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The Los Angeles Police Department (LAPD) has recently gained approval to start recording the aerial footage captured by its helicopters. The police say that being able to record video surveillance of protests will help increase operational readiness. The hardware to make this possible was donated to the LAPD by the Los Angeles Police Foundation a philanthropic organization that specializes in getting the LAPD access to gear that law enforcement are unable to spend taxpayer dollars on. Black Lives Matter Los Angeles co-founder Melina Abdullah told the LA Times:

This is the height of state repression and surveillance. Its criminalizing our right to protest.

Recent Black Lives Matter protests around the country have sparked aerial surveillance at a federal and state level in multiple cities. So much so, that several Congressional members sent a letter to the National Guard, the FBI, the DEA, and the CBP demanding an end to surveillance on protests. This was after it was revealed that the Department of Justice explicitly gave the DEA open writ to surveill protestors. All this highlights that aerial surveillance now has a second impact. The days of planes and helicopters flying over head and recording just video are long gone. In the LA area, local police departments have been using aircraft mounted Stingray devices since 2009 at least.

A Stingray is essentially a fake cell tower that can be used as a vector of attack on the phones that unwittingly connect to the Stingray instead of a real cell tower. Plane mounted Stingrays are also called Dirtboxes and can be used to surveill and even intercept cellular communications below the plane. The same way that video recordings of a protest could reveal video evidence that somebody was at a protest, the data siphoned up by the Dirtboxes includes unique identifiers from the phones in protestors pockets.

Mohammad Tajsar, a senior attorney with ACLU of Southern California commented to the LA Times:

Its bad enough that Angelenos in overpoliced neighborhoods have to deal with constant surveillance and harassment from the skies, but the LAPDs plans to keep that footage forever adds insult to injury.

Tajsar went as far to call this type of surveillance and longterm storage of surveillance information an intimidation tactic, to try to prevent people from exercising their right to free speech.

Hes right. The fact of the matter is, these protests and other domestic surveillance programs are mostly used against Americans that have a Fourth Amendment right that is violated by these planes and helicopters. What is also clear is this: Those that attend protests in LA, and other cities around the world, should properly obfuscate their biometrics and probably leave their phone at home.

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Urban surveillance in The City of Angels: Watch out for the eyes in the sky - Privacy News Online

The US Supreme Court Monday granted petitions for writs of certiorari in three cases: Wolf v. Innovation Law Lab, Lange v. California, and Trump v. Sierra Club. The certiorari order came after the Courts October 16 conference to vote on new petitions and discuss previous oral arguments.

Two of the newly-accepted cases involve the Trump administrations efforts to halt immigration along the US-Mexico border. In Trump v. Sierra Club, the Court will tackle the long-awaited issue of funding for the promised border wall. Specifically, the Court will examine two separate issues surrounding the legality of the secretary of defenses $2.5 billion transfer to fund the border-wall in 2019. Although this money was initially allocated as military-personnel funds, it was redirected through an internal transfer.

The second case invokes both federal immigration law and international law in its dispute over the Trump administrations so-called Migrant Protection Protocols, often referred to as the remain in Mexico policy. Wolf v. Innovation Law Lab, which originated early in 2019, will force the Court to confront whether the proposed efficacy of the policy is justified given the dangers asylum-seekers face when they are forced to return.

The final case taken Monday, Lange v. California, deals with the Fourth Amendment issue of whether a police officer can enter a persons home without a search warrant under specific circumstances. While officers are not required to obtain search warrants in emergency situations, this case seeks to expand the exception to situations where a suspect is believed to have committed a misdemeanor.

The three cases are not yet set for argument, but they are expected to be scheduled in February 2021.

Read more:
Supreme Court to hear immigration and Fourth Amendment cases - JURIST

The long waited Fourth Amendment of the Chinese Patent Law was eventually passed into law by the Standing Committee of the People's Congress on October 17, 2020. The newly amended Patent Law will take effect as of June 1, 2021.

