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12 October 2021

Beveridge & Diamond

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In a major victory for property owners facing state and localland use regulation, the U.S. Supreme Court on Wednesday ruled 6-3that a California regulation granting union organizers the right toaccess private property is a per se physical takingrequiring the payment of just compensation under the Takings Clauseof the U.S. Constitution. Cedar Point Nursery v. Hassid, 2021 WL2557070 (U.S. June 23, 2021). Cedar Point representsanother expansion by the Roberts Court of property owner rightsunder the Takings Clause and opens the door further to legalchallenges to government mandates allowing access to privateproperty.

Cedar Point began with a federal lawsuit under theFifth and Fourteenth Amendments by two California growerschallenging a decades-old state regulation granting labororganizations access to an agricultural employer's property forup to three hours per day, 120 days per year, for labor organizingpurposes. The lead plaintiff, a grower, challenged the regulationafter union organizers entered the company's property withoutnotice, causing some workers to join in a protest and others toleave the job site. Plaintiffs alleged that the regulation createdan easement on their properties that amounted to a per sephysical taking, requiring just compensation under theConstitution.

The trial court rejected the growers' argument that theregulation was a per se physical taking because it did not"allow the public to access their property in a permanent andcontinuous manner for whatever reason." The Ninth Circuitaffirmed, explaining that the Penn Central analysis forregulatory, not physical, takings was appropriate, and holding thatbecause "the growers did not contend that the regulationdeprived them of all economically beneficial use of their property,per se treatment was inappropriate" and the takingsclaim was invalid. 923 F.3d 524 (2019).

Writing for the Court, Chief Justice Roberts held that the NinthCircuit erred when it applied Penn Central because theappellate court's decision was incorrectly focused on the factthat the government action was a regulation. Rather, the essentialquestion is "whether the government has physically takenproperty for itself or someone else by whatever means or has instead restricted a property owner's ability touse his own property." The Court reasoned that because aphysical appropriation of property had occurred regardlessof whether it was a result of a state regulation "Penn Central has no place."

The Court also rejected the Ninth Circuit's holding that theregulation did not constitute a per se taking because itonly granted temporary access to the union organizers. The Courtheld that this position "is insupportable as a matter ofprecedent and common sense," citing several Supreme Courtprecedents that established temporary takings as physical takingsrequiring compensation.

The three dissenting justices argued that the Californiaregulation "falls within the scope of PennCentral" and voiced concerns about the potential for theCourt's decision to require compensation for government accessfor health and safety inspections and similar activities. Themajority opinion dismissed those concerns, noting that such accessis typically required as a condition of a permit, license, orregistration.

The Cedar Point Nursery decision broadens the reach ofthe law of per se physical takings, a typically morestraightforward and plaintiff-friendly form of takings claim thanregulatory takings. Coupled with the Supreme Court's 2019decision in Knick v. Scott Township, 139 S.Ct. 2162, thatexpanded access to the federal courts for takings claims, propertyowners and businesses now have more tools to negotiate, limit, andwhere necessary, litigate in federal court state and local mandatesthat involve intrusion on land. Per se takings thatrequire compensation may well extend beyond easements created byregulation, such as the requirement at issue in CedarPoint.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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Supreme Court Finds Fifth Amendment Taking In State Regulation Granting Access To Private Property - Real Estate and Construction - United States -...

Summary

Steve Bannon is going to defy the January 6th committee subpoena. A Florida school board member who supports masks has been harassed by anti- mask protesters. Donald Trump`s company is now a criminal defendant in a tax fraud case in Manhattan. According to federal rules, The Trump Organization can now be barred from doing business with the federal government.

LAWRENCE O`DONNELL, MSNBC HOST: Good evening, Rachel.

And I was listening to your reporting on what`s going on in Alaska, and you showed the video of people in these meetings threatening these elected officials who are considering how much mask mandating do we have to do and what situations. We`re going to be joined tonight by Jennifer Jenkins who has gone viral in the last 24 hours on this issue. She`s a school board member in Florida.

