''Members of a civilized democratic society have a reasonable expectation of privacy. Privacy is not the singular concern of journalists or social activists. Every citizen of India ought to be protected against violations of privacy. It is this expectation which enables us to exercise our choices, liberties, and freedom''.

The top court said historically, privacy rights have been 'property-centric' rather than people-centric and this approach was seen in both USA as well as England.

''In 1604, in the historical Semayne's case, it was famously held that 'every man's house is his castle. This marked the beginning of the development of the law protecting people against unlawful warrants and searches,'' the bench said.

Quoting British statesman William Pitt, the Earl of Chatham, the bench said: "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail its roof may shake the wind may blow through it the storm may enter, the rain may enter but the King of England cannot enter! all his force dares not cross the threshold of the ruined tenement!" Referring to 'The Right to Privacy' article written by Samuel Warren and Louis Brandeis in 1890, the bench said: ''Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right "to be let alone." ...numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the housetops".

The apex court said however that unlike the 'property centric' origin of privacy rights in England and under the Fourth Amendment in the Constitution of the United States of America, in India, privacy rights may be traced to the 'right to life enshrined under Article 21 of the Constitution.

''When this Court expounded on the meaning of "life" under Article 21, it did not restrict the same in a pedantic manner. An expanded meaning has been given to the right to life in India, which accepts that "life" does not refer to mere animal existence but encapsulates a certain assured quality,'' the bench said.

(This story has not been edited by Devdiscourse staff and is auto-generated from a syndicated feed.)

Read the original post:
Pegasus snooping row: SC refers to 'Orwellian concern'; says effort to uphold rule of law without being consumed in political rhetoric - Devdiscourse

from the thus-answering-the-question-'when-is-a-search-not-a-search' dept

Private searches that uncover contraband can be handed off to law enforcement without the Fourth Amendment getting too involved. Restrictions apply, of course. For instance, a tech repairing a computer may come across illicit images and give that information to law enforcement, which can use what was observed in the search as the basis for a search warrant.

What law enforcement can't do is ask private individuals to perform searches for it and then use the results of those searches to perform warrantless searches of their own. A Ninth Circuit Appeals Court case [PDF] points out another thing law enforcement can't do: assume (or pretend) a private search has already taken place in order to excuse its own Fourth Amendment violation. (h/t Rianna Pfefferkorn)

Automated scanning of email attachments led to a series of events that culminated in an unlawful search. Here's the court's description of this case's origination:

The events giving rise to Luke Wilsons conviction and this appeal were triggered when Google, as required by federal law, reported to the National Center for Missing and Exploited Children (NCMEC) that Wilson had uploaded four images of apparent child pornography to his email account as email attachments. No one at Google had opened or viewed Wilsons email attachments; its report was based on an automated assessment that the images Wilson uploaded were the same as images other Google employees had earlier viewed and classified as child pornography. Someone at NCMEC then, also without opening or viewing them, sent Wilsons email attachments to the San Diego Internet Crimes Against Children Task Force (ICAC), where an officer ultimately viewed the email attachments without a warrant. The officer then applied for warrants to search both Wilsons email account and Wilsons home, describing the attachments in detail in the application.

You can see where things went wrong: the warrantless search engaged in by the officer to view images neither of the other parties had actually opened or inspected. Apparently, Fourth Amendment violations are standard practice at the San Diego ICAC.

NCMEC then forwarded the CyberTip to the San Diego Internet Crimes Against Children Task Force (ICAC). Agent Thompson, a member of the San Diego ICAC, received the report. He followed San Diego ICAC procedure, which at the time called for inspecting the images without a warrant whether or not a Google employee had reviewed them.

A footnote attached to this paragraph states the new "standard procedure" is to obtain a warrant before opening a CyberTip "when the provider has not viewed the images." The court notes it is "not clear from the record" that this is standard practice at other ICAC offices, or whether they've also been instructed to obtain warrants first from now on. So, more challenges are likely on the way.

The lower court refused to suppress the evidence obtained from Wilson's email account and home, deciding the private search that had never actually occurred was a private search, salvaging the warrantless search that immediately followed the forwarding of the tip by NMCEC.

The Appeals Court disagrees.

First, the government search exceeded the scope of the antecedent private search because it allowed the government to learn new, critical information that it used first to obtain a warrant and then to prosecute Wilson. Second, the government search also expanded the scope of the antecedent private search because the government agent viewed Wilsons email attachments even though no Google employeeor other personhad done so, thereby exceeding any earlier privacy intrusion. Moreover, on the limited evidentiary record, the government has not established that what a Google employee previously viewed were exact duplicates of Wilsons images. And, even if they were duplicates, such viewing of others digital communications would not have violated Wilsons expectation of privacy in his images, as Fourth Amendment rights are personal.

Matching hashes is not enough. And that's all Google and NMCEC had when they forwarded the tip down the line to law enforcement. Just because both entities retain hashes (NMCEC retains images as well) that matched the hashes of the attachment doesn't mean there's no subjective expectation of privacy in one's own email account. A strong probability that the files were child porn is the perfect basis for a warrant request. Unfortunately, the officer decided to engage in a search without one.

Wilson did not have an expectation of privacy in other individuals files, even if their files were identical to his files. The corollary of this principle must also be true: Wilson did have an expectation of privacy in his files, even if others had identical files. If, for example, police officers search someone elses house and find documents evidencing wrongdoing along with notes indicating that I have identical documents in my house, they cannot, without a warrant or some distinct exception to the warrant requirement, seize my copies. I would retain a personal expectation of privacy in them, and in my connection to them, even if law enforcement had a strong basis for anticipating what my copies would contain. A violation of a third partys privacy has no bearing on my reasonable expectation of privacy in my own documents. The government does not argue otherwise.

All of the evidence is suppressed, since it all relies on the initial lawless search. The ICAC in San Diego has, belatedly, put a warrant requirement in place. It won't salvage this conviction, which has been reversed. And it may result in similar suppressions and reversals if the same search-first procedure was used in other child porn cases. But it's always easier to bypass the warrant and get to the searching. After all, not every court will see the facts the same way, as is evidenced by the lower court's refusal to suppress the evidence. But it's now crystal clear in the Ninth Circuit: get a warrant.

