Mediaboss Marketing

The Constitution was signed on Sep. 17, 1787, and the Ninth Amendment was ratified in 1791at which time it became the supreme law of the land, like the rest of the Constitution. State judges are bound by itanything in their states constitutions or laws to the contrary notwithstanding.

Thats the law of the land. While the states may exercise legislative authority over the performance of abortions of pre-viable fetuses, they may not disparagei.e. reduce to little worththe personal right to abort a pre-viable fetus (or, for that matter, any other personal right not expressly mentioned in the Constitution). Otherwise, the states statutory authority would be superior to the Constitutionsomething the Constitution absolutely prohibits.

Both textualists and originalists on the Supreme Court bench ought to know this. But are they willing to apply the law of the land, as it is, or ignore it, and place their values above it?

Justice Clarence Thomas prides himself on being an unwavering originalist.Originalists believe that all statements in the Constitution must be interpreted according to their original understanding at the time they were adopted.

On Dec. 1, 2021, the U.S. Supreme Court heard oral arguments in the Mississippi case of Dobbsv. Jackson Womens Health. At issue in this case is whether Americans have a constitutional right to abort pre-viable fetuses, or whether states may prohibit such abortions or arbitrarily diminish them.

In his oral argument, Thomas asked Elizabeth B. Prelogar, the solicitor general of the United States: General, would you specifically tell mespecifically state what the right is? Is it specifically abortion? Is it liberty? Is it autonomy? Is it privacy?

Prelogar replied, The right is grounded in the liberty component of the 14th Amendment, Justice Thomas, but I think that it promotes interest in autonomy, bodily integrity, liberty and equality. And I do think that it is specifically the right to abortion here, the right of a woman to be able to control, without the state forcing her to continue a pregnancy, whether to carry that baby to term.

Thomas blithely responded, I understand were talking about abortion here, but what is confusing is that weif we were talking about the Second Amendment, I know exactly what were talking about. If were talking about the Fourth Amendment, I know what were talking about because its written. Its there.

Arbitrarily diminishing the exercise of a womans personal right to abort an unwanted pregnancy by the states disparages this personal right in contravention of the U.S. Constitution. The Constitution may not be interpreted in a manner that disparages our personal though unenumerated rights. The Ninth Amendment says so: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

As Z. Acevedo states in her well-researched article,Abortion in Early America, published in the National Library of Medicine:From 1776 until the mid-1800s abortion was viewed as socially unacceptable; however, abortions were not illegal in most states.

In the British colonies, abortions were legal if they were performed prior to quickening, Acevedo continued.In the 18th century, quickening meant what it means today: when a pregnant woman could feel the fetus move, at approximately the fourth month of pregnancy,

Accordingly, abortion of a pre-viable fetus was considered to be a womans personal or natural rightnota government-granted right,at the time of the signing of the Constitutionin most of the states in early America.

During his Dobbs exchange, Thomas essentially claimed that the U.S. Constitution cannot be interpreted as granting to women a right to an abortion, because no such right is specifically mentioned in the Constitution.

This thinking thoughruns afoul of the Ninth Amendment of the Constitution which protects our personal (though unenumerated) rights from being denied or disparaged by both the federal government and state governments through the Fourteenth Amendment.Thomass exchange with the solicitor general implies that justices of the Supreme Court may ignore this interpretative, constitutional edict and limit our personal rights protected by the Constitution to those rights, and only those rights, expressly mentioned in the Constitution.

TheNinth Amendment says the exact opposite, as it always has, since it was ratified. As Chief Justice Marshall wrote in the seminal case ofMarbury v. Madison, It is emphatically the province andthe dutyof the Judicial Department to say what the law is.

The Constitution is clear: Justices of the Supreme Court may not uphold state prohibitions against elective pre-viable abortions simply because the Constitution does not expressly grant to women the right to an abortion.

If Thomas, or other Supreme Court justices hold otherwise, they are not saying what the law is. Instead, they are saying what they want the law to be. Their thinking may be original, but its a far cry from originalism.

Sign and share Ms.s relaunched We Have Had Abortions petitionwhether you yourself have had an abortion, or simply stand in solidarity with those who haveto let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.