And what she has endured by simply by believing that masks are a pretty good idea to try to limit the spread of COVID in public schools, what she and her daughter, her family have endured is just horrific, and she finally spoke about it for the first time yesterday. She`s going to join us tonight.

And I just marvel at the bravery of these people. The astonishing thing in your reporting is at the end of everything that we see here, they then vote 9-1 in favor of masks and against the wishes of the people who were threatening them with violence.

RACHEL MADDOW, MSNBC HOST, "TRMS": That`s right, and public service is sort of always a small H form of heroism, always. To be a public servant is to do a good thing by the world. But it should not actually take literal bravery. It should not take physical bravery to do these kinds of jobs, to be a city councilor, to be a school board member, to do these things.

But the way the political right has dealt with COVID is by bringing threat, including physical intimidation and physical harm very, very, very close to the surface almost immediately for the public servants who are dealing with these questions just as part of their job in public service, and it is -- I saw the footage that you`re referring to from your guests tonight. I`m really looking forward to what she has to say about it.

She shouldn`t have to be that brave to do that job. That`s on us as a country.

O`DONNELL: Exactly, exactly. And no one signing up for the school board was ever signing up for this kind of thing, and so --

MADDOW: That`s right.

O`DONNELL: That`s the other part of the marvel of it is the -- people continuing in these jobs in the face of this.

MADDOW: Yeah.

O`DONNELL: I mean, they are in a sense part of that first responder force that the people who must come up with ways of responding to COVID because of their jobs right away, and people involved in the schools have all been part of that, and now, with the school year underway, successfully, there`s this -- instead of celebrating how successfully the school year has gone so far, there is all this rage.

MADDOW: Rage and threat and literal violence and there`s going to have to be both accountability for it but there`s also got to be strategies to deescalate this stuff, that will have to involve responsible figures on the right. That`s what we`re not seeing yet.

O`DONNELL: Yeah, we`ll have to be very patient waiting for them to emerge. That`s the one that`s going to happen.

Thank you, Rachel.

MADDOW: Thanks, Lawrence.

O`DONNELL: Thank you.

Well, Steve Bannon is promising to become a criminal again tomorrow. But he won`t have Donald Trump to pardon him this time. In the last months of the Trump presidency, Steve Bannon was arrested and charged with federal crimes for the way he embezzled money that he raised from pathetically gullible Trump voters who actually gave money to Steve Bannon because Steve Bannon lied to them and told them that he would use that money to privately build the wall on the southern border that the president of the United States Donald Trump was not able to build.

Steve Bannon would build it if you just sent him your money. Steve Bannon defrauded Trump voters, got caught by the feds, was charged with those crimes, but didn`t have to go to trial in federal court because Donald Trump pardoned him, pardoned him for defrauding Donald Trump`s own voters.

Steve Bannon has been subpoenaed by the special House committee investigating the attack on the capitol to testify tomorrow, and he has already become the first person in history who is trying to hide behind presidential executive privilege even though he wasn`t even working in the White House or the government during the period that the committee is investigating.

[22:05:07]

He was a private citizen.

Donald Trump has become the first private citizen and former president in history to try to exert executive privilege in a congressional investigation and felt today once again, President Biden smacked down that false and illegal claim by Donald Trump.

The White House released a letter today that was actually written last week to the archivist of the United States where all of the presidential records are kept. That letter says President Biden does not uphold the former president`s assertion of privilege. President Biden instructed the archivist to provide the House committee with all, all of the information that the committee has requested.

Last week, Steve Bannon`s lawyer sent a letter to the committee saying since these privileges belong to President Trump and not to Mr. Bannon, until these issues are resolved, Mr. Bannon is legally unable to comply with your subpoena requests for documents and testimony.

Like all Trump world lawyers, Steve Bannon`s lawyer is one of those lawyers where you wonder if he really finished law school. He is so wildly wrong.

Executive privilege no longer belongs to Donald Trump. It now belongs to President Joe Biden, and so when Steve Bannon does not show up for his deposition tomorrow, the House committee is going to recommend to the Justice Department that Steve Bannon face criminal charges for contempt of Congress.

