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The weekend before Donald Trump was elected president in 2016, a secret private security initiative called Operation Baratheon was scheduled to begin. A PowerPoint presentation laid out the plan for Joel McCollough, a burly ex-Marine bearing a resemblance to Game of Thrones character King Robert Baratheon. He had been posing as an opponent of the Dakota Access pipeline at protests in Iowa but was now assigned to travel to North Dakota to collect intelligence on the growing anti-pipeline movement.

There, near the Standing Rock Indian Reservation, thousands were camped out as part of the Indigenous-led resistance to the Dakota Access pipeline. Energy Transfer, the ventures parent company, had plans to run the Dakota Access pipeline under the Missouri River. Calling themselves water protectors, the people in camp objected to the threat the pipeline would present to the Standing Rock Sioux Tribes primary drinking water source.

The effort to stop the pipeline had quickly become one of the most important Indigenous uprisings of the past century in the U.S. And McCollough, working for the mercenary security firm TigerSwan, was a key player in Energy Transfers multistate effort to defeat the resistance, newly released documents reveal. TigerSwan took a militaristic approach: To McCollough and his colleagues, the anti-pipeline movement was akin to the insurgencies the veterans had confronted in Afghanistan and Iraq. In line with that view, they deployed the same kinds of subversive tactics used in theaters of war.

One of these tactics was the use of spies to infiltrate so-called insurgents. That was McColloughs goal when, in November 2016, he drove to North Dakota with an unwitting pipeline opponent. A PowerPoint slide titled Mission described exactly what he would do once he arrived: infiltrate one of the Standing Rock camps. Another slide, titled Situation, listed his adversaries, under the heading of Belligerents: Native American activists, anti-establishment radicals, independent press, protester intelligence cells, camp security.

The newly revealed documents obtained by The Intercept show how security operations likeMcColloughs infiltration were carefully orchestrated and managed by TigerSwan describing in the security firms own words activities that it has repeatedly denied ever took place.

The documents make clearjust how far security companies hired by energy industry firms in this case, TigerSwan and Energy Transfer will go to protect their clients business interests against a growing climate movement, and how much the energy companies are willing to spend for these aggressive defenses: An invoice from December 2017 said TigerSwan had billed Dakota Access LLC, a subsidiary of Energy Transfer, some $17 million up to that point.

For movements like the one at Standing Rock Indigenous land and water defenders, fighting for territory central to their identity and health, and climate activists, staving off a potential future of chaos and suffering their actions are a matter of survival. But the same can be said for the energy companies, evidenced by their willingness to deploy war-on-terror-style tactics.

Advocates for the activists, though, say the war-like tactics have created harmful conditions for those exercising their right to dissent. This level of saturated, coordinated attack between private corporate interests, law enforcement, private security to shut down the climate justice movement particularly in the United States is extremely dangerous, said Mara Verheyden-Hilliard, co-founder of the Partnership for Civil Justice Fund, which is working with the Water Protector Legal Collective to represent water protectors in a class-action lawsuit against North Dakota law enforcement officials for usinghigh-pressure water hoses and other aggressive tactics at Standing Rock. The suit notes TigerSwans close collaboration with the sheriffs officials.

The new documents, which are being reported here for the first time, were turned over as discovery material to the North Dakota Private Investigation and Security Board. The board filed an administrative complaint against TigerSwan and its former CEO, James Reese, a retired commander of the elite special operations military unit Delta Force, for operating without a license in the state alleging violations carrying more than $2 million in fines. TigerSwan responded to the claim in court by saying the firm only provided consultation for the operations.

The security board made the new material public as exhibitsattached to a legal filing alleging that TigerSwans denials were willfully false and misleading and that the documents provedit.

This level of saturated, coordinated attack between private corporate interests, law enforcement, private security to shut down the climate justice movement particularly in the United States is extremely dangerous.

In his responses to the boards allegations, Reese claimed misinformation was to blame for parts of the security boards lawsuit against TigerSwan, suggesting the culprit was a series of investigative stories from The Intercept: The board considers one sided news reports from an anti-energy on-line publication a sufficient basis for calling me a liar, Reese declared.In the same affidavit, Reese claimed the operation involving McCollough had merely been proposed to the firm and, owing to its lack of a security license, not approved by TigerSwan.(At the end of last summer, TigerSwan and Reese signed a settlement with the board for less than $200,000, admitting no wrongdoing.)

TigerSwans own reports, however, offer rich detail about the companys operations better than any other source to date. (Neither Reese nor TigerSwan responded to a detailed request for comment for this article. Energy Transfer directed questions to TigerSwan and said, We have no knowledge of any of the alleged activities. McCollough suggested that some of the TigerSwan documentsincluded as exhibits in the North Dakota boardsfiling which he incorrectly described as leaked may contain inaccurate information, but declined to point to any specific fact he disputed or item he believed to be false.)

WhatsApp chats, invoices, operational plans, and organizational charts, all made public by the North Dakota security board, show how Reese andTigerSwan were making,according to the board, willfully false and misleading claims when theysaid that the company had not carried out private investigation, security work, or infiltration operations in North Dakota. The company documents show instead that TigerSwan at times promoted its human intelligence operation as a driving element of its effort to fight pipeline resistance.

