Category Archives: Fourth Amendment

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The Supreme Court will hear oral arguments in a case implicating a U.S. Border Patrol agent in the cross-border shooting of a Mexican national in the border zone near El Paso, Texas, Tuesday.

The case asks the justices to determine how the Fourth Amendments prohibition on unjustified deadly force applies in the border zone and if the agent is protected by qualified immunity, which protects federal employees from civil suits when they are working in their official capacity.

Sergio Adrian Hernandez Guereca, a Mexican national, was shot and killed by Agent Jesus Mesa, Jr., July 7, 2010. Mesa was standing in the United States when he discharged his service weapon. Hernandez was shot and died on Mexican soil.

Lawyers for Hernandezs family allege he and several friends were playing a game in which they ran up the inclined border culvert separating the U.S. and Mexico, touched the border fence, and retreated back into Mexico.

The U.S. Department of Justice strongly disputes this framing of the incident.

After the shooting, the Department of Justice conducted a comprehensive and thorough investigation into the shooting, concluding that the shooting took place while alien smugglers, including Hernandez, unsuccessfully attempted an illegal border crossing, and began to hurl rocks from close range at Agent Mesa while he was attempting to detain a suspect, Mesas brief for the Court reads. Hernandez had been arrested twice before for alien smuggling. The Justice Department declined to recommend criminal charges against Mesa.

The justices are not asked to reach findings on these factual disputes.

On appeal, the 5th U.S. Circuit Court of Appeals dismissed the case, finding the Supreme Courts ruling in U.S. v. Verdugo-Urquidezmitigated against such claims. In that case, the justices found that the Fourth Amendments prohibition on unwarranted searches and seizures does not apply when federal agents search homes owned by foreign nationals in other countries. They also ruled that Mesa was entitled to qualified immunity.

Hernandezs family counters by arguing the Court established in Boumediene v. Bush,that, in particular contexts, foreign nationals may have constitutional protections. The Boumediene decisionallowed detainees at Guantanamo Bay, Cuba, to challenge the legality of their detention. Mesa rebuts by asserting that decision applies only to territories over which the U.S. has de facto control like Guantanamo Bay and not to territories over which the U.S. does not have exclusive control, like the border zone.

The outcome of the Fourth Amendment decision reflects a divergence in approach to such questions within the Court. While some of the justices favor maintaining bright-line rules about the extent of the Constitutions application abroad, others prefer an approach which considers the details unique to each situation, and will extend certain constitutional protections on a case-by-case basis.

The question of qualified immunity will turn on whether a reasonable officer would have known his conduct was unconstitutional.

In addition to the Fourth Amendment and qualified immunity questions, the justices asked the parties to answer whether or not the Hernandezs could bring a suit under Bivens v. Six Unknown Agents, which allows courts to award damages for egregious constitutional violations by federal officials.

The case could have a significant effect on U.S. law enforcement or national security abroad. Writing at Lawfare, professor Andrew Kent of Fordham University School of Law explains:

If these amendments are held to apply outside U.S. borders to protect noncitizens, a huge array of intelligence, military, immigration, customs, and law enforcement activity could be impacted. To take two examples that are salient for Lawfare readers: extraterritorial foreign intelligence surveillance and drone strikes, both of which have proceeded to date under the executive branchs assumption that noncitizens outside the United States have no relevant constitutional rights in those contexts.

The case has attracted a great deal of attention from other parties. Amnesty International and the ACLU have each filed amicus, i.e. friend-of-the-court briefs, in support of the Hernandez family, while the Criminal Justice Legal Foundation filed a brief backing Mesa.

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SCOTUS Will Hear Cross-Border Shooting Case - Daily Caller

The case stemmed from a 2015 arrest in Grove City. CEE-VI Drug and Gang Task Force agents had an arrest warrant for Leona Rose deLottinville, then 27, of Grove City. It was alleged that she had violated court-ordered conditions of release.

With information that deLottinville was at her boyfriend's Grove City home, officers went there on March 24, 2015, where they allegedly saw deLottinville through a glass patio door.

One officer opened the unlocked door, went inside the home, and arrested deLottinville.

Marijuana and a bong were sitting in plain view on a countertop.

After deLottinville's arrest, officers obtained a search warrant for the home and allegedly found marijuana, meth, hydrocodone pills and drug paraphernalia. She was charged with two additional counts of fifth-degree drug possession, and possession of drug paraphernalia.