Up next:

View original post here:
The Right To Abort a Pre-Viable Fetus Can't Be Disparaged by the States. Can Someone Tell Clarence Thomas? - Ms. Magazine

A Colorado Springs police officer is the lone remaining defendant in a civil lawsuit alleging excessive force against the son of a current congressional candidate after a federal judge dismissed the city and three other law enforcement officers from the litigation.

Carl Andersen Jr. may proceed to trial with his claim against Officer Vito DelCore, stemming from an April 2019 encounter in the hospital room of Andersen's daughter. Police were trying to retrieve a cell phone from Andersen for fear that evidence would be deleted, but Andersen resisted. Eventually, DelCore tased Andersen, after which the multiple officers present in the room forced Andersen into handcuffs.

Last week, U.S. District Court Senior Judge R. Brooke Jackson deemed the officers' actions reasonable under the circumstances, with the exception of DelCore's decision to deploy his taser.

"Taking the evidence in the light most favorable to plaintiff, it seems that Officer DelCore encircled plaintiff, taser drawn, in order to initiate a physical altercation," Jackson wrote in a March 29 order. "The totality of the circumstances would allow a reasonable jury to conclude that Officer DelCores actions violated plaintiffs Fourth Amendment right to be free from excessive force."

David Lane, the attorney for Andersen, said he is "glad that the most culpable defendant who tased Mr. Andersen is still in the case, but disappointed that the aiders and abettors were dismissed."

Andersen is the son of Republican Carl Andersen Sr., who is running to represent the 7th Congressional District. Andersen, who was present during his son's encounter with police, told Colorado Politics in an email that the public should watch the body-worn camera footage and read the court documents to "get a feel for the case as it continues to play out in the legalsystem."

As outlined in the lawsuit, Carl Andersen Jr.'s fianceaccidentally hit Andersen's 19-month-old daughter while backing out of the driveway. The family immediately drove to the hospital in Woodland Park, but the girl needed transport to UCHealth Memorial Central Hospital in Colorado Springs.

While there, Andersen and hisfiance reportedly blocked forensic nurses from examining the child or taking photographs of her injuries. One nurse said in her experience, it raised "major red flags" when families were unwilling to provide information about a child's injuries.

"The overall situation was was very hostile. And the fact that they told me I better leave because tensions are rising tells me if I dont walk out of that room right now, that they are going to physically force me out of that room," the nurse said in her deposition.

The nurses called Colorado Springs police, who in turn requested personnelfrom Teller County, where the accident occurred. Detective Anthony Matarazzo arrived from the Teller County Sheriff's Office and informed the Colorado Springs officers that Andersen's fiance was allegedly sending text messages to others describing the automobile accident.

Matarazzo felt the cell phone contained evidence needed for the investigation, but he reportedly was unable to get the family to cooperate.

Out of concern that someone would delete the text messages if the phone were left in the family's hands, the Colorado Springs officers entered the hospital room. In addition to Matarazzo and DelCore, Officer Todd Eckert and Sgt. Carlos Sandoval were also present.

It was DelCore who spotted the cell phone in Andersen's pocket and attempted to grab it.

"Excuse me, you do not grab anything from my pockets," Andersen responded. DelCore said Andersen was "gonna hit the ground real hard."

Eckert stepped in to talk with Andersen, but at one point DelCore pulled out his taser. Andersen asked, "You're gonna tase me because I'm not gonna give you my (fiance's) cell phone?"

After more discussion, Andersen claimed that his father was talking with the Teller County sheriff. Carl Andersen Sr. was standing nearby and there was a brief period of silence while he spoke on the phone.

When the officers again pushed Carl Andersen Jr. to cooperate, DelCore moved to the back of Andersen and said, "Im going to go behind you because I dont want anybody behind you getting hurt."

Rapidly, DelCore grabbed Andersen's arm and said, "I will tase you" and ordered Andersen out of the room. DelCore then tased him in the back. A struggle ensued and the officers forced Andersen to the ground. DelCore tased him a second time.

Carl Andersen Sr. interjected, saying, "You guys are out of control." DelCore threatened to tase him as well.

