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DENVER The City of Denver will appeal a federal jurys verdict that awarded $14 million in damages to a dozen protesters who were injured by police officers in Denver during the 2020 George Floyd protests.

In a statement obtained by Denver7, Jacqlin Davis, a spokeswoman for the City Attorneys Office, said that while a final judgement on how the city will proceed has not been entered, the Denver City Attorney's Office has decided to pursue post-trial relief, including an appeal.

The verdict was handed down following a three-week trial the first excessive force and civil rights trial to come out of the demonstrations over the death of the unarmed Black man in Minneapolis, Minn. in which the jury heard testimony about failures in leadership and coordination by police in responding to the protests in Denver and injuries suffered by protesters at the hands of officers from Denver and other nearby departments.

The 12 plaintiffs were hit with pepper spray, bean bags and more during several days of protests in the downtown area, and claimed in the lawsuit that their First Amendment rights to demonstrate were violated because of officers unreasonable force and use of less lethal ammunition.

The plaintiffs also alleged Fourth Amendment violations in using excessive force by firing the munitions often without warning and at sensitive parts of their bodies, like their heads.

Denvers attorneys had argued that missteps and mistakes made by officers did not necessarily mean they had violated the constitutional rights of the demonstrators.

The jury ended up ruling in favor of all 12 plaintiffs, though to varying degrees, with plaintiffs getting between $750,000-$3 million in compensatory damages.

Denver has already settled other lawsuits tied to the protests for more than $1.3 million so far.

See the article here:
Denver will appeal $14 million verdict from federal jury over George Floyd protests - Denver 7 Colorado News

FORT COLLINS, Colo. A Denver-based attorney is fighting in court after calls with his client were recorded at the Larimer County Detention Center. He's now filed a motion he said could have broader implications for the criminal justice system in Colorado.

Jason Flores-Williams is representing Ramon Sepulveda, who was arrested last year in Larimer County on charges of drug trafficking and he's been held on $500,000 bond.

Flores-Williams said he recently learned that several of his phone calls with Sepulveda were recorded since they took place over the jail telephone line, and he's now filed the motion in response to the issue.

Jail was never meant to be a discovery tool for the prosecution, Flores-Williams said. The folks recording the line are very often as they are in Larimer County the investigating law enforcement officers who are integral to prosecuting the defendant who is being held there.

Flores-Williams argued this is a violation of both Fourth Amendment protections against search and seizure and Sixth Amendment rights to privileged legal counsel. He is now fighting to ensure the recorded calls will not be used against his client, as well as to end all jail phone recordings between an attorney and client.

The Larimer County District Attorney, who is pursuing prosecution of Sepulveda, contends the entire matter is Flores-Williams fault. The jail in Larimer County operates a second, non-recorded line for attorney calls.

As soon as law enforcement learned of Mr. Flores-Williams carelessness, they worked to mitigate his mistakes, a spokesperson with the sheriff's office said. The judge did not request any further action, and we consider the matter finished.

Flores-Williamss rebuttal is that the separate attorney line is not always in operation and goes down several times each day during meals, shift changes and lockdowns, which Denver7 confirmed with the Larimer County Sheriffs Office.

Flores-Williams said this all points to a broader problem in Colorado's criminal justice system with law enforcement agencies charging individuals with crimes and then holding the suspects on high bonds in jails they operate until trial.

Its a fox guarding the henhouse situation, Flores-Williams said.

Ian Farrell, a professor of law at the University of Denver, agreed that it is a broad, systemic problem one that intertwines with other abuses within the criminal justice system.

You have situations where people will be in jail for a longer period of time than they would have spent in prison if they were convicted, Farrell said. There are massive problems associated with this that connect with the problem of the phone calls, which I agree is a very serious problem in and of itself."

We need to have a mechanism that disincentivizes police and prosecutors from violating the rights even when someone is potentially guilty," he added. "Otherwise, theres nothing to prevent them from violating all of our rights, including those of us who may be innocent.