TS personnel have established eight months of relationships with activists, a presentation titled TigerSwan Intelligence stated. The same slide noted that TigerSwan operatives had gotten to know Anti-pipeline groups in Iowa, Nebraska, Illinois, Missouri, and North Dakota and Maintain personal relationships with key leaders.

No other company has infiltrated these activist groups on a long-term basis, another slide said. Our personnel even now develop deeper ties into activist communities and groups that are international in their reach.

TigerSwan organized its surveillance work like a full-fledged state intelligence agency but on a smaller scale. The company divided the intelligence operation into teams focused on human intelligence, imagery intelligence, signals intelligence (intercepting communications), and open-source intelligence based on news reports or other publicly available material like social media posts. The TigerSwan teams worked out of fusion centers the same term state law enforcement agencies use to describe a network of post-9/11 information sharing offices located in Bismarck, North Dakota; Des Moines, Iowa; and Sioux Falls, South Dakota, according to an organizational chart.

The imagery intelligence team included an operative who took photographs of the camps from a helicopter, while the signals intelligence team monitored water protectors radio communications. At times, on the radios, TigerSwan operatives would add their own disruptive messages, according to a former member of the intelligence team, who declined to be named out of fear of retribution.

Key to the security operation was the use of infiltrators. Having TS CI/HUMINT infiltrators on the ground is critical in minimizing lost construction time, the TigerSwan Intelligence PowerPoint noted, using acronyms for counterintelligence and human intelligence.

Joel McCollough, far right, at a climate march launch event in Chicago hosted by Food & Water Watch in April 2017.

Photo: Courtesy of Gloria Araya

The plan for Operation Baratheon describes how the company organized such activities. In advance ofMcColloughs election-week trip, TigerSwan meticulously plotted out the mission, compiling a slideshow with the weather forecast, the driving route from Iowa to North Dakota, and a detailed escape plan, including an option for a helicopter evacuation. This calculated approach was new for the company, said the intelligence team member. Recently, a company infiltrator had been hastily removed from the North Dakota camps after his cover was blown, and TigerSwan did not want to be caughtunprepared again. Once a day,McCollough was to use code phrases to check in with his handlers on a WhatsApp channel that includedsix other TigerSwan operatives, according to the documents.

The operation plan warned of certain types of people referred to as belligerents thought to be dangerous.McCollough, for example, was to be wary of members of the independent press. The former contractor explained the thinking: Independent reporters are not unbiased, he said, and theyre basically an intelligence collection node for whatever movement theyre a part of.

Framing journalists, camp security, and Native American activists as hostile aggressors was in line with TigerSwans view of the protests as an insurgency that must be quelled: TigerSwans counterinsurgency approach to the problem set is to identify and break down the activist network, the intelligence PowerPoint stated. TS Intel understands anti-pipeline activists have developed cultural, religious, and ethnic environments which we are uniquely capable of exploiting.

Framing journalists, camp security, and Native American activists as hostile aggressors was in line with TigerSwans view of the protests as an insurgency that must be quelled.

Pipeline opponents have alleged that the counterinsurgency campaign led to civil rights violations. Although the North Dakota security board signed the settlement agreement, at least one other lawsuit against the security firm is outstanding. The suit, which alleges that the closure of the highway passing by the resistance camps infringed on pipeline opponentsFirst Amendment rights, says TigerSwans close collaboration with police and public officials makes the security firm liable for the abuses.

Water protectors believe that the paltry fines imposed by the security board provide only a semblance/parody of justice. TigerSwan has not yet been held meaningfully accountable for their actions at Standing Rock, said Noah Smith-Drelich, an attorney representing water protectors in the highway case. Were hoping to change that.

Two bearded men wielding swords and wearing wolf skins illustrate the cover of a TigerSwan Daily HUMINT report for December 8, 2016. The men represented in the TigerSwan document are lfhnar, a type of elite Viking soldier that goes into a trance-like state as they lead attacks on enemies.

The presentation slides in the HUMINT report offer intelligence on a variety of people, organizations, and other aspects of camp life. The group Veterans for Peaceis a very communist organization, said one slide. Another, titled Red Warrior Camp Cell Leader, tracked the activities of a water protector named Tempeh, who was thought to be involved with a direct action-focused camp. Tempeh has asked RO coded initials for the infiltrator to assist him in evaluating weaknesses in the systems for the purposes of exploiting/sabotaging. RO remained non-committal, one slide said. Tempeh is also looking for someone to dig up dirt on sex trafficking involving DAPL workers. The infiltrators, according to the documents, volunteered to collect such information, in an effort to gain the trust of camp leaders.

The slide contained numerous inaccuracies, Tempeh told The Intercept. Tempeh, for example, was close with members of Red Warrior, but he belonged to a separate camp called Heyoka.He said much of the material seemed to be based on rumor or on the kind of directionless brainstorming that occurred around campfires.

The PowerPoint was only the starting point for more than a month of documented spying. The records provided by TigerSwan in discovery show that, the same day the report about Tempeh came in, a human intelligenceteam member named Logan Davis created a WhatsApp chat group withMcCollough and a third member of the TigerSwan team, Zachary Perez, who were both getting ready to enter the North Dakota camps. (Neither Davis nor Perez responded to requests for comment.)

