Category Archives: Fourth Amendment

By John W. Whitehead

They came again this morning at about 8:00 oclock. A large cargo-type helicopter flew low over the cabin, shaking it on its very foundations. It shook all of us inside, too. I feel frightened I see how helpless and tormented I am becoming with disgust and disillusionment with the government which has turned this beautiful country into a police state I feel like I am in the middle of a war zone.Journal entry from a California resident describing the governments aerial searches for marijuana plants

Backyard gardeners, beware: tomato plants have become collateral damage in the governments war on drugs, especially marijuana.

In fact, merely growing a vegetable garden on your own property, or in a greenhouse on your property, orshopping at a gardening storefor gardening suppliesincredibly enoughcould set you up for a drug raidsanctioned by the courts.

Its happened before.

After shopping for hydroponic tomatoes at their local gardening store, a Kansas family found themselves subjected to a SWAT team raid as part of a multi-state, annual campaign dubbed Operation Constant Gardener, in whichpolice collected the license plates of hundreds of customers at the gardening storeand then investigated them for possible marijuana possession.

By investigated, I mean that police searched through the familys trash. (You can thank the Supreme Court and their1978 ruling inCalifornia v. Greenwoodfor allowing police to invade your trash can.) Finding wet glob vegetation in the garbage, the cops somehow managed to convince themselvesand a judgethat it was marijuana.

In fact, it was loose-leaf tea, but those pesky details dont usually bother the cops when theyre conducting field tests.

Indeed, field tests routinely read positive for illegal drugs even when no drugs are present. According to investigative journalist Radley Balko, its almost as if these tests come up positive whenever the police need them to.A partial list of substances that the tests have mistaken for illegal drugs would include sage, chocolate chip cookies, motor oil, spearmint, soap, tortilla dough, deodorant, billiards chalk, patchouli, flour, eucalyptus, breath mints, Jolly Ranchers and vitamins.

Theres a long list of innocent ingredients that could be mistaken for drugs and get you subjected to a raid, because thats all it takesjust the barest whiff of a suspicion by police that you might be engaged in criminal activityto start the ball rolling.

From there, these so-called investigations followthe usual script: judge issues a warrant for a SWAT raid based on botched data, cops raid the home and terrorize the family at gunpoint, cops find no drugs, family sues over a violation of their Fourth Amendment rights, and then the courts protect the cops and their botched raid on the basis of qualified immunity.

It happens all the time.

As Balko reports, Police have broken down doors, screamed obscenities, andheld innocent people at gunpoint only to discover that what they thought were marijuana plants were really sunflowers, hibiscus, ragweed, tomatoes, or elderberry bushes. (Its happened with all five.)

Surely, you might think, the government has enough on its hands right nowpolicing a novel coronavirus pandemic, instituting nationwide lockdowns, quelling civil unrests over police brutalitythat it doesnt need to waste time and resources ferreting out pot farmers.

Youd be wrong.

This is a government that excels at make-work projects in which it assigns at-times unnecessary jobs to government agents to keep them busy or employed.

In this case, however, the make-work principle (translation: making work to keep the police state busy at taxpayer expense) is being used to justify sending police and expensive military helicopterslikely equipped with sophisticated surveillance and thermal imaging devicesonexploratory sorties every summeragain at taxpayer expensein order to uncover illegal marijuana growing operations.

Often, however, what these air and ground searches end up targeting are backyard gardeners growing tomato plants.

Just recently, in fact, eyewitnesses in Virginia reported low-flying black helicopters buzzing over rural and suburban neighborhoods as part of a multi-agency operation to search for marijuana growers. Oftentimes thesejoint operations involve local police, state police and the Army National Guard.

One woman reported having her tomato plants complimented by the 7 cops that pulled up in my yard in unmarked SUVs, after a helicopter hovered over our house for 20 minutes this morning. Another man reported a similar experience from a few years ago when police showed up inunmarked SUVs with guns pulled. Then the cops on the ground argued with the helicopter because the heat signature in the copter didnt match what was growing.

Back in 2013, an aerial surveillance mission spotted what police thought might be marijuana plants. Two days later, dozens of city officials, SWAT team, police officers and code compliance employees, and numerous official vehicles including dozens of police cars and several specialized vehicular equipment, including helicopters and unmanned flying drones, descended on The Garden of Eden, a 3.5-acre farm in Arlington, Texas, for a10-hour raid in search of marijuanathat turned up nothing more than tomato, blackberry and okra plants.

These aerial and ground sweeps have become regular occurrences across the country, part of the governments multi-million dollar Domestic Cannabis Eradication Program. Local cops refer to the annual military maneuvers as Eradication Day.

Started in 1979 as a way tofund local efforts to crack down on marijuana growersin California and Hawaii, the Eradication Programwent national in 1985, right around the time the Reagan Administrationenabled the armed forces to get more involved in the domestic war on drugs.

Writing forThe Washington Post, Radley Balko describes how these raids started off, with the National Guard, spy planes and helicopters:

The project was called the Campaign Against Marijuana Production, or CAMP In all, thirteen California counties were invaded by choppers, some of them blaring Wagners Ride of the Valkyries as they dropped Guardsmen and law enforcement officers armed with automatic weapons, sandviks, and machetes into the fields of California In CAMPs first year, the program conducted 524 raids, arrested 128 people, and seized about 65,000 marijuana plants. Operating costs ran at a little over $1.5 million. The next year, 24 more sheriffs signed up for the program, for a total of 37. CAMP conducted 398 raids, seized nearly 160,000 plants, and made 218 arrests at a cost to taxpayers of $2.3 million.

The areas larger growers had been put out of business (or, probably more accurately, had set up shop somewhere else), so by the start of the second campaign in 1984, CAMP officials were already targeting increasingly smaller growers. By the end of that 1984 campaign, the helicopters had to fly at lower and lower altitudes to spot smaller batches of plants. The noise, wind, and vibration from the choppers could knock out windows, kick up dust clouds, and scare livestock. The officials running the operation made no bones about the paramilitary tactics they were using.They considered the areas they were raiding to be war zones.In the interest of officer safety, they gave themselves permission to search any structures relatively close to a marijuana supply, without a warrant. Anyone coming anywhere near a raid operation was subject to detainment, usually at gunpoint.