The main points of the amendment are as follows:

1. Strengthening patent protection

In the recent years, there has been a clear trend towards stronger protection in the Chinese practice of the patent enforcement. That trend is evidently reflected in the amendment. There are quite a few changes concerning strengthening patent protection, which include:

1) The term (protection period) for design patent is extended from 10 years in the current law to 15 years. This is believed to make China ready to join The Hague Agreement Concerning the International Deposit of Industrial Designs.

2) Patent term compensation is available where the patent grant occurs beyond 4 (four) years from the filing date and beyond 3 (three) years from the date of requesting substantive examination, with the exception of any unreasonable delay caused by the applicant's side. This provision is considered as echoing the voice of domestic patent filers for quicker grant of patent rights.

3) So as to make up the time period taken by the regulatory process of a new drug, patent term compensation of up to 5 (five) years is available for a patent concerning the new drug for which marketing authorization has been obtained, provided that the total protection period after the approval of marketing for the new drug is no longer than 14 (fourteen) years. This is the very first time for the Chinese law to make patent term extension available for pharmaceutical patents.

4) The Patent Office (China National Intellectual Property Administration, CNIPA) is empowered to handle patent infringement disputes which are influential country-wide, at the request of an involved party or an interested party. It is noted as the first time for the law to entrust the Patent Office to handle disputes over patent infringement, which handling is supposed to be more speedy and efficient as compared to the judicial track of patent infringement.

5) The acts of willful, serious infringement of a patent right are subject to punitive damages of up to 5 times of regular damages. This provision has been attracting attention of the public ever since it was initially proposed. In fact, 3 (instead of 5) times of regular damages was put forward when the amendment was initially drafted. Notably, the punitive damages provided in the law (5 times of regular damages) are even harsher than in the US practice. Doubtlessly, the amendment makes it possible for patentees to collect relatively high damages when facing willful, severe infringement. However, it is yet to be tested in the future court practice how the legal provisions are applied.

6) The upper limit of the "statutory damages" (meaning the damages awarded at the handling court's discretion) is lifted to amounting 5 million RMB (equivalent to about USD 745,000) from 1 million RMB, which is currently applied. This is obviously another embodiment of the idea of strengthening patent protection.

7) Limitation of actions for patent infringement actions is extended to 3 (three) years from 2 years, which is currently applied. Also, the starting point of the limitation of actions is now the date on which the patentee or an interested party obtains knowledge of the act of infringement and of the identity of the infringer(s). This change makes it possible to avail patentees assertion of legal rights more practically.

2. Introduction of patent linkage system for pharmaceutical patents

There are new provisions in the amendment that are believed to set forth the framework of Chinas patent linkage system for pharmaceutical patents. Again, this is the very first time for the Chinese law to adopt such a system.

1) In the case where, in the regulatory process for drug evaluation and approval, any dispute arises between the applicant for drug marketing authorization and concerned patentee or an interested party over a patent right related to the drug for which regulatory registration is applied for, an involved party may institute legal proceedings in the people's court for requesting a verdict on whether the technical solution related to the drug, for which regulatory registration is applied for, falls with the protection scope of a pharmaceutical patent right owned by a third party. The regulatory authority (National Medical Products Administration, NMPA) may, within prescribed time limit, make a decision on whether to suspend the approval of marketing of the concerned drug in accordance with an effective ruling of the people's court.

2) The applicant for drug marketing authorization and concerned patentee or an interested party may also request the Patent Office (China National Intellectual Property Administration, CNIPA) for an administrative ruling on the dispute over a patent right related to the drug for which regulatory registration is applied.

3) Detailed measures for matters relevant to patent linkage are to be enacted by the regulatory authority (NMPA) in collaboration with the Patent Office.

3. Patentability

1) "Partial design" (meaning a design of a part of a concrete product, but not of the entire product) becomes patentable, in contrast with the current law in which a design application must be for an entire product. This change makes the law more lenient to designers who intend to have the patent protection right on the gist of their designs.

