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The charges have been dropped against the Suring school district administrator who had students stripped to their underwear in a January search.

Suring School administrator Kelly Casper confined six students to a restroom off the school nurses office to be searched on Jan. 18. The district attorney initially didnt file charges because he said the search did not meet Wisconsins legal definition of a strip search, but later charged Casper with six counts of false imprisonment.

A judge dismissed the charges against Casper on Tuesday, saying there were insufficient facts to support the claim that Casper had falsely imprisoned the six girls. Casper was placed on paid administrative leave in March.

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Casper kept the six girls, then ages 14 to 17, in a restroom off the school nurses office and had them strip to their underwear to be checked for vaping cartridges. The search turned up two cartridges, and another girl admitted to having a vape on her, according to the Green Bay Press Gazette.

The families of several girls hired civil rights attorney Jeff Scott Olson earlier this year. He told Wisconsin Public Radio in March that, regardless of the outcome of the now-dismissed criminal charges, he planned to move ahead with a civil suit over what he says is a violation of the girls Fourth Amendment right against unlawful search and seizure.

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Charges dismissed against Suring administrator for search where students had to remove clothes - Wisconsin Public Radio

Some Americans may have to pay a pretty penny to have their constitutional right to bear arms restored after a group of bipartisan senators introduced gun control legislation that does not include a government-provided lawyer, should a state enforce red flag laws.

The legislation, which the Senate voted to advance Tuesday night, reads in part the right to be represented by counsel at no expense to the government.

In simpler terms, individuals who have their firearm confiscated by officials under these red flag laws may have a lawyer, so long as they can afford to pay for it themselves.

The requirement for a red flag law to receive funding includes a provision requiring legal representation for the accused but does not require the government to pay for it, firearms expert and founder at The Reload Stephen Gutowski told the Daily Caller. (RELATED: Republicans, Independents Fear Red Flag Laws Will Be Abused By Government, Poll)

The government only provides a lawyer in criminal cases but not civil cases, explained Sen. John Cornyns press secretary Natalie Yezbick. The language was explicitly included asstates do not guarantee the right to an attorney in civil cases, Yezbick told the Daily Caller.

Drew Brandewie, director of communications for Cornyn, told the Daily Caller that including the aforementioned language is a way to ensure there is rigorous due process as not all states currently give individuals the right to a lawyer in civil cases.

Benjamin Hyun Sanderson of Gun Owners of America said the provision would bankrupt gun owners in a statement to the Daily Caller.

Because these cases would be tried under a Civil Court, there is no right to counsel as found in criminal procedures. This would ensure that gun owners would be forced to hire a lawyer during a Red Flag Law Gun Confiscation Trial, Sanderson said. This is an ultimatum forcing gun owners to either accept a guilty verdict and lose their 2nd Amendment Rights or go bankrupt from all the legal fees.

The inherent lack of due process should be appalling to all Americans.

Individuals would not be forced under the legislation to hire an attorney, but the option would now be available.

The Senate voted 64-34 Tuesday to start debate on a bipartisan gun control package that includes $750 million to help states implement, in part, extreme risk protection order programs, also known as red flag laws. These laws allow a court to confiscate a firearm from an individual who is believed to pose a violent threat.

The laws have faced stark criticism with some, including Daily Caller co-founder and Fox News host Tucker Carlson calling them unconstitutional.

If you can seize peoples guns without proving that they committed a crime why cant you imprison them without proving that they committed a crime? If you can take their guns, why cant you take their homes? Why cant you empty their bank accounts? Carlson asked.

He then citedthe Supreme Court case of Canglia v. Strom, in which the court ruled seizing a citizens gun violates search and seizure rights protected under the Fourth Amendment. Carlson said the laws will be enforced through political lines and disproportionately affect those with the wrong political beliefs.

Republican Florida Rep. Matt Gaetz said, Republican Senators who voted to back Red Flag Laws are traitors to the Constitution and our country.

The House Freedom Caucus said they oppose any legislation that implements red flag laws and other unconstitutional gun control provisions.

