Category Archives: Fourth Amendment

If you are unfortunate enough to be pulled over for suspicion of being under the influence of alcohol or drugs, are you required to submit to a breath or blood test? What if you refuse? Read People v. Peter Balov.

SUSPECTED DRUNK DRIVING

After Peter Balov was arrested for suspected drunk driving, the arresting officer advised him that per California law he is required to submit to a chemical test, either a breath or a blood test.

Understanding he had to take a test, Balov chose a blood test, which showed a blood alcohol level above the legal limit.

Balov argued the results of the blood test should be suppressed in court, arguing his consent was invalid because the officer had not explained the consequences of refusing breath or blood testing as required by Vehicle Code section 23612. That section requires a driver to be told that his or her failure to submit to a test will result in a fine and loss of their drivers license.

CALIFORNIAS IMPLIED CONSENT

A blood draw is a search subject to the Fourth Amendment requiring a search warrant or the drivers voluntary consent to be searched.

To address that dilemma and prevent every driver from refusing to be tested, section 23612 provides that A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood That is the so-called implied consent law. By driving on Californias roads, you consent to be tested if you are lawfully arrested for drunk driving.

LOSS OF LICENSE

NOT EXPLAINED

Most importantly for Balov, section 23612, as noted, also requires that the driver be told that his or her failure to submit to a test will result in a fine, loss of drivers license (one year for first conviction) and mandatory imprisonment if convicted of driving under the influence. The gist of this case is that Balov was not informed of those consequences, he was merely told that he must take a test, either blood or breath.

Is Balov entitled to have the results of his blood test thrown out because he was not told of the consequences of refusing to be tested?

For example, if he had known of the consequences of refusing a test, Balov might have refused to take a test figuring his odds of convincing a jury that he was not driving under the influence would improve if the blood test was not entered into evidence.

COURT RULING

The Fourth District Court of Appeal upheld the trial courts finding that the officer correctly told Balov he was required to submit to a breath or blood test, and while the statement was incomplete because Balov was not informed of the consequences of his refusal, the officer did not intend to deceive Balov. To be honest, I find whether the officer intended to deceive Balov irrelevant. He did not tell him of the consequences of refusing to take one of the tests which the law required.

Balovs conviction of driving under the influence is upheld as he did not object to taking a test, even though the officer did not inform him of the consequences of refusing a test required.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jims practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.

See more here:
Law Review: Police fail to inform drunk driver of loss of license for refusing blood test - Sierra Sun

A federal appeals court ruled yesterday that Boston police officers did nothing wrong when they walked through an open door into a boisterous party at East 6th and O streets on St. Patrick's Day in 2013 in response to a noise complaint - and wound up arresting several partygoers after a shoving match broke out.

The decision overturns a lower-court ruling that Boston police officers Harry Jean, Keith Kaplan and Daran Edwards, who initially walked into Christopher Castagna's apartment should not have done so - and means the Castagna and his brother Gavin won't get the settlement ordered by that judge: $1.

At issue was whether three officers - the Castagnas initially sued some 20 officers, but the suits against most were dismissed - should have just walked into Christopher Castagna's apartment without a warrant or his permission after responding to a noise complaint, spotting one seemingly underage lad come outside whirl around and vomit and seeing other apparent pre-21ers through a window. Castagna was not in a position to grant permission since he was, according to the court's summary of the case - in a rear bedroom, drinking and possibly toking up, while his guests grooved to the loud music in the living room, which made it impossible for him to hear the cops shouting "Boston Police!" as they approached and then entered his open apartment door.

In its ruling, the US Court of Appeals for the First Circuit said that the officers were protected by "qualified immunity" - basically, they were doing their job, and more specifically by a "community caretaking" exception to the Fourth Amendment that lets police take certain actions to safeguard the public even in the absence of the sort of serious crime that is normally required for warrantless searches - in this case, the loud music blaring from the apartment and the apparent presence of several underage drinkers, at least one of them literally sick to his stomach.

According to the court summary of the case, Boston officers arrived at East 6th and O shortly after 7:30 p.m. on March 17, 2013 - roughly 90 minutes after somebody called 911 to complain about a loud party.

By early evening, many of the guests at the Castagnas' party were intoxicated. Different guests estimated that they drank "between [twelve] and [fifteen] beers," eleven to thirteen beers, "ten beers," and "seven or eight beers" that day, respectively. ...

Jean arrived slightly after his fellow officers. He also heard music, saw that the front door was open, and noticed through the window that the people inside were drinking. He, too, believed that some of the guests were underage. As he approached the apartment, Jean "saw a young male come stumbling outside" onto the public sidewalk. Jean testified that the young man "walked around like -- you know, like a circle or half-circle, and then he hurled over, vomiting, and he did that twice. And then he stumbled back into the address that we were looking at."

Kaplan reached the apartment door and yelled "hello" several times and then "Boston Police." No one answered. According to Kaplan, "[w]hen no one answered, we kind of walked in."

At that point, none of the officers were intending to arrest anyone at the party, for underage drinking or any other crime. Kaplan explained that this response was in line with the police department's normal practice for responding to noise complaints: "Typically, we would just knock on the door, try to see who the owners are and tenants and have them turn the music down, shut the doors, keep the windows up and keep everything inside." Indeed, several of the officers did not have their handcuffs on them, which would have been necessary to make an arrest, explaining that they left them behind to lighten their load during a long day walking the parade route.

The officers explained at trial that there were two reasons for entering the home that evening: (1) to respond to the noise complaint by finding the homeowners and having them lower the volume of their music and (2) to make sure that any underage drinkers were safe, including the young-looking man who had vomited outside the home and returned inside.