(BEGIN VIDEO CLIP)

REP. ADAM SCHIFF (D-CA): I think that Steve Bannon has been pretty public about his unwillingness to cooperate in any way and from my point of view, it`s not up to him. He is required to show up. He`s required to testify, and if he doesn`t and doesn`t have a reason, a legal reason to proffer, which he doesn`t, then we will hold him in criminal contempt and we will refer that to the Justice Department for prosecution. That will be true of the other witnesses as well if they do not comply.

(END VIDEO CLIP)

O`DONNELL: That was Adam Schiff on this program last night. He`s a member of that committee. Liz Cheney and other members of the committee have also said that the committee is unanimously supportive of enforcing its subpoenas with criminal contempt charges. The committee made news at the close of business today by revealing that they have subpoenaed former Acting Assistant Attorney General Jeffrey Clark.

In a letter to Clark accompanying the subpoena, the committee said that they have credible evidence that you attempted to involve the Department of Justice in efforts to interrupt the peaceful transfer of power. You proposed that the department send a letter to state legislators in Georgia and other states suggesting that they delay certification of their election results and hold a press conference announcing that the department was investigating allegations of voter fraud. These proposals were rejected by department leadership as both lacking a factual basis and inconsistent with the department`s institutional role.

Lacking a factual basis, so Jeffrey Clark knows that the committee already knows that he was lying about the election in discussions inside the justice department and inside the White House. Jeffrey Clark is ordered to testify in a deposition on October 29th, and that gives him about two weeks to practice invoking the Fifth Amendment.

The committee obtained direct incriminating evidence against Jeffrey Clark today in the testimony of Jeff Rosen, who was Donald Trump`s final acting attorney general. If Jeff Rosen told the House committee the same things that he told the Senate Judiciary Committee about Jeffrey Clark, then Jeffrey Clark is living in fear of criminal charges tonight of attempted election fraud and conspiracy to commit election fraud.

Joining our discussion, Jill Wine-Banks, former assistant Watergate prosecutor, and Matt Miller, former spokesman for Attorney General Eric Holder, both are MSNBC contributors.

And, Jill, I want to begin with you and I want to begin with this key question that I think has left a lot of us confused. Why were you so effective in getting compliance to subpoenas against President Nixon and his administration during the Watergate investigation? And the Democrats in Congress have been so ineffective in relative terms in pursuit of the same kind of subpoenas against team Trump?

[22:10:05]

JILL WINE-BANKS, MSNBC CONTRIBUTOR: It`s really a very simple answer. Because President Nixon, despite his crimes and despite all the wrong that he did, actually believed in our system of laws and government. And when confronted with a Supreme Court decision, he agreed to comply.

So he never tried to stop people. He did try to claim executive privilege, but the Supreme Court said, no, you have to balance it. And in this case, the needs for the criminal investigation far outweigh the need for executive privilege.

And, of course, it is clear that even in the case cited by Bannon`s lawyer, this is a privilege of the current incumbent. It goes with the office. It does not go with the former office holder, so there is no possible executive privilege for any of the people and maybe most especially for Bannon who never was at the time of these conversations a part of the White House.

But even if he was, there wouldn`t be a legitimate claim of executive privilege. And so I think we have to look at the fact that the Republicans now are willing to evade all laws and to just simply stone wall in a way that is completely contrary to our democracy.

O`DONNELL: Wasn`t there another element in the enforcement of your subpoenas in the 1970s, 1974 in the Watergate investigation, and that was the speed of the courts. I mean, it seemed like you would issue a subpoena, the subpoena for the tapes, for example, the presidential tapes, that case went right up to the Supreme Court of the United States, got a ruling, and the ruling was enforced, and it seemed to take a matter of weeks to go from subpoena to the United States Supreme Court to a final ruling?

WINE-BANKS: It did. We`re clearly living in an alternative universe now. We issued the second subpoena for 64 tapes for the trial on April 16th. It was argued in the Supreme Court July 21st, I believe, and on July 24th, the Supreme Court ruled in our favor.

