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Editors Note: An earlier, shorter version of this piece was originally posted on dorfonlaw.org.

Following the FBI search of former President Trumps Florida estate, most attention has focused on Trumps call for a special master to review the seized documents. Trump filed a complaint in federal court asking for the appointment of an external party to review each of the documents to filter out those that implicate executive or attorney-client privilege. Judge Aileen Cannon, a Trump appointee, granted this request on Monday morning and enjoined the Justice Department from further reviewing any seized documents. At the least, Trump has succeeded in delaying the investigation and obtaining a thorough privilege review.

Ultimately, however, Trumps complaint is largely premised on Fourth Amendment claims rather than privilege claims. What are those claims? And what are the strategic reasons why Trump is raising them in the first place? While his attorneys have been criticized as inept, they raise some fairly novel Fourth Amendment arguments worthy of attention. If successful, these claims could lead to the return of seized documents to Trump or the suppression of all of the documents in a subsequent prosecution. And whatever the weaknesses of the attorneys arguments, their approach is well-suited to serve broader strategic goals. Ultimately, a central purpose of the litigation appears to be obtaining an unredacted copy of the affidavit that provided support for the search warrant. That affidavit could reveal the Justice Departments sources of information inside of Trumps organization and Mar-a-Lago, and its disclosure may compromise the governments ongoing criminal investigation.

The Breadth of the Search Warrant

Trumps complaint begins with a Fourth Amendment claim. He argues that the search warrant obtained by the FBI for his estate was facially overbroad under the Fourth Amendment. Trump notes that the warrant permitted the seizure of, among other things,

Any physical documents with classification markings, along with any containers/boxes in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes. (Emphasis added.)

In other words, if agents found a classified document, they could seize the box that it was located in, plus any boxes stored along with that box. Trump objects to this last part, arguing that it makes the warrant too broad. Trump argues that the FBIs probe should be limited to only those boxes containing obviously classified documents.

The specificity of search warrants is frequently litigated for several reasons. The particularity requirementwhich protects the rights of individuals from unreasonable searches and seizuresis generally not rigorous, and countless courts have noted that it must be applied with a practical margin of flexibility. For example, in a complex investigation, extensive searches may reasonably be conducted in order to piece together the puzzle of criminal activity. And even sweeping statements in a warrant are generally not invalidated as overbroad. Instead they are typically construed to allow the seizure of any documents relating to the crimes listed in the warrant.

Ultimately, the merits of Trumps overbreadth claim come down to one question: Was there probable cause to believe that evidence of the suspected crimes would be found in boxes adjacent to boxes containing obviously classified documents? Its very likely that there would be. First, the Justice Department reported that it found 48 empty folders marked classified, indicating there could be 48 loose classified documents floating around in Trumps stored materials. Its reasonably probable that some of these documents would be found in boxes adjacent to boxes containing the empty folders. This is especially so in light of the particular facts of the document storage at Mar-a-Lago, where documents marked as classified were stored haphazardly, mixed with everyday items.

Second, the Justice Department does not need to prove that there was probable cause to believe that classified documents would be found in adjacent boxes. It only needs probable cause to believe that any government or presidential records that are evidence of the suspected crimes would be found in those boxes. For example, one of the suspected crimes was 18 U.S.C. 2071the willful concealment, removal, or mutilation of any government property. Any government document not belonging to Trump found at Mar-a-Lago would be evidence of this crime, and there is very likely probable cause to believe that a box stored adjacent to a box of classified government records would contain additional government records.

Even if the warrant is ultimately determined to be overbroad, persons searched pursuant to a seemingly valid warrant can generally obtain no relief. The Supreme Court has instituted the good-faith exception, which establishes that the government may introduce unlawfully obtained evidence if the police relied in good faith on legal authority such as a warrant or statute. So long as a warrant is not obviously facially deficient, police reliance on it will be deemed reasonable and thus the evidence will be introduced in court. A similar standard applies to claims like those contemplated by Trump, who states that he plans to file a motion for the return of unlawfully seized evidence under Federal Rule of Criminal Procedure 41(g). That rule was amended in 1989 to allow the United States to retain evidence seized in good-faith reliance on a warrant. And the warrant at issue here was not obviously facially deficienton the contrary, it would be shocking if a judge were to find it invalid. Even if Trump were to prevail on his overbreadth claim, he would have no remedy.

