Appeals Court: Police can violate our rights without fear of being sued

Delivered by The Daily Sheeple


For those of you that claim we don’t live in a police state, I give you this recent Michigan Appeals Court ruling.

In 2015, Deputy James Dawson went to Joshua Brennan’s home and knocked on his door trying to obtain a breath sample. When Brennan did not answer, Dawson spent an hour and a half knocking at his doors and windows.

Officer Dawson also put crime-scene tape over Brennan’s security cameras to conceal his actions and used his siren and cruiser lights in an attempt to rouse him.

When Brennan finally opened his door, officer Dawson forced him to take a breathalyzer and arrested him for a probation violation even though he blew a 0.000.

All of this was done without a warrant. (Warrantless breathalyzer tests was not a condition of Brennan’s probation.)

If you think, it is obvious to any reasonable person that his rights were violated. Then you don’t know how the Sixth Circuit Court of Appeals interprets the Constitution.  The fact that this even went to an Appeals Court, speaks volumes about our justice system but I digress.

Let’s get back to the ruling;  judge John Nalabandian said that officer Dawson did violate Brennan’s Fourth Amendment rights by searching him without a warrant. All is good so far, right?

Not quite, Nalabandian went on to say “police actions that violate the Constitution do not lead to liability.”

The court also ruled that since officer “Dawson’s implied license was not clearly established” and because of that old police standby, “deficient training” he cannot be sued.

To say that the court’s reasoning is frustrating is an understatement. The court said that because “Wilson and Clare County were not on actual or constructive notice that the deputy training was deficient they could not be liable.”

Does anyone really think police are held to a higher standard when they constantly use the “deficient training” excuse?

If you are upset by the court’s ruling that police are not liable for violating the Constitution I warn you, it only gets worse.

Citizens must prove to judges that violating out rights is unlawful

According to the Sixth Circuit and this speaks volumes about our justice system “the plaintiff bears the burden of proving that the right was so well settled that every reasonable official would understand that what he is doing is unlawful.”

In other words, citizens must prove to a “reasonable official” [judge] that a police officer violating the Constitution is unlawful.

The Sixth Circuit claimed that since the Hardesty v. Hamburg Twp. ruling did not set a limit on how long a police officer can harass people at their homes Brennan cannot sue the police.  Even though they admitted that “absent a warrant a police officer has no greater license to remain on the property than a Girl Scout or trick-or-treater.”

The ruling repeatedly admits that “Dawson arguably violated the Constitution.” but states for a second time that “even if a government official violated a constitutional right, that official is entitled to qualified immunity.”

The Sixth Circuit refused to view the “constitutionality of the officer’s conduct or the continuing viability of Hardest and Turk.”

Not only did the Appeals court rule that Brennan cannot sue the police for violating his rights but they dismissed his unlawful arrest claim as well.

Only one judge, Karen Moore dissented and agreed like any “reasonable official” should, saying Brennan’s rights were violated and the officer could be sued.

Why is the media silent when rulings as egregious as this are taking place across the country?

Proving to “reasonable officials” that violating our rights is unlawful? America is fast on its way to becoming a police state.

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WSJ Reporter: We’ve Confirmed the Worst – US Intel Truly Was Spying on Trump Camp

by Cillian Zeal

 

A Wednesday piece by The New York Times which details the FBI’s investigation into Donald Trump’s 2016 presidential campaign may have revealed more than intended, at least if a Wall Street Journal reporter who has covered the surveillance previously is correct. 

The Journal’s Kimberley Strassel has written about the investigation in the past. In a piece last week, she posited that the FBI may have used a mole in the Trump campaign, particularly given the Department of Justice’s reluctance to turn over information about the informant to congressional investigators.

The Times piece revealed more details about the Trump campaign surveillance operation — called “Crossfire Hurricane” in reference to the Rolling Stones song “Jumpin’ Jack Flash” — and just how extensive it was. While the tenor of the article, which was written by Matt Apuzzo, Adam Goldman and Nicholas Fandos, is overwhelmingly favorable to the FBI and dismisses any claims that the surveillance was politically motivated ,(“I never saw anything that resembled a witch hunt or suggested that the bureau’s approach to the investigation was politically driven,” one DOJ official is quoted as saying) there were a few things buried deep in there that specifically caught Strassel’s attention.

