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In 2015, an armed shoplifter fleeing the police broke into the Lech familys home in Greenwood Village, Colorado. The shoplifter, who chose the Lechs house at random, refused to come out and opened fire on the cops outside. In response, local police used explosives, high-caliber ammunition and a battering ram mounted on a tank-like vehicle to force his apprehension.

The Lechs home was essentially destroyed by the police response, which raises a critical legal question: Who pays for damage inflicted on private property as a result of a law enforcement action? Is it the responsibility of the police who intentionally caused the damage while playing with military equipment, or the innocent victim whose home is left in shambles?

This week, the U.S. Supreme Court is considering that question in Lech v. City of Greenwood Village, a case brought by the Institute for Justice, in which PLF filed an amicus brief. How the court rules will have significant legal implications, both in terms of clarifying property rights law and restoring a sense of accountability to law enforcement agencies that have grown increasingly aggressive in their tactics.

The damage to the Lechs property was estimated at $450,000. Yet the Greenwood Village Police Department offered the family a paltry $5,000 to help with temporary living expenses. The family sued, arguing they were entitled to Just Compensation under the Fifth Amendment for the intentional destruction of their house. The Tenth Circuit, however, held no compensation was due because the home was destroyed pursuant to the police power rather than the power of eminent domain. That decision was wrong.

To be sure, the Just Compensation Clause is more commonly understood to apply in the context of eminent domain, or regulatory takings, where the government takes private property for public use. This situationin which police destroyed the property while performing their dutiesis different. But in both circumstances, the property owner is left with private property he can no longer use.

Why didnt property insurance cover the Lechs loss? Because homeowners policies typically carry an exclusion for damages caused pursuant to government orders, which caused the destruction to the Lech home. Or perhaps the criminal should be held liable, but of course, he did not decide to drive the tank into the Lech home the police made the strategic decision to deploy military-style tactics and weapons against a residential home.

The use of such tactics and equipment has increased in recent years, as a result of federal grant programs that have placed powerful military-grade equipment into the hands of local police departments. In one recent three year period alone, the Pentagon sent $727 million of gear to local and state law enforcement authorities, including UH-60 Blackhawk and UH-1 Huey helicopters, M-16 assault rifles, and grenade launchers.

In response, those departments have likewise changed their tactics, as scholars like Radley Balko have explained. That is, once they have the military-grade equipment, they put it to work in ordinary law enforcement activity, even when less aggressive methods may be just as, or more, effective. Law enforcement agencies increasingly rely on so-called dynamic-entry, using SWAT teams, battering rams, assault rifles, armored personnel carriers and flash-bang grenades, ostensibly to protect the public.

It appears then, right or wrong, the deployment of military-grade equipment and tactics to enforce local laws is here to stay, as is the property and personal damage they cause. Thus, the Supreme Court needs to educate law enforcement about the Fifth Amendment. Innocent victims of the militarized approach to law enforcement will continue to suffer losses unless this Court confirms that intentional government action that occupies and destroys private property for a public use triggers the Just Compensation Clause.

And keep in mind that the Lechs are, in fact, innocent victims in this casethey did nothing wrong. However, even if they had been suspected of criminal offenses, the same protections for their property and rights would have applied, as even criminal suspects are presumed innocent, according to the Constitution. Theres simply no justification for the level of destruction that law enforcement routinely unleashes against private property owners, which is why the Supreme Court needs to clarify accountability in these cases.

There is no police power exception to the Fifth Amendment. The justices should grant the Lech case for review and recognize that the Fifth Amendment requires law enforcement to pay full compensation for all losses incurred when it destroys property while exercising its police powers.

The question here is not whether this government conduct is legitimate; the question is who should pay for the damages. And the Fifth Amendment answers that question: the government should, because the police, like the rest of us, are not above the law.

Daniel Woislaw is an attorney at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitutions guarantee of individual liberty.