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Filed Under: 4th amendment, child sexual abuse materials, scanning, warrant

Read the original:
Court Tells Child Sexual Abuse Investigators That The Private Search Warrant Exception Only Works When There's A Private Search - Techdirt

CASE PREVIEW ByHoward M. Wasserman on Oct 10, 2021 at 1:27 pm

Civil claims seeking damages for constitutional violations arising in the criminal-justice process require the plaintiff to show favorable termination, meaning the criminal proceedings were terminated in favor of the accused (the plaintiff in the subsequent civil action). Thompson v. Clark, to be argued Tuesday, considers whether a 42 U.S.C. 1983 claim for malicious prosecution under the Fourth Amendment requires a resolution that affirmatively indicates innocence, as the lower court held, or that it formally ended in a manner not inconsistent with innocence.

In January 2014, Larry Thompson lived in Brooklyn with his wife, Talleta Watson, their newborn daughter, and Thompsons sister-in-law, Camille Watson, who has cognitive delays.

Unbeknownst to Thompson, Camille called 911 late one evening, reporting red rashes on the babys buttocks and describing them as signs of abuse. EMTs arrived at the apartment, spoke with Thompson, then left without examining the baby. Police officers returned to the apartment with the EMTs; when Thompson refused to allow them into the apartment, they pushed through the door, tackling and pinning him to the ground. EMTs examined the baby and concluded the red marks were diaper rash, but took her to the hospital, where medical personnel confirmed that there were no signs of abuse.

Pagiel Clark was one of the officers who responded to the call and entered Thompsons apartment. Clark signed a criminal complaint against Thompson for resisting arrest and obstructing a governmental investigation. The report stated that Thompson had violently resisted: slapped an officer, flailed his arms, and physically struggled against the officers. Thompson was detained for two days before being released on his own recognizance at an arraignment. The prosecution offered an adjournment in contemplation of dismissal, which would have led to records of the prosecution being sealed without punishment; Thompson refused. Thompsons defense attorney orally moved to dismiss the charges for facial insufficiency; the court ordered submission of a written motion. The prosecution then notified defense counsel it would dismiss the charges. One week later, the prosecution dismissed the case on its motion in the interest of justice and the court dismissed the matter.

Thompson sued for damages under Section 1983, which allows individuals to sue state actors for violating their constitutional rights. Of the several claims in the lawsuit, the one at issue is against Clark for an unreasonable seizure pursuant to legal process (analogous to the common law tort of malicious prosecution) under the Fourth Amendment. The district court entered judgment as a matter of law in favor of Clark, concluding that Thompson failed to show the criminal charged were dismissed in a manner affirmatively indicative of his innocence. The U.S. Court of Appeals for the 2nd Circuit affirmed, because the record in the criminal proceeding provided no reasons for the dismissal and Thompson failed to show his innocence of the charges.

Thompson begins with the purposes of the favorable-termination requirement avoiding parallel criminal and civil proceedings and preventing individuals from using civil litigation to collaterally attack final criminal judgments. When criminal charges have been dismissed prior to trial, the subsequent civil action does not implicate either concern, as there is no parallel criminal proceeding and no judgment to attack. Under the Supreme Courts precedents, a plaintiff can show favorable termination when a conviction later was invalidated or when he has been acquitted following trial. Neither affirmatively indicates a persons actual innocence. If acquittal after trial or a later-invalidated conviction after trial establish favorable termination, Thompson argues, so must the successful dismissal of charges before any trial or conviction.

Thompson bolsters his argument through the state of the law for the analogous tort of malicious prosecution as of 1871, when Congress enacted Section 1983. Relying on the U.S. Court of Appeals for the 11th Circuit in Laskar v. Hurd, Thompson argues that one state court at the time required affirmative indications of innocence and a clear majority did not limit favorable termination. American courts followed English precedent that found favorable termination when the criminal proceeding no longer was pending, absent a judgment or admission of guilt; that included cases in which criminal charges were dismissed or abandoned.

Finally, Thompson identifies practical problems with the 2nd Circuits approach, labeling it incoherent, perverse, and difficult to administer. It makes no sense, he argues, to require a civil plaintiff to show that the criminal proceeding indicated his innocence, whereas the criminal case asks whether the prosecution established guilt beyond a reasonable doubt. This requires a criminal defendant to prove his innocence during the prosecution, contrary to the presumption of innocence. The problem is exacerbated in this case, where the states dismissal of the prosecution stripped Thompson of any opportunity to present evidence of his innocence. It would force a defendant in Thompsons position he alleges he faced a meritless prosecution on unfounded charges based on fabricated evidence to object to dismissal of the charges and to go to trial to preserve a future Section 1983 claim. An individual facing weaker criminal charges, those more likely to be dismissed, is less able to bring a Section 1983 claim than an individual facing charges strong enough to warrant a trial and possible conviction.

The United States appears as amicus curiae in support of Thompson and urging reversal of the 2nd Circuit.

It argues that the common law tort most analogous to Thompsons claim for an unreasonable seizure pursuant to legal process is malicious prosecution. Because the tort claim required favorable termination, so must the parallel Section 1983 claim. This preserves the common law analogy and fulfills the purposes of preserving finality, avoiding parallel litigation, and preventing civil litigation from becoming a collateral attack on a criminal conviction.

But termination of the criminal proceedings, the government argues, can be favorable without affirmative indications of innocence. That requirement has no basis in common law principles as of 1871. Despite variations across states, the general rule was that favorable termination meant that the prosecution being challenged had been disposed of and could not be renewed. Affirmative indications of innocence are not necessary to preserve finality or to preclude parallel proceedings. And the civil action does not function as a collateral attack on a conviction so long as the criminal proceeding ended in a manner not inconsistent with innocence. Nor are affirmative indications necessary to protect Fourth Amendment values. The Fourth Amendment question is whether criminal proceedings were initiated without probable cause, not how they ended; while the latter determination may inform the probable-cause question, the focus is on what the defendants knew at the earlier point in time.

Courts justify a favorable-termination requirement as a mechanism for filtering non-meritorious claims, by barring those lacking some demonstrated likelihood of success. While acknowledging reasonable concerns for frivolous claims, the United States argues those considerations do not justify an indications-of-innocence requirement, especially given its inconsistency with common law. Other requirements such as the plaintiffs obligation to prove the absence of probable cause and the defense of qualified immunity enable courts to stop false claims at the outset.

Clarks brief focuses on precedent issues that allow the court to affirm in the simplest way, without having to decide the meaning of favorable termination.