Right around the same time, in the mid-1980s, the federal government started handing out grants to local police departments to assist with their local boots-on-the-ground war on drugs. These grants (through the Byrne Grant program and COPS program, both of which started to be phased out under George W. Bush, only to be re-upped by Barack Obama) could be used to pay for additional police personnel, equipment, training, technical assistance and information systems. However, studies show that while these federal grantsdid not improve police effectiveness or drug deterrence, they did incentivize SWAT team raids.

But how do you go from a war on drugs to SWAT-style raids on vegetable gardens?

Connect the dots, starting with the governments war on marijuana, the emergence of SWAT teams, the militarization of local police forces through the federal 1033 Program, which allows the Pentagon to transfer vast amounts of military equipmentmachine guns and ammunition, helicopters, night-vision gear, armored carsto local police departments, and the transformation of American communities into battlefields: as always, it comes back to the make work principle, which starts with local police finding ways to justify the use of military equipment and federal funding.

Each year, thegovernment spends between $14 and $18 million funding helicopter sweeps and police overtime to help the states track down illegal marijuana plants. These sweeps are even beingcarried out in states where its now legalto grow marijuana.

The sweeps work like this: Local police, working with multiple state agencies including the National Guard, carry out ground and air searches of different sectors.Air spotters flying overhead in helicopters relay their findings to police on the ground, who then carry out a search-and-destroy mission.

Mark my words: the use of police drones will make these kinds of aerial missions even more common.

For the most part, aerial surveillance is legal. As Arthur Holland Michel writes forThe Atlantic: When it comes to law enforcement,police are likewise free to use aerial surveillance without a warrant or special permission. Under current privacy law, these operations are just as legal as policing practices whereby an officer spots unlawful activity while walking or driving through a neighborhood.

There have been a few notable exceptions.

In 2015, the New Mexico Supreme Court ruled thatsurveillance from a low-flying helicopter conducting an aerial search for marijuana by state police and the national guard was illegalunder the U.S. Constitution. The court reasoned that when low-flying aerial activity leads to more than just observation and actually causes an unreasonable intrusion on the groundmost commonly from an unreasonable amount of wind, dust, broken objects, noise, and sheer panicthen at some point courts are cand require a warrant before law enforcement engages in such activity. The Fourth Amendment and its prohibition against unreasonable searches and seizures demands no less.

In Philip Cobbs case, helicopter spotters claimed to have seen two lone marijuana plants growing in the wreckage of a fallen oak tree on the Virginia natives 39-acre family farm.

Cobbs noticed the black helicopter circling overhead while spraying the blueberry bushes near his house. After watching the helicopter for several moments, Cobbs went inside to check on his blind, deaf 90-year-old mother. By the time he returned outside,several unmarked police SUVs had driven onto his property, and police (ten in all) in flak jackets, carrying semi-automatic weapons and shouting unintelligibly, had exited the vehiclesand were moving toward him.

Of course, it was never about the two pot plants.

What the cops were really after wasan excuse to search Cobbs little greenhouse, which he had used that spring to start tomato plants, cantaloupes, and watermelons, as well as asters and hollyhocks, which he planned to sell at a roadside stand near his home. The search of the greenhouse turned up nothing more than used tomato seedling containers.

Nevertheless, police charged Cobbs with misdemeanor possession of marijuana for the two plants they claimed to have found. Eventually, the charges were dismissed but not beforeThe Rutherford Institute took up Cobbs case, which revealed that police hadnt even bothered to secure a warrant before embarking on their raid of Cobbs propertya raid that had to cost taxpayers upwards of $25,000, at the very leastpart of their routine sweep of the countryside in search of pot-growing operations.

Two plants or two hundred or no plants at all: it doesnt matter.

A SWAT team targeted one South Carolina man for selling $50 worth of pot on two different occasions.The Washington Postreports: The SWAT team broke down Bettons door with a battering ram, then fired at least 57 bullets at him, hitting him nine times. He lost portions of his gallbladder, colon, bowel and rectum, and is paralyzed from the waist down. He also suffered damage to his liver, lung, small intestine and pancreas. Two of his vertebrae were damaged, and another was partially destroyed. Another bullet shattered his leg. After security footage showed that most of what police said about the raid was a lie, the copssettled the case for $2.75 million.

Monetary awards like that are the exception, however.

Most of the time, the cops get away with murder and mayhem. Literally.

Bottom line: no amount of marijuana is too insignificant if it allows police to qualify for federal grants and equipment and lay claim to seized assets (theres the profit motive) under the guise of fighting the War on Drugs.

SWAT teams carry outmore than 80,000 no-knock raids every year. The vast majority of these raids are to serveroutine drug warrants, many times for crimes no more serious than possession of marijuana.

Although growing numbers of states continue to decriminalize marijuana use and9 out of 10 Americans favor the legalization of either medical or recreational/adult-use marijuana, the governments profit-driven War on Drugswaged with state and local police officers dressed in SWAT gear, armed to the hilt, and trained to act like soldiers on a battlefield, all thanks to funding provided by the U.S. government, particularly the Pentagon and Department of Homeland Security (DHS)has not abated.

Since the formation of the DHS post-9/11, hundreds of billions of dollars in grants have flowed to local police departments for SWAT teams, giving rise to a police industrial complex that routinely devastates communities, terrorizes families, and destroys innocent lives.

No longer reserved exclusively for deadly situations,SWAT teams are now increasingly being deployed for relatively routine police matters, with some SWAT teams being sent out as much as five times a day. Nationwide, SWAT teams have been employed to address an astonishingly trivial array of criminal activity or mere community nuisances: angry dogs, domestic disputes, improper paperwork filed by an orchid farmer, and misdemeanor marijuana possession, to give a brief sampling.

Unfortunately, general incompetence, collateral damage (fatalities, property damage, etc.) and botched raids tend to go hand in hand with an overuse of paramilitary forces.

In some cases, officers misread the address on the warrant. In others, they simply barge into the wrong house or even the wrong building. In another subset of cases, police conduct a search of a building where the suspect no longer resides.

SWAT teams have even on occasion conducted multiple, sequential raids on wrong addresses or executed search warrants despite the fact that the suspect is already in police custody. Police have also raided homes on the basis of mistaking the presence or scent of legal substances for drugs. Incredibly, these substances have included tomatoes, sunflowers, fish, elderberry bushes, kenaf plants, hibiscus, and ragweed.

