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EDITORS NOTE: The observations contained herein are solely those of the authors and do not represent the views of the University of South Dakota.

The South Dakota Supreme Court had an intriguing year, to the satisfaction of some and frustration of others.

This year, the Top Ten Remarkable Decisions from the South Dakota Supreme Court are listed in ranked order, with top decision listed first as no. 1, the second most remarkable listed as no. 2, etc. The analysis and compilation of these decisions belongs to the authors. In that regard, preparation for this article was assisted and facilitated by an informal survey circulated among the members of USDLAW, an electronic listserve which serves the legal community in South Dakota.

No. 1. Untimeliness of Decision Overshadows Amendment A ruling

William Gladstone stated in his 1868 comments in the House of Commons, Justice delayed is justice denied.

Many say that this is what happened in the Amendment A litigation. In Thom & Miller V. Barnett Et Al./Election Contest As To Amendment A, 2021 S.D. 65, the trial court ruled that the voter-initiated Constitutional Amendment (encompassing recreational marijuana usage) was improper. The proponents of the amendment appealed, looking to the Supreme Court to correct the wrong asserted to be done by the trial judge.

Would the high Court respond? Yes, after a very long while.

Eventually, the Supreme Court held, by a vote of 4-1, that the voter-initiated Amendment A was invalid because it violated the single subject requirement in the South Dakota Constitution. Proponents of Amendment A vigorously argue that this decision wrongfully overturns the will of the people. There are rumors that the Justices who voted in favor of this decision may face organized opposition in retention elections.

The most remarkable aspect of this decision is not its holding but the delay of close to seven months between submission of the issues and the Courts ruling. The case was orally argued on April 27, 2021, with the decision being released to the public on Nov. 24, 2021. The wheels of justice ground very slowly on this one, disappointing a broad range of communities voters, legislators, governmental entities, and the media. There was a failure by the judicial system to respond in a timely fashion.

No. 2. Tourism reigns supreme

Just exactly how much does South Dakota cater to tourism? This question underlies the decision in Wilson V. Maynard, 2021 S.D. 37.

Homeowners near Deadwood objected to their neighbors usage of their home as an Airbnb based upon restrictive covenants for homes in this development. The restrictive covenants limit the usage to residential purposes. The home in question was rented [out as an Airbnb] nearly every day between June and September [in 2019]. During the 2018 and 2019 Sturgis Motorcycle Rallies, they rented the Property to twelve guests at once; and the Property has housed as many as twenty guests at a time. [The owners charged] $500 for weekday stays, $650 for weekend stays, and up to $1,200 per day during the Sturgis Rally.

In a split decision, three justices of the S.D. Supreme Court determined that the short-term rentals were permissible.

In a survey put forward to South Dakota lawyers, this decision was voted to be one of the most remarkable decisions of 2021. One responding lawyer commented that this decision provides, Important legal input into the relationship of AirBnbs in the context of residential development, residential zoning, and residential uses. Other than the Amendment A litigation, this is the case that I have talked about the most at work and at home.

No. 3. We protect our workers

Anderson V. Tri State Construction, 2021 S.D. 50: This decision permits an injured worker to utilize South Dakotas Workers Compensation laws to seek recovery for injury sustained in Wyoming. The employer is a South Dakota corporation with headquarters in South Dakota, but the injury occurred in Wyoming and the injured worker initially filed a work comp claim there, receiving temporary total benefits under Wyoming law. The employee then shifted her claim to South Dakota to request permanent total disability benefits under the more liberal South Dakota law because Wyoming law would only permit benefits for 80 months. Both the South Dakota Department of Labor and the trial court refused to allow the employee to proceed on the basis of a lack of jurisdiction.

The South Dakota Supreme Court reversed, holding, South Dakota has a substantial connection to [employee and employers] employment relationship sufficient to provide authority to adjudicate [the employees] claim.

This decision is important because it portrays the courts unwavering desire to protect South Dakota workers in the face of strong resistance by the insurance industry.

No. 4. We really do protect our workers

Billman V. Clarke Machine, Inc., 2021 S.D. 18: Here, the South Dakota Supreme took a deep dive into the underlying work comp claim and found that this 62-year-old employee was entitled permanent total disability benefits as a result of a work-related injury which necessitated the amputation of a portion of his left leg. Both the South Dakota Department of Labor and the trial court ruled for the work comp insurer, finding that the employee was employable.

Kudos to the S.D. Supreme Court for its unanimous holding that the Department of Labors position was clearly erroneous.

No. 5. Civil disputes dont belong in criminal court

State V. Suchor, 2021 S.D. 2: What was primarily a civil dispute between three builders and a contractor landed in criminal court by way of a grand jury. At a jury trial, the defendant was found guilty of three counts of grand theft by misappropriation of funds.

Taking another deep dive into the facts, the South Dakota Supreme Court reversed, holding that the defendant was entitled to a Judgment of Acquittal.

This decision makes the list because it not only demonstrates the courts willingness to analyze underlying facts, but it also helps curb the propensity to allow civil parties to utilize South Dakotas criminal justice system for civil disputes.

No. 6. More encroachment on tribal sovereignty

In decisions handed down in 1990 and 2004, the South Dakota Supreme Court established the rule of law that a state law enforcement officer is not permitted to intrude upon reservation territory in the pursuit of a suspect and to gather evidence without a search warrant or tribal consent.