Clark argues that Thompson did not go to trial on a claim of unreasonable seizure-through-legal-process, although he could have. Instead, Thompson pursued a Fourth Amendment malicious-prosecution claim, alleging a seizure prior to initiation of process based on Clark signing the criminal complaint. But the Supreme Court has never recognized such a claim, and Clark urges it to hold that no such claim exists. Clark identifies a mismatch between malicious prosecution, which focuses on whether a police officer influenced a prosecutor into pursuing a criminal case, and the Fourth Amendment, which focuses on whether a police officer caused a seizure by ordering pretrial detention. The seizure Thompson complains of is his initial arrest, which ended following his arraignment and release on his own recognizance.

To the extent Thompson pursues a newly recast Fourth Amendment claim based on a post-arraignment seizure, Clark argues, the elements of such a claim may not include the favorable-termination requirement the court has been asked to define. The courts prior cases requiring favorable termination were due process cases, not Fourth Amendment cases. Lower courts are divided on whether the latter require favorable termination. Clark urges the court to clear the decks by confirming the absence of such a requirement or by dismissing this grant of certiorari as improvidently granted.

If Thompsons Fourth Amendment claim exists as he argues it and if it requires favorable termination, Clark argues, the 2nd Circuit applied the correct standard and the court should affirm. The question of what favorable termination required was unsettled at common law. Some courts required an affirmative ruling in favor of the accused, such as an acquittal, or a showing that the criminal charges lacked merit. No rule was so well-settled in 1871 that the court can presume Congress intended to adopt it. With no settled rule as of 1871, the court can look at post-1871 sources; treatises, a growing number of state courts, and seven of eight federal circuits have found that malicious prosecution claims under Section 1983 require indications of innocence.

Finally, Clark identifies policy concerns supporting an indications-of-innocence requirement. Such a requirement filters claims that have not already demonstrated some likelihood of success. It frees prosecutors to dismiss criminal charges for many reasons having nothing to do with the merits of the case, without creating the anomaly that the prosecutors professional and discretionary choice to drop charges subjects the arresting officer to civil liability.

Read the original post:
Favorable termination and indications of innocence in Section 1983 malicious prosecution claims - SCOTUSblog

Monday, new ministers are expected to be sworn in before His Majesty King Abdullah II, as part of the awaited amendment to the government of Bisher Al-Khasawneh.

This came a day after members of Khasawnehs government submitted their resignations, in preparation for the ministerial reshuffle.

Here is the expected list of the new ministers:

-Faisal Al-Shboul, Minister of State for Media Affairs

-Wafaa Bani Mustafa, Minister of State for Legal Affairs

-Khairy Amr, Minister of Investment

-Haifa Al-Najjar Minister of Culture, succeeding Ali Al-Ayed

-Youssef Al-Shamali, Minister of Industry and Trade

-Saleh Al-Kharabsheh, Minister of Energy

-Nayef Istitieh as Minister of Labor

-Wajih Owais, Minister of Education

-Muawiya Al-Radaydah, Minister of Environment

Notably, this is the fourth amendment to the Khasawneh government, the last of which was on March 29 of this year.

His first amendment to the government was made on Dec. 2, 2020, while the second was on March 7, 2021, and the third was on March 29, 2021.

See the rest here:
New ministers expected to be sworn in Monday - Roya News English

In the Summer of 2020, you would have thought that criminal justice and police reform were the most important issues in America. There was even a bipartisan effort in the US Senate to try to find common legislative ground. Oh what a difference a year makes.

Today everything else is more important From Facebook to Kyrsten Sinemas wardrobe choices, from Squid Game to infrastructure. Perhaps this is a clue as to why crime control has historically trumped the rights of defendants, and why it has been so hard to legally and legislatively limit the power of law enforcement.

The dean of UC Berkeleys School of Law, Erwin Chemerinsky author of Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights joins us on this weeks WhoWhatWhy podcast to talk about the legal framework behind criminal justice and police reform, and in addition, to remind us why presidents cannot be above the law.

Chemerinsky details the long history of the courts in virtually ignoring the rights of defendants. Often counter to the Fourth Amendment and to the Constitution itself, it is very rare for the courts, either federal or state, to champion defendants rights.

Chemerinsky explains why it was only the Warren Court, in the early- to mid-60s, that ever made any real effort to protect those rights. For most of our history, things like the right to remain silent (the Miranda warning) and the right of a suspect to have a lawyer and to be protected from illegal search, were not the norm.

However, even after the Warren Court, under both Democratic and Republican presidents, he argues, courts and legislatures have still acted on behalf of criminal control and yet none of it has made us more secure.

Chemerinsky reminds us that, even with our longtime emphasis on crime control over criminal rights, we have only 5 percent of the worlds population and 25 percent of the worlds prisoners.

He chastises his own legal community for ignoring the problem for too long and says that it is only through legislation, on both the state and federal level, that some of these issues can be rectified. Relying on the courts, he says, to protect criminal rights or to hold police accountable has been a fools errand.

Full Text Transcript:

(As a service to our readers, we provide transcripts with our podcasts. We try to ensure that these transcripts do not include errors. However, due to a constraint of resources, we are not always able to proofread them as closely as we would like and hope that you will excuse any errors that slipped through.)

Jeff: Welcome to the WhoWhatWhy podcast. Im your host, Jeff Schechtman. Well, the issue of systemic racism and a long history of racial conflict since our founding certainly occupies a large portion of our social and political landscape. The issue of racial motivation in law enforcement and the problems of police violence directed at people of color holds a unique place. The idea of equal justice under the law is a unique pillar in the American experience.

It is arguably one of the weight-bearing pillars upon which our entire system of law and justice is based. And yet for years, its been under siege. Not just on the streets or in the squad rooms but in the courtrooms of our states and even the Supreme Court. How the courts have undermined a foundational tenant of the very existence tells us a lot about how we got where we are today.

Were going to talk about this with my guest, Erwin Chemerinsky. Erwin Chemerinsky is the Dean of the University of California Berkeley School of Law. Hes the author of the previous books, The Conservative Assault on the Constitution and The Case Against the Supreme Court. Hes a longtime and frequent media voice on a host of legal issues and his newest work is Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights. Erwin, thanks so much for joining us here on the WhoWhatWhy podcast.

Erwin: My pleasure. Thank you for having me on.

Jeff: Its difficult to understand the present moment without really having a sense, as you outline it, of the history of law enforcement and how it has been able to operate in the past. Give us the broader framework.