2) The so-called "grace period" (meaning a six-month period during which certain scenarios of disclosure do not constitute novelty-destroying disclosure) is now applicable to the case where the disclosure is for the first time at a time of national emergency state or exceptional circumstances and for the purpose of public interest. This new provision is believed to have been prompted by the current coronavirus pandemic and is aimed at encouraging early publication of technologies needed for the handling of social crisis such as the pandemic.

3) Statutorily unpatentable subject matters now include processes for nuclear transformation in addition to substances obtained by means of such processes, which are already prohibited in the current law. This is merely a confirmation of the current practice.

4. Open license of patents

As part of the effort of to promote commercialization of patents, an open license mechanism is introduced in the amendment. A patentee may declare to the Patent Office that his patent is licensed to any entities at indicated royalties. Then any parties who are interested in the license may obtain it simply by notifying the patentee and paying the required royalties without any further negotiations with the patentee.

5. Domestic priority for designs

Domestic priority for design applications is newly introduced. An applicant for a design patent may claim priority from his earlier Chinese application on the same design within 6 months from the filing date of the latter. This is to give the same leniency to domestic design filers as foreigners, who can enjoy conventional priority.

More:
Main Points of the 4th Amendment of Chinese Patent Law - Lexology

In the oral argument of Torres v. Madrid on Wednesday, the justices tried out all the tools of constitutional interpretation as they worked through the meaning of the critical Fourth Amendment term, seizure. How they rule will answer one of the last remaining questions in this context: Is there a Fourth Amendment seizure when the police shoot a fleeing suspect who is injured by the bullets but does not stop?

Kelsi Brown Corkran, for Roxanne Torres, and Mark Standridge, for officers (Art Lien)

Kelsi Corkran argued on behalf of Roxanne Torres, a New Mexico woman who was shot twice by state police before driving away from the scene. She had support from Rebecca Taibleson, who appeared as a friend of the court on behalf of the United States. Mark Standridge argued for the police officers, Janice Madrid and Richard Williamson. Torres claims in a civil rights lawsuit that the officers violated her Fourth Amendment right by committing an unreasonable seizure when they shot her. The officers defense is that the shooting did not constitute a seizure at all.

As I mentioned in my case preview, the easiest resolution of the case would be for the court to simply follow its precedent. Justices Sonia Sotomayor and Elena Kagan endorsed this approach, noting that, in the 1991 decision California v. Hodari D., the court crafted a definition of seizure that clearly captures the shooting in this case: a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. Justices Clarence Thomas and Neil Gorsuch emphasized in their questioning, however, that this language was dicta, or not essential to the outcome of that case and thus nonbinding on future decisions.

Illustrating the centrality of this issue, Kagan read a series of passages from Hodari D. and noted that the language appeared all over the opinion, cropping up six times [in] only a seven-page opinion. To Kagan, this was not the kind of stray statement that could be easily disregarded. Strengthening this point, Taibleson offered a ringing endorsement of stare decisis in this context, stating that the United States interest here is in establishing a clear and predictable rule that law enforcement can apply in the heat of the moment in the field, and we think the rule established in Hodari D. achieves those ends. While Taibleson acknowledged that the United States had taken a contrary position in 1991, she explained, we didnt feel comfortable simply, you know, running it back.

Whether or not he appreciated Taiblesons pitch-perfect basketball reference, Justice Stephen Breyer seemed similarly swayed by the need for a clear line, stating, We need a line thats somewhat bigger than the one [the officers] propose. For Breyer, the line the court drew in Hodari D. is as good a line as any.

For the conservative justices attracted to the officers narrow seizure definition, the existence of contrary precedent is only part of the problem. There is the added fact that Hodari D. is an originalist precedent written by Justice Antonin Scalia. In his opinion for the court, Scalia wrote that, under the common law at the time of the Framing, the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee, was sufficient to constitute a seizure. This prompted Justice Brett Kavanaugh to press Standridge to acknowledge that, youre arguing, as I understand it, that Justice Scalia and really all nine justices in that case were wrong about the original meaning of the Fourth Amendment. Kavanaugh similarly pushed Taibleson on this question, with Taibleson ultimately affirming that the United States official position was that Scalia got the history right. Sotomayor fanned the flames, wryly noting that Scalia was very much was an advocate of the common law and quite well informed about it generally.