We got the tapes, and by August 9th, so we`re talking about days later, the Republicans had gone to the White House and said we saw the tapes, we heard them. We cannot support you. If you do not resign, you will be convicted in a Senate trial.

So that`s why it happened from April, August 9th he was out of office, and it could happen again if the Supreme Court would stop all of the political nonsense that they have been engaged in, if they would take this seriously. This is a case that cannot be left to linger for years, as it has recently. There have been other subpoenas and it has taken up to six years for a decision.

That can`t be allowed to happen because justice delayed is justice denied, and this delay would be a killer because we need to get this information to prevent any possibility of this happening again. We need the facts that are being asked. Everything that has been subpoenaed, everything requested in the letters seems very clearly relevant to legislative actions.

O`DONNELL: Matt, it seems Jeff Clark, my guess about him is that it`s very likely that he will show up to testify. It`s also very likely he will take the Fifth Amendment to virtually every question.

MATT MILLER, MSNBC CONTRIBUTOR: I think that`s likely. I think certainly he`s going to have to show up and testify. He really is on an island by himself. If you look at the way he was behaving in those final weeks.

He was acting completely beyond his authority. He`s supposed to be in charge of environmental crimes and was conducting his own investigations or supposed investigations into voter fraud. He was violating multiple department rules, having contacts with the White House, having contacts with members of Congress, both of which he was not allowed to do on his own, and of course violating his oath to the Constitution by trying to overturn the election.

And he really is, you know, out there by himself because, you know, we`ve seen Jeffrey Rosen and we`ve seen one of Jeffrey Rosen`s subordinates testifying before Congress because the Justice Department has already told Rosen and Clark and other DOJ officials from this time period that the department is waiving all of the relevant privileges. Usually the department blocks its officials from coming up and testifying for matters like this, and they`ve waived all of them. That`s true for Jeffrey Clark.

So, you know, if he wants to avoid a criminal referral and be charged with criminal contempt of Congress, you know, he needs to come up and comply with the subpoena and testify because otherwise he`s in blatant contempt of Congress. Now, to your point, if he wants to take the fifth, of course, that`s his right to -- that`s his right.

[22:15:05]

He can do so, but he doesn`t have the ability to just blow off the subpoena like he seems to want to do.

O`DONNELL: So, Matt, one of the changes in the 21st century compared to the Nixon era is just how breathtakingly slow the courts are, at the district court level, the appeals court level on all of these enforcement issues on congressional subpoenas. What about -- the Justice Department will now be tested when the Congress refers to the Justice Department for criminal prosecution of contempt of Congress. We don`t know how quickly the Merrick Garland Justice Department will be able to move on this, and in, you know -- in the past these kinds of things have been able to be handled very, very quickly.

What is your expectation of a timetable at the Justice Department for this?

MILLER: I would expect they could move pretty quickly. Look, the Justice Department has a rule that they will not prosecute someone for contempt of Congress if they are refusing to testify because there has been a legitimate claim of executive privilege by the president of the United States. It ought to be pretty easy for the attorney general to pick up the phone, call the White House counsel and say, Dana, did the president -- President Biden invoke executive privilege for Jeff Clark or Steve Bannon or any of these other within witnesses? And when the answer is no, as we know the answer is, it`s a pretty straightforward prosecution.

And I actually think the Justice Department could do more, by just making it clear that if you are not the subject of an executive privilege assertion by the sitting president of the United States, not Donald Trump but Joe Biden, and you blow off the congressional subpoena and refuse to testify, you are not immune from prosecution and we will take those referrals very seriously.

These witnesses are acting with impunity because for years they got away with it with no consequences, and if DOJ sent that kind of signal right now, I think you`d see some of these people coming up and testifying even before it got to a subpoena and not kind of playing chicken with Congress and playing chicken with the Justice Department the way they`re doing now.

O`DONNELL: Matt Miller and Jill Wine-Banks, thank you both for starting us off tonight, really appreciate it. Thank you.