All too often, the shock-and-awe tactics utilized by many SWAT teams only increases the likelihood that someone will get hurt with little consequences for law enforcement, even when the raids are botched.

Botched SWAT team raids have resulted in the loss of countless lives, including children and the elderly. Usually, however, the first to be shot are the family dogs.

SWAT raids are usually carried out late at night or shortly before dawn. Unfortunately, to the unsuspecting homeownerespecially in cases involving mistaken identities or wrong addressesa raid can appear to be nothing less than a violent home invasion, with armed intruders crashing through their door.

Thats exactly what happened toJose Guerena, the young ex-Marine who was killed after a SWAT team kicked open the door of his Arizona home during a drug raid and opened fire. According to news reports, Guerena, 26 years old and the father of two young children, grabbed a gun in response to the forced invasion but never fired. In fact, the safety was still on his gun when he was killed. Police officers were not as restrained. The young Iraqi war veteran was allegedly fired upon 71 times. Guerena had no prior criminal record, and the police found nothing illegal in his home.

The problems inherent in these situations are further compounded by the fact that SWAT teams are granted no-knock warrants at high rates such that the warrants themselves are rendered practically meaningless.

This sorry state of affairs is made even worse by U.S. Supreme Court rulings that have essentiallydone away with the need for a no-knock warrant altogether, giving the police authority to disregard the protections afforded American citizens by the Fourth Amendment.

Clearly, as I make clear in my bookBattlefield America: The War on the American People,something must be done.

When the war on drugsa.k.a. the war on the American peoplebecomes little more than a thinly veiled attempt to keep SWAT teams employed and special interests appeased, its time to revisit our drug policies and laws.

You take the Constitution, the Bill of Rights, all the rights you expect to havewhen they come in like that, the only right you have is not to get shot if you cooperate.They open that door, your life is on the line, concluded Bob Harte, whose home was raided by a SWAT team simply because the family was seen shopping at a garden store, cops found loose tea in the familys trash and mistook it for marijuana.

Our family will never be the same, said Addie Harte, recalling the two-hour raid that had police invading their suburban home with a battering ram and AR-15 rifles. AsThe Washington Postreports:

Bob found himself flat on floor, hands behind his head, his eyes locked on the boots of the officer standing over him with an AR-15 assault rifle. Are there kids? the officers were yelling. Where are the kids? And Im laying there staring at this guys boots fearing for my kids lives, trying to tell them where my children are, Harte recalled later in a deposition on July 9, 2015. They are sending these guys with their guns drawn running upstairs to bust into my childrens house, bedroom, wake them out of bed.

It didnt matter that no drugs were foundnothing but a hydroponic tomato garden and loose tea leaves. The search and SWAT raid were reasonable, according to the courts.

Theres a lesson here for the rest of us. As Bob Harte concluded: If this can happen to us, everybody in the country needs to be afraid.

View post:
Attack of the tomato killers: The Police State's war on weed and backyard gardens - Augusta Free Press

George Floyds death at the hands of Minneapolis police in May forced all of us to examine our attitudes toward institutional racism.

Protests around the country, from big cities like Portland to small towns like Astoria, are a potential turning point. White people who live in communities with very few Black, Hispanic or other people of color are confronting issues that for generations have been convenient to ignore.

One of the most difficult is that the police act on our behalf, using force derived from the governments we elect.

We have been fortunate on the North Coast that protests have been mostly peaceful.

In Portland, protests over the past several weeks have often spiraled into violence. Scenes of vandalism and looting, along with police overreach in attacking journalists and legal observers, have been shared across the United States.

The First Amendment of the U.S. Constitution gives people the right to peaceably assemble, but in nightly clashes downtown near the Multnomah County Justice Center and the Mark O. Hatfield U.S. Courthouse, demonstrators and police have struggled to find the line between protest and riot.

We trust Portland the people who live there, the police, the mayor and other city leaders can find that line.

Unfortunately, the Trump administrations misguided decision to deploy militarized federal agents has dragged the entire country into the streets of Portland.

Last week, a federal agent acting on our behalf, using force derived from the government we elected fired a less-lethal round at a protesters head, causing critical injuries. Oregon Public Broadcasting and other news media have reported that federal agents are patrolling in unmarked vans, snatching protesters who do not appear to be immediate threats to federal property.

The New York Times reported that federal agents on the ground in Portland were not specifically trained in riot control or mass demonstrations.

Oregon Attorney General Ellen Rosenblum filed a federal lawsuit to try to prevent federal agents from detaining protesters in Portland without identifying themselves or without probable cause or warrants. The lawsuit names the U.S. Department of Homeland Security, U.S. Customs and Border Protection, the U.S. Marshals Service and the Federal Protective Service.

The lawsuit alleges their tactics violate the First Amendment right to peacefully gather, the Fourth Amendment right against unreasonable seizures and the Fifth Amendment right to due process.

Citizens who are reasonably afraid of being picked up and shoved into unmarked vans possibly by federal officers, possibly by individuals opposed to the protests will feel compelled to stay away, for their own personal safety, and will therefore be unable to express themselves in the way that they have the right to do, the lawsuit states.

Portland Mayor Ted Wheeler and Gov. Kate Brown have made it clear the federal agents are not welcome. The federal elected officials who represent us U.S. Sen. Ron Wyden, U.S. Sen. Jeff Merkley and U.S. Rep. Suzanne Bonamici demanded the Trump administration remove the forces.

Wyden, in an op-ed for NBC News, faulted President Donald Trump. Not content with simply dropping squads of federal agents into my hometown to clash with peaceful protesters, as he first did in early July after signing an executive order to supposedly protect monuments from protesters, Trump and his acting secretary of Homeland Security, Chad Wolf, have now unleashed these agents like an occupying army complete with fatigues, military-style equipment and tactics that are utterly unacceptable in an American city.

These invaders are mounting this assault against my city on the flimsiest of justifications: While Acting Secretary Wolf rants about law and order, most of the incidents of violent anarchists he cites are actually graffiti, or low-level vandalism.

Portland was chosen as a stage for the Trump administration to make a political statement in an election year. But it would be a mistake to view what has been happening on the streets only through a partisan political lens.