The phone lines at the Larimer County Detention Center disclose the fact they are being recorded. Because of this, Farrell said it will be up to the court to decide if it was reasonable for Flores-Williams and his client to expect privacy during their calls.

The prosecution provided a log of the recorded calls at a hearing on the defense motion in March but had not been requested to provide the recordings themselves at that time.

Sepulvedas trial is set for June.

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Colorado lawyer fighting Larimer County Sheriff's Office after calls with client were recorded - Denver 7 Colorado News

A University of Kansas professor was found guilty this week of concealing ties to a Chinese government-linked university, and in a second case a Chinese national was sentenced to more than two years in prison for stealing agricultural trade secrets.

The two cases are part of the Justice Departments initiative targeting Chinese technology theft that officials say has been scaled back by the Biden administration but not canceled, as some news reports have said.

The conviction of Tao Feng, also known as Franklin Tao, a full-time professor at the University of Kansas, and the sentencing of Xiang Haitao, a Chinese national, were both linked to the Chinese government Talents programs to link with overseas Chinese researchers to obtain U.S. civilian and military technology.

Tao was found guilty on Thursday by a jury in Kansas City, Kan., following a two-week trial.

The professor was convicted of three counts of wire fraud and one count of making a false statement as part of a scheme to conceal an $80,000 a year contract with Chinas Fuzhou University that he hid from both KU and the government.

Tao worked at KUs Center for Environmentally Beneficial Catalysis and conducted research for the Energy Department and the National Science Foundation, which required him to notify authorities of foreign work. The U.S. government work resulted in Tao receiving hundreds of thousands of dollars in reimbursements from the Energy and NSF grants.

He faces up to 20 years in prison and a fine up to $250,000 for wire fraud, and up to 10 years in prison and a fine of up to $250,000 for federal program fraud convictions.

Peter Zeidenberg, a lawyer for Tao, said the case amounted to charging the professor with grant paperwork omissions and that his client looks forward to being fully vindicated.

Court documents in the case revealed that a Chinese colleague hostile to Tao obtained the Fuzhou University contract and provided it to the FBI.

In the second case, Chinese national Xiang Haitao was sentenced to 29 months in prison for charges related to stealing agricultural trade secrets from The Climate Corporation, a subsidiary of Monsanto.

Xiang was employed by Monsanto and The Climate Corp. from 2008 to 2017 as an imaging scientist.

Both companies produced a digital online software platform called Nutrient Optimizer, a platform used by farmers to gather agricultural field data designed to increase productivity. According to court documents, Xiang in 2015 applied to the Chinese Academy of Sciences Nanjing Institute of Soil Science that conducted agricultural research.

Emails in the case said he sought employment as part of Beijings Hundred Talents Program, first launched in 1994 to recruit high-level talent.

The program was later renamed the Thousand Talents Program and has been at the center of a number of U.S. prosecutions of American and Chinese university researchers with links to institutions in China.

A search of Xiangs baggage in 2017 found copies of the Nutrient Optimizer, but the discovery was made after he had traveled to China. He was arrested in November 2019 during a return trip to the United States.

Xiang conspired to steal an important trade secret to gain an unfair advantage for himself and the PRC, said Assistant Attorney General Matthew G. Olsen, with the Justice Departments National Security Division. The victim companies invested significant time and resources to develop this intellectual property. Economic espionage is a serious offense that can threaten U.S. companies competitive advantage.

Vadim A. Glozman, a lawyer for Xiang, said the sentencing was the first step in his battle to be reunited with his family. Xiang will appeal a denial of a motion related to the Fourth Amendment search and seizure in the case, he said.

Although he has served the entirety of his sentence already, he will be subject to deportation proceedings, Mr. Glozman said. It is our intention to appeal the denial of the motion to suppress we had litigated on his behalf which will be a matter of first impression in the Eighth Circuit. The appeal will be based on an important Fourth Amendment issue that has wide-reaching consequences for all individuals in this country.