And coming up, Zerlina Maxwell and Alex Wagner will be joining our discussion. But, first, we`ll be joined by someone who went viral this the last 24 hours by showing us just how bad the anti-mask protesters can be, just how vicious and how much bravery and strength it takes for one school board member in Florida to stand up to them. Jennifer Jenkins will join us and we`ll tell you what she and her daughter have had to endure, and it is much, much worse than you think. That`s next.

(COMMERCIAL BREAK)

[22:22:06]

O`DONNELL: Our next guest, Jennifer Jenkins, has now had the experience of going viral in the last 24 hours. When I saw the video of Jennifer Jenkins speaking at a school board meeting in Florida, I was in awe of her courage and her calm because Jennifer Jenkins thinks that masks are a good way to limit the spread of COVID-19 in public schools. Jennifer Jenkins and her family, her daughter, have been targeted for nothing less than public torture by Florida`s anti-mask fanatics.

In Florida, it is the Department of Children and Families that investigates child abuse, the DCF. No one knew that the DCF was going to come up at a public meeting of the school board in Brevard County, Florida, southeast of Orlando. The school board discussed whether it would be possible to allow home coming dances this year. The home coming dances have been postponed indefinitely because of COVID-19.

When the agenda turned to a resolution about threats against school board members, Jennifer Jenkins found herself talking about something she never wanted to talk about publicly.

(BEGIN VIDEO CLIP)

JENNIFER JENKINS, BOARD MEMBERS: In spite of what people believe, I am not opposed to people practicing their First Amendment rights, even when it`s outside of my home on a public property. I`m not. I`m not. I think it`s a silly method. I think it`s ineffective. It doesn`t move me or motivate me in any way, but I`m not opposed to it.

What I reject is this effort to create fear and division in the community that leads to credible threats of violence against me and my family, and there`s a lot of things that I haven`t shared with all of you up here.

I`ve tried not to talk about this stuff publicly. I don`t reject people coming here and speaking their voice. They do it all the time. We don`t stop them from doing that. I don`t reject them standing outside my home.

I reject them following me around in a car, following my car around. I reject them saying that they`re coming for me, that I need to beg for mercy. I reject that when they are using their First Amendment rights on public property, they`re also going behind my home and brandishing their weapons to my neighbors.

That they`re making false DCF claims against me to my daughter, that I have to take a DCF investigator to her play date to go underneath her clothing and check for burn marks. That`s what I`m against, which is a credible threat and calculated.

(END VIDEO CLIP)

O`DONNELL: Joining us now is Jennifer Jenkins, a member of the Brevard County, Florida, school board.

Thank you very much for joining us tonight. I am very, very sorry for what you have endured and for what you`re here to tell us about tonight.

[22:25:07]

How long has this kind of harassment and public torture been going on?

JENKINS: Thank you so much for having me, first and foremost.

You know, to be honest with you, this is something that started within Brevard County back in April for me. It started with a minority group of individuals who are part of an organization that was founded by my Republican opponent, who have decided that their voices are going to be used to terrorize me.

And you know, the majority of people support me, and they reach out to me and they tell me that they`re there for me and they support the things that I stand for. But unfortunately, it doesn`t just take -- it just takes one person to terrorize you.

And when there`s no consequences for it, it becomes the norm, and it becomes acceptable and to be perfectly honest with you, I feel like this is the new pandemic here in the state of Florida for us to focus on. It`s going across the nation as well.

Our school board members and our educators are being attacked and threatened for doing what they were elected to do, what I was elected to do, to keep our students and our staff safe and what educators were hired to do to protect our children.

O`DONNELL: You`re in a state where 60 percent support what you`re doing, 60 percent support requiring students, teachers, and staff to wear masks in school, but you`re in a Republican area where that polling might be very different.

You left out a lot of details of what`s happened to you that I know about because of conversations that we`ve had with you today including some of the vandalism that occurs at your home. They`ve attacked your plants and your trees. It`s a very active kind of thing. It took the police an hour and 40 minutes to come to your home one time while one of these things was going on.

What is it like to be in your home with your daughter watching that stuff?