The guests were in the middle of a dance competition when the police entered through the open door, and they did not immediately respond. Eventually, when they noticed the officers, the guests turned off the music. Kaplan explained that there had been a complaint of underage drinking and asked for the homeowners. There was a lull in which no one answered. Eventually some of the guests told the police that the owner's name was "Chris," but he was not in the room and was "in the back or the bathroom or something to that effect." Jean and another officer went to look for Christopher while the others stayed in the kitchen with most of the guests. ...

The court continued that the officers eventually found the Castagnas in a rear bedroom, that Christopher Castagna opened the door but that when he saw one of the cops eyeing some pot in the room, he tried to slam the door shut, only the officer's foot was right there, preventing him from closing the door all the way.

In the bedroom, Christopher shoved Jean a second time and the conflict between the officers and the party guests escalated. Other officers were called as back-up. Eventually, several of the guests and both brothers were arrested on various charges.

The brothers eventually sued all the cops who responded in federal court, on a variety of charges, including false imprisonment, assault and battery and malicious prosecution - and violation of their Fourth Amendment rights against unlawful entry and their First Amendment rights.

The case came to trial in 2018. The judge declined to tell the jury about the "community caretaking" exception to the Fourth Amendment, but the jury found for the officers under the "exigent circumstances" exception, which is the one normally used for serious criminal activities - that the officers had probable cause to know they had to act immediately to stop something serious.

The Castagnas' attorney filed for a new trial, calling the entry into the apartment and then Christopher Castagna's bedroom "a miscarriage of justice." Instead of a new trial, however, the judge amended the decision to find that the three specific officers were, in fact, guilty of "unlawful entry" because they had neither a warrant nor Christopher Castagna's permission to enter the apartment.

The court awarded the two brothers one dollar in nominal damages from each of the three officers. The court did not disturb any of the other jury verdicts.

The officers then appealed. In its ruling, the appeals court allowed as how there is some ambiguity about community caretaking - in fact, the appeals court did not directly address it until a case after the officers' trial - but not so much that the trial judge, Indira Talwani, shouldn't have told the jury about it:

The officers' entry into the home was in fact constitutional under the community caretaking exception and it was not clearly established at the time of their entry that the community caretaking exception would not give them an immunity defense.

The court continued:

Here, the function being performed by Edwards, Jean, and Kaplan was a community caretaking one. When the officers arrived at the scene, they saw intoxicated guests who appeared to be underage entering and exiting a party freely through an open door. Jean saw a guest that looked underage leave the house, throw up twice outside, and then reenter the apartment. The party was loud enough to be heard from the street. In their efforts to have the music turned down and make sure any underage guests were safe, they were aiding people who were potentially in distress, preventing hazards from materializing, and protecting community safety. ...

The officers acted reasonably. The officers had an implicit invitation to go up on the porch and knock on the apartment's door. See Florida v. Jardines, 569 U.S. 1, 8 (2013). The officers did not enter the home until announcing themselves and failing to get the guests' attention. They needed to get the attention of the homeowner because he is the person ultimately responsible for the impact of the party on the neighborhood. Because they were responding to a 911 call reporting a noise complaint, the officers knew that people in the neighborhood were disturbed by the party. In addition, underage drinkers pose a safety risk. This is especially true on a holiday known for drinking and one that requires extra police officers to be deployed throughout the city.

Given the open front door, the people coming in and out of that open door at will, the evident lack of supervision by the owner of who entered, and the owner's failure to respond, any expectation of privacy was greatly diminished. It was objectively reasonable for an officer to have on-going concerns about noise complaints and underage drinking and determine that they might be easily resolved by entering through an open door (the same one the guests were coming and going through freely) to bring these complaints to the owner's attention.

See the rest here:
Ain't no party like a South Boston St. Patrick's party, cuz it don't stop, no, it don't stop - at least until the cops show up, and sometimes not even...

As most of us look to avoid Zoom Bombings, whether by some hacker with a hoodie on the Web or your dog or cat wanting your attention, the challenges of working from home are perhaps the greatest obstacles that the vast majority of Americans face as we navigate the COVID-19 pandemic. These concepts bring to light the idea of how safe we are on these electronic devices in terms of our privacy, both at a personal level and for corporations and their clients. As the U.S. Senate considers a new piece of legislation called the EARN IT Act, many are concerned the bill would kill end-to-end encryption, an element of technology that allows for private communication. This concern comes at a time when staying at home is the only option.

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For one company in the blockchain industry, remote working is nothing new - prior to, during, and after COVID-19, all employees at this company have always worked remotely. In speaking with Corey Petty, Chief Security Officer of Status, a company offering an open-source Ethereum-based app that includes a private chat messenger, crypto-wallet and Web 3 browser, I learned some important lessons on how to work from home as an organization and as an individual. Additionally, I was able to understand the importance of end-to-end encryption and the backlash against new legislation in Congress that may force companies to stop using this type of cryptography.

In discussing the keys to success in remote working, Petty commented, It starts with understanding communication within the organization and using the available tooling that are online today...Especially for a company like status, where we are distributed across the globe, time zones become increasingly a part of that communication overhead and dealing with asynchronous communication has to be something that you are used to. Its establishing a digital workplace.

It must be hard if you are used to just asking a friend or colleague to come over and ask a quick question, and Petty notes establishing a digital workplace is really hard to do depending on how a company is set up and can be unique to the individual processes businesses go through. Leadership is key, and Petty notes, Having a very good COO who knows what they are doing and how to communicate is pivotal...[a company] has to have the ability to adapt and change how they operate very quickly or they are not going to be able to survive.

