The Fourth Amendment guarantees that every person shall be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This means government agents cannot enter your home or rifle through your stuff without a warrant, signed by a judge and based on probable cause. That right extends to the digital sphere: The Supreme Court ruled in 2018's Carpenter v. United States that the government must have a warrant to track people's movements through their cellphone data.

But governments are increasingly circumventing these protections by using taxpayer dollars to pay private companies to spy on citizens. Government agencies have found many creative and enterprising ways to skirt the Fourth Amendment.

Cellphones generate reams of information about us even when they're just in our pockets, including revealing our geographical locations—information that is then sold by third-party brokers. In 2017 and 2018, the IRS Criminal Investigation unit (IRS CI) purchased access to a commercial database containing geolocation data from millions of Americans' cellphones. A spokesman said IRS CI only used the data for "significant money-laundering, cyber, drug and organized-crime cases" and 
terminated the contract when it failed to yield any useful leads.

During the same time period, U.S. Immigration and Customs Enforcement (ICE) paid more than $1 million for access to cellphone geolocation databases in an attempt to detect undocumented immigrants entering the country. The Wall Street Journal reported that ICE had used this information to identify and arrest migrants.

In the midst of the COVID-19 pandemic, the Centers for Disease Control and Prevention spent $420,000 on location data in order to track "compliance" with "movement restrictions," such as curfews, as well as to "track patterns of those visiting K-12 schools."

The Defense Intelligence Agency (DIA) admitted in a January 2021 memo that it purchases "commercially available geolocation metadata aggregated from smartphones" and that it had searched the database for Americans' movement histories "five times in the past two-and-a-half years." The memo further stipulated that "DIA does not construe the Carpenter decision to require a judicial warrant endorsing purchase or use of commercially
available data for intelligence purposes."

Even in the physical world, governments have contracted out their spying. The Drug Enforcement Administration (DEA) spent millions of dollars paying employees at private companies and government agencies for personal information that would otherwise require a warrant. This included paying an administrator at a private parcel delivery service to search people's packages and send them to the DEA, and paying an Amtrak official for travel reservation information. In the latter case, the DEA already had an agreement in place under which Amtrak Police would provide that information for free, but the agency instead spent $850,000 over two decades paying somebody off.

It seems the only thing more enterprising than a government agent with a warrant is a government agent without one.

The post The Feds Are Skirting the Fourth Amendment by Buying Data appeared first on Reason.com.

After black-clad demonstrators protested Donald Trump's inauguration in an "Anti-Capitalist/Anti-Fascist Bloc" march on January 20, 2017, federal prosecutors in Washington, D.C., charged more than 200 of them with rioting. While 21 defendants pleaded guilty, all of the other cases ended in acquittals, mistrials, or charges dismissed with prejudice. One reason for that fiasco, according to recently filed disciplinary charges, was the discovery that the federal prosecutor who oversaw the cases persistently withheld exculpatory evidence and repeatedly lied about it to judges and defense attorneys.

In a "specification of charges" filed with the D.C. Court of Appeals Board of Professional Responsibility last month, Disciplinary Counsel Hamilton P. Fox III alleges that Jennifer Kerkhoff Muyskens, who is now a federal prosecutor in Utah but previously worked at the U.S. Attorney's Office for the District of Columbia, violated six rules of professional conduct while trying to convict "DisruptJ20" protesters, including many who had not participated in vandalism or violence. Muyskens "knew that most defendants did not commit violent acts themselves," Fox notes, but "she argued that these defendants were still liable for felony rioting and felony property destruction because they joined a criminal conspiracy to use the protest march to further the violence and destruction that occurred."

To support that theory, Muyskens presented video of a DisruptJ20 planning meeting that had been clandestinely recorded by an "operative" from Project Veritas, a conservative group that frequently has been accused of using misleadingly edited videos to portray progressive and leftist organizations in a negative light. Although Muyskens "understood Project Veritas had a reputation for editing videos in a misleading way," Fox says, she initially concealed the source of the video, saying in court that "who provided it is irrelevant." And although Muyskens "knew that Project Veritas had omitted and edited some of its videos" before releasing them, Fox adds, she "did not request or obtain Project Veritas's missing videos or unedited footage."

