Category Archives: Fourth Amendment

A 40-year-old Baldwin County man was arrested at a local motel last week on criminal warrants, authorities say.

The man was identified as Gregory V. Sanford Jr., of the 200 block of Emily Circle, Milledgeville, according to an incident report filed by Baldwin County Sheriffs Office Deputy Sgt. Jerome Roberts.

Sanford Jr. was charged with Violation of the Georgia Controlled Substances Act for possession of cocaine and possession of methamphetamine.

He also was served with outstanding warrants for probation violation and failure to appear in court for aggravated stalking.

After Sanford Jr. was arrested, he was taken to the Baldwin County Law Enforcement Center and jailed.

Roberts said he received information from a dispatcher that came from a telephone tip that Sanford Jr. was in a room at the Super Inn Motel, and might be in the possession of illegal drugs.

While en route to the motel, Roberts said he learned that Sanford Jr. was also wanted on outstanding criminal warrants.

The deputy said he got in touch with Georgia Department of Community Supervision Officer Fred Hurt about searching the motel room. Sanford Jr. had signed a Fourth Amendment waiver for his room or residence to be searched at any time by law enforcement officers.

Roberts said he later was joined at the motel by Deputy Sgt. Brandon Towe, who knocked on the suspects motel room door.

I was able to see Sanford through a crack in the room curtains, who approached the door and asked who was it, Roberts said in his report. Once I informed him who I was, he walked away from the door.

A woman later opened the door, Roberts said. Once the door was opened, the deputy said he saw Sanford coming out of the bathroom.

Roberts said he informed Sanford Jr. that he was under arrest on outstanding warrants.

Other people were inside the room at the time, and deputies identified each of them.

Inside the bathroom was a towel nailed to the wall, Roberts said. Once I moved that towel, I observed a hole in the wall. I stuck my flashlight in the hole and observed a small black bag. I then walked out of the bathroom and opened the bag on the dresser.

Inside the bag was a plastic bag that contained suspected cocaine, as well as two plastic bags that contained suspected methamphetamine, the deputy said.

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Man wanted on outstanding warrants arrested at local motel - The Union-Recorder

Driver's license photo of Ashli Babbitt. The 35-year-old Air Force veteran was shot and killed by a U.S. Capitol Police Officer when she attempted to breach the Chamber of the U.S. House of Representatives on Jan. 6. Maryland MVA/Courtesy of the Calvert County Sheriff's Office via AP hide caption

Driver's license photo of Ashli Babbitt. The 35-year-old Air Force veteran was shot and killed by a U.S. Capitol Police Officer when she attempted to breach the Chamber of the U.S. House of Representatives on Jan. 6.

The Department of Justice announced Wednesday it will not pursue charges against the U.S. Capitol Police officer who fatally shot a rioter inside the Capitol building on Jan. 6. Officials determined there wasn't enough evidence to support a criminal prosecution.

Following the shooting, an investigation was launched by the U.S. Attorney's Office for the District of Columbia's Public Corruption and Civil Rights Section and the Civil Rights Division, with the Metropolitan Police Department's Internal Affairs Division. According to a Justice Department statement, the investigation failed to provide evidence that the officer violated 18 U.S.C. 242, depriving Babbitt of her rights under color of law.

"In order to establish a violation of this statute, prosecutors must prove, beyond a reasonable doubt, that the officer acted willfully to deprive Ms. Babbitt of a right protected by the Constitution or other law, here the Fourth Amendment right not to be subjected to an unreasonable seizure," a DOJ statement read. "Prosecutors would have to prove not only that the officer used force that was constitutionally unreasonable, but that the officer did so 'willfully,' which the Supreme Court has interpreted to mean that the officer acted with a bad purpose to disregard the law."

The U.S. Attorney's Office and U.S. Department of Justice offered their condolences to Babbitt's family before closing the investigation.

Thirty-five-year-old Air Force veteran Ashli Babbitt was protesting against what she falsely considered to have been the illegitimate results of the 2020 presidential election results. A portion of the rioters, including Babbitt, forced their way into the Capitol building in an attempt to stop Congress from certifying the Electoral College votes.

Officers barricaded the doors of the Chamber of the House of Representatives as the mob tried to break into the room from multiple entrances. Babbitt was shot as she climbed through a broken door into the Speaker's Lobby. The bullet struck Babbitt in the left shoulder, and she later died from her wounds at Washington Hospital Center.

Five people died during or shortly after the Jan. 6 assault and hundreds of individuals are facing charges.

Continued here:
Officer Cleared In The Shooting Death Of Ashli Babbitt During Capitol Riot - NPR

Police officers first deployed the earsplitting beeps against protesters more than a decade ago in Pittsburgh: Painfully loud noises emitted from a powerful speaker atop a police vehicle, a crowd-control device known informally as a sound cannon.

Since then the items, called Long Range Acoustic Devices, or LRADs, have provided a soundtrack to marches and demonstrations in New York, Portland, Ore., and other cities. They have functioned as giant megaphones to give commands, but also produced shrieks that can be louder than a lawn mower or a police siren.

Now, the New York City Police Department has agreed in a legal settlement to stop using the shrill beeping referred to as the deterrent or alert tone becoming one of the first big city departments to do so.

The legal settlement, filed with the court on Monday, comes five years after a group of demonstrators and photographers sued the city in Federal District Court in Manhattan, saying they had experienced migraines, sinus pain, dizziness, facial pressure and ringing in their ears after being exposed to blasts of high-pitched beeps from a hand-held LRAD in Midtown Manhattan in 2014.

One plaintiff, Anika Edrei, a photography student at the time, experienced a migraine headache for about a week after being exposed to the device in 2014 and steered clear of protests for some time after that, according to the lawsuit.

I was worried about getting injured again, Mx. Edrei said. It definitely had a chilling effect.

Under the terms of the settlement, police officers will still be able to make voice announcements on the devices, but the painful alert tone will be banned.