He notes it is important to manage the work-life balance as well and separate yourself from your work and living space. Additionally, organizational time management such as setting up regular meetings with the groups you need to be talking to and using all available videoconferencing applications for that type of thing is critical so that as an individual, you have a better idea of how to organize your time and get work done. However, dont ask Petty to talk to him in a Zoom chat. Based on his expertise in security, this is something that he notes, I would not use Zoom. Petty also does note that with companies like Status, this is really easy because they do not make physical products. Most of what we do is software development or protocol development so the digital aspect of our company is almost 100% whereas a lot of companies who dont have that opportunity need to be creative on who they can send home and who they cant and organize those processes accordingly.

Policy Of Ending End-To-End Encryption Policy In the United States

In terms of surviving, Status as well as other blockchain companies who see encryption as essential not only to their business models, but also on the principles of maintaining anonymity and privacy in a digital workplace, concerns of new legislation in the Senate has them concerned. The EARN IT Act, introduced by the Chair of the Senate Judiciary Committee, Senator Lindsey Graham (R-SC), stands for earning immunity that would end internet platforms such as Facebook or Twitter from having automatic immunity from lawsuits with respect to what is posted on their platform.

The bill makes an exception to the Communications Decency Act, which under Section 230 normally provides immunity, in cases of child sexual abuse, requires a list of best practices to be established by companies that a Commission headed up by the U.S. Attorney General would help oversee the development of.

Many organizations are not taking the proposal lightly and are pushing back. The Electronic Frontier Foundation stated that the EARN IT Act is unconstitutional and violates our First and Fourth Amendment rights. The EFF is urging people to call their Senators to vote No on this legislation.

Petty said he ...sees the exception to Section 230 as an enforcement tool for whatever leverage the EARN IT Act provides, and quite frankly, an underhanded one. It essentially turns a voluntary list of best practices to be mandatory, for operating a tech company in the U.S. without the legal protections of Section 230 is infeasible.

Encryption probably faces its most challenging fight ever and blockchain companies should take heed, because with the Chair and Ranking Member of the Senate Judiciary Committee, along with 10 Co-Sponsors, voting to recommend the bills passage, combined with both the previous President and the current one actually agreeing on a topic, this bill may just be as strong in politics as end-to-end encryption is in technology. As former President Obama noted at a SXSW Conference in 2016, if the government cannot crack encryption, it is like everyone walking around with a Swiss bank account in their pocket.

Obama comments at SXSW in 2016 on encryption

Petty notes encryption is the last bastion of a strong defense and weakening encryption usually comes at the expense of the defender, not the attacker...The process of introducing backdoors and selective access to encryption schemes is not one that is not should be rushed...There is an overwhelming consensus that this is a wrong move to take and its moving in the wrong direction.

Although the verdict on end-to-end encryption is not out yet, one thing does appear certain: that decentralized companies from the blockchain space have a lot to offer in the way of offering protection for company security as well as tips for working from home.

Original post:
How Working Remote And Protecting Encryption Is Natural For This Blockchain Company - Forbes

It has long been too easy for police to stop motorists on the highway - even without sufficient reason to believe that the driver committed a crime. On April 6, the Supreme Court made such stops even easier, ruling 8 to 1 that police may pull over a vehicle because its owner's driver's license has been revoked - notwithstanding the fact that it's common for the driver of a car to be the owner's spouse, child, neighbor or friend.

The lopsided outcome of the case underscores the fact that liberal and conservative justices have colluded in diluting the Fourth Amendment's prohibition of "unreasonable searches and seizures." It's an invasion of privacy far beyond the inconvenience of being stopped. Once a car has been stopped, an officer can seize illegal drugs in the passenger compartment if they are in "plain view."

This ruling stems from an incident in 2016 in which a sheriff's deputy in Douglas County, Kan., spotted a pickup truck and decided to run the vehicle's license plate through a state registration database. The search turned up the information that Charles Glover Jr., the owner, had had his license revoked. The deputy stopped the truck, which Glover was driving. He was charged with being a "habitual violator" of traffic laws.

Glover challenged the stop on the grounds that the deputy lacked "reasonable suspicion" that he had committed a crime - a legal standard looser than the "probable cause" required for a search warrant. The Kansas Supreme Court agreed, holding that the deputy had stopped the truck on a "hunch" that the driver was also the owner (whose license had been revoked).

Writing for the majority, Justice Clarence Thomas said that the legal standard of "reasonable suspicion" must be interpreted in light of "common sense." Besides, he suggested - a point also made by Justice Elena Kagan in a concurring opinion - that things might be different if an officer stopped a vehicle owned by an elderly man knowing that the driver was a young woman.

But as Justice Sonia Sotomayor pointed out in her dissent: "The consequence of the majority's approach is to absolve officers from any responsibility to investigate the identity of a driver where feasible." Indeed, it gives police an incentive to be incurious about such details.

Most law enforcement officers are conscientious and respectful of constitutional rights. But too many abuse their power to stop cars - and pedestrians, as with New York City's infamous "stop-and-frisk" policy - on the basis of hunches or as part of a fishing expedition. The court has made it easier for them to misbehave.

Continued here:
Editorial: The US Supreme Court makes it easier for police to pull you over - Newsbug.info

Posted Wed, April 8th, 2020 9:50 am by Andrew Hamm

This week we highlight petitions pending before the Supreme Court that address, among other things, whether a local ordinance that discriminates against interstate commerce, and was enacted for a discriminatory purpose, must discriminate exclusively against nonresidents to be subject to heightened scrutiny under the dormant commerce clause; whether a claim for violation of a prisoner-patients 14th Amendment right to informed consent requires a showing of deliberate indifference and proof of refusal; and whether the defenses of qualified immunity or good faith allow a defendant who takes another persons money or property in violation of the Constitutionbut in reliance on a statute or court ruling that is later declared unconstitutionalto keep that money or property when the owner sues for its return.