According to Fox, Muyskens and Metropolitan Police Department (MPD) Detective Greggory Pemberton edited the meeting footage in ways that bolstered the prosecution's case, and Muyskens covered up the extent of those edits. Fox says Muyskens also withheld Project Veritas videos of other DisruptJ20 meetings that would have been helpful to the defense, pretending that they did not exist. And she allegedly concealed the fact that Pemberton, in testimony to a grand jury, had erroneously identified one of the DisruptJ20 defendants as a woman who appears in the video of the planning meeting.

According to the Supreme Court's 1963 ruling in Brady v. Maryland, due process requires prosecutors to share potentially exculpatory evidence with the defense. Fox says Muyskens violated that rule by excising footage and withholding videos that could have been useful in rebutting the prosecution's case.

The material that Muyskens and Pemberton excised from the planning meeting video included footage that would have revealed its provenance. They also cut footage of a phone call in which a Project Veritas infiltrator told a colleague, "I don't think they know anything about the upper echelon stuff."

The excised footage "revealed that the video was filmed as part of Project Veritas's infiltration of DisruptJ20, which tended to undermine the credibility and reliability of the government's evidence," Fox writes. "In addition, the operative's post-meeting report indicated that some DisruptJ20 protest organizers did not know anything about plans or decisions that were being made by an 'upper echelon.' This lack of knowledge supported the non-violent defendants' theory that, assuming a plan to riot existed at all, only a small group was involved, which they knew nothing about. Alternatively, if the operative was discussing protest organizers being unaware of Project Veritas's 'upper echelon' plans, the statements supported…claims that Project Veritas conspired to frame DisruptJ20 defendants for third-party violence, including by possibly inciting violence themselves. Both judges who later considered the issue…found that the complete, unedited footage was exculpatory."

The videos that Muyskens withheld included evidence that, contrary to the prosecution's narrative, the DisruptJ20 protest was supposed to be peaceful. Those videos "were exculpatory," Fox explains, "because they showed that DisruptJ20 planning meetings consistently involved training and instructing protesters how to participate in its unpermitted 'Actions,' including the anti-capitalist march, as non-violent protests, using nonviolence and de-escalation techniques, which supported the non-violent defendants' claim that their intent was merely to peacefully protest."

The undisclosed videos also "showed Project Veritas operatives discussing their infiltration operation of DisruptJ20, which supported the defense's theory that Project Veritas conspired to blame DisruptJ20 for others' misconduct," Fox notes. "For example, the undisclosed videos showed Project Veritas operatives discussing—before the Inauguration protests—how they were providing information on DisruptJ20 to the FBI, how there was likely to be violence from 'outside influencers,' and how DisruptJ20 would 'catch the blame' for outsiders' misconduct because the FBI was 'going to say' that they incited it."

In court, Fox says, Muyskens "falsely said that the government had made only two edits, which were both to redact the identity of the videographer and an undercover officer," and "that, other than the two redactions, the defense had the same videos as the government." She "falsely told the court that she had provided defense counsel with 'the full entirety of those videos from that day.'"

According to Fox, "Pemberton testified falsely that Project Veritas had produced only the four disclosed video segments of the [planning meeting video]" and that "the only editing the government did was to combine the first three video segments into one exhibit to be played at trial." Muyskens and Pemberton "did not disclose how they had edited the original videos they received from Project Veritas," and they did not "disclose that they had omitted from discovery many other videos Project Veritas videos of DisruptJ20's planning meetings."

Muyskens told a judge that Project Veritas had "provided unedited video" at Pemberton's request and that "we posted the video" to the discovery portal. Those statements, Fox says, "were false and misleading." Muyskens also "falsely said that other than redacting the identities of the Project Veritas operative and [the undercover officer], 'the defense has the exact video we have.'" The judge "later found that [Muyskens] 'left a clear impression' that she had disclosed everything that Project Veritas had produced."