The city will also pay a total of $98,000 in damages to five plaintiffs as well as $650,000 in legal fees to their lawyers, according to court documents.

As part of the deal, the police have agreed to add a section to the departments administrative guide on when and how to use the devices. Some of the new language will say that police supervisors and department lawyers may authorize their use, but that officers must make reasonable efforts to maintain minimum safe distances between the LRAD and all persons within its cone of sound.

The department has also agreed to change its training materials on the devices and provide lawyers for the people who sued with details of those proposed amendments before implementing them.

The lawyers Gideon Oliver, Elena Cohen, and Michael Decker said in an email they would circulate the new training materials, providing some degree of transparency in a process that normally occurs behind closed doors and without any community input.

The lawyers said that it appeared that the police in New York had used the deterrent tone sparingly, if at all, since the lawsuit was filed.

The New York City Law Department described the settlement as in the best interest of both sides. The N.Y.P.D. has found a path forward that satisfies both law enforcement needs and the plaintiffs concerns about the use of the LRAD, a spokeswoman, Kimberly Joyce, said.

In response to a request for comment, the Police Department referred the law departments statement.

The Long Range Acoustic Device was developed in part as a response to a terrorist attack on a Navy destroyer, the U.S.S. Cole, off the coast of Yemen in 2000. It is capable of projecting a narrowly focused beam of sound loud enough to repel potential attackers and has been used to defend cruise ships and tankers against pirates.

But the devices have also been marketed to American police departments. In 2020, the company that produces them, Genasys Inc., said that agencies and departments in more than 450 U.S. cities used the devices.

News reports have described widespread use of the devices to transmit announcements in cities and towns like Rapid City, S.D., where one was used to broadcast a recorded message from a woman to her teenage grandson, whom the police wanted to question in connection with a shooting.

One of the first reported uses of the shrill tones in the United States came in 2009, during protests in Pittsburgh connected to the Group of 20 meetings. Demonstrators, journalists and onlookers fled, and some used moistened tissues or filters from discarded cigarette butts as improvised earplugs. The city later paid $72,000 to a university professor who said her hearing had been damaged.

Last summer and fall, as Black Lives Matter rallies swept the country, use of the sharp beeping tones was reported during protests in cities including Rochester, N.Y., and Kenosha, Wis.

The New York City Police Department bought two of the devices for $70,000 in 2004 as part of its preparations for the Republican National Convention, held that year at Madison Square Garden in Manhattan. At the time, police officials said that they would be used only for announcements, and that the deterrent function would not be employed.

The first sustained use of the deterrent function in New York appeared during a wave of protests in 2014, after a Staten Island grand jury declined to indict an officer who had placed Eric Garner in the chokehold that led to his death.

The bulky square model used in New York during those protests can produce sound of up to 137 decibels at one meter, according to an instructors guide created by the Police Department in 2018, which was produced as evidence in the lawsuit. That guide describes a level of 130 decibels as the pain threshold.

According to the suit, officers used the device around 57th Street and Madison Avenue in Manhattan, sometimes turning it toward protesters who were within 10 feet while repeatedly firing its so-called deterrent tone. That violated the protesters constitutional rights, the suit argued.

The city responded that the use of the device had been objectively reasonable, because protesters had been blocking traffic; some had also thrown bags of garbage in the air and had hurled what were believed to be glass bottles toward police officers making arrests.

In 2017, Judge Robert Sweet ruled that use of an LRAD did not violate the First and Fourth Amendment rights of the demonstrators who had sued. But he also likened the devices to concussion grenades and found that there was an arguable claim that their use violated the 14th Amendment rights of the protesters to equal protection and due process.

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N.Y.P.D. to Limit Use of Sound Cannon on Crowds After Protesters Lawsuit - The New York Times

The problem is well known. The difficulty lies in resolving deeply felt concerns over any increase in government surveillance authority, no matter how important the purpose. We are also paralyzed by a sense of fatalism that cyber vulnerabilities are simply the price we pay for being online, and an erroneous belief that the Constitution stands in the way of any solution.

Most cybersecurity experts agree an effective public-private cyber information-sharing system is essential in stopping foreign cyber maliciousness before it causes too much damage. But information sharing isnt enough; it would be hamstrung from the start if the government cannot seamlessly and quickly track malicious cyber activity from its foreign source to its intended domestic victims. If some government agency had that legal power, then it could, for example, quickly check out a domestic IP address after an alert from the NSA that the address was communicating with a suspicious overseas server. If that IP address showed questionable activity, the government and the private sector jointly could take steps to reconfigure firewalls or otherwise curtail the hack. Admittedly, this wouldnt prevent hacks and attacks that were based on previously unknown software bugs (so called zero-day exploits). But the reality is that most large-scale hacks by foreign countries rely on already known software imperfections and hardware deficiencies.

The issue is that almost any kind of domestic cyber inspection, even in hot pursuit of a foreign adversary, would be considered a search within the Constitutions Fourth Amendment, which requires searches and seizures by the government to be not unreasonable and in many (but by no means all) cases to be based on a search warrant issued by a judge. The notion that searches could possibly be electronic was of course not in the framers minds when adopting the amendment in 1792, but the reasonableness standard has allowed courts over the years to apply it to new techniques and technologies, including cyber surveillance.

To track foreign cyber malevolence in a new domestic legal framework, we would need a cyber monitoring capability that was so limited and safeguarded that it didnt trigger the Constitutions warrant requirement. The judicial cases tell us this should be possible. After all, for over half a century, courts have approved a range of not unreasonable warrantless electronic surveillance under the Fourth Amendment, taking into account various subjective factors, including the exigency of the surveillance, whether the information had already been revealed to third parties, the level of personal sensitivity of the data, whether the surveillance is broad or tailored, how likely it is that information about nontargets will be scooped up in the surveillance, and whether there are effective oversight mechanisms.

