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Members of the new search warrant task force convened by Kentucky Attorney General Daniel Cameron say they will likely look at the judicial review of warrants, among other things.The task force members were announced Thursday and their first meeting is expected to be announced in the coming days."What I'd like to do is find out what factors in the decision-making process by the judiciary, our gatekeepers," said Ramon McGee, a defense attorney from Louisville.Cameron announced the task force in January, as state lawmakers were considering new limits on no-knock search warrants, which they ultimately passed.Related: AG Daniel Cameron assembles task force to review Kentucky's search warrant processThe scrutiny comes after the death of Breonna Taylor, who died while LMPD officers were serving a no-knock search warrant. Subsequent investigations have focused on the propriety of the search warrant and the disproportionate number of them served in Black communities."If we can see how that process works, what judges are being told, how they factor that in deciding whether to grant a warrant, then I think we can make some real improvements in the process," McGee said.Some public criticism has already surfaced on the lack of minority representation on the task force. Three members of the 18 members are black, including McGree, UK's Vice President for Institutional Diversity George Wright and former Metro Council member Denise Bentley."I've received some personal emails asking why there's not more minorities on this particular task force and I've served on many task forces over the years," Bentley said. "The design was left up to the attorney general and I respect that, but I want to make sure people that contact me know I believe in transparency and even though there's not a broad representation of minorities on this task force, any issues, concerns or questions that the minority community has, feel free to filter them to me because I will be the voice."Only four of the members are based in Louisville, but Bullitt County Sheriff Walt Sholar said the issue affects the entire state. Sholar, a former prosecutor, said he is ready to "open any doors" while serving on the task force."We don't want to put stumbling blocks in front of law enforcement," he said. "But by the same token, we have to bear in mind both the Kentucky Constitution and the fourth amendment of the U.S. Constitution that people are entitled to be secure in their persons, homes and papers."

Members of the new search warrant task force convened by Kentucky Attorney General Daniel Cameron say they will likely look at the judicial review of warrants, among other things.

The task force members were announced Thursday and their first meeting is expected to be announced in the coming days.

"What I'd like to do is find out what factors in the decision-making process by the judiciary, our gatekeepers," said Ramon McGee, a defense attorney from Louisville.

Cameron announced the task force in January, as state lawmakers were considering new limits on no-knock search warrants, which they ultimately passed.

Related: AG Daniel Cameron assembles task force to review Kentucky's search warrant process

The scrutiny comes after the death of Breonna Taylor, who died while LMPD officers were serving a no-knock search warrant. Subsequent investigations have focused on the propriety of the search warrant and the disproportionate number of them served in Black communities.

"If we can see how that process works, what judges are being told, how they factor that in deciding whether to grant a warrant, then I think we can make some real improvements in the process," McGee said.

Some public criticism has already surfaced on the lack of minority representation on the task force. Three members of the 18 members are black, including McGree, UK's Vice President for Institutional Diversity George Wright and former Metro Council member Denise Bentley.

"I've received some personal emails asking why there's not more minorities on this particular task force and I've served on many task forces over the years," Bentley said. "The design was left up to the attorney general and I respect that, but I want to make sure people that contact me know I believe in transparency and even though there's not a broad representation of minorities on this task force, any issues, concerns or questions that the minority community has, feel free to filter them to me because I will be the voice."

Only four of the members are based in Louisville, but Bullitt County Sheriff Walt Sholar said the issue affects the entire state. Sholar, a former prosecutor, said he is ready to "open any doors" while serving on the task force.

"We don't want to put stumbling blocks in front of law enforcement," he said. "But by the same token, we have to bear in mind both the Kentucky Constitution and the fourth amendment of the U.S. Constitution that people are entitled to be secure in their persons, homes and papers."

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Kentucky's new search warrant task force will likely focus on judiciary review, among other things - WLKY Louisville

A grandfather who called police in 2019 alleging his granddaughters boyfriend threatened them with a weapon has filed a lawsuit against the Fayetteville Police Department after a police officer slammed him to the ground, knocking him unconscious, according to a civil complaint filed Thursday in Cumberland County Superior Court.