Joel, first RFI for you, Davis wrote, using an acronym for request for information, who belongs to Red Warrior Group. He wanted the leadership structure, number of members, where they were staying, and a description of their vehicles. He asked the same for Veterans for Peace. Perez, meanwhile, would attempt to gain access to Sacred Stone camp.

RW is highly guarded,McCollough replied, referencing Red Warrior camp. I got extremely lucky meeting Tempeh the way i did. He asked Davis to get the name of a pimp from law enforcement, so he could build bona fides with Tempeh. (Asked about the report, Tempeh did not recall any conversation withMcCollough.)

Davis delivered a name and then sent the operatives into action: Start reengaging your sources. We dont have the luxury of time.

The infiltrators did just that, according to the TigerSwan documents attached to the Boards filing. They attended courthouse support protests, offered to be drivers for direct actions, invited water protectors to crash in their hotel rooms, and provided them with gear. They filed intelligence reports and details of their movements back to Davis, who at times mingled among water protectors himself, and later to other handlers, Nik McKinnon and Will Janisch. (McKinnon and Janisch did not respond to requests for comment.)

The chat logsdescribe the roleReese, then TigerSwans CEO, played in managing the HUMINT operation. When Jim Reese visited a while ago he said the collectors a term for intelligence collectors, including infiltrators could have 1k in petty cash, McCollough told the group, explaining that he didnt want to use his credit card in front of the pipeline opponents. I told him 500 would be plenty.

Throughout December 2016, McCollough developed relationships with various water protectors. According to the TigerSwan chat logs in the North Dakota security boards filing, he repeatedly referred to them in the chats as muj, shorthand for mujahedeen, a reference to Muslim religious fighters. TigerSwan operatives exchanged crude banter about women and racist jokes, including about drunk Indians. The chat itself was titled Operation Maca Root 3, a supplement known for increasing libido and fertility in men.

As the former member of the TigerSwanintelligence team put it, At some level you naturally dehumanize the enemy. They do the same thing.He added, This isnt a Brooklyn tech startup, its a bunch of mercs in a private chat supposedly.

Advocates for water protectors noted that such dehumanizing language speaks to the mercenaries militaristic approach. Its the same type of racism thats employed by the military in other countries to dehumanize and demonize a population under attack or under occupation, said Verheyden-Hilliard.

At one point in the chats, Davis indicated ambitions to do more than just observe water protectors activities. He flagged the presence of an organization of veteran volunteers called The Mission Continues, telling the chat group, I can see this being something we can develop and infiltrate rather easily, if not completely take over.

On a different day, after noting thatfew supporters turned out at atrial for a water protector, Davis joked, Its pretty bad, Im gonna eat breakfast and think about how much we have destroyed a grass roots movement.

The assessment of TigerSwans efficacy was shared by the former member of the intelligence team: Demoralization, destabilization, fake crisis, ideological subversion, active measures, or psychological warfare these had all taken theirtoll, he said.

The most active infiltrator in the chat group was McCollough, according to the logs made public in the security board filing. Throughout December and January, he attempted to identify weapons in the camps. He described interpersonal disputes between members of the camp security groups and drug and alcohol use among the pipeline opponents. And he showed a special interest in violence against women. Previous reporting by The Intercept shows that he asked two water protectors for names of women who had been assaulted, claiming he was a journalist writing an article about it; they declined. The chat provides evidence of that approach. Working on the pirs priority intelligence requirements with a muj who thinks Im gonna write an article about the rapes in camp, he told the chat group at one point.

McCollough floated another idea for obtaining information that water protectors didnt offer voluntarily. Can we get micro recorders for a hotel room? If its legal, of course, he suggested. (In fact, water protectors had found what appeared to be such a device at the hotel and casino back in October.) Tempeh used the bathroom to have private discussions even when the room was full. If i had had a recorder I could turn on remotely it would have been great.

You can do it but cant be used in court, the other infiltrator, Perez, responded. Only with consent or in a public Setting.

McKinnon, the handler, jumped in. It would depend on whos dwelling it is. And what Zach said.

If i paid for the room, its mine, right?McCollough asked.

Correct, McKinnon replied.

They were mostly wrong. In North Dakota, using recording devices, even in your own home, would amount to felony eavesdropping in a space like a bathroom, where there is a reasonable expectation of privacy unless at least one person present agreed to the recording, according to North Dakotas wiretappinglaws.

Tempeh, who remembered seeing McCollough that day in the hotel room, said that operational security was essential to planning nonviolent direct actions and likely prevented McCollough from getting much meaningful information. If you werent in our family, we didnt talk to you, he said. We didnt even talk around you.

Vanessa Dundon, a plaintiff in the class-action lawsuit related to the water hoses, was also mentioned in the documents. Dundon, who is Din, lost vision in one eye after being hit by a tear gas canister at Standing Rock. In the chat logs filed by the security board, McCollough claimed to have spent a night in Dundons room, to which Davis replied that he hoped McCollough would make little martyrs with her. Cyclops babies, Perez replied in the chats, a crass reference to Dundons lost eye.