The Mere Evidence Rule

Trump makes a few additional Fourth Amendment arguments. In passing, his brief invokes an old, long-since-overturned Fourth Amendment doctrine known as the mere evidence rule. This rule once prohibited the police from seizing evidence that was not contraband, an instrumentality of the crime, or fruits of the crime itself. Created in the 1886 case Boyd v. United States, it was formally abandoned in the 1967 case Warden v. Hayden, following decades of general disuse. Trump attempts to rely on this defunct doctrine, raising the essentially frivolous argument that boxes of personal documents, photographs, and items such as clothing are by definition not contraband and thus may not be lawfully seized. The court is likely to have little appetite for reviving this long-dead rule, which, among other things, would prohibit the police from obtaining search warrants for evidence of murders. Theres no legal problem with the police seizing mere evidence under a warrant. And personal items intermingled with classified documents may be useful evidence of record mishandling because they establish who took the documents and how theyve been handled.

The Search Warrant Affidavit

Trump raises several vague questions about the validity of the search warrant and its underlying affidavit. His complaint suggests that the affidavit was probably riddled with material omissions and/or false statements. Presumably, he could verify these accusations only if he were allowed to see the affidavit itself. Indeed, he later requests the full affidavit, arguing that it is the only way to ensure the President can properly evaluate and avail himself of his constitutional protections. Specifically, Trump has indicated that he plans to file a motion under Federal Rule of Criminal Procedure 41(g) for the return of personal property seized by the government, on the grounds that the search of Mar-a-Lago was unconstitutional. In order to support this hypothetical future motion, Trump asks for access to the unredacted affidavit.

This raises an interesting question: How long can the government withhold an affidavit from the subject of an investigation who wishes to examine it and potentially challenge a warranted search? Generally, affidavits are rarely disclosed before the government files charges, as doing so may compromise the integrity and security of an ongoing criminal investigation. Here, the case for delaying the disclosure of the affidavit while the criminal investigation continues is strong. The unredacted affidavit would reveal the identities of several witnesses who could be subject to potential intimidation or retaliation. It also includes information about investigative techniques that could provide a road map of ways for the Trump team to obstruct the Justice Departments investigationwhich is especially important given that the warrant found probable cause for obstruction of justice. Finally, the unredacted affidavit would disclose the names of the law enforcement official or officials who applied for the warrant. This divulgence of those officials names would likely place them in danger, much like the FBI agents who were publicly identified to have carried out the initial search of Trumps residence and who received repeated threats of violence. For these reasons, no judge is likely to order the Justice Department to disclose the unredacted affidavit at this early stage of the investigation.

The Special Master Revisited

Trumps filings reveal the central strategic importance of obtaining an unredacted affidavit. His team also sees the appointment of a special master, nominally concerned with matters of privilege, as a means for obtaining the unredacted affidavit. The brief in Trumps initial filing, after discussing the hypothetical possibilities for omissions or lies in the affidavit, pivots to a discussion of the special master, arguing that the appointment of a Special Master with a fair-minded approach to providing defense counsel with information needed to support any Rule 41(g) filing is an appropriate use of the Courts authority. This appears to suggest that the special master should provide Trumps attorneys with access to the affidavit in order to support their Rule 41(g) motion claiming an unconstitutional search. Yet providing Trumps attorneys with investigative documents is far beyond the traditional function of a special master, who typically reviews seized documents for privilege and keeps privileged documents separate from those reviewed by authorities.

Trumps reply brief is even clearer in its attempt to use the special master as a means to obtain the unredacted affidavit. Buried deep in a discussion of the special masters review procedures, the brief requests that the government provide to the special master and to Trump a copy of the Search Warrant, and an unredacted copy of the underlying application materials, which include the affidavit revealing the witnesses and sources of information that supported the warrant. Again, such materials have essentially nothing to do with the special masters duties of sorting privileged and unprivileged materials. Rather, Trumps attorneys are attempting to use the courts likely appointment of a special master as a means of obtaining unrelated, sensitive investigative materials that could potentially be used for intimidation or obstruction

Cannons order granting Trumps request for a special master leaves this issue for later, directing the parties to confer on the special masters duties and powers and to identify any areas of disagreement. She will presumably rule on this issue following the parties filing on Sept. 9. She also expressly reserves ruling on Trumps (not-yet-officially-filed) request for the return of property under Rule 41(g), pending further review. That will apparently involve comprehensive review of the seized property by the special master to determine whether the personal items seized have evidentiary value. Cannons opinion gives little indication which way she will rule on the affidavit issue, although it does at one point discuss a potential indictment of Trump as an irreparable harm that weighs heavily in Trumps favor on an equitable balancing, especially [a]s a function of Plaintiffs former position as President of the United States. In addition, Cannon twice granted Trump more relief than he requested. Trumps complaint asked for an injunction against the Justice Departments review of the seized materials pending the appointment of a special master, but Cannon enjoined the criminal investigation until the special master completes the review process. In addition, Trumps reply brief clearly states that he has not yet filed a Rule 41(g) motion but Cannon directed the special master to make findings on the potential return of Trumps property under Rule 41(g). Its also possible that Cannons rapid and thorough accessions to Trumps unusual requests thus far indicate that she will push the envelope even further and command the Justice Department to disclose the unredacted affidavit. But that extreme step is still unlikely.