Just like nearly everyone familiar with Floyds death saw the injustice, anyone looking at what federal agents have done in Portland should see the assault on our civil liberties.

They are acting on our behalf, using force derived from the government we elected. We should all demand that they stop.

See the article here:
Our View: We should demand that they stop - Daily Astorian

President Donald Trump suggested in aFox News Sundayinterviewthat he planned to act beyond his legal authority to implement sweepingchanges to immigration and health care policiesbased onan interpretation of a recent Supreme Court rulinggrantinghim "powers that nobody thought the president had."

Axios reportedthat the legally precariousstrategy,which cuts Congressout of the lawmaking process, relies on a theory of executive power floated in June by John Yoo, the George W. Bush administration lawyer who drafted the memo justifying the use of torture as an interrogation technique.

The first of the controversialorders will coverimmigration, per Axios. Trump told Fox News Sunday host Chris Wallace that he would also invoke the authority to create "a full and complete health care plan."

You heard me yesterday. We're signing a health care plan within two weeksa full and complete health care plan that the Supreme Court decision on DACA gave me the right to do. So we're going to solve we're going to sign an immigration plan, a health care planand various other plans. And nobody will have done what I'm doing in the next four weeks.

The Supreme Court gave the president of the United States powers that nobody thought the president hadby approving, by doing what they did their decision on DACA. And DACA's going to be taken care of also. But we're getting rid of it, because we're going to replace it with something much better. What we got rid of already, which was most of Obamacare the individual mandate. And that I've already won on. And we won also on the Supreme Court. But the decision by the Supreme Court on DACA allows me to do things on immigration, on health care, on other things that we've never done before. And you're going to find it to be a very exciting two weeks.

Yoo argued in a National Reviewarticle that a recent Supreme Court decision upholding the Obama-era Deferred Action for Childhood Arrivals (DACA)programempoweredthe president to bypass Congress through prosecutorial discretion: choosing not to enforce federal laws.

While the orders may be illegal, Trump would likely be able to run out the clock in the courts until Election Day, according to Yoo. Itwould also create legacy headaches for any successor, who would have to enforce the lawsunless and until the courts overturn them,Yoo claimed.

"SupposePresident Donald Trump decided to create a nationwide right to carry guns openly," Yoo wrote. "He could declare that he would not enforce federal firearms laws, and that a new 'Trump permit' would free any holder of state and local gun-control restrictions."

"Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency," he added. "And, moreover, even if courts declared the permit illegal, his successor would have to keep enforcing the program for another year or two."

"According to Chief Justice Roberts, the Constitution makes it easy for presidents to violate the law, but reversing such violations difficult especially for their successors," he concluded.

Yoo is most famousfor what has become known as the "torture memo," which justified the Bush administration's use ofwaterboarding via a constitutional reading called "the unitary executive theory."

As thetheory goes, in wartime a president can exercise virtually unlimited authority, which can only be checked by Congress'spending power.Because the "war on terror" might nothave a definitive end, the president wouldhave nearly dictatorial power in this realmfor the foreseeable future, including deploying federal troops for police actions and suspending the Fourth Amendment's ban on unreasonable searches and seizures.

Axios reported that Yoo's article has been spotted on Trump's desk, and the president had brought it up in meetings with aides.Yoo told the outletthat he had discussed the theory with White House aides in recent virtual meetings.

When Trump firstmentioned the plan, ina recent Telemundo interview, he drew fire from within the Republican tent.Not only would the orderinclude DACA, which the administrationjust spent years fighting to overturn,Trump claimed it would also createa path to citizenship, as well.

"I'm going to make DACA a part of it," said the president. "We're going to have a road to citizenship."

The White House immediately walked back that claim,which runs the risk of alienatingGOPimmigration hawks, as well asthe anti-immigrantbase which carried Trump through the 2016 primaries and general election.

"This does not include amnesty," White House spokesman Judd Deere said in a statement.

Fellow Republican Sen. Ted Cruz of Texas quickly tweeted that "it would be a HUGE mistake if Trump tries to illegally expand amnesty."

"There is ZERO constitutional authority for a President to create a 'road to citizenship"by executive fiat," hewrote.

At the same time, Trump saidhe would change over toa merit-basedimmigration system, as opposed to one based on family connections,something which anti-immigration hardliners like senior White House adviser StephenMillerhave wanted for years.

Under Trump's earlier "merit-based" proposal, immigrants would be selected through a point-based system, which scores for "extraordinary talent, professional and specialized vocations and exceptional academic track records." However, the Republican-led Senate was not on board.

In 2018, Trump offered apath to citizenship as a concession to get Congress to authorize $25 billion for hiswall along the Mexican border, but lawmakers balked. In 2019, the Democratic-ledHouse passed a bill which would allow Dreamers to apply for citizenship, but the Senate still has not voted on it. The White House said at the time that Trump would veto such a bill.

It was not immediately clear how Trump would craft such an executive order to create a health care plan. He made the "repeal and replace" of Obamacare a cornerstone of his 2016 campaign, but allefforts to secure enough Republican votes in Congress failed.

The rest is here:
Trump working with Bush torture lawyer to cut Congress out of lawmaking: report - Salon

One area of significant contention in the state senate's recently passed police reform bill was whether to limit "qualified immunity," a legal doctrine that protects police and other public employees from lawsuits.

Qualified immunity has been both a lightning rod in local and national police reform debates, and a source of confusion about what it actually entails.

We turn to Nancy Gertner, a retired federal judge, WBUR legal analyst and senior lecturer at Harvard Law School, on what qualified immunity is and why many law enforcement officials are trying to hold on to it.

On how the "qualified immunity" doctrine came about:

"The doctrine is a judge-made doctrine that came about in pretty much the late 1970s and early 1980s. And it was literally a concern that constitutional criminal law, in other words, the ways in which the Constitution limited or affected police behavior that it was unfair because of new developments in constitutional law, to have a police officer bound by those new developments. Famously, one judge said ... a cop on the beat shouldn't have to be reading the advance sheets (the ways in which people get notice of opinions). And it was really phrased in terms of a police officer could not anticipate legal developments. It was focused in on the big and new constitutional changes that were going on after the Warren Court and said, 'How could a police officer know about those kinds of changes?' But over time, it has evolved into something really quite a bit different. It's not just saying a police officer couldn't have known what the Supreme Court decided yesterday about the Fourth Amendment, but it has come to be that the police officer, for him to be held liable, there had to have been an existing precedent on the specific fact in question."