Thepetitions of the weekare below the jump:

Center for Biological Diversity v. Wolf19-975Issue: Whether Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996which grants the secretary of the Department of Homeland Security unfettered discretion to waive all federal, and related state, local, and tribal laws, regulations and legal requirements, and sets forth no standards or criteria to apply in determining whether such waiver is necessary for expeditious border-wall constructionviolates the separation of powers, the nondelegation doctrine and the presentment clause of the Constitution.

Jessop v. City of Fresno, California19-1021Issue: Whether it is clearly established that the Fourth Amendment prohibits police officers from stealing property listed in a search warrant.

Rosenblatt v. City of Santa Monica, California19-1081Issues: (1) Whether a local ordinance that discriminates against interstate commerce, and was enacted for a discriminatory purpose, must additionally discriminate exclusively against nonresidents to be subject to heightened scrutiny under the dormant commerce clause; and (2) whether a local ordinance that purports to ban advertisements for interstate services made over the internet, and is enforced in that extraterritorial manner, can be saved from dormant commerce clause scrutiny based on an irrebuttable presumption that the legislature did not intend for the ordinance to apply in the extraterritorial manner in which the ordinance is being enforced.

Deasey v. Slater19-1085Issue: Whether, for purposes of qualified immunity, a merely sufficiently analogous case is enough to show that the law is clearly established, or whether something more is required, i.e., a closely analogous case finding the alleged violation unlawful.

Sharp v. Harris19-1105Issues: (1) Whether, in holding that the Oklahoma Court of Criminal Appeals made an unreasonable determination of the facts, the U.S. Court of Appeals for the 10th Circuit contravened the Supreme Courts repeated admonition that state-court decisions be given the benefit of the doubt, as inCullen v. PinholsterandWoodford v. Visciotti; and (2) whether the OCCA was objectively unreasonable in crediting the testimony of three experts who opined that the respondent, Jimmy Dean Harris, was not intellectually disabled and in not crediting the testimony of the one dissenting doctor, who has been censured, used an outdated test, made no assessment of adaptive functioning and disregarded the influence of factors he acknowledged could influence IQ test scores.

Sharp v. Smith19-1106Issues: (1) Whether the U.S. Court of Appeals for the 10th Circuit erred in concluding thatMoore v. Texas IandMoore v. Texas IIwere mere applications ofAtkins v. Virginiathat could be applied retroactively on collateral review, contrary toShoop v. Hilland the U.S. Court of Appeals for the 11th Circuit; (2) whether, in sua sponte holding that the Oklahoma Court of Criminal Appeals did not rule on the adaptive-functioning prong because its analysis was too cursory, the 10th Circuit violated the Supreme Courts precedent that forbids the imposition of opinion-writing standards,Johnson v. Williams; and (3) whether, reviewed de novo or with deference, the 10th Circuit erred in granting habeas relief on the respondent Roderick Smiths claim of adaptive-functioning deficits when Smiths only expert to opine on this prong improperly administered the adaptive-functioning assessment directly to Smith, contemporaneously administered other tests to Smith that showed malingering and relied on information that was disputed by other witnesses.

National Collegiate Athletic Association v. New Jersey Thoroughbred Horsemens Association19-1114Issues: (1) Whether a party was wrongfully enjoined underFederal Rule of Civil Procedure 65(c)when the district court confirmed via the grant of a permanent injunction that its entry of a temporary restraining order was correct under then-applicable law; and (2) whether a district court retains its full equitable discretion to deny recovery on a Rule 65(c) injunction bond.

Mooney v. Illinois Education Association19-1126Issues: (1) Whether42 U.S.C. 1983provides a good-faith defense to private entities who violate anothers constitutional rights before the courts have clearly established the illegality of their conduct; and (2) whether the defenses of qualified immunity or good faith allow a defendant who takes another persons money or property in violation of the Constitutionbut in reliance on a statute or court ruling that purported to authorize its conduct and is only later declared unconstitutionalto keep that money or property when the owner sues for its return.

Danielson v. Inslee19-1130Issues: (1) Whether42 U.S.C. 1983provides a good-faith defense to private entities who violate anothers constitutional rights before the courts have clearly established the illegality of their conduct; and (2) whether the defenses of qualified immunity or good faith allow a defendant who takes another persons money or property in violation of the Constitutionbut in reliance on a statute or court ruling that purported to authorize its conduct and is only later declared unconstitutionalto keep that money or property when the owner sues for its return.

Knight v. Grossman19-1138Issue: Whether a claim for violation of a prisoner-patients 14th Amendment right to informed consent requires a showing of deliberate indifference and proof of refusal or whether the approach adopted by a majority of circuits, which applies a balancing test weighing, on one hand, the states interests in providing for the basic needs of prisoners and, on the other hand, the prisoners right to such information as is reasonably necessary to make an informed decision to accept or reject proposed treatment as well as a reasonable explanation of the viable alternative treatments available, should control.

Posted in Center for Biological Diversity v. Wolf, Jessop v. City of Fresno, California, Rosenblatt v. City of Santa Monica, California, Deasey v. Slater, Sharp v. Harris, Sharp v. Smith, National Collegiate Athletic Association v. New Jersey Thoroughbred Horsemens Association, Mooney v. Illinois Education Association, Danielson v. Inslee, Knight v. Grossman, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week, SCOTUSblog (Apr. 8, 2020, 9:50 AM), https://www.scotusblog.com/2020/04/petitions-of-the-week-90/

Originally posted here:
Petitions of the week - SCOTUSblog

Today, April 10, is Good Friday, which means Sunday, April 12, is Easter Sunday.