Muyskens told another judge that "the government had 'provided the clips as we have them'" and that "'the only editing' by the government 'was to combine the three clips' of the anti-capitalist 'breakout' into a single video exhibit for trial." Those statements also "were false and misleading," Fox says.

Muyskens eventually "acknowledged that the government had additional, undisclosed Project Veritas videos of DisruptJ20's planning meetings." But she "mischaracterized them and falsely suggested that they were irrelevant."

During the investigation of her conduct, Fox says, Muyskens "repeated her false statements and material omissions" regarding the video edits, the withheld videos, her suppression of "relevant information and evidence," her failure to produce grand jury transcripts from the misidentified defendant's case, her "misrepresentations and omissions to the grand jury, the defense, and the court," and her failure to "correct known misrepresentations to the court." She also "made additional false statements and material omissions to falsely explain her conduct." She claimed, for example, that the undisclosed videos "were irrelevant and did not discuss the anti-capitalist march."

Fox says Muyskens' actions violated the District of Columbia's Rules of Professional Conduct in half a dozen ways:

1. She allegedly violated Rule 3.3(a) by "knowingly making false statements, offering false evidence, and failing to correct material false statements to the court."

2. She allegedly violated three sections of Rule 3.4 by "obstructing the defense's access to evidence and altering or concealing evidence, or assisting another person to do so when she reasonably should have known that the evidence was or may have been subject to discovery; knowingly disobeying the court's direct orders to produce information in the government's possession without openly asserting that no valid obligation existed; and/or failing to make reasonably diligent efforts to comply with the defense's discovery requests."

3. She allegedly violated two sections of Rule 3.8 by "intentionally avoiding pursuit of evidence and information because it may have damaged the prosecution's case or aided the defense; and by intentionally failing to disclose to the defense, upon request and at a time when use by the defense was reasonably feasible, evidence and information that she knew or reasonably should have known tended to negate the guilt of the accused or mitigate the offense."

4. She allegedly violated Rule 8.4(a) by "knowingly assisting or inducing another to violate the Rules of Professional Conduct and/or doing so through the acts of another."

5. She allegedly violated Rule 8.4(c) by "engaging in conduct that involved reckless or intentional dishonesty, misrepresentations, deceit, and fraud, which misled the grand jury, the defense, the court, the government, and disciplinary authorities about the
evidence in the government's possession and the government's conduct."

6. She allegedly violated Rule 8.4(d) by "engaging in conduct that seriously interfered with the administration of justice."

Possible sanctions against Muyskens range from "temporary suspension of her law license to full disbarment," Washington City Paper notes. The Washington Post reports that lawyers for Muyskens did not respond to requests for comment and that "Pemberton also did not respond to an inquiry." The U.S. attorney's offices in D.C. and Utah "declined to comment." So did the MPD, which "would not say whether the department has opened an investigation of Pemberton, who now chairs the police labor union."

The failed prosecutions and the disciplinary charges against Muyskens are not the only embarrassments stemming from the Inauguration Day march. In 2021, the Post notes, "the D.C. government agreed to pay $1.6 million to settle two lawsuits" by protesters who argued that the police response to the DisruptJ20 march violated their First Amendment rights.

"It speaks volumes that the District has chosen to settle rather than defend MPD's obviously unconstitutional actions in court," Jeffrey Light, one of the protesters' attorneys, said when the settlement was announced. Scott Michelman, legal director at the American Civil Liberties Union of the District of Columbia, added that "MPD's unconstitutional guilt-by-association policing and excessive force, including the use of chemical weapons, not only injured our clients physically but also chilled their speech and the speech of countless others who wished to exercise their First Amendment rights but feared an unwarranted assault by D.C. police."

The post Prosecutor of Anti-Trump Protesters Allegedly Withheld Exculpatory Evidence and Lied About It appeared first on Reason.com.

Democrats in Congress have reintroduced a bill that would revive the ability to sue federal law enforcement officers for constitutional violations like excessive force, following a series of Supreme Court decisions that have made it practically impossible to do so.