The rest is here:
Supreme Court must remind law enforcement that not even the police are above the law - Pacific Legal Foundation (PLF)

The following court proceedings occurred Monday, June, 22, in Newburyport District Court. People arraigned are considered innocent until proven guilty in a court of law:

Connor R. Lewis, 27, address unknown, Amesbury, was arraigned on five counts of violating an abuse prevention order. Lewis was ordered held on $1,000 cash bail and ordered to return to court July 24. Should Lewis post bail, he must stay at least 50 yards away and have no contact with his alleged victim, must not possess firearms and must abide by all restraining orders. Lewis turned himself in to authorities after Amesbury police issued an arrest warrant.

Kasimer J. Alexander, 35, 12 Baker Road, Salisbury, and Thomas Dastous, 37, 125 Rabbit Road, Salisbury, saw assault and battery charges dismissed after they exercised their Fifth Amendment rights not to incriminate themselves. Both men were before Judge Peter Doyle as part of a bench trial. They were arraigned Dec. 24, after being charged by Salisbury police.

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COURT LOG: June 25, 2020 - The Daily News of Newburyport

The U.S. Supreme Court on Thursday dealt a severe blow to the rights of immigrants and refugees in a that determined the government can fast-track deportation of certain asylum-seekers without allowing them to appeal before a federal judge.

In the decision stylized as Department of Homeland Security vs. Thuraissigiam, the courts conservative majority collectively denied habeas corpus and due process relief to a Sri Lankan national who feared persecution in his home country. Liberal justices Ruth Bader Ginsburg and Stephen Breyerconcurred in the judgment.

The majority opinion, penned by arch-conservative Justice Samuel Alito, represents a victory for the Trump administrations efforts to expedite removal of asylum seekers who fail their initial asylum screenings.

The specific statute at issue is the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, legislation signed by Bill Clinton which established the framework of the countrys modern and exclusionary immigration and deportation regime.

Under the relevant language of the IIRIRA, an asylum applicant can avoid expedited removal if they have a credible fear of persecution. Here, Vijayakumar Thuraissigiam entered the country via the U.S.-Mexico borderbypassing official entry points and without immigration documentation. He was quickly apprehended and then processed for expedited removal by the Border Patrol.

What happened after that is hotly disputed.

The federal government claims, and the seven justices in the majority effectively accept, that Thuraissigiam affirmed that he did not fear persecution based on his race, political opinions, or other protected characteristics.

Thuraissigiam claims, on the other hand, that officials violated governing asylum regulations and deprived him of due process by conducting an inadequate interview and providing incomplete translation services, which the dissent says resulted in a threshold legal claim alleging procedural defects that violate, or at least call into question the governments adherence to asylum law.

Border authorities declined his asylum claim. An immigration judge later did the same. Thuraissigiam then filed a habeas petitionarguing that IIRIRAs language limiting habeas claims violates the Suspension Clausewhich also included a constitutional Due Process claim which asserted that immigration authorities had deprived him of a meaningful opportunity to establish his claims and requested another opportunity to argue his asylum claims. In his federal petition, Thuraissigiam pleaded that he feared persecution based on his ethnicity and political beliefs in Sri Lankafacts which would typically move an asylum claim past the credible fear stage.

Alitos majority opinion dismissed both claimsruling that habeas corpus petitions have no bearing on asylum claims and that undocumented immigrants caught entering the country are not entitled to Fifth Amendment Due Process rights.

Habeas has traditionally been a means to secure release from unlawful detention, but respondent invokes the writ to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country, the decision notesconcluding that this approach fails because it would extend the writ of habeas corpus far beyond its scope when the Constitution was drafted and ratified.'

The conservative-liberal consensus here will have far-reaching effects, for sure, but the decision also substantially upends precedent viz. the determination that immigrants caught attempting to enter the country without documentation are entitled to Bill of Rights protections. As the dissent notes, this is a drastic departure.

Per the decision:

Respondents due process argument fares no better. While aliens who have established connections in this country have due process rights in deportation proceedings, the Court long ago held that Congress is entitled to set the conditions for an aliens lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause. Respondent attempted to enter the country illegally and was apprehended just 25 yards from the border. He therefore has no entitlement to procedural rights other than those afforded by statute.