In Meeker County District Court, deLottinville submitted a motion to dismiss all of the charges on the grounds that police should not have been allowed to enter the home.

Judge Stephanie Beckman granted the motion, and dismissed all charges against deLottinville in August 2016. Even as a short-term guest, Beckman stated, deLottinville had an expectation of privacy in the home.

The Minnesota Court of Appeals reversed that ruling, arguing that a guest in a home does not have a right to more privacy than the homeowner.

That decision was appealed to, and upheld by, the Minnesota Supreme Court, which issued the ruling Wednesday.

Justice David L. Lillehaug authored the opinion filed with the ruling.

In the Payton v. New York ruling, he wrote, the U.S. Supreme Court determined that an arrest warrant was grounds to enter the home in which that individual lives to arrest them.

What was not determined, Lillehaug wrote, was "whether the same holds true when the subject of an arrest warrant is believed to be present in another person's home."

The U.S. Supreme Court also previously ruled that an arrest warrant for a guest in a home does not justify searching the home. In that case, a search warrant would be required.

The case ruled upon on Wednesday, then, involved a window that had not yet been defined: What are a guest's rights inside a home?

Lillehaug wrote that even though the home is traditionally where an individual has a right to privacy, police can still enter to execute an arrest warrant. That constitutional reasoning should not change when the individual is in a home other than their own, Lillehaug wrote.

"A guest should not receive any greater Fourth Amendment protection when outside her home than when inside it," he wrote.

Justice Margaret H. Chutich dissented from the ruling.

She disagreed with the Supreme Court's application of the Payton v. New York ruling in the current case.

"This unwarranted extension of Payton fails to apply later Fourth Amendment precedents," Chutich wrote, "and fails to protect the right of a host from unreasonable governmental intrusion into the sanctity of her home, a right at the 'very core' of the Fourth Amendment."

The Fourth Amendment to the U.S. Constitution prohibits unreasonable search and seizure.

In the opinion, Lillehaug had acknowledged that, with the ruling, there would be "potential for abuse." But he said that in this case, deLottinville was visible to the officer before he entered the home. There was no evidence of abuse, he said.

Chutich wrote that that potential for abuse "is not merely theoretical."

"Minnesotans would certainly be surprised to realize that the police can enter their homes at any time with nothing more than an arrest warrant for an overnight guest, or even a short-term social guest," she said.

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Minn. Supreme Court reverses Meeker County fourth amendment case - West Central Tribune

Imagine you are in the middle of your typical day-to-day activities. Maybe you are driving, spending time with family, or working. If you are like most people, your phone is at your side on a daily basis. Little do you know that, at any time, police and law enforcement could be looking at information stored on your phone. You havent done anything wrong. You havent been asked for permission. You arent suspected of any crime.

The StingRay

Police have the power to collect your location along with the numbers of your incoming and outgoing calls and intercept the content of call and text communication. They can do all of this without you ever knowing about it.

How? They use a shoebox-sized device called a StingRay. This device (also called an IMSI catcher) mimics cell phone towers, prompting all the phones in the area to connect to it even if the phones arent in use.

The police use StingRays to track down and implicate perpetrators of mainly domestic crimes. The devices can be mounted in vehicles, drones, helicopters, and airplanes, allowing police to gain highly specific information on the location of any particular phone, down to a particular apartment complex or hotel room.

Quietly, StingRay use is growing throughout local and federal law enforcement with little to no oversight. The ACLU has discovered that at least 68 agencies in 23 different states own StingRays, but says that this dramatically underrepresents the actual use of StingRays by law enforcement agencies nationwide.

The Violation

Information from potentially thousands of phones is being collected every time a StingRay is used. Signals are sent into the homes, bags, and pockets of innocent individuals. The Electronic Frontier Foundation likens this to the Pre-Revolutionary War practice of soldiers going door-to-door, searching without suspicion.

Richard Tynan, a technologist with Privacy International notes that, there really isnt any place for innocent people to hide from a device such as this.

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

The StingRay clearly violates these standards. The drafters of the Constitution recognized that restricting the government from violating privacy is essential for a free society. Thats why the Fourth Amendment exists. The StingRay is creating a dangerous precedent that tells the government that its okay for them to violate our rights. Because of this, freedom is quietly slipping out the window.