"Let me give you an example: There was a case of a SWAT team that fired tear gas grenades into a house carrying someone they wanted to arrest. That person wasn't there. That caused considerable damage. The Court of Appeals said, 'Well, there's no qualified immunity because there was no precedent involving tear gas and houses.' Now, there was precedent about the scope of searches, etc., but there was no specific precedent that dealt with ... tear gas going into a house, or a case of ... a police officer [who] shot a dog trying to apprehend someone in a backyard, and wound up shooting a young girl. And the court literally said that the child's right not to be accidentally shot in the leg is not clearly established. So [what] I'm saying is, over time this became not 'How could a police officer have known, you know, the latest constitutional issue,' but ... a police officer gets excused if there was not an existing precedent involving the facts that are in his case. Well, there never is an existing precedent involving those specific facts."

On why it's front and center in the current police reform debate:

"Well, what happens is that the 'immunity' entitles a judge to dismiss the case without it ever getting to a jury. While a jury ... might get the issue of what comprises excessive force or what comprises an unfair search, qualified immunity entitles a police officer who's being sued to move to dismiss, and the case is then gone. And it's gone in a way that is particularly troubling. The judge is supposed to decide, or at one point was supposed to decide, was the plaintiff's rights violated? And then the second question is, was the law clearly established? Over time, and because of the Supreme Court, judges no longer ... answer the first question: whether someone's rights were violated. So that meant the law is not ever going to be established even going forward, because case after case was saying, essentially, 'I don'tknow whether [the police officer] did anything wrong, but it wasn't clearly established.' "

On how qualified immunity plays out in lawsuits against law enforcement today:

"The notion that a police officer who does something that comprises a crime will be punished and go to jail is true, although we recognize that that doesn't happen very often, as we saw in the George Floyd case [with criminal charges]. But we're not talking about criminal prosecution here, because that, to some degree, is the most extreme example of wrongful conduct. We're talking about a civil suit, if someone violated your constitutional rights. It may not comprise a crime, but it was essentially violating your constitutional rights. ... [The police officer] did something wrong, he went outside the boundaries of what the Constitution allows. To say that people can sue, yeah, you can sue and it will be dismissed if it doesn't fit [these], in my view, absurd requirements. So it'll be dismissed. ... This is like constitutional malpractice. It's as if saying the only way you can deal with a doctor that left his instruments in your body after the surgery is if it's a crime. Well, we're not talking crime. We're talking about civil damages for violation of a constitutional right. So the fact that people can be sent to jail doesn't control conduct. What controls conduct is lawsuits."

On the argument that eliminating qualified immunity will put undue financial and civil risk on law enforcement, curb their behaviors, and make them overly cautious:

"It is a false argument. Ninety-nine point eight percent of cases that are brought I've looked this up of constitutional claims against police officers are paid for by the government or even sometimes the union. In other words, the municipality or the state will pay whatever damages are assigned to the police officer. So there is really no financial penalty at all. And what you're talking about is having a range of conduct that may well be wrong, that is broader than the range of conduct that we allow now, and allowing those cases to go to go to trial before a jury. So it's really not an impediment to the police at all, any more than malpractice since actions against doctors keep doctors from doing surgery. Good doctors do not have a problem [with that]."

On if the end of qualified immunity could affect police officers decisions:

"That's really the usual kind of scare tactics that the police use whenever there are efforts to curb their power. The fact that those who are engaged in malpractice like a doctor or a lawyer can be sued for it and wind up with damages against them, doesn't stop people to being doctors or lawyers. It makes them exercise more care. And that's exactly what we're trying to do. So that's just simply absurd. If they think twice before they violate someone's constitutional rights, rather than, as Justice Sotomayor just said in a case where she dissented, she says, with qualified immunity ... it's the wrong signal: shoot first and think later, and count on being exonerated."

Read more:
Understanding 'Qualified Immunity' And Its Place In The Police Reform Debate - WBUR

The following is from Full Measure with Sharyl Attkisson. Watch the story by clicking the link at the end.

If you think youre hearing more accounts than ever about improper government intrusion into our lives, youre a lot like author and journalist David Kirby. He researched that for new book When They Come For You: How Police and Government Are Trampling Our Liberties - and How to Take Them Back.

Sharyl: When you say, "When They Come for You," who is the "They"?

Kirby: The "they" can be anything from a local social service's agent in your community, to the president of the United States. This goes on at the state, federal and local level. It goes on in red states and blue states, rich states, and poor states, big cities, and small towns. I found violations of the Fourth Amendment, the First Amendment, freedom of speech, people having their homes raided without a warrant. People having their cars taken away from them because they were suspected of a crime even though they didn't commit a crime. People in debtor's prison because they can't pay their court fees and fines, and of course child protective services that come in the middle of the night, and just yank your kid away.

Sharyl: Do you think there's been an escalation in events like this, or are we just able to find them, and notice them more?

Kirby: Its a very good question. There's not a lot of hard data unfortunately. There is more monitoring. Social media, people have cameras with them everywhere so it's more noticeable. But I do think it is getting worse. I think particularly with surveillance, with the First Amendment, with freedom of the press, freedom of protesters. I think it started after 911, the PATRIOT Act. It got worse under Obama, as you well know, with surveillance of the media. Now I think it's getting even worse, particularly cracking down on protesters, spying on protesters, and doing things like threatening to sue media outlets for libel, or wanting to change the libel laws.

Sharyl: Many Americans say, "I obey the law. If the government wants to surveil me, look at my computer, I don't really care." Is there a counterpoint to that?

Kirby: I mean that's the Fourth Amendment. It's the most threatened amendment in our country, I think, after the First Amendment, which is a close second. But we need to protect those protections for everybody, and once you just acquiesce and say, "Well, it's okay if they're listening in on my phone call," then the door starts opening wider and wider.

Sharyl: Is it fair to say you consider yourself a liberal, or a liberal Democrat?

Kirby: Im a lefty. Yes. Left of center.

