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James W. Pfister| The Daily Telegram

The Fifth Amendment to the Constitution protects private property through due process and compensation: a person will not be …deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. State government is likewise limited by the 14th Amendment, textually for due process and by incorporation of the Fifth Amendment for taking, and by their own constitutions.

This taking is straight-forward when the government physically takes property for, say, a road. Butwhat if it physically takes property in other ways or substantially regulates it affecting its use and value?

In Penn Central Transportation v. New York City (1978), the citys historic preservation law designated the Grand Central Terminal to be a landmark. The owner wanted to build an office tower on the top of this historic structure. The city permit was denied since the project (in its view) would impair the aesthetic quality of the building. The Supreme Court held, 6-3, that the citys regulation did not constitute a taking. Liberal Justice William Brennan Jr., writing for the majority, listed factors to consider in a balancing process, …in balancing public gain against private harm. (Feldman and Sullivan, Constitutional Law, 2019). Brennan wrote: The restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but afford opportunities further to enhance not only the Terminal site proper but also other properties.

The conservative Justice William Rehnquist dissented: as opposed to normal zoning, (here)…a multimillion dollar loss has been imposed. (The city has)imposed a substantial cost on less than one-tenth of one percent of the buildings in New York for the general benefit of all its people. It is exactly this imposition of general costs on a few individuals at which the taking protection is directed.

A recent Supreme Court decision, Cedar Point Nursery v. Victoria Hassid, June 23, 2021, took up this important debate in Penn Central between liberals and conservatives. The majority opinion by Chief Justice John Roberts took the Rehnquist approach; Justice Stephen Breyer dissented, taking the Brennan approach, in a 6 (Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) to 3 (Breyer, Sonia Sotomayor, and Elena Kagan) decision the conservatives versus the liberals.

A California regulation had allowed a labor organization to take access to an agricultural employers property for up to four 30-day periods in one calendar year. They could enter one hour before work, one hour during the lunch break, and one hour after work, being free to meet and talk with employees for union organization. Notice would be given.

The employers here filed suit arguing, …an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments by appropriating without compensation an easement for union organizers to enter their property. (Roberts, page 3). Roberts stressed one of the major rights of a property owner is to exclude others from property. (Roberts, pages 7, 13). Also, this constituted a physical taking, not a use restriction. (Roberts, page 12). Roberts held: …the access regulation here gives rise to a per se physical taking. (Roberts, page 20). It…grants labor organizers a right to invade the growers property. (Ibid.).

Breyer, in dissent, would have found no taking. He wrote: It is a regulation that falls within the scope of Penn Central. (Breyer, pages 16-17). He said it was a regulation of the power to exclude. (Breyer, page 5).

Our liberty and freedom are based in large part on our right to own private property, or real estate. It is our most important right, I believe. Since it is so important, government has an interest in regulating it, even physically taking it. James Madison wrote in 1792: That alone is a just government which impartially secures to every man, whatever is his own. (Cited by Justice Sandra Day OConnor in her dissent in Kelo v. New London, 2005). The question of when government regulation goes far enough to become a taking will be debated by conservatives and liberals as long as we shall have a constitutional democracy. As for Justice Breyer, hang in there until at least 2025!

JamesW.Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

The rest is here:
Private property rights and governmental 'taking' - Monroe Evening News

Last Tuesday the Centers for Disease Control and Prevention (CDC) issued a new moratorium on evictions as part of an effort to fight the coronavirus pandemic. This represents a stark reversal from the administrations repeated statements that the CDC lacked the statutory authority to issue such a moratorium. While most of the public controversy over the CDCs action has been around its legality, another important question remains unanswered: What process did the Biden administration use to change its legal position? Although many questions remain unanswered, there is troubling evidence that either the Department of Justice was not consulted on a major legal issue or, in the alternative, the Biden administration has misrepresented its legal position to the public. Both of these possibilities raise questions about the Biden administrations commitment to restoring the norms of executive-branch functioning.

In September 2020, the CDC issued a nationwide moratorium on evictions, justifying its action on the grounds that evictions would spread the coronavirus and that the moratorium was thus a valid exercise of its power to make and enforce such regulations as in [the agencys] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases. The moratorium was challenged on constitutional and statutory grounds by rental-property owners and, in May, a judge in the U.S. District Court for the District of Columbia held that the order exceeded the CDCs statutory authority but stayed the judgment pending appeal. The U.S. Court of Appeals for the District of Columbia Circuit upheld the stay and, in an unsigned, 5-4 decision, the Supreme Court denied a request to lift the stay, allowing the moratorium to continue until its planned expiration at the end of July.