Prosecutors eventually dismissed the charges of obstruction and resisting arrest against Carl Andersen Jr.

In August of last year, Jackson dismissed several of the claims Andersen leveledagainst the City of Colorado Springs, includingunlawful search and seizure, excessive force, malicious prosecution and First Amendment retaliation.

Subsequently, the defendants all asked Jackson to enter judgment in their favor in the case. Lawyers for the officers argued that while the Fourth Amendment generally requires a warrant for police to conduct a search, there is an "exigent circumstances exception" if there is a compelling need to avoid the destruction of evidence.

Along with the forensic nurses' account that Andersen and his fiance were refusing to provide information about the child's injuries, "it was reasonable to conclude that the evidence on the cell phone was important evidence and that the family did not want it to be discovered," the officers' motion read.

Jackson granted the officers qualified immunity, which shields government employees from civil liability unless they violate a person's clearly-established legal rights. In principle, qualified immunity seeks to protect officers when they act reasonably. Jackson decided it was reasonable for the defendants to suspect Andersen was obstructing their investigation through his refusal to offer information about the vehicle accident.

The judge further agreed it was reasonable for the officers to suspect someone would delete the text messages before they could obtain a warrant to search it, justifying a seizure under the exigent circumstances exception.

Jackson felt somewhat differently about the officers' use of force against Andersen. For Matarazzo, Eckert and Sandoval, their physical restraint of Andersen came at a time when he "potentially posed a threat to officer safety" and were therefore justified in their response.

But for DelCore, who prompted the physical encounter with Andersen, Jackson did not find that qualified immunity shielded his actions from scrutiny by a jury.

"As the other officers began discussing the situation with plaintiff and requesting cooperation, Officer DelCore threatened to make plaintiff 'hit the ground real hard.' Officer DelCore once again interrupted the civil conversation with a threat of violence by pulling out his taser," Jackson narrated, adding that DelCore also circled behind Andersen just before tasing him.

"Plaintiff barely had time to process, let alone respond to, Officer DelCores ostensible reason for circling behind him when Officer DelCore grabbed and twisted plaintiff's arm, said 'I will tase you right now,' and began shouting at plaintiff to get out of the room," Jackson wrote.

Andersen told Task & Purpose, an outlet oriented to military members and veterans, that the officers appeared to be looking for a fight and had reportedly disregarded his request to obtain a warrant for the cell phone.

"If (Matarazzo) had come in and introduced himself and said: Im a Teller County detective; I need to check your phones; we want to make sure there is no evidence of child abuse; thats a whole different story when you treat someone with respect, Andersen said in April of last year. And that man did not treat anybody, including my fiance, with respect.

A jury trial was initially set to begin on April 25, but Jackson agreed to postpone the proceedings due to DelCore, a staff sergeant in the U.S. Air Force Reserves, being deployed for active duty through the end of April.

The case is Andersen v. City of Colorado Springs et al.

See the rest here:
Judge allows lawsuit to proceed against Colorado Springs officer who tased son of congressional candidate - coloradopolitics.com

Top news and notes from around Northern Virginia and beyond.

5. Masks optional

George Mason University on Tuesday dropped its mask requirement for all campuses and facilities, citing low COVID-19 transmission rates.

4. Rights violated

A federal judge has ruled in favor of a man who claimed Fauquier County Sheriffs deputies violated his Fourth Amendment rights when they arrested and assaulted him.

3. Rain, rain go away

Some showers are likely this morning, then a mostly cloudy day is in store with high temperatures near 66 degrees.Click herefor a detailed forecast by ZIP code.

2. Cats rescued

Firefighters rescued two cats from a burning home in McLean on Monday evening after a fire started when a resident accidentally spilled kerosene while filling a lamp, fire officials said.

1. Centreville tornado

The National Weather Service has confirmed a second tornado touched down,this one in Centreville, during last week's strong storms.

InsideOut

Voting is underway in the 2022 Best of Prince William contest, presented by InsideNoVa.Choose your favorite Prince William County businesses, organizations and people once a day per category through April 30.