This rule was significantly altered in State V. Cummings, 2021 S.D. 4. In Cummings, the trial court suppressed statements made by the defendant to an investigating officer at the defendants home located on Indian Trust land. The statements related to a burglary that occurred outside of Indian Country. The trial court ruled, under existing precedent, that the investigating officer lacked authority to investigate crimes in Indian Country.

The S.D. Supreme Court took the case on an intermediate appeal and reversed. The court held that the statements made were in the context of a consensual conversation and, as such, not in violation of the Fourth Amendment. In reaching this holding the Court side-stepped precedent stating, In re-examining [earlier] decisions, we conclude that [they] incorrectly conflated jurisdictional principles associated with tribal sovereignty and individual rights afforded by the Fourth Amendment.

No. 7. Can law enforcement really use excessive force without civil ramification? Yes, by a vote of 3-2.

In HAMEN v. HAMLIN CNTY., 2021 S.D. 7, we find a situation where law enforcement personnels utilization of an armored vehicle rendered $18,778.61 worth of damage to a residential trailer.

As pointed out in the dissenting opinion, this destructive force was invoked even though no one was barricaded inside with hostages or shooting at law enforcement or even threatening to shoot. Law enforcement did not take incremental steps to clear the trailer, but rather chose to tear [it] apart absent an immediate threat. The trial court permitted an excessive force claim to stand against the sheriff.

The S.D. Supreme Court granted an intermediate appeal and held that, as a matter of law, that the sheriff was entitled to a dismissal of excessive force claim. This decision is based upon a 3-2 split of the Justices. The two-justice dissenting opinion presents four color photos of the damaged trailer and states, the resulting damage to the trailer was intolerable in its intensity and unnecessary to execute the warrant at issue.

No. 8. Another Excessive Force situation when will it end?

Another glimpse of excessive force is found in Interest of N.A., 2021 S.D. 57, where a minor child was adjudicated as a delinquent based upon allegation that she assaulted a police officer.

The S.D. Supreme Court reversed and remanded, finding that the police officer used excessive force in the events which prompted the juvenile to react. The court stated:

[22.] Based upon our de novo review of this constitutional issue, and after considering the totality of the circumstances, we conclude Officer Bassett used excessive force to detain N.A. when he grabbed and pulled a non-threatening, non-fleeing, and non-resisting female teenager to the ground in a dark room, without warning.

The court further held that the trial court did not properly analyze and consider the juveniles claim of self-defense.

Note: This decision does not deal with a claim for damages, but simply acknowledges the utilization of excessive force against a minor.

No. 9. State permitted to renege on plea agreement

In State V. Guziak, 2021 S.D. 68, the state agreed to sentence cap of 180-days in jail in exchange for defendants guilty plea to abuse or cruelty to minor. But at sentencing, the state changed course, arguing that the defendant, has a history that is egregious and warranting a hefty sentence. The trial court imposed a 12-year penitentiary sentence with 8-years suspended on the child abuse conviction.

In a 4-1 ruling, the S.D. Supreme Court upheld this result, applying the plain error standard of review. The dissents approach (which we believe is more appropriate) asserted that the unique facts of this case present a special category of cases in which prejudice need not be shown under the plain error standard of review.

No. 10. Lock him up and throw away the key? Not so fast Imperfect Self-Defense recognized as Defense

The trial court went too far by imposing a sentence of 124 years in State V. Mitchell, 2021 S.D. 46. The defendant, originally charged with first- degree murder, pleaded guilty to reduced charge of first-degree manslaughter. State recommended sentence of 60 years. The victims family requested sentence of life imprisonment. The trial court sentenced defendant to 124 years.

The S.D. Supreme Court reversed and remanded, stating that, in order to accurately assess the nature of [Defendants] conduct, the [trial] court must consider the fact that he was reacting to a threat posed by [the Victims] own assaultive conduct. This opinion discusses, for the first time in South Dakota jurisprudence, the notion of an imperfect self-defense which is described in 36 as follows:

Contrasted from a perfect self-defense claim where the defendant is free from fault in bringing about difficulty with his adversary and reasonably believe[d] he needed to respond to an adversarys threat with deadly force, an imperfect self-defense presents manslaughter as a different option for criminal liability, short of murder and without the potential of an outright acquittal. Wayne R. LaFave, Substantive Criminal Law, 15.3(a) (2020). The reason for the imperfection can either be the defendants own fault in bringing on the difficulty or the unreasonableness of [his] honest but erroneous belief that he is in danger of serious or fatal injury which he can prevent only by killing the victim. Id.

The incident resulting in the victims death was captured on video recording and reviewed by both the trial court and the SD Supreme Court. The Courts opinion described the underlying facts as follows:

After a brief confrontation with Lucas Smith at a local bar, Jameson Mitchell armed himself with a handgun and encountered Smith in a nearby alley. Smith ran toward Mitchell, shouting for Mitchell to shoot him. After taking a few steps back, Mitchell fired at the charging Smith, fatally wounding him.