Alan E. Kohler Jr., FBI assistant director in charge of counterintelligence said: The government of China does not hesitate to go after the ingenuity that drives our economy. Stealing our highly prized technology can lead to the loss of good-paying jobs here in the United States, affecting families, and sometimes entire communities. Our economic security is essential to our national security. Thats why at the FBI protecting our nations innovation is both a law enforcement and a top national security priority.

Excerpt from:
Jury convicts Tao Feng, Kansas professor accused of hiding China ties - Washington Times

Amendment IV

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.

Judges, defense lawyers, police and prosecutors have been fighting over the Fourth Amendment for 230years, and its not hard to figure out why. So many of the words in the text are vague. Houses, papers, and effects, for example, means more today than they did when James Madison drafted the Bill of Rights. So, too, does the clause things to be seized. What things? Seized how and by whom? Only unreasonable searches and seizures were barred, remember, leaving it up to future courts to argue over what is and what is not a reasonable exercise of police power.

Madison and company knew that some of the ambiguities contained in the Bill of Rights were necessary to achieve the political compromise necessary to ensure ratification of a document that changed the way the U.S. government interacts with citizens. The drafters also knew that by these ambiguities, they were passing on tough definitional questions to future judges and legislators to figure out. The same thing happens today, by the way, when Congress enacts ambiguous legislation and then complains that federal judges arent interpreting it properly. The late Supreme Court justice Antonin Scaliaused to complain about thatall the time.

The justices over the centuries have developed a series of standards theyve used to determine when a search is a search under the Fourth Amendment and then whether such a search is reasonable. And because technology has ceaselessly evolved over the generations police once searched for written letters and diaries, now they also search for emails and text messages Fourth Amendment standards have evolved as well. The law is always catching up to technology, and the speed with which it catches up usually is determined by the Supreme Court or Congress.

For some answers about these standards, I turned toOrin Kerr, author and professor at UC Berkeley School of Law.Kerris known for his scholarship on criminal procedure in general and the Fourth Amendment and computer crimes in particular, and hesfrequently at the centerof legal and political debates at the intersection of technology and privacy rights.

COHEN:There is often great frustration over the willy-nilly way judges seem to interpret and enforce Fourth Amendment protections. You wrote a really interestingHarvard Law Reviewarticlein 2011in which you described an equilibrium adjustment theory of the Fourth Amendment. The Supreme Court adjusts the scope of Fourth Amendment protection in response to new facts in order to restore the status quo level of protection, you wrote. When changing technology or social practice expands government power, the Supreme Court tightens Fourth Amendment protection; when it threatens government power, the Supreme Court loosens constitutional protection.

A decade later, how has your theory held up? Have the Supreme Court and lower courts done more to harmonize what some see as cognitive dissonance at the heart of Fourth Amendment jurisprudence, or has the law grown muddier?

KERR:I think my theory has held up well. Two of the biggest Fourth Amendment cases in the last decade areRiley v. CaliforniaandCarpenter v. United States,and thats exactly what the Supreme Court did in those two cases. InRiley, the Supreme Court held that the search-incident-to-arrest exception doesnt apply to cell phones. The government can always search physical property on a person at the time of arrest, the Court has long held, but underRileythe government needs a warrant to search a cell phone then. That new rule was needed, the Court said, because applying the old rule to new technology no longer made sense: Applying that reasoning to digital data has to rest on its own bottom.

Similarly, inCarpenter, the Court held that the Fourth Amendment protects historical cell-site location records. This was needed despite the older cases pointing to the opposite result, the Court reasoned, to assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." New technology of cell phones gave the government access to a new surveillance method, and the Court had to change the old legal rule to ensure that the government didnt have too much power.

Of course, some would still find the law muddled. Some might say thatRileyandCarpentermade the law more muddled than before. But I would say the law is just really fact specific. How the Fourth Amendment applies depends on the facts, and you have to read a lot of cases to understand what the rules are.