In short, under our precedents, neither the Suspension Clause nor the Due Process Clause of the Fifth Amendment requires any further review of respondents claims, and IIRIRAs limitations on habeas review are constitutional as applied, Alito continues.

The conservative majority acknowledges the impact of their ruling will have significant consequences for the immigration system in a section outlining the efficacy of the countrys immigration system and the pertinent sections of federal law that under-gird that system.

Taking the government at its word, Alito and the mostly conservative justices who agree with the Trump administrations long-argued public and legally briefed position that the majority [of asylum claims] have proved to be meritless.

Alito argued this point in a footnote:

[A]n influx of meritless claims can delay the adjudication of meritorious ones; strain detention capacity and degrade detention conditions; cause the release of many inadmissible aliens into States and localities that must shoulder the resulting costs; divert Department resources from protecting the border; and aggravate the humanitarian crisis created by human smugglers.

Tidily summing up the governments position, the majority described their overarching logic in deciding the case: If courts must review credible-fear claims that in the eyes of immigration officials and an immigration judge do not meet the low bar for such claims, expedited removal would augment the burdens on that system. Once a fear is asserted, the process would no longer be expedited.

Justice Sonia Sotomayor, joined by Justice Elena Kagan, wrote a lengthy and vehement dissentharshly criticizing both the majority opinion and her two liberal peers for concurring in the judgment.

Todays decision handcuffs the Judiciarys ability to perform its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers, the dissent argues. It will leave significant exercises of executive discretion unchecked in the very circumstance where the writs protections have been strongest. And it increases the risk of erroneous immigration decisions that contravene governing statutes and treaties.

[image via MANDEL NGAN/AFP via Getty Images]

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RBG and Breyer Controversially Concur in Judgment Dealing Severe Blow to Rights of Immigrants - Law & Crime

'The Room Where it Happened,' a book by John Bolton, at the White House in Washington, June 18, 2020. The book describes Boltons 17 turbulent months at President Trumps side through a multitude of crises and foreign policy challenges.

Doug Mills/The New York Times News Service

Robert Rotberg is the founding director of the Harvard Kennedy Schools Program on Intrastate Conflict, a former senior fellow at CIGI and president emeritus of the World Peace Foundation.

President Donald Trump should have been been found guilty at his impeachment trial. The U.S. House of Representatives should have expanded its indictment charge well beyond Ukrainian corruption, high crimes and misdemeanours to include asking President Xi Jinping of China to help him get reelected (and approving of Mr. Xis Uyghur concentration camps in Xinjiang region), running down NATO, pulling out of Syria in order to cut a deal with President Recep Tayyip Erdogan of Turkey (and betraying Kurdish allies), and generally running amok with foreign policy errors. Those are among the many critiques of the Trump presidency by John Bolton, his diehard conservative national security advisor, in a book being distributed this week.

Mr. Boltons charges are barbed. But even if voters are numbed by the sheer number of accusations, compounded by 19,000 already uttered presidential falsehoods counted by a Washington Post tally, Mr. Boltons indictment will remind a weary electorate not to forget. Truth and authenticity are the bedrock of leadership. Americans should expect no less of their presidents. Moreover, even though Congress has no appetite for another impeachment, nailing Mr. Trumps offences to the proverbial church door tells him, and the American people, that this is a president truly unfit for office an echo as well of the Twenty-fifth Amendment to the U.S. Constitution, which allows cabinet and Congress to end a presidency because of incapacity.

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The cascade of impeachable offences includes:

Dividing rather than uniting these United States and their disparate citizens. Putting narcissistic and electoral needs ahead of serving the nation.

Creating a series of thems rather than one us. Presidents should be drawing people into an us rather than creating an us versus them. New Zealands Prime Minister Jacinda Ardern did so successfully after a mosque massacre and now keeps her country largely free of coronavirus deaths. South Africas President Nelson Mandela dined with his enemies and brought all of South Africa together at a time when Black and white were dangerously unreconciled.

Demeaning the presidency and the very essence of the nation. Emerging from a White House bunker to attack peaceful protestors in order to accomplish a photo-op is but one example. Brendan Buck, a Republican operative, called those actions singularly immoral. Mr. Buck said that the President used force against citizens not to protect property, but to soothe his own insecurities.