Easter Sunday marks the day Jesus Christ arose from the grave, following his crucifixion. The crucifixion is marked with Good Friday.

Jesus Christ was sacrificed to take the punishment for the sins of the world. It is only through Him that one can enter the Kingdom of Heaven.

Traditionally, churches would be filled with their usually parishioners and a number of family members, guests, and occasional attendees. Due to the ongoing COVID-19 situation, groups of 10 or more are prohibited from gathering.

Pastor Ethan Book reminded Marion County during the Friday afternoon press conference that there have been many times in human history when it has been difficult for people to gather to express their faith. He is thankful for the technology which has enabled many to be with their church families in some way.

We can still worship together, he said. Everyone should plug into services this weekend in some way.

It is troubling that houses of worship can be considered non-essential by our government. I understand the public health emergency, I understand that most churchgoers (older adults) are among the most vulnerable to COVID-19, but nonetheless, its hard for me to reconcile the First Amendments protection of the free exercise of religion with these restrictions. It is a Constitutional violation to threaten people with possible citation just for gathering to celebrate one of the most holy days of the year.

I am not recommending people ignore the warnings, but as I have previously said, we are a free people who have the right from God, not government to worship as we please even if it is at our own peril. The bottom line is no one has the right to tell a church it cannot be open for Easter.

Christianity teaches us that God has a plan for all of us, so if that means I go to church to worship my Lord and Savior and I catch a virus, thats the plan. Its a risk I run and I know I put others at risk by my actions, but there is also such a thing as prayer for the health and well-being of our brothers and sisters. But Gods top commandment has always been Thou shalt not have any other gods before me and Im pretty sure that includes government.

This pandemic, in my opinion, shows that too much of everyones faith now lies with government and not God. Its not really the individuals fault. The government has usurped too much power from the individual not just individual liberty, but the ability to survive.

So many of us are dependent upon our jobs that when the government shuts down many of them, more of us switch our dependency to government to keep our bills paid. The first question I have about this is, what gives them the power to deem your business to be non-essential? Im pretty sure that every business is essential to their owners and employees. Why cant bosses and workers be trusted to proceed with their operations as they see fit?

It is nice that locally we seem to be pulling together to help each other out. In my experience, thats what Marion County, and Iowans, do. Not everywhere is so fortunate, I know, but as everyone become more dependent on each other, stop and think who is behind the places we depend upon? Food banks and hospitals typically have roots in Christianity. If government handouts did not exist, do you not believe that churches and religious organizations would work to help those in need? God kind of calls us as believers to do so.

Ill admit that my faith in humanity remains strong and I might be naive about the good in people, but I am much more comfortable believing in Gods work through my fellow man than trusting government to meet my every need. God teaches us to put our faith in Him and He will see us through anything. This includes health emergencies.

But too often through this pandemic, there has been a great deal of reverence given to government. We need help; what is Trump going to do for us? What does the Governor say we should do? Will Dr. Fauci give us permission to come out and worship together?

Im sure there are many Christians praying for guidance. It would just be nice if God got more attention because nobody else is going to save this country or defeat the disease. Not to discredit doctors or health professionals through whom God works, but ultimately, God provides us with solutions.

Im troubled because I believe if were not careful, government will happily continue to eat away at our God-given rights. Lets look at the Bill of Rights; as I mentioned, with the First Amendment, our religious freedom is being eroded much like our freedom of speech and peaceable assembly.

The Second Amendment is always under attack. The Third Amendment (housing soldiers) may not be applicable to todays world, but you never know. The Fourth Amendment, securing us from improper searches and seizures, has been eroded with the Patriot Act. The Fifth Amendment is threatened with eminent domain and other land seizure legislation. Most criminal defendants willingly waive their Sixth Amendment rights, according to all my years following the court system. The same can be said for the Seventh, which ensures our right to a fair trial.

The Ninth Amendment reads, The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. To me, that means if the government isnt expressly granted the ability to oversee some aspect of your life, the decision is yours. How much life-controlling bureaucracy exists now? Even so much as trying to hunt or fish?

The Tenth Amendment reads, The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. States have been willfully surrendering their rights and ability to make decisions to the federal government for years, simply by accepting taxpayer dollars confiscated at the federal level with strings and conditions attached.

We need to draw the line sometime against government overreach, and there is nothing more sacred than the ability to worship God and praise Him together on an Easter Sunday. Churches should be allowed to open to their congregations, should believers so choose to gather. Being a Christian has always been a matter of faith, and I believe He deserves the benefit of the doubt that He will see all of His people through any illness regardless of what the outcome may be.

Take care of yourself and thank you for reading.

More here:
Don't let COVID-19 stop you from celebrating the Resurrection - Marion County Tribune

Editor's note: This letter is addressed to the Republican leadership and urges them to "stand up to the authoritarianism of Governor Murphy" and to assert constitututional rights.

To: Chairman Doug Steinhardt, Esq.; Senate Republican Leader Tom Kean, Jr.; and Assembly Republican Leader Jon Bramnick, Esq.

Dear Republican Leaders:

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We are writing to you as both concerned American citizens and members of the clergy. We are circulating this letter to other citizens and clergy across New Jersey.

A civil rights attorney recently made the point that our founders were intimately familiar with pandemics, viruses and plagues, living at a time before the life-extending science that we benefit from today. Nevertheless, there is not one word in the Constitution about plagues or pandemics to exempt the government from any of our Bill of Rights. The founders of our Republic did not allow for a health crisis or medical emergency as an excuse to suspend our Constitutional liberties.

Our Bill of Rights is under attack by a number of misguided state executives including Governor Phil Murphy who are embracing authoritarian measures under color of law. Our Constitution is being quarantined as if a virus has made it irrelevant. Can a virus do that? Can a panic stoked by the media negate every protection we enjoy as citizens of a Republic? Is this the way democracy dies?