Sen. Sheldon Whitehouse (D–R.I.) and Reps. Hank Johnson (D–Ga.) and Jamie Raskin (D–Md.) reintroduced the Bivens Act in the Senate and House, respectively, this week. The legislation would amend the Civil Rights Act of 1871—a federal statute that allows people to sue the government for civil rights violations—to include federal officials acting under the color of law, as well as state and local officials.

"Public officials at all levels of government, including law enforcement, should have a clear, fair standard of accountability when they break the law," Whitehouse said in a press release. "Our Bivens Act would end the confusing judicial precedent that for too long has prevented victims from holding federal officials accountable and securing compensation for constitutional violations."

In 1971, the Supreme Court ruled in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that federal agents may be sued when they violate someone's rights. But subsequent Supreme Court rulings over the years have steadily narrowed the scope of so-called Bivens claims to the point where it's a dead letter.

In the most recent case, Egbert v. Boule, the Supreme Court ruled in 2022 that a bed-and-breakfast owner could not sue a Border Patrol agent who had allegedly assaulted him and then retaliated after he complained. Reason's Damon Root summarized the case: 

At issue were the actions of a border patrol agent who sought to question one of the guests at a Washington state bed-and-breakfast about the guest's immigration status. When owner Robert Boule told the agent, Erik Egbert, to leave his property, Egbert allegedly assaulted Boule. Then, when Boule complained about the alleged assault to the agent's superiors, Egbert allegedly retaliated by asking the IRS to investigate Boule, who was audited.

The Court ruled 6–3 that Boule could not bring a claim against Egbert for excessive force or First Amendment retaliation. 

That same term, the Court declined to hear petitions involving cases where a St. Paul police officer invented a fake sex-trafficking ring and jailed a teenage girl for two years on trumped-up charges and where a Department of Homeland Security agent allegedly tried to kill a man because of an argument involving his son.

As Reason's Billy Binion wrote at the time, "A federal badge will now serve as an impenetrable shield against civil liability for violating the same laws agents are charged with upholding."

That's not just the opinion of some whacky libertarians either. Federal Judge Don Willett complained in a 2021 opinion that the Supreme Court has gutted Bivens to the extent that "if you wear a federal badge, you can inflict excessive force on someone with little fear of liability."

The Bivens Act is supported by numerous civil rights and watchdog groups, including the American Civil Liberties Union, the Drug Policy Alliance, and the Project on Government Oversight.

The post New Bill Would Revive the Right To Sue Federal Cops for Constitutional Violations appeared first on Reason.com.

Last November, federal prosecutors invited Ilene Wahpeta, an incarcerated woman, to give a victim impact statement at the sentencing of Andrew Jones, a Bureau of Prisons (BOP) employee who was convicted of sexually assaulting three other inmates.

Less than a year later, the U.S. government is fighting a petition Wahpeta filed for early release based on the same allegations that prosecutors previously invited her to speak about, arguing she wasn't a named victim in the criminal case against Jones and that her claims aren't credible.

The Justice Department announced in 2022, amid several damning investigations into sexual assault by staff in federal prisons, that it was working to expand a program for early release to include women who'd been abused behind bars, but Wahpeta's case is one example of what criminal justice advocates say is the Justice Department undercutting that policy. Lawyers representing incarcerated women filing for early release based on their status as sexual assault survivors say federal prosecutors are now routinely fighting to disqualify their clients because of an unreasonably narrow definition.

At the heart of the issue is a new policy passed in April 2023 by the U.S. Sentencing Commission that makes federal inmates who were sexually abused by staff eligible for compassionate release. Compassionate release is a policy that allows federal inmates to petition for early release for "extraordinary and compelling" reasons, such as terminal illness or family emergencies. However, the expansion included a major caveat that was added at the recommendation of the Justice Department. To be eligible, a prisoner's claim of sexual abuse "must be established by a conviction in a criminal case, a finding or admission of liability in a civil case, or a finding in an administrative proceeding."

Families Against Mandatory Minimums (FAMM), a criminal justice advocacy group, has been coordinating legal representation for women who were formerly incarcerated at Federal Correctional Institution (FCI) Dublin, a federal women's prison in California that was infested with so much corruption, sexual abuse, and whistleblower retaliation that the BOP shut it down earlier this year. 