See the original post here:
InFive: Masks optional at GMU, deputies violated rights and a cloudy day - Inside NoVA

WILLOW SPRINGS, Ill. Former Chicago Police Superintendent and mayoral candidate Garry McCarthy has accepted the job as interim police chief in southwest suburban Willow Springs.

A press conference was held Thursday morning announcing McCarthys appointment in the town of about 5,000 people near the Cook and DuPage county border.

We welcome Garry McCarthy as the Chief of Police for Willow Springs, Mayor Melissa Neddermeyer said in a statement. We are confident in his leadership to oversee our police operations because he is an experienced and well-trained professional.

Reached by phone Wednesday, McCarthy declined to comment.

Former Chicago Mayor Rahm Emanuel hired McCarthy to lead the CPD in 2011, though he was fired in 2015 in the wake of the release of the Laquan McDonald shooting video. McCarthy later mounted an unsuccessful campaign for mayor of Chicago.

While McCarthy was CPD superintendent, the city saw between roughly 400 and 500 murders per year. In 2021, the city saw nearly 800 killings.

Records from the Cook County Medical Examiners Office show that Willow Springs, a village of about 5,000 people, has recorded just one homicide since the start of 2014.

Before he was hired by Emanuel, McCarthy held top posts in the Newark, N.J. and New York City police departments. The U.S. Department of Justice investigated the Newark police after McCarthys departure and found a pattern or practice of unconstitutional stops, searches, arrests, use of excessive force and theft by officers in violation of the First, Fourth and 14thAmendments.

After McCarthy was fired, the DOJ opened an investigation into the CPD. That inquiry, which led to the CPDs ongoing consent decree, found the police department engaged in a pattern or practice of using force, including deadly force, in violation of the Fourth Amendment of the Constitution. The department found that CPD officers practices unnecessarily endanger themselves and result in unnecessary and avoidable uses of force.

Read more:
Former CPD Supt. Garry McCarthy officially named interim police chief in Willow Springs - WGN TV Chicago

In the last few years, a flurry of state privacy legislation has bolstered protections for everything from biometric data to rights of deletion. Location data is no exception. The latest statute, New Jerseys Assembly Bill No. 3950, goes into effect on April 18, 2022 and requires employers to provide notice to employees for certain types of geotracking. This law continues the steady advance in protectionsboth in state legislatures and in the courtsfor the privacy of an employees location. Employers in every state should examine their geotracking programs to address the risks created by these developments.

What does New Jerseys new law require?

Assembly Bill No. 3950 requires that employers provide written notice to employees if the employer knowingly makes use of a tracking device in a vehicle used by an employee when that device is designed or intended to be used for the sole purpose of tracking the movement of a vehicle, person, or device.1The laws definition of tracking device supports a narrow reading that excludes devices capable of tracking location but that are not designed or intended to be used solely for that purpose. It is not yet clear, however, how narrowly courts will interpret the laws tracking device definition.

What does a tracking device include?

Reading the law narrowly, a tracking device would exclude many common forms of geotracking. For example, it would not cover GPS tracking apps in company-issued smartphones because of the wide array of other functions performed by a smartphone. Similarly, tracking devices would not include combined devices often used in a fleet of trucks that capture vehicle movement as well as perform audio and video surveillance. The laws definition of tracking device, furthermore, excludes devices used for the purpose of documenting employee expense reimbursement, one of the most common reasons that employers track location.2

On the other hand, a tracking device likely includes telematics devices that track movement, e.g., hard braking, swerving, and speeding, because this information includes movement if not location. Other equipment that might be covered include devices issued by insurance carriers to monitor safe driving and GPS locators that track drivers routes.

What are the penalties for not complying?

New Jerseys law does not provide a private right of action. Rather, the law is enforced by New Jerseys Commissioner of Labor and Workforce Development pursuant to New Jerseys Penalty Enforcement Law of 1999. Failure to provide the required written notice can result in a penalty of up to $1,000 for the first violation and up to $2,500 for subsequent violations.3

How is New Jerseys law different from other tracking laws?