In a tweetstorm Wednesday evening, Strassel noted key problems in The Times’ narrative, particularly when the story appeared and significant facts that they glossed over. 

Strassel first argued that the article was a calculated leak of sorts in an effort to get out ahead of House Intelligence Committee Chairman Devin Nunes and the information that he’s gathering and releasing regarding the FBI’s sources on the Trump investigation. 

1. So a few important points on that new NYT "Hurricane Crossfire" piece. A story that, BTW, all of us following this knew had to be coming. This is DOJ/FBI leakers' attempt to get in front of the facts Nunes is forcing out, to make it not sound so bad. Don't buy it. It's bad.

However, she says it proves what Trump was claiming all along: namely, that his campaign was being spied upon. 

Biggest takeaway: Govt "sources" admit that, indeed, the Obama DOJ and FBI spied on the Trump campaign. Spied. (Tho NYT kindly calls spy an "informant.") NYT slips in confirmation far down in story, and makes it out like it isn't a big deal. It is a very big deal.

— Kimberley Strassel (@KimStrassel) May 17, 2018

The story briefly mentions that “one government informant met several times with Mr. Page and Mr. Papadopoulos, current and former officials said. That has become a politically contentious point, with Mr. Trump’s allies questioning whether the FBI was spying on the Trump campaign or trying to entrap campaign officials.”  However, if that informant met several times with two low-level Trump campaign officials, one wonders just what his role — if any — in the Trump campaign might have been. It seems somewhat unlikely that a random individual outside the campaign would have had the opportunity to meet with both George Papadopoulos and Carter Page without some suspicion being aroused if the informant didn’t have extremely close ties to the campaign.


Federal Judge Rules Indiana Seizing Cars With Civil Forfeiture Is Unconstitutional

 

Nick Sibilla , Contributor

 

In a major win for private property rights, a federal judge ruled that Indiana can no longer seize vehicles under its controversial civil forfeiture laws, which allow police to confiscate property without filing criminal charges. Judge Jane Magnus-Stinson ruled that Indiana's laws were unconstitutional because they failed to provide a timely hearing for the property owner to contest the seizure.

The decision comes just days after Hoosier lawmakers held a summer study committee to discuss forfeiture reform, and less than a month after U.S. Attorney General Jeff Sessions announced a new policy to expand police seizures nationwide.

The case began last September when an officer with the Indianapolis Metropolitan Police Department pulled over Leroy Washington and found a small amount of cannabis. Police charged Washington with dealing marijuana and seized his car.

But Washington fought back. With help from Jeff Cardella, a criminal defense attorney and law professor at Indiana University, he filed a federal class-action lawsuit last November on behalf of other owners whose cars were held by law enforcement in Indianapolis. Between November 2016 and February 2017, those agencies seized at least 169 vehicles, or 11 cars per week on average. After he filed his lawsuit, Washington was able to recover his car, though he was still able to represent the class of owners. 

The lawsuit claimed that Indiana’s forfeiture laws violated the car owners’ right to due process, as guaranteed by the Fifth and Fourteenth Amendments. In Indiana, once property is seized, law enforcement can take up to 180 days to file a forfeiture complaint, i.e. a lawsuit to permanently confiscate the seized property. If the owner demands their car back, the deadline drops to 90 days from the date of the demand.

 Even worse, the property owner cannot challenge the seizure during that months-long hold period.  That is because, under state law, seized property is “not subject to replevin,” a process that would allow the owners to regain wrongfully taken property while awaiting trial. In other words, Hoosiers would have to wait up to six months before they could even challenge a seizure in court. That even includes innocent, third-party owners (typically parents and spouses) who did not know or consent to their property being used in any criminal activity. 

As Judge Magnus-Stinson noted, losing one’s car for months on end “could cause significant hardship:”

During those months, if the owner has secured financing to purchase the vehicle, he is still required to make payments on that loan, lest he risk foreclosure and repossession. He is also required, of course, to make other arrangements for his transportation needs, which may include fundamental life activities such as transit to a job or school, visits to health care professionals, and caretaking for children or other family members.