We recognize that selection of the Top Ten decisions is subjective. The proverbial saying that reasonable minds may differ certainly comes into play. In that regard, we would like to point out that the following decisions were considered as being viable nominations, but ultimately left out of our Top Ten list. These additional decisions might appropriately be awarded the title of Honorable Mention: State V. Langen, 2021 S.D. 36 (3-2 decision limiting the speedy trial requirement of SDCL 23A-44-5.1, with the authors preferring the analysis of the two-Justice dissent); State V. Reeves, 2021 S.D. 64 (establishing a flexible rule of evidence for admission of surveillance video); Patterson V. Plowboy, LLC, 21 S.D. 25 (limiting opportunity for appellate review under rule 54(c)); State V. Klinetobe, 2021 S.D. 24 (addressing sentencing standards); Matter of Implicated Individual, 2021 S.D. 61 (application of open records laws to search warrants and supporting affidavits).

Professor Emeritus Roger Baron, USD School of Law, has served as the unofficial reporter for South Dakota Supreme Court opinions for over a decade, providing weekly summaries of newly released opinions. He also maintains and operates USDLAW, an electronic listserve which serves the legal community in South Dakota.

Lori Goad graduated with honors from USD Law School in 2017 and served as judicial clerk for the Fourth Judicial Circuit upon graduation. She currently works as Assistant Public Defender in Pennington County.

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Coming Down From The Court | Community - Yankton Daily Press

The Central government has increased the authorised sanctioned strength of Jharkhand's IAS Cadre to 224 from 215-- an enhancement of nine more posts compared to the previous strength.

As per the new sanctioned strength, the total number of senior duty posts will be 122, the Central deputation will be 48, state deputation will be 30, training reserve will be four, while, leave reserve and junior posts reserve will be 20.

The posts to be filled by promotion under Rule 8 of the Indian Administrative Service (Recruitment) Rules 1954 is 68, while the posts to be filled up by direct recruitment is 156.

The move amends the Indian Administrative Service (Fixation of Cadre Strength) Regulations 1955 under which the prior total authorized strength of Jharkhand IAS cadre was 215.

Ministry of Personnel took the decision in consultation with the Jharkhand government last month and the announcement was made through official written order published in a gazette notification on January 1.

"In exercise of the powers conferred by subsection (1) of section 3 of the All India Services Act, 1951 (61 of 1951), read with sub-rules (1) and (2) of rule 4 of the Indian Administrative Service Cadre) Rules, 1954, the Central Government, in consultation with the government of Jharkhand, hereby makes the regulations further to amend the Indian Administrative Service (Fixation of Cadre Strength) Regulations 1955," reads the notification.

"These Regulations may be called the Indian Administrative Service (Fixation of Cadre Strength) Fourth Amendment Regulations, 2021. They shall come into force on the date of their publication in the Official Gazette."

In the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955, the senior Duty Posts in Jharkhand government include one Chief Secretary to government; one Development Commissioner; one Member, Board of Revenue; one Director General, Sri Krishna Institute of Public Administration; six Principal Secretaries; one Principal Secretary to Governor; one Principal Secretary to Chief Minister; one Chief Electoral Officer; one Principal Secretary Agriculture; five Divisional Commissioner; and 22 Secretaries to Government.

Besides, other Senior Duty Posts in the Jharkhand government comprises 22 Special Additional/Joint/ Deputy Secretary; one Tribal Welfare Commissioner; one Director Industries; one IG Prison; one IG Registration; one State Transport Commissioner; one Labour Commissioner; one Registrar, Cooperative Societies; 24 District Magistrate/ Collector/ DC/ADC; and 10 Municipal Commissioner/ Settlement officer DDC/Chief Executive Officer.

Apart from that, there is a post of one each for Commissioner, Commercial Taxes; Director, Panchayati Raj; Director, Municipal Administration; Director Land Acquisition and Land Records; Mission Director, National Rural Health Mission; Director, Sarva Shiksha Abhiyan; Commissioner, MNREGA; Administrator, Swan Rekha Multipurpose project; Director, Primary Education; Director, Secondary Education; Director, Social Welfare; Director, Sports; Director, Tourism; Director, Agriculture; Vice Chairman, RRDA; Director, SUDA; Municipal Commissioner, Ranchi Nagar Nigam; and Mission Director, Jharkhand State Skill Mission Society.

Continued here:
Centre increases strength of Jharkhand's IAS cadre posts to 224 - Hindustan Times

From Justice Christine Donohue's majority opinion (joined by Chief Justice Max Baer and Justices Thomas Saylor and David Wecht) in In the Interest of Y.W.-B., decided last week by the Pennsylvania Supreme Court:

A report from an unidentified source provided the sole basis for an allegation that Mother (J.B.) was homeless and had failed to feed one of her children during a single eight-hour period and led to the issuance of an order compelling her to allow the Philadelphia Department of Human Services ("DHS") to enter and inspect the family residence. [We conclude that DHS did not] establish[] sufficient probable cause for the trial court to issue the order permitting entry into the home without consent.

Mother, who is politically active, lives with her two young children ("Y.W.-B" and "N.W.-B") and the children's father ("Father") in Philadelphia. On May 22, 2019, DHS allegedly received a general protective services report ("GPS report") from an unidentified source alleging possible neglect by Mother.

[T]wo allegations were made in the report: first, around three weeks prior to May 21, 2019 (or on approximately May 1, 2019), the unidentified reporter claimed to have observed Mother's family sleeping outside of the Philadelphia Housing Authority. Project Home pursued this allegation with Mother, who denied the family was homeless. Second, on May 21, 2019, the unidentified source apparently indicated that he or she had also observed Mother, with one of her children, protesting outside of the office of the Philadelphia Housing Authority from noon until eight in the evening, and that it was "unknown" if Mother had fed the child during that eight-hour time period.