Little Regulation

Law Enforcement is using StingRays without a warrant in most cases. For example, the San Bernardino Police Department used their StingRay 300 times without a warrant in a little over a year.

A handful of states have passed laws requiring police and federal agents to get a warrant before using a StingRay. They must show probable cause for one of the thousands of phones that they are actually searching. This is far from enough.

Additionally, there are many concerns that agents are withholding information from federal judges to monitor subjects without approval bypassing the probable cause standard laid out in the Constitution. They even go as far as to let criminals go to avoid disclosing information about these devices to the courts.

If the public doesnt become aware of this issue, the police will continue to use StingRays to infringe on our rights in secret and with impunity.

Olivia Donaldson is a recent high school graduate that is currently opting out of college and participating in an entrepreneurial program called Praxis. Originally published at fee.org.

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Richmond County Daily Journal | StingRay is why the 4th ... - Richmond County Daily Journal

Last week, a federal court in Seattle issued a ruling in Microsofts ongoing challenge to the law that lets courts impose indefinite gag orders on Internet companies when they receive requests for information about their customers. Judge James Robarthe of recent Washington v. Trump fameallowed Microsofts claim that the gags violate the First Amendment to proceed, denying the governments motion to dismiss that claim. Its an important ruling, with implications for a range of government secrecy provisions, including national security letters (NSLs). Unfortunately, the court also dismissed Microsofts Fourth Amendment claim on behalf of its users.

When tech companies cant tell users that the government is knocking

Before looking at the substance of Judge Robarts ruling, its worth remembering why EFF thinks Microsofts lawsuit is important. In fact, wed go so far as to say that challenging gag orders imposed alongside government data requests is one of the key digital civil liberties issues of our time. Thats true for at least two reasons:

First, there has been a sea change in where we keep our sensitive personal information papers and effects protected by the Fourth Amendment and records of First Amendment-protected speech and associations. Just twenty or thirty years ago, most or all of this information would have been found in peoples homes. In order to get at your informationwhether by breaking down your door or serving you with a grand jury subpoenathe government usually couldnt help tipping you off. These days, private information is more likely to be stored in Microsoft Office 365 or with another third-party provider than a home office. In that case, you wont know the government is interested in your information unless you hear from the government or the third-party provider. But the government isnt always required to notify the targets of data requests, and it routinely gags providers from notifying their users. The long-standing defaultnotice that the government is after your informationhas in just a short time effectively flipped to no notice.

Second, gags distort the publics understanding of government surveillance and correspondingly place far more responsibility on providers. The statutory provision at issue in Microsofts lawsuit, 18 U.S.C. 2705, applies in criminal cases. This statute allows the government to gag service providers if a court finds that informing the user will result in one of several enumerated harmsdeath or injury to a particular person, destruction of evidence, witness tampering, and so on. But as Microsofts complaint explains, Section 2705 gag orders accompany at least half of the data demands the company receives, and courts often grant them without explicit findings of potential harm. In many cases, they also do so without setting a date for the gag to dissolve. The result is a de facto permanent gag order. Thats an abuse of what is intended as a limited power, granted to the government to protect specific, sensitive investigations.

Unless a provider takes extraordinary stepslike filing a facial constitutional challenge as Microsoft didits likely that the public wont be aware of this abuse. This intensifies the role that providers play as trustees of our data. Thats why EFF tracks both transparency reports and user notification as part of our annual Who Has Your Back report. We dont just rely on companies to keep our data secure, we also need them to stand up to the government on our behalf. Its a point often missed by those who dismiss companies growing commitments to privacy as empty marketing. If not Microsoft, Apple, Google, Facebook and all the others, then who?

The ruling: first party prior restraints and third-party Fourth Amendment rights

Despite the importance of these issues, the government argued that Microsofts challenge should be bounced out of court at the preliminary motion to dismiss stage. On the First Amendment claim, at least, the court disagreed. Microsofts basic argument will be familiar if youve followed EFFs NSL cases: when the government prevents you from speaking in advance, its known as a prior restraint. Under the First Amendment, prior restraints must meet exacting scrutiny and are rarely constitutional. Here, the court found that Microsoft had more than adequately alleged that Section 2705 does not meet this exacting scrutiny because it does not require courts to time-limit gags to situations where they are actually necessary based on the facts of the case.