JENKINS: It`s really difficult. The last protest where they came outside of my home, again, I`m not against people using their First Amendment rights. They`re on public property. That`s okay.

But I`m against them terrorizing my family. There was 25 individuals standing outside my home in a small beach town in Florida. They were there for hours.

Police presence didn`t come right away. It started to get dark out. It was time for me to put my daughter to bed, and as I`m sitting trying to read her a story, these individuals are walking right by her bedroom saying vile things.

And as I followed them around the corner to where their cars were parked into a parking lot right behind my home, police presence wasn`t following them until I was there. They got in my face. They coughed in my face telling me they were going to give me COVID. They swung flags in my face, nearly missing me by a couple inches. They said horrible disgusting things to my neighbors.

I eventually went back inside, but they brandished their weapons in the parking lot in front of my neighbors, my daughter to this day at least twice a week, mommy are those mean people going to be outside again. It`s been really difficult.

Yeah, they did, they vandalized my property. They wrote obscenities in my grass with weed killer. They cut down some of my plants. They did the DCF claim which was really difficult for me. I had to take the DCF investigator to a play date of somebody who I am just an acquaintance of, I don`t even know very well.

So, here I am a school board member walking back to a play date I had just dropped her off to with a DCF investigator with no announcement for them to look underneath her clothes to see if she has burns. It`s a really uncomfortable position to be in, and unfortunately even though the police department is doing their best to have subpoenas sent to the state level to figure out who made that unfounded claim, there`s only so far they can go.

And so, currently, I still have a document that says I had an unfounded DCF claim against me. It`s not something that`s going to go away.

O`DONNELL: What did you tell your daughter about that incident with the DCF during that play date?

JENKINS: You know, the DCF investigator was fantastic. And so, she had no idea what was going on. I really appreciated that person understanding this was very unlikely an unfounded claim. The police department came with her and let her know what`s going on.

She handled it really, really well like a pro, and I was really happy that she was there.

[22:29:51]

O`DONNELL: Why did you want to become a member of the school board and do you want to continue as a member of the school board?

JENKINS: I ran to become a member of the school board because I`m an educator. My husband`s an educator, and my daughter just turned five years old. She just entered kindergarten.

The rest is here:
Transcript: The Last Word with Lawrence O'Donnell, 10/13/21 - MSNBC

THE HOST of the investigative TV series In Pursuit With John Walsh is a criminal investigator.

Walsh slammed the police investigation of the Gabby Petito case and said he is "settling up to catch" Brian Laundrie.

1

John Walsh, born on December 26, 1945, is an American TV host and criminal investigator.

He is best known for his role on America's Most Wanted, a reality show he created after the murder of his son, Adam Walsh.

According to his website, he has helped authorities "capture more than 1,200 fugitives and brought home more than 50 missing children".

He was later the host of the investigative series,The Hunt With John Walsh, followed by the series,In Pursuit with John Walsh.

Walsh became involved in anti-crime activism after the murder of his six-year-old son Adam in 1981.

In July 1981, the young boy wasabductedfrom aSearsdepartment store in Hollywood, Florida.

Serial killer Ottis Toolewas officially named as Adam's killer in 2008.

In 2021, at the age of 75, Walsh continues to be a victim rightsadvocate and has organized a political campaign to help missing and exploited children.

The TV host criticized the police investigation on the murdered YouTuber's case and vowed to join the hunt for missing Laundrie.

Read our Gabby Petito live blog for the very latest news and updates...

He said: "I dont know how he got out of the house with the FBI and local cops watching him day and night."

Authorities spent days searching the 24,000-acre Florida reserve, something that Walsh brandeda "red herring," adding he doesn't believeLaundrie ever went to the reserve.

He told USA today: "They spent all that revenue, looking for him now, a day late and a dollar short.

"I understand the Fifth Amendment, I understand that Brian doesn't want to talk to the cops and his family doesn't want to talk to cops, as despicable as that is, but the cops could ask for proof of life."

He also suggested that officers should have been stationed outside the Laundrie home as well as an unmarked car to tail anyone leaving the home

Walsh said authorities wasted time and effort looking in all the wrong places.

