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Several human rights organizations submitted a 31-page complaint to United Nations experts today, alleging that the United States is committing torture and violating the prohibition against racial discrimination by condemning people to death by incarceration through extreme sentences including life and life without possibility of parole (LWOP). The groups, including the Center for Constitutional Rights, the Drop LWOP Coalition and the Abolitionist Law Center, are urging the UN to call for the abolition of all death by incarceration sentences.

Death by incarceration is the devastating consequence of a cruel and racially discriminatory criminal legal system that is designed not to address harm, violence, and its root causes, but to satisfy the political pressure to be tough on crime, the complaint states.

The United States, a global outlier in its imposition of death by incarceration, condemns one out of every seven prisoners or more than 200,000 people to die in prison. Over two-thirds are people of color. Under international law, this amounts to torture and racial discrimination.

Extensive testimonials from people who are incarcerated or recently released from prison under extreme sentences are attached to the complaint. At the time of my arrest in 1995, I had no idea this country was at the height of a highly politicized and racist tough-on-crime movement that was swallowing up poor people of color by the thousands and decimating entire communities, wrote Felix Rosado, who served 27 years of his LWOP sentence before Pennsylvania Gov. Tom Wolf commuted his sentence to lifetime parole in July.

Death by incarceration is a statement of condemnation against even the possibility that one can transcend their worst moment and be worthy of life outside a cage. Its a complete negation of ones inherent right to redemption, Rosado told Truthout in an email. As a hospice volunteer on the inside, I witnessed too many men take the last breaths of their death by incarceration sentences. I can think of few acts more barbaric than forcing a human being to die a slow, agonizing death in a cage.

Sheena King is serving a sentence of LWOP for a crime she committed when she was 18 years old. She has been incarcerated at SCI Muncy in Pennsylvania since 1992. These sentences of death by incarceration are disproportionately handed down to people of color, of limited education, with fewer resources and they have failed to make communities safer. Death by incarceration sentences have not reduced crime so they serve no real purpose and they create prison environments of hopelessness which is a danger in and of itself, King wrote in an email to Truthout. Without death by incarceration sentences, parole consideration would be a possibility for the corrigible. The recidivism rate of those who were paroled from death by incarceration sentences is lower than any other group of offenders.

Death by incarceration sentences, including life without parole, are inhumane and highlight the ineffectiveness of the United States criminal punishment system, Samah Sisay, staff attorney at the Center for Constitutional Rights, told Truthout. The U.S. should abolish death by incarceration sentences and ensure that the disproportionately Black and aging individuals serving these sentences are afforded the right to dignity, hope and redemption.

Black and Latinx people are disproportionately sentenced to death by incarceration nationwide, the complaint notes, finding significant racial disparities in rates of release and parole. It also cites considerable racial disparities at the charging and trial stages, which in turn impact sentencing.

The complaint references the Committee Against Tortures repeated recommendations that states abolish irreducible life sentences, including LWOP. The Committee Against Torture is the official body that administers the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States has ratified. When the U.S. ratifies a treaty, its mandates become part of domestic law under the Constitutions Supremacy Clause.

Both the Committee Against Torture and the UN special rapporteur on torture have recommended the abolition of LWOP for juveniles. The United States is the only country that allows the sentencing of youth to life without parole. In April 2021, the right-wing U.S. Supreme Court made it easier to sentence children to LWOP. Justice Sonia Sotomayor noted in her dissent to Jones v. Mississippi that 70 percent of all youth who are sentenced to LWOP were children of color.

After the public torture and execution of George Floyd by Minneapolis police, the International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (for which I served as a rapporteur) issued a 188-page report. It documented racial profiling at every stage of the criminal legal system, which leads to violence and torture against Black people in the U.S.

The commission found that pretextual traffic stops are a common precursor to police killings and uses of excessive force against people of African descent. Race-based street stops, also called stop-and-frisk, often trigger the use of deadly force by police against Black people. The commission concluded that Fourth Amendment violations lead to the use of excessive force and police killings of Black people. In addition, police routinely use excessive and lethal restraints against people of African descent. They include Tasers, chokeholds, compression asphyxia, rough rides and the use of vehicles as deadly weapons.