This is nearly identical to one of the issues in EFFs NSL casesNSLs similarly allow the FBI to gag service providers indefinitely.However, NSLs are even more egregious in several ways: the FBI can issue them without any involvement by a court at all, and it need not even claim that one of the specified harms will actually result without an NSL gag. We hope the Ninth Circuit will consider our NSL clients arguments about their First Amendment rights as thoroughly as Judge Robart did here.

Finally, the court reached an unsatisfying conclusion about Microsofts attempt to raise its users Fourth Amendment rights. As EFF explained in our amicus brief earlier in the case, notice of a search is a core part of the Fourth Amendments protections. When Microsoft is precluded from notifying users, it is the only party with knowledge of the search and therefore should be able to raise its users Fourth Amendment rights. Nevertheless, the court found that Fourth Amendment rights are inherently personal and cannot be raised by a third party, leading it to dismiss Microsofts claim. We think thats wrong on the law, and we hope Microsoft will consider seeking leave to appeal. Meanwhile, well watch as the case progresses on Microsofts First Amendment claim.

Continued here:
A Step Forward in Microsoft's Legal Battle for Transparency about Government Data Requests - EFF

Source: Justice for Geist Facebook page

Source: Justice for Geist Facebook page

SALT LAKE CITY A federal judge has sided with police in the shooting of a dog as officers looked for a missing boy.

In a ruling handed down Friday night, U.S. District Court Judge Robert Shelby dismissed Sean Kendalls claims of a Fourth Amendment violation of his rights. He granted summary judgment for Salt Lake City and sent the case back to state court to be litigated.

This case is tragic on several levels. Parents feared their child missing, officers urgently responded, and Kendall lost his beloved companion animal. The court is mindful of the strong reactions this case has aroused among animal owners, parents, law enforcement, and community members, Judge Shelby wrote.

The case has exposed tensions that can arise between important competing interests, and the court has done its best to resolve these tensions while constraining its analysis to the facts presented by the parties and the established law.

Kendall sued Salt Lake City over the 2014 shooting of his dog, Geist, whobarked and ranat an officer who wandered into his backyard searching for the missing boy. The child was later found inside his own home.

Judge Shelby ruled that Kendall failed to establishan unconstitutional search and seizure violation under the Fourth Amendment.

In sum, the court concludes that even if (Officer) Olsens warrantless sweep of Kendalls backyard was a Fourth Amendment search, it was not unconstitutional because it was justified by exigent circumstances. And even in the event it was an unconstitutional search, Olsen would be entitled to qualified immunity because his mistake as to what the law requires would be reasonable, the judge wrote.

Reached by FOX 13 late Friday, Kendalls attorney, Rocky Anderson, said he would appeal to the 10th U.S. Circuit Court in Denver.

Of course we vigorously disagree, he said. We fully expect to prevail, ultimately. It would be an extremely frightening prospect if police could go throughout an entire geographic region and search in Fourth Amendment protected areas.

Anderson said the ruling enforced a shoot first culture, adding he believed there was no reason to shoot Geist under any circumstances.

Judge Shelby previously ruled against Salt Lake City police, who sought to enforce a $10,000 settlement offer extended to Kendall.

The rest is here:
Judge sides with SLCPD in shooting of Geist the dog - fox13now.com

Imagine you are in the middle of your typical day-to-day activities. Maybe you are driving, spending time with family, or working. If you are like most people, your phone is at your side on a daily basis. Little do you know that, at any time, police and law enforcement could be looking at information stored on your phone. You havent done anything wrong. You havent been asked for permission. You arent suspected of any crime.

The StingRay

Police have the power to collect your location along with the numbers of your incoming and outgoing calls and intercept the content of call and text communication. They can do all of this without you ever knowing about it.

How? They use a shoebox-sized device called a StingRay. This device (also called an IMSI catcher) mimics cell phone towers, prompting all the phones in the area to connect to it even if the phones arent in use.

The police use StingRays to track down and implicate perpetrators of mainly domestic crimes. The devices can be mounted in vehicles, drones, helicopters, and airplanes, allowing police to gain highly specific information on the location of any particular phone, down to a particular apartment complex or hotel room.

Quietly, StingRay use is growing throughout local and federal law enforcement with little to no oversight. The ACLU has discovered that at least 68 agencies in 23 different states own StingRays, but says that this dramatically underrepresents the actual use of StingRays by law enforcement agencies nationwide.