It is currently unknown whether Trumps attorneys creative attempts to obtain the unredacted affidavit will be successful. But regardless of how the court ultimately rules on that issue, Trumps underlying Fourth Amendment arguments are weak, and the likelihood that hell succeed in getting the bulk of the documents back is extremely low. Trump may have various strategic reasons for filing this motion, but when it comes to the Fourth Amendment, Trump appears to be headed for a loss.

Go here to read the rest:
Trump's Fourth Amendment Claims and the Strategy Behind the Challenge to the Mar-a-Lago Search - Lawfare

Every move you make

And every vow you break

Every smile you fake

Every claim you stake

Ill be watching you.

Every Breath You Take, Song by The Police

The Fourth Amendment to the U.S. Constitution guarantees the right to privacy. Like other amendments in the Bill of Rights, it doesnt create the right; it limits government interference with it. Last week, President Joe Biden misquoted the late Justice Antonin Scalia suggesting that Justice Scalia believed that the Bill of Rights creates rights. As Justice Scalia wrote, referring to the right to keep and bear arms but reflecting his view on the origins of all personal liberty, the Bill of Rights secures rights, it doesnt create them; it secures them from the government.

Those who drafted the Bill of Rights recognized that human rights are pre-political. They precede the existence of the government. They come from our humanity, and, in the case of privacy, they are reinforced by our ownership or legal occupancy of property.

The idea that rights come from our humanity is called Natural Law theory, which was first articulated by Aristotle in 360 B.C. The natural law teaches that there are aspects of human existence and thus areas of human behavior that are not subject to the government. Aristotles views would later be refined by Cicero, codified by Aquinas, explained by John Locke, and woven into Anglo-American jurisprudence by British jurists and American revolutionaries and constitutional framers.

Thus, our rights to think as we wish, to say what we think, to publish what we say, to worship or not, to associate or not, to defend ourselves from crazies and tyrants, to own property, and to be left alone are all hard-wired into our human natures by God, the uncaused cause. Nature is the means through which God passes along His gifts to us. We come about by a biological act of nature, every step of which was ordained by God. His greatest gift to us is life, and He tied that gift to free will. Just as He is perfectly free, so are we.

In exercising our free wills, we employ rights. Rights are claims against the whole world. They dont require approval of a government or neighbors or colleagues. The same rights exist in everyone no matter their place of birth, and each person exercises them as she or he sees fit. The government should only come into the picture when someone violates anothers natural rights. So, if someone builds a house in your backyard, you can knock it down and expel the builders or you can ask the government to do so.

Suppose the builders havent consented to the existence of the government? That does not absolve them. Though government is only moral and legal in a society in which all persons have consented to it this is Thomas Jeffersons consent of the governed argument in the Declaration of Independence the only exception to actual consent is the use of government to remedy a violation of natural rights.

Professor Murray Rothbard examined all this under his non-aggression principle (NAP): Initiating or threatening force or deception against a person or his rights is always morally illicit. This applies to all aggression, even and especially from the government. The folks building a house in your backyard have either used force or deception to get there. Both violate your natural rights and the NAP.

Now, back to the Fourth Amendment and privacy. In a famous dissent in 1928, which two generations later became the law of the land, the late Justice Louis Brandeis argued that government surveillance constitutes a search under the Fourth Amendment and thus, per the express language of the amendment, cannot be conducted by the government without a warrant issued by a judge. He famously called privacy the right most valued by civilized persons and described it as the right to be let alone.

Today, this is the most violated of personal rights; not by judges signing search warrants for surveillance, but by government officials local, state and federal ignoring and evading the natural right to privacy and pretending that the Fourth Amendment does not apply to them. The linchpin of the amendment is the judicial determination of the existence of probable cause meaning that it is more likely than not that a crime has been committed, and that there is evidence of that crime in the place to be searched and in the things to be seized.

Today, the feds, and this has been picked up and mimicked by local and state police, have told themselves that so long as they are not looking for evidence of crimes, they neednt follow the Fourth Amendment.

Today, the government rarely bothers to obtain a search warrant for surveillance because it is cumbersome to do so and because it is so easy to surveil folks on a massive scale without one.

Today, the National Security Administration Americas 60,000-person strong domestic spying apparatus captures every keystroke on every desktop and mobile device, and every conversation on every landline and mobile device, and all data transmitted into, out of or within the United States.