Erwin: The constitution was meant to limit the police. The Fourth Amendment limits the police when they stop or detain or search people. The Fifth Amendment that protects the privilege against self-incrimination is meant to limit police questioning. The requirement of due process is meant to limit how the police do things like identification procedures, such as lineups. And yet for the first century of American history, from 1791, when these provisions were adopted, until really early in the 20th century, there were no Supreme Court cases interpreting or enforcing them, which meant there were no constitutional limits on the police.

And even in the early 20th century, when the Supreme Court began to deal with issues of policing, it ruled in favor of the police time and again, didnt limit the police, and if you look at the current Supreme Court, you find that same pattern thats been through American history, its a court that time and again sides with the police and refuses to impose constitutional limits. And the thesis of my book is that thats really whats contributed to police abuses and racialized policing in the United States.

Jeff: You talk about a period that was really an aberration in our history and that was some of the rulings from the Warren Court. Talk about those.

Erwin: The only time in history that theres ever been a liberal Supreme Court was the Warren Court, and especially just between 1962 and1969. Not surprising, thats also the time at which the Supreme Court handed down the most important rulings in favor of criminal suspects and defendants and against the police. Example, in 1966 in Miranda versus Arizona, the Supreme Court said that police questioning when somebody is in custody is inherently coercive.

And the court said, in order for the police to question somebody in custody, they have to give warnings. And everybody who watches police knows the warnings, you have the right to remain silent. Anything you say can be used against you. You have the right to a lawyer. If you cant afford one, one will be provided. In 1963, it was the Warren Court that said anyone being tried for a crime in state court with a possible prison sentence has the right to a lawyer.

The government has to pay for one if the person cant afford it. Isnt it amazing that until 1963 somebody could be tried for a state crime in state court, sentenced to life in prison but not to be given a lawyer to the proceedings? In 1961 in Matt versus Ohio, the Supreme Court said if police violate the Fourth Amendment and engage in illegal search, any evidence gained has to be excluded from coming in the trial. So these are examples of Warren Court decisions.

Jeff: Wasnt the idea of qualified immunity though for police something that came about during the Warren Court?

Erwin: Its interesting. Qualified immunity is a concept that Ive been teaching about for years and now to see it being so much part of our popular discourse. Qualified immunity is whenever a government official is sued for money damages provided in the constitution, the Supreme Court has said there is an immunity defense. Some have absolute immunity. They cant be sued for money damages it all. Police officers when they testify in court as witnesses cant be sued for money damages, even if they commit perjury, even if it means an innocent person goes to prison. Prosecutors for their prosecutorial acts, judges for the judicial acts, legislators for the legislative acts, all have absolute immunity.

All other government officials who dont have absolute immunity, now, what you just refer to qualified immunity, it means they can be held liable only if they violate clearly established law that the reasonable officer should know. The immunity defenses really develop only in the late 60s and into the 1970s. And the reason for that is it was in 1961 that the Warren Court expanded the ability to sue government officers who violate the constitution. And its after that that immunity develops and it grows and grows. So now, qualified immunity often is like absolute immunity. It means people who are injured by police and other governments contact cant recover at all.

Jeff: Talk a little bit about the difference between the way this has evolved in the Supreme Court, what youve been touching on, versus what weve seen happen in state courts, and how those two things have played off against each other.

Erwin: One of the things thats often forgotten is that state courts under state constitutions to protect rights even when the Supreme Court refuses to recognize them under the Federal Constitution. Let me give an easy example. The Supreme Court has said theres no First Amendment right to engage in speech on a privately owned shopping center. So if its the private shopping center that they want to exclude the demonstrators, they have the right to do so. But the California Supreme Court said under the California Constitution, there is a right to engage in speech on privately on shopping center grounds.

Thats because the state can provide more rights than what the Supreme Court finds in the US Constitution. And there were important instances where state courts have found rights even though theres none other federal constitution. Let me give you an example with regard to policing. The Supreme Court has said for police to search somebodys garbage out on the curb, doesnt require a warrant or probable cause. That you dont have an expectation of privacy for the trash you throw out.

But many state courts like the Alaska Supreme Court said under the state constitution, searching somebodys garbage does require a warrant for probable cause or what I regard as even more important example, the Supreme Court has said if police stop somebody based on a pretext, that they stop them because they find a minor traffic violation but the real goal is to see if theyve got drugs, doesnt matter. It doesnt violate the Fourth Amendment. And so long as the police saw the person violate a traffic law, they can stop them even if its just a pretext. But many states like Arkansas and Washington State has said, no, police cant use a pretext for a stop.

The reason that matters is if police follow any driver, you, me, any of the listeners long enough, theyre going to see us violate some traffic law. Its estimated that all theyve got to do is on average watch 15 minutes and theyll see somebody change lanes without a turn signal, turn without the signal, or go a mile over the speed limit or not stop long enough at the stop sign. And even if the traffic stop is just a pretext and they really want to stop as to search a car for drugs, the Supreme Court said it doesnt violate the Fourth Amendment but some state courts said it does violate state constitutions.

Jeff: This is of course how we wound up with stop and frisk in some states.

Erwin: Well, we wound up with stop and frisk because the Supreme Court in Terry versus Ohio in 1968 said police can stop someone, frisk someone without needing probable cause as a Fourth Amendment would require. And then the Supreme Court said in Rando versus United States in 1996 that it doesnt matter if the police stop is based on a pretext. So long as they can point to the traffic violation, their real motivation becomes irrelevant.

Jeff: Talk a little bit about why in your view the Supreme Court has been so quick over the years and over so many different courts, with the exception of the Warren Court, as youve talked about, to take these positions. There does seem to be a certain consistency to it. The Warren Court being the exception more than the rule.

Erwin: Some of it is the political ideology of the justices. Some of it is because of larger social pressures. The reality is except for the Warren Court, weve never had a liberal court in American history. And since the Warren Court ended in 1969, weve had very conservative courts. The statistic that I find revealing, between 1960 and 2020, there were 32 years with a Republican president and 28 years of a Democratic president. Almost even, it will be even in 2024. But during that time, Republican presidents appointed 15 justices and Democratic presidents appointed only 8 justices. And conservatives generally tend to be much more pro-law enforcement, liberals more willing to protect the rights of criminal suspects and defendants. But I think theres also a larger social pressure that is understood. In our society, the pressure has always been much more for crime control than for protecting the rights of criminal suspects and defendants. Thats why the United States has 5% of the worlds population and 25% of the worlds prisoners. And I think the justices who live in our society have come to internalize that and very much favor law enforcement over the rights of criminal suspects and criminal defendants.

