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This month, President Trump deployed law-enforcement agents from the Department of Homeland Security to Portland, Oregon, ostensibly to protect federal property from protests that began after the killing of George Floyd. But these D.H.S. agents, who wear military-style camouflage, have not identified themselves as law enforcement and have arrested and detained protesters without probable cause, inflaming protests in Portland and other cities, with many Americans furious that the Administration has sent federal law-enforcement officers to fulfill policing functions that are not part of Washingtons governing mandate. On Tuesday, in a tense hearing before the House Judiciary Committee, Attorney General William Barr defended the deployments, arguing that violent rioters and anarchists have hijacked legitimate protests to wreak senseless havoc and destruction. The following day, Oregons governor announced that an agreement had been reached with D.H.S. to withdraw the deployed personnel from Portland; the department responded by saying the agreement was conditional on the safety of federal property within the city.

To talk about the significance of the deployments, and what legal remedies may be available, I spoke by phone on Tuesday with Mary McCord, who served as an Assistant U.S. Attorney for the District of Columbia for almost two decades, and was the acting Assistant Attorney General for National Security, from 2016 to 2017. She is now the legal director of the Institute for Constitutional Advocacy and Protection at Georgetown Law. During our conversation, which has been edited for length and clarity, we discussed who has standing to legally challenge the deployments, the dangers for everyone involved when law-enforcement officials are unwilling to identify themselves, and whether Congress needs to change its approach to legislating to circumscribe future Presidents.

If you were talking to someone who had no idea what was going on in Portland and, to a lesser extent, other American cities, how would you describe it to them?

I think what were seeing in Portland is a very heavy-handed use of legal authorities that were provided to D.H.S. and to the Federal Protective Service but never intended to be used for these purposes. The 2002 [Homeland Security] Act gave a lot of law-enforcement authority to D.H.S. and gave authority to the Secretary of Homeland Security to pull in other agents of D.H.S. as needed to supplement the Federal Protective Service in defense of federal property. I dont think anyone at the time would have foreseen that the Secretary would use that authority to bring Customs and Border Protection officers and such a large swath of officers to essentially engage in local crowd control, protest control, riot control. It was never meant to infringe upon the states sovereign right to exercise the police power within their jurisdiction.

If this Administration is using authorization that no one had envisioned them using, does that imply that the authorization exists, and there is not really any legal remedy, if they are only protecting federal buildings? And, in Portland and elsewhere, it seems like theyve gone beyond that. Is there any legal remedy in the second case?

One thing that is important to remember is there are always going to be legal remedies available for constitutional violations, even if law enforcement is deployed consistent with legal authorities. Some of the lawsuits youre seeing, which seem to be very well founded to me, are alleging First Amendment violations, Fourth Amendment violations, Fifth Amendment violations, because of the way that D.H.S. is carrying out its law-enforcement responsibilities, potentially in retaliation for protected First Amendment activity, or making arrests without probable cause and depriving people of their liberty without due process. Those are constitutional violations that theres certainly legal recourse for.

There are other, more creative theories that are being litigated right now, too, including theories about this type of encroachment on states police power, in violation of the Tenth Amendment, which reserves the police power for the states. There are some theories now, and at least one lawsuit, alleging that the D.H.S. acting Secretary is not properly holding that office, and that therefore any policies or orders that he gives should be unlawful. There are arguments being made, but, strictly speaking, if theyre acting within the confines of what the statute allows them to do, then that would be hard to challenge, because Congress has given them that authority. I think the question becomes, Is that what theyre doing?

The statute thats most frequently cited is Section 1315, and that statute does allow, as I mentioned before, the protection of federal property. That doesnt mean you have to be on the federal property at the time youre asserting law-enforcement ability or law-enforcement function. Lets just assume someone firebombed a federal building, causing serious damage. D.H.S. could pursue somebody they witnessed commit that crime and make an arrest off of federal property. But I think it gets more difficult for a layperson to determine if theyre acting within their authority when you see them far away from federal property. Certainly, we have seen them abducting people off the streets and taking them in for questioning, which appears to be a Fourth Amendment violation and probably other constitutional violations, but also doesnt seem to be tethered to anything that mightve happened at the federal property.