Continue reading here:
The Gun Control Legislation Will Strip You Of Rights Then Bankrupt You To Get Them Back - Daily Caller

By Nicole Rosenthal (June 17, 2022, 4:59 PM EDT) -- The Eighth Circuit has overturned a Missouri district court's denial of qualified immunity to an Immigration and Customs Enforcement officer who allegedly pushed and injured an immigration attorney, saying the push did not qualify as a seizure violating the Fourth Amendment.

A three-judge panel ruled Thursday that the lower court used an incorrect definition of "seizure" to conclude that ICE officer Ronnet Sasse "seized" Andrea Martinez and allegedly shoved her to the ground as she tried to enter an ICE facility. Martinez says she sustained a fractured foot, a concussion, bleeding and torn pants.

Leaning on the U.S. Supreme Court's definition...

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8th Circ. Tosses 4th Amendment Claim In Atty Shoving Suit - Law360

[co-author: Durva Trivedi]*

Last week, the First Circuit issued a decision that could be destined for Supreme Court review, but that nonetheless will immediately impact the course of criminal defendants' Fourth Amendment rights, particularly concerning government video camera surveillance. The split en banc decision centers on whether recordings obtained from a remotely controlled digital video camera mounted on a utility pole across from a private residence that was continuously recording the area immediately in front of that home should be suppressed, and whether the camera's installation was a "search" requiring a warrant. The panel of six judges unanimously agreed that evidence obtained from the camera should not be suppressed and was therefore admissible even though the camera was installed without a warrant. But they were divided three to three in two concurring opinions on whether a warrant should have been obtained to install the surveillance camera in the first instance, and whether prior First Circuit jurisprudence permitting warrantless video camera surveillance should be overruled.

Both opinions relied on the Supreme Court's 2018 Carpenter decision, but the first, 100-page opinion found the eight-month "intensive, long-term surveillance that could expose to a member of the observing public the whole of what visibly transpires in the front of one's home over many months in any practically likely scenario" constituted a search requiring a warrant under the Fourth Amendment. However, the concurrence also concluded that the government was entitled to rely on the "good faith" exception allowing evidence obtained in a warrantless search to be admissible because the existing precedent at the time of the camera's installation disclaimed the need for a warrant.

The second, 30-page opinion found that the surveillance did not constitute a search, and therefore concluded that the government was not required to seek a warrant prior to installing the camera such that the video evidence was admissible as to the defendants surveilled. The second opinion also relied on Carpenter, but cited Carpenter's endorsement of the warrantless use of "conventional surveillance techniques and tools, such as security cameras," and that "any purported expectation of privacy in observations of a house unshielded from view on a public street is not in the least like the expectation of privacy" that justified the warrant required by Carpenter for historic cell site location information.

The case centers on a criminal investigation into narcotics trafficking and the unlicensed sale of firearms. In January 2017, the ATF began investigating defendant Moore-Bush and "surreptitiously" installed a digital video camera atop a utility pole near where defendant was living at the time, which recorded the exterior of the home. "ATF agents were able to view a live-stream of what the camera recorded through a password-protected website. The agents also could, remotely, pan, tilt, and zoom the camera to better focus on individuals or objects of interest." The camera had within its view "roughly half of the front structure of the residence, including its side entrance and a gardening plot near that entrance, the whole of the home's private driveway, the front of the home's garage, much of the home's front lawn, and the vast majority of the walkway leading from the home's private driveway up to the home's front door (although not the front door itself)." (references to this area are noted in the opinions as the home's "curtilage").

ATF did not seek a warrant prior to installing the camera, and the camera was ultimately in place and continuously recording for eight months. In January 2018, based in part on evidence from the pole camera, Moore-Bush was indicted and arrested for conspiracy to distribute and possess with intent to distribute heroin and cocaine.

In April 2019, Moore-Bush moved to suppress evidence collected by the pole camera, arguing that the continued surveillance of the house constituted an unreasonable search in violation of the Fourth Amendment. A Massachusetts federal district court granted that motion, finding that a warrantless search occurred, relying on the Supreme Court's Carpenter decision, which held that the government's acquisition of historic cell site location information providing a detailed record of a defendant's physical movements constituted a search under the Fourth Amendment (for further discussion of the Carpenter decision, see here).