But the Supreme Court decision was not an endorsement of the moratoriums legality. In a one-paragraph statement, Justice Brett Kavanaugh, who voted to preserve the district court stay, wrote that he agree[d] with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium and that, in his view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31. The reason Kavanaugh did not vote to vacate the stay and enjoin the moratorium was that the moratorium was set to expire a month later, and those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds. Kavanaugh thus let the moratorium continue, but it appears that a majority of the courtKavanaugh and the four justices who would have granted the staybelieves that the CDC lacks the statutory authority to issue a nationwide eviction moratorium.

The Biden administration appeared to have initially understood the decision in the same way, stating, as late as July 29, that the Supreme Court has made clear that [the CDC eviction moratorium] option is no longer available. But Congress failed to act to authorize an extension of the moratorium, and progressive Democrats ratcheted up the pressure for the administration to act unilaterally to provide eviction relief. The Biden administration then abruptly changed positions, deciding sometime this past week that the CDC did, in fact, have the legal authority to issue a new, albeit somewhat narrower, moratorium. When asked about the legal basis for his administrations about-face, Biden asserted that [t]he bulk of the constitutional scholarship says that [the new moratorium is] not likely to pass constitutional muster but that, at a minimum, by the time it gets litigated, it will probably give some additional time for renters to get federal rental-relief payments. In other words, there is a possible, albeit not probable, case for the moratoriums legality, and by the time the courts weigh in one way or the other, the moratorium will have protected at least some renters from eviction. Unsurprisingly, the original eviction-moratorium plaintiffs have challenged this new moratorium, arguing that the administrations changing legal position is evidence of bad faith.

There are many legal issues to unpack around the new moratorium. Most obviously, theres the question of its substantive legality. The main statutory question, around which the litigation over the original moratorium centered, is whether the broadly but vaguely worded 1944 Public Health Service Act gives the CDC the power to block evictions on a mass basis in the service of contagious-disease prevention. There is also a constitutional question: Would the eviction ban constitute a taking under the Fifth Amendment that would require just compensation for landlords?

In addition, what, if any, guidance should the government take from the Supreme Courts actions on the moratorium question so far? On the one hand, the court has not officially held that the CDC lacks the statutory authority to issue a nationwide eviction moratorium, and the administration has emphasized this point in its defense of the new moratorium. On the other hand, there appear to be at least five votes to strike down the moratorium as exceeding the CDCs statutory authority, as Biden himself recognized at his press conference (albeit in somewhat garbled form): But the presentyou could notthe Court has already ruled on the present eviction moratorium. Whether as a matter of constitutional lawthe presidents obligation to take Care that the Laws be faithfully executedor even just prudence, should the president take action that he believes the courts will strike down, even if there is no controlling precedent exactly on point?

These are all important and difficult issues, but there is another question that has not gotten nearly as much attention: Who gave Biden the legal advice that apparently changed his mind about the legality of the moratorium?

In the press conference answering questions about the new eviction moratorium, Biden gave the following explanation:

Ive sought out constitutional scholars to determine what is the best possibility that would come from executive action, or the CDCs judgment, what could they do that was most likely to pass muster, constitutionally. The bulk of the constitutional scholarship says that its not likely to pass constitutional muster. Number one. But there are several key scholars who think that it may and its worth the effort.

According to reporting, these key scholars included well-known law professors at Duke and Harvard law schools, such as Walter Dellinger, Martha Minow and Laurence Tribe; Tribe in particular was recommended to Biden by Nancy Pelosi. Which if any scholars consulted by the White House counseled against the legality of a second eviction moratorium is still unclear.

When White House press secretary Jen Psaki was asked who gave the legal sign-off on the new moratorium, she identified other sources of legal advice:

The CDCs lawyers, as well as our Counsels Officeyes. Im not aware of the Department of Justices engagement, but of course, that might make sense. I would have to check on that.

She also said, in some tension with Bidens earlier admission that the bulk of the constitutional scholarship was skeptical of the legality of the eviction moratorium, that the President would not have supported moving forward if he did not support the legal justification. He is old school in that way.

Thus, the official position of the administration now appears to be this: It originally supported the legality of the first eviction moratorium, which it defended in court; after the Supreme Court signaled that a majority of the justices did not believe the moratorium was legal, it changed its position and concluded that the CDC could not, absent congressional action, issue a new eviction moratorium; and it then changed its position again, based on some combination of advice from outside legal experts, White House counsel, and the CDCs lawyers and decided that the CDC did indeed have the authority to issue an eviction moratorium, albeit a narrower one.

Taking this story at face value, the obvious question is where was the Justice Department in all of this? What was the position of the Office of Legal Counsel (OLC), which would ordinarily be the last word on high-profile, complex legal questions such as this one, or the Office of the Solicitor General and the Civil Division, which have responsibility for defending the new moratorium in court?