Does that mean theres no legal recourse? No, I dont think it means that. Its just that there will be overlaps of federal authority and state authority where it gets murky about whether they have gone beyond their authority.

If people in D.H.S. are being ordered to do things that have nothing to do with the protection of federal buildings, even if they were authorized explicitly by the President, is there any recourse for that, if theyre not violating peoples constitutional rights? If the statute is being violated, how is that litigated? Is it just up to the people in the bureaucracy to say, No, I wont carry out these orders?

I think certainly thats one option. Whistle-blowers within D.H.S. could say, Were being ordered to do things that seem to us to be beyond the powers that are authorized by Section 1315. They could certainly go through the agencys whistle-blower system in order to report that. And then you could have litigation saying that the agency is acting beyond its statutory authority, so its acting outside accordance of law. It can also be alleged right now. In fact, it is alleged in a case that was filed this week, on behalf of Dont Shoot Portland and Wall of Moms and some other individual plaintiffs. They are making specific allegations of D.H.S. acting beyond its statutory authority. Those are things that can be litigated.

By whom?

Any litigation requires the plaintiff to have standing, which just means an ArticleIII injury that is concrete and particular, not general. Certainly individuals who personally have been harmedthose whove been shot with tear gas or non-lethal bullets or subject to being arrested without probable causehave a basis to sue, not only for constitutional violations but potentially for the agency acting beyond its authority. At least, for injunctive relief. Sometimes organizations, in the case Ive mentioned, are suing, saying their mission and resources are being diverted because of this. Were not able to do the work that we are organized to do. Each plaintiff would have to have standing, and a court would decide if the plaintiffs had standing.

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The Constitutional Case Against Trumps Use of the Department of Homeland Security - The New Yorker

Three patients of Pioneer Health Care Center in Rocky Ford who tested positive for COVID-19 (one test is awaiting confirmatory results) have died, Crowley / Otero Health Departments Director Rick Ritter told the Tribune-Democrat Friday. Ritter said the health department gives its condolences to their families.

"Any time this happens we are certainly sorry that they lost a loved one," Ritter said.

COVID-19 cases in Otero County totaled 36 as of Saturday, according to Colorado Public Health and Environment, although Ritter said in a news release that numbers reflected by the state were not up to date. In the same statement, Ritter confirmed that three coronavirus patients at Pioneer Health Care Center in Rocky Ford had died and at the nursing home two staff and a total of 13 patients tested positive for the novel coronavirus. Ritter noted that results of confirmatory tests for some patients were still awaiting results as of Saturday.

Following Gov. Jared Polis's executive order mandating mask use in indoor public facilities July 16, businesses and services have had to crack down on enforcing mask use. Although many businesses and public buildings have posted signs alerting prospective patrons to their mandated enforcement of mask use, others have posted notices that state they will not enforce mask use.

In some instances, the notices make questionable references to the Health Insurance Portability and Accountability Act, the 4th and 5th Amendments, or other facets of the U.S. Constitution or U.S. law.

Thaxton's Market in Fowler, for example, posted a sign in their window that read, "Due to HIPPA and the 4th Amendment, we cannot legally ask you what your medical condition is."

The sign continued to state that store employees would assume anyone entering without a mask was exempted from the statewide mandate. The Tribune-Democrat called Thaxton's Market last week to inquire about the store policy, but it did not hear back in time for publication.

Arkansas Valley Lumber outside Rocky Ford stirred up controversy when a sign it had posted in its entrance made rounds across local social media groups. The sign declared Arkansas Valley Lumber was no longer a public company and would only accept business from "United States citizens that believe in their constitutional right of freedom from oppression."

A day later, Arkansas Valley Lumber apologized on its official Facebook page and clarified that it would not discriminate against anyone, although it maintained that it would not enforce the use of masks.