Robert Edwards, 66, suffered a concussion, brain bleed and contusions in the March 4, 2019, incident outside his Topeka Street home, his attorney Michael Porter said.

It was whileEdwards argued with the boyfriend that Officer Patrick Guilette placed Edwards hands behind his back and swept his legs from beneath him, taking Edwards to the ground, the complaint alleges.

When Edwards fell, his head struck the asphalt and he lost consciousness, body camera video of the altercation provided by Edwards' attorneys Thursday shows.

Its our legal opinion that he had no excuse to leg sweep him, said attorneyMichael Porter.

Porter and attorney Drew Dempster filed the lawsuit on behalf of Edwards.

"We believe, as stated in the complaint, that the officer used inappropriate and excessive force in violation of our client's civil rights.

Moreover, Porter continued, the city has condoned this conduct because to our knowledge this officer has not been reprimanded and they have refused to do right by Mr. Edwards."

Story continues below

After Edwards was taken from the scene to the hospital and released, he was booked into the Cumberland County jail on a charge of obstructing an officer. The charge was later dropped by the Cumberland County District Attorneys Office.

Porter said that before filingthe lawsuit he sent a demand letter to the city in June 2020 asking that Edwards be compensated $390,000. His hospital bills were in excess of $33,000.

The demand and subsequent lawsuit allege that Guilette committed common law battery against Edwards; that the officer and the city violated Edwards' Fourth Amendment right to be free from unreasonable search and seizure; that the officer and the city committed malicious prosecution against Edwards; and that he was falsely imprisoned.

In a response from city attorney Karen McDonald in December on behalf of the City Council and shared by Porter with the Observer McDonald said the council met in closed session and viewed the bodycam footage as well as a demand letter for $390,000 from Edwards.

After thoughtful review and discussion, the Council did not express any interest in settling this matter or making a counteroffer, McDonald wrote.

Use of force:Police are fueling outrage over Andrew Brown Jr.s death by withholding information, experts say

In a revised demand letter sent Wednesday to the city that included copies of Edwards medical treatment and billing along with information gleaned from a use-of-force expert retained by the defense, Porter concluded:

A paradigm shift is occurring in the country in regards to citizens no longer ignoring the misconduct of law enforcement, particularly in regards to their interactions with persons of color like Mr. Edwards, he wrote. "If a settlement cannot be reached, we will hold a press conference when we file our civil action, and we will issue a press release along with copies of the video footage, the medical records, medical bills and City's response to our demands."

McDonalds brief response Thursday to the amended demand noted she had notified the council of the revised demand, medical bills and that the defense had enlisted the help of a use-of-force expert.

"The City Council has not authorized a counteroffer at this time."

Sgt. Jeremy Glass, a spokesman for the Fayetteville Police Department, said in a statement Thursday afternoon that the department is aware of the lawsuit.

There is body camera footage of the incident which includes the events leading up to Mr. Edwardss arrest, he said. In anticipation of potential litigation a use of force expert also reviewed the footage and determined that the actions of Officer Guilette were appropriate and reasonable under the circumstances and that Officer Guilette used the least amount of effective force to control the situation, he said. The City intends to vigorously defend the lawsuit.

Watch: Body cam video released in alleged Fayetteville police brutality

The City of Fayetteville and one of its police officers are facing a lawsuit alleging excessive force against Robert Edwards, an elderly Black man.

Body Camera Footage, Fayetteville PD

The body camera footage, released by order of Cumberland County Superior Court Judge Mary Ann Tally in December. shows the events leading up to Edwards injury.

Police were called to the Fayetteville home about 2 p.m. for a dispute between Edwards granddaughter and her ex-boyfriend, Porter said.

In the video, the granddaughter explains that her ex-boyfriend hit her car with his car.

Officer Erin Scullion responded first to the scene and Guilette arrived as backup.

Prior to Guilettes arrival, video from Scullions bodycamshows that Edwards asks at least twice that the boyfriend be arrested, before he swings at the younger man and the two fall to the ground.

When Scullion threatens to use a stun gun, the younger man holds his hands out saying he was attacked.

By the time Guilette arrived, the two men had stopped scuffling and Edwards went back into his home.

The video from Guilettes body camera shows his arrival at the scene.