On August 30, the Committee on the Elimination of Racial Discrimination documented several violations of the International Convention on the Elimination of All Forms of Racial Discrimination by the United States, which is a party to that treaty. The Committee on the Elimination of Racial Discrimination cited racial profiling by law enforcement and the paucity of legislation explicitly prohibiting the practice.

The Committee on the Elimination of Racial Discrimination was concerned at the brutality and use of excessive or deadly force by law enforcement officials against members of racial and ethnic minorities, including against unarmed individuals, which has a disparate impact on people of African descent, Indigenous Peoples, persons of Hispanic/Latino origin and Asian descent, and undocumented migrants.

Moreover, the Committee on the Elimination of Racial Discrimination concluded that racial and ethnic minorities are overrepresented in the criminal justice system. The Committee cited their disproportionate arrest, incarceration, solitary confinement and harsher sentences including life without parole and the death penalty.

In the United States, people of color are charged with the death penalty, sentenced to death and executed in disproportionate numbers compared to white people. The methods of putting people to death amount to torture. A judge in South Carolina recently found that death by electric chair is like being burned alive and death by firing squad is tantamount to torture.

Brutal physical torture was used almost exclusively against Black suspects in Chicago during the 20-year reign of terror beginning in 1972, under police commander Jon Burge, attorney Flint Taylor of the Peoples Law Office in Chicago wrote in an email to Truthout. This state terror was sanctioned at the highest levels of the Chicago Police Department, the Cook County States Attorneys Office, and the Office of Mayor Richard M. Daley.

Taylor, who has been involved in the fight against police torture for 35 years, said, Some of the torture techniques applied in Chicago jails included electric shock, dry submarino (hanged upside down with the head inside a container full of water, feces, urine, etc.) with typewriter covers and plastic bags, mock executions, and all manner of beatings with nightsticks and rubber hoses focused on the genitals.

In response, lawyers, torture survivors and their family members, investigative journalists and an intergenerational and interracial movement of activists and community members have fought a 40-year battle to expose and combat this reign of terror, Taylor explained. They took the issue to the Committee Against Torture, which responded by linking Chicago police torture to torture at Abu Ghraib and Guantnamo in its 2015 report.

The activists won a remarkable package of reparations for 60 torture survivors the first of its kind from the City of Chicago, Taylor noted. However, the fight for those torture survivors who remain behind bars due to coerced confessions, as well as many other predominately persons of color who have been, and continue to be, subjected to all forms of physical and psychological torture continues to this day in Chicago and throughout the U.S.

In 2011, the UN special rapporteur on torture called for a prohibition on solitary confinement beyond 15 days. Solitary confinement, which could amount to torture or cruel, inhuman or degrading treatment or punishment, violates the Convention Against Torture, and the International Covenant on Civil and Political Rights which the U.S. has also ratified.

The degree of civilization in a society can be judged by entering its prisons, Fyodor Dostoyevsky famously wrote in House of the Dead. The systemic racism and torture that permeates the U.S. criminal legal system exemplifies how cruel the United States really is.

Fortunately, activists and human rights organizations around the country, including the anti-death by incarceration coalition, anti-torture activists in Chicago, the Black Lives Matter movement and abolitionists, are organizing to stop these racist and harmful practices.

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Human Rights Groups Urge UN to Call for Abolition of Death by Incarceration - Truthout

Item 1.01. Entry into a Material Definitive Agreement

On September 14, 2022, Oportun Financial Corporation (the "Company") enteredinto a Credit Agreement (the "Credit Agreement") with the Company, as borrower,certain affiliates of Neuberger Berman Specialty Finance as lenders, andWilmington Trust, National Association, as administrative agent and collateralagent, pursuant to which the Company borrowed $150 million of senior securedterm loans (the "Loans").