Ritter isn't sold on Thaxton's claims or those of others, however.

"There's a lot of information I'm just going to come out and say it disinformation out there," said Ritter.

Ritter noted the statewide mask order makes exemptions for people with health conditions that complicate their breathing, such as asthma or COPD.

But contrary to what some businesses are claiming, a store is not legally prevented from offering patrons masks, nor is a store prohibited from asking someone who claims to have a medical condition that prevents mask use what that condition is, according to attorney to Otero County Nathan Schultz.

"I've seen a lot of people saying they're not going to ask about masks due to HIPPA," said Schultz. "The Fourth Amendment, then one store that says they're not going to ask about masks because of the Fifth Amendment. HIPPA is designed to protect information from covered entities, like doctors and hospitals, from disseminating that information without a release. That has absolutely no bearing on a grocery store. The Fourth Amendment and Fifth Amendment, both, any time you're trying to claim you have constitutional protection, there has to be government action."

Schultz agreed it was possible that some business owners might have conflated HIPPA with the American Disabilities Act, which prohibits discrimination based on disability. But even the American Disabilities Act allows for what Schultz called reasonable inquiry if someone doesn't have an obvious disability.

"I think the stores still have the duty to ask someone to wear a mask," Schultz said. "If they're saying they don't cause of health reasons, you can ask what the health reason is because then the store needs to establish what reasonable accommodations they can make."

Schultz said allowing someone to not wear a mask would probably not be a reasonable accommodation. Instead, though, a store could implement curbside service in such an instance, Schultz suggested.

Schultz said seeing misinformation circulate on social media has been frustrating. Counter to more claims from those opposed to mask use saying the governor's mandate was unlawful or does not have the same effect as law, Gov. Polis's executive order carries the full weight of law, Schultz said.

"Earlier this week, the public health order 20-31 came out, also mandating masks. Public health orders are enforceable by local law enforcement under 25-1-506," said Schultz. "Those can be punished civilly, they can do it administratively where they can pull your business license, or they can do it criminally up to a first degree misdemeanor."

Otero County Sheriff Shawn Mobley said his office will not enforce the mask mandate. Mobley referenced his short staffed department and ongoing criminal investigations. Schultz said he thinks Mobley's decision is okay, but that he was angered by sheriffs from other counties who claimed Polis's law was unconstitutional or did not carry legal weight.

Bent County Sheriffs Office also said in a joint statement with Bent County Public Health that the sheriffs office there would not be enforcing the mask mandate, although they did not provide additional reasoning with their statement.

Otero County will try to utilize civil and administrative means to regulate the mask mandate as opposed to pursuing criminal charges, Schultz said, noting it doesn't do anyone any good to start jailing more people right now.

Another piece of disinformation Schultz wanted to address was that of masks versus the size of COVID-19 particles. Schultz made the distinction that the novel coronavirus that causes COVID-19 is not airborne in the stirctest sense: The viruss primary mode of transmission from host to host is through respiratory particles in other words, spit.

"I'm still seeing a lot of misinformation about the cloth masks themselves," Schultz said. "A lot of people are pointing out micron sizes and all that. This virus has never been airborne, it's transferred through saliva droplets. So the cloth mask does nothing to protect the wearer, it's designed to protect the community from the wearer. So if everyone's wearing a mask, the saliva's less likely to spread to others.

In other words, posts on social media claiming that cloth masks dont stop COVID-19 from passing through them are missing the point, because COVID-19 travels primarily in much larger respiratory droplets that are stopped by a cloth face covering.

Health Director Rick Ritter stressed that many businesses have been compliant with the mask order and that the health department receives numerous calls daily from people looking to improve the safety of their establishments.

Ritter said hes seen people be dismissive of social distancing guidelines and mask use because they dont believe others are taking it seriously.