In order to prevent “erroneous deprivation” and to safeguard due process, property owners must be “provided with some sort of mechanism through which to challenge whether continued deprivation is justifiable.” As the U.S. Supreme Court noted almost 25 years ago, “our precedents establish the general rule that individuals must receive notice and an opportunity to be heard before the Government deprives them of property.”

But Indiana’s forfeiture laws ban replevin and do not allow any other “opportunity for interim relief," which raises grave due process concerns. According to Judge Magnus-Stinson, “there is no judicial determination of probable cause for the seizure,” which means that “the only process that an individual receives prior to a forfeiture hearing is a law enforcement officer’s determination that probable cause exists for an arrest.”  That is, by definition, a one-sided affair.

“Allowing for the seizure and retention of vehicles,” she wrote, “without providing an opportunity for an individual to challenge the pre-forfeiture deprivation [is] unconstitutional.”

Article continues on Page 2

Overland Park Rental Inspection first steps toward Warrantless Home Invasion

by Allen Williams


Overland Park's rental inspection program is on schedule as work proceeds in identifying the city's property managers and other 'slum' landlords.  The city's propaganda magazine Overview Spring 2017 reports: "Last Month city staff members began reaching out to landlords of single-family dwellings in an effort to verify that the dwelling is being used as a rental. "  The city goes on to reassure residents that ".. this is all part of the initial launch of a new licensing and inspection program that focuses solely on exterior maintenance of residential property (opkansas.org/rentals) beginning July 1, 2017.

However what Overview magazine doesn't tell you is  that the licensing program is just another means of increasing city revenues so expect licensing fees to creep upward several times each decade. But more  importantly Overland Park has paved the way to force redevelopment on the north end of the city.  How's that you say?

Well for starters, how about fining you right out of your rental? What? Well check out This Indiana Town Wants to Fine a Community Out of Existence on Behalf of Private Developers. "Members of a small, low-income community in Indiana are discovering that state-level protections that make it hard for cities to seize their property may not be enough. When city leaders decide to get into bed with private developers, there are all sorts of ways for cronyism to threaten the property rights of owners. " And there's no question that Overland Park has been in bed with developers for years. 

But wait, the Indiana article gets better "While eminent domain was supposed to be used solely for public works projects (roads, schools, et cetera), the infamous Kelo v. City of New London Supreme Court decision set a legal precedent allowing governments to use it to hand over property to private developers for big projects."  That decision has already been put to good use. Remember the Kansas Speedway?  Over 165 homes were seized  to build that monstrosity.  "The condemnation of homes in Wyandotte County for the Kansas Speedway development was one of the more controversial uses of eminent domain power in Kansas."   But Oh, was it rewarding for Wyandotte coffers!: "County officials say the speedway and "Village West" -- the adjoining 400-acre development that includes Cabela's and Nebraska Furniture Mart -- have reinvigorated the local economy, created thousands of new jobs and poured millions of new tax dollars into local coffers."  And there you have it, more money for city coffers, to hell with the people and their homes. It's a small price to pay for economic prosperity, etc.

The US Supreme Court has sanctioned the seizing of private property for others use in Kelo v New London.  But property seizure for other's benefit alone is a nasty pill to swallow but fining owners into oblivion for building code violations, well that's much more palatable. 

The Indiana article continues: "So property rights-minded citizens might be surprised to hear that the mayor and city officials of Charlestown, Indiana, a rural community with a population of less than 8,000, are trying to arrange to hand over hundreds of homes to a private developer. He's not using eminent domain to do so. Instead, the city stands accused of deliberately finding excuses to burden the community's residents with thousands of dollars of fines that will be waived if they sell their properties to the private developer."

Get the drift or am I going too fast for you?

Well, what a coincidence, Indiana started with exterior inspections, too: "Beginning in the summer of 2016, the city unleashed a torrent of code enforcement targeted specifically at the Pleasant Ridge neighborhood. City officials began performing exterior inspections of properties in Pleasant Ridge and mailing citations to the owners. So far, this campaign has primarily targeted landlords who own multiple rental properties, rather than smaller landlords and owner-occupied houses."   Don't fret, Overland Park will include other properties as soon as it's expedient.