COHEN:Riley v. Californiawas decided in 2014when Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg, and Stephen Breyer were on the Court. They are all gone or about to be gone now.Carpenter v. United Stateswas decided in 2018and the majority opinion in that case included two justices (Ginsburg and Breyer) who are gone or who will soon be gone from the court. Whats your sense of how the three Trump-nominated justices will push or pull Fourth Amendment law in one direction or another? For that matter, whats your sense of what a Justice Ketanji Brown Jackson would bring to the debate over the Fourth Amendment? Have you had a chance to compare her views with those of Justice Breyer, the man she would replace?

KERR:The overall effect of these newer justices is mixed, and it probably depends on the specific doctrine. But I can try to offer an overall take just by running through the new justices. First, Justice Brett Kavanaugh tended to be on the governments side in Fourth Amendment cases back when he was on the DC Circuit, but then he was the fifth vote (together with Chief John Roberts, Breyer, Elena Kagan, and Sonia Sotomayor) for the plaintiff in last terms significant Fourth Amendment case, Torres v. Madrid. Second, Justice Neil Gorsuch has a significant libertarian streak, which you can see in his separate opinion inCarpenter, but he can also end up on the governments side in divided cases (as he did inTorres).

Its too early to tell how Justice Amy Coney Barrett will be in the Fourth Amendment area. Finally, I expect Ketanji Brown Jackson will favor considerably more expansive Fourth Amendment rights than did Breyer, who was a swing vote in Fourth Amendment cases. Jackson is likely to be pretty different. Shes a former public defender, and I would guess she will join Sotomayor (and perhaps go beyond her) in being most likely to disagree with the government in Fourth Amendment cases.

In terms of what these new justices will mean for Fourth Amendment litigation generally, I expect many more Fourth Amendment cases will be briefed to the justices using originalist arguments. Briefs tend to be written to the swing vote, the justice who is needed to secure a majority and therefore a victory. We dont quite know who the center votes will be in Fourth Amendment cases, but Justices Barrett, Gorsuch, Kavanaugh, and Roberts are all possibilities. I suspect well see a lot of originalist arguments being made in Fourth Amendment cases to try to persuade those justices.

COHEN:You wrote a detailed analysis about a first-of-its-kind ruling on geofence warrants and their application to Fourth Amendment law. Geofencing involves the use of GPS technology to create a geographic boundary that allows police, relying on Google for example, to track a cell phone users location. The case is out of Virginia, U.S. v. Chatrie, in which a federal judge suppressed the results of a police search warrant because the warrant gathered geofencing data from a wide swath of people who could not possibly have any relationship to a nearby robbery officers were investigating. The complicated decision raises questions not just about what privacy expectations people have in the age of location-tracking on cell phones but whether new technology justifies a new way to approach Fourth Amendment jurisprudence more broadly.

You were skeptical of the judges analysis, and you suggest that such searches may not even be subject to Fourth Amendment protections in the first place, but I was struck by what you wrote toward the end of your piece: One wonders if the possibility that technology can enable the execution of warrants in a more privacy protective way than traditional warrants is leading [U.S. District Judge M. Hannah] Lauck to in effect seek a new Fourth Amendment standard that requires warrants to be executed in the most privacy protective way the new technology allows.

Can technology at last push Fourth Amendment law to a tipping point where federal judges start looking for new standards to guide their decisions? I suspect youll say that no matter what, these cases will necessarily be fact-specific, but is there a point where the governments use of new surveillance technology forces changes in the legal standards to which those facts will be applied? And if so, do you have a sense of which justices on the court would be most willing to entertain such a change?

KERR:I think there are two different questions. First, can technology so expand government power that the Supreme Court will adjust Fourth Amendment rules to limit government power? My answer to that is yes, and that is the basic idea of equilibrium-adjustment that we have been discussing. In the blog post, though, I was addressing a different question: If technology permits the government to access information but also creates the prospect of newer and better privacy protections than have existed before, should the Fourth Amendment require those new greater privacy protections?

