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A jury has awarded more than $2.5 million to a man who sued a Denver police sergeant and the city in 2015 when he was shot in the back and hand while he lay facedown with his hands above his head, after getting caught in the crosshairs of a shootout as an unarmed bystander when an acquaintance he had taken a ride from led police on a chase.

Michael Valdez claimed in a federal lawsuit the city failed to adequately train the officers on reasonable use of force during arrests. A jury on Sept. 23 found Denver liable for a failure to train and found that Sgt. Robert Motyka, Jr. used excessive force in violation of Valdez Fourth Amendment rights.

The verdict includes $131,000 in damages against Motyka whom Valdez sued in his individual capacity and $2.4 million against Denver.

Valdez and his attorneys couldnt immediately be reached for comment Monday.

In January 2013 Valdez accepted a ride in a friends pickup truck. Valdez didnt know the friend and his truck were wanted by Denver police for involvement in an incident earlier in the day, according to the lawsuit. A chase ensued during which shots were fired at officers, and Motyka was hit. The truck eventually crashed, and Valdez and another passenger got out of the car a few minutes later and lay on the ground, the lawsuit says.

Valdez was shot in his back and finger as he tried to shield his head from gunshots, the lawsuit claimed.

The lawsuit said Valdez suffered fractures in his back that left bone fragments in his spinal canal and had to have part of a finger on his left hand amputated. The injuries confined Valdez to a wheelchair for more than a year and he regained only partial use of his legs and feet by the time of the lawsuits filing, according to the complaint.

City attorney spokesperson Jacqulin Davis said in a statement the city is reviewing the case to determine next steps. The officer couldnt participate during the first week of the trial because of COVID restrictions, she wrote in an email.

Officer training is taken seriously in Denver, Davis wrote.

An arrest affidavit issued for Valdez at the time said Motyka received treatment at a hospital for his gunshot wound.

The lawsuit claimed prosecutors filed unsubstantiated charges for attempted murder, assault and first-degree murder against Valdez in two separate cases despite the officers knowing Valdez wasnt involved in the incidents. The lawsuit said Valdez remained in jail in agonizing pain for more than two months, unable to post bond, until prosecutors dismissed the charges on March 19, 2013.

At no time on January 16, 2013, did Mr. Valdez possess a firearm, attempt to shoot anyone, or otherwise attempt to cause bodily injury to anyone. Mr. Valdez was simply an innocent bystander who was a captive passenger in the red Dodge truck, said the lawsuit.

The complaint claimed the city has a long-standing culture of tolerating excessive force by police. It pointed to an incident a few years earlier involving Motyka when officers forcefully entered a home without a warrant and assaulted a father and three sons, later realizing the people they actually were after a pair of brothers who reportedly sold drugs and ran a brothel out of the home had recently moved out of the home, The Denver Post reported.

Members of the family were falsely charged with assaulting officers, the lawsuit brought by Valdez said.

Qusair Mohamedbhai, a civil rights attorney and partner at Rathod Mohamedbhai,represented the family in a lawsuit that resulted in a $1.8 million verdict awarded to them in 2014.

He said the jury's finding of Denver's liability in Valdez' case for failure to train stands out to him because it seems to indicate the jurors believed systemic issues within the police department are a bigger problem than the individual officer's conduct.

"When you keep these kinds of officers who have been now tagged multiple times in federal court by juries, the problem might be the officers, or it sure seems like it's the system that allows them to remain," he said.

Motyka received the Denver Police Department's Medal of Honor for his involvement in the chase, The Denver Post reported in 2015.

But the 10th Circuit Court of Appeals upheld the trial courts denial of qualified immunityfor Motyka which shields government employees from lawsuits absent a violation of clearly established constitutional rights in 2020.

In its denial of qualified immunity for Motyka, the trial court described the injured officer as very angry as well and very eager to get the occupant who shot him. The scattered bullets and Motykas attitude suggested he started shooting without making any effort to determine whether there was any immediate threat to him or others as the occupants of the cab came out.