Like a property owner who has put up a fence a few feet inside his property line just to be safe, Congress has established more restrictive structures and rules in our current system than what the Constitution would require for reasonable, warrantless monitoring. The task is to see whether a legislative solution can be crafted in that intervening space. The goal is to not change the property line; there should be no weakening of the Fourth Amendments limits.

Heres what an effective new legal authority, fully consistent with the Constitution, might look like:

Any domestic inspection or monitoring would be expressly limited by the type of both target and information collected. It would be restricted to specifically identified IP addresses or other communications equipment located in the United States that was linked (by the U.S. intelligence community or the FBI) to a foreign person or country suspected of specific cyber wrongdoing. No other targets could be examined; there would be no bulk or indiscriminate collection of data. The activity might be limited to simply a traffic analysis seeing which U.S. or foreign IP addresses were communicating with the target or examining its logbook to look at historic connections. The government would not be allowed to look at emails or otherwise collect the substance of communications, except in the rare case (perhaps with additional approvals) when it was actually necessary for cybersecurity purposes.

Internal governmental approvals would be needed, with a senior official certifying the underlying facts as to why the domestic inspection was required. The requirement would depend on the circumstances, but would need to be explicit. For example, there could be evidence that a server known to be controlled by a foreign nation was communicating with a U.S. IP address, or that certain malware or techniques that the intelligence community knew were unique to foreign cyber malefactors were being tracked to U.S. internet servers.

Housing the legal authority in the FBI, rather than the NSA, might make sense. The countries with values closest to ours, such as the United Kingdom, Australia, Canada and New Zealand, have all placed their domestic cyber monitoring authorities within their foreign signals intelligence agencies (or in new affiliates). Locating this new legal authority in the NSA would follow that pattern, but the political reality is that this would be problematic. The FBI, which sits within the Department of Justice and already investigates malicious foreign cyber activity seems like a logical and acceptable alternative. Whichever agency is chosen, a governmental partnership is critical, with the NSA supplying technical expertise and foreign intelligence insights, the FBI bringing its longtime relationships with internet service providers and other communications infrastructure owners, and the Department of Homeland Security assisting with coordination and communications with the private sector, which should be equally engaged in the process.

The domestic monitoring would be limited in time. After an initial period of 72 hours, the monitoring should end, unless further corroborating information or a demonstrated need to do deeper analysis warranted a limited extension.

The resulting data could be used by the government only for cybersecurity purposes. Those purposes would, however, include thorough investigation into exactly what the foreign cyber malefactor did and with whom it was in contact. The data would have to be deleted after some period and couldnt be searched for general foreign intelligence or law enforcement purposes, or shared with other government agencies (presumably with some limited exceptions such as discovery of actual evidence of a federal crime).

Oversight should be required and modeled on the largely successful compliance scheme for the Foreign Intelligence Surveillance Act. For example, the attorney general or the Foreign Intelligence Surveillance Court could receive periodic reports of the legal authoritys use and audit the activity, and the Privacy and Civil Liberties Oversight Board could independently verify compliance. DHS could consult with the private sector and issue annual assessments of whether the authority was indeed effective in curtailing cyber hacks and attacks.

The private sector will be required to cooperate, and not simply shut down suspect accounts. Any meaningful understanding of compromised domestic networks will likely require the assistance of owners of the affected servers or cloud service providers, so they should be required under this new legal authority to cooperate with the government, much like the way telephone companies are obligated under current law to assist the FBI with lawful wiretaps.

This proposal is by no means the only solution; its merely one way to balance the need for more cyber visibility while preserving our constitutional freedoms. After all, the Constitution is designed to protect our liberties, not to provide authoritarian regimes with no use for such liberties a means to exploit our vital online systems with virtual impunity.

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Opinion | Theres a Big Gap in Our Cyber Defenses. Heres How to Close It. - POLITICO

On April 8th, President Joe Biden gave a speech to announce several executive orders on guns as well as to promote future legislation. During this speech he said, no amendment to the Constitution is absolute; you cant yell fire in a crowded theater. In a sense, he is correct; none of the amendments in the Constitution are absolute. Free speech does not protect inciting riots, free religion does not protect sacrificing people, requiring a warrant to search a home does not apply to emergencies. There are plenty of restrictions on guns that already exist and have been upheld in court.

The problem with this argument is just because a right is not unlimited, that doesnt mean the right doesnt matter at all. For example, the tired clich you cant yell fire in a crowded theater is from the Supreme Court case Schenck v United States (1919) which was not about yelling fire, rather it was about encouraging people to resist the draft during World War I. This case was later overturned by Brandenburg v Ohio and established that for speech to be outside the scope of the First Amendment, the speech must be likely to promote imminent lawless action, with likely and imminent being the key words. You can encourage people to resist the draft, you can encourage genocide, you cannot incite a riot. The United States has more freedom of speech than any other country in the world, and it is because exceptions to free speech are very few and far between. Rights matter.

In 2018, two people were driving down Interstate 94 near Jamestown, N.D. A sheriff pulled them over because they were driving too carefully; it was suspicious they were driving 2 mph below the speed limit. They had 500 pounds of marijuana in the car and the judge threw out the case because the sheriff violated their Fourth Amendment right against searches and seizures. The sheriff had no legitimate reason to pull over the car. Rights matter.

Rights not being absolute is no excuse to piss on the Constitution and pass whatever law you think might make the country safer.Restrictions on guns fall into three categories: who can own guns, where people can carry guns, and what types of guns people can own.

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The Supreme Court in DC v Heller conceded that the Second Amendment was not absolute and explicitly did not address the first two categories, but they did talk about what types of guns people can own. At the bare minimum, an individual (unconnected to any militia) has a right to own a basic pistol. The court also shut down the argument that the right only applied to 18th century muskets; they called it frivolous. The types of guns that are protected are those that are in common use. For certain guns to be outside the scope of the Second Amendment, they must be both dangerous (meaning relative to other guns, not in general) and unusual. The AR-15 is the best-selling rifle platform in the country; half of all rifles sold today are AR variants; they are not unusual. Furthermore, ARs are not substantially more dangerous than other guns. They fire a weak varmint round (granted more powerful than pistols) at the same rate of fire as most other guns: 1 shot per trigger pull.

