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By David M. Greenwald

At some point if the city wants to lay its cards on the table, it might consider having a consultant or perhaps even staff assess what went wrong with the Cannery. Because, as it stands now, the project is its own warning label. Want to consider removing Measure Jthe Cannery is the best counter-argument. Want to put forward somewhat vague features into a Project Baseline Agreementremember the Cannery.

The Cannery has become the boogie man for Davis growth policiesand even people who are not anti-growth acknowledge it. To put this into perspective: the Vanguard started in 2006, 14 years ago, that already the Cannerythen the vacated Hunt-Wesson Cannery sitewas an issue.

At that time the debate was a 100-acre business park (my preference) or housing. Lewis Planned Communities backed out of the project when the council in 2009 insisted on an equal weight assessment of the two options.

But it got restarted after the housing collapse when the New Home Company took over the project, and eventually passed on a contentious 3-2 vote in 2013. You would think that would be thatbut no.

There was the CFD (Community Facilities District) in 2015 that passed on a 3-2 vote. There have been the on and off problems with the grade-separated crossing. And then there have been the repeated attempts to come back to council with revisions to the development agreement.

One of the reasons this has been so damaging to the citys efforts at other developments is that the developer has come back time after time to get revisions to the agreementalthough much of the time, push back has forced them to back down.

As I noted back in April 2016: The week started with The New Home Company having three requested changes to the Cannery on the agenda for the Planning Commission. First, there was the proposal to increase the number of stacked flats by 24. Second, there was a proposal to reduce the number of small builder units. Third, there was a proposal to modify the Cannery Mixed Use Center.

But before the Planning Commission met, they were off the table. Bonnie Chiu told the Vanguard, The New Home Company (has) withdrawn its proposal. She noted that they decided to put our proposal regarding the Stacked Flats Condominiums on hold at this time to allow additional outreach time.

No big deal, except this keeps happening over and over again.

Concerns about connectivity issues have dogged the project throughout.

Writing in 2015 in the wake of a new controversy involving the Cannery, Joe Krovoza would say: In all of this, my biggest issue was no secret. I wanted firm, firm guarantees of high-quality, grade-separated bike and pedestrian crossings at the SE and SW corners of the project.

The SE crossing would never occur, of course, but he wrote, A SW crossing would connect to Community Park, the library and schools, and all points southwest. I raised this issue at every Council meeting that addressed Cannery.

He added, When the DA [Development Agreement] came out in the November 19, 2013 staff report, the guarantees for two good, grade-separated bike and pedestrian crossings seemed very weak.

He argued that the staff report and DA didnt guarantee good crossings. I saw this as backpedaling. Even with at least $11 million in transportation dollars from the DA and traffic impact funds, fingers were still being crossed that wed have quality grade-separated crossings for bikes and peds across Covell.

I bring all of this up as history. On Tuesday, the Cannery proposed a FOURTH amendment to the Cannery Village Market Project.

According to the staff report: The proposed request is to amend the Development Agreement whereby a prior condition would be removed that tied occupancy of multifamily residential units to the construction or permitting of a minimum of 50% of the commercial buildings on the West Block of The Cannery mixed-use area.

Now of course this has run so long, as the applicant had been pursuing building permits when the COVID-19 pandemic forced an economic downturn.

According to the staff report, Since that time, the financing commitments previously acquired by the applicant for the commercial portion of the project have been rescinded. The applicant desires to move forward with the construction of 72 multifamily units and has requested relief from the condition that ties occupancy to commercial construction given that the issues related to the pandemic are out of their control and not foreseeable when the condition was originally agreed to.

My favorite part is not foreseeable when the condition was originally agreed togiven how long it has taken to complete this portion of the project, that should not be that surprising.

The Planning Commission met on this issue on June 24, 2020, and recommended denial of the applicants request on a 5-2 vote.

However, staff does note that the Applicant has removed an earlier request that the Planning Commission found objectionableit would have delayed a $150,000 payment to the Housing Trust Fund for affordable housing purposes.

Staff naturally recommends that the City Council approve the proposed request to amend the Development Agreement as the City is still in need of housing, the applicant had been working towards meeting the condition providing a permit-ready commercial site prior to the pandemic, and it may help hasten the permit-ready future commercial buildings being constructed versus continued inactivity.

I think at this point the council can make whatever decision they want about this particular proposal, but there needs to be a full audit of the Cannery process where an objective third party issues a report about what the city did wrong in this process in hopes of avoiding it in future projects.