With this array of originalist forces against him, Standridge contended that the court should reject historic relics that are not suited to the modern era in favor of rules that have evolved through the process of interpreting the Fourth Amendment in light of contemporary norms and contemporary conditions. Curiously, it was the courts conservatives who seemed most receptive to this argument. Gorsuch questioned the applicability of the Framing-era cases that, he said, primarily concerned Dickensian debt collection practices. Thomas suggested that the cases might be distinguishable because they arose outside the criminal context and involved direct applications of force. Justice Samuel Alito pointed out that none of the cases involved shootings. There seemed to be an irony here in light of the proceedings unfolding at that same moment across the (virtual) street. At the same time that Judge Amy Coney Barrett was extolling the clarity of originalism in her confirmation hearings in the Senate, the courts most prominent originalists seemed to be suggesting that Framing-era precedents offered little insight into the proper application of the Constitution in a modern context.

The justices returned to more familiar territory as they sparred over the plain meaning of the term seizure. The officers strongest textual argument is that the terms ordinary meaning does not apply to unsuccessful attempts to restrain someone. To illustrate the point, Gorsuch deployed the days most extreme hypothetical, conjuring up a driver who blast[s] through roadblocks at 100 miles an hour with police bazookas (!) firing all around, and yet suffers only a scrape. Alito picked up the thread, asking about a baseball pitcher [who] intentionally beans the batter. Thomas added a question about someone hit by a snowball. None of these instances, the justices suggested, fit the term seizure. The examples prompted Kavanaugh to challenge Corkran to explain why shouldnt we just follow the ordinary usage of the term seizure. In an apparent appeal to the justices aligning against her, Corkran responded that its the ordinary meaning at the time of the founding that controls.

The justices hypotheticals arguably underplayed an important fact about Torres claim. Torres was not only shot but felt the effects including (she alleges) temporary paralysis. That the bullets did their damage in the blink of an eye may be causing the justices to overlook their severe impact damage that would have been readily apparent if occasioned by traditional physical contact. This point surfaced when Sandridge responded to Justice Alitos question about an officer who grabs [a] persons shirt for a couple seconds, by acknowledging that this would be a (momentary) seizure. Sotomayor picked up on the exchange in regard to Torres claim, asking Standridge how grabbing a shirt for a few seconds is more of a seizure than putting a bullet in someone.

An undercurrent in the questioning concerned the societal significance of the case. A broad understanding of the term seizure would permit greater judicial scrutiny of excessive police force at a time when the country is increasingly concerned with police violence. Early in the argument, Sotomayor asked Corkran to explain why this case is so important. Corkran obliged, noting that the narrow definition of seizure sought by the officers would leave all sorts of abuses by the government outside of the constitutional framework. Breyer emphasized the point, stating that the officers argument left the right of the people to be secure in their persons without much protection a whole area [with] no protection at all.

Gorsuch and Alito sounded a contrary note, asking both sides whether the suit could have been filed as a civil claim for battery in New Mexico state court. The consensus seemed to be that it could have been, but for the statute of limitations. Standridge drew on his local practice in New Mexico to push back on skepticism of the potential for state law remedies to excessive police force:

I believe I can represent, as an officer of this court and the state courts of New Mexico, that it is likely an assault or battery claim brought by a plaintiff such as this petitioner would[] survive summary judgment and would likely have to have been resolved at trial.

After argument, the case feels closer than expected. Things can always change as the justices dig into the record, but at the moment, I count three votes for Torres and three for the officers, with the outcome hinging on the two remaining justices Kavanaugh and Chief Justice John Roberts who did not tip their hands.