There are presumably three options. The first is that the Justice Department told the White House that the CDC did not have the authority to issue a new eviction moratorium and the White House ignored that advice. The second option is that the department wasnt consulted, either because of an oversight from the White House or because the White House, suspecting that the department would return an answer it didnt want, simply didnt ask the Justice Department. The third option is that the department was consulted, told the White House that the CDC did have this authority, and this fact has simply not been disclosed in the White Houses public messaging so far. More reporting is needed on this question, but its notable that, when Politicos Josh Gerstein asked Attorney General Merrick Garland whether the department signed off on the eviction moratorium, Garland did not answer the question.

All three of these options raise concerns. If the Justice Department was overruled or simply cut out of the process, this represents a serious breakdown in how executive branch legal decision-making is supposed to happen. To be sure, the president has the final word on executive branch legal positions. He has no constitutional or statutory obligation to consult with, let alone abide by, the legal opinions of the Justice Department. But over decades, a powerful norm has developed that the Justice Department, in particular, is the proper source of legal guidance for the executive branch. OLC is designed not only to produce legal analysis of the highest possible quality that is consistent across the executive branch and with prior executive branch precedent, but, through a combination of its culture, reputation, and institutional position within the Justice Department, is designed to be at least partially insulated from politics so as to provide advice based on its best understanding of what the law requiresnot simply an advocates defense of the contemplated action or position proposed by an agency or the Administration provide the president with the best view of the law. (Whether OLC has always lived up to this lofty standard, and whether past presidents have always treated OLC as authoritative, is a separate question.) And the Office of the Solicitor General and the Civil Division, the primary litigators for the executive branch, make sure that the executive branch upholds its credibility with the courts and takes positions that support the executive branchs overall legal interests, not to mention general rule-of-law norms. If Pelosi really did tell Biden to get better lawyers and Biden responded by going outside the Justice Department, that should set off alarms about the confidence that Biden has in the departments traditional role as the main source of legal advice and analysis for the executive branch.

None of this is to say that the sources on which the Biden administration reportedly relied were subpar, or that Biden was wrong to solicit a wide range of legal views in addition to those of the Justice Department, but rather that none of them provide the departments special sauce: the combination of high-level legal expertise and a degree of independence achieved through institutional design, internal culture or reputation. The White House counsels office is, if only by virtue of its proximity to the president, inclined to take a particularly aggressive view as to the legality of the presidents policy goals. The CDCs lawyers, while no doubt expert when it comes to the CDCs statutory authority, may not have sufficient distance from their own agencys equities to always provide the best view as to the scope of the CDCs powers. And outside scholars, no matter how illustrious, are precisely that: outside the government and thus outside the institutional structures that have been developed to provide appropriate legal advice within the executive branch and avoid the risk of cherry-picking, which is a particular concern in this case given the wide variety of sincerely held views across the legal academy. (Besides, the attorney general was, until recently, one of the most respected appellate judges of his generation, and OLC is headed by two widely respected constitutional law professorsthe Justice Department is more than qualified to give the White House all the legal advice it needs.) If the Biden administration decided to make an abrupt change in its legal position, these sources of advice should have been at minimum supplemented by the departments considered views.

If, on the other hand, the Justice Department did in fact sign off on the new order but the Biden administration simply hasnt said so, that would be its own, wholly avoidable error. Part of upholding the procedural norms of executive branch legal interpretation is stating publicly that those procedures were followed. If one follows a norm but acts as if one didnt, that undermines the norm as much as if one had actually flouted it.

There is, of course, another possibility: that the White House never actually believed that the CDC lacked the authority to issue another eviction moratorium, but that it said so to put pressure on Congress to act. This would certainly explain the Justice Departments apparent silence: OLC, the Civil Division, and the Office of the Solicitor General presumably all signed off on an interpretation of CDC authorities as including the power to issue an eviction moratorium, because they were defending the original moratorium all the way up to the Supreme Court. And given that the court hasnt issued a ruling on the merits, and the new CDC moratorium is narrower than the old one, there would be no need for the Justice Department to update its legal view, since the underlying issue had not changed.

This view is thus reassuring from the perspective of internal executive branch legal process, but it raises concerns of its own about the candor of the administrations statements about its view of the law. If the administration believed this entire time that the CDC could issue a moratorium, but publicly misrepresented its view to pressure Congress to act, that would seriously undermine its credibility.