Cannery has become a cautionary tale that has been used against the city time and again in opposing projects. The problem here is that there really are problems here, and pretending there havent been does no one any good.

The fact that we need housing not withstanding, this project has been a huge problem for 14 years and shows no sign of abating.

David M. Greenwald reporting

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Sunday Commentary: Just Can't Get Cannery Right And That Hurts Everything Else - The Peoples Vanguard of Davis

I personally find it incomprehensible that 70 million of my fellow Americans voted for a former reality TV host who spews racist conspiracy theories (birtherism), displays utter contempt for private property rights, and is responsible for the highest tax increase in the post-WWII era and prioritizing government handouts. But 70 million went right ahead and voted for him anyway, all while making it painfully clear they did not care what I or anyone else thought of the man they were supporting. Yet, despite the impenetrable divide that only seems to be increasing, one remarkable emerging trend is being shared by a majority of all Americans from every walk of life. Indeed, whether it be in the conservative Deep South, or on the liberal coasts, Americans are demonstrating a united willingness to end the war on drugs.

During this past election in fact, every decriminalization or legalization ballot measure that was up for a vote in nine states was ultimately successful. And victory did not come by a slim margin either, but was instead universally passed by substantial majorities, even in the conservative Deep South. Of course, such results should not at all be surprising but rather seen as the continuation of longer trends where voters in state after state have chosen to legalize recreational drugs, including cannabis, mushrooms, and, now in Oregon, virtually all previously illegal drugs. The benefits of this trend and of the impact of the collapse of the drug war, however, cannot be overstated.

As I have discussed before, the direct harms the drug war causes are immense, and more than outweigh any harms that can be associated with legalization. Alleviating these harms would bring about great positive change. For starters, millions upon millions of lives have been needlessly ruined for consuming substances that, even when taken all together, combine to cause less than half the harm of alcohol. Enormous taxpayer resources are devoted to the drug war, burdens on nonusers that can be substantially reduced and shifted toward more effective policy through legalization. But perhaps most destructively, the war on drugs has (wrongly) demolished our Fourth Amendment constitutional guarantees. As Jacob Sullum in Reason points out:

For decades the war on drugs has been the most important factor encouraging the Supreme Court to whittle away at the Fourth Amendments ban on unreasonable searches and seizures. Among other things, the Court has blessed pretextual traffic stops, warrantless rummaging through our trash, warrantless surveillance of private property by low-flying aircraft, mandatory drug testing of public school students, search warrants based on anonymous informants who may or may not exist, and searches triggered by a police dogs alleged signal.

The war on drugs is also the main excuse for the system of legalized theft known as civil asset forfeiture, which allows police to take cash and other property they claim is connected to drug offenses.

It is to the testament of our constitutional destruction that it is has proven impossible to hold bad government actors accountable in this drug war even when they falsify warrants to make violent no-knock entries into the home of innocent citizens.

Correcting or reversing the destruction caused by the drug war should be a welcome sign for all. With the possible exception of gerrymandering reform, I submit that ending the drug war is the single greatest policy shift we as a society could make to produce the most positive impact and ensure better outcomes for the country as a whole. To see incontrovertible evidence that Americans from all walks of life and views are finally supporting this shift universally, is extraordinarily encouraging.

Tyler Brokers work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email himor follow him onTwitterto discuss his column.

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The Destructive Era Of Drug Prohibition Is Collapsing - Above the Law

WILWAUKEE, Wisconsin - After suing the City of Milwaukee on claims of being unnecessarily tackled, tased, and stepped on by police in Milwaukee, an African American NBA player has reached a $750,000 proposed settlement with the city, CNNreports.

The alleged incident of police brutality, Milwaukee Bucks player Sterling Brown says, occurred in January of 2018.

Brown was tased by police and wrestled to the ground by several officers after an officer said he had parked across two handicapped spots at a drugstore. He was never charged with a crime.

Bodycam footagereveals a Milwaukee police officer stepping on Brown's ankle during his arrest, while others mock Brown and any potential civil rights complaint he might make.

Shortly after it happened, he brought a civil rights lawsuit in federal court claiming Milwaukee police violated the Fourth Amendment, according to a letter from the City ofMilwaukee's Office of the City Attorney toMilwaukee's Common Council.

According to the lawsuit, in addition to discriminating against Brown because of his skin color and therefore violating his rights by treating a parking violation as a criminal offense, officers also failed to read Brown his Miranda rights.

Additionally, some of the officers turned off their bodycams during certain parts of the confrontation, the suit said.