The district court's suppression order was appealed and, in 2020, a three-judge panel of the First Circuit reversed, holding that surveillance of the exterior of a house did not constitute a search and consequently that the suppression motion should be denied. Then Circuit Judge Barron concurred, although finding that the installation of the pole camera did require a warrant. The appeal was then reheard en banc on the defendant's motion and while the en banc panel of six judges agreed that the suppression order should be reversed, the Judges disagreed significantly on whether a warrant was required to install the pole-mounted video camera in the first instance.

The first concurring opinion, authored by now Chief Judge Barron and joined by two other judges on the en banc court, concluded that a warrantless search did occur, in violation of the Fourth Amendment. They found that Moore-Bush's legitimate expectation of privacy was violated when ATF agents collected eight months of aggregated information that no casual observer would see collectively. This concurring opinion relied on Carpenter and other recent Supreme Court cases concerning the application of various technologies to Fourth Amendment doctrine.

These decisions, according to the concurrence, support the conclusion that prolonged surveillance by the government that is streamlined and made possible by modern technology ("scooping up visual information about all that occurs in front of a residence over a long period of time") can constitute a search under the Fourth Amendment, even "when each discrete activity in that totality is itself exposed to public view." The Carpenter case, in particular, was relied on by the concurrence to suggest a need to overturn a prior First Circuit decision that held that eight months of video surveillance from a pole-mounted camera did not constitute a search under the Fourth Amendment.

Beyond concluding that eight months of video surveillance constituted a search, the concurrence did not provide guidance on a specific threshold or timeframe for determining when continuing video surveillance of curtilage amounts to a search, but quoting Carpenter noted that the Supreme Court's warning that "as '[s]ubtler and more far-reaching means of invading privacy have become available to the [g]overnment,' courts are ' obligated' . . . 'to ensure that the progress of science' does not erode Fourth Amendment protections." Nonetheless, the concurrence agreed that the original suppression order should be reversed because of the "good faith" exception, allowing evidence obtained by warrantless surveillance is admissible if conducted in accordance with the law in effect at the time.

In the separate concurrence, three circuit judges concluded that the surveillance, regardless of whether it was "surreptitious," did not constitute a search, that "the Fourth Amendment does not guarantee that suspects have fair notice that an investigation is ongoing," and that Carpenter endorsed warrantless use of security cameras. Additionally, the separate concurrence argued that it should be left to the Supreme Court to decide whether and to what extent legitimate expectations of privacy are violated by government surveillance that uses modern technology to aggregate and capture what is plainly in the public view but only observable over a length of time with technology like remotely accessed and controlled digital video pole cameras.

Looking forward, it has been reported that the defendant in the case has again sought rehearing, based on her argument that the video evidence should nonetheless be suppressed because the government waived the "good faith" exception. However, this point had been argued in the prior briefing and the three judges who thought there should have been a warrant did not "consider the 'good faith' issue to have been waived," so that rehearing would appear unlikely on that point.

The en banc opinions demonstrate significant discord among federal judges on the application of the Fourth Amendment to lengthy remote surveillance enabled by modern technology. It is likely that the defendants will seek certiorari, as the second concurrence concludes that, "if new constitutional durational limits are to be set on the use of long-used, widely-available technology that detects only what is plainly in the public view, it is for the Supreme Court to set those limits."

Judges Lynch, Howard, and Gelp. Former Chief Judge Howard authored the original panel opinion that reversed the suppression order, and here was joined by Judge Lynch from that panel.

* Durva Trivedi, a rising 2nd-year law student at Georgetown University Law Center, is a 2022 Summer Associate at DWT.

[View source.]

Original post:
First Circuit Splits on Whether Warrantless Pole-Mounted Video Surveillance Violates Fourth Amendment; District Court Suppression Order Reversed - JD...

In June 2022, a tweet went viral that supposedly showed a map of a 100-mile border enforcement zone and claimed that a recent U.S. Supreme Court ruling allowed border patrol agents to violate the Fourth Amendment in this area and enter any home without a warrant and assault you.

The 100-mile border enforcement zone is real, but it wasnt recently created by a Supreme Court decision. Furthermore, border patrol is not explicitly allowed to enter any home without a warrant within this zone (the 100-mile rule generally applies to vehicles) and there are no laws that permit agents to assault people. That being said, the Supreme Court did recently rule against an individual who was suing a border patrol agent for violating Fourth Amendment rights by using excessive force.