Moreover, youd be hard-pressed to find a geographic area that is not covered by police using hardware that tracks the movement and use of mobile phones. When Edward Snowden passed on to journalists the facts of massive warrantless spying in the Bush and Obama administrations, he had the journalists put their mobile devices where his was in his refrigerator, as anywhere else would have alerted his former colleagues of their collective whereabouts.

The government spends hundreds of billions of dollars annually just to watch and follow us. Who authorized this? Why do we tolerate a society where we have hired a government to secure our rights and instead it engages in aggression against them?

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Fourth Amendment: The right to be left alone - Minot Daily News

The Fourth Amendment to the United States Constitution protects the rights of the people against unreasonable searches and seizures of their person, property, and home. A recently-decided federal court case has explored the application of this important constitutional right to an emerging technological tool employed by schools and institutions of higher education: at-home examination proctoring. The holding in the case (Aaron M. Ogletree v. Cleveland State University) could provide insight into how similar cases may be decided across the United States.

To defend against a claim of unconstitutionality, the government must show that probable cause exists to justify a proper search and seizure. While probable cause is the typical standard under the Fourth Amendment, courts have recognized that certain environments may necessitate a lower standard when a legitimate public interest outweighs an individuals right to privacy. In the seminal case, New Jersey v. T.L.O. 469 U.S. 325 (1985), the United States Supreme Court established two important principles which helped shape the application of the Fourth Amendment to our education system: 1) Fourth Amendment protections apply to schools when public school officials conduct searches and seizures; and 2) a schools interests in maintaining a safe learning environment warrants a lesser standard than probable cause.

With respect to the first principle, the Supreme Court held that public school officials act as representatives of the State because they enforce publicly mandated educational and disciplinary policies. As such, the Fourth Amendment applies to searches conducted by school authorities. For the second principle, the Supreme Court lowered the probable cause standard in public schools to mere reasonable suspicion, holding that a schools interest in maintaining the safety and protection of students, faculty and staff, and school property outweighs a students individual privacy rights on school grounds.

In light of technological advancements and the normalization of remote at-home testing, courts must now answer a question when balancing a students individual right to privacy with the schools interest in promoting safety: How far is too far? On August 22, 2022, the Northern District of Ohio, Eastern Division, issued a decision in Aaron M. Ogletree v. Cleveland State University, holding that the universitys policy of allowing proctors to request students scan their room before taking a virtual exam violated the students Fourth Amendment rights. Plaintiff Aaron Ogletree (Ogletree), a student at Cleveland State University (University), filed suit after he was required to scan his bedroom before taking a virtual chemistry exam. The scan of Ogletrees bedroom lasted less than a minute, taking as little as ten to twenty seconds. During this scan, other students taking the remote exam could see Ogletrees room. As part of the proctoring procedure, the University allowed its faculty members discretion to choose which tool or combination of tools, if any, were necessary to preserve the integrity of the remote exam. There was no set policy addressing what to do in the event a student declined to scan their room. However, the proctor in this case testified that they would have allowed the student to take the exam and later notified the professor about the students refusal.

The Court agreed with Ogletree that he had a reasonable subjective expectation of privacy in his bedroom. In reaching this decision, the Court deemed that the room scans granted greater access than what would normally be given absent a warrant or invitation. The Court disagreed with the Universitys contention that cameras are generally available and commonly used, stating that a camera cannot be used in someone elses home, office, or other place not publicly visible without the owners consent.

It was undisputed that the room scan occurred over a short period of time, and Ogletree had discretion over where to direct the camera in his room, as well as some warning to take steps to protect his privacy and ensure that confidential materials were not readily in view. However, the Fourth Amendments protection of the home has never been tied to the measurement of quality or quantity of information obtained during a search.

While the Court found that the University had a legitimate interest in ensuring academic fairness and integrity, the University did not have to use room scans to ensure academic integrity. Not only was there a record of sporadic and discretionary use of room scans, other professors used different non-invasive methods which still protected academic integrity. Accordingly, the Court held that the Universitys practice of conducting room scans was unreasonable under the Fourth Amendment.

As it stands, the ruling in the Ogletree case cannot be used as binding authority in California; however, that does not mean it should be disregarded. California community colleges and K-12 school districts should recognize that while they have an interest in protecting academic integrity, effectuating a policy that invades a students private room in their home goes too far and could trigger a Fourth Amendment issue. Instead, schools should consider implementing alternative methods to video scanning, which may include programs that remove or prohibit internet access during exams, track typing, timed testing, monitoring students directly through the video camera on the computer, and varying question orders on tests from student to student to protect exam integrity when providing remote tests. These are only a few examples of how educational institutions may avoid Fourth Amendment violations while still furthering legitimate school interests. Questions regarding the Fourth Amendment, its application to schools and institutions of higher education, and how to avoid liability in situations such as remote testing, should be directed to counsel for more information.