Sharyl: Do you notice any division? Is one party or the other better or worse at any of this?

Kirby: Theyre both bad to be honest. I can pick apart, and my book does, and I'm equally critical of the Obama Administration as the Trump Administration. A lot of my stories take place in blue states.

Sharyl: But what do you attribute that to, if there isn't even an ideological divide into where this happens?

Kirby: Well, I think when you talk about ideology, I think people on the far left and on the far right are actually a lot more united over these issues than they realize. People on the left don't like government intrusion any more than anybody else does. It is more of a libertarian point of view. I call myself a lefty libertarian, which sounds oxymoronic, but I figured it out. I would say people like Rand Paul is certainly bringing these things up once in a while. He has sponsored some bills in Congress. They go absolutely nowhere. He does get Democratic cosponsors. There are people, progressives, who are interested in reforming these issues, and reigning in the government. But like I said, it goes nowhere.

Sharyl: What would you say is the takeaway message you would like people to walk away from reading your book with?

Kirby: Know your Bill of Rights. Read them, study them, know what protections you are offered under them in case you ever need to use them, and if you are concerned about these things, it's up to us. These are our personal freedoms, and they are under attack.

A new report from Pew Research Center says a majority of Americans, 64%, are concerned about how much data is collected about them by the government online.

Click the link below to watch the story:

http://fullmeasure.news/news/politics/when-they-come-for-you

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When they come for you - Sharyl Attkisson

A breakdown of the lawsuit against federal agencies over their protest response

by: Sheridan Kowta, KOIN 6 News Staff

PORTLAND, Ore. (KOIN) Oregon Attorney General Ellen Rosenblum filed a lawsuit Friday against federal law enforcement agencies over the tactics they have used at protests while deployed in Portland, which includes allegedly seizing and detaining protesters without probable cause. On Sunday, she spoke with KOIN 6 News about the demands of the lawsuit and how she believes federal officers are escalating the violence.

I think every American needs to be concerned about whats happening here in Portland. These federal agencies are operating with no transparency and against the will of just about every leader in our state, Rosenblum said. We took a look at this because things seemed, by Friday morning, not to be improving.

Part of the lawsuit includes a request for declarations that the tactics used by federal agents are in violation of both the First Amendment and the Fourth Amendment.

We are asking that there be a declaration that their conduct, that their tactics are in violation of the First Amendment: peoples rights to protest, peoples rights to be on the streets, to be declaring their opposition to police brutality, to racial injustices, said Rosenblum. And so, that is what is known as a prior restraint on a persons right to conduct themselves publicly in this manner under the First Amendment.

Rosenblum referenced unreasonable seizures in instances where people were allegedly grabbed off the street and put in unmarked rental carsa story first published by Oregon Public Broadcasting.

These are not people who are being found to be engaging in illegal conduct at the time that they are grabbed. In fact, one young man was just simply walking home after the protestMr. Pettibone, whose affidavit is included in our complaint that we filed, said Rosenblum.

She said the lawsuit specifically asks for a ruling from the court that permanently restrains federal officers from engaging in these tactics and requires them to do three things:

Not to arrest individuals without probable cause or a warrant; identifying themselves and their agency before detaining or arresting anyone; explaining to any person detained or arrested that the person is being detained or arrested and the basis for the action, Rosenblum said.

This is a very straight-forward lawsuit, she said.

It was filed Friday night, and her office also plans to file a motion for a temporary restraining order in the coming days.

We believe strongly that the deployment of federal law enforcement in Portland has nothing to do with public safety and in fact, is actually escalating the dangerous situation here in our town and we wanted to do something to try to help, said Rosenblum.

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AG Rosenblum: Feds operating with no transparency - KOIN.com

In Philip K. Dicks novel Ubik, the sci-fi legend warned the world of the dangers of inanimate objects that could violate our privacy.[1] In a virtual nod to Ubik and Dick, the Fifth Circuit Court of Appeals ruled the privacy protections of the Fourth Amendment to the U.S. Constitution do not apply to records of Bitcoin transactions held by a major digital asset trading platform. Faced with the novel question of whether an individual has a Fourth Amendment privacy interest in the records of their Bitcoin transactions, the Fifth Circuit, in United States v. Gratkowski, found that Bitcoin data akin to bank records does not have a constitutional right to privacy or unreasonable search.

In United States v. Gratkowski, federal agents analyzed the publicly viewable Bitcoin blockchain and subpoenaed a leading digital asset trading platform for all information on the customers of the trading platform whose accounts had sent Bitcoin to a child-pornography website. In response to the subpoena, the trading platform identified Gratkowski as one of these customers. Federal agents then obtained a search warrant for Gratkowkis house, which resulted in the discovery of child pornography in his possession.

Generally, a person must have a reasonable expectation of privacy in an item for Fourth Amendment protections to attach.[2] Under the third-party doctrine, a person generally has no legitimate expectation of privacy in information he voluntarily turns over to third parties.[3] Gratkowski argued that his Bitcoin information should receive the same protections as those set out in Carpenter v. United States, which expanded Fourth Amendment protections by limiting the applicability of the third-party doctrine in the context of cell phones.[4]

Relying on the United States Supreme Courts ruling in Carpenter,[5] which limited the applicability of the third-party doctrine in the context of cell phones, Gratkowski claimed that the federal agents infringed upon his Fourth Amendment protection against unreasonable searches. Gratkowski argued the Government violated his reasonable expectation of privacy in the records of his Bitcoin transactions recorded on the Bitcoin blockchain that were executed at the crypto trading platform.

The Fifth Circuit, affirmed the decision of the district court, rejected Gratkowskis argument, and concluded the information on the Bitcoin blockchain is analogous to bank records which are subject to the third-party doctrine and not protected under the Fourth Amendment. The court reasoned that like bank records, the Bitcoin blockchain identifies (1) the amount of Bitcoin transferred, (2) the Bitcoin address of the sending party, and (3) the Bitcoin address of the receiving party. The court also opined that since every Bitcoin user has access to the public Bitcoin blockchain which is a not a permission based distributed ledger technology and can see every Bitcoin address and its respective transfers, Bitcoin users are unlikely to expect that this information will be kept private.