Thats part of whats interesting about geofencing warrants, I think. Google can try to get the government to execute those warrants in a more privacy protective way than warrants have been executed previously. Traditionally, search warrants are executed in a brutal fashion: The government breaks in, rifles through everything, and sees everything. Its a severe privacy violation. In contrast, Google can (and wants) to carefully screen information from the government, limiting what the government can see and limiting the identifying information about whose account it is seeing. The question is, if technology creates new ways to protect privacy, should the law impose that requirement?

As to what the Supreme Court might say to that, the signals are mixed. On one hand, in a case likeMissouri v. McNeely, the Court suggested that the ready availability of telephone warrants these days might make the warrant requirement broader. As warrants become easier to get, the thinking runs, it becomes less burdensome to impose a warrant requirement. Thats not exactly the same. But its a little bit similar, I think. On the other hand, the Court has repeatedly rejected any kind of least intrusive means search requirement under the Fourth Amendment. And that cuts the other way.

COHEN: I want to go back to theTorrescase for a second because it addresses, or tries to address, the Fourth Amendments approach to police use-of-force cases, a topic near and dear to my heart.Torreshad to do withwhether a suspect was seized within the meaning of the Fourth Amendment when an officer tries but fails to subdue that suspect. And the Supreme Court ruled that the attempt alone to seize a suspect in that case officers firing at a woman fleeing in her car triggered a Fourth Amendment analysis. Were living in an era where there are more lawsuits alleging excessive force by police officers, and certainly more taxpayer-funded legal settlements paid by police officials, and Im wondering whether you are seeing the effects of these cases in Fourth Amendment law. In other words, how is police reform shaping Fourth Amendment law?

KERR:Its hard to tell, as we cant answer the counterfactual of what the law would look like otherwise. But Im skeptical that police reforms are shaping Fourth Amendment law. George Floyd was killed in May 2020. Since then, the Supreme Court has agreed to hearzeronew Fourth Amendment cases. Thats remarkable. In a typical term, the Supreme Court hears three or four Fourth Amendment cases. This term, for the first time I can recall, it isnt deciding any Fourth Amendment cases at all. The Court has also turned away a series of petitions asking it to overturnqualified immunity, the judge-made legal doctrine used to shield police officers, corrections officials, and others from liability for their misconduct. Justice Thomas has written dissents from denials of certiorari on this, as he wants the Court to reconsider qualified immunity. But the rest of the Court has been silent. Its hard to know, but renewed interest in police reforms might be making the justices less likely to step in themselves. They may be waiting for the elected branches to act. But this is all just speculation. Unfortunately, we dont know.

COHEN:Lets end by looking ahead. We know that there will be technological advances in the next decade that will affect Fourth Amendment law. There always are. Does anything in particular stand out to you as something to watch in the years ahead? Do you see the law and technology careening toward some flashpoint?

KERR:I dont think there will be flashpoints, but Im expecting continued evolution. The lower courts are disagreeing on a lot of Fourth Amendment issues involving technology, and that will likely prompt Supreme Court review in the next few years on those issues. The Supreme Courtwill probably decide how the Fourth Amendment applies to long-term pole camera surveillance, if it allows warrantless border searches of computers, how theprivate search reconstruction doctrine(which allows the police to view the results of warrantless online searches by private parties) applies to internet providers; what the limits of computer warrants are, and, in the Fifth Amendment area, when the government can force people to unlock their phones. As always, stay tuned!

This interview has been edited for length and clarity.

This discussion is one of several in a Brennan Center series on the Bill of Rights. The interview with David Carroll about the Sixth Amendment ishere, and the interview with Carol Steiker on the Eighth Amendment ishere.

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Could Better Technology Lead to Stronger 4th Amendment Privacy Protections? - brennancenter.org

Google is fighting back against a Brazilian court order to turn over data on all users who searched for specific terms, including the name of a well-known elected official and a busy downtown thoroughfare. (Brief in Portuguese / English*) While we applaud Google for challenging this digital dragnet search in Brazil, it must also stand up for the rights of its users against similar searches in the U.S. and elsewhere.

