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We're taking it back a few decades to the 1980s to kick offthe second in this series of posts. (In the interest of fulldisclosure, only one of us (guess who) was around during the 80s,and he was many moons away from practicing law.) Computers werearound but weren't ubiquitous in offices until late in thedecade. Chances are, if a federal agent popped into a company'soffice in 1988 with a warrant to search its files, she'd betasked with collecting and combing through hundreds of thousands ofpages of documents, both typed and handwritten, shoved into boxesand desks and filing cabinets. Imagine, then, that the agent entersthe office of a corporate bigwig and finds a locked safe. Once thesafe is opened, she finds two folders inside: one marked"Work" and one marked "Personal." Assuming thatthe search warrant is appropriately circumscribed to only companyinformation and is supported by probable cause, the agents likelyhave the authority to search the "Work" folder but notnecessarily the "Personal" one.

The twist, though, is that before our agent can even get to thefolders, she has to open the safeand that's not an easything to do. Can the government require the company to open thesafe so the agent can search the folder containing work papers?Even if opening the safe would implicate the employee who opens itin a crime? After the Supreme Court's decision in Braswellv. United States, 487 U.S. 99 (1988), the answer isyessort of. Braswell tells us that corporationshave no Fifth Amendment privilege against self-incrimination, andthe corporation can be required to designate a custodian to producethose records on the corporation's behalf.

Fast forward to today, where 80s musicthankfullyisstill alive and well. Like our 1980s example, if a company findsitself ensnared in an investigation, federal agents may well showup one day with a warrant to search for company files in anemployee's smartphone. And just like they could with thecompany safe, if those devices are password protected, you canimagine that, invoking Braswell, the government could seekto compel the company's custodian to unlock the phone so theagents can do the searching, without running afoul of the FifthAmendment.

But what if the only person who can unlock the device is theemployee himself? For many employees who use their personal cellphones for work under a BYOD policy, that may very well be thecase. Does the employee have a Fifth Amendment right to refuse tounlock the device, even in response to a subpoena for thecorporation's records? It turns out that the answer isn'tall that clear, and may depend on which state or jurisdictionyou're in. Although corporate employees have no Fifth Amendmentright to refuse to produce corporate records in their possession,they can invoke their Fifth Amendment right to testify againstthemselves. If the act of providing a personal passcode tounlock his phone is testimonial in nature, then the employee maywell be able to assert his Fifth Amendment right to refuse.See, e.g., SEC v. Huang, No. 15-269, 205WL5611644 (E.D. Pa. Sept. 23, 2015) (holding that because personalpasscodes to a smartphone were not corporate records and weretestimonial in nature, the SEC could not compel disclosure of thosepasswords). But if unlocking his phone is not testimonialin nature, then the employee could be compelled to enter hispassword. As we discussed in our previous blog post in thisseries, the courts are currently divided aboutwhether individuals have a Fifth Amendment right to refuse tounlock their phones at the government's behest. If the Indiana Supreme Court's view prevails, theFifth Amendment can prevent the government from compelling theemployee to unlock his smartphonebut if the Massachusetts Supreme Court's viewprevails, it does not.

An employee's decision to "take Five" in thesecircumstances can have significant ramifications for his employer.Among other things, good faith cooperation with a governmentinvestigation often goes a long way in mitigating acorporation's liability for any potential wrongdoing. Byrefusing to unlock his phone, an employee can undercut thecompany's effort to cooperate. And in some circumstances, itcan lead to an adverse inference of wrongdoing against thecorporation in civil proceedings. See, e.g., Libuttiv. United States, 107 F.3d 110 (2d Cir. 1997). For thesereasons, employers may decide to implement workplace policiesrequiring employees to cooperate with corporate investigations byunlocking their cellphones when asked, at the risk of puttingemployees in a tough situation: cooperate and possibly incriminateyourself, or invoke your Fifth Amendment rights and possibly loseyour job. If an employer chooses to go this route, it should keepin mind that it may have statutory obligations (under theCalifornia Consumer Privacy Act, for example, see 11 CCR 999.305(f)) to notify employees that the company maydisclose their personal information to law enforcementi.e.,by compelling employees to unlock their phones when asked. Thiscould soften the blow of the employer's policy, but it mightnot assuage an employee's fear of having to choose between hisjob and his Fifth Amendment rights.