Interviewer: I guess the question then becomes in that political structure, how we can have both, how law and order, as the public sees it, can coexist with the rights that are granted by the Constitution.

Erwin: I think we have to have both. We have to be safe, and we have to protect the rights of criminal suspects and defendants. Its why I argue against abolishing the police because any society needs police for the sake of safety. Im not in any way anti-police. I think often, the steps that are taken for safety dont make us more secure but do take away rights. Let me give you an example. You mentioned stop-and-frisk. A lawsuit was brought in New York challenging how the New York Police Department was using stop-and-frisk. And the statistics were stunning over a long period of time and how much more Blacks and Latinx individuals were stopped compared to Whites, even though Whites were more likely to have guns or other contraband, and it was clear that this was based on race. Ultimately, the lawsuit settles and the NYPD is no longer allowed to engage in stop-and-frisk. There was no increase in crime in New York after stop-and-frisk was eliminated. So, we were able to better control the police, lessen racialized policing without in any way compromising safety and security.

Interviewer: To what extent do laws have to change in order to rectify some of these excesses that weve been talking about?

Erwin: I think the laws do need to change, and we take so many different areas, just once weve touched that, the last change with regard to stop-and-frisk. No longer should the law allow police to stop people based on a pretext. The law needs to change with regard to police questioning to make it less coercive, or an example where [unintelligible 00:13:31], we know from the work of the Innocence Projects that many innocent people were wrongly convicted because of false eyewitness identifications.

There are many instances of people who were convicted and then exonerated through DNA evidence, and we learned that their conviction was based on an eyewitness who was mistaken. Yet, since 1986 when the Rehnquist Court began, through today, 35 years, theres only been one Supreme Court case to even deal with the issue of eyewitness identification, and that one ruled in favor of the police. The court is not dealing with this problem. We need new laws or state courts to deal with it. You talked about qualified immunity, which so often makes it difficult for injured people to recover. The law needs to change on that as well.

Interviewer: To what extent has all of this been a function of the ups and downs of crime rates at various times? Were seeing it now, were seeing this uptick in crime in some cities, and this pushback against criminal justice reform and more liberal attitudes on the part of district attorneys, for example, in places like Los Angeles and San Francisco. Talk a little bit about that and the way in which the law is so tied seemingly to up and downticks in crime.

Erwin: The justice of the Supreme Court, the judges in the lower courts live in society. And when crime is perceived as high and as a salient issue, I think theres real pressure on courts to empower the police, not to limit the police. And youre right. When you look at the efforts of more progressive prosecutors like George Gascn in Los Angeles, Chesa Boudin in San Francisco, and the opposition to them, who believe theyre being too liberal. You see this very much playing out, but I think in general, when crime is perceived as more rampant, its much harder for courts to be willing to protect the rights of criminal suspects and criminal defendants.

And a very powerful example here is Terry versus Ohio that authorizes police stop-and-frisk was a decision of the Warren Court in 1968. That was the moment when it was liberal Supreme Court history. The majority included liberal lion William Brennan, Thurgood Marshall. Why did the court 8-1 empower the police that way? 1968 was a time when crime rates seem too high, theres great apprehension about crime, where Richard Nixon was running for president on a law and order platform. And I think the liberal justice on the court fade and was susceptible to that pressure.

Interviewer: Talk about that, the way in which the law is so susceptible to that pressure. We think of equal justice, we think of the law sometimes as supposedly being immune from that kind of political pressure, but its not.

Erwin: The justices and all judges are human beings. They all live in society. They all then are aware of social attitudes and social pressures. The Constitution is written in very broad language. It speaks of probable cause. It speaks to searches and seizures. It seeks to the privilege against self-incrimination. It says no cruel and unusual punishment but it takes human beings to give meaning to those words and apply them to specific issues. And how the justices do that is so much a product of who they are, their ideology, values, and life experience, and whats going on in the society around them.

Interviewer: And to that, as the divide becomes wider and wider between states and attitudes of state courts that are reflective to whether theyre in a red or a blue state in the extremes that were seeing, it seems that it makes it so much harder to address this on any kind of national basis.

Erwin: I think thats such a good point. Theres always been differences among the states. And think of early American history, the difference between the slave states and the abolitionist states. Thats a difference that ultimately led to the Civil War. Think of the 1950s and the 1960s, the difference in attitudes towards segregation from the southern states that were fiercely fighting to keep the Jim Crow laws and northern states. And today, we see that over issues like vaccine and mask mandates or just the difference between the red states and the blue states. And so, youre absolutely right that its hard to say theres a national consensus on any issue when theres such great divergence and so many and such divergence among the states.

Interviewer: Historically, when you look at the way the Supreme Court has tried to navigate those differences in state courts among the states, is there anything that gives us precedent for trying to square the circle?

Erwin: I think the hope that I get is theres such intense public pressure or at least there was last summer to reform police, that it can lead to Congress and state legislatures and city councils and police commissions doing things that state courts can do things under state constitutions, but the justice department can enforce existing laws that allow it to sue where theres a pattern and practice of police misconduct. Im not hopeful that the Supreme Court of the United States is going to put limits on the police. History shows its unwilling to do so but there are other actors in our political system who can do so, who I hope will do so.

Interviewer: So, your view is that it needs to happen legislatively on a state-by-state basis or on a federal basis?

Erwin: Congress can pass laws that oppose police reforms. A bill passed the House but stalled in the Senate. It would have done many things. It would prohibit the police from using the chokehold, a very dangerous form of restraint that killed George Floyd, Eric Garner, and many others. It required that police record the race of the people who they stopped which, we know just that has the effect of decreasing racial profiling. It would have changed the standards of qualified immunity that we talked about earlier. And I hope a police reform bill will pass Congress, but state legislators can adopt such reforms for their states, cities can adopt it for their localities, and police commissions can adopt this. Many cities, especially after the death of George Floyd, have prohibited police from choking people. I wish that all cities, states, Congress would do that as well.

Jeff: Talk a little bit about how the legal community at the highest levels views this, the fact that we can be looking at, its an extension of what we were talking about a little while ago, be looking at laws that are so different from city to city, from state to state, and what that does, what that makes the legal community think about in terms of how to address all this?