A central message of Bidens campaign was that he would rebuild norms of transparency, procedure, and honesty in the executive branch, norms that had been severely weakened by four years of the Trump administration. Based on the record as it stands now, there is a serious cloud around whether in this case the Biden administration has lived up to that promise. At the very least, the administration should clarify its confusing and seemingly contradictory statements about the internal legal deliberations. Whether one supports or opposes the CDCs eviction moratorium, the question of how its legal basis was developed and whether that process was communicated truthfully and accurately to the public is a serious one, and one for which the Biden administration should be held to account.

See the rest here:
Did the Justice Department Give President Biden Legal Advice on the CDC Eviction Moratorium? - Lawfare

After every police shooting in Utah, prosecutors investigate to determine if the officer who pulled the trigger followed the law. That officer doesnt have to participate. Like all Americans, officers can invoke their constitutional rights and say nothing. A growing number take that option.

But these officers dont have the same rights in internal investigations. Police chiefs can force them to talk, and those interviews while they cant be used in criminal proceedings against officers may become public.

Thats what happened in the case of Zane James, a 19-year-old who was shot by a Cottonwood Heights officer in 2018 and later died. A judge ruled in early July that James family could use the officers interview in its civil suit.

Separately, The Salt Lake Tribune sought the officers interview in a public records request. Cottonwood Heights police denied that request. The Tribune appealed to the State Records Committee.

The records committee sided with The Tribune in May, but the city is fighting that ruling in the courts. Litigation is pricey and takes resources that requestors dont often have. One of the higher estimates for Tribune legal costs in the Cottonwood Heights suit ranged from $60,000 to $100,000, editor Lauren Gustus said.

Read more: Utah Couple Say Internal Police Interview Contradicts Cottonwood Heights on Shooting Death of Son

At the same time, some in Utah law enforcement are considering calling for legislation to specifically bar these compelled interviews from becoming public. Similar debates are taking place among police departments, courtrooms and legislatures throughout the country.

These interviews often are more detailed than the voluntary interviews police give to investigators for county prosecutors because that review is focused narrowly on whether the officer broke the law.

In his interview, Officer Casey Davies, who shot James in 2018, contradicted the story Cottonwood Heights shared with the public. The police said James crashed his motorcycle. In his interview, Davies said he purposefully rammed James with his car because he thought the 19-year-old was reaching for a gun. The officer said he didnt see a gun, though a realistic-looking fake gun was found on James after Davies shot him.

By law, Salt Lake County District Attorney Sim Gill didnt have access to Davies interview and couldnt have used it if he did. Davies exercised his Fifth Amendment rights and refused to talk to Gills investigators.

In his findings letter, Gill said he was forced to infer Davies rationale for shooting. Gill ruled the shooting was legally justified. The Police Departments shooting review board also said Davies acted within policy.

Read more: A Utah Prosecutor Says New Self-Defense Law Makes it Harder to Charge Problematic Police Officers

The compelled interview Davies, who now works for the Herriman Police Department, gave to the Cottonwood Heights investigator is known as a Garrity statement, after a 1967 Supreme Court decision. That decision established the right of police departments to require officers to talk in administrative investigations like reviews of fatal shootings. However, because the officers are being forced to forgo their Fifth Amendment right against self-incrimination, those statements can never be used in a criminal case against them.

The high court didnt rule that these Garrity statements had to remain private.

Still, in court filings, Davies then-attorney Jeffrey Jensen attempted to prevent the statement from being used by the James family in its civil lawsuit. He argued prosecutors could still charge the officer there is no statute of limitations on murder or manslaughter and if that happened, it would be essentially impossible to determine if the source of the information used came from the Garrity statement. A federal judge ruled the James family can use the Garrity statement in an amended lawsuit.

The State Records Committee sided with The Tribune in ordering the release of the statement, rejecting the argument made by an attorney for Cottonwood Heights that the impact of a [Garrity] warning on an officer interviewees constitutional rights tips the balance in favor of restricting access.

The committee found the publics right to know substantially exceeds individual interests of public officials or police officers.

Cottonwood Heights and West Jordan, which also withheld Garrity statements given by two officers who fatally shot Michael Glad in 2018, are appealing the records committees decision, taking The Tribune to court to stop the release of these records.

In addition, the Washington County Sheriffs Office has filed a suit to overturn a similar records committee decision. The Tribune is seeking access to internal investigation reports into four shootings involving its deputies.

Utahs system places the burden for defending the State Records Committees decision on the original requestor, in this case, The Tribune. For individual Utahns or other organizations with fewer resources than The Tribune, this can present a major roadblock to accessing public records.

Other cities have also refused to release Garrity statements to The Tribune, including West Valley City.

At the same time, some law enforcement agencies have released such statements or information derived from them, including the states Peace Officer Standards and Training and the Granite School District, West Bountiful, Syracuse, Herriman, and Saratoga Springs police departments.