Dundon said she didnt remember McCollough. It disappoints me how childish all of the security firms are and that they are in any position of power, she said. Even as she continues, four years later, to undergo surgeries on her eye, however, Dundon findshumor in the infiltrators boorish exchange. Its funny in a way, she said. Being Native, the way we take in hate or shaming we turn those things to make them laughable.

Ultimately, for Dundon and others, its their communities health at stake. Kandi Mossett, a member of the Mandan, Hidatsa, and Arikara Nation from the Fort Berthold reservation in the heart of North Dakotas fracking region, developed cancer when she was 20 years old, which she believes was linked to pollution in hercommunity.

Mossett, who was also mentioned in the WhatsApp chats filed by the security board, said the surveillance she and others experienced at Standing Rock has indelibly changed the Indigenous environmental justice movement. Its still affecting people four years later with PTSD, she said. She and others have become more cautious about who they trust and how they use technology. The surveillance, she added, is a form of trying to shut us up and shut us down. And for most of us, it didnt work.

The WhatsApp chats continued into mid-January, though McCollough worked as an infiltrator through the spring, long after the camps closed down in February. The documents obtained by The Intercept leave a paper trail of his work. An invoice dated March 23, 2017, listed him as HUMINT ND human intelligence North Dakota and an April 2017 image of McCollough at a Chicago meeting of the nonprofit Food& Water Watch appeared in the PowerPoint titled TigerSwan Intelligence.

TigerSwan saw opportunity on the horizon: anti-pipeline insurgency everywhere.

By then, the movement at Standing Rock had quieted down, and it was becoming increasingly clear that the counterinsurgency force envisioned by TigerSwan at Standing Rock was no longer needed, even on its own terms. TigerSwan, however, saw opportunity on the horizon: anti-pipeline insurgency everywhere. The internal company documents hint at plans to build out the firms own cottage industry of squelching pipeline protests. One presentation, which appears to be a pitch to fossil-fuel companies, lays out the services TigerSwan hoped to provide.

Law enforcement was no match for pipeline opponents, the pitch began. The activist mindset places them in at the same level as an insurgency, which is outside current law enforcement capabilities, a slide said. It was TigerSwans human intelligence capabilities that truly set it apart from law enforcement, because police had to rely on warrants to obtain information rather than improvising and having the information freely provided by the activists themselves. Instead of turning activists, a slide said, We rely on elicitation primarily.

Unlike law enforcement officers, private security operatives work outside of many constitutional restraints, such as those laid out in First Amendment law, said Verheyden-Hilliard. When you start to bring in these private entities, theyre also often operating as an illegal proxy force to be a hidden hand to do what official law enforcement may be restricted from doing, which is a lot of what were seeing here, she said. The fact that you have law enforcement that is commissioned by the state with the authority to use lethal force and to deprive people of their liberty that law enforcement is being informed in its actions by an entity whose pecuniary interest is in suppressing protest activity.

Cooperation along those lines was evident in the TigerSwanpresentation. Advanced warning of protester movement allowed TigerSwan security to liaise with local Law Enforcement (LE) in a timely manner, the documents said.

Theyre also often operating as an illegal proxy force to be a hidden hand to do what official law enforcement may be restricted from doing.

At fusion cells set up to imitate military regional operations centers, analysts combined data from their 24-hour media monitoring with the human intelligence collected on the ground to create maps of networks and detailed profiles of activists.

The product TigerSwan could offer, the presentation said, was more than just former military members who know how to break into a movement. Utilization of CI/HUMINT counterintelligence/human intelligence techniques and military fusion cells have allowed TigerSwan to develop proprietary databases on activists, the presentation stated.

And the data could be reused: TigerSwan analysts now have a well-developed intelligence picture of key bad actors, the groups they belong to, how they are funded, and where they come from, the PowerPoint read. This enormous amount of historical data is proprietary to TS.

The former intelligence operative scoffed at the idea that TigerSwans database contained meaningful threat information. So theres a databases of people and things and events thats so big it really doesnt mean anything, he said, but explained the claims: More threats made them moremoney. It was just promo to getcontracts.

TigerSwans path to expansion, however, was obstructed after The Intercepts investigations revealed the companys invasive, militaristic tactics. As its business suffered, TigerSwan fought to evade legal accountability.

Despite the internal company documentsincluded in the security board filing, TigerSwan and Reese have continued to deny they provided private investigative and security services in North Dakota. In June, in response to a list of questions posed by the North Dakota Private Investigative and Security Board with their discovery request, Reese submitted a lengthy affidavitchallenging accounts of TigerSwans activities. Did any of OUR employees provide investigative or security services in North Dakota. They did not. Anyone inside the camp providing investigative services were hired by someone else, Reese wrote on June 24. HUMINT does not mean they were in the camp. Those assigned as HUMINT were research/reports writers who focused on information from sources along the pipeline, Reese claimed, even though all three HUMINT operatives discussed infiltrating North Dakota camps in real time over WhatsApp.