***

In addition to its implications for corporate investigations,employers may have another reason to care about the split betweenthe courts regarding compelled decryption. In jurisdictions wherelaw enforcement officers currently can compel individualsto unlock their mobile devices, employers might be wonderingwhether and how any confidential business information present onthe device might be protected from disclosure during aninvestigation into the employee's individualwrongdoing. As anyone with a smartphone (i.e., almost everyone) iswell aware, separating personal from work files on the device isoften not as easy as labeling folders in a safe "Work"and "Personal." Downloaded files are commingled into asingle "downloads" folder, personal and work calls allappear in the same log, and your email is likely a singleapplication on your phone containing both your personal and workmailboxes.

This is where the Fourth Amendment and company policies come in.Like the Fifth Amendment considerations underlying compelleddecryption, Fourth Amendment law is rapidly developing as to whatfolders, applications, and files government agents can search onelectronic devices under any given search warrant. In our next blogpost, we'll talk about these developments and provide ourthoughts on what policies employers might put into place to protecttheir confidential business data while we await clear guidance fromthe courts on whether law enforcement officers can compelindividuals to unlock their smartphones, and about which files,folders, and applications they can search once they gain access toa device.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

Link:
BYOD Policies And Criminal Investigations: What Happens To Company Information And Employees When Law Enforcement Seeks Access To Personal Devices...

NBA player Sterling Brown has reached a $750,000 proposed settlement with the City of Milwaukee stemming from a 2018 altercation with the citys police where he was tased, tackled, and stepped on by officers.

The Milwaukee Bucks player brought a civil rights lawsuit in federal court claiming Milwaukee police used excessive force in violation of the Fourth Amendment, according to a letter from the City of Milwaukees Office of the City Attorney to Milwaukees Common Council.

In addition to the $750,000, the proposed settlement features a joint statement from the City of Milwaukee that acknowledges a constitutional violation and a vow to make changes to the police forces operating procedures. Council members must approve the proposal for it to move forward.

On January 26, 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 footage reviewed by CNN shows a Milwaukee police officer stepping on Browns ankle during his arrest, while others mock Brown and any potential civil rights complaint he might make.

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

We are pleased that Sterlings lawsuit has been mutually resolved and that theres been an important commitment by the City of Milwaukee and its Police Department to make changes to the MPDs 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 Citys 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.

The lawsuit filed on behalf of Brown in 2018 states the altercation began as he exited a drugstore on January 26 and found an officer identified in the lawsuit as Officer Joseph Grams outside his car, which was parked across two handicapped parking spots.

Grams allegedly asked Brown, who was 22 at the time, for his license before telling him to back up and shoving him. Brown responded by telling the officer not to touch him several times.

Several officers responded after Grams called for backup, according to the lawsuit and bodycam video released in the case.

After three cars are seen arriving on scene, the officer walks up to them and says he only wanted one extra patrol. He also tells one of his colleagues that Brown was getting in his face, the video shows.

At least one car leaves and others stay before multiple officers gather around Brown to ask him questions. At one point, an officer yells at Brown to take his hands out of his pockets, and Brown says he has stuff in his pocket.

Other officers grab the athlete and pull him to the ground, before he is tased.

According to the lawsuit, in addition to discriminating against Brown because hes Black and 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 Amendments 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.

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.

One other officer was also 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, officials said in 2018.

Read more here:
NBA player Sterling Brown agrees to $750000 settlement with the City of Milwaukee after 2018 incident where he was tased by police - KESQ

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