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I personally find it incomprehensible that 70 million of my fellow Americans voted for a former reality TV host who spews racist conspiracy theories (birtherism), displays utter contempt for private property rights, and is responsible for the highest tax increase in the post-WWII era and prioritizing government handouts. But 70 million went right ahead and voted for him anyway, all while making it painfully clear they did not care what I or anyone else thought of the man they were supporting. Yet, despite the impenetrable divide that only seems to be increasing, one remarkable emerging trend is being shared by a majority of all Americans from every walk of life. Indeed, whether it be in the conservative Deep South, or on the liberal coasts, Americans are demonstrating a united willingness to end the war on drugs.

During this past election in fact, every decriminalization or legalization ballot measure that was up for a vote in nine states was ultimately successful. And victory did not come by a slim margin either, but was instead universally passed by substantial majorities, even in the conservative Deep South. Of course, such results should not at all be surprising but rather seen as the continuation of longer trends where voters in state after state have chosen to legalize recreational drugs, including cannabis, mushrooms, and, now in Oregon, virtually all previously illegal drugs. The benefits of this trend and of the impact of the collapse of the drug war, however, cannot be overstated.

As I have discussed before, the direct harms the drug war causes are immense, and more than outweigh any harms that can be associated with legalization. Alleviating these harms would bring about great positive change. For starters, millions upon millions of lives have been needlessly ruined for consuming substances that, even when taken all together, combine to cause less than half the harm of alcohol. Enormous taxpayer resources are devoted to the drug war, burdens on nonusers that can be substantially reduced and shifted toward more effective policy through legalization. But perhaps most destructively, the war on drugs has (wrongly) demolished our Fourth Amendment constitutional guarantees. As Jacob Sullum in Reason points out:

For decades the war on drugs has been the most important factor encouraging the Supreme Court to whittle away at the Fourth Amendments ban on unreasonable searches and seizures. Among other things, the Court has blessed pretextual traffic stops, warrantless rummaging through our trash, warrantless surveillance of private property by low-flying aircraft, mandatory drug testing of public school students, search warrants based on anonymous informants who may or may not exist, and searches triggered by a police dogs alleged signal.

The war on drugs is also the main excuse for the system of legalized theft known as civil asset forfeiture, which allows police to take cash and other property they claim is connected to drug offenses.

It is to the testament of our constitutional destruction that it is has proven impossible to hold bad government actors accountable in this drug war even when they falsify warrants to make violent no-knock entries into the home of innocent citizens.

Correcting or reversing the destruction caused by the drug war should be a welcome sign for all. With the possible exception of gerrymandering reform, I submit that ending the drug war is the single greatest policy shift we as a society could make to produce the most positive impact and ensure better outcomes for the country as a whole. To see incontrovertible evidence that Americans from all walks of life and views are finally supporting this shift universally, is extraordinarily encouraging.

Tyler Brokers work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email himor follow him onTwitterto discuss his column.

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The Destructive Era Of Drug Prohibition Is Collapsing - Above the Law

WILWAUKEE, Wisconsin - After suing the City of Milwaukee on claims of being unnecessarily tackled, tased, and stepped on by police in Milwaukee, an African American NBA player has reached a $750,000 proposed settlement with the city, CNNreports.

The alleged incident of police brutality, Milwaukee Bucks player Sterling Brown says, occurred in January of 2018.

Brown was tased by police and wrestled to the ground by several officers after an officer said he had parked across two handicapped spots at a drugstore. He was never charged with a crime.

Bodycam footagereveals a Milwaukee police officer stepping on Brown's ankle during his arrest, while others mock Brown and any potential civil rights complaint he might make.

Shortly after it happened, he brought a civil rights lawsuit in federal court claiming Milwaukee police violated the Fourth Amendment, according to a letter from the City ofMilwaukee's Office of the City Attorney toMilwaukee's Common Council.

According to the lawsuit, in addition to discriminating against Brown because of his skin color and therefore violating his rights by treating a parking violation as a criminal offense, officers also failed to read Brown his Miranda rights.