As for McCollough, Reese declared, The intercept article alleges he was in ND and spent a few days in the Casino. We understand that he came on his own accord as he was writing an article. Mr. McCullough has had several articles published over the years on a variety of veteran views and activities. TigerSwan hired him for work in Iowa and North Carolina. Operation Baratheon was a PROPOSED idea that was NOT APPROVED BY TigerSwan. It was disapproved because TigerSwan was not licensed to do this type of private investigator work and our former military intel analyst were looking at this from their experiences abroad and not domestically.

As The Intercept has previously reported, McCollough did indeed follow the plan outlined in the document, and the new documents show that TigerSwan managers ran at least one similar operation. (According to an invoice, McColloughbilled $450 a day for his work as a human intelligence operative.)

The boards lawyer characterized Reeses claims as part of an attempt by TigerSwan to perpetuate a fraud on this court through their intentional misrepresentation and omissions related to Joel McCollough, Logan Davis, and Zach Perez. The judge agreed that sanctions would be necessary. For failing to provide full responses to discovery requests, she declared TigerSwan and Reese in default and said the board should apply an administrative fee.TigerSwan asked the board to reconsider, claiming that they had provided substantive answers to the requests and that they stood ready to provide additional information.

With TigerSwan continuing a years-long legal battle in response to the judges ruling the board suggested in a legal filing that TigerSwan seeks to win this action by attrition the two sides reached a settlement in September of this year. TigerSwan agreed to stay out of North Dakota and to pay a fine of $175,000 a fraction of the standard fines for violations laid out in the North Dakota Private Investigative and Security Boards complaint in exchange for admitting no wrongdoing.

The settlement did not, however, prevent TigerSwan from turning over 16,000 documents to the board about its activities at Standing Rock, putting them into the public record. Energy Transfer is now suing TigerSwan and the security board, claiming that the security company breached its contract by providing the material and that the board should return the material. A judge has granted a temporary straining order preventing North Dakota from providing citizens access to the material.

By the time the administrative case was settled, Reese had already moved on to new ventures. After Trumps election, a friend of Reeses at the Washington Examiner publishedan op-ed suggesting the TigerSwan chief ought to be appointed FBI director. At the same time, Reese fashioned himself into a right-wing pundit, commenting on relations with Russia, mass shootings, and the war in Syria all through a contributor gig at Fox News, where Trump might see him speak. Though the FBI job never materialized, this summer Reese obtained a U.S. government-approved contract to export oil from the Kurdish-controlled region of Northeast Syria, a deal the Syrian foreign ministry said amounts to the U.S. stealing Syrian oil.

Meanwhile, the idea that counterinsurgency tactics should be used to quell domestic uprisings has proliferated. David Kilcullen, a top war-on-terror adviser to the U.S. government, recently wrote that the nationwide uprisings in the wake of George Floyds killing might be viewed as an incipient insurgency. What happened at Standing Rock reveals the results such logic can produce.

Last month, private security firm Atlas Aegis put out calls for special operations veterans to apply to defend Minneapolis businesses and polling places during the November election from antifas. In response, Minnesota voting rights advocates sued the company, and the state attorney generals office launched its own investigation.

There has to be a crackdown, said Verheyden-Hilliard. Shesaid the big question would be whether legislatures would be willing to rein in security companies. Or do they just want to endorse and support a sprawling paramilitary, law enforcement, surveillance industry that has tentacles throughout the country and can act at the whim of any private corporation?

See the rest here:
Documents Detail TigerSwan Infiltration of Standing Rock - The Intercept

Marc Manos, of the TIPS Council, monitors the Fourth Circuit Advance sheets and selects cases that might be of interest to tort or insurance practitioners.

Case No. 19-1383 (4th Cir. Oct. 2, 2020) (Published). GOVERNMENTAL TORT/CONSTITUTIONAL VIOLATION 42 U.S.C. 1983 deliberate indifference and S.C. Tort Claims Act negligence and gross negligence in the operation of a police vehicle. Denial of summary judgment on qualified immunity affirmed. Deputy Sheriff in Anderson County began responding to a Code Three incident to aid another deputy allowing law enforcement to exceed speed limits and ignore certain traffic laws so long as siren and emergency lights are activated (there are some exceptions to use of lights and siren, not applicable to this case). Shift supervisor canceled Code Three and ordered a "normal run" response where officers must abide by all traffic laws. Responding deputy turned off emergency lights and siren and two minutes later lost control of the vehicle, crossed the center line, and while traveling at least 83 MPH in a 45 MPH speed limit area hit Plaintiff's ward nearly head on causing severe orthopedic and neurological injuries. Under these facts, the deliberate indifference standard guides whether the officer is entitled to qualified immunity. County of Sacramento v. Lewis, 523 U.S. 833 (1998). The cancellationof the emergency two minutes and fifteen seconds before the collision, the Defendant's acknowledgement that the Code Three was now a non-emergency Code One, and turning off the emergency warning lights and siren established that the District Court properly selected the deliberate indifference standard, rather than intent-to-harm. As a reasonable jury could conclude under the facts that Defendant operated the police vehicle in a dangerous and reckless manner with knowledge of the risks involved. The facts included that Defendant received remedial training for earlier vehicle operations violations of policy. Thus summary judgment should have been denied on qualified immunity for the due process violation claims. The requirement to non-recklessly operate a police vehicle is well established the District Court property denied summary judgment on that ground as well. Finally, the Parratt-Hudson doctrine only applies to procedural due process claims where state law provided post-deprivation remedies, not to substantive due process claims like this one. See Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part on other grounds, Daniel v. Williams, 474 U.S. 327, 330 (1986); Hudson v. Palmer, 468 U.S. 517 (1984).