In a special on Tonight ID, Walsh said, "(Laundrie) could walk across the (Mexico) border naked with his hair on fire and nobody would notice him."

The hunt for Laundrie continuesafter an autopsy confirmed the body ofGabby Petito, 22, was found inWyoming.

Laundrie remains at large four weeks after he vanished from his parents' home in Florida.

The 23-year-old hasnot yet been deemed a suspect in Gabby's death but has been named as a person of interest.

Walsh has been married to Rev Drew since 1971.

After the murder of their son Adam - who was born on November 14, 1974 - the pair had three more children: Meghan, 39, Callahan, 36, and Hayden, 27.

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Who is John Walsh and how old is he?... - The US Sun

POLK COUNTY, Fla. (WFLA) A woman is in extremely critical condition after deputies say she was shot while riding on the back of a motorcycle early Friday morning on Interstate 4 in Polk County.

According to Sheriff Grady Judd, just after midnight 38-year-old Ronald Donovan, a member of the Sin City Deciples Motorcycle Club, was driving eastbound on I-4. Donovan, his passenger, a 33-year-old woman, and two other motorcyclists were driving toward the Orlando area.

Judd said thats when two members of the Thug Riders Motorcycle Club passed by them, which didnt sit well with Donovan.

There was some skirmishing and some driving about 100 miles per hour, the sheriff said.

He said Donovan then shot and hit one of the Thug Riders motorcyclists, a 36-year-old man, who fired back toward Donovan.

According to Judd, the bullet struck Donovans passenger in the head just above the ear, causing her to fall off of the motorcycle. Medical experts say she is not expected to survive.

They took an 1888 old western shootout and brought it to 2021 last night, Judd said. You had a rush of testosterone and a rush of idiocy and it ended up with near death.

The sheriff said the injured Thug Riders motorcyclist drove to Champions Gate and stopped at Papa Johns to call 911. At the same time, other 911 calls came into the Polk County Sheriffs Office regarding the shooting on the interstate.

When deputies arrived at the scene, Judd said Donovan had two empty gun holsters, but no guns were found in the area. A motorcyclist was also seen fleeing from the area.

The sheriff also noted that when deputies tried to ask Donovan questions, he responded by saying I know my rights and invoked his Fifth Amendment right.

Donovan was arrested on scene and has been charged with the following:

According to Judd, at this time, the investigation shows that the Thug Riders victim was acting in self-defense when he returned fire.

A portion of I-4 was shut down for several hours as deputies and Florida Highway Patrol troopers searched for firearms and bullet casings over a half-mile area.

Since the shooting involved two separate motorcycle gangs, the sheriff gave the following warning to members of each side:

Let me warn you, retaliation will get you all locked up in prison for a very long time and thats a guarantee in Polk County, he said. Your stupidness has already gotten a 33-year-old beautiful young lady in a near-death situation and another man shot.

Sheriff Judd he expects to provide more details on the case on Monday.

View original post here:
Shootout between motorcyclists on I-4 leaves woman in critical condition, Sheriff Judd says - WFLA

ANALYSIS/OPINION:

Three people can keep a secret if two of them are dead. Benjamin Franklin (1706-1790)

Last week, President George W. Bushs torture regime reared its head in an unusual argument before the U.S. Supreme Court.

In 2002, Abu Zubaydah was captured by a militia in Pakistan and handed over to the CIA, which brought him to Poland. Under the supervision of CIA agents and American psychologists, he was brutally tortured until his removal to the Guantanamo Bay Naval Base in Cuba in 2006.

The Bush administration argued Mr. Zubaydah was a high-ranking member of al-Qaida who possessed information needed to fight the war on terror. After his torture produced no actionable information, the CIA told the Department of Justice and the Senate that Mr. Zubaydah was not a member of al-Qaida. It had no evidence of wrongdoing by him.

His lawyers filed a criminal complaint with the European Court of Human Rights against the CIA, its psychologists, and the Polish intelligence agents who carried out the torture.