Narrow definition of tracking

In passing this statute, New Jersey joins over a dozen other states with location tracking laws. The unique language of New Jerseys law, however, makes its application both narrower and wider than the other laws. As explained above, New Jerseys law defines a tracking device as an electronic or mechanical device which is designed or intended to be used for the sole purpose of tracking the movement of a vehicle, person or device.4This narrow definition stands in contrast to other states laws. For example, Californias tracking law broadly defines an electronic tracking device as any device attached to a vehicle or other movable thing that reveals its location or movement by the transmission of electronic signals.5On the other hand, Floridas tracking law defines a tracking device as any device whose primary purpose is to reveal its location or movement by the transmission of electronic signals.6Floridas definition is clearly more expansive than New Jerseys but not as broad as Californias.

Application to both company and personal vehicles

Alternatively, some provisions of New Jerseys tracking law are broader than other states laws. Notably, New Jerseys law requires notice to employees regardless of whether they are driving a company or personal vehicle. State laws typically exempt a company from compliance obligations if the company owns the vehicle being tracked. For example, Illinois and Michigan require the employees consent to track the location of the employees vehicle, but do not require the employees consent if the company owns or leases the vehicle being tracked.7

Requirement of notice but not consent

Furthermore, unlike tracking laws in many states, the New Jerseys law requires only notice, not consent, for location tracking. Wisconsin, for example, requires consent for individual GPS tracking, except in a few circumstances. Notably, Wisconsin does not require employee consent for the employers tracking of a company vehicle.8

Relevant case law regarding tracking

Even in states without legislation on geotracking, recent developments in case law provide greater protection for the privacy of an individuals whereabouts. This trend has been led by the Supreme Court. In Carpenter v. United States, the Supreme Court held that the warrantless collection for 127 days of cell-site data for mobile devices violated the Fourth Amendment.9The Court reasoned that the continuous real-time tracking of an individuals location violates a legitimate expectation of privacy.10Chief Justice Roberts explained, As with GPS information, the time-stamped [cell-site] data provides an intimate window into a persons life, revealing not only his particular movements, but through them his familial, political, professional, religious, and sexual associations. These location records hold for many Americans the privacies of life.11

Although Carpenter considered whether the governments warrantless search violated the Fourth Amendment, the case is relevant to private employers because the reasonable expectation of privacy standard is effectively the same for the common law invasion of privacy tort. In fact, a growing number of state courts have followed the Supreme Courts reasoning to hold that real-time continuous location tracking violates an individuals reasonable expectation of privacy and can serve as a basis for privacy torts. For example, in a Nevada district court case,an employer surreptitiously placed a tracking device on an employees car.12The employee brought a claim for the common law privacy tort, intrusion upon seclusion, which survived summary judgment.13Citing to Carpenter, the court found that the plaintiff had a reasonable expectation of privacy in his daily movements in the car.14

What steps can employers take given the recent case law?

In light of the growing case law protecting a privacy interest in location, employers can consider giving notice of location tracking even in states where not required by statute. Employers should consider notice in particular when conducting real-time, highly accurate, continuous tracking of an individuals location. This applies to the tracking of any individualnot just employees, but also applicants, independent contractors, interns, and others. By providing a clear and explicit notice about tracking, the employer undermines expectations of privacy in the individuals location.

Second, employers should safeguard location tracking data within the organization and provide access on a need-to-know basis only.

Third, if the employer implements a tracking program, it should consider other laws in the employment context as well as the risks of over-collecting personal information about employees. In particular, employers should try to avoid tracking employees after working hours because the employer risks gathering a wide spectrum of intimate details. Some of these details may reveal the employees membership in a protected category. An employer could learn, for example, that an employee regularly visits a dialysis clinic after work or that an employee goes to the mosque every Friday. If the employee is then terminated or subject to some other adverse employment action, the employee may suspect that the adverse action resulted from discrimination based on the employees disability or religion. This potentially could lead to claims against the company, even if the company had a legitimate reason for the adverse action.

Employer takeaways

Given the growing protections for location tracking, employers should consider the following:

Footnotes

See the original post:
New Jersey Joins the Trend of Increasing Privacy Protections for an Employees Location - JD Supra