The same source provided DHS with the address of the family home. Project Home, a Philadelphia organization that attempts to alleviate homelessness, dispatched a worker on May 22, 2019 to approach Mother. In response to the Project Home worker's questions, Mother stated that she was at the Philadelphia Housing Authority to protest and that she was not homeless, although she indicated that a previous home had been involved in a fire.

Later that same day, Tamisha Richardson, a DHS caseworker, arrived at [the family home, where] she encountered Father, who denied Richardson entry into the residence and called Mother, who then spoke with her over the phone. Mother reiterated that she was protesting at the Philadelphia Housing Authority on May 21st and denied that she had either of the children with her on that date. Shortly thereafter, Mother arrived at the family home with the children and ushered them into the house. Mother informed Richardson that she would not allow her into the home absent a court order.

DHS then sought court orders authorizing an in-home visit; part of the basis was "the family's prior involvement with DHS, which consisted of a dependency matter that began in 2013 when DHS received a GPS report indicating that the family home 'was in deplorable condition; that there were holes in the walls; that the home was infested with fleas; that the home lacked numerous interior walls; that the interior structure of the home was exposed; that the home lacked hot water service and heat; and that the home appeared to be structurally unsound.'" That 2013 matter led the parent's older child to be "adjudicated dependent and committed to DHS" for nearly two years (the younger child hadn't been born at the time).

The majority held that an order permitting a home visit by social workers requires pretty much the same sort of showing of probable cause that's needed for searches of homes for evidence of crime.

DHS contends that social service agencies "should not be hampered from performing their duties because they have not satisfied search and seizure jurisprudence developed in the context of purely criminal law." Relying upon Wyman v. James, 400 U.S. 309 (1971) and Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523 (1967), DHS contends that the protection of children is an essential societal value and thus the interests it serves through home visits are more worthy of the public's concern than are Mother's interests in the protection of the sanctity of her home. Finally, DHS further insists that unlike an entry into a home to search for evidence of a crime, a child protective home assessment is nothing more than a "minimally invasive spot-check" for evidence of neglect (e.g., like confirmation that the home had basic utilities, food and beds).

We disagree with DHS's position. The evidentiary principles used to guide an analysis of whether sufficient evidence exists to establish probable cause has developed over many years in a wide variety of contexts. "It evidences no lack of concern for the victims of child abuse or lack of respect for the problems associated with its prevention to observe that child abuse is not sui generis in this context. The Fourth Amendment caselaw has been developed in a myriad of situations involving very serious threats to individuals and society, and we find no suggestion there that the governing principles should vary depending on the court's assessment of the gravity of the societal risk involved. We find no indication that the principles developed in the emergency situation cases we have heretofore discussed will be ill suited for addressing cases like the one before us."

This basic principle, namely that the requirement of probable cause to permit entry into a private home is not excused based upon any relative perceived societal importance, was further articulated by the United States Supreme Court in Mincey v. Arizona, 437 U.S. 385 (1978). In Mincey, the police argued that the extreme importance of the immediate investigation of murders justified a warrantless search of a murder scene. The Supreme Court emphatically disagreed: "[T]he State points to the vital public interest in the prompt investigation of the extremely serious crime of murder. No one can doubt the importance of this goal. But the public interest in the investigation of other serious crimes is comparable. If the warrantless search of a homicide scene is reasonable, why not the warrantless search of the scene of a rape, a robbery, or a burglary? 'No consideration relevant to the Fourth Amendment suggests any point of rational limitation' of such a doctrine."

The Wyman and Camara cases relied on by DHS do not support its position. At issue in Wyman was a New York regulation that was part of a program to provide aid to dependent children (i.e., children in families who qualified for welfare). The regulation required social workers to make an initial home visit and subsequent periodic visits for public financial aid to begin and thereafter to continue. The Supreme Court concluded that the home visits in this circumstance did not violate the Fourth Amendment. In so ruling, the Court focused on the public interest in insuring that state tax monies are spent on their proper objects and encouraging welfare recipients to return to self-sufficiency; the limited scope of the entry and its consensual nature; the fact that the recipients were entitled to advance notice; and the fact that all welfare recipients were subjected to the entries, which thus were not based on individualized suspicion of wrongdoing.

The circumstances of the recipients of financial aid in Wyman differ significantly and substantially from those of Mother in this case. In Wyman, the persons at issue affirmatively sought financial benefits to which they were not automatically entitled to receive. The Court ruled that a state can lawfully condition the receipt of benefits on various conditions, including comprehensive disclosure of the applicant's financial status. In addition, the state can lawfully take steps, such as periodic inspections of recipients' homes, to ensure that fraud is not occurring and that the recipients remain entitled to continued benefits.

Under Wyman, the diminishment of privacy of the recipients of the benefits was a quid pro quo for receiving the welfare payments. The recipients consented to the inspections in exchange for the receipt of benefits. In the present case, by contrast, Mother sought nothing from DHS other than her basic right to be left alone. The government cannot condition a parent's right to raise her children on periodic home inspection unsupported by probable cause.