The Fifth Circuit also held the records at the digital asset trading platform were akin to bank records, finding no reason for treating these records and records at other trading platforms any differently than traditional banks. The court reasoned the trading platform and traditional banks both are subject to the Bank Secrecy Act (BSA) as regulated financial institutions, whose records provide only limited information about a persons virtual currency transactions. The court also suggested that Bitcoin users have the option to maintain a higher level of privacy by transacting without a third-party intermediary exchange, albeit this would require greater technical expertise.

Despite the fact that Bitcoin users enjoy a greater degree of privacy than those who use other money-transfer means, transaction information under this ruling is not protected under the Fourth Amendment. It is unclear how the Fifth Circuit would have ruled if the defendants data had been stored in a permissioned blockchain. However, the determination of the court that a digital asset trading platform is deemed a financial institution, does not bode well for the argument that digital assets stored on a permissioned blockchain will be protected by the Fourth Amendment.

The Fifth Circuits conclusion that the records of crypto currency trading platforms are not protected by the Fourth Amendment because the trading platform is a regulated financial institution could also possibly open the door to the argument that records maintained by digital asset trading platforms are subject to the protections of the federal Right to Financial Privacy Act of 1978 (RFPA).[6] Subject to certain limitations such as national security subpoenas, RFPA requires federal government officials to follow certain procedures when seeking customer financial information from a financial institution. RFPA also requires financial institutions to take a number of steps before releasing the information. The customer must receive a written notice of the governments desire to obtain the records, the customer must be told why the records are being requested, and the customer must told the steps they can take to protect the information. RFPA includes a number of exceptions to when the customer must be given notice and places restrictions on a customers ability to prevent the information from being released.

If digital asset trading platforms are deemed financial institutions by virtue of being subject to the BSA, the records of clients at such institutions may be subject to the protections of RFPA discussed above.

[1] Philip K. Dick, Ubik (196); see also April Glaser, Philip K. Dick Warned Us About the Internet of Things in 1969, Slate (Feb. 10, 2015), available at: https://slate.com/technology/2015/02/philip-k-dick-s-1969-novel-ubik-on-the-internet-of-things.html.

[2] United States v. Jones, 565 U.S. 400, 406 (2012)

[3] Smith v. Maryland, 442 U.S. 735, 74344 (1979)

[4] 138 S. Ct. 2206 (2018),

[5] Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018)

[6] 12 U.S.C. ch. 35, 3401 et seq.

Originally posted here:
United States v. Gratkowski Beware of Inanimate Objects That Violate Your Privacy - JD Supra

A protester wearing a mask holds a large black power raised fist in the middle of the crowd that gathered at Columbus Circle.

Ira L. Black | Getty Images

Members of George Floyd's family filed a lawsuit in federal court Wednesday against the city of Minneapolis and the four police officers involved in his fatal arrest in May.

The suit, filed in U.S. District Court for the District of Minnesota, alleges that the officers violated Floyd's constitutional rights. It claims that the city "caused officers [to] act with impunity and without fear of retribution" and failed to properly train police.

The family is seeking unspecified financial damages in addition to the appointment of a "receiver or similar authority" to ensure that the city "properly trains and supervises its police officers."

Video of Floyd's Memorial Day arrest shows former Minneapolis police officerDerek Chauvin, who is white, kneeling on Floyd's neck while Floyd, who was Black, cries out that he cannot breathe. According to charging documents, Chauvinheld his knee on Floyd's neck for about eight minutes.

Floyd's death while in police custody sparked weeks of protests against police violence around the globe.

Ben Crump, an attorney for the family, said at a press conference announcing the lawsuit that the case was "unprecedented."

"With this lawsuit, we seek to set a precedent to make it financially prohibitive" for police to "wrongfully kill marginalized people, especially Black people, in the future," Crump said.

"The city of Minneapolis has a history of policies and procedures and deliberate indifference when it comes to the treatment of arrestees, especially Black men, that cries out for training and discipline," he said.

The four officers involved in Floyd's arrest are facing charges, and Minnesota is pursuing an investigation into the "policies, procedures, and practices" of the Minneapolis Police Department over the past decade.A separate federal investigation into the arrest is also underway.

The suit names Chauvin as well as the other former officers involved in the arrest, Tou Thao, Thomas Lane and J. Alexander Kueng. The lawsuit claims that Chauvin's actions were unreasonable and that each of the other former officers had a duty to intervene to stop him.

"Every reasonable officer would have known that using force against a compliant, handcuffed individual who is not resisting arrest constitutes excessive force in violation of the Fourth Amendment," the suit says. The suit also alleges that each of the former officers "had a duty to intervene on behalf of a citizen whose constitutional rights were being violated in their presence by another officer."

Chauvin has been charged withsecond-degree murder and second-degree manslaughter. The other former officers were charged with aiding and abetting second-degree murder and second-degree manslaughter. All four were fired from the police department.

The suit claims that Minneapolis "frequently fails to terminate or discipline officers who demonstrate patterns of misconduct." It alleges that the Minneapolis Police Department "has observed unlawful or otherwise improper conduct by Chauvin throughout his career but has tolerated it and refused to remedy or mitigate it."

The suit says that the Minneapolis Police Department characterized neck restraints as "non-deadly" force "and did not warn it can cause death" from 2012 until June.

"Training materials offered to officers in 2014, including Defendants Chauvin and Thao, depict an officer placing a knee on the neck of an arrestee who is handcuffed in a prone position," the suit says.

Attorneys for the former officers either declined to comment or did not respond to requests for comment. A judge last week imposed a gag order barring the attorneys from discussing the cases against the officers with the media.

Minneapolis interim City Attorney Erik Nilsson said in a statement that the city was reviewing the lawsuit and that Floyd's death was a "tragedy."

"Criminal charges are pending against four Minneapolis police officers and it's very important that the criminal case proceed without interference," Nilsson said.

More:
Family of George Floyd files lawsuit against city of Minneapolis and 4 former police officers - CNBC

The latest order by Michigan Governor Gretchen Whitmer leaves staff and business owners in a tough position.

Whitmer's newest order requires businesses to refuse entry to anyone not wearing masks, unless they are under five years old or have a medical condition. It's up to the business to enforce the rule

Pete's Garage has been operating in Monroe, Michigan for more than 40 years. The well-known restaurant, whose owners also run Michigan Bar & Grille, published a Facebook post that is taking heat online, even after being altered multiple times.