Additionally, some of the officers turned off their bodycams during certain parts of the confrontation, the suit said.

The lawsuit alleged, among other things, unlawful arrest, excessive use of force and violation of the 14th Amendment's Equal Protection Clause. It also accused the officers of collaborating to conceal their actions.

The Milwaukee Police Association initially defended the officers who arrested Brown in 2018, calling use of force "a necessary component of policing" and slamming city leaders for failing to defend the officers.

But after the bodycam footage was released to the public, the union softened its tone and said it welcomed "appropriate review and oversight" of the matter.

One officer was suspended for two days for "failing to treat a member of the public with courtesy and professionalism." Eight others were scheduled to receive remedial training in professional communications.

The Milwaukee Bucks issued a statement on Monday supporting Brown's commitment to use the "horrifying abuse and injustice" as a catalyst to make change in the community.

"We are pleased that Sterling's lawsuit has been mutually resolved and that there's been an important commitment by the City of Milwaukee and its Police Department to make changes to the MPD's standard operating procedures. No one should ever have to go through the horrifying abuse and injustice that Sterling experienced," the statement said. "We commend Sterling for his courageous response to this terrible situation by repeatedly sharing his story and working tirelessly with countless local groups and organizations to help make change in our community. And we also commend the City's leadership for its commitment to implement these important changes to better Milwaukee."

When asked for a comment, the Milwaukee Police Department told CNN it "does not have a formal statement as this is ongoing litigation."

Following the incident, two sergeants were suspended without pay -- for 10 and 15 days, respectively -- for "failing to be a role model for professional police service."

As of Tuesday, Nov. 10 the city's proposed $750,000 settlement to Brown is accompanied by a joint statement from the City of Milwaukee that recognizes a constitutional violation and a promise to make adjustments to the police force's operating procedures, CNN reports.

However, council members must support the proposal for it to officially move forward.

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After suing City of Milwaukee on claims of police brutality, NBA player reaches $750,000 settlement with city - WBRZ

The Supreme Court today considered whether James King has any recourse against the cops who tackled, choked and beat him after they mistook him for a suspect who looked nothing like him. The federal government argued that King cannot pursue his constitutional claims against a detective and an FBI agent because his lawsuit also included tort claims against the United States, which a federal judge dismissed for lack of jurisdiction. Institute for Justice attorney Patrick Jaicomo, who represents King, argued that the government's reading of the Federal Tort Claims Act (FTCA) contradicts the plain language and intent of the 1946 statute.

The FTCA, the law at the center ofBrownback v. King, allows people to sue the federal government for torts committed by people acting on its behalf. King invoked the law because Grand Rapids detective Todd Allen and FBI agent Douglas Brownback were serving on a joint state-federal fugitive task force when they assaulted him in 2014, when he was a 21-year-old college student. But U.S. District Judge Janet Neff concluded she did not have FTCA jurisdiction over the case because the cops' actions did not meet the criteria for a tort action under Michigan law. Neff also dismissed King's Fourth Amendment claims against Allen and Brownback after concluding that they were protected by qualified immunity, which bars federal lawsuits against government officials when their alleged misconduct did not violate "clearly established" law.

Last year, the U.S. Court of Appeals for the 6th Circuit revived King's claims against Allen and Brownback, saying they did not deserve qualified immunity. The appeals court said Allen and Brownback therefore could be sued under Bivens v. Six Unknown Federal Narcotics Agents, a 1971 decision in which the Supreme Court authorized constitutional claims against federal officers.

The 6th Circuit's decision was a mistake, Assistant to the Solicitor General Michael Huston told the justices today, because the FTCA says "the judgment in an action under section 1346(b) of this title"which gives federal courts exclusive jurisdiction over the tort claims authorized by the law"shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim." Since King's FTCA claims failed, Huston said, his Bivens claims were also barred.