In Camara, the Supreme Court addressed a circumstance where a San Francisco tenant challenged a city code provision that allowed health and safety inspectors to conduct warrantless searches of apartments to check for possible code violations. The Court began by emphasizing that an administrative inspection for possible violations of a city's housing code was a "significant intrusion upon the interests protected by the Fourth Amendment[.]" The Court then rejected any contention that the Fourth Amendment only protects citizens from searches to obtain evidence of a crime, but does not apply to civil administrative searches.

The Court also recognized, however, that an administrative inspection for possible violations of a city's housing code posed a unique situation, since unlike searches of a specific residence for a particular purpose (i.e., to find evidence of a crime), the investigation programs at issue were "aimed at securing city-wide compliance with minimum physical standards for private property[,]" and that even a single unintentional violation could result in serious hazards to public health and safety, e.g., a fire or an epidemic that could ravage a large urban area. Accordingly, given this distinctive circumstance, the Court concluded that probable cause to issue a warrant to inspect exists "if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling."

Camara has no application with respect to home visits to investigate allegations of child neglect. Unlike in Camara, which involved an agency's decision to conduct an area inspection based upon its appraisal of the conditions in the area as a whole to protect the public, probable cause to conduct a home visit depends upon whether probable cause exists to justify the entry into a particular home based upon credible evidence that child neglect may be occurring in that particular home.

Moreover, and importantly, the scope of the search in the present case was in no respect limited to ensuring compliance with certain identified housing code violations. The search here allowed DHS investigators to search the home, including every room, closet and drawer in the home, based entirely upon their own discretion. In short, while the search here was not conducted by law enforcement, its scope bore little or no relation to a traditional administrative search. As such, the contention that Camara's holding that administrative searches on an area basis are permitted where "reasonable legislative and administrative standards are satisfied"16 is insufficient to allow the exhaustive search of the entirety of family's home without a clear showing, based upon competent and, as necessary, corroborated, evidence establishing individualized suspicion exists allowing entry into a private home.

The court likewise rejected analogies to other "dragnet search" cases that have been upheld under a "special needs" rationale:

Dragnet searches are not predicated on individualized showings of probable cause, nor indeed on any kind of individualized suspicion. On the contrary, the hallmark of a dragnet search is its generality, as it reaches everyone in a category rather than only a chosen few. In addition to the safety-related inspection of every home in a given area in Camara, other dragnets include checkpoints where government officials stop, for example, every car or every third car driving on a particular roadway, and drug testing programs that require every person involved in a given activity to submit to urinalysis.

Dragnet searches are justified if they satisfy a balance of interests and are necessary because a regime of individualized suspicion could not effectively serve the government's interest. In Camara, the Court suggested that if the legislative standards were reasonable, probable cause existed because "the only effective way to seek universal compliance with the minimum standards required by municipal codes is through routine periodic inspections of all structures." Based on this rationale, there could not reasonably be an individual suspicion because the inspections are routine and periodic. The Court has subsequently found that the traditional probable cause standard "may be unhelpful in analyzing the reasonableness of routine administrative functions." Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 668 (1989). In Von Raab, a case involving a routine search that set out to prevent hazardous conditions from developing, the Court found that such searches can be conducted "without any measure of individualized suspicion."

And the court rejected analogies to "a separate category of administrative searches for groups of people shown to possess reduced expectations of privacy, including students, New Jersey v. T.L.O., 469 U.S. 325, 340 (1985), government employees, O'Connor v. Ortega, 480 U.S. 709, 725 (1987), probationers, Griffin v. Wisconsin, 483 U.S. 868, 879 (1987), and parolees, Samson v. California, 547 U.S. 843, 847 (2006)."

A child protection home inspection order like the one at issue here is neither a dragnet search nor a search of an individual with a reduced expectation of privacy. It is not a dragnet-type search because it does not involve home visits of all homes in an area for a limited purpose as in Camara to inspect wiring. Home visits by DHS are in no sense "routine and periodic," but rather must be based upon credible allegations of evidence of neglect occurring in the specified home. Mother likewise has no reduced expectation of privacy in the sanctity of her home based upon any suspicion of potential wrongdoing (like with, e.g., probationers and paroles), and DHS does not rely on the Griffin or Samson line of cases. As a result, while home visits in the child neglect context are conducted by civil government officials rather than members of law enforcement, they do not fit within the two categories of "administrative searches" entitled to reduced Fourth Amendment and Article 1, Section 8 protections.

We expressly hold that there is no "social worker exception" to compliance with constitutional limitations on an entry into a home without consent or exigent circumstances. While most often applied with respect to the police, the United States Supreme Court has ruled that "[t]he basic purpose of [the Fourth] Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." As a result, the Fourth Amendment applies equally whether the government official is a police officer conducting a criminal investigation or a caseworker conducting a civil child welfare investigation.