A Garrity statement given in an investigation of a police shooting should absolutely be publicly released, said Stephen Downing, a former Los Angeles deputy police chief. An officer that the public hires is making life and death decisions, and [their] compelled statements tell us what [their] state of mind is. It tells us how [they] understand the policies of [their] department.

The statement tells you everything, including how well your police department is functioning, said Downing, who advocates for police reform as part of the Law Enforcement Action Partnership.

Utah County Attorney David Leavitt sees some value in releasing these interviews. My general philosophy is that we need to favor transparency, he said. Generally, I believe that transparency of every nature, including this, is in the interest of the public.

The Fifth Amendment protects you from having statements used in a criminal prosecution not necessarily [from] having a statement released in the court of public opinion, said Margo Frasier, an attorney and the former police monitor for Austin, Texas. She now serves as the board vice president for the National Association for Civilian Oversight of Law Enforcement.

Leavitt and his counterparts in Davis and Salt Lake counties back that up, rejecting the suggestion that releasing a Garrity statement could lead to criminal charges.

Davis County Attorney Troy Rawlings said criminal investigators reviewing shootings never get Garrity statements and would not use information from Garrity statements that may be published.

Gill, the Salt Lake County district attorney who declined to file charges against Davies, said his office uses a taint team to review investigatory documents and determine whether they can be legally used.

Read more: A disturbing shooting: Salt Lake County district attorney says officer was justified in killing handcuffed man

Some police departments may have a misunderstanding about what protections Garrity actually affords officers, Gill said. It protects them from prosecution, but the information they give could be used in a criminal case against fellow officers.

After Utahs records committee sided with The Tribune, law enforcement officials began conversations around drafting a bill that would bar the release of Garrity statements. The Utah League of Cities and Towns, which lobbies on behalf of municipal bodies, has also had discussions with stakeholders over concerns that the records committees decisions could have negative and unintended consequences, such as public employees no longer feeling they can be candid in interviews given in internal investigations, Executive Director Cameron Diehl said.

Sen. Curt Bramble, R-Provo, a lawmaker who often sponsors public records bills, said he is taking law enforcement proposals to make Garrity statements private under advisement and is waiting to see the outcome of the court efforts to overturn the records committees decisions.

A handful of states have clarified whether Garrity statements should be considered public. In some, such as Michigan and Missouri, courts have ruled that Garrity statements can be released under public records laws though a couple of years after the Michigan opinion was issued, the Legislature there passed a bill, supported by police unions, that makes Garrity statements private.

In other states, such as Illinois, California, New York, Georgia, Louisiana, Arizona, Tennessee, Colorado, Minnesota, Connecticut and Ohio, either courts or legislatures have recognized the value of the public being able to access all or some internal police investigations, including compelled statements. Some of these states have protections for ongoing investigations. Once they are closed, however, many records are presumed public.

This story has been updated.

This story is part of a collaboration with The Salt Lake Tribune through FRONTLINEs Local Journalism Initiative, which is funded by the John S. and James L. Knight Foundation and the Corporation for Public Broadcasting.

See the original post:
Why Utah Police Can Be Forced to Explain a Shooting and How Those Interviews Can Become Public - FRONTLINE

Tiffany and Aaron James believe Cottonwood Heights police havent told the truth about the morning an officer fatally shot their 19-year-old son, Zane.

An internal document they have identifies two contradictions in the polices version of events and the information comes directly from shooting Officer Casey Davies.

The officer gave an interview as part of an internal review. The interviews fall under the 1967 Supreme Court ruling called Garrity v. New Jersey, which says police chiefs can force their officers to talk but the information cant be used against the officer in a criminal proceeding.

Cottonwood Heights fought to keep Davies Garrity statement out of the courtroom in a civil case and from the public. A federal judge disagreed, giving the family access to the interview.

Police officials have said Zane James crashed his motorcycle during a chase on May 29, 2018. Davies, in his interview, said he purposefully rammed into him.

They also said Davies was on his way to the department when he heard about the search for James, and thats why he didnt have his body camera. In his interview, Davies said he was already at the station.

Davies has since left Cottonwood Heights and now works at the Herriman Police Department.

These revelations are part of an amended federal civil lawsuit filed Thursday by Tiffany and Aaron James. In it, the couple also allege police hid and potentially destroyed video footage of the shooting.

Officer Davies statement is irrefutable evidence Zanes death was both illegal and should have never happened, the couple said in a statement.

Heather White, the attorney for Davies and Cottonwood Heights, said there are simple explanations for the inconsistencies.

There is no cover-up, she said.

She added, I can unequivocally tell you there is no recording of this incident and never has been.

She said the department did not talk to Davies about what happened until the internal review, which led to the misstatements.