They are not military weapons, they are not machine guns, they are not designed to kill as many people as possible. The only reason people single out the AR-15 for banning is because it looks menacing. My evidence of this claim is that proposed assault weapon bans target menacing-looking cosmetic features, not the mechanical function of guns.

Tony Bender wrote a letter Can we talk about guns? and he repeated the same arguments that just because rights arent unlimited, everything is fair game. His very condescending argument is just more of the same bad-faith drivel that gun owners are used to listening to while our rights are chipped away. Maybe if he stopped straw-manning people would talk to him. Its my experience that gun owners love talking about guns when theyre not being insulted.

William Smith lives in Fargo.

This column does not necessarily reflect the opinion of The Forum's editorial board nor Forum ownership.

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Letter: 'Yelling fire in a crowded theater' - INFORUM

Protesters outside the Brooklyn Center Police Department on April 13, 2021, in Brooklyn Center, Minn., after the killing of Daunte Wright. (Chris Tuite / ImageSPACE / MediaPunch / IPX)

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Daunte Wright was pulled over by police officers on Sunday afternoon. The reason the police gave for the stop is that he was driving with expired registration tags on his license plate. The time was roughly 2 pm. Within minutes of being pulled over, Wright was dead.

What happened during those minutes is still being pieced together, but the essential horrors were captured on video. As the officers from the Brooklyn Center police approached Wrights car, they noticed that he had an illegal air freshener dangling from his rearview mirror. They then ran his plates and found that he had $346 of outstanding fines and an arrest warrant for misdemeanor offenses. At this point, Wright was scared enough to call his mother. But before he could finish the call, the officers removed Wright from his vehicle, and as one officer fumbled for the handcuffs, Wright panicked and attempted to get back into his car. Another officer, Kim Potter, then decided to electrocute him, but instead of pulling out her Taser, she pulled out her gun and shot Wright to death. He was 20 years old.

The particulars of Wrights murder have haunted me for a few days now. My own son, only 8, has a tendency to panic in stressful situations. I learned, very early, that the louder you talk to him, the less he hears you. The thought of a cop shouting instructions at him and then killing him for noncompliance keep me awake at night.

Wrights death was not random. It happened because this society allows the police to prey on Black people. His murder took place just days after the world got to see video of Lt. Caron Nazario being pepper-sprayed and abused by Virginia State Police for driving his own new car. It took place 10 months and 10 miles from the murder of George Floyd. It took place in the long shadows of the murders and near-murders of Jacob Blake, Philando Castile, Sandra Bland, Walter Scott, and so many more. And it followed decades of Black drivers being pulled overand then, all too often harassed, fined, and arrestedas much as 40 percent more frequently than white drivers. Wright was right to call his mother.

There is, of course, a way to stop this needless slaughter of Black people for the apparently capital crime of driving while Black. We need not live in a world where the police can accidentally kill Black people who committed moving violations. The solution is simple and obvious: Abolish armed traffic stops. Use unarmed officers and ubiquitous technology to enforce the traffic laws instead. More Black people will live.

This isnt as radical as it might soundor as dystopian. Yes, cameras, drones, facial recognition technology, and the other apparatus of the surveillance state are just as racist as the people who program them. But I can argue a ticket much more effectively than I can dodge a bullet.

In most localities, we already have unarmed law enforcement officers issuing citations for minor vehicular offenses. Parking cops issue tickets all the time, but most of them are armed only with that unforgiving ticket-writing thingy, instead of a gun. And despite the fact that Ive seen people pull out a thesaurus to come up with the worst possible invectives to shout at these officers, when was the last time you heard about somebody killed by a parking inspector?Current Issue

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Theres no actual reason we should have armed police officers enforcing traffic laws. Government officials dont need to carry a gun to write a ticket or issue a summons. The state need not send armed paramilitary units to rove the streets looking for people who miss a turn signal. The option of shooting somebody over an air freshener should never be on the table.

Im not calling for traffic anarchy. Driving is a dangerous privilege. Road traffic accidents are the leading cause of deathfor people under 54 in the United States. Theyre the leading cause of work-related death in almost every industry. Im constantly aware that getting behind the wheel of a car is the most dangerous thing I do, and sitting in my car is the most dangerous thing my children do. I know Im much more likely to be killed by a fellow civilian speeding through an intersection than by a cop violating my constitutional and human rights. Cars are so dangerous the Federalist Society probably wants to invent a constitutional right for aggrieved white boys to drive them without a permit.

But we have no evidence that siccing armed police officers on people suspected of moving violations makes our roads safer. Indeed, technology has advanced to the point where many traditional traffic enforcement duties are being handled by the surveillance state instead of the police state. The last time I got a ticket for anything, I was busted by the robots: A red-light camera caught me making an illegal U-turn. Since it would be patently ridiculous to outfit the red-light camera with a ray gun and program it to zap me unconscious until the police arrived with my physical ticket, I received my ticket in the mail about a week later, and my illegal turning spree came to an end.

Between the cameras, which are everywhere anyway, and some unarmed traffic wardens empowered to pull over Lamborghinis and protect us from drunks, we could have all of the same safety benefits from road regulation that we do now. The only thing wed lose from traffic cop disarmament is the likelihood that allegedly clairvoyant police officers would use minor traffic violations to pull over Black drivers in the search for other crimes.