Posted in Torres v. Madrid, Featured, Merits Cases

Recommended Citation: Jeffrey Bellin, Argument analysis: Justices spar over stare decisis, originalism, text and what counts as a Fourth Amendment seizure, SCOTUSblog (Oct. 16, 2020, 3:08 PM), https://www.scotusblog.com/2020/10/argument-analysis-justices-spar-over-stare-decisis-originalism-text-and-what-counts-as-a-fourth-amendment-seizure/

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Argument analysis: Justices spar over stare decisis, originalism, text and what counts as a Fourth Amendment seizure - SCOTUSblog

The Supreme Court on Wednesday held oral argument in Torres v. Madrid, which debated whether police in Albuquerque had seized Roxanne Torres when they shot her in the back, even though she was able to drive away. If the Supreme Court declares that Torres wasnt seized, then her lawsuit under the Fourth Amendment would fail.

There is no doubt that when the bullets entered Ms. Torress back, she was seized within the original meaning of the Fourth Amendment, noted attorney Kelsi Corkran, who argued on behalf of Torres.

A Constitution thats unconcerned with the police shooting someone without any provocation so long as the person doesnt immediately stop moving, its not just counterintuitive, Corkran added, it defies the sanctity of the person that forms the foundation of the Bill of Rights, the right to be secure in our bodies from unreasonable government intrusion.

UNITED STATES - OCTOBER 15: The U.S. Supreme Court is seen on Thursday, Oct. 15, 2020. (Photo by ... [+] Caroline Brehman/CQ-Roll Call, Inc via Getty Images)

Justice Samuel Alito was skeptical that people using ordinary speech would refer to a sniper shooting someone or a baseball pitcher who intentionally beans the batter as seizures, claiming this was not consistent with the language of the Fourth Amendment. On behalf of the accused officers, attorney Mark Standridge made a similar argument.

No ordinary person as a matter of common sense, he claimed, could say that a person who is shot by the police but continues to drive well out of range, well out of their sight, and eludes them for a full day could be seized as a matter of the Fourth Amendment. As the officers did not seize [Torres], he asserted, they cannot be held liable to her for excessive force in violation of the Fourth Amendment.

But as Corkran pointed out, under Supreme Court precedent, its the ordinary meaning at the time of the founding that controls, especially if the modern understanding risks diminishing the constitutional right. (Emphasis added.) The Constitution must, at minimum, protect today what it protected at the time it was adopted, she added.

Back then, a seizure included both seizures of goods and arrests, which were considered the seizure of a person. As none other than Noah Webster once phrased it, We say to arrest a person, to seize goods.

Moreover, a seizure is still a seizure, even if its fleeting. Representing the U.S. Department of Justice, Assistant to the Solicitor General Rebecca Taibleson stated that if a subject does not stop, the seizure lasts only a moment, the moment of physical impact. Under that test, Ms. Torres was seized, albeit briefly, so the Fourth Amendment applies, she added.

Though this debate may seem like splitting hairs, without the Fourth Amendment, no alternative avenue for redress exists in many excessive force cases, the Rutherford Institute and the National Association of Criminal Defense Lawyers argued in an amicus brief. Victims of excessive force can also claim that their due-process rights were violated under the Fourteenth Amendment.

But as the amicus brief noted, those challenges have to overcome threshold question [of] whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience, a demanding standard that sets a nearly insurmountable burden for any plaintiff.

And while both Justices Alito and Neil Gorsuch claimed that Torres could have filed a battery claim against the officers under New Mexico law, that would be insufficient, the Rutherford-NACDL amicus countered, since state tort claims do not remedy or vindicate constitutional violations.

Plus, law enforcement can often undercut state torts. For example, courts in New Mexico have ruled that because police officers did not employ unconstitutionally excessive force, [they] cannot be liable for assault and battery under New Mexico law.

This lack of accountability is why many organizations from across the political spectrum, including the ACLU, the Cato Institute, the Institute for Justice, the Leadership Conference, LEAP, the NAACP, the Reason Foundation, and the R Street Institute, have all filed amicus briefs urging the Supreme Court to side with Torres.

If this Court takes the extraordinary position that a police officer deliberately shooting at and wounding an individual is not a Fourth Amendment seizure, the NAACP warned, many innocent victims of police shootings will be left without a remedy.

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Can A Woman Sue Cops Who Shot Her In The Back? Supreme Court Unsure If Fourth Amendment Even Applies - Forbes