"To the people saying, 'Well nobody's doing it," that's absolutely wrong," said Ritter. "And that is disrespecting the businesses that are working hard to do what's right, to protect customers, employees, and this is not a hard thing to do, my gosh, we put on pants to cover our lower torso, we put on shirts, and that's not a violation of our constitutional rights.

"If I went out naked on the street, and you can print this, the police would be called. If I said, You can't make me put on pants, that's against my constitutional right to be naked, that wouldn't cut any ice. We're just covering our face and if somebody says, Well you put on pants for decency's sake, I say you put on a mask for decency's sake because you're protecting others.

"A mask is primarily worn to protect others, and that's what I'm saying. These cloth masks, if we all wear them like we're supposed to, it's a kindness to others, it's a consideration for others, and we're going to reduce risk."

Schultz added the health department is working around the clock to try to achieve the best outcome for the community.

Tribune-Democrat reporter Christian Burney can be reached by email at cburney@ljtdmail.com. Help support local journalism by subscribing to the La Junta Tribune-Democrat at lajuntatribunedemocrat.com/subscribenow.

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"It's the decent thing to do" - News - Fowler Tribune

Hannan has, she says, long been fascinated by the idea that we are compelled to believe that love has to take certain forms, be it romantic or familial love or simply strong friendships. But things dont always turn out the way we expect, often taking on different shapes, and its then that we often feel we have failed or at least are not very good at it.

"But with this story I wanted to explore an unconventional love story and that the love you find in a friendship can often be longer lasting or more important than romantic love or at least serve a different purpose. They should all complement each other and they can all change and evolve over your life too," she says. "I think theres something quite powerful in understanding that love doesnt have to be one thing."

We initially meet Mina expressing love in what Hannan calls a very conventional way. "But every so often she is reconsidering what that idea of love is and towards the end she gets real shock news from her mother and everything is completely blown out of the water."

When Mina returns home, she turns to her best friend Kira for support; re-encounters another old friend; and finally learns the secret at the heart of her mothers life.

Hannan had herself been living in London for 10 years and writing copy at an agency and working as a freelance photographer. But for the entire time, she had wondered what would be the nature of the phone call that would bring her dashing back to Australia. (In the end it was her fathers diagnosis with Parkinsons.)

One day she went to a karaoke party and one of her friends sang the Beach Boys song Kokomo: "Off the Florida Keys, theres a place called Kokomo / Thats where you want to go to get away from it all/ Bodies in the sand, tropical drink melting in your hand/ Well be falling in love to the rhythm of a steel drum band/ Down in Kokomo."

She was struck by the lyrics and subsequently discovered that far from a tropical paradise, Kokomo was actually an unprepossessing town in Indiana notable for its now-demolished gas tower, a significant crime rate and a Starbucks outlet destroyed by a tornado a few years ago.

"I was fascinated by this idea that we readily and happily believe things to be truths and often dont challenge them. When those two ideas the push and pull (of leaving and staying) and the challenge of who we think people are and who they actually are came together, Kokomo really started to form in my mind."

And she was intrigued by the all-too-common tendency for people to ignore the inescapable fact that their mothers had lives, desires and ideas of their own before they had children.

When Mina returns to Australia, she goes on a rapid voyage of discovery that brings her to what Hannan calls rock bottom.

Credit:

"Thats the point where she knows she finally has to talk to her mother. They can dance around it no longer because shes so unsatisfied by all these encounters shes had and what she is really missing is an understanding of her relationship with her mother and how her mothers relationships have affected her."

Hannan is another Australian novelist who has done time in advertising think Carey, Courtenay and, more recently, Robbie Arnott. She found it well-paid but creatively unfulfilling and, at times, morally compromising. She turned to fiction because she wanted to write something on her own terms.

"I felt incredibly lucky to be able to work and write for a living every day and I became so much better at my craft because of it. Robbie Arnott is right about the discipline: you go to work, you have a brief you have to meet, you write a certain number of words to a very strict deadline. I have carried some of that discipline over to my fiction writing, so I have a kind of crazy spreadsheet or word-count targets that I like to hit every day."