The rest is here:
How far is too far? Searching Students' Homes and Remote Test Proctoring - Lexology

From Magistrate Judge Reid Neureiter's Report and Recommendation yesterday in Huff v. City of Aurora (D. Colo.) (the ultimate decision will be in the District Judge's hands, though such Magistrate Judge Reports and Recommendations are generally quite influential):

This lawsuit arises from an incident that occurred on October 10, 2019 at the Aurora home Mr. Huff shared with his wife, young daughter, and brother, George. That day, a man named George Bejar-Gutierrez, whom the brothers allowed to stay at the residence, stole George Huff's vehicle to drive to a methadone clinic. When Mr. Bejar-Gutierrez eventually returned, he was under the influence of methadone and George Huff's car was damaged. A confrontation, initiated by Mr. Bejar-Gutierrez, ensued, which prompted a passerby to call 911. Officers Doorgeest, VanDyk, and Vaughan of the Aurora Police Department ("APD") were dispatched to the scene, where they met with the Huff brothers, who explained what had happened. The officers informed the brothers that neither would be charged with any crime, and Andrew Huff gave them his cell phone number for any future communications.

Mr. Bejar-Gutierrez, who had fled before officers arrived and then proceeded to threaten the Huff brothers throughout that day and into the evening, eventually placed his own call to the APD, and met with Officers Ord, Marrero, and Oviatt at around 7:00 p.m. at a different Aurora residence. Mr. Bejar-Gutierrez told these officers that the Huff brothers assaulted him and that Andrew Huff had a firearm. Mr. Huff alleges that Mr. Bejar-Gutierrez was a convicted felon who had previously been arrested for giving false information to the APD.

At 11:30 p.m., Officers Ord, Marrero, and Oviatt, without any advance notice to Mr. Huff, went to Mr. Huff's home. They parked around the corner and, wearing all black clothing, proceeded to "creep" through neighboring yards towards Mr. Huff's residence. When Mr. Huff, who was smoking outside, saw these unidentified individuals advancing upon his home, he believed that Mr. Bejar-Gutierrez was following through on his earlier threats. He ran inside and retrieved a shotgun. He was facing the window with both hands by his side. His left hand held the shotgun by the barrelhis finger was not on the trigger and the gun was pointed at the ceiling. About 30 feet away, Officer Ord drew his weapon and, as he yelled, "Put your hands up, put your hands up!", fired five shots at Mr. Huff. Mr. Huff, who was diving away from the window as Officer Ord opened fire, was shot in rectum and severely injured. Another round entered the room where his daughter lay sleeping.

Officer Ord attempted to justify his actions by exclaiming that Mr. Huff "came into the window with a gun," and afterwards stated, "They are racking up in the garage," when, in fact, Mr. Huff, bleeding profusely on the floor, was merely calling 911 for help. Mr. Huff was charged with multiple felonies, all of which were ultimately dismissed. The second is a claim for municipal liability brought against the City for its allegedly unconstitutional policies, practices, and customs.

The Magistrate Judge reasoned that Huff had adequately stated a Fourth Amendment claim:

"To state an excessive force claim under the Fourth Amendment, plaintiffs must show both that a seizure occurred and that the seizure was unreasonable." "[A]pprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." In assessing an excessive force claim under the Fourth Amendment, "the question is whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." The inquiry "requires careful attention to the facts and circumstances of each particular case." In conducting this analysis, the Court must "consider the factors the Supreme Court clearly set forth in Graham v. Connor." These three factors are "(1) 'the severity of the crime at issue,' (2) 'whether the suspect poses an immediate threat to the safety of the officers or others,' and (3) 'whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.'"

The first Graham factor, "the severity of the crime at issue," is inconclusive at this stage.

Understandably enough, the Amended Complaint does not state what Mr. Bejar-Gutierrez told officers when he met with them on the evening of October 10, 2019, beyond, "George Bejar-Gutierrez claimed that the Huff brothers had assaulted him earlier in the day and claimed that Plaintiff had a firearm." It is unknown whether Mr. Bejar-Gutierrez described a felonious assault, i.e., that he suffered serious bodily injury at the hands of the Huff brothers or that a deadly weapon was used. Unhelpfully, in his motion, Officer Ord argues that he and the other officers were investigating Mr. Huff for assault, "which could have been considered a felony in the state of Colorado." Officer Ord is more definitive in his reply; he says that Mr. Bejar-Gutierrez reported a "felony assault." This incongruity is left unexplained, but it can and should be explored in discovery.