We thus join the vast majority of other federal and state courts in explicitly recognizing that the Fourth Amendment (and our own Article I, Section 8) applies to searches conducted in civil child neglect proceedings, which have the same potential for unreasonable government intrusion into the sanctity of the home. See, e.g., Andrews v. Hickman Cty., Tenn., 700 F.3d 845, 863-64 (6th Cir. 2012) ("Fourth Amendment standards are the same, whether the state actor is a law enforcement officer or a social worker."); Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1250 n. 23 (10th Cir. 2003) ("[A]bsent probable cause and a warrant or exigent circumstances, social workers may not enter an individual's home for the purpose of taking a child into protective custody."); Walsh, 240 F. Supp. 2d at 746-47 ("[A]ssertions to the contrary notwithstanding, [there is] no social worker exception to the strictures of the Fourth Amendment."); People v. Dyer, 457 P.3d 783, 789 (Colo. App. 2019); State in Interests of A.R., 937 P.2d 1037, 1040 (Utah Ct. App. 1997), aff'd sub nom., State ex rel. A.R. v. C.R., 982 P.2d 73 (Utah 1999); In re Diane P., 494 N.Y.S.2d 881, 883-85 (1985); In re Robert P., 132 Cal. Rptr. 5, 11-12 (Cal. Dist. Ct. App. 1976) (stating that the Fourth Amendment applies in civil child protective proceeding).

The court also held that probable cause wasn't shown on these facts.

Justice Kevin Dougherty, joined by Justice Debra Todd, agreed with the majority that there wasn't sufficient basis for the intrusion into the home, but would have applied a lower standard for probable cause. Justice Sallie Mundy didn't opine in detail on what Fourth Amendment standards were called for here, but concluded that the probable cause requirement was satisfied. My apologies for the long excerpt, but the opinions, put together, are over 30,000 words long.

Here is the original post:
No Social Worker Exception from the Fourth Amendment for Home Searches by Child Protection Officials - Reason

An aspiring model from Staten Island went on an ugly racist rant this week, spitting and screaming the N-word at black city Parks peace officers all while preaching about his Constitutional right to be racist, authorities said.

Jake Grogan, 21, was zooming out of the Greenbelt Recreation Center around 4:10 pm Tuesday in a Toyota Camry so fast in a 5-mph zone that his hat blew off his head, according to a written complaint by Parks Enforcement Patrol officers shared with The Post.

The officers were assisting with traffic outside the center, which was serving as a COVID-19 vaccination site.

After getting out of the car to retrieve the cap, Grogan allegedly took exception when one officer, Nakua Rose, told him to slow down. He allegedly rolled up his sleeves and yelled, Ill fk you up!

When Roses superior, Sgt. Dornell T. Grant, asked Grogan for identification, the 21-year-old allegedly went berserk, spitting at Rose and then refusing to be subdued.

Grogan, who is white, then allegedly grabbed dirt and smeared it in Grants face while yelling Im gonna fuck you n-s up. Its my Fourth Amendment right to be racist, apparently confusing the law prohibiting unlawful searches with the First Amendment that allows for free speech.

Its not illegal to be racist, he added.

Besides Grant, the other half dozen PEP officers working were black or Hispanic.

Grogan was taken to the NYPDs 122nd Precinct and charged with aggravated harassment, obstructing government administration and reckless driving all misdemeanors, according to court filings. Authorities said he has a previous rap sheet that includes charges of criminal mischief and domestic violence.

Joe Puleo, president of Local 983 of District Council 37, which represents PEP officers, said the union will be asking prosecutors to slap Grogan with harsher criminal charges, including committing a hate crime.

Grogan could not immediately be reached for comment.

The blond-haired, blue-eyed Grogan lists himself as an aspiring model on ExploreTalent.com. His LinkedIn page doesnt cite any work experience only a photo of him flipping the bird while a girl behind him blows a kiss.

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Staten Island man tells black parks officers its his 'right to be racist' - New York Post

Lawfare contributors Ashley Deeks and Russell Spivak discussed, in 2017, the U.S. Court of Appeals for the D.C. Circuit ruling in Taylor v. Huerta that struck down the 2015 Federal Aviation Administration (FAA) interim drone registration rule. Some of the same players involved in that case, including Taylors attorneys, Jonathan Rupprecht and Kathleen Yodice, as well as the presiding judge, Robert L. Wilkins, reconvened on Dec. 15 for oral arguments in the case RaceDayQuads (RDQ) v. FAA, challenging the FAAs remote identification (RID) rule. This post provides an overview of the rule, summarizes the challenges and offers analysis of the arguments as well as thoughts on what might happen going forward. Given that the FAA has made RID a prerequisite for certain operations over people, beyond visual-line-of-sight drone operations and the future unmanned traffic management system, this case has the potential to set the commercial drone industry back years and hamper national security agencies in protecting against rogue drones.

The Rule

The FAAs stated purpose of the RID rule is to protect airspace safety and national security by requiring all small drones (0.55-55 lbs) in the U.S. to broadcast out a digital license plate that is accessible in near real time to the FAA, national security agencies, law enforcement entities, other government officials and the general public.

It took the FAA more than two years to finalize the rule. The process began on New Years Eve 2019 when the agency published its initial Notice of Public Rulemaking (NPRM). Despite multiple requests to extend the deadline, the FAA closed out the public comment period on March 2, 2020. Even so, during that 60-day period, the FAA received more than 53,000 comments. Almost a year later, in January 2021, the FAA promulgated the final RID rule (which added a new Subpart C to Part 89 in Title 14 of the Code of Federal Regulations, Remote Identification of Unmanned Aircraft).

Under this rule, a drone will need to broadcast message elements (MEs) over WiFi and/or Bluetooth, including its unique identifier (e.g., a serial number), precise coordinates, geometric altitude, velocity, the control station coordinates or broadcast takeoff location and geometric altitude. In some cases, it will need to broadcast a time mark and an emergency status indication.