The lawsuit alleged, among other things, unlawful arrest, excessive use of force and violation of the 14th Amendment's Equal Protection Clause. It also accused the officers of collaborating to conceal their actions.

The Milwaukee Police Association initially defended the officers who arrested Brown in 2018, calling use of force "a necessary component of policing" and slamming city leaders for failing to defend the officers.

But after the bodycam footage was released to the public, the union softened its tone and said it welcomed "appropriate review and oversight" of the matter.

One officer was suspended for two days for "failing to treat a member of the public with courtesy and professionalism." Eight others were scheduled to receive remedial training in professional communications.

The Milwaukee Bucks issued a statement on Monday supporting Brown's commitment to use the "horrifying abuse and injustice" as a catalyst to make change in the community.

"We are pleased that Sterling's lawsuit has been mutually resolved and that there's been an important commitment by the City of Milwaukee and its Police Department to make changes to the MPD's standard operating procedures. No one should ever have to go through the horrifying abuse and injustice that Sterling experienced," the statement said. "We commend Sterling for his courageous response to this terrible situation by repeatedly sharing his story and working tirelessly with countless local groups and organizations to help make change in our community. And we also commend the City's leadership for its commitment to implement these important changes to better Milwaukee."

When asked for a comment, the Milwaukee Police Department told CNN it "does not have a formal statement as this is ongoing litigation."

Following the incident, two sergeants were suspended without pay -- for 10 and 15 days, respectively -- for "failing to be a role model for professional police service."

As of Tuesday, Nov. 10 the city's proposed $750,000 settlement to Brown is accompanied by a joint statement from the City of Milwaukee that recognizes a constitutional violation and a promise to make adjustments to the police force's operating procedures, CNN reports.

However, council members must support the proposal for it to officially move forward.

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After suing City of Milwaukee on claims of police brutality, NBA player reaches $750,000 settlement with city - WBRZ

The Supreme Court today considered whether James King has any recourse against the cops who tackled, choked and beat him after they mistook him for a suspect who looked nothing like him. The federal government argued that King cannot pursue his constitutional claims against a detective and an FBI agent because his lawsuit also included tort claims against the United States, which a federal judge dismissed for lack of jurisdiction. Institute for Justice attorney Patrick Jaicomo, who represents King, argued that the government's reading of the Federal Tort Claims Act (FTCA) contradicts the plain language and intent of the 1946 statute.

The FTCA, the law at the center ofBrownback v. King, allows people to sue the federal government for torts committed by people acting on its behalf. King invoked the law because Grand Rapids detective Todd Allen and FBI agent Douglas Brownback were serving on a joint state-federal fugitive task force when they assaulted him in 2014, when he was a 21-year-old college student. But U.S. District Judge Janet Neff concluded she did not have FTCA jurisdiction over the case because the cops' actions did not meet the criteria for a tort action under Michigan law. Neff also dismissed King's Fourth Amendment claims against Allen and Brownback after concluding that they were protected by qualified immunity, which bars federal lawsuits against government officials when their alleged misconduct did not violate "clearly established" law.

Last year, the U.S. Court of Appeals for the 6th Circuit revived King's claims against Allen and Brownback, saying they did not deserve qualified immunity. The appeals court said Allen and Brownback therefore could be sued under Bivens v. Six Unknown Federal Narcotics Agents, a 1971 decision in which the Supreme Court authorized constitutional claims against federal officers.

The 6th Circuit's decision was a mistake, Assistant to the Solicitor General Michael Huston told the justices today, because the FTCA says "the judgment in an action under section 1346(b) of this title"which gives federal courts exclusive jurisdiction over the tort claims authorized by the law"shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim." Since King's FTCA claims failed, Huston said, his Bivens claims were also barred.

Jaicomo presented two main arguments against this interpretation of the statute. First, he said, the FTCA's judgment bar, which is designed to prevent duplicative litigation, does not apply to claims filed as part of the same lawsuit. Second, Jaicomo said, a court's conclusion that it lacks subject-matter jurisdiction does not constitute "the judgment in an action" under the FTCA; rather, as the 6th Circuit concluded, it means that the court has declined to enter a judgment.

The first argument seemed to get some traction with Chief Justice John Roberts."The statute speaks of 'actions,' not 'claims,'" he noted while questioning Huston. "It was and is very well established [under common law] that there is no bar with respect to claims in the same action. If Congress were going to make such a dramatic departure from that rule, the obvious word to use is right there: It's 'claims.' And yet they didn't do that."