Jaicomo presented two main arguments against this interpretation of the statute. First, he said, the FTCA's judgment bar, which is designed to prevent duplicative litigation, does not apply to claims filed as part of the same lawsuit. Second, Jaicomo said, a court's conclusion that it lacks subject-matter jurisdiction does not constitute "the judgment in an action" under the FTCA; rather, as the 6th Circuit concluded, it means that the court has declined to enter a judgment.

The first argument seemed to get some traction with Chief Justice John Roberts."The statute speaks of 'actions,' not 'claims,'" he noted while questioning Huston. "It was and is very well established [under common law] that there is no bar with respect to claims in the same action. If Congress were going to make such a dramatic departure from that rule, the obvious word to use is right there: It's 'claims.' And yet they didn't do that."

Justice Elena Kagan amplified that point when it was her turn to question Huston. "I'm wondering whether your understanding of this provision makes it into something that the language suggests it's not," she said. "If I understand your position correctly, you're really turning this into an election of remedies provision. In other wordsonce somebody files an FTCA claim, then really they can't bring a Bivensclaim anymore. And the only way to bring aBivens claim is just to forgo the FTCA claim." While "that might make sense as a policy matter," Kagan suggested, "the statute doesn't read like that. I mean, Congress knows how to write a provision like that. Instead this statute reads like a preclusion statute, and preclusion, as the chief justice began the argument by saying, always applies between suits and not within a single suit."

Huston argued that action in the FTCA's judgment bar should be read as synonymous with claim. He cited a contemporaneous law dictionary that defined action as "a demand for relief in court." In response, Jaicomo said Huston was relying on a definition ofaction that is "definitely well outside the mainstream." In a 2017 case, Jaicomo noted, the Supreme Court cited the 1933 edition of Black's LawDictionary, which said "the terms 'action' and 'suit' arenearly, if not entirely, synonymous." Jaicomo also cited evidence that neither Congress nor the Court has understood the FTCA as requiring plaintiffs to choose between claims under that law and other remedies.

While questioning Jaicomo, Justice Sonia Sotomayor suggested that accepting the government's interpretation of the law would lead to "very inefficient" outcomes. "What the government is encouraging plaintiffs to do is to file their Bivens claims first, win or lose, then file their FTCA claims," which "seems somewhat time-consuming." She added that "it also makes a difference whether a district court decides whether it's going to decide the Bivens claims first." Jaicomo agreed that the results would be inefficient and irrational, noting that "there is no way" for a plaintiff to know ahead of time what he should do to "litigate these claims in parallel, even though Congress and this Court have both said they can be litigated in parallel."

Jaicomo argued that the difference between claims within a single lawsuit and claims in two separate lawsuits is "embedded" in the question posed by the government's appeal of the 6th Circuit's decision: "whether a final judgment in favor of the United States in an action brought under [the FTCA], on the ground that the claimant failed to establish the liability of the United States on the torts that he alleged, bars claims under [Bivens] that are brought by the same claimant, based on the same alleged injuries, and against the same governmental employees involved in the claimant's unsuccessful FTCA action."

Despite the interest in the distinction between an "action" and a "claim," the Court may not end up resolving that issue. Several justices suggested they were inclined to favor a ruling limited to a narrower question: whether the district court's dismissal of King's FTCA claims for lack of jurisdiction, which King did not appeal, counts as a final judgment that triggers preclusion. The 6th Circuit thought it did not, and that, in addition to its conclusions about qualified immunity, was the appeals court's basis for keeping King's lawsuit alive.

While the issues raised byBrownback v. King may seem abstruse, the implications for King are clear: If the Court decides the 6th Circuit got it wrong, he will not be allowed even to try holding Allen and Brownback accountable for appalling conductconduct that the appeals court said a jury could reasonably decide violated his Fourth Amendment rights. According to the government, that is the outcome demanded by a law Congress passed to help victims of government abuse.

Originally posted here:
SCOTUS Considers Whether James King Has Any Recourse Against the Cops Who Choked and Beat Him for No Good Reason - Reason

Harrisburg officials Tuesday night released body camera footage after a community activist demanded the firing of a police officer for his handling of a noise complaint at her house.