Policing in America:Service file reveals commendations, reprimands for ex-police officer in Daunte Wright shooting death

The moment he steps from the vehicle and approaches Scullion he asks, Who'sgoing to jail, as the boyfriend excitedly says he was just trying to leave.

The grandfather assaulted him, Scullion says pointing toward the house as Edwards emerges from the front door.

This man threatened us with a gun, Edwards yells, walking directly toward Guilette.

We need some help, he says. "This man threatened me with a gun."

"I didn't threaten you, the boyfriend responds, and Edwards spins around toward him and yells, You told me you had a gun in the car!

The two men are within feet of each other.

When the boyfriend moves, Edwards flinches and throws his hands up as if to block an expected blow.

Guilette then pulls Edwards away from the younger man, telling him to go stand near his yard.

The two are separated momentarily until Edwards comes back toward the younger man asking if he thinks hes a punk.

Guilettes bodycam then shows Guilette pulling Edwards' relaxed arms behind his back. Within moments, both men are on the ground. Edwards is unconscious.

Are you crazy he's 74 goddamn years old! You done lost your damn mind," the granddaughter screams, mistaking her grandfather's age, as she rushes to his side.

Scullion pulls the 20-year-old woman off her unconscious grandfather as he lies motionless and face down in the street.

Black lives matter! the granddaughter screams several times, her voice cracking with emotion.

Guilette cuffs Edwards while repeating, "Sir," as if to wake him. "Sir, you OK?"

The officer then stands up and through his shoulder radio asks dispatch to send an ambulance.

He again tries to wake Edwards, who's audibly snoring.

A voice off-camera asks, "Can I get your name and your badge number? I need your name and badge number. We called for help," as the granddaughter again crouches on the ground next to her grandfather crying, "Granddaddy, are you OK?"

When Guilette puts his hand on Edwards back, the young woman swats it away.

"Get off of him! she yells, then falls back onto the street crying Oh my God, he's all I got left!"

After Scullion intervenes and pulls the young woman off Edwards, Guilette rolls him onto his side, again calling out "Sir," and asking, "You OK, sir? Can you talk to me? Can you talk to me, sir?"

In the background, the granddaughter is heard yelling.

"This is what the white cops do to you. This is why you don't call the police. My granddaddy just got knocked out cold because I called the police ..." she cries.

After uncuffing Edwards and rolling him over, Guilette begins to rub on his sternum. Edwards appears to be regaining consciousness.

"What's his name, sweetheart," Guilette asks, to which the girl replies angrily, You did this!

After a little more than two minutes of unresponsiveness, Edwards starts to raise his head as the officers ask his name.

More than two minutes later he mumbles his name.

Seeing this, his granddaughter walks toward him.

"Granddaddy, let's go in the house. Please get up so we can just leave them out here she says.

Guilette tells her an ambulance is coming.

"He could be injured," the officer says.

"You did this," the young woman yells.

"You're right because he wasn't listening, ma'am, Guilette replies.

Eventually, the granddaughter pulls her grandfather to his feet. He is unsteady and Guilette holds onto his arm.

When the woman continues to try to get Edwards to go inside, Guilette says, "Ma'am, we're not done."

A third officer approaches and walks out of frame.

Moments later, as Guilette urges Edwards to walk over to his patrol car to lean on it, the camera catches a glimpse of the granddaughter on the ground and an officer placing her in handcuffs.

At his patrol car, Guilette is asking Edwards questions like what day, month or year it is. Edwards cant answer the questions. He appears confused.

"Can I go in the house and sit down?" Edward asks.

We're gonna hang out 'cause I got an ambulance coming. I got an ambulance coming to check you out cause you hit your head pretty hard, Guilette responds. I put you on the ground because you weren't listening, you were trying to fight the other young man on the street.

No, not me ...When? a dazed Edwards asks.

"Y'all was about to fight in the street, sir, and you weren't listening when I tried to telling you to go back into your yard," Guilette says.

Edwards asks if he can lay down, but Guilette tells him no, that he should stand because he hit his head.

"Can I lay down?" Edwards asks again.

Guilette repeats that Edwards hit his head and EMS is coming.