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Those stops, the fishing expeditions during which cops use a traffic violation as an excuse to search for drugs or guns or other illegal activity, should be unconstitutional anyway. The Fourth Amendment should require the police to have probable cause or reasonable suspicion that a driver is engaged in criminal activity before they can stop the person. But those normal rules are thrown out of the window once people sit behind the wheel of their vehicles. Courts have decided that citizens have fewer constitutional protections in their cars than nearly anywhere else in society. Judges act like the internal combustion engine is the Fourth Amendments kryptonite, and so cops can use simple traffic violationsfrom a broken taillight to a dangling air freshenerto stop and search people they would otherwise have no credible reason to question or harass.

That was the ruling by the Supreme Court in a 1996 case called Whren v. U.S. In that case, cops patrolling a high drug area (really just a predominately Black part of Washington, D.C., but whatever) observed a motorist stopped at a stop sign for an usually long time. The car then abruptly moved and turned without signaling. The police stopped the car for the traffic violation (which, again, they didnt care about) and found the drugs they were really looking for. The Supreme Court ruled that the arrest was valid, even though the officers had an ulterior motive for the traffic stop.

Antonin Scalia wrote the opinion, but the ruling was unanimous. Somehow, eight white people and Clarence Thomas decided that the Fourth Amendment should not matter if the cops claim you forgot to hit your turn signal.

It is decisions like Whren that killed Daunte Wright. Brooklyn Center police didnt actually care that Wright was driving with expired tags on his plate. They were hoping to catch him doing something else, something actually criminal. When they came up empty for a real crime, they started scrambling through air fresheners and prior moving violations looking for anything to justify their pointless stop of a 20-year-old kid.

Once that process of Supreme Courtapproved harassment started, it was Wright, not the cops, who justifiably feared for his life. If youve never been pulled over by the police for a pretextual stop, I dont think you can appreciate how frightened Wright must have been. Theres no telling what a cop willing to arrest you over an air freshener might also do. Every Black person who has been stopped by a cop for no good reason knows theres a chance the cops will plant or straight-up invent a good reason. Every Black person knows that the kind of cop who would stop you for driving while black is exactly the same kind of cop who would kill you for being Black.

Ive been there. I was pulled over in Indiana, back when I was about the same age as Wright. When my tormentor approached my car, he said it smelled funny. I had just gotten it washed. I responded with something flippant, channeling my inner Sharon Stone with something like, What are you going to do, arrest me for having my car washed? The next thing I knew I was being pulled out of my car, and my head was then slammed onto its hood.

I was so scared. And watching the video of Wrights murder, I could feel his fear rising. Even though I already knew what would happen to him by the time I watched it, I wanted to scream, Stay calm, brother! Stay calm and we will live and grow and have a family and children. We can survive this! Dont let them take us now.More from The Nation

The flight response overpowered him. We dont even know if he was trying to flee; he might have been just trying to get back into his car where he felt safer. The cops could have let him sit down; they could have tried to calm him. They could have talked to him. They could have seen him.

Instead, they shot him.

Daunte Wright was no threat. Even if he had driven away, so what? The officers still had his plate, the information from his drivers license, and the make and model of his car. The police could have driven to his mothers house and handed her the summons for the freshener violation. An unarmed cop might have put the ticket in the mail.

But that didnt happen, because the officer playing at traffic cop still had her gun. An otherwise ordinary example of court-approved racism escalated to state-sponsored homicide, because we allow the cops to turn traffic infractions into capital crimes.

Armed cops should not be allowed to pull us over for traffic violations. They cant be trusted with that power.

Originally posted here:
Its Time to Kick Armed Cops Off the Road - The Nation

(Photo by PATRICK T. FALLON/AFP via Getty Images)

A 69-year-old woman was walking her poodle in a public park in Northern California in late November. She was not wearing a mask.

She walked by groups of people who were.

A police officer, meanwhile, monitored her movements from the security of his squad car.

As she moved past the park into a middle-class neighborhood, he clandestinely trailed her. She walked past other people who were also out for strolls sometimes coming within three or four feet of them.

Being friendly neighbors, they nodded and smiled.

Then this dog walker turned into a driveway. The police officer turned on his overhead lights and pulled up as fast as he could to the front of her house.

By the time he got out of his car, she was already moving through her front door. Before she could completely shut it, however, he slammed his boot into it and knocked it open.

He then entered her foyer and asked her if she had even been carrying a mask on her walk. She said no.

He said, "You are under arrest."

This is not a true story. It is hypothetical. But is it so fantastical it could never happen?

Consider a true story now being pondered by the Supreme Court in the case of Lange v. California.

"One evening in October 2016, petitioner Arthur Lange was driving home in Sonoma, California," said the petition Lange's lawyers submitted to the Supreme Court asking it to take up his case.

"He was listening to loud music and at one point honked his horn a few times," said the petition.

"A California highway patrol officer, Aaron Weikert, began following Mr. Lange, 'intending to conduct a traffic stop,'" it said. "Officer Weikert later testified that he believed the music and honking violated Sections 27001 and 27007 of the California Vehicle Code.

"Those noise infractions carried base fines of $25 and $35," it said.

In other words, the officer was following a driver he suspected may be committing $60 worth of traffic violations.

"Officer Weikert initially followed at some distance and did not activate his siren or overhead lights," said the petition. "He neared Mr. Lange's station wagon only after Mr. Lange turned onto his residential street. Approaching his house, Mr. Lange slowed and activated his garage door opener. As Mr. Lange continued toward his driveway, Officer Weikert turned on his overhead lights, but not his siren or megaphone.

"At that point, Mr. Lange was about as far from his driveway as first base is from second," said the petition.

Lange pulled into his garage. But he did not make it safely home.

"As the garage door began to descend," said the petition, "Officer Weikert left his squad car, stuck his foot under the door to stop it from closing, and entered the garage."

The officer then discovered Lange might be responsible for more than just playing loud music and honking his horn.

"Upon entering the garage and questioning Lange, the officer observed signs of excessive intoxication, such as slurred speech," said the brief that then-California Attorney General Xavier Becerra submitted to the Supreme Court asking it not to take up this case.