The restaurants original post stated:

IF YOU HAVE A MEDICAL CONDITION THAT PREVENTS YOU FROM WEARING A MASK, YOU DONT NEED TO WEAR ONE

IF YOU ARE NOT WEARING ONE, WE WILL ASSUME THIS IS THE CASE. DUE TO HIPPA, AND THE FOURTH AMENDMENT, WE WILL NOT ASK YOU ABOUT YOUR CONDITION.

The restaurant has signs posted on the door for their new guidelines, which also include touchless URL menus on tables, seating 6-feet apart, and parties required to be less than 10 people.

Manager Brittany Van Riper says when it comes to medical conditions that may exempt a customer from wearing a mask, Theres no way of really telling, thats at the trust of our customers and the trust of our staff.

Michigan businesses failing to require masks could face a misdemeanor, a $500 fine, and possibly losing their license.

In Toledo, the Ottawa Tavern and other restaurants on Adams Street took a different approach, with their new slogan: "Mask on your face until your butt is in place."

Ottawa Tavern owner Zack Jacobs says he came up with the phrase. Jacobs says the new signage and blanket policies make the dining experience safer for staff and customers.

Face masks are also offered at the door, costing a dollar.

The official policy of all bars on Adams Street: Mask on your face til your butt is in place!

If you are a person who is compromised and unable to wear a face mask, then maybe going out in public during a pandemic isnt the wisest move for you to begin with, Jacobs said. Consider your own health and safety and making your own good choices for your health and safety before you step out into a local business thats just trying to stay open and serve our customers in a safe way.

Original post:
Local restaurants making their own policies on masks - 13abc Action News

Take a drive throughout the town of Weed and youll surely come across odd looking cameras topped with a blinking blue light. Theyre primarily intended for traffic monitoring, one city employee told me. But their pervasiveness without an accompanying city ordinance has gone on too long and the city risks jeopardizing its citizens civil liberties.

One of the more prominent of these cameras is mounted to a telephone pole on Main Street. From its vantage point, the main street camera is particularly concerning for its possible ability to surveil regular goers to the nearby dispensary, bar, and bank. Some months ago, a camera was mounted at the intersection of Broadway and Roseburg overlooking a historically African-American predominant residential area.

While the intention to monitor traffic is merited, there is an unfortunate propensity for these technologies to expand in their reach and scope. In San Diego, for example, the city council in 2016 sold the public on a new smart streetlight program. Armed with an array of sensors, the street lights feature wide angle cameras and the ability to upload collected data to a cloud storage database.

The City of San Diego applauded the smart street lights for their energy efficiency and future applications in regards to improving traffic, saying the lights would help City staff provide better services to our residents and increase efficiencies for City operations.

But, the mission creep settled in quickly. In 2019 reports surfaced that San Diegos contract with the streetlight vendor, General Electric, allowed unrestricted rights to the data gathered by the cameras and sensors, including the right to sell the data to third parties.

By early 2020, it was clear that the San Diego police were not even using the streetlights for the primary purpose of traffic control or monitoring, but instead were looking into alleged criminal activity. Then, in the wake of the Black Lives Matter protests in June of 2020, police used the cameras to investigate protestors. This type of surveillance can have a considerable chilling effect on First Amendment activity.

Though it is of course desirable for police to effectively utilize the tools at their disposal, this much is clear: with a poor regulatory regime, no oversight, and little transparency, the benign traffic monitoring cameras went above and beyond their explicitly stated purpose. And it does not help that some vendors specifically market their wares to city officials as enabling infrastructure by hosting third party sensors. Meaning, that other sensors and software can be incorporated later.

It would have been prudent for the City of Weed to have had a privacy policy in place prior to the acquisition of surveillance technology. For starters, there is virtually no transparency on the issue; information related to it is not readily available. A search of the words camera, surveillance, or privacy on the City of Weeds website returns no pages nor documents. Compare that with the gold standard set by the City of Oakland, which has its policies enshrined as a dedicated chapter in its municipal code.

Policy 378 of the Weed Police Department Policy Manual does have a section on a Public Safety Video Surveillance System. The policy deserves kudos for specifying that the cameras should be conspicuous, and that they will not record audio, but otherwise the policy is neglectful for its porous standards.

Proponents of the cameras might counter that these are only keeping an eye on the public thoroughfare; there is no expectation of privacy, and therefore it would not be a Fourth Amendment violation, per se. But as the California State Auditor once noted, [The United States Supreme Court] has decided cases involving other electronic surveillance [...] the court has found that certain electronic data that reveal individuals movements over an extended period of time, if gathered, do at some point impinge on privacy.

Even in public, there still needs to be a concern over surveillance.

Furthermore, there is nothing stopping the Weed Police Department (WPD) from acquiring more invasive technology. Policy 378.3.3 says it can integrate its video surveillance equipment with gunshot detection, incident mapping, crime analysis, license plate recognition, facial recognition and other video-based analytical systems may be considered based upon availability and the nature of department strategy.

Not only has gunshot detection, facial recognition, predictive policing, and license plate recognition systems come under fire for being flawed and having negative impacts on civil liberties, but in the WPDs response to an inquiry from the California State Auditor, WPD said that there are no plans to use an automated license plate recognition system. If this is the case, then why do they need a surveillance system capable of doing so?

The video retention policies stand out as another big risk. Absent of being used in litigation, Policy 378.5 says that the retention schedule [is] a minimum of one year. However, the media is seemingly not regularly cleared automatically after that time as the city attorney needs to explicitly sign off before the video can be deleted.

This is not to say that the City of Weeds efforts up to this point have been in bad faith. Rather, given that the city now has these technologies at their disposal, it is imperative that guidelines are made now to prevent future abuse. Without specific policies there is no guarantee that the civil liberties of the residents are being respected. The genie must be kept in its bottle. An ordinance requiring city council approval for the acquisition of surveillance technology and mandated standards is needed.

Jonathan Hofer was born and raised in Weed. He is a former political science researcher at the University of California, Berkeley and currently works as a research associate at an Oakland based public policy think tank working on municipal surveillance and the impact of emerging technologies on civil liberties.

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OPINION: Weed should regulate its surveillance - News - Mount Shasta Herald