While many people may think of the border as the dividing line between the United States and Mexico, U.S. Customs and Border Protection (CBP) agents actually operate around the entire border of the United States. That includes the countrys northern border with Canada, as well as the eastern, western, and southern coastlines.

This so-called Border Enforcement one, as the meme called it, has been around since the 1950s, when the Immigration and Nationality Act of 1952 established that a reasonable distance of the border would extend 100-air miles around the outline of the country.

According to 8 U.S. Code 1357, employees of the United States Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), and Customs and Border Patrol are granted certain powers without warrant within this area, such as the authority to board and search for aliens on any railway car, aircraft, conveyance, or vehicle. This law also gives border patrol agents the authority to access private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States. However, the law states that border patrol agents only have the authority to access private lands within 25 miles of the border, not 100 miles.

Heres how the American Civil Liberties Union (ACLU) described this border enforcement zone:

Are immigration officials allowed to stop people in places wholly inside the U.S.?U.S. Customs and Border Protection, the federal agency tasked with patrolling the U.S. border and areas that function like a border, claims a territorial reach much larger than you might imagine. A federal law says that, without a warrant, CBP can board vehicles and vessels and search for people without immigration documentation within a reasonable distance from any external boundary of the United States. These external boundaries include international land borders but also the entire U.S. coastline.

What is a reasonable distance?The federal government defines a reasonable distance as 100 air miles from any external boundary of the U.S. So, combining this federal regulation and the federal law regarding warrantless vehicle searches, CBP claims authority to board a bus or train without a warrant anywhere within this 100-mile zone. Two-thirds of the U.S. population, or about 200 million people, reside within this expanded border region, according to the 2010 census. Most of the 10 largest cities in the U.S., such as New York City, Los Angeles, and Chicago, fall in this region. Some states, like Florida, lie entirely within this border band so their entire populations are impacted.

The map included in the above-displayed tweet appeared to have originated with a 2020 article from the Southern Border Communities Coalition (SBCC), a border-policy advocacy group. This organization wrote at the time:

The U.S. Customs and Border Protection (CBP), which includes the Border Patrol, is the largest law enforcement agency in the country. The jurisdiction they claim spans 100 miles into the interior of the United States from any land or maritime border. Two-thirds of the U.S. population lives within this 100-mile border enforcement zone, including cities like Washington D.C., San Francisco CA, Chicago IL, New Orleans LA, Boston MA, & more.

Because these are considered border cities, federal border and immigration agents assert the power to board public transportation or set up interior checkpoints and stop, interrogate and search children on their way to school, parents on their way to work, and families going to doctors appointments or the grocery store all done without a warrant or reasonable suspicion.

We reached out to CBP and we will update this article if more information becomes available.

The Fourth Amendment of the U.S. Constitution grants the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. In short, it was designed to protect Americans against arbitrary arrests and requires law enforcement to obtain warrants before searching homes.

While performing searches without a warrant may seem like a violation of the Fourth Amendment, the Supreme Court has previously ruled that searches within the zone do not violate that amendment. In the 1976 case United States v. Martinez-Fuerte, for example, the Supreme Court ruled that immigration checkpoints within this zone were not a violation of the Fourth Amendment, writing that it would be impractical to require such stops to always be based on reasonable suspicion and that brief questioning of the vehicles occupants is consistent with the Fourth Amendment.

The tweet above went viral in the days after the Supreme Court issued a ruling in the case of Egbert v. Boule, which dealt with an interaction between a border agent (Erik Egbert) and the owner of a bed and breakfast on the border of the United States and Canada (Robert Boule). This case did not establish or change the size of a new border zone. Rather, as The New York Times reported, the court ruled that only Congress could authorize lawsuits against federal agents for violating constitutional rights.

The New York Times reported:

The owner of an inn on the Canadian border who said he had been assaulted by a Border Patrol agent may not sue the agent for violating the Constitution by using excessive force,the Supreme Court ruledon Wednesday.

The decision, by a 6-to-3 vote along ideological lines, stopped just short of overruling a 1971 precedent,Bivens v. Six Unknown Named Agents, that allowed federal courts, rather than Congress, to authorize at least some kinds of lawsuits seeking money from federal officials accused of violating constitutional rights.