What Mr. Huff does allege, and what the Court must accept as true, is that the officers waited four hours after the alleged assault was reported to attempt to contact Mr. Huff. Officer Ord suggests that it is reasonable for police to take the time and prepare for a safe approach of an armed suspect. While the Court does not discount this argument, the delay could equally imply that the officers did not believe that exigent circumstances existed such that their later actionswaiting until almost midnight; parking around the corner; "sneaking" through the neighbors' yards; silently taking positions around the front of the house; all while not identifying themselveswere justified.

Moreover, what "preparations" the officers were taking during this time is relevant. Did they check the criminal records of the parties? Did they check whether Mr. Huff's firearm was registered? Did they bother to inquire whether there were prior reports from the parties that had previously been investigated by other officers the same day? Did they see that the brothers had been cleared of wrongdoing by their fellow officers? These are issues to be developed during discovery.

The second Graham factor, "whether the suspect pos[ed] an immediate threat to the safety of the officers or others," "is the 'most important' and fact intensive factor in determining the objective reasonableness of an officer's use of force."

"A frequent concern of the courts is the use of deadly forcethat is, 'force that the actor uses with the purpose of causing or that he knows to create a substantial risk of causing death or serious bodily harm.'" The Tenth Circuit has set forth four nonexclusive factors to consider when assessing the seriousness of a threat that precipitated an officer's use of deadly force: "(1) whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect."

The first Larsen factor goes to "whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands." Mr. Huff alleges that the officers did not identify themselves at any time prior to the shooting and that Officer Ord fired his weapon at the same time as he shouted, "Hands up!" "The Supreme Court has said that 'deadly force may be used if necessary to prevent escape [of one who threatens an officer with a weapon], and if, where feasible, some warning has been given.'" Taking the allegations of the Amended Complaint as true, Mr. Huff was never informed that he was dealing with police officers, much less that deadly forced might be used. Given that "the failure to warn when feasible and without excuse is so fundamental that it is often dispositive," this factor weighs in favor of Mr. Huff.

The second Larsen asks "whether any hostile motions were made with the weapon towards the officers," and likewise weighs in favor of Mr. Huff. According to the Amended Complaint, Mr. Huff did not point his weapon at anyone; he held the shotgun by its barrel and it was pointed at the ceiling. Nor did he ever fire the weapon. Officer Ord argues that "Plaintiff's appearance at the front window with a shotgun in his hand was, by itself, hostile in nature." But given that there is no "per se rule of objective reasonableness where a person points a gun at a police officer," the mere possession of a weapon does not, by itself, justify the use of deadly force. Possession of a firearm in one's home is also a constitutionally protected right and is not unlawful absent some disqualifying characteristic, such as being a felon.

The third Larsen factor, "the distance separating the officers and the suspect," supports Officer Ord. Though Officer Ord allegedly fired from some 30 feet away, Mr. Huff was apparently much closer to the officer knocking on the door, which intensifies the immediacy of danger, although the exact layout the property is unknown at this time.

The fourth Larsen factor, "the manifest intentions of the suspect," weighs in favor of Mr. Huff. Under the circumstances described in the Amended Complaint, Mr. Huff's "manifest intentions" were not to harm officers but to protect himself and his family from someone who had physically confronted him earlier that day and then made threats return to the property. Mr. Huff had no reason to believe he would be contacted by police officers given his earlier cooperation. And Officer Ord and his fellow officers' failure to identify themselves and their "covert" approach to the home served to reinforce Mr. Huff's belief that he was in danger. Under this version of events, "it was no surprise" that Mr. Huff armed himself "because it was [his] constitutional right to do so."

On balance, then, [t]he Amended Complaint plausibly alleges that it was unreasonable for Officer Ord to believe that Mr. Huff posed a grave threat of danger to himself or anyone else. Officer Ord is free to raise this "fact intensive" issue again on summary judgment, after discovery.

The third Graham factor, "whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight," weighs of favor of Mr. Huff. According to Mr. Huff, he had fully cooperated with APD officers that very day, going so far as to give them his cell phone number in case they had follow up questions. When Officer Ord and the other officers arrived at Mr. Huff's house, they did not tell Mr. Huff that they were police officers or that Mr. Huff was being arrested. Mr. Huff "couldn't have been resisting an arrest if he hadn't even been told that he was being arrested."