View case here.

Case No. 18-722 (4th Cir. Oct. 13, 2020) (Published). GOVERNMENTAL TORT/CONSTITUTIONAL VIOLATION/RETALIATION. Prisoner filed First Amendment retaliation claim against prison officials who placed prisoner in isolation pending investigation of his claim a guard sexually assaulted him. District Court found prisoner stated a claim, but granted prison official summary judgment because prison officials established they would have made the same decision absent the protected conduct for reasons related to a legitimate prison interest. The Court of Appeals held, in a case of first impression in the Fourth Circuit that the employment law same-decision test of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977) applied to 42 U.S.C. 1983 prison First Amendment retaliation claims. There is a split in the circuits on this issue. The Court went on to reverse, however, because a material question of fact existed as to whether the prison official would have placed the Plaintiff in segregation absent a retaliatory motive.

View case here.

Case No. 19-1702 (4th Cir. Oct. 21, 2020) (Unpublished). GOVERNMENTAL TORT/CONSTITUTIONAL VIOLATION/GENDER DISCRIMINATION. Male high school student accused by three female students of inappropriate sexual comments and touching suspended then transferred sued for gender discrimination under Title IX and free speech violations under First Amendment and Virginia Constitution. Summary judgment for defendants affirmed. Under erroneous outcome theory, Plaintiff could not prevail because his admissions on record prevented a material issue of fact as to his actual innocence. Under selective enforcement, Plaintiff came forward with no evidence of record to create a material issue of fact that anti-male bias animated the proceedings. Further, he received the due process required for school disciplinary action. The school setting grants school officials broader, but not unlimited, power over speech. Speech disruptive to the work of the school or vulgar and offensive speech that contradicts the teaching fundamental values of civility, may be disciplined.

View case here.

Link:
October 2020 Fourth Circuit Torts and Insurance Cases of Interest - JD Supra

Publishers note: I know it is unthinkable that my column today isnt about the election results, but it is not. Let me explain. Due to circumstances beyond my control, I was in the Carolinas this week visiting with both of my daughters and my grandbaby Evie. I certainly wouldnt have scheduled the trip during election week if it had totally been up to me, but it was not. When multiple schedules are involved, compromises must be made and they were.

Now, I probably could have ripped off a quick column while on vacation, but doing so in regard to an election that will decide the fate of the country for generations to come seemed like a bad idea, so I simply decided it would be better to devote my undivided attention to it when I return. So you will be reading about that next Saturday. But this column, which I wrote before I left last Friday, is important too.

When Greg Burroughs started suing people and entities after he was found not guilty in his manslaughter trial, quite frankly, we were shocked when we somehow escaped being served ourselves. But soon, it became apparent why we hadnt been served. We werent being sued because Burroughs attorney planned on making our coverage his main evidence and our Editor-in-Chief Mark Thornton his main witness in his case against the City of Laurel and Laurel police officers.

Burroughs and his attorney would never be able to successfully sue us anyway, because what we reported was accurate. So, instead they went after the City of Laurel and LPD officers because they say we shouldnt have been privy to details such as Burroughs failing his lie-detector test.

Just because Burroughs didnt name us in the lawsuit, though, doesnt mean that he didnt get his chance to punish us financially. When we found out that the Burroughs case revolved mainly around our coverage and that Mark was being deposed and asked to give up his sources, it was definitely a blow. Mark and I discussed our options, and there just werent many good ones. We knew right away that, no matter what, we couldnt and wouldnt give up any sources. It would mean the death of any quality reporting that this newspaper could ever do again. Think about it: Why would anyone ever trust us again? Certainly no one would ever feel comfortable sharing information with us again, and I wouldnt blame them.

Without hesitation, Mark and I decided that there is no way we could or would ever give up a confidential source for any story, not just this one. I know a lot of you are saying, Well, that was an easy decision for you, as it would be Mark whose butt would be sent to jail. And, yes, there have been miscarriages of justice where reporters have been sent to jail for this exact reason. (Two of the more well-known cases include, in 1972, Los Angeles Times reporter William Farr was jailed for 46 days for refusing to identify sources for an article he wrote about the Charles Manson trial. In 2005, New York Times reporter Judith Miller served 85 days for failing to disclose a source in a story about the Plame Affair.)

But believe me, this decision wasnt easy for me either. First and foremost, Mark and I have been through so much together over the past 15 years, we are more like family than colleagues. And, secondly, if you can compare the Leader-Call to an automobile, it takes everyone who works here to make this vehicle run smoothly, but no doubt about it (and I think every single person who works here would agree), Mark is the engine of our Coupe de Ville. Nonetheless, we still knew that even if Mark had to make the ultimate sacrifice (and give him all the credit for this because he was willing) there was simply no way we were going to give up any sources.