Overland Park concocted a rental inspection scheme a number of years back that evicted renters when interior improvements weren't made not unlike Marietta, George's plan: " The City of Marietta enacted a rental-housing inspection ordinance in 2004, requiring landlords to obtain “rental licenses” for all rental properties. To obtain a license, landlords had to hire and pay City-approved “rental housing inspectors” to inspect and certify that properties were in compliance with all housing codes. Nothing in the ordinance, however, required the landlord or the City to obtain the tenant’s consent before conducting the intrusive inspection. Yet, without inspection, no rental license would be issued, and the City Manager could order the property to be vacated." The OP plan was very unpopular and the city abandoned it for the time being.

Here's how city inspection theft works. "The citations state that the owner accrues penalties of $50 per violation, per day. Multiple citations are issued per property, which means that a single property will begin accumulating hundreds of dollars in fines each day. The fines can be for things as minor as a torn screen, weeds taller than eight inches or chipped paint. In many cases, the fines begin the day the citation was issued, not the day the owner received it. So owners can easily be on the hook for thousands of dollars in fines before they even receive notice, and the fines continue to accrue until the owner is able to repair the property."

Sweet, huh? Overland Park has been fining properties for 8-inch weed height (even if there are as few as 6 weeds per 1/3- acre) since April 2000 often as a consequence of protesting city policies.  And now they expand the program to 'exterior' rental inspection which will eventually include the rental Interior as in Minnesota. "Minnesotans have a new reason to remember to empty their dishwashers and keep their bathrooms clean. That’s because the city of Golden Valley is asking the Minnesota Court of Appeals to grant it a warrant to inspect the rental property of Jason and Jacki Wiebesick to check that their tenants are, among other things, maintaining a clean kitchen and a tidy toilet."

Yes, people, emptying your dishwasher and maintaining a tidy toilet is tantamount to being a good citizen.  The city now has the means to acquire rental property for its developer cronies with out involving eminent domain issues.  Here's the real motive driving rental inspections:: "Mayor Bob Hall decided in 2014 that he wanted to get rid of the houses there and replace it with a more upscale planned community with fancier homes and retail options. But he needed to get rid of the houses (and the people within them) first. Starting in 2016, residents and property owners of Pleasant Ridge discovered Charlestown had a nasty tool to try to get rid of them. City officials started looking for any excuse to cite property owners for code violations. When you're looking at low-income neighborhoods full of working people and retirees, there are likely to be plenty.

Overland Park's north end is full of low income families, obviously another coincidence to Indiana's program. OP has been looking to force the redevelopment of Metcalf avenue on the north end for some years now and it appears that the rental inspection program may be the ticket. 

You can bet the city isn't instituting their inspection program merely to provide renters with a better place to live.  When you have to have a license to rent or to have a home inspection as a rental condition, you no longer live in a free country.

It is a police state.






OP's Reich adds License Plate Scanner To Tighten Citizen Surveillance

by Jennifer Lynch and Peter Bibring

Law enforcement agencies are increasingly using sophisticated cameras, called "automated license plate readers," or ALPRs, to scan and record the license plates of millions of cars across the country. These cameras, mounted on top of patrol cars and on city streets, can scan up to 1,800 license plate per minute, day or night, allowing one squad car to record more than 14,000 plates during the course of a single shift.

Automated License Plate Recording System

Photographing a single license plate one time on a public city street may not seem problematic, but when the data are put into a database, combined with other scans of that same plate on other city streets, and stored forever, it can become very revealing. Information about your location over time can show not only where you live and work, but your political and religious beliefs, your social and sexual habits, your visits to the doctor, and your associations with others. And according to recent research reported in Nature, it's possible to identify 95% of individuals with as few as four randomly selected geospatial data points (location plus time), making location data the ultimate biometric identifiers.

To better gauge the real threat to privacy posed by ALPRs, the Electronic Frontier Foundation and the ACLU of Southern California asked the LAPD and LA Sheriff's Department for information on their systems, including their policies on retaining and sharing information and all the license plate data each department collected over the course of a single week in 2012.