With regard to the range for broadcasting MEs, 14 USC 310(g)(2) states:

Any broadcasting device used to meet the requirements of this section must be integrated into the unmanned aircraft without modification to its authorized radio frequency parameters and designed to maximize the range at which the broadcast can be received, while complying with 47 CFR part 15 and any other applicable laws in effect as of the date the declaration of compliance is submitted to the FAA for acceptance. (Emphasis added.)

Utilizing the 1 watt of output power provided for in FCC regulations, 47 CFR 15.247(b)(1), a RID system at +30 dBm (1 watt) on 2.4 GHz would transmit identification information more than 1 mile omnidirectionally. This will enable a wide swath of people, over large distances, to persistently track drones.

RDQ attorney Rupprecht performed a propagation study using this RID standard and compared it to the PCS 700 MHz band at +27 dBm, the cell phone addressed in U.S. v. Carpenter, covered previously in Lawfare. The blue area depicts RID and the smaller red circle, the Carpenter cell propagation (see Figure 1).

Figure 1. Depiction of the comparative reach of RID capabilities (blue) vs. the cell phone in Carpenter (red).

Source: Rupprecht Propagation Study Utilizing Google Earth.

This RID capability must be either hardwired into the drone (Standard Remote ID) or attached externally in the form of a module (Broadcast Module RID or BMID). Drones without RID capabilities may fly only in FAA-recognized identification areas (FRIAs), specially designated flight areas carved out for non-BMID or Standard RID drones, under the general purview of community-based organizations and educational institutions.

Manufacturers have until September 2022 to either integrate RID into their drones or build BMID modules. Drone operators have until September 2023 to either fly RID-compliant Standard or BMID drones or be relegated to flying in a FRIA.

When RID capabilities go live, not only will law enforcement and national security agencies be able to access a drones MEs in near real time, but they will be able to correlate the ME information with other personally identifiable pilot data in FAA databases. In other words, the rule enables persistent surveillance of drones and their operators in real time, with precise locational data, without a warrant.

This last bit caught the attention of a lot of folks, including some of the public commenters during the pendency of the rule. Another attention-grabber: The final rule deviated significantly from the FAAs NPRM version, which had focused on a network-based RID solution. Under the originally proposed rule, Standard RID drones would have been required to have both network and broadcast capabilities. Limited RID drones, which did not make their way into the final rule, would have been network only. The final rule deviated from the proposed rule in other ways as well. Enter: RDQ.

The Suit

RDQ is an Orlando, Florida-based multimillion-dollar e-commerce shop that caters to the first-person view (FPV) drone-racing crowd. FPV drone pilots, some of whom are children, use small, light drones to fly fast through elaborate tracks, in places such as parks and forests. Flying in a FRIA would be too constraining because these will not be the same type of public and wide open spaces that FPV pilots have the freedom to access now. And then theres the geolocational aspect of RID, which could allow anyone, for example, to track and find a child flying a drone alone in the woods.

RDQs co-founder and CEO, Tyler Brennan, an active-duty U.S. Air Force F-15E pilot said of the suit that he seeks to protect the constitutional rights of U.S. citizens to be free from unreasonable searches from the government when they are flying in their own backyards.

To this end, Brennan gathered a legal team that includes not only two lawyer-pilots, Rupprecht and Yodice, but also a partner in the Parlatore Law Group, Elizabeth Candelario.

The RDQ team filed its case a year after the final RID rule launched. It was not until this past August, however, when the team filed its 14,000+-word brief and appendix, that the constitutional and other bases for its challenges became clear. RDQ alleged that the rule is a violation of the Fourth Amendment because it allows warrantless tracking in a backyard.

RDQs other challenges to the rule included that the FAA arbitrarily and capriciously relied on undisclosed ex parte communications during the rulemaking process, the final rule was not a logical outgrowth from the NPRM, the FAA failed to comply with a legal mandate to consult with Radio Technical Commission for Aeronautics (RTCA) and the National Institute of Standards and Technology (NIST), and the agency failed to address significant public comments as required by the Administrative Procedure Act.

After receiving a deadline extension, the governments nine-person legal team fired back in October. John E. Putnam, the Department of Transportation acting general counsel and deputy general counsel, leads this group of attorneys from the Transportation Department, the FAA and the Department of Justice. The other members include three attorneys from the Justice Department, including Casen B. Ross, who argued the case on behalf of the government, and an FAA senior attorney, who was directly involved in its RID rulemaking efforts.

The governments brief outlined a host of justifications and fallbacks to support the rule, some of which were never mentioned in the rulemaking. On the constitutional front, citing the Supreme Court case U.S. v. Karo, the brief took the position that merely requiring RID technology on board a drone does not equate to an unreasonable search.

The government also explained that the movement of planes in public view does not give rise to a reasonable expectation of privacy. As a failsafe, the brief also noted that even if the rule violated the Fourth Amendment, the special needs exception would legally justify it. The special needs doctrine recognizes that law enforcements special needs justify a search predicated on less than the Fourth Amendment probable cause requirement when the objective serves non-law enforcement ends.