Knowing that Marks butt (literally and figuratively) was on the line left us with little option but to hire the best attorney we could to represent him, no matter the cost. Im sure Burroughs took delight in knowing that we were going to have to spend thousands of dollars on legal representation. I share the profits of this company with my employees, so he didnt just hurt Mark and me, but every person who works here. But here is what I know about the people who work here: every one of them would not only have offered to give up their Christmas bonus to help defend Mark and the paper in this case, but they would have dug into their own savings to chip in if it would have been necessary.

Everyone who works here knows that if it hadnt been for the Leader-Call, Katherine Sinclairs death would have been quickly swept under the rug as a suicide. She never would have had any opportunity at justice, and they are proud of our coverage and dedication in trying to uncover the truth.

They are also proud of Mark for standing tall and strong on principle in this case. Burroughs attorney Daniel Waide was shot down twice and a magistrate and judge upheld a reporters qualified privilege under the First Amendment was upheld in federal court. This was not only a win for the Leader-Call, but a win for the First Amendment of the Constitution. And since Mark was the main witness in this case, it was a win for the City of Laurel and the LPD as well.

In the end, Greg Burroughs cost us, as well as taxpayers in the City of Laurel, a lot of money. But in doing so, he also exposed even more damning information about himself. Its hard to imagine that this vindictive lawsuit was worth it to him, but who knows what goes through the mind of someone who takes the time to call a friend before dialing 911 immediately after his girlfriend gets shot in the head in his garage? Ill never understand it, and Im sure most of you wont either.

Burroughs may have cost us money, but by all accounts, he is still a loathsome human being. To this very day, we still have never heard anyone say a nice word about him. Weve had people tell us he was innocent or that we mistreated him in the paper, but even those people couldnt say anything nice about the man himself.

In contrast, Mark Thornton emerges from this next chapter in the Burroughs saga as a hero. Mark was willing to pay whatever price was necessary to keep a promise he made to every individual who has ever acted as a confidential source. Thornton is a champion of the First Amendment and a true warrior who was willing to sacrifice himself to protect others.

I cant help but get the sense that Marks efforts made Katherine Sinclair look down from heaven and smile.

Jim Cegielski is publisher of the Leader-Call. He lives in Laurel.

Original post:
A win for Laurel, the LL-C and the First Amendment - leader-call.com

Dear Mr. President: Congratulations on your election victory.

Thats a non-partisan congratulations. The First Amendment, with its 45 words encompassing our core freedoms of religion, speech, press, assembly and petition, doesnt take political sides.

The year 2020 has seen a dramatic increase in the ways our fellow citizens are using the First Amendment. Theres every reason to believe 2021 will be more of the same.

By this Election Day, a record number of us exercised our right to vote, the ultimate expression of our rights to petition the government.

Years of simmering injury, insult and resentment over blatant and hidden racism have boiled over into a wave of public protests, prompted by the repeated deaths of Black men and women at the hands of police officers, and rooted in economic and social systems that people of color see as tilted against them

The national crisis that is COVID-19 is tearing at the very fabric of daily life and even as it hammers everything from employment numbers to how we sometimes can say farewell to the dying, the pandemic is sparking street demonstrations for and against health measures like masks and business shutdowns.

I write to ask that as you consider your election victory, you keep these First Amendment considerations in mind using the order of the five freedoms, to help organize your thoughts.

Religion in the U.S. today covers a remarkably diverse form of beliefs and practices, unique in the world. Understandably, that creates ongoing conflict as overall social values and individual matters of conscience collide. Some call this a culture war. I hope you will think of it as does my Freedom Forum colleague, Dr. Charles Haynes: An opportunity to find common ground focusing on those places where we do agree, even as we recognize and celebrate our differences.

What of free speech? For nearly a century, most battles around this freedom focused on whether or not government could restrict or punish individuals for their speech. In this next presidential term, the focus will be on relatively new ideas: There are ideas, words or symbolic actions that are too dangerous to be heard, or that the right to speak includes a right not to listen or to be protected from even hearing.

Please keep in mind that ideas are not eliminated by silencing those who give voice to them. More speech, in more ways, is the better path. It is a proper government role to find ways to encourage diversity of thought, but not to become a national nanny or worse, an autocratic censor deciding what we should see, read and hear.

The next generation will be ill-served to face an assuredly contentious world if they arent aware of a range of ideas, concepts and creeds. A need to reinforce the key positive ideals of our society for the future must include free discussion of where we have fallen short in word, actions or law in the past.

A free press is being challenged by the triple tag team of economic loss, public mistrust and new competition. An attendant casualty has been our collective belief in truth or at least accepted facts based on solid journalism, not punditry across a myriad of new information sources.

You dont have direct responsibility to make journalism better, but things are so dire you and Congress may be needed to help ensure we have any effective journalism at all.

The number of local news outlets is plunging and news deserts in which no local news media exists are growing. The watchdog-on-government role of a free press so vital to the informed citizenry needed by a democracy cannot be allowed to simply evaporate.