Keyword search warrants like the one in Brazil are far broader than traditional search warrants described in the Fourth Amendment to the U.S. Constitution. The Fourth Amendment requires police to establish probable cause to search a particular place or seize a particular person or thing before the court authorizes the warrant. But keyword search warrants dont start with a suspect person or device. Instead, they require Google to comb through the search histories of all of its users, including users who are not logged into a Google account when they search.

Keyword warrants allow the police to learn anyone and everyone who may have searched for particular terms on the off-chance one of those people could have been involved with the crime. Like better-known geofence warrants, keyword warrants allow police to conduct a fishing expedition and sweep up data on innocent people, turning them into criminal suspects. Police are using both types of expansive, suspicionless searches with increasing frequency.

The Brazilian case arises out of the assassination of Rio de Janeiro City Councilor Marielle Franco. Franco was murdered, along with her driver, Anderson Gomes, near Rio de Janeiro in 2018. It was a terrible crime that stirred up public outcry.

As part of the investigation into the assassination, police ordered Google to trawl through its users search histories, scanning for searches of certain termsincluding the name of a heavily trafficked street in Rio de Janeiro (Rua dos Invlidos), Francos name, and the name of a nonprofit cultural space intended to support Black women (Casa das Pretas), where Franco had participated in an event earlier on the day she was killed. The order required Google to turn over identifying data about all users who searched for these and other related terms over the course of four days.

Google has challenged this order, eventually appealing it all the way to Brazils Supreme Federal Court, arguing that this kind of indiscriminate search violates the Brazilian constitution. (Googles brief in Portuguese / English*) As Google rightly explains, the warrant is wildly overbroad. The search terms would all have been popular and common queries, and many people are likely to have used themincluding citizens and journalists interested in the activities of a city councilor, or people interested in collaborating with or receiving support from the nonprofit cultural center Casa das Pretas.

This particular keyword search warrant is particularly egregious, given the sheer number of people likely caught in its dragnet, but even a more narrow warrant should trigger human rights concerns. These types of warrants inevitably sweep in users whom police have no reason to believe were involved in the crime, and they give police unbridled discretion to determine which of these people to target for further investigation. In the Fourth Amendment framework, the unbridled discretion inherent in keyword search warrants, like geofence warrants, makes them an unconstitutional general warrant.

As Google emphasized in its brief, this case in Brazil has far-reaching implications. This method of investigating transforms a platform intended to provide access to information into a tool for the government to collect highly revealing private data from innocent people. And Google receives thousands of law enforcement orders to provide user data in Brazil each year, affecting tens of thousands of users. If Brazils Supreme Court signs off on dragnet keyword searches, the number of impacted users could skyrocket.

Keyword search orders are becoming increasingly common in the U.S.but Google seemingly hasnt fought nearly as hard to protect the privacy of its U.S. users. We arent aware of any cases in which Google has pushed back against keyword search warrants in the U.S. In fact, we have no idea how many keyword warrants Google receives or how it responds to them at all, because Google has kept that information entirely secret. That secrecy surrounding keyword warrants contrasts with Googles recent reporting on geofence warrants; Google has now shared the number of geofence warrants it receives and the three-step process it uses to respond to them.

It's remarkable that Google has taken a strong stand in favor of user privacy in Brazil. But this problem isnt limited to one country, and Google could do much more to protect its users. Google can and should take proactive steps to address the highly revealing capacity of its databases and adopt robust data minimization measures on how user data is processed and for long it is stored. And it should take a stand in the courts to protect users in the U.S. and other countries from dragnet keyword searches, just like its doing in Brazil.

* The official copy of the brief that Google submitted to the Brazilian court is only available in Portuguese. We used an online tool to translate the brief into English so there may be some inaccuracies in translation.

Go here to read the rest:
Google Fights Dragnet Warrant for Users' Search Histories Overseas While Continuing to Give Data to Police in the U.S. - EFF