The incident at 11:30 p.m. Saturday in the 300 block of South Front Street ended with Kimeka Campbell, 39, in handcuffs and one her friends doused in pepper spray.

Campbell, who lives with her husband in Shipoke, said a 6-foot wooden privacy fence protects her back yard but the officer let himself in through a gate in the dark and said he had a right to be on her property because he was investigating a noise complaint.

She vehemently disagreed, and admitted she cursed at him to get him to leave her yard, because she believed he had violated her Fourth Amendment rights. She said she provided her name to him, but refused to spell her last name, and didnt want to speak to him until he left her property.

Eventually, two officers dragged her out of her yard to a police car, where she was arrested. She spent about 40 minutes at the county booking center and was issued two citations: one for disorderly conduct and one for the noise complaint.

Earlier this year, Campbell had been organizing residents to support police reform measures to increase accountability, but city officials said the officers didnt know who she was when they arrived to handle the complaint filed by a neighbor.

A member of a local organization started a petition this week asking for the officer to be fired and pushing for more oversight of officers in the city. The petition had more than 900 signatures by Tuesday night.

Mayor Eric Papenfuse said during Tuesdays virtual city council meeting that he had watched the officers body camera footage and believed the officer handled a difficult situation correctly. He said he wanted to publicly release the footage as soon as possible to knock down some of the rumors and misinformation he believed surrounded the issue. The footage was released later Tuesday night. It contains graphic language.

Harrisburg city council members and Mayor Eric Papenfuse approved a bill to improve oversight of police Nov. 10, 2020. Earlier in the meeting, council heard complaints about an incident at a woman's home that occurred Nov. 7.

It was absolutely legal for the police officer to enter the yard to investigate the complaint, Papenfuse said. He flashed his lights before opening the gate. A citation couldnt be issued without someone being identified.

Papenfuse said the main problem with the incident was the homeowner refusing to identify herself.

The officer reportedly said, let me have your name and Im out of here, Papenfuse said, but Campbell became increasingly hostile.

The officer called for backup and the decision was made to arrest, Papenfuse said. He said a clear warning was given before an officer deployed pepper spray against people who were blocking the arrest.

Papenfuse said it was reprehensible that hundreds of people were signing a petition for the officer to be fired without getting all the information first. He said its hard enough to recruit and retain officers and that officers need to be able to investigate quality of life complaints such as noise complaints.

He said the incident wasted officers' time when the city has more pressing needs, including a series of shootings that have plagued some neighborhoods.

We must do better, he said.

Council President Wanda Williams said she had viewed the footage and agreed with the mayor.

Other council members said they wanted to see the footage and said city officials shouldnt make editorial comments about the incident prior to the public getting to see the video.

Prior to Papenfuses comments, more than a dozen people submitted public comments to city council Tuesday night complaining about what happened to Campbell, who co-founded a Young Professionals of Color group in Harrisburg four years ago. She also advocated for a bill to create a citizens law enforcement advisory committee that was on the agenda for Tuesdays council meeting. The bill passed 6-1, with Williams voting against it.

Campbell said she was traumatized by the incident at her home. She had a few friends over in her back yard to celebrate a difficult week with the national presidential election, she said. They had music playing and never heard a knock on the door or her doorbell ring. Then she saw a stranger in her back yard.

One of her friends was talking to the man she didnt recognize, so she walked up to see what was going on. When she realized it was a police officer who had let himself into the yard, Campbell said she immediately demanded that he leave.

After multiple requests by her were denied, she said she started screaming for him to leave using profanity.

Thats when he backed out at the gate but kept his foot wedged in the door so it could not be closed. As her friends became concerned, and one of them tried to close the gate, the officer pulled out a canister of pepper spray, she said.

Back up or Im going to mace you, he reportedly said, and Campbell said she gladly obliged because she didnt want to leave her yard anyway.