Justice Elena Kagan amplified that point when it was her turn to question Huston. "I'm wondering whether your understanding of this provision makes it into something that the language suggests it's not," she said. "If I understand your position correctly, you're really turning this into an election of remedies provision. In other wordsonce somebody files an FTCA claim, then really they can't bring a Bivensclaim anymore. And the only way to bring aBivens claim is just to forgo the FTCA claim." While "that might make sense as a policy matter," Kagan suggested, "the statute doesn't read like that. I mean, Congress knows how to write a provision like that. Instead this statute reads like a preclusion statute, and preclusion, as the chief justice began the argument by saying, always applies between suits and not within a single suit."

Huston argued that action in the FTCA's judgment bar should be read as synonymous with claim. He cited a contemporaneous law dictionary that defined action as "a demand for relief in court." In response, Jaicomo said Huston was relying on a definition ofaction that is "definitely well outside the mainstream." In a 2017 case, Jaicomo noted, the Supreme Court cited the 1933 edition of Black's LawDictionary, which said "the terms 'action' and 'suit' arenearly, if not entirely, synonymous." Jaicomo also cited evidence that neither Congress nor the Court has understood the FTCA as requiring plaintiffs to choose between claims under that law and other remedies.

While questioning Jaicomo, Justice Sonia Sotomayor suggested that accepting the government's interpretation of the law would lead to "very inefficient" outcomes. "What the government is encouraging plaintiffs to do is to file their Bivens claims first, win or lose, then file their FTCA claims," which "seems somewhat time-consuming." She added that "it also makes a difference whether a district court decides whether it's going to decide the Bivens claims first." Jaicomo agreed that the results would be inefficient and irrational, noting that "there is no way" for a plaintiff to know ahead of time what he should do to "litigate these claims in parallel, even though Congress and this Court have both said they can be litigated in parallel."

Jaicomo argued that the difference between claims within a single lawsuit and claims in two separate lawsuits is "embedded" in the question posed by the government's appeal of the 6th Circuit's decision: "whether a final judgment in favor of the United States in an action brought under [the FTCA], on the ground that the claimant failed to establish the liability of the United States on the torts that he alleged, bars claims under [Bivens] that are brought by the same claimant, based on the same alleged injuries, and against the same governmental employees involved in the claimant's unsuccessful FTCA action."

Despite the interest in the distinction between an "action" and a "claim," the Court may not end up resolving that issue. Several justices suggested they were inclined to favor a ruling limited to a narrower question: whether the district court's dismissal of King's FTCA claims for lack of jurisdiction, which King did not appeal, counts as a final judgment that triggers preclusion. The 6th Circuit thought it did not, and that, in addition to its conclusions about qualified immunity, was the appeals court's basis for keeping King's lawsuit alive.

While the issues raised byBrownback v. King may seem abstruse, the implications for King are clear: If the Court decides the 6th Circuit got it wrong, he will not be allowed even to try holding Allen and Brownback accountable for appalling conductconduct that the appeals court said a jury could reasonably decide violated his Fourth Amendment rights. According to the government, that is the outcome demanded by a law Congress passed to help victims of government abuse.

Originally posted here:
SCOTUS Considers Whether James King Has Any Recourse Against the Cops Who Choked and Beat Him for No Good Reason - Reason

Harrisburg officials Tuesday night released body camera footage after a community activist demanded the firing of a police officer for his handling of a noise complaint at her house.

The incident at 11:30 p.m. Saturday in the 300 block of South Front Street ended with Kimeka Campbell, 39, in handcuffs and one her friends doused in pepper spray.

Campbell, who lives with her husband in Shipoke, said a 6-foot wooden privacy fence protects her back yard but the officer let himself in through a gate in the dark and said he had a right to be on her property because he was investigating a noise complaint.

She vehemently disagreed, and admitted she cursed at him to get him to leave her yard, because she believed he had violated her Fourth Amendment rights. She said she provided her name to him, but refused to spell her last name, and didnt want to speak to him until he left her property.

Eventually, two officers dragged her out of her yard to a police car, where she was arrested. She spent about 40 minutes at the county booking center and was issued two citations: one for disorderly conduct and one for the noise complaint.

Earlier this year, Campbell had been organizing residents to support police reform measures to increase accountability, but city officials said the officers didnt know who she was when they arrived to handle the complaint filed by a neighbor.

A member of a local organization started a petition this week asking for the officer to be fired and pushing for more oversight of officers in the city. The petition had more than 900 signatures by Tuesday night.