But the basic message of Wednesdays decision, Egbert v. Boule, No. 21-147, was that only Congress can authorize such suits.

Heres an excerpt from Supreme Court Justice Clarence Thomas opinion. Thomas wrote:

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), this Court authorized a damages action against federal officials for alleged violations of the Fourth Amendment. Over the past 42 years, however, we have declined 11 times to imply a similar cause of action for other alleged constitutional violations [] Nevertheless, the Court of Appeals permitted not one, but two constitutional damages actions to proceed against a U. S. Border Patrol agent: a Fourth Amendment excessive-force claim and a First Amendment retaliation claim. Because our cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts, we reverse.

Supreme Court Justice Sonia Sotomayor wrote a dissenting opinion in the Egbert v. Boule case, writing that the decision closes the door to lawsuits from those who suffer serious constitutional violations at the hands of federal agents. Sotomayor referenced the border zone in her opinion, writing:

The consequences of the Courts drive-by, categorical assertion will be severe. Absent intervention by Congress, CBP agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury. That will preclude redress under Bivens for injuries resulting from constitutional violations by CBPs nearly 20,000 Border Patrol agents, including those engaged in ordinary law enforcement activities, like traffic stops, far removed from the border. [] This is no hypothetical: Certain CBP agents exercise broad authority to make warrantless arrests and search vehicles up to 100 miles away from the border. See 8 U. S. C. 1357(a); 8 CFR 287.1(a)(2) (2021). The Courts choice to foreclose liability for constitutional violations that occur in the course of such activities, based on even the most tenuous and hypothetical connection to the border (and thereby, to the national security context), betrays the context-specific nature of Bivens and shrinks Bivens in the core Fourth Amendment law enforcement sphere where it is needed most.

The map in the tweet showing a 100-mile border enforcement zone refers to the Border Patrols authority to conduct warrantless searches in pursuit of aliens within a reasonable distance of the border. While the map was geographically accurate, the Supreme Court did not create this zone in June 2022.

Sources:

8 U.S. Code 1357 Powers of Immigration Officers and Employees. LII / Legal Information Institute, https://www.law.cornell.edu/uscode/text/8/1357. Accessed 10 June 2022.

100-Mile Border Enforcement Zone. Southern Border Communities Coalition, https://www.southernborder.org/100_mile_border_enforcement_zone. Accessed 10 June 2022.

ACLU Factsheet on Customs and Border Protections 100-Mile Zone. American Civil Liberties Union, https://www.aclu.org/other/aclu-factsheet-customs-and-border-protections-100-mile-zone. Accessed 10 June 2022.

Congress Tackles the 100-Mile Border Zone for Federal Checkpoints. Just Security, 30 July 2019, https://www.justsecurity.org/65136/congress-tackles-the-100-mile-border-zone-for-federal-checkpoints/.

Know Your Rights in the 100 Mile Border Zone. ACLU of New Mexico, 24 Sept. 2021, https://www.aclu-nm.org/en/know-your-rights/know-your-rights-100-mile-border-zone.

Liptak, Adam. Supreme Court Sides With Border Agent Accused of Using Excessive Force. The New York Times, 8 June 2022. NYTimes.com, https://www.nytimes.com/2022/06/08/us/politics/supreme-court-border-agent-excessive-force.html.

Millhiser, Ian. The Supreme Court Gives Lawsuit Immunity to Border Patrol Agents Who Violate the Constitution. Vox, 8 June 2022, https://www.vox.com/23159672/supreme-court-egbert-boule-bivens-law-enforcement-border-patrol-immunity.

The Constitution in the 100-Mile Border Zone. American Civil Liberties Union, https://www.aclu.org/other/constitution-100-mile-border-zone. Accessed 10 June 2022.

United States v. Martinez-Fuerte, 428 U.S. 543 (1976). Justia Law, https://supreme.justia.com/cases/federal/us/428/543/. Accessed 10 June 2022.

https://www.courthousenews.com/federal-officers-facing-liability-on-civil-claims-get-high-court-pass/. Accessed 10 June 2022.

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What Is the US Border Enforcement Zone? - Snopes.com