Erwin: I think its a really important question. And I fear that my profession, the legal community, my profession more specifically, law professors, havent focused nearly enough on these problems. And the reality is, in our society, people of color are much more likely to be targeted by police. The legal profession and the legal academy is overwhelmingly white. And my children when they were teenagers werent likely to be stopped by the police in the same way that my black colleagues children were likely to be stopped by the police. And I fear that that accounts for some of why the legal profession just hasnt done enough or taken this seriously enough.

Jeff: And I cant let you go without talking a little bit about the other area that I know youve written a lot about and talked a lot about with respect to accountability, and thats whether our presidents are above the law, and where you think that there will be any kind of accountability in the future for what weve been through over the past five years?

Erwin: I think its so important that we uphold the rule of law. An essential tenet of the rule of law is that no one, not even the President of the United States, is above the law. And I think what we saw in the last five years was that many of the mechanisms that are supposed to hold presidents accountable dont do so. Courts are supposed to hold presidents accountable but lawsuits were filed on January 23, 2017, against President Trump for violating the so-called Emoluments Clause of the Constitution, none of them got resolved, they got dismissed after he left office in January of 2021. Lawsuits were pending four years to stop the president from violating the Constitution and nothing came of them.

Impeachment is supposed to be a way of holding the president accountable, but we saw, in the time of partisan division, virtually none of the Republicans were ever willing to vote to impeach a Republican president. You cant sue a president for money damages according to Supreme Court, absolute immunity. So what are the mechanisms for holding the president accountable? I think we need to focus on this and focus on it in a time like now where we have experience that shows us how crucial it is.

Jeff: But it also shows us that there doesnt seem to be any accountability and certainly in the political climate that we live in today, the odds are that there wont be.

Erwin: In one sense, there was political accountability for Donald Trump. He was voted out of office in November of 2020. In another sense, for many people who were injured by his unconstitutional neglect, they didnt have a remedy available to them.

Jeff: And what do we need to do to address that going forward? Or is there anything we can do?

Erwin: I think there are things that can be done that are important. I think that Congress can pass laws to create much more control and oversight. In the area of the Emoluments Clause, I think Congress can make it very clear that presidents are prohibited from benefiting from foreign countries or from the United States other than their salary while in office. I think some things are much harder to fix. I dont know how to fix the impeachment and removal process. I think its interesting, the Supreme Court has said, a president cant be sued for money damages for anything done in office. I believe that Congress could pass a law that would create such accountability, but its uncertain whether it would be constitutional.

Jeff: Erwin Chemerinsky, I thank you so much for spending time with us today.

Erwin: I thank you so much for having me, such a pleasure for me.

Jeff: Thank you. And thank you for listening and joining us here on the WhoWhatWhy podcast. I hope you join us next week for another Radio WhoWhatWhy podcast. Im Jeff Schechtman. If you like this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org/donate

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What the Hell Happened to Police and Criminal Justice Reform? - WhoWhatWhy

A jury has awarded more than $2.5 million to a man who sued a Denver Police sergeant and the city in 2015 for gunshot wounds he suffered to his back and hand while he lay facedown with his hands above his head, after getting caught in the cross hairs of a shootout when an acquaintance he had taken a ride from led police on a chase.

Michael Valdez claimed in a federal lawsuit the city failed to adequately train the officers on reasonable use of force during arrests. A jury on Sept. 23 found Denver liable for a failure to train and found that Sgt. Robert Motyka Jr. used excessive force in violation of Valdezs Fourth Amendment rights.

The verdict includes $131,000 in damages against Motyka whom Valdez sued in his individual capacity and $2.4 million against Denver.

Attorneys for Valdez couldnt immediately be reached for comment Monday.

In January 2013 Valdez accepted a ride in a friends pickup truck. Valdez didnt know the friend and his truck were wanted by Denver police for involvement in an incident earlier in the day, according to the lawsuit. A chase ensued during which shots were fired at officers, and Motyka was hit. The truck eventually crashed, and Valdez and another passenger got out of the car a few minutes later and lay on the ground, the lawsuit says.

Valdez was shot in his back and finger as he tried to shield his head from gunshots, the lawsuit claimed. The lawsuit said Valdez suffered fractures in his back that left bone fragments in his spinal canal and had to have part of a finger on his left hand amputated.

The injuries confined Valdez to a wheelchair for more than a year and he regained only partial use of his legs and feet by the time of the lawsuits filing, according to the complaint.

City attorney spokesperson Jacqulin Davis said in a statement the city is reviewing the case to determine next steps. The officer couldnt participate during the first week of the trial because of COVID restrictions, she wrote in an email.

Officer training is taken seriously in Denver, Davis wrote.

An arrest affidavit issued for Valdez at the time said Motyka received treatment at a hospital for his gunshot wound.

The lawsuit claimed prosecutors filed unsubstantiated charges for attempted murder, assault and first-degree murder against Valdez in two separate cases despite the officers knowing Valdez wasnt involved in the incidents. The lawsuit said Valdez remained in jail in agonizing pain for more than two months, unable to post bond, until prosecutors dismissed the charges on March 19, 2013.

At no time on January 16, 2013, did Mr. Valdez possess a firearm, attempt to shoot anyone, or otherwise attempt to cause bodily injury to anyone. Mr. Valdez was simply an innocent bystander who was a captive passenger in the red Dodge truck, said the lawsuit.

Motyka received the Denver Police Departments Medal of Honor for his involvement in the chase, The Denver Post reported in 2015. But the 10th Circuit Court of Appeals upheld the trial courts denial of qualified immunity for Motyka which shields government employees from lawsuits absent a violation of clearly established constitutional rights in 2020.

In its denial of qualified immunity for Motyka, the trial court described the injured officer as very angry as well and very eager to get the occupant who shot him.

The scattered bullets and Motykas attitude suggested he started shooting without making any effort to determine whether there was any immediate threat to him or others as the occupants of the cab came out.

The jury took less than three hours in Valdezs lawsuit to reach its verdict when the members began deliberating on Sept. 23 after a nine-day trial, courtroom notes indicate.

The complaint claimed the city has a long-standing culture of tolerating excessive force by police. It pointed to another incident involving Motyka when officers forcefully entered a home without a warrant and assaulted a father and three sons, later realizing the people they actually were after a pair of brothers who reportedly sold drugs and ran a brothel out of the home had recently moved out of the home, The Denver Post reported.

Members of the family were falsely charged with assaulting officers, the lawsuit brought by Valdez said.

A lawsuit resulted in a $1.8 million verdict awarded to the family in 2014, The Post reported.

This is but one example of Denvers failure to appropriately hire, train, supervise, and discipline its officers, Valdezs complaint said.