When Davies signed a declaration in court saying he was on his way to work and was unable to grab his body camera, White said Davies didnt read the document closely enough to note the error.

I didnt actually write it, Davies said, according to a court transcript. I just signed the document that I was asked to sign.

Salt Lake County District Attorney Sim Gill cleared Davies in the case in October 2018, though he made his decision without any comment from Davies, who declined an interview with investigators, citing his Fifth Amendment right against self-incrimination.

Gill told The Salt Lake Tribune he was unaware Davies intentionally crashed into Zane James, which is a deadly use of force his office would normally investigate. As the law requires, prosecutors cant review the Garrity statement, named after the Supreme Court case. The officers who did talk to D.A. investigators said they either saw James crash on a speed bump, heard that on the radio or assumed thats what happened.

Gill said to investigate Davies ramming into James, he would need to learn that fact from a source outside of the Garrity statement.

If nobody else knew that, or nobody else was aware of it, even though that may implicate potentially criminal conduct, Gill said, I cant get to it unless I can get to it independently.

He said would have his attorneys look into the discrepancies.

The Cottonwood Heights Police Department, which reviewed the Garrity interview, also cleared Davies, saying the shooting was within policy.

It wasnt easy for the James family to get the internal interview. After months of debate, a federal judge ruled July 7 that the James family could use that Garrity statement in its civil lawsuit.

Separately, the State Records Committee has ruled the city must turn it over to The Tribune. The city is fighting that ruling, taking The Tribune to court to prevent its release.

Read more: A Utah Prosecutor Says New Self-Defense Law Makes it Harder to Charge Problematic Police Officers

Here are the facts, gleaned from documents about the investigation, including the Garrity statements spelled out in the amended lawsuit:

Only one other officer, Cottonwood Heights Bryan Betenson, said he saw James crash and was there for the shooting.

He told Salt Lake City police investigators he and Davies were chasing James.

As the motorcycle went over the second speed bump, the investigator wrote in a report, he saw sparks and saw that the male had lost it and wrecked the motorcycle.

Salt Lake City Police Department investigators also talked to Cottonwood Heights Officer Jamie Croft, who had just finished a training shift that morning when he decided to respond to the chase. Croft said Davies reported James had crashed.

As he was driving into the area, Off. Davies called out the suspect had wrecked and to get medical started, an SLCPD investigator wrote in a report on the shooting.

In a motion to dismiss the familys civil suit, attorney Heather White wrote, James, in his flight from the police, unsuccessfully attempted to execute a turn and crashed his motorbike on a narrow neighborhood street.Officer Davies, who had been pursuing James, witnessed the crash.

Yet Davies told former Cottonwood Heights Sgt. Ryan Shosted during his Garrity interview that he made the decision to run James over because he thought James was going to pull a gun and shoot him and that running him over would be safer than shooting through the police cars windshield.

He said, So I made the decision Im going to run him over So I floored it, hit him as he was going over that second speed bump.

White said she repeated the claim that James wrecked because she wrote it without using the Garrity statement.

It was just a mistake on our end and on his end in reading that, she said.

In addition to Davies saying he intentionally wrecked James, he also told Shosted he was at the police station when he heard radio traffic and decided to get involved.

This is a small but important detail, because it is inconsistent with a legal declaration Davies signed in August 2020, as well as multiple public statements made by Cottonwood Heights police officials about why they havent released body camera footage.

I was not wearing my body camera during the incident involving Zane James on the morning of May, 29, 2018. I had been on my way to work at the time and had not yet gotten to the police station to pick up my body camera, according to the document, filed in U.S. District Court.

In a November evidentiary hearing, Davies told Attorney Bob Sykes that he misunderstood what he was signing. He contended he didnt mean to give a false statement.

In dispatch audio used as an exhibit in the amended complaint, Davies radios in that James had wrecked out. About 10 seconds later, he reports back: Shots fired.

Shosted, the same officer who would interview Davies as part of the departments internal investigation, told The Tribune the day of the shooting that Davies was on his way to work before the shooting.

KSL reported the same thing in mid-June, when the department released video showing the aftermath of the shooting.

In the internal interview, Davies told Shosted he actually arrived to work early for a seat belt enforcement shift.

He told Shosted he heard the chase on the scanner as he was putting on his uniform. He heard that police believed the motorcyclist might be the suspect in an earlier robbery.

At that time, I hurried and rushed. I so my camera was still in the docking station at that point and so my belt was hanging I was in my uniform at this time so I just grabbed my belt, threw it on, ran out, Davies said in the internal interview.

The James family alleges in the amended complaint that this is also false, because it has evidence that shows his camera was taken off the docking station at 5:50 a.m.