Mayor Eric Papenfuse said during Tuesdays virtual city council meeting that he had watched the officers body camera footage and believed the officer handled a difficult situation correctly. He said he wanted to publicly release the footage as soon as possible to knock down some of the rumors and misinformation he believed surrounded the issue. The footage was released later Tuesday night. It contains graphic language.

Harrisburg city council members and Mayor Eric Papenfuse approved a bill to improve oversight of police Nov. 10, 2020. Earlier in the meeting, council heard complaints about an incident at a woman's home that occurred Nov. 7.

It was absolutely legal for the police officer to enter the yard to investigate the complaint, Papenfuse said. He flashed his lights before opening the gate. A citation couldnt be issued without someone being identified.

Papenfuse said the main problem with the incident was the homeowner refusing to identify herself.

The officer reportedly said, let me have your name and Im out of here, Papenfuse said, but Campbell became increasingly hostile.

The officer called for backup and the decision was made to arrest, Papenfuse said. He said a clear warning was given before an officer deployed pepper spray against people who were blocking the arrest.

Papenfuse said it was reprehensible that hundreds of people were signing a petition for the officer to be fired without getting all the information first. He said its hard enough to recruit and retain officers and that officers need to be able to investigate quality of life complaints such as noise complaints.

He said the incident wasted officers' time when the city has more pressing needs, including a series of shootings that have plagued some neighborhoods.

We must do better, he said.

Council President Wanda Williams said she had viewed the footage and agreed with the mayor.

Other council members said they wanted to see the footage and said city officials shouldnt make editorial comments about the incident prior to the public getting to see the video.

Prior to Papenfuses comments, more than a dozen people submitted public comments to city council Tuesday night complaining about what happened to Campbell, who co-founded a Young Professionals of Color group in Harrisburg four years ago. She also advocated for a bill to create a citizens law enforcement advisory committee that was on the agenda for Tuesdays council meeting. The bill passed 6-1, with Williams voting against it.

Campbell said she was traumatized by the incident at her home. She had a few friends over in her back yard to celebrate a difficult week with the national presidential election, she said. They had music playing and never heard a knock on the door or her doorbell ring. Then she saw a stranger in her back yard.

One of her friends was talking to the man she didnt recognize, so she walked up to see what was going on. When she realized it was a police officer who had let himself into the yard, Campbell said she immediately demanded that he leave.

After multiple requests by her were denied, she said she started screaming for him to leave using profanity.

Thats when he backed out at the gate but kept his foot wedged in the door so it could not be closed. As her friends became concerned, and one of them tried to close the gate, the officer pulled out a canister of pepper spray, she said.

Back up or Im going to mace you, he reportedly said, and Campbell said she gladly obliged because she didnt want to leave her yard anyway.

But then the officer and a second officer tried to grab her through the gate, Campbell said. She stepped backwards and fell down. Thats when her friend stepped in front of her and told the officers she was going to close the gate.

The officer sprayed the friend with pepper spray, and another friend tackled her to prevent any additional interactions with the officer, Campbell said.

The two officers then came into her back yard and pulled her out into a private parking lot behind her house.

Campbell called her husband for a ride home from the booking center and said she couldnt believe what happened. She believed the officer unnecessarily escalated things by not acknowledging he didnt have a right to barge into her fenced yard.

You cannot walk onto my property and refuse to leave then rip me out of my yard, she said. Over a reported noise complaint after the music is off? It seemed like a total power trip. And with the mace? I dont even know how they would justify using that.

Campbell said she and friends who were at her home Saturday plan on filing complaints with the police department.

The fourth amendment of the U.S. Constitution protects residents from unreasonable search and seizure of a persons home, but a persons yard can be more complicated, attorneys say. What part of someones outdoor property is covered by this protection is often determined on a case-by case basis, according to attorneys.

The penalty for violating this amendment is generally the suppression of any physical evidence obtained. In this case, there was no physical evidence obtained. Instead, there was a dispute that emerged and citations that followed.

City officials said the officer was within his rights to try to contact someone at the home to resolve the pending noise complaint. He flashed his vehicle lights before opening the gate because he had been trying to gain their attention, officials said.

The main officer involved in the incident graduated from the police academy in July 2019.

READ: Can police enter your gated yard without permission? Questions arise after arrest of Harrisburg activist

READ: Rash of shootings in Harrisburg due to gangs: police

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Police release body cam video of Harrisburg activists arrest after she calls for officer to be fired - PennLive