The Violation

Information from potentially thousands of phones is being collected every time a StingRay is used. Signals are sent into the homes, bags, and pockets of innocent individuals. The Electronic Frontier Foundation likens this to the Pre-Revolutionary War practice of soldiers going door-to-door, searching without suspicion.

Richard Tynan, a technologist with Privacy International notes that, there really isnt any place for innocent people to hide from a device such as this.

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

The StingRay clearly violates these standards. The drafters of the Constitution recognized that restricting the government from violating privacy is essential for a free society. Thats why the Fourth Amendment exists. The StingRay is creating a dangerous precedent that tells the government that its okay for them to violate our rights. Because of this, freedom is quietly slipping out the window.

Little Regulation

Law Enforcement is using StingRays without a warrant in most cases. For example, the San Bernardino Police Department used their StingRay 300 times without a warrant in a little over a year.

A handful of states have passed laws requiring police and federal agents to get a warrant before using a StingRay. They must show probable cause for one of the thousands of phones that they are actually searching. This is far from enough.

Additionally, there are many concerns that agents are withholding information from federal judges to monitor subjects without approval bypassing the probable cause standard laid out in the Constitution. They even go as far as to let criminals go to avoid disclosing information about these devices to the courts.

If the public doesnt become aware of this issue, the police will continue to use StingRays to infringe on our rights in secret and with impunity.

Olivia Donaldson is a recent high school graduate that is currently opting out of college and participating in an entrepreneurial program called Praxis. Originally published at fee.org.

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Read the original:
StingRay is why the 4th Amendment was written - Richmond County Daily Journal

The Supreme Court will hear arguments next week in a Fourth Amendment case, Hernandez v. Mesa. The facts of the case are simple. At the border that separates El Paso, Tex., from Ciudad Jurez, Mexico, a U.S. border patrol agent named Mesa shot and killed a Mexican citizen named Hernandez. The bullet itself crossed the border, as Mesa was on U.S. land and Hernandez was on Mexican land. A subsequent lawsuit was filed by Hernandezs parents, as successors-in-interest to his estate, alleging excessive force under the Fourth Amendment.

The cert petitionarticulated two questions to be decided:

Does a formalist or functionalist analysis govern the extraterritorial application of the Fourth Amendments prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States?

May qualified immunity be granted or denied based on factssuch as the victims legal status unknown to the officer at the time of the incident?

When the court granted cert, the court added a third question drafted by the court itself: Whether the claim in this case may be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971).

Here are a few thoughts about the case.

One of the most important questions for the future of the Fourth Amendment is whether non-U.S. persons get Fourth Amendment rights abroad. As I explained in my recent article, The Fourth Amendment and the Global Internet, 67 Stan. L. Rev. 28 (2015), the basic structure of what kind of Internet surveillance is permitted hinges on the question.

Under the rule of the majority opinion in Verdugo-Urquidez the so-called formalist approach you get one framework with some significant uncertainties but a lot of results settled. On the other hand, under Justice Anthony Kennedys impracticable and anomalous test the so-called functional approach no one really knows what the Fourth Amendment would look like in the context of global network surveillance. And because those cases come up for litigation so rarely, it would take many years for courts to figure out the answers (by which time the technology may have changed anyway).

From that perspective, the odd part about Hernandez v. Mesa is that it asks the court to decide between the formalist and functionalist approaches in a setting that appears to implicate almost none of the real stakes of the answer. The facts of a shooting across the border are like a law school exam. They raise interesting questions, but the context seems pretty idiosyncratic. In contrast, the application of the functionalist or formalist approach has a massive day-to-day impact on global Internet surveillance. Its there, not in the context of a cross-border shooting, that the Fourth Amendment question in Hernandez seems to matter most.

Hernandezs brief argues that the court can and should apply or not apply individual parts of Fourth Amendment doctrine to non-citizens abroad depending on whether doing so would be impracticable or anomalous. But I dont see how this is at all workable. As I explain in a forthcoming article, Fourth Amendment rules are deeply path-dependent. The rules on what is a search impact the rules on what is reasonable, and vice versa; and they together impact the available remedies, and the remedies have an impact on them. In an area of law that is as exquisitely fact-sensitive as the Fourth Amendment, I dont know how you could tell whether a particular doctrines application would be impracticable or anomalous. Assuming you had an empirical way to answer that in the abstract, the answer would depend on what the other doctrines are, and without knowing if their application to non-citizens abroad would be impractical and anomalous, I dont know how you could tell.