Shanna Rifkin, the deputy general counsel at FAMM, says they have secured releases for 17 women out of the 25 cases they've taken on. But Rifkin says government opposition has increased significantly since the new policy statement took effect.

"Before November 1, 2023, when this policy statement went into effect, in almost every single case the government was agreeing or not opposing the compassionate release motion," Rifkin says. "Since then, there has been a lot more resistance to compassionate release motions based on sexual abuse."

The Justice Department argued that requiring a finding of guilt would set a clear standard for judges. It wrote in a public comment on the Sentencing Commission's proposed changes that "permitting compassionate release hearings only after the completion of other administrative or legal proceedings will help ensure that allegations are more fairly adjudicated, prevent mini-trials on allegations, and reduce interference with pending investigations and prosecutions."

However, Rifkin says this undercuts one of the major reforms in the FIRST STEP Act of 2018. That act changed compassionate release to allow inmates to directly petition federal judges, significantly reducing the BOP's power to stonewall and delay petitions.

"It effectively puts the Department of Justice back in the driver's seat," Rifkin says of the new policy statement, "because who drives a criminal case? The Department of Justice. Victims of abuse have no say over when a case against their abuser will be brought, if it will be brought, and who will be charged as the victims in the case."

And while a finding of guilt may sound like a reasonable standard, it is a surprisingly difficult one to meet in cases of sexual assault perpetrated by government employees.

According to the Bureau of Justice Statistics, from 2016 to 2018, perpetrators of staff sexual misconduct were only convicted, sentenced, fined, or pleaded guilty in 6 percent of substantiated incidents in federal and state prisons.

Reason detailed last year how a cadre of corrupt guards at a federal minimum security camp in Florida was allowed to prey on women for years without oversight. Those guards eventually admitted under oath to internal affairs investigators that they had assaulted incarcerated women, yet most were allowed to retire and none was ever prosecuted.

Over the past year, the Justice Department has ramped up scrutiny of prisons and prosecutions of corrupt BOP employees, but even with more vigilant oversight, criminal cases do not move quickly through the court system, especially if the defendant goes to trial. Rifkin cited one pending case against a former FCI Dublin correctional officer who has been charged with assaulting three women. He was indicted in May 2023, but his trial isn't scheduled until 2025.

"So women who are survivors of his abuse ostensibly have to wait until the government has concluded their case in order to have a cognizable claim under this policy statement," Rifkin explains.

As for civil suits against government employees, they routinely take years to resolve, and settlements often stipulate that they do not constitute admissions of guilt by the defendants.

The difference between how petitions have been handled before and after the new standard was enacted is stark. Take the case of Aimee Chavira, a former inmate at FCI Dublin who says she was abused by five correctional officers and continued to suffer retaliation after she was transferred out of the prison.

When Chavira filed her compassionate release petition, only one of those officers had been indicted, and another committed suicide while under investigation. Nevertheless, the U.S. Attorney's Office for the Southern District of California filed a motion of nonopposition in response to her petition. Chavira was released in May of last year.

Contrast that with Wahpeta's case, where prosecutors have not only tried to apply the adjudication requirement but also attacked her credibility.

In a court filing opposing Wahpeta's petition, prosecutors note that Wahpeta never gave her victim impact statement because of objections from Jones' attorney and concerns that her story was insufficiently corroborated. The government also puts significance on the facts that she initially refused to cooperate with FBI investigators and denied being abused; that she didn't mention being abused in letters to her family she wrote while in solitary confinement; that she contemplated getting a lawyer; and that her descriptions of abuse were remarkably similar to the narratives of the named victims in the criminal case against Jones.

"Even when writing to her parents, her main concern was getting out of confinement early, not reporting what she had seen," federal prosecutors argue. "Also, defendant never mentions being a victim of abuse, but rather that she witnessed the abuse."

But this behavior is all too common in cases of sexual abuse in prison. Incarcerated victims of sexual assault often initially refuse to cooperate with investigators out of fear of retaliation from correctional officers, who remain in total control of their lives. Indeed, Wahpeta was put in solitary confinement while Jones was under investigation, and she remained there for more than two months before Jones was removed from the prison. Besides embarrassment or any other number of personal reasons, survivors are also often vague in communications with family because correctional officers can read their letters and emails.