Valdez originally also sued officers Peter Derrick III, Jeff Motz and Karl Roller, but dropped his claims against them in August 2018. The trial court granted qualified immunity to a fifth officer Valdez brought claims against, John MacDonald.

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Man wins $2.5 million verdict in excessive force lawsuit against Colorado police officer and city - Colorado Springs Gazette

What this suggests is that a new round of constitutional revisions might be possible in the not-too-distant future.

Our national charter has been reformed and its principles renewed in four waves of constitutional change that occurred during the most turbulent times in American history. The first was from 1789 to 1804, when the founding generation added a dozen amendments in a 15-year period. Chief among them was the Bill of Rights, the first 10 amendments, adopted in a single bundle to reassure skeptics that a strong national government could be tempered with respect for individual liberty. They also adopted the 11th and 12th Amendments that, respectively, limited citizens lawsuits against states and fixed some defects in the Electoral College.

Then all was quiet on the constitutional front for 61 years, until after the Civil War. Between 1865 and 1870, Republican lawmakers used six years of supermajority control of Congress to drive a second era of amendments that abolished slavery, promised equal citizenship for 4 million newly freed African Americans and barred racial discrimination in voting. Taken together, these amendments laid a second founding for a nation sundered by war. They gave Congress robust new powers to remedy racial injustice while imposing meaningful limits on the excesses of state governments.

And then there was another four decades of polarization and gridlock, marked by the pervasive corruption and vast inequities of the Gilded Age. Eventually, the political pendulum swung and brought a progressive political coalition to power. At the prodding of social movements from the populists to the suffragists to the temperance warriors, lawmakers sought to reverse the extravagance of the previous era. Between 1909 and 1920, Progressive Era reformers added four amendments that authorized the income tax, provided for the popular election of senators, launched Prohibition and extended the franchise to women. The spectacular failure of the nationwide liquor ban notwithstanding (the 21st amendment repealed Prohibition in 1933), these amendments established the foundation for the modern U.S. government.

Finally, a fourth wave, inspired by the political activism of the 1960s civil rights era, added three voting rights amendments to the Constitution: presidential electors for the District of Columbia, abolition of the poll tax, and the lowering of the voting age to 18. A fourth amendment, the 25th, updated and clarified the rules of presidential and vice presidential succession amid the doomsday fears of the nuclear age. The last of this wave was the 26th Amendment, the voting age measure, ratified in 1971.

Today, we find ourselves five decades into the latest dry spell. After the defeat of the Equal Rights Amendment in the 1980s, many progressives concluded that the Constitutions arduous amending process is not worth the effort. For their part, conservative activists have launched campaigns to win a balanced budget amendment and other ideological policies, which has only bolstered a sense among many that its unwise and even dangerous to tinker with the framers handiwork.

But this sense of defeatism is not new. In 1904, the Washington Post dismissed reformers amendatory schemes, offering the hard-boiled take that our fundamental law is practically unamendable by peaceful and regular methods. And yet, just a half-decade later, that pessimistic prognosis was proven wrong when Congress proposed the first of the Progressive Era amendments.

The presence of certain factors that have prompted past generations of Americans to push for constitutional amendments suggests that a new wave may already be building. Discontent over controversial Supreme Court rulings, for instance, has proven to be a predictable galvanizer of amending activity in previous eras. In fact, seven amendments were motivated by the desire to reverse high court decisions. Today the amendment option is on the table for activists working to overrule Supreme Court decisions such as Citizens United, which has allowed corporations and outside groups to spend unlimited amounts of money on campaigns.

During periods of gridlock, states sometimes look for workarounds for some of the Constitutions most problematic provisions, and that experimentation is another driver of constitutional amendments. In the early 20th century, when the Senate blocked an amendment giving voters the right to directly elect its members (a power originally given to state legislatures), reformers in the states responded with measures such as the Oregon Plan, which allowed voters to express their Senate preference in a popular referendum. By establishing a de facto system of popular election in much of the country, they forced the Senates hand.

In a similar vein, some states today are pushing to circumvent the Electoral College through the adoption of the National Popular Vote Interstate Compact, which would award the presidency to the winner of the popular vote an innovative reform that could lay the groundwork for an amendment to change how we choose the president. Even the Equal Rights Amendment, introduced nearly a century ago, might be back on the agenda thanks to state lawmakers who have revived the effort to ratify it.

It may be hard to imagine, but todays political impasse may eventually give way to a new governing coalition. Look at the Gilded Age a century ago, when mounting social problems fueled a rare consensus for reform. Then, as now, economic inequality was widening as restraints on corporate power eroded and moneyed interests dominated our elections. The nation was polarized along regional lines that mirror todays red state-blue state divide. Immigration was changing the country to the alarm of traditionalists. Elections were won by narrow margins, producing gridlock. And all the while, a conservative Supreme Court stood in the way of needed change. In time, the pressure for reform caused a dramatic leftward swing in national sentiment that few saw coming an earthquake that divided the Republicans, lifted the Democrats and led to the adoption of four amendments after years of fruitless advocacy.

That all sounds a lot like 2021. The country has been going through demographic and economic changes comparable to those in the Gilded Age and a new, diverse generation of voters is on the rise. Like their predecessors in the early 20th century, the new generation has decidedly progressive politics and is leading important social movements.

So theres hope for our Constitution and the political system it governs. While todays partisan rancor and gridlock may currently thwart important national reforms, they may also signal the coming of a new era of constitutional change that could kick-start our countrys journey toward a more perfect Union.

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History Teaches that Constitutional Reforms Come in Waves. We May Be Approaching One Now. - POLITICO

By Victoria McKenzie (October 6, 2021, 6:49 PM EDT) -- Private prison operator CoreCivic has denied allegations that its employee subjected a corrections officer to a warrantless and "dehumanizing" body cavity search in the middle of a Georgia prison parking lot, in violation of her Fourth Amendment rights.

In a response filed in Georgia federal court Monday, CoreCivic denied that the officer was patted down, strip-searched twice or had her keys taken away after a metal detector allegedly malfunctioned at the Wheeler Correctional Facility.

The officer did go through the metal detector a second time without triggering an alarm, the company said; and a CoreCivic captain called the police and requested...

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CoreCivic Denies Subjecting Officer To Body Cavity Search - Law360

Photo: Lev Radin/Pacific Press/LightRocket via Getty Images

Ed Mullins, the controversial head of one of the largest cop unions in New York City and a bitter foe of police reform, resigned from his position as Sergeants Benevolent Association president following early-morning FBI raids on his office and home on Tuesday.