After both agencies refused to release most of the records we asked for, we sued. We hope to get access to these data, both to show just how many data the agencies are collecting and to show how revealing they can be.

Automated license plate readers are often touted as an easy way to find stolen cars -- the system checks a scanned plate against a database of stolen or wanted cars and can instantly identify a hit, allowing officers to set up a sting to recover the car and catch the thief. But even when there's no match in the database and no reason to think a car is stolen or involved in a crime, police keep the data.

According to the LA Weekly, the LAPD and LASD together already have collected more than 160 million "data points" (license plates plus time, date, and exact location) in the greater LA area -- that's more than 20 hits for each of the more than 7 million vehicles registered in LA County. That's a ton of data, but it's not all -- law enforcement officers also have access to private databases containing hundreds of millions of plates and their coordinates collected by "repo" men.

Law enforcement agencies claim that ALPR systems are no different from an officer recording license plate, time and location information by hand. They also argue the data don't warrant any privacy protections because we drive our cars around in public. However, as five justices of the Supreme Court recognized last year in U.S. v. Jones, a case involving GPS tracking, the ease of data collection and the low cost of data storage make technological surveillance solutions such as GPS or ALPR very different from techniques used in the past.

Police are open about their desire to record the movements of every car in case it might one day prove valuable. In 2008, LAPD police Chief Charlie Beck (then the agency's chief of detectives) told GovTech magazine that ALPRs have "unlimited potential" as an investigative tool. "It's always going to be great for the black-and-white to be driving down the street and find stolen cars rolling around... But the real value comes from the long-term investigative uses of being able to track vehicles -- where they've been and what they've been doing -- and tie that to crimes that have occurred or that will occur." But amassing data on the movements of law-abiding residents poses a real threat to privacy, while the benefit to public safety is speculative, at best.

In light of privacy concerns, states including Maine, New Jersey, and Virginia have limited the use of ALPRs, and New Hampshire has banned them outright. Even the International Association of Chiefs of Police has issued a report recognizing that "recording driving habits" could raise First Amendment concerns because cameras could record "vehicles parked at addiction-counseling meetings, doctors' offices, health clinics, or even staging areas for political protests."

But even if ALPRs are permitted, there are still common-sense limits that can allow the public safety benefits of ALPRs while preventing the wholesale tracking of every resident's movements. Police can, and should, treat location information from ALPRs like other sensitive information -- they should retain it no longer than necessary to determine if it might be relevant to a crime, and should get a warrant to keep it any longer. They should limit who can access it and who they can share it with. And they should put oversight in place to ensure these limits are followed.

Unfortunately, efforts to impose reasonable limits on ALPR tracking in California have failed so far. Last year, legislation that would have limited private and law enforcement retention of ALPR data to 60 days -- a limit currently in effect for the California Highway Patrol -- and restricted sharing between law enforcement and private companies failed after vigorous opposition from law enforcement. In California, law enforcement agencies remain free to set their own policies on the use and retention of ALPR data, or to have no policy at all.

Some have asked why we would seek public disclosure of the actual license plate data collected by the police -- location-based data that we think is private. But we asked specifically for a narrow slice of data -- just a week's worth -- to demonstrate how invasive the technology is. Having the data will allow us to see how frequently some plates have been scanned; where and when, specifically, the cops are scanning plates; and just how many plates can be collected in a large metropolitan area over the course of a single week. Actual data will reveal whether ALPRs are deployed primarily in particular areas of Los Angeles and whether some communities might, therefore, be much more heavily tracked than others. If these data are too private to give a week's worth to the public to help inform us how the technology is being used, then isn't it too private to let the police amass years' worth of data without a warrant?

After the Boston Marathon bombings, many have argued that the government should take advantage of surveillance technology to collect more data, rather than less. But we should not so readily give up the very freedoms that terrorists seek to destroy. We should recognize just how revealing ALPR data are and not be afraid to push our police and legislators for sensible limits to protect our basic right to privacy.