Lange was given a blood test.

"Here, the Sonoma County District Attorney charged Lange with two misdemeanor violations of driving under the influence of alcohol ... and with an infraction for operating his car's sound system at an excessive level," said Becerra's brief. "Lange moved to suppress the evidence obtained after the officer entered Lange's garage, arguing that the officer had no justification to enter without a warrant."

Now, think of the hypothetical 69-year-old woman who walked her poodle without a mask. Was she a criminal?

On June 18, 2020, the California Department of Public Health issued a mask mandate under the authority of Gov. Gavin Newsom that said, in part: "People in California must wear face coverings when they are in the high-risk situations listed below: ... While outdoors in public spaces when maintaining a physical distance of 6 feet from persons who are not members of the same household or residence is not feasible."

The Los Angeles Times reported then: "Under state law, residents who violate the new requirement could be charged with a misdemeanor and potentially face a financial penalty, according to a representative for the Newsom administration."

On Nov. 16, 2020, the Newsom administration published an updated and somewhat stricter mandate.

"People in California must wear face coverings when they are outside of the home, unless one of the exemptions below applies," said the November update.

"Individuals are exempt from wearing face coverings," it said, "in the following specific settings: ... Persons who are outdoors and maintaining at least 6 feet of social distancing from others not in their household. Such persons must have a face covering with them at all times and must put it on if they are within 6 feet of others who are not in their household."

The hypothetical dog walker violated this mandate.

But did the government law enforcement agency that entered her hypothetical home or Lange's actual garage violate the Fourth Amendment? It says: "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."

In a brief in Lange v. California that was joined by the American Conservative Union Foundation and the Cato Institute, the American Civil Liberties Union says: "By categorically permitting police officers to enter a home without a warrant whenever they pursue a suspect they have probable cause to arrest for a misdemeanor, the California Court of Appeal violated petitioner's Fourth Amendment rights."

This is the right position.

If a law enforcement officer suspects someone is driving under the influence as opposed to playing loud music and honking his horn he should pull him over immediately to protect both that person and the public.

But when a law enforcement agency wants to enter someone's home other than to protect people there from a life-threatening emergency it should get a judge to give it a warrant.

(Terence P. Jeffrey is the editor in chief of CNSNews.com.)

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When Can Government Kick Open the Door of Your House? - CNSNews.com

Its not easy to change the Constitutionand thats exactly what the Framers intended.

As we know all too well, mass shootings are shockingly common in the United States, and after each, we see a few recurring themes. One of the most prominent is that any tragedy involving firearms triggers a reflexive call to repeal the Second Amendment, with people asking, Why dont we just get rid of it? In theory, we know exactly how to amend the Constitutionafter all, the instructions are right there in Article V. But practically speaking, its very hard to do.

The Framers wanted the people to have the right to change the Constitution, but they didnt want it to be too easy, says Adam Winkler, professor of law at UCLA. The Framers understood that this was the fundamental charter of our nation, and if its too easy to change, it becomes just an ordinary legal document.

While arguments certainly get heated in regard to Second Amendment rights, especially since theres disagreement over exactly what they mean, the same principle applies to First Amendment rights and all others outlined by this founding document. Heres exactly what it would take to change the Constitution.

RELATED: Constitution Facts Many Americans Get Wrong

The Founding Fathers intended for the Constitution to evolve, adapt to new circumstances, and reflect societys progress, Winkler says. Many Framers believed it was within the peoples power to change it if they sought to secure new rights or the old rules became outdated or onerous.

I am not an advocate for frequent changes in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind, wrote Thomas Jefferson, one of the prominent Founding Fathers who didnt sign the Constitution. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.

Jeffersons opinion is just one of the competing views of the nature of the Constitution. The Living Constitution theory says its meaning, if not its text, must change to meet the needs of society, while Originalists argue that it should be interpreted in light of what it meant when it was drafted. Those battling viewpoints are often expressed in oral arguments before the Supreme Court.

Article V of the Constitution lays out the ways it can be amended. There are two paths: one through Congress, and one through the states. In Congress, two-thirds of the Senate and two-thirds of the House of Representatives must vote to propose an amendment. Or, two-thirds of the states can petition the Congress to open a convention for proposing amendments. Any proposed amendment that comes out of it must then be approved by three-fourths of the states within a reasonable time. What makes for a reasonable time is not defined, but Congress has attached time limits, controversially, to some amendment proposals.

How hard is it to do all of that and actually amend the Constitution? Well, since the Bill of Rights was ratified in 1791, its only been accomplished 17 times.

RELATED: The Difference Between the Declaration of Independence and the U.S. Constitution

Many amendments reflect the nations deeply held principles, like the 22nd, limiting the presidency to two terms in office and curtailing entrenched power and political dynasties. Others show the results of long, hard-fought struggles for equality. The Reconstruction-era 13th, 14th, and 15th Amendments sought to remove the stain of slavery from laws and policies after the Civil War, while the 19th Amendment extended voting rights to women in 1920. Still, others seem to show temporary interestslike the 18th Amendment, banning alcohol and launching the Prohibition era in 1920, and the 21st Amendment, repealing it 12 years later.

But the amendment process is meant to discourage flavor-of-the-month lawmaking. Though thousands of amendments to the Constitution have been proposed in Congress, most never got past the first set of hurdles, according to U.S. Senate records.

The fastest Amendment to become law was the 26th, which lowered the voting age to 18 years old. Though it was initially discussed in the 1940s when World War II helped spur the slogan Old enough to fight, old enough to vote, it was never formally proposed, and it languished until the turmoil of the Vietnam War era revived it. In 1970, Congress passed a law to make 18 the national voting age, but the Supreme Court ruled in December of that year that it could apply only to federal elections and that states could determine the appropriate age for state elections.