Court cases are an important part of establishing and clarifying constitutional rights, and in that way, Mohamedbhai said qualified immunity is a tricky concept because it assumes officers are "walking repositories of case law" who approach situations by "scanning their database brains" to understand when qualified immunity will protect them and make decisions about what they should and shouldn't do.

"That's the absurdity of it," he said.

The jury took less than three hours in Valdez' lawsuit to reach its verdict when the members began deliberating on Sept. 23 after a nine-day trial, courtroom notes indicate.

Valdez originally also sued officers Peter Derrick III, Jeff Motz and Karl Roller, but dropped his claims against them in August 2018. The trial court granted qualified immunity to a fifth officer Valdez brought claims against, John MacDonald.

Colorado Politics reporter Michael Karlik contributed to this report.

More:
Man wins $2.5 million verdict in excessive force lawsuit against Denver police sergeant and city - Denver Gazette

In the Summer of 2020, you would have thought that criminal justice and police reform were the most important issues in America. There was even a bipartisan effort in the US Senate to try to find common legislative ground. Oh what a difference a year makes.

Today everything else is more important From Facebook to Kyrsten Sinemas wardrobe choices, from Squid Game to infrastructure. Perhaps this is a clue as to why crime control has historically trumped the rights of defendants, and why it has been so hard to legally and legislatively limit the power of law enforcement.

The dean of UC Berkeleys School of Law, Erwin Chemerinsky author of Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights joins us on this weeks WhoWhatWhy podcast to talk about the legal framework behind criminal justice and police reform, and in addition, to remind us why presidents cannot be above the law.

Chemerinsky details the long history of the courts in virtually ignoring the rights of defendants. Often counter to the Fourth Amendment and to the Constitution itself, it is very rare for the courts, either federal or state, to champion defendants rights.

Chemerinsky explains why it was only the Warren Court, in the early- to mid-60s, that ever made any real effort to protect those rights. For most of our history, things like the right to remain silent (the Miranda warning) and the right of a suspect to have a lawyer and to be protected from illegal search, were not the norm.

However, even after the Warren Court, under both Democratic and Republican presidents, he argues, courts and legislatures have still acted on behalf of criminal control and yet none of it has made us more secure.

Chemerinsky reminds us that, even with our longtime emphasis on crime control over criminal rights, we have only 5 percent of the worlds population and 25 percent of the worlds prisoners.

He chastises his own legal community for ignoring the problem for too long and says that it is only through legislation, on both the state and federal level, that some of these issues can be rectified. Relying on the courts, he says, to protect criminal rights or to hold police accountable has been a fools errand.

Read more:
What the Hell Happened to Police and Criminal Justice Reform? - WhoWhatWhy

Congress is debating a massive reconciliation bill of at least $3.5 trillion (thats trillion, with a T), and a vote is expected soon. To offset the unprecedented spending, the Biden administration and its allies in Congress need to generate offsets, and what they propose puts your privacy and that of Texas small businesses in jeopardy.

Overall, the tax hike provisions of this bill are counterproductive to a resilient economy. One provision is particularly disturbing. The administration has been planning to force your bank, credit union or other financial institution to report annually on all individual and business transactions of $600 or more.

They say they want to use this information to catch wealthy tax cheats. But this is a smokescreen, because even if the wealthiest Americans were taxed at 100%, the revenue would fail to cover this economic albatross. What they really want is to empower the IRS to surveil almost all Americans to generate more tax revenue.

How do we know this is their actual intent? Since the spring, the administration has proposed to monitor all inflows and outflows (transactions). At the $600 level, few Americans would escape the dragnet. It would annually capture information on individuals, such as your credit card payments and even transactions with family and friends.

For small business owners, it would gobble up data on partner and vendor relationships to include anyone who pays you or that you may pay over the aggregate threshold amount.

As the public has become more aware of the scheme, its backers in Congress now say they will raise the dollar amount of the reporting threshold. This is a first step of their strategy to ultimately give the Internal Revenue Service power to monitor the financial information of all Americans.

It is also a Washington negotiation ploy to get moderate politicians to accept the language despite a growing outcry from citizens across the political spectrum. Members of the Texas congressional delegation should not take the bait.