"I hit my head?" Edwards said, then asks again if he can lay down.

You hit your head pretty hard when I put you on the ground. I wouldn't lay down right now, OK. I wanna wait 'til the ambulance gets here and checks you out, Guilette says.

You put me on the ground? Edwards says.

You came out here trying to fight him and I told you to stop and you didn't stop, Guilette says.

Not me, the unsteady Edwards replies as he leans against the patrol car.

You did, which I get it. It was emotional, I get it. You were just protecting your granddaughter. But you can't do that. When I tell you to stop, you gotta stop.

"Can I lay down?" Edward asks yet again.

Toward the end of the video, Edwards hold his stomach and says he has to vomit.

Porter on Thursday noted that is a symptom of a concussion.

Edwards was treated at the hospital and released, only to be booked into jail on the obstruction charge. Ultimately, the charge was dismissed. His granddaughter was not charged, despite being placed in handcuffs.

The following day, Porter said, an ambulance was called to Edwards' home and he was taken to the emergency room.

Doctors diagnosed him with a brain bleed, contusion on the brain and concussion. The brain bleed had been missed the day prior, Porter said. Edwards also sustained scrapes and abrasions on his face, shoulder and arms, Porter said.

Robert Edwards was born and raised in Fayetteville, he said Thursday during a three-way call with the Observer that included his attorney Porter.

Edwards recalls, as a Black man, being treated badly by law enforcement in the 1960s, specifically naming the officer who he said beat him.

But we was used to taking an ass-whooping back then, Edwards chuckled, his voice metered and gravely, sounding older than his 66 years.

It would be the only chuckle that would tumble from Edwards as he recounted, sometimes tearfully, what happened on that day two years ago when Gods will helped him survive.

He remembers that his granddaughter first called police after her boyfriend hit her car with his.

He remembers calling police himself after Officer Scullion arrived and she seemed unable to control the situation alone.

He said he next remembers waking up on the ground.

When my granddaughter tried to pick me up, I kept saying to myself, How did I get in the road, did a car hit me?

He hasnt watched the full body camera footage, he admits. Porter said when Edwards tried, he became emotional and had to walk out.

The thought of what happened to him something he can only imagine because the memory is gone makes his voice catch in his throat.

I never expected nothing to happen like this. I could see if I was in a bar where somebody was drunk and hanging out, but not at my house, he said.

Originally posted here:
'I didn't deserve it': Grandfather sues Fayetteville police officer, city alleging excessive use of force - The Fayetteville Observer

SALT LAKE CITY A Salt Lake City bar is being bombarded with angry phone calls, because the bar is going to require customers be vaccinated to get in the door.

While irate callers claim it's against the law, HIPAA, and the constitution, The Bayou owners said it's legal and they're doing it to keep people safe.

After more than a year with the front door closed, the inside empty, and curbside pickup only, The Bayou is ready to reopen and welcome customers back.

On Thursday, Mark Alston answered the phone at The Bayou, taking to-go orders. One woman called to say she was outside and ready to pick her order up.

"Yep, I got it right here," he said, lifting up a green plastic bag filled with a few containers. He set the bag on a table outside, for the customer to grab. It's how Alston and his wife Kileen Alston have been serving people since March of 2020.

But in less than a week, The Bayou will once again allow customers to sit at its tables.

Sitting down at a computer stationed at the bar, Alston pulled up Facebook messages they've received of support at the reopening announcement.

"'Can't wait!'" He said, reading a message. He clicked on another and kept reading. "'Excitement! Yes!'" things like that. 'Be right there!'"

Others have been calling The Bayou. Alston answered the phone, wondering if it was a takeout order.

It wasn't.

"To hell with you guys, then. This is ridiculous." a woman said to Alston. "We'll miss you I guess you--" Alston began to reply, before the woman interrupted with, "This is ridiculous."

Alston then said, "I guess you've been a customer for a while, and we're really going to miss your..." The woman continued, "Yeah, Yeah. I bet you are. Me and hundreds of other people. You have no right to demand that. This is America. It's sickening."

The woman was one of dozens to call The Bayou since their Wednesday announcement, to say they're disgusted that The Bayou announced patrons must show a COVID-19 vaccination card in addition to an ID to get in. Alston explained people can show a physical card or a picture of one.