The Magistrate Judge also reasoned that the officer wasn't entitled to have the case dismissed under qualified immunity, because, if the facts are as Mr. Huff alleges, the officer's actions were clearly unconstitutional:

The Court agrees with Mr. Huff that the Tenth Circuit's opinion in Pauly v. White put Officer Ord on notice that shooting into Mr. Huff's and hitting Mr. Huff violated the Constitution. In Pauly, Samuel Pauly was shot through the window of his home by Officer White, a state police officer who was investigating an earlier road rage incident involving Samuel's brother, Daniel Pauly. Three officers, including Officer White, arrived at the house after 11:00 p.m. in the month of October. The officers approached and surrounded the residence without activating their security lights, which "confused and terrified" the brothers, who feared they could be intruders related to Daniel's prior road rage altercation. The officers told the brothers to come outside but did not clearly identify themselves.

Samuel armed himself with a loaded handgun and gave Daniel a shotgun and ammunition. One of the brothers shouted, "We have guns," and Daniel fired two warning shots out of the back door. Samuel opened the front window and pointed a handgun at Officer White, who then fired from behind a stone wall 50 feet away.

Officer Ord argues that Pauly is distinguishable in several ways, the most important distinction being that he gave Mr. Huff a warning to put his hands up. However, as noted above, the Amended Complaint alleges that the warning came as Officer Ord started shooting. If true, this effectively means that no warning was given at all.

Officer Ord also points out that "the plaintiffs in Pauly did not flee approaching officers." But, like the Pauly brothers, Mr. Huff did not know, and had no reason to know, that the people approaching his house were law enforcement officers. Instead, both Mr. Huff and the Pauly brothers feared intruders, and Mr. Huff's fear was rational given the threats he received from Mr. Bejar-Gutierrez earlier that day.

Officer Ord also states the Pauly shooting occurred in a rural, rather than urban, setting, and the "confrontation between the brothers and officers lasted for a "significant amount of time" before Samuel Pauly was shot. Neither argument is persuasive. It appears that only 3-4 minutes had elapsed from the time that Officer White arrived at the Pauly residence and the final shot was fired. This is hardly a "significant amount of time," especially considering that the Court has nothing to compare it to here, temporally speaking; the Amended Complaint only alleges that "Officer Ord started shooting at Plaintiff approximately two seconds after seeing him standing non-threateningly in his window." Moreover, whether urban or rural, both cases involved individuals who were shot while standing back-lit in their front windows.

And the Magistrate Judge also concluded that municipal liability was possible here, because Huff "has sufficiently alleged that the City failed to train Officer Ord in the use of appropriate force when confronted with individuals exercising their Second Amendment right to keep bear arms in their homes, and that the City's final policymakers ratified Officer Ord's allegedly unconstitutional use of deadly force":

Mr. Huff alleges here that "[n]ot only does Aurora have absolutely no training on shooting into residences or encounters with homeowners exercising Second Amendments rights, but it has also almost zero training on avoiding unnecessary escalation, and deficient training on proportional constitutional use of force." If true, this demonstrates the APD's deliberate indifference to its citizens' constitutional rights, especially given how many American homeownersexercising their well-established Second Amendment rightslegally own and possess firearms. Accordingly, at this early stage, Mr. Huff's Amended Complaint plausibly states a claim against the City under a failure to train theory.

According to Mr. Huff, APD Chief Paul O'Keefe publicly supported Officer Ord after the shooting, stating that Officer Ord complied with APD policy and did nothing wrong. Mr. Huff further notes that former APD Chief Nick Metz publicly backed the officers who shot and killed Mr. Black in 2018. No officers were disciplined in either case. Mr. Huff argues that this amounts to ratification and is evidence of the APD's unconstitutional policy of shooting at homeowners lawfully exercising their Second Amendment rights.

Chief O'Keefe's failure to discipline Officer Ord after shooting Mr. Huff cannot, on its own, plausibly form the basis of municipal liability on a ratification theory. However, "[a] failure to investigate or reprimand might also cause a future violation by sending a message to officers that such behavior is tolerated." That is what Mr. Huff alleges here. He claims that after police shot and killed Mr. Black in his home, then-Chief Metz publicly stated the officers did nothing wrong and none of them were disciplined. Then, Chief O'Keefe, after "carefully review[ing] and analyz[ing] Officer Ord's decision to shoot Plaintiff," under circumstances similar to those that resulted in Mr. Black's death, likewise determined that the officer's actions were in line with APD policy. If the City's final policymakers took affirmative steps to not merely condone but also commend the allegedly excessive and unconstitutional use of deadly force by APD officers, this deliberate conduct may be enough to establish the existence of an official informal policy, whatever the formal written policy may provide.

Congratulations toClifford L. Beem (Beem & Isley, P.C.) and Stephen B. Baumgartner (Baumgartner Law, LLC), who represent Mr. Huff.

Read the original:
"Mr. Huff Alleges That the Officers Did Not Identify Themselves at Any Time Prior to The Shooting ... - Reason

Big Brother has hacked the Constitution.