Beyond paying for profligate spending, this proposal tramples on the rights of law-abiding citizens regardless of the threshold that may be set. The Fourth Amendment of the Constitution exists to protect Americans from precisely this kind of government surveillance:

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.

Such a voluminous IRS data grab without probable cause means that American citizens are to be presumed tax cheats by the IRS until eventually proven otherwise by bureaucrats. Keeping your tax records for seven years? Forget about it. The same IRS that has previously leaked confidential taxpayer information will have this information forever.

So where do you stand? For Republicans, do you trust President Joe Bidens IRS to use this information appropriately? Conversely for Democrats, would you trust Donald Trump or another Republican president with this power? Opposing this measure should unite Democrats, Republicans and independents.

Financial data contains some of the most personal information about our lives and livelihoods. This is why criminals try to steal it for their own financial benefit. Now our federal government which is supposed to protect our rights wants in on the action, too.

Texas banks value the privacy of our customers, and we are strongly opposed to this proposal. Community banks should not be forced to become de facto IRS reporting agents.

If we dont convince Congress to reject this provision immediately, the IRS will certainly be watching your family and business.

Chris Furlow is chief executive of the Texas Bankers Association. He wrote this column for The Dallas Morning News.

Find the full opinion section here. Got an opinion about this issue? Send a letter to the editor and you just might get published.

Read the rest here:
Will Congress enable the IRS to spy on you? - The Dallas Morning News

from the searching-the-searchers dept

Not only is the government using "reverse warrants" to rummage around in your Google stuff, it's also using "keyword warrants" to cast about blindly for potential suspects.

Reverse warrants (a.k.a. geofence warrants) allow the government (when allowed by courts) to work its way backwards from a bulk collection of data to potential suspects by gathering info on all phone users in the area of a suspected crime. The only probable cause supporting these searches is the pretty damn good probability Google (and others but mostly Google) have gathered location data that can be tied to phones. Once a plausible needle is pulled from the haystack, the cops go back to Google, demanding identifying data linked to the phone.

This search method mirrors another method that's probably used far more often than it's been exposed. As Thomas Brewster reports for Forbes, an accidentally unsealed warrant shows investigators are seeking bulk info on Google users using nothing more than search terms they think might be related to criminal acts.

In 2019, federal investigators in Wisconsin were hunting men they believed had participated in the trafficking and sexual abuse of a minor. She had gone missing that year but had emerged claiming to have been kidnapped and sexually assaulted, according to a search warrant reviewed by Forbes. In an attempt to chase down the perpetrators, investigators turned to Google, asking the tech giant to provide information on anyone who had searched for the victims name, two spellings of her mothers name and her address over 16 days across the year. After being asked to provide all relevant Google accounts and IP addresses of those who made the searches, Google responded with data in mid-2020, though the court documents do not reveal how many users had their data sent to the government.

This isn't the first time this form of warrant has been used to acquire data that might lead police to suspects. In 2017, public records enthusiast Tony Webster reported that police in Minnesota had used the same technique to attempt to work their way backwards to a fraud suspect. In that case, investigators served Google with a subpoena for data on everyone who had searched for the identity fraud victim's name. When Google refused to grant this request, the police approached a judge for permission to ask Yahoo and Bing the same question. This request was granted.

The same method was reported on again in 2020, when investigators used a keyword warrant to look for people who had searched the address of an arson victim. In this case, Google complied, returning only a single result relevant to the time, place, and search terms -- one that led police to a suspect with some pretty suspicious location data.

But these are not the only examples. And the broad search attempted here isn't even the broadest keyword search seen in court documents. Shortly after publication, the EFF arrived with an update:

After publication, Jennifer Lynch, surveillance litigation director at the Electronic Frontier Foundation (EFF), highlighted three other Google keyword warrants that were used in the investigation into serial Austin bombings in 2018, which resulted in the deaths of two people.