Every citizen should be concerned about how quickly and with gusto this Governor has moved to forcibly strip us of our freedoms. Where is the American Civil Liberties Union? Where are the liberal voices of good conscience in Governor Murphys own party?

As leaders of the opposition party in New Jersey, the Republican Party, we ask that you provide the checks and balances needed at a moment like this. We ask that you aggressively press Governor Murphy and hold him to account for his attack on the Bill of Rights and the Constitution of the United States of America.

Governor Murphy has suspended the First Amendment by issuing lock-down orders and curfews that prohibit obtaining a petition for public protest or public assemblies. He has infringed on the free practice of religion. These are black letter violations of the Law of this Republic.

Governor Murphy has suspended the Second Amendment under the guise of a mandatory shut-down of all nonessential businesses and by barring citizen access to the online means to obtain legal permits. Worse still, he has done so while releasing thousands of convicted criminals from prison, at a time of food shortages, in the midst of a crisis that has stretched law enforcement readiness and increased response times.

Governor Murphy has suspended the Fourth Amendment by asking neighbor to spy upon neighbor and using taxpayer funds to create a system by which reports may be filed and acted upon outside the normal legal process, which has been severely curtailed. Under color of law, the Governor has employed his appointed Attorney General to threaten, coerce, and compel individuals and communities into ceding their protected liberties to the government. He has criminalized heretofore everyday private and peaceful activities, and has done so with the knowledge that every interaction between law enforcement and citizens carries with it the possibility of a fatality. Just ask Eric Garner.

Governor Murphy has suspended the Fifth Amendment the right to property without deprivation by due process of law, and the obligation of government to compensate for such takings. He has issued authoritarian mandates destroying the means of legal commerce, that close businesses without appeal, making workers redundant, and leaving families without the means of survival. Worse, he has done so while continuing to collect taxes on the property and extant funds left to those made unemployed and whose lives will soon be unsustainable.

As religious leaders who both suffer and who minister every day to those suffering, we urge the opposition party to stand up to the authoritarianism of Governor Murphy and to assert our rights under the Constitution of the United States of America and the Bill of Rights. There must be checks and balances in place to the Governors reckless and ruinous abuse of power.

Please hear our prayer.

Respectfully,

Pastor Philip Rizzo

Rev. Gregory Quinlan

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Letter to the Editor: Will Republican Leadership Stand Up to Murphy in Wake of Coronavirus Crisis? - TAPinto.net

Investment Opportunities

By Andy Snyder

Originally posted March 25, 2020 on Manward Press

Weve got bad news.

Despite all the ciphering, speculation and soon-to-be-crushed curves this crisis will never end.

Like a scar across the cheek from a blow we never saw coming, the effects of the coronavirus will last forever.

Oh sure, stocks will recover, the economy will come back and, yes, well even gain immunity to the nasty little bug.

But, as always, theres more to the story

A lot more.

We joined in on a conversation with a state senator Monday night. Hes one of the good ones a former Army officer and a staunch defender of freedom. (We fear he wont last long in politics.)

The chat was somber, with hints of optimism.

The topic was one thats on the minds of so many Americans these days the limits and powers of the government.

The message that this senator repeated over and over was quite simple: Let the people decide.

Right now, for instance, in many states throughout the Union, businesses have been forced to close. Jobs have been lost. Retirement plans are crushed.

Divorces will spike. Suffering will rise. And Trump isnt wrong suicides will come.

A 66-year-old woman shot herself in the head just down the road last night.

Its a hell of a thing.

Perhaps the thing thats gone most unnoticed, though, is the new presumption of guilt in the nation.

Were now guilty before proven innocent. Were now deemed to be riddled with the virus before the government tests us and tells us were not.

This is a nasty mindset that strikes at the core of American values.[mw-adbox]

Here in Pennsylvania, all nonessential businesses were told to shut down. The state police are handing out fines.

But, as anybody would guess, the governors definition of nonessential is different from yours and ours and the mans who is running the shop in town.

The state wisely set up a waiver system for the new rules. But businesses are deemed guilty before they prove themselves innocent.

Even if a guy is sure his business is essential, hes got to close it until the government reviews his application and deems him safe to stay in business.

Last we heard, there were 13,000 applicants waiting to hear the fate of their business.

And the bureaucrats are in no hurry.

Again, its a hell of thing.

Do they think were that dumb? our friend in the Senate asked. They cant trust the people to make the right decision?

Meanwhile the police patrol the streets with drones. The National Guard has moved into New York City. And kids throughout the country will miss months of school.

Perhaps scariest of all is the fact that the media is quickly weaponizing the idea that the cure for this virus may be worse than the disease.

It demonizes us for even pondering the question for even wondering whether life is life without Liberty.

Its a tough discussion that must be had with clear heads not with the November election fogging the view.

This is where our old, reliable pal Know-How enters the story.

And its where things get scary

Few folks know exactly how much power the government gave itself after our last big national emergency.

Oh sure, we see an army of bored TSA agents each time we fly (there are 44,000 of them now). We see an occasional officer from the Department of Homeland Security when we drive through the city. And our new drivers license has a shiny sticker on it telling whoever bothers to look at it that our background has been checked and were clean.

But few folks know 9/11 gave your state governor immense control over your health.

Worried about a biological attack, governments across the land penned a bevy of ideas that most Americans are only finding out about some 19 years after the fact.

Your governor, as you now know, has the power to quarantine you or the whole state. So does the president.

With an emergency declaration, he can ration vaccines and other medicines.