But then the officer and a second officer tried to grab her through the gate, Campbell said. She stepped backwards and fell down. Thats when her friend stepped in front of her and told the officers she was going to close the gate.

The officer sprayed the friend with pepper spray, and another friend tackled her to prevent any additional interactions with the officer, Campbell said.

The two officers then came into her back yard and pulled her out into a private parking lot behind her house.

Campbell called her husband for a ride home from the booking center and said she couldnt believe what happened. She believed the officer unnecessarily escalated things by not acknowledging he didnt have a right to barge into her fenced yard.

You cannot walk onto my property and refuse to leave then rip me out of my yard, she said. Over a reported noise complaint after the music is off? It seemed like a total power trip. And with the mace? I dont even know how they would justify using that.

Campbell said she and friends who were at her home Saturday plan on filing complaints with the police department.

The fourth amendment of the U.S. Constitution protects residents from unreasonable search and seizure of a persons home, but a persons yard can be more complicated, attorneys say. What part of someones outdoor property is covered by this protection is often determined on a case-by case basis, according to attorneys.

The penalty for violating this amendment is generally the suppression of any physical evidence obtained. In this case, there was no physical evidence obtained. Instead, there was a dispute that emerged and citations that followed.

City officials said the officer was within his rights to try to contact someone at the home to resolve the pending noise complaint. He flashed his vehicle lights before opening the gate because he had been trying to gain their attention, officials said.

The main officer involved in the incident graduated from the police academy in July 2019.

READ: Can police enter your gated yard without permission? Questions arise after arrest of Harrisburg activist

READ: Rash of shootings in Harrisburg due to gangs: police

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Police release body cam video of Harrisburg activists arrest after she calls for officer to be fired - PennLive

Should people take part in large gatherings without taking proper COVID-19 precautions?

No, not unless some measure of social distancing takes place.

Should Gov. Andrew Cuomo have the power to dictate local police departments, code officers or health department workers go into homes to break up those gatherings without observing basic due process rights?

No.

But thats it appears the governor is telling local governments to do with an edict earlier this week limiting gatherings in peoples homes to 10 people or less. The governor says he has contact tracing results that show gatherings in homes are one of three central reasons COVID-19 is spreading throughout the state. The U.S. Constitution, however, does not appear to give him the right make the matter one of law. The Supreme Court has upheld time and again the right to privacy inside ones home. Yet heres the governor this week saying people cant have more than 10 people in a home. How, exactly, does he plan to enforce that regulation and not violate the rights of privacy enumerated by the Supreme Court in Mapp v. Ohio, an illegal search and seizure case; Griswold v. Connecticut, a contraception case; or Lawrence v. Texas, a 2003 Supreme Court case that invalidate a Texas sodomy law? If there is no evidence of wrongdoing from outside a dwelling such as loud noise or a bunch of cars in front of a house, how can anyone can enforce this order without a search warrant? Are families serving turkey, mashed potatoes, gravy and a search warrant for dessert this year? Were sure judges are going to love signing warrants for every time a house is suspected of having more than 10 people in it for however long Cuomos order lasts.

Governors can and should issue guidelines and recommendations, and if contact tracing results do indeed show in-home Halloween parties spread COVID-19, it would appear guidance around small gatherings is warranted. But guidance is where the governments role should end when it comes to the privacy of ones home. Its one thing to issue an edict from Albany. Its quite another to task local governments with enforcing a measure that come dangerously close to the line of unconstitutional infringement on the right of privacy in a home.

Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence, Justice Tom C. Clark wrote in his majority opinion in Mapp v. Ohio, a 1961 Supreme Court case in which the court ruled evidence seized without a valid search warrant violated a womans right to privacy in her home. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U. S. 438, 485 (1928): Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the states, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment.

While it is unassailable that health emergencies allow some infringement on rights, in our view Cuomo is on a slippery slope when it comes to enforcing the gathering limit.

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Cuomo Is On A Slippery Slope With Enforcing His New Restrictions - Jamestown Post Journal