Hernandez tries to avoid these problems by suggesting a very narrow holding. The reply brief advocates the following narrow rule: [T]he prohibition on unjustified deadly force applies at (and just across) the border, at least when a law-enforcement officer on U.S. soil fires his weapon at close range. But this attempted narrowing just makes the problem much worse. Its bad enough to figure out how the impracticable or anomalous framework should apply doctrine by doctrine. Hernandez seems to want to apply it fact pattern by fact pattern, imposing some essentially arbitrary definition of the relevant set of facts.

Think closely about Hernandezs proposed rule. In his far narrower view, the rule of extraterritorial liability advocated for in this case would apparently apply notto all excessive-force claims brought by non-citizens, but only to claims of unjustified deadly force brought by them; not outside the United States generally, but only at the specific location of at (and just across) the border; and maybe (although maybe not!) only to the narrower circumstance when the U.S. officer fires his weapon at close range. The phrasing of the question presented in the cert petition suggests another possible limitation: Maybe it applies only to shooting a person who is an unarmed Mexican citizen. As to the rule that would apply to any other facts, well, hey, courts will have to figure those out over time.

That seems kind of nuts to me. If any court can pick the set of facts over which aproposed rule of extraterritorial applicationcontrols, the result will be that any Ninth Circuit lower-court judge can just pick the result he or she wants in any case. If Judge Reinhardthas a case and wants to hold the defendants liable, he can drawthe category of facts in a stylized way so that application of the Fourth Amendment doesnt seemimpracticable. If another judge wants to rule against the plaintiffs, she can draw the category of facts differentlyso that it does. That strikes me as really problematic.

All of which is to say that I hope the court sticks with the majority opinion in Verdugo-Urquidez. Not only is itrelatively clear, but alsoI personally tend to think it isbased on apersuasive social contract approach to rights.

The Fourth Amendment issue in Hernandez is made more interesting by a practical point: Its not clear whether other members of the courtbeyond Kennedy agree with using theimpracticable or anomalous test in the Fourth Amendment context. It sometimes happens that other justices are willing to sign on to a Kennedy opinion with reasoning that they dont particularly agree with, if its needed to get to a five-justice majority. But that doesnt always happen, and it could happen either way in this case (with Kennedy applying the impractical or anomalous test in favor of either the petitioners or respondents). If the court reaches the merits, it will be really interesting to see where the votes will come out on that issue.

Finally, its not at all obvious that the court will reach the Fourth Amendment merits. The court added the Bivens question on its own, and the Solicitor Generals Office brief took the hint and made that the lead argument in its brief. The Bivens issue takes up fully 20 pages of the argument section in the governments brief, as compared with 15 pages for the Fourth Amendment merits and eight pages for the qualified-immunity issue. Well have to wait and see which issue draws the justices attention.

As always, stay tuned.

More:
The Fourth Amendment at the border and beyond: A few thoughts on Hernandez v. Mesa - Washington Post

Tomorrow at 9:00 a.m., the Joint Committee on the Judiciary will hold a meeting to decide whether the committee isgoingto hearHouse Bill 6200.Introduced by state Representatives Caroline Simmons (D-144), William Tong (D-147), and Daniel J. Fox (D-148), HB 6200 would require a person openly carrying a firearm to display their permit immediately upon demand by law enforcement. Please contact the members of the Joint Committee on Judiciary and urge them not to hear this bill!Please click the Take Action button below to contact the committee members!

It is legal to openly carry a handgun in Connecticut so long as the person has a valid Permit to Carry. Connecticut State Police Training Bulletin 2013-01 states that personnel shouldNOTarrest a properly permitted individual merely for publicly carrying a hand gun or firearm in plain view absent exigent circumstances. Examples of these exigent circumstances are a Breach of Peace situation or the person is under the influence of intoxicating liquor/drugs.

Under the Fourth Amendment, as affirmed by the U.S. Supreme Court in Terry v. Ohio nearly half a century ago, police officers can stop and briefly detain a person to investigate only if they have a reasonable suspicion, supported by articulable facts that criminal activity is occurring. This is why Connecticut law should require that officers must have a reasonable suspicion that a crime is being committed before they can request proof of a permit.