In response, House and Senate committees recommended the 26th Amendment on March 2, 1971. A unanimous 940 vote in the Senate approved it eight days later, and the House voted 40119 in favor on March 23. Five states ratified it that very day, followed in short order by 33 more, leading to certification by the General Services Administration on July 1, 1971.

The 27th amendment took the longest. Its the one that says Congress cant vote to give itself a pay raise unless a new Congress is seated before the raise goes into effect. Proposed by the very first Congress in 1789, it wasnt ratified until 1992. It was dragged over the finish line largely by Gregory Watson, a University of Texas undergraduate who wrote a paper on the neglected amendment in 1982, arguing it could still become law. He then made it his personal cause when his professor gave him a C. After 202 years, seven months, and 10 days, the amendment was ratified, and the university retroactively gave Watson an A.

Other amendments have had time limits attached to their ratification, like the Equal Rights Amendment, or ERA, which would forbid discrimination against women on the basis of sex. It passed Congress in March 1972 with a seven-year deadline, and within a year, it was ratified by 30 states. After a three-year extension, it stalled, and by 1982, it was considered dead. But over the course of nearly 40 years, state legislatures began to take it up again. On January 15, 2020, Virginia became the 38th state to ratify the ERA, pushing it over the three-fourths hurdle.

But the ERA is not yet the law of the land. Legal battles are being fought over whether states can rescind their ratifications of an amendment, as many did after the ERAs first wave of support waned, and whether Congress has the authority to make and remove time limits on amendments. The Constitution provides no easy answers to those questions.

The lack of specific instructions is a key characteristic of the Constitution. For every argument for a specific interpretation, theres another one (or more) for a different interpretation. Thats why the Supreme Court hears more than 100 cases every year. This may seem like a flaw, but its what the Founders intended. The more specific we are with our rights, the less useful they are, Winkler says. Vague, general terms are easier to adapt to unforeseen dangers and threats.

Winkler adds that an itemized list of specific rights might be convenient, but it would be limiting, too easily used to exclude rights that society might decide it needsrights the Founders couldnt have predicted. Consider this: Would you have a right to privacy for things you keep stored on your cell phone if the Fourth Amendment, written 18 decades before the first cell phone made its first call, listed specific places and things meant to be free from unreasonable searches and seizures? Or, would you have the right to carry a semi-automatic rifle with a high-capacity magazine if the Second Amendment listed which arms you have the right to bear? At the time, the only firearms the Founders knew of fired one shot at a time and took nearly half a minute for the average person to reload, and, of course, gun violence statistics were nonexistent.

That question lies at the heart of the modern debate over gun rights and speaks directly to the difficulty in amending the Constitution. Could we get a majority of Americans to agree that some regulations had to be made to adapt the Second Amendment to modern weaponry? If so, what would the contours of those regulations look like? Could a super-majority of Congress agree to define those contours? And could a super-majority of states approve the changes in a reasonable time? If anyone is optimistic about all of that, theyre not saying so very loudly.

But while gun rights and gun control advocates square off over the Second Amendment, and legal scholars, Living Constitutionalists, and Originalists debate whether the Constitution should be changed to address realities our 18th-century leaders couldnt have imagined, the people can rest assured that the Constitution can be changed, if it must.

RELATED: Why I No Longer Think Guns Are a God-Given Right

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Theresa Rose Bentaas walks to court Monday, March 11, at the Minnehaha Courthouse in Sioux Falls. Bentaas is charged with first-degree murder, second-degree murder and first-degree manslaughter after police say she left her newborn baby outside to die in 1981. Bentaas was arrested after DNA testing proved she was the infants mother.(Photo: Briana Sanchez / Argus Leader)

The trial for a South Dakota woman charged with the murder of her newborn 40years ago has been postponed again, according to the Minnehaha County clerk of courts.

Theresa Bentaas was scheduled for trial Mondayin Minnehaha County court in Sioux Falls.Randy Sample with the Minnehaha County States Attorney's officesaid that both sides were in agreement for a reset and that a new date has not yet been scheduled.

Bentaas, 59, is charged with first-and second-degree murder and first-degree manslaughter in connection to the former cold case of Baby "Andrew" John Doe.

This is the thirddelay in the trial since she was formally charged in March 2019. Bentaas' attorneys also filed a motion to delay the trial in November,citing the continuous rise is COVID-19 cases and hospitalizations.

The firstdelay was in September2019,when parties said they were having trouble finding times when all the witnesses were available.

Heres what we know about the incident, investigation and arrest:

On Feb. 28, 1981, a newborn baby was found in a ditch,wrapped in a blanket alongside what is now Sycamore Avenue near 26th Street. The bundle was spotted by a driver who called to report it.

More: 'I consider him my long lost son:' Man who found Baby Andrew speaks out after arrest

By the time officers responded,it was too late and the baby was no longer alive.

An autopsy was conducted a few days later and the cause of death was determined to likely be exposure and failure to assist the baby in maintaining an airway, according to court documents.

After a few leads and attempts to contact the parents of the baby, the case went coldshortly after that.

The grave of Baby Andrew John Doe, an infant who was found dead in a ditch in 1981, is shown. Police arrested Theresa Rose Bentaas decades later on Friday, March 8, 2019 after determining through DNA that she was the mother.(Photo: Loren Townsley / Argus Leader)

In 2009, a detective with the Sioux Falls Police Department, Mike Webb, reopened the case of Baby Andrew John Doe in hopes of obtaining any DNA evidence for testing. Webb shortly discovered all testable evidence had been destroyed in 1995, the court documents noted.

Webb learned of a process where DNA could be extracted from the bones and tissues of the body. After doing some research, he found the North Texas University Science Center conducted those lab tests.

More: Cold case: Police hope DNA leads to parents of abandoned baby

Baby Andrew's body was exhumed in September2009 and sent down to Texas in hopes of finding any DNA matches that would help locate the parents. No matches were found, according to the court affidavit.

With no matches the case hit a stalemate again. But per policy, the DNAsamples were to be tested every year and weretested in Feb. 2018 and again no matches were found, documents said.