Racist remarks threatening the very lives of Black Americans protesting. Conniving, too, with the stain of the Confederate memorabilia and names on military bases.

Falsely saying that presidents have authority to do whatever they want. I alone can fix it.

Facilitating the deaths of coronavirus victims. By sending wrong signals, first of reassurance and then of false remedies, and finally by encouraging the opening up for business prematurely and arrogantly, he caused the unnecessary deaths of thousands of Americans.

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Mr. Trumps missteps in foreign policy are also piling up:

Massively undermining the carefully constructed world order for which all previous American presidents and secretaries of state have fought valiantly and vigilantly since the Second World War.

Pulling out of the Paris climate accord, the Iranian nuclear deal and trashing the World Health Organization, thereby endangering the health and safety of the world.

Losing the trust of the world in the fundamental moral decency of U.S. policy.

Making the word of the United States unreliable in world affairs.

Forfeiting the U.S. role as a global setter and articulator of moral and legal guidelines and giving those roles (imagine!) to China and Russia.

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Putting Russias interests in security and human rights matters ahead of our own. Cosseting President Vladimir Putin, over and over. Condoning the invasion of Crimea.

Picking unnecessary fights with China, causing pain and trouble for Canadians and other Americans.

Calling African countries unspeakable names and being derogatory about their peoples.

Separating children from parents at the Mexican border.

Illegally denying the possibility of asylum to persons fleeing from Central America and beyond.

Embodying profound ignorance (refusing to read briefing books) in ways that endanger the nation and the world. And getting his information off a TV screen or from Twitter.

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Being a bully (and a coward).

Making the United States the laughingstock of the world no trivial crime.

This is hardly an exhaustive list. Nor is there space for more than bullet points. Realistically, there will be no second impeachment, no matter how deserved. Nor will his cabinet invoke the Twenty-fifth Amendment and declare him unfit for office. But the mental exercise of impeaching him again may contribute to Americas reckoning with itself in a desperate time when authentic and principled leadership matters more than ever. It is past time to call out the creator of Americas discontent.

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Excerpt from:
Boltons revelations show that Trump deserves to be impeached a second time - The Globe and Mail

Map and photo via U.S. Bureau of Reclamation.

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Press release from EarthJustice:

Irrigated croplands along both sides of the Klamath River south of Klamath Falls.

WASHINGTON, D.C. The U.S. Supreme Court today refused to hear a case brought by Klamath Basin irrigators,Baley v. United States, settling for good the question of whether reduced water deliveries to Klamath Basin agricultural producers in 2001 constituted a taking of private property under the Fifth Amendment.

We are pleased that the Supreme Court has declined to hear this case, and upheld the Federal Circuits decision, saidattorney Stefanie Tsosie of Earthjustice, a nonprofit environmental law firm that has been involved in this case for 18 years. This decision affirms sound and settled principles of Tribal reserved water rights. Earthjustice has long worked to protect and restore the Klamath River and its salmon, which hold significant cultural value for Tribes in the Klamath Basin and are essential to sustaining the West Coast commercial salmon fishing industry.

Background

The lawsuit began 18 years ago when a group of water districts and individual farmers in the Klamath Basin of southern Oregon sought compensation under the Fifth Amendment, as well as damages for breach of contract, over reduced Bureau of Reclamation water deliveries from the Klamath Project for irrigation in 2001.

Because it was a drought year, plaintiffs with junior water rights received less water than expected. However, the Federal Circuit found that the water available in 2001 was necessary to fulfill the senior water rights of Tribes in the Klamath Basin and so the plaintiffs had no property interest in water required to satisfy the Tribes right. Earthjustice represents the Pacific Coast Federation of Fishermens Associations, an affiliation of commercial salmon fishing interests that have faced drastically reduced fishing seasons and incomes because of declines in Klamath River and other salmon populations.

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U.S. Supreme Court Refuses to Hear 18-Year-Old Klamath Water Rights Case, Upholding Tribal Primacy - Lost Coast Outpost