When I ask whether Jack, the character Mina is intimately involved with in the opening, is based on a real person he plays a significant albeit distant role in Kokomo she says she has to plead the fifth amendment.

"A lot of those advertising stories have come from real things I either heard about or witnessed in my agency life in London. Id better not say which ones are true because I might get in trouble, but theres definitely some truth in them."

Hannan grew up in Adelaide. "I feel like the two places where we spent most of the time as a family were the library and the art gallery and maybe the botanical gardens. I used to get so bored at the time, but now Im incredibly grateful that my mum would drag us around to those places."

Her mother apparently knew her daughter was going to be a writer when Hannan was only five: "It took me a lot longer to work that out. Maybe shes just saying that now because its happened."

I wondered whether writing Kokomo had changed Hannan. She concedes she did use it to work out her own ideas about love.

"Weve all made mistakes in love and try to understand how those mistakes have made us who we are and how they affect how we love other people too. I think I just became more grateful for the love that I do have in my life, whether thats my family or my friends and it has just made me start to think differently about what I do actually want and need."

Kokomo is published by Hachette at $32.99. Victoria Hannan is a guest at the online Melbourne Writers Festival, August 7-16. mwf.com.au

Jason Steger is Books Editor at The Age and The Sydney Morning Herald

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Victoria Hannan unpacks the many meanings of love - Sydney Morning Herald

CEDAR RAPIDS The Iowa Court of Appeals on Wednesday overturned a Cedar Rapids man conviction of fatally shooting one man and seriously injuring another during a 2017 drug deal, granting him a new trial based on a judges error during trial.

The appeals court said 6th Judicial District Chief Judge Patrick Grady shouldnt have included a jury instruction informing jurors that Quarzone Martin, who claimed self-defense, didnt report the use of deadly force to authorities and that he got rid of the gun after the shooting.

That instruction was a violation of Martins Fifth Amendment rights against self-incrimination, the appeals court held.

A Linn County jury in December 2017 found Martin, 28, guilty of second-degree murder, assault with intent to inflict serious injury, willful injury causing serious injury and going armed with intent. He was originally charged with first-degree murder and attempted murder.

Martin was convicted of fatally shooting Andrew Meeks, 26, and seriously injuring Johnny Moore Jr., 30, both of Cedar Rapids. Testimony showed Martin was armed when he met Meeks and Moore in the Walmart parking lot in southwest Cedar Rapids on July 2, 2017. The three men were all in a vehicle when the shooting occurred.

Moore testified Martin shot them during a drug deal involving Xanax pills. The dispute was over Martin, who was selling the pills, shorting Meeks and Moore on the number of pills.

Moore said Martin got out of the car and then got back in, armed with a gun. Martin shot Meeks, who was in the drivers seat, and then turned and shot Moore, who was in the back seat.

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Meeks, who still had the car in drive, accelerated after the shots were fired, crashing the car into a guard rail in the parking lot, according to testimony. Martin left before police arrived.

Testimony showed Meeks and Moore were not armed.

During the trial, the defense argued Meeks and Moore tried to rob Martin, and he was forced to defend himself.

Martin also testified he was being beaten by Meeks and that Meeks tried to shove him out of the car and he had to defend himself.

The appeals court ruling stated the Iowa Supreme Court recently ruled that a jury instruction regarding the use of deadly force and authorizing an inference of guilt in a murder case because the defendant failed to make a report to authorities unconstitutionally penalizes the defendants silence and is therefore improper to use in all cases.

Martins attorney objected to the jury instruction, which contained the provisions of the 704.2B law, but Grady allowed the instruction.

According to the ruling, a reversal is required unless error was harmless beyond a reasonable doubt.

The court couldnt say there wasnt harmless error in this case because there is not overwhelming evidence of Martins guilt or that he did not act in self-defense.

Martin was sentenced to up to 50 years in prison.

Linn County Attorney Jerry Vander Sanden said Wednesday his office would ask the Iowa Attorney Generals Office to review the appeal and provide clarification on the Iowa Code 704.2B self-defense provision.