The Loans bear interest, payable in cash, at an amount equal to 1-month termSOFR plus 9.00%. The Loans are scheduled to mature on September 14, 2026, andare not subject to amortization. Certain prepayments of the Loans are subject toa prepayment premium.

The obligations under the Credit Agreement are secured by the assets of theCompany and certain of its subsidiaries guaranteeing the Loans, includingpledges of the equity interests of certain subsidiaries that are directly orindirectly owned by the Company, subject to customary exceptions.

The Credit Agreement contains financial covenants requiring the maintenance ofminimum liquidity of $50 million (with a minimum of $40 million held in accountssubject to a perfected security interest) and a minimum asset coverage ratio of1.50 to 1.00, each measured as of the last day of each month, together withother customary affirmative and negative covenants (including reportingrequirements), representations and warranties and events of default. The CreditAgreement also contains certain terms whereby the lenders under the CreditAgreement may require the Company to borrow additional Loans, at such time thatthe asset coverage ratio would be at least 2.00 to 1.00 on a pro forma basis,for the purpose of redeeming in full the asset-backed notes and asset-backedresidual certificates issued by Oportun RF, LLC, pursuant to the Indenture datedas of December 20, 2021, as amended.

In connection with the entry into the Credit Agreement, the Company amendedcertain provisions of its personal loan and credit card warehouse facilities(the "Warehouse Facilities"). On September 14, 2022, Oportun PLW Trust, asborrower, Oportun PLW Depositor, LLC, as depositor, Oportun, Inc., as seller,Wilmington Trust, National Association, as collateral agent, paying agent,securities intermediary and depositary bank and the financial institutions fromtime to time party thereto as lenders, entered into the Fourth Amendment to theLoan and Security Agreement (the "PLW Amendment"). On September 14, 2022,Oportun CCW Trust, as issuer, Wilmington Trust, National Association, asindenture trustee, securities intermediary and depositary bank, entered into theThird Amendment to Indenture (the "CCW Amendment") (the CCW Amendment, togetherwith the PLW Amendment, the "Warehouse Amendments"). The Warehouse Amendmentsinclude amendments to the change in control provisions to allow for liens on theequity of certain subsidiaries of the Company to be permitted under theWarehouse Facilities. The Warehouse Amendments also add provisions that giverise to an event of default and a rapid amortization event under the WarehouseFacilities upon the occurrence of an event of default under the CreditAgreement.

The foregoing descriptions of the Credit Agreement and the Warehouse Amendmentsdo not purport to be complete and are qualified in their entirety by referenceto the text of the Credit Agreement and Warehouse Amendments, copies of whichwill be filed as exhibits to the Company's Quarterly Report on Form 10-Q.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under anOff-Balance Sheet Arrangement of a Registrant

The disclosure provided in Item 1.01 of this Current Report on Form 8-K ishereby incorporated by reference into this Item 2.03.

Item 7.01. Regulation FD Disclosure

On September 15, 2022, the Company issued a press release announcing the closingof the Credit Agreement described in Item 1.01 above. A copy of the pressrelease is attached hereto as Exhibit 99.1.

The information provided pursuant to this Item 7.01, including the press releaseattached hereto as Exhibit 99.1, is being furnished and shall not be deemed"filed" for purposes of Section 18 of the Securities Exchange Act of 1934, asamended (the "Exchange Act"), or otherwise subject to the liabilities under thatSection and shall not be deemed incorporated by reference into any filing of theCompany under the Securities Act of 1933, as amended, or the Exchange Act,except as shall be expressly set forth by specific reference in any such filing.The furnishing of the information provided pursuant to this Item 7.01 is notintended to, and does not, constitute a determination or admission by theCompany that the information provided pursuant to this Item 7.01 is material orcomplete, or that investors should consider such information before making aninvestment decision with respect to any security of the Company.

Item 9.01. Financial Statements and Exhibits

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Edgar Online, source Glimpses

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OPORTUN FINANCIAL CORP : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an Off-Balance...

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.

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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