White said that its true someone removed Davies camera from the docking station, but it was another police officer who removed it to upload their own camera. She said that officer put Davies camera in a drawer, where it remained until he returned to duty after this shooting.

She compared it to sharing a phone charger with multiple people.

Another piece of evidence the family is relying on is a City Council member who maintains that not only does video of this shooting exist, but also that she has seen it.

Read more: A disturbing shooting: Salt Lake County district attorney says officer was justified in killing handcuffed man

When The Tribune asked Cottonwood Heights City Manager Tim Tingey in August 2020 about video of this shooting, he said he wasnt aware of any footage.

White said Thursday that the city has checked body camera records and can now say no such footage exists or ever existed.

The only video police have released is from an officer who arrives after Davies had already fired. It shows police standing around James and trying to assess his injuries and give him aid.

Tingey wrote the city believes the allegations of undisclosed bodycam footage are entirely mistaken and without any merit whatsoever, and that they stemmed from a councilperson confusing another, entirely different, non-fatal shooting with the Zane James shooting.

He was referring to City Council member Natalie Tali Bruce and arguing that she conflated this shooting with Cottonwood Heights Officer Chris McHugh shooting a different teenager in September 2017. That shooting took place under an overpass in a different part of the city at night. James was shot in daylight in a residential area of Cottonwood Heights.

Bruce has since testified in a November 2020 evidentiary hearing that she and others saw a video of Davies shooting Zane James during a June 12, 2018, closed meeting.

In the hearing, she described the video in detail. She said it begins with the image of a crumpled motorcycle and pans left to James hobbling on the grass. Bruce said it was clear that he was injured, according to a transcript.

[H]is pants were sliding down on his hips, you could see the waistband of his underwear. And his left arm went back, to me it looked evident that he was going to pull up his pants, which were dropping as he was attempting to flee, Bruce said. At that point, you hear pow-pow, pow-pow and he went down, facedown into the grass.

She added Davies didnt give any sort of verbal commands to James before shooting him in the back. Bruce said she didnt see a weapon. The next day, she asked the mayor and council a question in an email obtained by The Tribune.

I apologise [sic]. I should have asked this last night but my brain was exhausted, she wrote. Was a Tazer [sic] not an option with the pursuit?

At least 13 people including council members who would have been at this meeting, Tingey and Police Chief Robby Russo have signed sworn declarations they hadnt seen video of the shooting and that they dont believe it exists.

At the evidentiary hearing, White, the attorney representing the city, asked Bruce why so many people would have sworn the video didnt exist if they saw it. Bruce cited gaslighting by Tingey and former Mayor Kelvyn Cullimore.

Bruces attorney, Michael Young, released a statement about the Garrity revelations Wednesday.

I am not surprised by a continued pattern of malfeasance by Cottonwood Heights, as reflected in the current litigation between Ms. Bruce, the city and others, he said.

Russo sued Bruce and Cottonwood Heights in May 2020, alleging they were part of a scheme to get him fired. He recently received $70,000 as part of a settlement in that case, KUTV reported.

Bruce filed a countersuit to Russos initial complaint, alleging the police chief began a campaign of harassment and intimidation against Bruce after she questioned the utility of using city resources to fund a police department, according to the court filing.

That case is still pending.

The original May 2019 lawsuit alleges James didnt pose a threat and that officials covered up Davies negligence. It cited a witness of the shooting who said that despite law enforcement statements, Davies didnt give James any commands before firing, and that Davies fired as James ran away.

It also cast doubt on police statements that James reached for a gun.

Attorney Bob Sykes wrote in the original lawsuit that claim makes no sense because Zane knew he did not have a real gun, so why would he reach for a toy gun, knowing armed officers were close behind?

The amended complaint, filed Thursday in federal court, includes the facts established in the Garrity statement and builds on those earlier ideas.

The suit alleges that James was wrongfully killed and Cottonwood Heights didnt properly train its officers in de-escalation tactics and other established rules of policing.

Davies believed he could use deadly force against a fleeing felon, even if there is no imminent threat to the officer or the public, the lawsuit states, saying this belief is baked on a deep misunderstanding of the law.

The lawsuit is asking for Davies to be held in criminal contempt for his knowing submission of false testimony, as well as for Cottonwood Heights to eliminate its training programs and create new ones. It also asks that the matter be referred to the U.S. Department of Justice for review, and that an outside supervisor be appointed to audit the departments training and policies.

The family is seeking monetary damages and attorney fees.

White said it is untrue that the city tried to hide anything in this case.

I feel for this family. Theyve been through a terrible ordeal and they dont trust police, White said, but their theories about what they think happened are completely inconsistent with the physical evidence and the testimony that has been given.