And if things get really bad, in states like Arizona, the governor can jab you with a needle of the serum of his choice. In the Grand Canyon state, the governor can force the vaccination of folks diagnosed with a deadly disease or, get this, simply those who are reasonably believed to have been exposed or who may reasonably be expected to be exposed.

This isnt some internet myth or hype. Its fact. You can read the bill here.

Its scary.

We sure hope any vaccines that hit the market arent rushed because theyd be sticking us all this week if they could.

And dont try hiding your cough or blaming allergies.

The same laws that let the governor vaccinate you also let his boys dig into your medical records to see if youve asked a doc about your symptoms and they let the government track your calls and movements just to verify youre not hanging out with large groups or other infected folks.

But before you go thinking were preaching some sort of anti-vax message, we beg you to remember that none of this comes along with the great protections that make America America.

This can all and has been ordered by just one man.

Theres no judge or jury.

Theres no Fifth Amendment that keeps your business open until your case is heard.

Theres no Fourth Amendment that keeps the man from looking in your shop windows.

Theres not even a First Amendment right to protest when the government tells us we cant gather in groups of three or more.

This a dangerous disease.

Its a hell of a time in America.

But we must not make it worse.

We must open our minds and see all that is going on.

Some of its good (weve reported it). Some of its quite bad.

But more folks must understand the decisions and precedents we set today will affect this country for good.

If we fail now, this crisis will never go away.

This is about to become a huge discussion across the nation. Please join it with an open and informed mind.

Note: Are our core values in danger? Send us your thoughts here.

Andy did what most of us can only dream of. He left our bustling society to rough it in the Alaskan wilderness no roads, no electricity, nothing but the outdoors and his sharp mind. While there, he met with top investors and entrepreneurs from across the globe, all seeking out his expertise. His experience inspired the idea for his unique publishing company, Manward Press. Not only does Andy dish out top-notch investment advice (after all, he spent a decade as an advisor at one of Wall Streets top brokerages), but his mission is to lead folks to richer, healthier lives through his science-backed Triad of Liberty, Know-How and Connections. His one-of-a-kind free daily e-letter,Manward Digest, is a true fan favorite.

See the article here:
The Consequences of the Coronavirus Will Haunt Us Forever - Investment U

For most peopleand especially Lawfare readersthe word surveillance conjures up images of law enforcement investigations and foreign intelligence operations. But surveillance plays a major role in an equally important way of keeping people safe: public health. One of epidemiologists most powerful tools is disease surveillancethe monitoring, at both the population and individual levels, of whos been infected and with whom theyve interacted. And as the outbreak of the novel coronavirus and the disease it causes, COVID-19, brings American economic and social life to a halt, it is worth asking: What will be the effects on government surveillance? And while even the precise short-term effects are still hazy, we can already see signs that the outbreak may usher in a permanent and far-reaching expansion of the surveillance state.

Government-mandated disease surveillance has a long history in the United States, from the first reporting law (in colonial-era Rhode Island, for smallpox, yellow fever and malaria) to the sophisticated programs that the Centers for Disease Control and Prevention and state public health agencies run today. But COVID-19 could drive surveillance to a much higher level, for two reasons.

First, the COVID-19 pandemic is the most serious pandemic that the United States, indeed the world, has dealt with since the 1918 influenza outbreak. The coronavirus outbreak may well prove to be the most socially disruptive event of the past 100 yearseven World War II did not require hundreds of millions of Americans to effectively shelter in place for an indefinite period. Whether one is chiefly concerned about the public health impact of COVID-19 or the economic and social toll of the response (or all of the above), this episode will no doubt convince policymakers that drastic steps may be justified to stop this outbreak and prevent future ones.

Second, technological advances make it possible to collect a vastly larger and more precise trove of information. Internet-connected thermometers, thermal-imaging cameras (especially when combined with facial recognition software) and algorithms that scrape and process social media posts can all help detect the spread of disease in near real time and at an individual level. The ubiquity of GPS-enabled smartphones can allow health authorities to determine with whom infected individuals may have had contact, thus allowing for faster and more precise contact-tracing. Governments can use databases of individuals phone numbers and email addresses to proactively notify them of exposure and then use location data to monitor and enforce quarantines.

Countries worldwide are already stepping up surveillance in hopes of flattening the curve. In particular, China, which appears to have managed to all but eliminate local transmission of the virus, has, in addition to locking down hundreds of millions of people, adopted some of the most extreme surveillance measures, from using data from telephone companies to monitor quarantine compliance to developing apps that assign color codes to individuals based on their health status.

But increased surveillance has not been limited to authoritarian states. Other Asian countries, such as Taiwan, Singapore and South Korean, have also used aggressive surveillance and tracking to keep coronavirus infection rates low without resorting to mass lockdowns. Perhaps taking notice, liberal democracies are stepping up as well. Israel has repurposed its domestic spy agencys trove of cell phone data to notify individuals who may have come into contact with those infected with the coronavirus. The United Kingdom is developing an app that would do the same thing, but on a voluntary basis. Even the European Data Protection Board, perhaps the worlds strictest privacy regulator, has clarified that individualized phone-based tracking may be permissible, assuming legislative authorization and adequate safeguards.

In the United States, which seems perennially behind the curve on all things coronavirus, there has not yet been (at least not publicly) an expansion in individual electronic surveillance to fight the pandemic. But the longer it continues, the more likely that federal, state and local governments will turn to such technologies to enable a more targeted approach to coronavirus management. The federal government is already in talks with tech giants to use cell phone data to track the virus (though for now the discussion seems to be limited to anonymized data). Strikingly, even the Electronic Frontier Foundation has conceded that more surveillance will be necessary, noting, In the digital world as in the physical world, public policy must reflect a balance between collective good and civil liberties in order to protect the health and safety of our society from communicable disease outbreaks. When it comes to increased surveillance to fight the coronavirus, the question seems to be not if, but when.