It has been over nine years since Edward Snowden released the first documents exposing the extent of NSA spying to the world. Since then, the surveillance state has only gotten bigger.

I finally got around to reading Snowdens memoir, Permanent Record. I bought the book not long after it was released, but life took over and the book sat on the shelf all but forgotten until we recently moved. As I was unpacking, I thought, I really need to read this.

I was right.

The book was a poignant reminder of just how insidious and omnipotent the national surveillance state has become. And how a complete breakdown of the constitutional system supports it.

SPYING ON EVERYBODY

The Snowden revelations had a profound impact on the trajectory of my own work. In the ensuing years, surveillance became one of my primary policy areas. I was heavily involved in the Tenth Amendment Centers efforts to turn off the water to the NSA facility in Bluffdale, Utah. I spearheaded the TACs OffNow project to address warrantless surveillance more broadly. I contributed to the drafting of a local ordinance creating oversight and transparency for surveillance programs that passed in numerous cities. And I got involved in fighting a surveillance program in Lexington, Ky. That resulted in a multi-year lawsuit.

As you can imagine, in the course of this work, Ive read a great deal about surveillance. I dug deep into Snowdens documents and the reporting as he released them. Ive poured over hundreds of documents describing the ever-growing surveillance state. I even took an online course on surveillance law. So, I have a keen understanding of just how deep and powerful the national spy complex runs. But Snowdens simple description of one NSA program stunned me. It is the program that allows U.S. intelligence agencies to access information about you, me, and pretty much everybody.

The program that enables this access was called XKEYSCORE which is perhaps best understood as a search engine that lets an analyst search through all the records of your life. Imagine a kind of Google that instead of showing pages from the public internet returns results from your private email, your private chats, your private files, everything.

In documents released by Snowden, the NSA calls XKEYSCORE its widest-ranging tool used to search nearly everything a user does on the internet. In his memoir, Snowden called it the closest thing to science fiction Ive ever seen in science fact; an interface that allows you to type in pretty much anyones address, telephone number, or IP address, and then basically go through the recent history of their online activity.

In some cases, you could even play back recordings of their online sessions, so that the screen youd be looking at was their screen, whatever was on their desktop. You could read their emails, their browser history, their social media postings, everything.

Snowden goes on to describe how analysts with access to XKEYSCORE shared pictures of nudes they found on target computers.

I knew this was a thing. But Snowden put it in such stark, simple terms that I was floored by the scope of federal surveillance all over again.

Snowdens revelations shined a light on the NSAs unconstitutional overreach. It produced some outrage, but its almost certain that these surveillance programs continue today. And in all likelihood, surveillance has expanded with the advancement of technology over the ensuing years.

HACKING THE CONSTITUTION

As Snowden put it, the government has hacked the Constitution.

He describes a wholesale breakdown of the constitutional system that shredded the Fourth Amendment.

Had constitutional oversight mechanisms been functioning properly, this extremist interpretation of the Fourth Amendment effectively holding that the very act of using modern technologies is tantamount to a surrender of your privacy rights would have been rejected by Congress and the courts.

Reading Snowdens outline of the constitutional breakdown that supports the surveillance state, its glaringly clear that we cant count on the federal government to limit the power of the federal government. Every branch of the federal government shares culpability.

As Snowden points out, Congress willingly abandoned its supervisory role over the intelligence community. Meanwhile, the failure of the judicial branch was just as egregious. The FISA Court created to oversee foreign surveillance approved 99 percent of the surveillance requests brought before it, a rate more suggestive of a ministerial rubber stamp than a deliberative judicial process. But Snowden described the executive branch as the primary cause of the constitutional breach.

The presidents office, through the Justice Department, had committed the original sin of secretly issuing directives that authorized mass surveillance in the wake of 9/11. Executive overreach has only continued in the decades since, with administrations of both parties seeking to act unilaterally and establish policy directives that circumvent law policy directives that cannot be challenged, since their classification keeps them from being publicly known.

In effect, all three branches of the federal government failed deliberately and with coordination creating what Snowden called a culture of impunity.

It was time to face the fact that the IC (intelligence community) believed themselves above the law, and given how broken the process was, they were right. The IC had come to understand the rules rules of our system better than the people who had created it, and they used the knowledge to their advantage.

Theyd hacked the Constitution.

As I read Snowdens words some nine years later, I had to ask myself, What has changed.

The answer is nothing.

The Constitution remains hacked. The federal government still wont limit its own power. That means its up to us to rein in this surveillance menace. State HERE.

Tags: edward snowden, fourth-amendment, NSA, Privacy, Surveillance

Excerpt from:
Big Brother Has Hacked the Constitution - Tenth Amendment Center