Not widely discussed at the time, the orders appear even broader than the one above, asking for IP addresses and Google account information of individuals who searched for various addresses and some terms associated with bomb making, such as low explosives and pipe bomb. Similar orders were served on Microsoft and Yahoo for their respective search engines.

As is the case in any warrant that has the word "reverse" appended to it (even colloquially), there are Fourth Amendment concerns. Casting a wide net to catch all possibilities before working backwards to a suspect may sound like canvassing a neighborhood after a crime, but the comparison is pretty weak. The wider the net, the higher the chance of arresting the wrong person. Unlike talking to people near a crime scene, reverse warrants dispense with alibis, investigators' intuition, and other efforts that reduce the chance of bagging the wrong suspect. And the demand for data makes everyone a suspect -- something analogous to hauling everyone in the area back to the police station for questioning. The data heads to the police who then try to make sense of the bulk collection.

Probable cause doesn't work that way. Just because it's a safe assumption Google has gathered data relevant to the investigation does not justify demanding all relevant information, regardless of its actual link to the crime being investigated. The sealing of warrants like these isn't just to protect the integrity of the investigation or to prevent suspects from being alerted. It's safe to say law enforcement is aware the public (and their often-unaware oversight) will take a dim view of these fishing expeditions. And the more often they're exposed, the more often suspects tracked down using these searches will challenge them.

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Filed Under: 4th amendment, keyword warrants, reverse warrants, search resultsCompanies: google

More here:
Accidentally Unsealed Document Shows Feds Are Using Reverse Warrants To Demand Info On Google Searches - Techdirt

(artstreet/Getty Images)

At the Bulwark, Jim Swift writes:

As the Wall Street Journal has reported, one idea that the White House and congressional Democrats have proposed for closing the tax gap involves giving the IRS the ability to get more data about bank accounts with a value over $600specifically to see the amounts of money flowing in and out.

After dismissing a cherry-picked set of criticisms and ignoring that, thus far at least, even Democrats in the House have rejected this proposal Swift concludes that:

What the Democrats want to do is give the IRS more knowledge about where and how money flows. As the IRS commissioner wrote last month, more and better data will provide the IRS with a lens into otherwise opaque sources of income with historically lower levels of reporting accuracy. In opposing this measure, Republicans claim they are standing up for privacy and for people who dont yet have bank accounts but hypothetically might somedaybut they are really covering for tax cheats.

Ah, yes. That old chestnut! Favor restrictions on government power? Youre not just wrong; you must be a wannabe criminal.

Swifts view has a long pedigree in unthinking and reactionary circles, being of a piece with the notion that if you expect the Fourth Amendment to be rigorously enforced you have something to hide, or that if you plead the Fifth in a courtroom you must be guilty, or that if you hope to uphold the First Amendment so that you can speak as freely as you wish, youre probably just a bigot. There is, in fact, no area to which it cannot be stupidly applied.

It is true, of course, that limiting government power sometimes helps bad actors. But it is rarely true that helping bad actors is the aim of those who wish to limit government. Supporters of the exclusionary rule are not motivated by a desire to help the guilty, but to raise the cost of government malfeasance. Advocates of robust mens rea requirements are not motivated by a desire to make prosecutors jobs more difficult, but by a desire to limit punishment to those who knew they were breaking the rules. Proponents of unanimous juries are not seeking to let malefactors go free, but to ensure that the harshest sanctions our society imposes are levied only when it is sure. The ACLU did not defend the marchers at Skokie because it hoped to hear more from neo-Nazis; the ACLU defended the marchers at Skokie because it did not want the government to have the power to silence anyone.

There is nothing at all unusual or pernicious about the pro-privacy stance that has upset Swift. Right or wrong, it is about as American as stances get. The IRS has an enormous amount of power, and, especially given some of its recent behavior, it is entirely natural for Americans to oppose expanding that power so that it is permitted to monitor every bank account in the country. That Jim Swifts first reaction upon hearing that there was opposition to this absurd proposal was to call its opponents tax cheats speaks volumes about him as well as about what, at this point, might only charitably be described as his political worldview.

Continue reading here:
No, You Dont Have to Be a Criminal to Want to Limit Government - National Review