He said it's not a health decision he wanted to make, but with mandates expiring and vaccinations on the rise, Alston explained he felt it was a necessary one.

"This is our requirement to keep everybody safe, because we have to make those decisions," he said.

Because people can't wear masks while eating and drinking, Alston talked about how he feels it's impossible to keep people safe at his bar. He is worried about the safety of himself and his wife, his staff, and his patrons.

One of the musicians who used to play at The Bayou before they shut down in March 2020 contracted COVID-19 last summer and passed away, Alston said. Alston described how the pianist's loss was completely preventable.

He wants to make sure everyone at his restaurant is protected against COVID-19 if they aren't going to be wearing masks.

"We are following what the CDC guidelines are," he said. "It's absolutely crystal clear. When you are fully vaccinated, hang out with other people who are fully vaccinated without your masks on, eating/drinking-- you're totally fine. If you're hanging out with people who aren't fully vaccinated, keep the mask on."

He said most of his regular customers have backed his decision, writing to express that they're on board.

But it hasn't stopped people who Alston strongly suspects have never eaten at or heard of The Bayou, from calling to sound off. People have also been writing false negative reviews on Yelp, he said.

"We have been called communists, we have been compared to running an Auschwitz camp in Nazi Germany," he said.

One woman called, getting louder and angrier as she spoke.

"This goes against the Fourth Amendment of the Constitution of the United States of America!" she exclaimed. "Hmmm," Alston replied, listening.

She told Alston she called the health department and claimed that they told her it was against HIPAA laws. She also said that people will be "taking signatures" against his business.

"That is not a f***ing law. I will never feed into this propaganda, V for Vendetta type bullsh**," she said. "V for Vendetta?" Alston asked. "Take the red tape off your eyes, sir," she continued. "Red tape? What is red tape?" Alston asked. "Red tape means propaganda, sir. Wake the f*** up. I hope your business tanks after this."

Alston tried to explain at one point that he is not violating any HIPAA laws, and that he is legally allowed to ask to see the vaccination card because it's not considered medical information.

"This is disgusting that you are going to require a citizen of the United States of America to show you a slice of paper in order for them to dine in your restaurant," the caller said. "Do you not feel that that is pro-segregation and discrimination?!"

The woman then said Alston is discriminating against her and that it's an equality law. She eventually hangs up on him after several minutes of them talking back-and-forth.

The Salt Lake County Health Department confirmed to Fox 13 Thursday that they haven't received any complaints about The Bayou, unlike what the caller claimed. They also said that this is not within their realm, and that they are not advising businesses on what to do or not do with vaccination cards.

According to the CDC, HIPAA laws only apply to healthcare-related organizations, and the laws are to prevent patient information from being shared without the patient's consent or knowledge.

It's also important to note that the Fourth Amendment has to do with search and seizure by law enforcement.

Alston sat down at his computer again.

"Ahhhhhh!" he sighed, rubbing his face. "I think when I was researching just to make sure we weren't actually going to be violating any laws-- which we aren't. You try to find out something, all the legal pages and all the information is like, businesses can do this but no one has done it."

To his knowledge, Alston said he's the first business to require something like this. But according to all his research, he's able to ask for proof of the card.

For anyone not vaccinated, Alston will still be offering curbside. He also said he understands that some people can't get the vaccine because of medical reasons or religious reasons, and he's coming up with accomodations for those people.

For The Bayou, this is how they want to get back to normal. Alston said he won't be requiring masks or social distancing in his bar and restaurant.

It's just that vaccination card, that he wants to see.

Originally posted here:
Utah bar bombarded with angry calls after requiring vaccine to dine in - fox13now.com

BOSTON The state's Supreme Judicial Court on Monday heard its first arguments in a case concerninga New Bedford man and the New Bedford Police Department's use of a gang list.

ZahkuanBailey-Sweeting is alleging his Fourth Amendment rights were violated during a traffic stop in February 2018 in which he was a passenger.

Police stopped a car after it unsafely changed lanes. During the stop, three New Bedford police officers from the gang unit frisked all four passengers and found Bailey-Sweeting, then 18 years old, in possession of a large capacity firearm without a license.