This proposed bill is the equivalent of allowing the police to stop a motorist to demand their drivers license solely because they are driving. Law-abiding people carry firearms for self-defense. They shouldn't be treated as being engaged in criminal activity simply because they are choosing to openly exercise their constitutional Right to Keep and Bear Arms.

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Connecticut: Anti-Gun Bill which Violates Fourth Amendment Heads to Committee - NRA ILA

Balefire9 | Dreamstime.comOnce again, legislation that would give American citizens better privacy protections for their emails has passed the House of Representatives, but we're going to have to see what happens in the Senate.

The Email Privacy Act aims to correct a flaw in federal Electronic Communications Privacy Act of 1986. Passed in the relatively early days of home computer use, it established a policy that private electronic communications held by third parties that were more than 180 days old could be accessed by law enforcement and government investigators without the need for a warrant. A subpoena delivered to the communication provider was enough. A law this old obviously preceded the arrival and dominance of private email communications, and tech privacy activists and tech companies have been pushing for reform. The way the system stands now can result in people having their old private communications searched and read by authorities without the citizen's knowledge.

The Email Privacy Act fixes some of these problems, though it doesn't fully resolve the controversy Under the act, officials will need to get actual warrants to access emails and online communications, which provides at least a little more judicial oversight. But the warrants are to the providers, not to the actual people who wrote and sent the communications. It will be up to companies to decide whether to pass along the news of the warrant to customers. Neema Singh Guliani, legislative counsel for the American Civil Liberties Union, says that this is a flaw with the legislation. The original version of the bill required that government provide notice. Without that rule, the third-party provider can resist the warrant if they choose to, but the actual customer probably might not even know.

"If you don't have notice, you really can't effectively [challenge the warrant]," Singh Guliani said. The bill does permit third-party providers to let customers know about the administration of warrants, but also allows for the government to delay this information for 180 days under a handful of exceptionsif the target is a flight risk or may destroy evidence or otherwise compromise the investigation. And while some major tech and communication companies have fought back against orders to pass along data or to keep searches secret, Singh Guliani says we shouldn't have to be "reliant on the business practices of providers that can change over time to make sure people get the full protection of the Fourth Amendment."

Still, the compromise bill is better than the current rules. No representative voted against it last session of Congress, and it passed again yesterday by a voice vote. But while the bill enjoys popular bipartisan support in the House, the last attempt to get it passed hit disaster in the Senate. Senators attempted to meddle with the wording of the bill to weaken it or add other unrelated regulations. Sen. John Cornyn (R-Texas) attempted to add an amendment to expand the surveillance reach of secretive National Security Letters. Sponsoring senators ended up yanking the legislation from consideration.

The Senate sponsors last session were Mike Lee (R-Utah) and Patrick Leahy (D-Vermont). A representative from Sen. Lee's office said that he intends to co-sponsor the Senate version of the bill again this year, but it has not yet been introduced. This could be the first legislative test of whether increased privacy protections can make its way to and through a presidential administration openly hostile to limits on any sort of investigative or law enforcement authority (as we saw earlier today). President Donald Trump is hardly alone and he's not responsible for its previous problems, but it's nevertheless legislation that should not be struggling at all.

And a little bit of self-promotion: I'll be leading a panel discussion on the Fourth Amendment, tech privacy, and Congressional lawmaking in this March's South by Southwest (SXSW) conference. Singh Guliani will be one of our panelists. Check out the details here if you find yourself in Austin on March 10. Efforts like the Email Privacy Act will be part of the discussion.

View original post here:
Will Your Old Emails Finally Get Fourth Amendment Protections? - Reason (blog)

New York Times

Was That Search Illegal? Sometimes, Neil Gorsuch Ruled It Was New York Times Although Judge Gorsuch has a decidedly conservative record on the bench, by at least one measure his view of the Fourth Amendment's protections against unreasonable searches he has been relatively moderate, according to legal scholars and a ... Trump's Supreme Court pick Neil Gorsuch has a solid record of defending the Fourth AmendmentRare.us Trump Nominates Neil Gorsuch to the Supreme CourtReason (blog) Neil Gorsuch & the Police: What Are His Views on Law Enforcement Issues?Heavy.com Slate Magazine -The Atlantic -American Thinker all 8,346 news articles »

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Was That Search Illegal? Sometimes, Neil Gorsuch Ruled It Was - New York Times