{Editor Note: Automated License Plate Recorders are merely the precursor ro CCTV which is already in use in many U.S. cities. However, a recent Australian court decision casts doubt as to their real purpose which doesn't appear to be crime.  "A local resident opposed to the introduction of CCTV cameras succesfully proved that public surveillance carried out by his city council not only broke Australia’s privacy laws, but also did nothing to prevent crime – the supposed reason for its installation."}


Daniel Solove, author of Nothing to Hide: The False Tradeoff Between Privacy and Security, believes these arguments, and many like them, are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so.

Terrorist attacks, while horrific, claim far fewer lives each year than suicide in the U.S. Nearly 30,000 Americans take their own lives each year. According to The Guardian, 3,467 American lives have been lost in terrorist attacks since 1970; 3,003 of those were in 2001.  A version of this article was originally posted here.


The Secret Poceedings of the Kansas Supreme Court...

by Denis Boyles


Locking the courthouse door may seem like a lousy way to insure fair justice for all, but holding secret hearings on one of the state's most controversial issues is exactly what the Kansas Supreme Court is doing.

Most of us don't trust courts that operate in the dark. Americans, observed Justice Hugo Black 60 years ago, have a "historic distrust of secret proceedings, their inherent dangers to freedom, and the universal requirement of our federal and state governments that criminal trials be public."

Here's a short list of places where secret court proceedings are not unknown:

  • North Korea
  • Iran
  • China
  • Cuba
  • Syria
  • Zimbabwe
  • Kansas

All those secretive Syrians and enigmatic North Koreans probably would beg to differ, but, to paraphrase everybody's favorite Sunflower cliché, "what's up with Kansas?" How did it hop onto that short list of kangaroo judiciaries?

Back in June 2007, Planned Parenthood of Kansas and Mid-Missouri filed charges in the Kansas Supreme Court against former Attorney General and Johnson County District Attorney Phill Kline, all part of the ongoing battle by abortion clinics to prevent government enforcement of state laws regarding late-term abortions and child molestation.

Peter Brownlie, Planned Parenthood's CEO, confirmed the filing and that's the last we've heard, because Planned Parenthood requested a secret hearing, and the Kansas Supreme Court gave them one. That meant, according to David Klepper, blogging at the Kansas City Star, "the public couldn't see what the court case involved, couldn't read the filings, couldn't sit in on what surely must have been a fascinating hearing before the Supreme Court."

It's risky business when courts invite ridicule, but at the Kansas Supreme Court, the invitation's a standing one. Because of the eccentricities of state law, none of the supreme court's justices have ever been vetted by elected representatives. As many critics, including KU law professor Stephen J. Ware, have complained, "..there's no confirmation process at all" the governor appoints them and there they sit, sometimes dozing through cases that often seem to have already been decided by some backroom handshake.

Because Kansas has never had a conservative governor, there's not even much political diversity on the court. All the members are in general agreement on the way things ought to be in Kansas in fact, in 2005, they even started passing legislation of their own, deciding to the penny how much the state should spend on educating kids. Most of them have, at one time or other, made clear their impatience with wing-nuts and others who disagree with them.

You'd think conservatives would be pleased with a court that has moved so far back in time that its hearings resemble the Star Chamber trials that ended the reign and the life of Britain's Charles the First back in the 1600s.

But no. this afternoon, Rep. Lance Kinzer's House Judiciary Committee will hold hearings "public's invited, of course"on HB 2825, a crowbar bill that would pry open courtroom doors across the state by limiting the ability of judges to conduct secret trials and hearings or have their pleadings sealed.

The Planned Parenthood v Kline case triggered Kinzer's concern, but, as he wrote in an email, the bill is "more of an open [government] issue than a pro-life issue." In a statement released yesterday, Kinzer wrote, "The public has a fundamental interest in all cases that are submitted to a court for resolution. It is an unfortunate reality today that many of the most important public policy issues facing our State are being decided by courts. As such it is more important than ever that our judicial process is open and accessible."

An open court presided over by justices who have been through a public confirmation process? There's a wild and crazy idea, one that's never been tried in Teheran or in Topeka.


Denis Boyles, comments on the media and the Midwest for National Review Online, also writes the Monday, Monday column for Kansas Liberty. He's the author of Superior, Nebraska, an oddly-titled book mostly about Kansas.