Under the law, police can only frisk someone if they have reasonable suspicion, under articulable facts, thatthe person is both armed and dangerous.

In a court brief, Elaine Fronhofer,Bailey-Sweeting's attorney, arguesNew Bedford police officers acted on a "hunch" to unlawfully search him after the front seat passenger, Raekwan Paris, beganactinguncharacteristically (the officers testifiedhe had been calm and compliant during previous stops).

Their "hunch" was thatParis, who they identified as a gang member and knew to have a previous firearm offense,was acting this way to distract them from something in the car,Fronhofer said. As a result of the officers' inferences, Bailey-Sweeting, who was sitting in the back seat quietly, was frisked, she said.

Bristol County Assistant District Attorney Shoshana Stern, who is representing the state,said a totality of factors, including the officers' identification of Bailey-Sweeting as a gang member and his three-year-oldfirearm offense as a juvenile, led them to reasonably infer he could be armed and dangerous.

When Supreme Judicial Court Justice Scott Kafker asked if the officers would have frisked Bailey-Sweeting without thegang identification and just the previous firearm offense, Stern said the gang membership was a "plus factor" among the other factors.

In her brief, she arguesgang membership alone does not provide reasonable suspicion, but is a "part of the totality of the circumstances the police confront and must assess."

Fronhofer arguesthe Appeals Court and police relied too much on this gang designation, which she said is unreliable and racially biased.

"This case marks a significant erosion of protections citizens have had in dealing with police," Fronhofer said during Monday's argument. "The Appeals Court decision, rather than putting curbs on how this gang categorization label is used, actually expands it, it really opens the gate."

She said the Appeals Court, whichruled in favor of the state, used the gang categorization of Bailey-Sweeting to "bridge any and all gaps" in the evidence needed to reach the conclusion that the officers had reasonable suspicion thathe was armed and dangerous.

While Bailey-Sweeting confirmed on arrest that he was a member of the Bloods gang,Fronhofer argues the officers had no previous evidence the defendant had ever committed any crime in relation to that gang, and that during the stop he never acted in a way that suggested he was armed or dangerous, per officer testimony.

She also arguesgang membership needs to be reliable and relevant to the case. According to court documents, the stop was made due to an unsafe lane change unrelated to gang activity as the four passengers headedto Kentucky Fried Chicken.

The New Bedford Police Department uses a point system to determine whether someone is a gang member. Criteria have different points ascribed to them but if an individual scores at least 10 points, then the department considers them a gang member.

Advocates have argued the system is subjective and arbitrary.For example, Fronhofer noted that in Boston, Bailey-Sweeting might not have earned enough points to be considereda gang member.In New Bedford, appearing in a group-related photograph earns an individual four points; in Boston, it only counts for two points.

Bailey-Sweeting previouslyreceived 10 points for appearing in a photo with a group of Bloods members, wearing a red bandana and makingBloods hand gestures, according to Fronhofer's brief.

Fronhofer in her argument also cited the recent Citizens for Juvenile Justice report, which published data last monthon the New Bedford Police Departmentgang list.

'We are the Prey' report:New Bedford over-policing Black youth, certain areas of city

Based on department data,Citizens for Juvenile Justice found Black and Hispanic men were more likely to appear on the department's ganglist.The organization calledthe department'smethods for identifying gang members subjective and criticizedthe lack of due process forindividuals to challenge their inclusion.

Being identified as a gang member can have significant repercussions including higher bails, lengthened sentences and possible deportation, advocates say, which can become especially problematic if a person is wrongfully included.

A spokesperson for the New Bedford Police Department said they do not have a policy that allows people on the list to appeal their inclusion on the list, nor do they notify people that they have been put on the list.

During the oral arguments, the justices tried to get a sense of how much Bailey-Sweeting's firearm history as a juvenile and his designation as a gang member factored into the officers' decision to frisk.

"I think we're all concerned with: where's the line?" Justice Serge Georges Jr. said. "Where is it localized to Mr. Bailey-Sweeting and what he was doing or not doing in terms of the justification for the pat frisk?"