This story is part of a collaboration with The Salt Lake Tribune through FRONTLINEs Local Journalism Initiative, which is funded by the John S. and James L. Knight Foundation and the Corporation for Public Broadcasting.

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Utah Couple Say Internal Police Interview Contradicts Cottonwood Heights on Shooting Death of Son - FRONTLINE

A wide range of federal statutes reach conduct overseas. When those statutes include private rights of action, Americans may find themselves with claims against defendants with fewif anyties to the U.S.

Since the U.S. Supreme Courts decision in Daimler v. Bauman cut back states authority to hale non-resident corporations into court for conduct unrelated to their activities in-state, many have assumed that these would-be plaintiffs are out of luck.

Now, in Douglass v. Nippon Yusen Kabushiki Kaisha, the Fifth Circuit has decided to take a second look at the question of whether and how that rule applies when federal courts hear federal-law claims against corporations based abroad.

Federal courts personal jurisdiction usually depends on the long-arm statutes of the states in which they sit. Those statutes are subject to the 14th Amendments Due Process Clause, which limits states jurisdiction over non-resident defendants to situations where the claims against them arise from, or relate to, their in-state conduct.

But federal law has its own long-arm provisions, governed by the Fifth Amendment, that are intended to fill in where state law leaves gaps.

Although the Fifth and 14th Amendments Due Process clauses are worded identically, the Supreme Court has gone out of its way, in cases like Bristol-Myers Squibb v. Superior Court, to leave open whether the clauses impose the same constraints. And the government has argued, most recently last term in Ford v. Montana Eighth Judicial Dist. Ct., that the U.S.s unique constitutional prerogatives and powers permit the exercise of federal judicial power in ways that have no analogue at the state level.

Yet most federal appellate courts, including the First, Second, Fourth, Fifth, Sixth, Ninth, Tenth, Eleventh, Federal, and D.C. circuits, have assumed or held without much analysis that federal service-of-process provisions are subject to the same limits as their state-law counterparts. The only difference they have recognized is that litigants proceeding under federal service-of-process provisions can aggregate defendants contacts with the U.S. as a whole, instead of any single state.

Its worth asking why. After all, a central justification for the focus on forum contacts under the 14th Amendment is the need to protect interstate federalism. But federalism is beside the point when a federal court hears federal-law claims against, say, a foreign terrorist organization that injures Americans traveling abroad or a foreign company that traffics in overseas property confiscated from U.S. citizens. And its not clear how much the inconvenience that litigating here imposes on non-resident foreign defendants should weigh against the judgment of Congress that Americans should be able to bring claims based on foreign conduct.

These are among the questions the full Fifth Circuit will consider when it rehears Douglass.

The appeal arises from a collision in Japanese waters on June 17, 2017, between the U.S. Navy destroyer USS Fitzgerald and a cargo ship (MV ACX Crystal) chartered by a Japanese shipping company that left seven U.S. sailors dead and dozens injured. In consolidated cases, the victims and their survivors sued the company under the federal Death on the High Seas Act. They asserted personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2), which allows service of process in federal-law suits where the defendant is not subject to jurisdiction in any state.

Finding no connection between the accident and the shipping companys limited U.S. contacts, the district court dismissed the suits under Daimler. A panel of the Fifth Circuit grudgingly affirmed, devoting much of its per curiam opinion to casting doubt on circuit precedent that subjected Rule 4(k)(2) to the same 14th-Amendment standard as its state-law counterparts. The two active judges on the panel concurred, urging the full court to revisit the issue. It agreed to do so July 2.

With virtually no guidance from the Supreme Court, the case promises to take the predominantly conservative appeals court back to first principles. That could lead to interesting debates about federal power, sovereignty, and what it means to be faithful to the U.S. Constitutions text. And it could make the Fifth Circuit, which includes Louisiana, Mississippi, and Texas, the go-to forum for federal claims against non-resident foreign corporations.

Although its impossible to predict the outcome, it seems unlikely that the court took the case en banc just to confirm its prior precedent. The question is how far it will go.

The now-vacated panel decision gives one hint: It endorsed a compromise position suggested by an amicus brief from civil-procedure scholars that would read the Fifth Amendment to allow jurisdiction over foreign corporations for claims based on foreign conduct that is related to their U.S. operations. But the court could go further still and hold, as the governments brief in Ford suggested, that the Constitution imposes no territorial constraints on federal authority.

Whatever the result, the Supreme Court is sure to face calls to weigh in before long.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Eugene Sokoloff is counsel at MoloLamken LLP where he focuses on critical motions and appeals.

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Just How Long Is the Long Arm of U.S. Jurisdiction? - Bloomberg Law