That court concluded that the torture occurred, and it referred to Polish prosecutors to proceed criminally against the defendants. During that criminal proceeding, Polish prosecutors asked the DOJ for the names of those who tortured Mr. Zubaydah and documentation of what they did to him.

In the Supreme Court last week, the governments lawyer conceded that the names of the torturers and the nature of their horrible deeds are already known the psychologists wrote a book about it but the government will not confirm any of it because it constitutes state secrets.

So, if these so-called secrets are now publicly known, why does the government refuse to confirm them?

Here is the backstory.

On Oct. 6, 1948, a U.S. government plane was leaving from Robins Air Force Base in Warner Robins, Georgia, for a round-trip flight to Orlando, Florida, when it crashed, killing its crew. When surviving family members sued the government to determine who manufactured the plane and why it crashed, the feds declined to provide any information asserting that what was sought constituted state secrets.

In 1953, when the Supreme Court upheld this novel argument, it effectively changed the rules of evidence by permitting the federal government without disclosing to a judge what the secrets are to withhold evidence merely by making this claim.

Since 1953, the government has successfully asserted the state secrets claim dozens of times, claiming that the revelation of the so-called secrets will adversely affect national security.

In 2001, after the statute of limitations had long expired for any litigation over the 1948 crash, and reporters filed Freedom of Information Act requests for the alleged state secrets, a judge ordered the government to reveal them.

There were none.

The entire state secrets doctrine was based on covering up government embarrassment and wrongdoing, not the retention of legitimate secrets.

Now, back to the Zubaydah case in which he subpoenaed the DOJ for the records of his torture. Everyone involved in the oral argument knew that the state secrets doctrine was based on material misrepresentations the feds made to at least a dozen federal judges. Yet, the government treated it as if it were legitimate and compelling. The government argued that in wartime, its powers to keep its behavior secret are enhanced.

When Justice Brett Kavanaugh asked what war the U.S. is currently fighting that underlies its state secrets claim, the DOJ lawyer answered that the U.S. is still at war in Afghanistan!

The governments argument that the U.S. is still at war in Afghanistan this must be news to President Joseph R. Biden is, of course, absurd. Yet its cavalier assertion raises serious constitutional questions about war, torture, and secrets.

The state secrets doctrine is a fraud and used by the feds to cover up embarrassments and unlawful behavior for 68 years. And its employment by federal judges who have declined to require that the government produce the secrets for a judicial examination in secret so the courts can determine if these secrets exist and if their revelation would harm national security is a craven rejection of a core judicial function.

That function assures that trials are fair and their outcome is based on evidence, not deception.

The claim that somehow the existence of war in this case, a war that the whole world, except one federal prosecutor, knows is over somehow justifies the detention without charges of a person as to whom the government has no evidence of wrongdoing, and that somehow war justifies torture, and that somehow all of this can be kept secret are claims that violate the Constitution and the federal anti-torture statutes that all who work for the government have sworn to uphold.

The Fifth Amendment guarantees Mr. Zubaydah due process, and the First Amendment guarantees transparency.

The government does not want to confront this. That Mr. Zubaydah was tortured for four years before the CIA and its Polish collaborators concluded that he was truthful demonstrates the reality of the governments resort to illegal and medieval means to gather facts and that torture as a means to the truth is useless and ruinous.

For all we know, Mr. Bush pardoned the psychologists and CIA agents who monitored the torture, but he could not pardon the Polish agents whose names and methods may soon be revealed.

At the end of the oral argument, Justice Neil Gorsuch asked the DOJ lawyer why the DOJ doesnt permit Mr. Zubaydah to testify in the Polish proceedings. The same lawyer who had just told Justice Kavanaugh that the U.S. is still fighting in Afghanistan had no answer.

The government undermines the Constitution when it lies and when it tortures. What kind of society enforces criminal laws against harmless drug users but not against harmful government torturers?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is an analyst for the Fox News Channel. He has written seven books on the U.S. Constitution.

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Lies and torture cover-up: U.S. state secrets doctrine is a fraud - Washington Times