Federal agents hit the Manhattan headquarters of the Sergeants Benevolent Association and Mullinss home on Long Island, according to the New York Post, in what the FBI said was part of an ongoing investigation that the Post said involves accusations of mail and wire fraud. Agents seized computer gear from his residence, per the Post, and were seen carting off boxes of documents from SBA headquarters. The SBA did not respond to a request for comment.

The SBA is the second-largest of the citys five police unions, which represent the citys nearly 35,000 officers, including Mullins, who is a sergeant. He was elected president of the SBA in 2002 and has been a thorn in the side of four commissioners, Bill Bratton, the police commissioner under both Bill de Blasio and Rudy Giuliani, told New York last year. On Tuesday night, the SBA announced that Mullins had resigned upon request by the unions executive board:

The New York Daily News reports that Mullins officially filed for retirement Wednesday after turning in his gun and badge. Sgt. Vincent Vallelong, previously the SBAs vice president, will now take over as president.

Mullins has frequently made offensive comments on race and crime, once comparing an arrested NFL player to a wild animal. Many of these comments came from the official SBA Twitter account, which Mullins controls, and included calling Representative Richie Torres a first class whore and Dr. Oxiris Barbot, then the citys health commissioner, a bitch.In another, the Civilian Complaint Review Board is called a disgrace for a tweet reminding New Yorkers about their Fourth Amendment rights, which protect them from unlawful search and seizure. Last year, the SBA account posted the arrest report on Chiara de Blasio, the mayors daughter, which included personal information such as her birth date and home address.

Earlier this year, the CCRB recommended three misconduct charges against Mullins: two counts of offensive language for the comments against Torres and Barbot and one count of abuse of authority for the arrest report. Last month, Mullins was put on trial in a departmental hearing on the charges.

Daily news about the politics, business, and technology shaping our world.

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Belligerent Boss of an NYPD Union Resigns After His Home Is Raided by FBI - New York Magazine

The New York Times recently reported that the FBI had an undercover informant amid the mob that entered the U.S. Capitol on Jan. 6 who had related to them his knowledge of the demonstrators' plans beforehand and his observations of events in the building in real time. The informant was a genuine member of the Proud Boys, one of the groups the feds are trying to charge with conspiracy to overthrow the government.

According to the Times, the informant told the FBI in advance that there was no plan by his colleagues to disrupt the government. He also reported violence and destruction in the Capitol to his FBI handler as it was happening, and the FBI did nothing timely to stop it.

The presence of the informant as a de facto federal agent at the scene before, during and after the commission of what the government considers to be serious felonies raises serious constitutional questions about the FBI's behavior. The feds have not revealed the existence or identity of this informant; rather, the Times' reporters found out about him and found another person to corroborate what they learned that he did.

Can the government insert a person into a group under criminal investigation -- or "flip" a person who is already in the group -- and use him for surveillance without a search warrant? And, when they do this, must prosecutors tell defense attorneys about their informant, particularly if his knowledge and observations are inconsistent with the government's version of events?

Here is the backstory.

The Fourth Amendment to the Constitution was written to protect the quintessentially American right to be left alone. It was enacted in the aftermath of egregious violations of colonial privacy by British soldiers and agents.

The typical violation of privacy came in the form of British soldiers knocking on the door of a colonial home -- or breaking it down -- bearing a general warrant. A general warrant, issued by a secret court in London or by colonial courts here whose judges were loyal to the king, permitted the bearer to search wherever he wished and seize whatever he found.

The Fourth Amendment was ratified to force the government to focus its searches on evidence of crimes for which the government had probable cause, and to protect the privacy and security of "persons, houses, papers, and effects" by requiring search warrants before the government could invade any of them.

The warrants must be issued by a neutral judge, must be based on probable cause of crime sworn to under oath, and must specifically describe the place to be searched and the person or things to be seized.

In the early 1960s, the Supreme Court realized that the use of electronic surveillance was just as much a search as a physical search, and it required search warrants for the government to be able to use at trial whatever it learned from the surveillance. This is universally accepted today as the contemporary understanding of the Fourth Amendment. Yet, it applies only to searches by government agents or their use of evidence obtained from electronic surveillance. It does not pertain to informants.

Stated differently, the feds and the states need search warrants to bug your bedroom, your office or your cellphone, but they do not need a search warrant to threaten, bribe or employ your neighbor or colleague or brother-in-law to engage you in a conversation about personal behavior and then report the contents of that conversation to them.

The government's argument is that you have waived your right to privacy by trusting the person to whom you were speaking, and that waiver obviates the need for a search warrant.

But the use of an informant can be as invasive as the use of a wiretap. Because the informant is usually capable of getting in the face of the person being surveilled, his presence is a direct violation of the Fourth Amendment's protection of "persons." Since the informant can often prod the person to say what he might not say if unprodded, the use of informants is arguably more invasive of privacy and hence more violative of the Fourth Amendment than a wiretap silently recording a conversation.

Now back to Jan. 6 at the Capitol. The Department of Justice requires approval by FBI management before an agent can engage an informant. Thus, senior FBI personnel knew that a trusted member of the Proud Boys trusted by the Proud Boys and by the FBI had advised one of their agents that the group had no plans for violence or disruption of a governmental function. We also know that senior FBI personnel knew that personal injury and property damage were happening at the Capitol and they did nothing to stop it.

The Times reporters promised anonymity to their sources. But their identity is now of paramount importance to some of the folks whom the FBI has arrested and whom federal prosecutors have charged with felonies. If the feds have an eyewitness who works for them -- even though his presence at the scene was unconstitutional -- and whose testimony contradicts the prosecutors' narrative, the feds have a moral and legal obligation to reveal all this to defense counsel.

Who knows what the FBI knew of Jan. 6 ahead of time and did nothing or why it conveniently looked the other way during the events in the Capitol? We do know that every FBI agent and federal prosecutor has taken an oath to uphold the Constitution, whether convenient or not.

The Fourth Amendment is the framers' value judgement that the privacy of all persons is a greater moral good than the government's convenience. It is an intentional obstacle to law enforcement to keep it respectful of our rights. Why do we hire the FBI to protect our safety but permit it to invade our liberty?

Judge Andrew Napolitano's column is syndicated by Creators.

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Napolitano: On Jan. 6, what did the FBI know? - The Winchester Star