Comments: (319) 398-8318; trish.mehaffey@thegazette.com

Link:
Court overturns conviction for Cedar Rapids man accused of fatally shooting one man, seriously injuring another - The Gazette

The owner of Assembly Sports Club in Somerville yesterday sued Gov. Baker over the state's continued ban on health clubs, arguing the ban deprives it of its Fifth and Fourteenth Amendment rights and besides, Baker's just wrong because, as everybody knows, fitness clubs are too "essential," or at least as essential as the big-box stores Baker let stay open, except that it's even worse than that because all businesses are essential in our free-enterprise system.

The suit, filed in US District Court in Boston, joins a similar suit filed earlier this month by same attorney for the owner of gyms in Danvers, Chelmsford, Lowell and Springfield.

In the Assembly suit, owner World Gym, Inc. charges the ban, issued in March as Covid-19 spread rapidly through the state, was essentially a seizure of its property without recompense or right of appeal - and asks who the hell Charlie Baker is to order businesses to just close their doors through his "arbitrary, capricious, irrational and abusive" emergency declarations.

At a minimum, Plaintiff avers that it should have been able to decide for itself whether or not to "shut down," if its businesses / business model was not properly equipped to deal with the health and safety guidelines as issued by the Federal and State Governments in connection with the COVID-19 crisis. ...

Plaintiff avers that ALL businesses in the Commonwealth of Massachusetts are Essential to the health, welfare, and well-being of its citizens, and that the general health outcome sought through the passage of these Orders and Emergency Directives (i.e., lowering the curve of COVID-19) could be accomplished through less restrictive means.

World Gym says that the enforced shutdown has turned it into an unusable, unsellable shell of a company: It had to lay off 33 workers and can no longer collect roughly $140,000 a month in fees from members - even though its landlord still wants its monthly $47,000 rent.

Defendant's Orders and Emergency Directives mandated that because Plaintiff was a "Non-Essential Businesses", it was required to "shut down" and cease all operations as a means to help curb the spread of COVID-19. Such a mandate completely and unconstitutionally deprived Plaintiff of all economically beneficial use of its businesses without just compensation.

While the "police power" is inherent in a sovereign government and is reserved for the States in the Tenth Amendment to the U.S. Constitution, it is not without constitutional limits. ...

The Orders and Emergency Directives issued by the defendant, Governor Baker, effectively amount to an impermissible "partial" or "complete" taking in violation of the Takings Clause of the Fifth Amendment to the U.S. Constitution in that the prohibition of Plaintiffs' operation of their "Non-Essential Business" constitutes a regulatory taking of private property, for public purpose, without providing just compensation therefore.

The Orders and Emergency Directives violate the Takings Clause of the Fifth Amendment in that the complete prohibition of the business operations of "Non-Essential Businesses" constitutes an irrational, arbitrary, and capricious law bearing no rational basis to any valid government interest.

The notion that the government-ordered shutdown of "Non-Essential Businesses" (such as Plaintiff's) is absolutely necessary in curbing the spread of COVID-19 constitutes an unconstitutional infringement on Plaintiff's civil rights and liberties to operate in a free-market economy.

Also, Baker illegally used a Civil Defense law aimed at unrest following a Russian attack or a natural disaster to declare his state of emergency, and please, the complaint continues, a virus is "not an attack, sabotage, or hostile action that could justify the declaration of a Civil Defense State of Emergency."

Because his orders are being made pursuant to a statute designed to defend against foreign invaders and civil unrest in the wake of cataclysms, violations of his orders are null and void.

World Gym then cites the situation in Wisconsin, where the Republican-dominated legislature and supreme court overturned similar orders by the Democratic governor and said Baker is also usurping the legislature's role.

The company wants a judge to order Baker to let it open immediately and to award it appropriate damages, penalties and lawyer's fees.

Continued here:
Gyms sue Baker for right to let members lift things up and put them down in a pandemic - Universal Hub