The unthinkable for free press advocates of not long ago tax breaks, operating subsidies, support for public journalism as we have seen for public television and radio may well become over the next four years unavoidable.

What we do know, based on annual surveys the Freedom Forum has done since 1997, is that most of us support that watchdog duty. Work with that consensus.

Assembly and petition have had rebirths. When frustrated, Americans always protested, on our streets and now online. Your responsibility here starts with listening even when others are shouting.

Yes, you must respond to those who go outside First Amendment protections into violence. But those responses must be tempered by the recognition that peaceful dissent is democracy, not disloyalty.

I write knowing you and the nation face many challenges. But I also write with the profound hope that this letter will be a reminder that these core freedoms empower all of us to freely talk with each other in many different ways, with a goal of determining the best possible solutions for the greatest number of people, in the shortest amount of time. The First Amendment doesnt require or provide for perfection, but it fuels democracy.

With that spirit in mind, good fortune in the next four years.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

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On behalf of the First Amendment | Opinion | dailyitem.com - Sunbury Daily Item

Plaintiffs CDK Global LLC and Reynolds and Reynolds Company develop, own, and operate proprietary computer systems known as dealer management systems ("DMSs") that process vast amounts of data sourced from various parties. Automotive dealerships hold licenses to DMSs to help manage their business operations, including handling confidential consumer and proprietary data, processing transactions, and managing data communications between dealers, customers, car manufacturers, credit bureaus, and other third parties. Plaintiffs contractually prohibit dealers from granting third parties access to their DMSs without Plaintiffs' authorization.

In March 2019, the Arizona Legislature passed the Dealer Data Security Law . The Dealer Law regulates the relationship between DMS licensers like Plaintiffs and the dealerships they serve. Under the Dealer Law, DMS providers may no longer "[p]rohibit[] a third party [that has been authorized by the Dealer and] that has satisfied or is compliant with current, applicable security standards published by the standards for technology in automotive retail [ (STAR standards)] from integrating into the dealer's [DMS] or plac[e] an unreasonable restriction on integration."

The Dealer Law also requires that DMS providers "[a]dopt and make available a standardized framework for the exchange, integration and sharing of data from [a DMS]" that is compatible with STAR standards and that they "[p]rovide access to open application programming interfaces to authorized integrators." Finally, a DMS provider may only use data to the extent permitted in the DMS provider's agreement with the dealer, must permit dealer termination of such agreement, and "must work to ensure a secure transition of all protected dealer data to a successor dealer data vendor or authorized integrator" upon termination.

Plaintiffs have sufficiently alleged that the Dealer Law abridges their freedom of speech by requiring that Plaintiffs draft code to facilitate disclosure . It is well-established that "computer code, and computer programs constructed from code can merit First Amendment protection." Universal City Studios, Inc. v. Corley (2d Cir. 2001); see also United States v. Elcom Ltd. (N.D. Cal. 2002) ("[c]omputer software is speech that is protected at some level by the First Amendment").

However, not all code rises to the level of protected speech under the First Amendment. Rather, there are "two ways in which a programmer might be said to communicate through code: to the user of the program (not necessarily protected) and to the computer (never protected)." Further, even where code communicates to the user of a program, it still may not constitute protected speech under the First Amendment if it "commands 'mechanically' and 'without the intercession of the mind or the will of the recipient.'"

Plaintiffs have sufficiently alleged that the code they must draft to comply with the Dealer Law communicates substantively with the user of the program. The Amended Complaint alleges "Plaintiffs must draft code to receive and respond to requests from 'authorized integrators' who will interact with the code by commanding it to communicate the information they choose to request." It also states that the code will express the creative choices of the software developers and communicate those choices "to those who would access the Plaintiff's DMSs, as well as to other third-party programmers." Taken as true, these allegations sufficiently allege a protected interest in the content of the code.

Defendants argue the Dealer Law cannot compel speech because it does not dictate what Plaintiffs' code must say, only that dealers must adopt a framework to share data from their DMSs. Ariz. Rev. Stat. Ann. 28-4654 (requiring that Dealers "[a]dopt and make available a standardized framework for the exchange, integration and sharing of data from dealer data systems with authorized integrators and the retrieval of data by authorized integrators using the star standards or a standard that is compatible with the star standards."). They contend that, by mandating only access, the Dealer Law regulates Plaintiffs' conduct, not speech.

Corley acknowledged this possibility, clarifying that the mere "functional capability" of a code did not implicate First Amendment Protection. But Plaintiffs' allegations go beyond the functional capability of their code because they claim users will interact with their program in a substantive way. Defendants' arguments that the Dealer Law is more properly considered a regulation on conduct therefore amount to disagreements about the factual consequences of the law and the drafted code. Such a contention cannot be resolved at the Motion to Dismiss stage.

{Moreover, the mere assertion that the law regulates conduct does not establish failure to state a claim under the First Amendment. Even where a law is aimed only at conduct, an incidental burden on speech triggers scrutinyit must be "no greater than essential." Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. (2006) (finding that a burden is no greater than essential when "neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.").}

I'm not sure what I think about this, but I thought some of our readers would find it interesting.

Go here to see the original:
The First Amendment and Mandated Creation of Computer Code - Reason