Stern said the central issue in this case is determining what is a reasonable suspicion versus a hunch. She saidit's up to people whether or not they "buy" the officers' inference that Paris was trying to distract them from something in the car.

"But how do you make that leap?" Chief Justice Kimberly Budd said in response. "He could be trying to distract from something in the trunk, he could be trying to distract from something in the glove box... Even if Paris is acting unusual... how do you get to [Bailey-Sweeting]?"

Stern arguesthat if he was trying to distract from something in the car, it could be thepeople; regarding the people in the car, Bailey-Sweeting had a firearm history and was a gang member according to the department's criteria and officer knowledge.

Kafker asked Stern how the state should look at validation of gang membership and whether it was "good enough" in this case. Stern said it is a conversation worth having, but not necessarily in regards to this case.

Eight organizations filed a joint brief in support of Bailey-Sweeting, including Citizens for Juvenile Justice and the American Civil Liberties Union.

They argue the gang designation has "devastating consequences" and serves as a "workaround" to the reasonable suspicion needed to frisk, viewing it as a label instead of an articulable fact.

"Because he had been labeled a gang member, a young Black man could not sit in the backseat of a car during a traffic stop without suffering the indignity of the police invasively touching his body," their brief states.

They, like Fronhofer, argue Paris was upset and not acting "calm" in the way officers previously found him because he felt repeatedly targeted and harassed by police.

"[Bailey-Sweeting] was patfrisked based not on his own actions but those of the front-seat passenger, Raekwan Paris, whose reasonable reaction to police targeting was pathologized and criminalized," the organizations state.

According to Stern's brief and oral argument, the officers would not have removed or frisked any of the passengers if Paris had not acted that way, even though they identified Bailey-Sweeting as a gang member.

The organizations state the courts should not uncritically defer to police judgments about the significance of gang affiliations or use such affiliations to "cloud" the circumstances of a search.They urged the Supreme Judicial Court to provide clear instructions to lower courts about the weight that should be given to gang membership when considering reasonable suspicion.

Stern, on behalf of the state, is asking the court to affirm Bailey-Sweeting's conviction. Fronhofer and the many nonprofit organizations are requesting the court reverse his conviction.

The rest is here:
SJC reviewing case involving New Bedford police and department's use of gang list - SouthCoastToday.com

In a 5-3 decision authored by Chief Justice Roberts, the U.S. Supreme Court ruled in Torres v. Madrid that a woman who was shot while fleeing from police officers was seized, even though she remained at large.

Two police officers saw the petitioner, Roxanne Torres, standing with another person near a car in the parking lot of an apartment complex. As the officers approached the vehicle, the companion departed and Torres got into the drivers seat. At the time, Torres was tripping out bad on methamphetamine. The officers tried to speak with her, but she did not notice their presence until one of them tried to open her car door.

Each of the officers wore tactical vests with police identification. Torres claims she saw only that they had guns. She thought the officers were carjackers and hit the gas to escape them. The officers drew their service pistols and fired thirteen shots as Torres sped off; whether she drove toward them, endangering their safety, is in dispute. Two of the bullets struck Torres; the others hit her car. But Torres kept driving over a curb, across some landscaping, and into a street, eventually colliding with another vehicle. She abandoned her car and stole another one that happened to be idling nearby. She then drove seventy-five miles to Grants, New Mexico.

The hospital in Grants was able to airlift Torres to another hospital where she could receive proper medical treatment. Unfortunately for Torres, the hospital was back in Albuquerque, where the police arrested her the next day. She pleaded no contest to aggravated fleeing from a law enforcement officer, assault on a peace officer, and unlawfully taking a motor vehicle.

Two years later, she sued the officers for damages under 42 U.S.C. 1983. She claimed the officers used excessive force, making the shooting an unreasonable seizure under the Fourth Amendment. The federal district court granted summary judgment to the officers, and the Tenth Circuit Court of Appeals affirmed, holding a suspects continued flight after being shot by police negates a Fourth Amendment excessive-force claim. To reach its decision, the Tenth Circuit relied on precedent providing no seizure can occur unless there is physical touch or a show of authority, and such physical touch or force must terminate the suspects movement or otherwise give rise to physical control over the suspect.