Although the outbreak will at some point be controlled, the expansion of government surveillance is likely to be permanent, for two reasons. First, the cost of the coronavirus response is proving astronomical. The public may well decide that it was justified, given the potential severity of the outbreak, but it will surely expect the government to put in place measures to deal with future outbreaks in a less socially disruptive way. COVID-19which is on track to cause thousands of deaths and trillions of dollars of economic destructionis public healths 9/11, and it will serve as a never again moment that will drive policymaking for years to come.

Second, surveillance programs tend to stick around long past when the emergency that initially justified them has faded. Some of this is due to bureaucratic inertia and path dependency, and some to mission creep as the government finds additional ways to use the data. Either way, now is the time to start thinking about the short- and long-term future of disease surveillanceand how it may interact and overlap with law enforcement and national security surveillance.

Some of the questions are legal ones. For example, does the Stored Communications Actwhich permits companies to voluntarily share data with the government in case of an emergency but does not permit the government to require data disclosure outside a criminal investigationneed to be modified? And if so, what should be the corresponding privacy protections? What limits might the Fourth Amendment impose on searches and seizures performed for administrative or special needs purposes, like public health, and can the data obtained also be used for law enforcement investigations?

Other questions will be about policy. Here public health and legal experts could fruitfully come together to develop evidence-based, constitutionally permissible reforms to surveillance laws and programs. In doing so, they should be particularly wary of exaggerated claims of surveillance effectiveness, either from companies trying to hawk their products or government officials seeking to exploit this crisis for their own purposes not related to public health (as already appears to be taking place, both in the United States and in authoritarian countries such as Russia, China and Iran). But they should also resist privacy absolutism.

Difficult as these questions will be, weve no choice but to face them. As our current situation makes clear, pandemics pit one kind of liberty against another: the liberty to be free from intrusive government monitoring against the liberty to be free from disease and, in due course, from the heavy-handed measures needed to bring it back under control. As our national lockdown grinds on, Americans may decide that the freedom to avoid being monitored is less precious than the freedom to leave their homes.

Original post:
Government Surveillance in an Age of Pandemics - Lawfare

The U.S. Supreme Court held last week in Hernandez v. Mesa that the parents of a Mexican national shot and killed in Mexico by a U.S. Border Patrol agent cannot sue that agent in federal court. The decision was 5-4, dividing the court along what many observers regard to be predictable ideological lines.

But to view this decision through the lens of partisan ideology would be a mistake.

The incident that launched the case is horrifying. When 15-year-old Sergio Adrin Hernndez Gereca was playing in a cement culvert between El Paso, Texas, and Cuidad Juarez, Mexico, in 2010, the Border Patrol agent detained his friend and shot Hernndez in the face, killing him. Hernndez was standing in Mexican territory.

At bottom, this case was not about whether Hernndezs family deserves an avenue for seeking redress for the alleged violation of their sons Fourth and Fifth Amendment rights. Rather, it is about the power of federal courts to provide a remedy where Congress has provided none.

The key legal precedent at issue in Hernandez originates from Bivens v. Six Unknown Federal Narcotics Agents, a 1971 decision in which the Supreme Court held that a person victimized by an unlawful arrest and search could bring a claim for damages in federal court directly under the Fourth Amendment, even though neither the text of that amendment nor any federal statute authorized such a claim.

That decision has been called into question by the court in recent years, based on the idea that recognizing claims not provided for in the Constitution or by Congress risks engaging federal courts in the exercise of legislative rather than judicial power.

The question in the Hernandez case was whether to extend the Bivens decision into the new context of a cross-border incident that was alleged to have violated the victims constitutional rights. In light of the international context of this dispute, the court concluded that fashioning a judicial remedy not created by Congress risked interfering not only with Congresss legislative authority but also with the presidents authority, as it pertains to national security and international affairs.

In other words, if the federal courts are effectively going to make up a right to sue that no constitutional or statutory text endorses perhaps an altogether dubious enterprise they at least should avoid such an undertaking in circumstances presenting considerations of foreign relations and border protection; such considerations are meant to be addressed by the executive branch, and involve the weighing of costs and benefits of a kind the judiciary is ill-suited to assess.

True, the result of acknowledging that federal courts lack the power to improvise judicial remedies in this context means that the victims parents in this case cannot recover damages in a federal civil action. But the proper way to address that undesirable outcome is to urge Congress to enact legislation that would authorize the lawsuit that Hernandezs parents seek.

There are several statutes in which Congress has authorized claims against government officials for alleged wrongdoing. Section 1983 of Title 42 of the U.S. Code permits the recovery of damages for constitutional violations by state officials. The Federal Tort Claims Act provides a remedy for most claims against federal government employees, but it does not apply to claims arising in a foreign country.

Either of these provisions could be amended to extend the ability to sue federal government officials for conduct that violates rights of persons abroad. The fact that neither of these statutes nor any other statute permits these suits provides a fairly strong indication that it would be inappropriate for the federal courts to permit them on their own initiative.

It is indeed tragic that Hernandez lost his life in this incident. It is also tragic that his parents cannot seek monetary damages for their loss in U.S. federal courts. But the culprit in this tragedy should not be seen as a block of conservative ideologues on the Supreme Court but, rather, a Congress that has opted not to open our courthouse doors to those whom our officials harm abroad.

A. Benjamin Spencer is the Bennett Boskey Visiting Professor of Law atHarvard Law School and the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law. Follow him on Twitter @PROFSPENCER.

Read more from the original source:
Justices make the tough but right call in cross-border shooting case | TheHill - The Hill