With the technology increase, police submitted the DNA to a Virginia-based company, Parabon NanoLabs, Inc. in 2019,that was able to find two possible genetic matches.

Using those genetic links, police were able to use a family tree that led to Theresa Rose (Josten) Bentaas and Dirk Bentaas in Sioux Falls.

After conducting a "trash pull" at Bentaas'home, Sioux Falls police found a cigarette butt,beer and water containers that were seized as evidence. FemaleDNA wasfound on the evidence that "could not be excluded as being from the biological mother of Baby Doe," according to a court affidavit.

More: Timeline: How police spent 38 years trying to solve Baby Andrew's murder

Detectives interviewed both Dirk and Theresa Bentaas and took buccal swabs from both.

In the interview, Bentaas said she was "young and stupid" and admitted to being pregnant in 1980-81,having the child alone in her apartment and driving the baby to the place he was later discovered.

Court documents said she saw the baby was discovered on the news and stated that "she was in denial that she was the one responsible for that." And she thinks about it when she drives by the area now.

On March 4, 2019, lab results from swabs came back and showed a strong evidence to support the relationship between both Theresa and Dirk Bentaas and Baby Andrew.

Theresa Rose Bentaas, 57, was arrested Friday morning after police determined through DNA that she was the mother of Baby Andrew. Sioux Falls Argus Leader

Theresa Bentaas was arrested and charged in the death of Baby Andrew on March 8, 2019.

In a press conference the day she was arrested,Sioux Falls Police Chief Matt Burns acknowledged the dedication of theinvestigators in thepursuit of justice.

"I couldn't be more pleased with the results today and the arrest and the closure that we find, as well as the hard work and dedication for the pursuit of justice for Andrew," Burns said.

In Feb. 2020, Bentaas' lawyers filed a motion to suppress the DNA evidence that police obtained from the trash pull at her residence that led to her arrest, stating that it violated her rights.

More: Bentaas case: Judge says DNA evidence from trash pull can be used in murder trial

"As a free member of the general public, law enforcement's extraction of Bentaas' DNA from the items pulled from the trash and the subsequent creation of her DNA profile for the testing of Baby Doe case constitutes an unreasonable search under the Fourth Amendment," Bentaas' attorneys wrote in the brief.

The judge in the case later ruled the DNA evidence could be used in the murder trial and did not violate her Fourth Amendment rights.

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New York rolled out its attempt at a vaccine passport called the Excelsior Pass, but it is a blatantly authoritarian move.

The Excelsior Pass allows people to document their COVID-19 vaccination status or a recent negative test for COVID-19. In exchange, people will receive permission to be allowed into social gatherings such as sporting events, art performances, airplanes and just about any other venue one could imagine.

However, such a pass like this one, developed and rolled out on behalf of the government, is an incredible violation of peoples privacy rights.

The COVID-19 vaccines are incredibly new and though the Centers for Disease Control and Prevention said that the vaccines are safe and effective, the government cannot ignore the peoples right to deny such a new vaccine. Nobody is sure of the vaccines long-term effects, as they have existed for only a year, if even that long.

Public confidence in the COVID-19 vaccine is not exceptionally high, though there are many who are confident that the vaccines are safe and effective. According to statistics from the Pew Research Center, about 60% of Americans intend to get a vaccine when eligible.

With plenty of conspiracies already afloat about the vaccinations, such as those that claim that Microsoft founder Bill Gates might be implementing a microchip to track people, a government push to vaccinate people by threatening them with exclusion from social gatherings is sure to fuel these conspiracies and lower confidence even further.

If the government restricts the peoples rights to privacy by mandating a vaccine passport, many will suspect authoritarianism to be the aftermath of the pandemic.

The Bill of Rights was designed to protect the people from an overreaching government. In particular, the Fourth Amendment was written to protect the peoples privacy from unreasonable searches and seizures.

A vaccine passport required by the government unreasonably intrudes into peoples lives by requiring them to upload personal documents in exchange for their natural rights to gather with other people freely.

The American Civil Liberties Union published a blog post on March 31 arguing that theres a lot that can go wrong with vaccine passports.

But given the enormous difficulty of creating a digital passport system, and the compromises and failures that are likely to happen along the way, we are wary about the side effects and long-term consequences it could have, ACLU Senior Policy Analyst Jay Stanley said.

Florida Gov. Ron DeSantis issued a strong rebuke of vaccine passports on April 2, signing an executive order prohibiting government agencies and private businesses in Florida from requiring a vaccine passport.

Its completely unacceptable for either the government or the private sector to impose upon you the requirement that you show proof of vaccine to just simply be able to participate in normal society, DeSantis said at a news conference, as reported by The New York Times.

However, The New York Times does note that DeSantiss order could face legal challenges, including under the precedent of Supreme Court case Jacobson v. Massachusetts, where the high court upheld the authority of states to enforce compulsory vaccination laws.

Additionally, private businesses rights to require proof of vaccination could also challenge DeSantiss order.

Proponents of a vaccine passport argue that it is the safest way to reopen society. Disgraced New York Gov. Andrew Cuomo called the states Excelsior Pass thoughtful and science-based in his 2021 State of the State Address.

As more New Yorkers get vaccinated each day and as key public health metrics continue to regularly reach their lowest rates in months, the first-in-the-nation Excelsior Pass heralds the next step in our thoughtful, science-based reopening, Cuomo said.

However, vaccine passports are not necessary for safety.

Scientists and doctors, including Director of the National Institute of Allergy and Infectious Diseases Dr. Anthony Fauci, have repeatedly said that herd immunity is attainable when 70% to 85% of the population is immune to the virus. If this is true, the country wouldnt need a vaccine passport as it approaches this target.

Not only would a vaccine passport to engage in daily activity be an incredible violation of privacy, but it would also be useless.

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Vaccine passports are violations of personal privacy - The Ticker