The Supreme Court reversed, holding the application of physical force to the body of a person with the intent to restrain is a seizure, even if the person does not submit and is not subdued.

Does any application of force constitute a seizure?

The majority emphasized the application of physical force, standing alone, does not constitute a seizure. A seizure requires the use of force with intent to restrain, as opposed to force applied by accident or for some other purpose. The test remains an objective one: whether the challenged conduct, i.e., the application of force, objectively manifests an intent to restrain. The subjective motivations of the officer, or the subjective perception of the suspect, are not determinative.

How long does the seizure last?

A seizure is a single act, not a continuous one. If the subject does not submit, a seizure by force lasts only as long as the application of force. That means the officers seized Torres for the instant that the bullets struck her.

What about the bullets that missed Torres?

If the rule articulated by the majority requires the application of force even a mere touch to the body of a person, a shot that misses its target fails to satisfy a necessary condition. This artificial distinction in Fourth Amendment protection drew criticism from the dissent: A fleeing suspect briefly touched by pursuing officers may have a claim. But a suspect who evades a hail of bullets unscathed . . . is out of luck.

How did the Justices rule?

Chief Justice Roberts authored the majority opinion, joined by Justices Breyer, Sotomayor, Kagan, and Kavanaugh. To reach its decision, the majority relied on two sources of constitutional interpretation: text and history.

The Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. As the Court recognized in prior cases, [t]he word seizure readily bears the meaning of a laying on of hands or application of physical force to restrain movement,even when it is ultimately unsuccessful. At the time the Fourth Amendment was adopted, as now, an ordinary user of the English language could say, She seized the purse-snatcher, but he broke out of her grasp.

The majority also examined the common law of arrest, through which the mere touch rule developed. That is, a corporeal touch is sufficient to constitute an arrest, even though the subject does not submit. There is no common law authority addressing an arrest through the application of force from a distance, though. The closest decision identified by the majority was a debt collection case from 1605. In that case, the serjeants-at-mace tracked down a debtor, shewed her their mace, and touching her body with it, said to her, we arrest you madam. To the majority, the case is best understood as an example of an arrest made by touching with an object, for the serjeants-at-mace announced the arrest at the time they touched the countess with the mace.

Justice Gorsuch filed a twenty-six page dissenting opinion, joined by Justices Thomas and Alito. Despite its length, the point was simple: a seizure requires possession. The dissent criticized the majority for conducting a schizophrenic textual analysis, cherry-picking from legal history, and ignoring established precedent all for the sake of crafting a new bright-line rule. Rather than simplify things, however, the majoritys new rule for mere touch seizures promises only to add another layer of complexity to the law.

Justice Barrett took no part in the consideration or decision of this case.

A departure from precedent?

In Mendenhall, Justice Stewart articulated what would become the modern test for seizures under the Fourth Amendment: [A] person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Whether the restraint of liberty was effected through the use of force, or a show of authority, the test was, in most cases, the same. As the word seizure has historically meant taking possession, though, the Court in Hodari D. held the seizure of a person through a show of authority occurs only if the suspect submits to an officers control. (A ship still fleeing, even though under attack, would not be considered to have been seized as a war prize.) Justice Scalia, writing for the majority in Hodari D., recognized in dicta that the same result follows in cases involving the use of force: unless the subject yields, no seizure occurs. The Torres majority back-tracks to make a distinction between seizures by control and seizures by force a distinction that it says was improperly erased through precedent by the Courts own inattention.

What does the decision mean for excessive-force claims?

Torres already had state law remedies available to challenge the officers actions. But a seizure triggers protections under the Fourth Amendment. Now, she can proceed with her excessive-force claims against the officers under 42 U.S.C. 1983, which imposes liability against every person who, acting under color of state law, deprives another of his or her rights secured by the Constitution or federal law. The majority made sure to note a seizure is just the first step of the analysis. It did not address the reasonableness of the seizure, the damages caused by it, or the defense of qualified immunity. Whether or not her claims for excessive force are ultimately successful, the decision in Torres is an important development in Fourth Amendment jurisprudence.

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Torres v. Madrid (New Excessive Force Opinion from SCOTUS) - JD Supra