In mid-October, the Association for Unmanned Vehicle Systems International (AUVSI), the worlds largest nonprofit advocacy organization for unmanned vehicles, filed an amicus curiae brief in support of the FAAs position. In an interesting twist, in the context of disputing RDQs standing, attorneys for AUVSI, not the FAA or RDQ, opened up Pandoras box on the controversial issue of avigation, or landowner rights in low-level airspace above their property. AUVSI averred that RDQs Fourth Amendment assertions must fail because the FAA has jurisdiction down to the lowest blade of grass, including in ones own backyard, as I have explored previously.

Because of AUVSIs brief, RDQ responded quoting the Supreme Courts Causby case (The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.) and the Department of Transportations own position in a September 2020 Government Accountability Office report that disavowed the FAAs jurisdictional claims in the airspace over private property. In other words, even the FAAs parent agency is on record directly contradicting the posture the aviation regulator has taken in this case on the extent of its authority.

The Arguments

On Dec. 15, Rupprecht argued for RDQ before a panel of three judges: Wilkins, Cornelia Pillard and Justin R. Walker.

Going right for the jugular on the Fourth Amendment, Rupprecht said, People have a reasonable expectation of privacy in their backyard. With RID here, law enforcement, without any warrant, and its unlimited, can track an individual in his backyard.

The judges cut off Ross, the Justice Department attorney representing the FAA, after his opening sentence and spent the next 27 minutes peppering him with Fourth Amendment-related questions about reasonable expectations of privacy and persistent geolocational tracking. Wilkins asked, for example, What is the governments interest in obtaining RID data from a drone operating entirely within ones property?

Ross responded that drones often go beyond the barriers of ones private property and that other drones can also enter ones property and cause safety and security risks. In reply, Walker quipped, It seems a little bit extreme to say you can regulate what someone does with a drone on their own private property because what they do on their own private property might interfere with what a trespasser does.

The next series of questions involved whether or not the FAA is currently tracking drones and triangulating data internally, which Ross conceded is possible.

Ross noted there was no evidence the FAA was actually monitoring drones and a line was drawn, in Karo, between installing a device and tracking someone with it. The judges seemed to indicate that was a distinction without a difference here because the installation of RID technology on a drone allows for persistent tracking, and the FAA created the RID authority so that the government could exercise it.

The argument culminated in this enlightening series:

Walker: I am going to ask you a long question and it will end with What do you want me to do? Assume I think this rule does not violate the rule in 99.9 percent of its applications because although Carpenter and Jones carved out some still narrow exceptions to this general rule, I think there is a general rule that what someone does in public is not private, and most of the time when people fly drones, its in public. Now even say above your own treeline counts as in public. But there may be times where someone might not even leave the walls of their own house and they are flying a drone on their own property below the treeline and that drone and that person cannot be seen by anyone unless someone were to trespass on their property. In that instance, I think your rule is unconstitutional. What do you want me to write in an opinion if I get to write this?

Ross: My understanding is that the rulemaking would have to be done again.

Rupprecht then had three minutes to reattack. He noted that the FAA failed to mention the special needs doctrine in the final rule, which Ross had pitched to salvage the rule, in the rule itself. Quoting the Supreme Courts majority opinion in Motor Vehicle Manufacturers Association v. State Farm Insurance, he noted, Courts may not accept appellant counsels post hoc rationalizations for agency action. He continued, There was a whole lot said trying to rescue this doomed ship, this Fourth Amendment case, but they had the opportunity and they did not bite at that apple.

Whats Next?

A ruling is likely to come sometime in early 2022. Which party will come out on top remains to be seen.

Still, it speaks volumes that the judges pushed the government on the Fourth Amendment for three-quarters of the time allotted for both parties arguments. Perhaps even more telling, the government candidly conceded the FAAs rule falls short on Fourth Amendment accounts in the limited circumstances Walker identified.

At the same time, the panel seemed to be inclined to agree that in 99.9 percent of the cases, the application of remote ID would pass muster. The judges even threw the government a lifeline, suggesting that possible RID carve-outs could be granted for ranchers and backyard flyers. But the government did not back away from its all-or-nothing approach.

Interestingly, the FAA also did not take the position in its briefs or arguments that it did within the actual RID rule: that it deferred to law enforcement and security agencies to abide by the Constitution. Presumably, that would include obtaining a warrant when required. As the case progressed, the agency simply went all-in on a no warrant needed here posture.

Should RDQ prevail, the rule would be vacated. The effect of an order would be a redo of the RID rule. The practical impacts of this would be profound. Law enforcement and national security agencies will have to continue waiting for a valid universal drone identification schema to detect and, as permitted, mitigate drone threats. The commercial drone industry will also take a hit because the FAA incorporated RID as a predicate technological requirement of drone operations over people and a future low-altitude privatized unmanned traffic management system.

It will also be interesting to see how the court will address the avigation issue. In its questioning, the panel seemed to presume that individuals had property and privacy rights below navigable airspace (500 feet above ground level) or, as they said, below the treeline, over ones privately owned property, in certain circumstances. This could have ramifications for government officials desiring to control drones in such areas, as well as for the collection of evidence in such areas with their own drones. As for the commercial drone sector, companies like Amazon that want to overfly someones backyard for their drone delivery service might just have to pay for an avigation easement.

Regardless of the outcome in this case, balancing citizens rights with security, privacy and safety when it comes to drones will remain a tough challenge for years to come.

Read more here:
D.C. Circuit May Blow Up the Remote Identification Rule for Drones - Lawfare