Bay Area news outlet KTVU has interviewed dozens of women over the past two years about sexual abuse and retaliation inside FCI Dublin, and a lawsuit on behalf of multiple incarcerated FCI Dublin women described the repression inside the prison in detail: "Survivors who report sexual abuse are verbally threatened, physically assaulted, sent to solitary confinement, given false disciplinary tickets, have their cells tossed and property destroyed, have their mail (including legal mail) interfered with, strip searched, and transferred to other BOP institutions away from their families—and are even targeted for further sexual abuse."

In a sentencing memorandum filed in Jones' case, prosecutors were keenly aware of how retaliation works inside federal prisons. "To enforce the silence that was so critical to the perpetuation of his predation, Jones created an environment of intimidation, fear, and reprisal," prosecutors wrote. "It wasn't just words. Jones also enforced silence and obedience through violence and threats of violence."

Yet, now federal prosecutors take Wahpeta's silence as a mark against her.

"DOJ has already decided whether Ms. Wahpeta is lying. And it decided she isn't," Wahpeta's attorney wrote in a response. "It decided she isn't when the U.S. Attorney's Office for the Northern District of California invited her to read a victim impact statement at Officer Andrew Jones's sentencing hearing. If the government believed that Ms. Wahpeta was lying, it would have had a duty to tell the Court. It did not do so. In fact, until its response here, at no point during the duration of Ms. Wahpeta's cooperation with the government has the government questioned what happened to Ms. Wahpeta to either her or her counsel. Nor could it. Because it's true."

The Justice Department did not immediately respond to a request for comment.

The post Advocates Say the Justice Department Is Failing To Provide Relief to Women Who Were Abused in Prison appeared first on Reason.com.

A federal court yesterday heard arguments in an appeal concerning an area of law that, while niche, has seen a streak of similarly situated plaintiffs pile up in recent years. At stake: When a SWAT team destroys an innocent person's property, should the owner be strapped with the bill?

There is what I would consider a commonsense answer to that question. But in a reminder that common sense does not always guide law and policy, that is not the answer reached by several courts across the U.S., where such victims are sometimes told that "police powers" provide an exception to the Constitution's promise to give just compensation when the government usurps property for public use.

It remains to be seen where the U.S. Court of Appeals for the 6th Circuit will fall as it evaluates the complaint from Mollie and Michael Slaybaugh, who are reportedly on the hook for over $70,000 after a SWAT team destroyed much of their home in Smyrna, Tennessee.

In January 2022, Mollie Slaybaugh stepped outside her house and was greeted by a police officer with his gun drawn. She was informed that her adult son, James Jackson Conn—who did not live with her but had recently arrived to visit—was wanted for questioning concerning the murder of a police officer, which she says was news to her. Although she offered to speak to Conn and bring him out of her house, law enforcement declined to permit that, or to let her re-enter at all, so she went to stay at her daughter's house nearby.

The next day, police broke down the door and launched dozens of tear gas grenades into the Slaybaughs' home, laying waste to nearly everything in the house. Their insurance declined to assist them, as their policy—like many policies—does not cover damage caused by the government. Yet both Smyrna and Rutherford County said they were immune from helping as well.

But despite Mollie Slaybaugh's offer to coax Conn out sans tear gas, her complaint does not dispute that it was in the best interest of the community for law enforcement to do as they did that day. It merely contests the government's claim that innocent property owners should have to bear the financial burden by themselves when police destroy their homes in pursuit of a suspect.

"Law enforcement is a public good. Through our taxes, we pay for the training, equipment, and salaries of police officers. We pay to incarcerate criminals. We pay for a court system and public defenders," reads her complaint. "When the police destroy private property in the course of enforcing the criminal laws, that is simply another cost of law enforcement. Forcing random, innocent individuals to shoulder that cost alone would be as fair as conducting a lottery to determine who has to pay the police chief's salary each year."

That hypothetical is absurd. And yet the spirit of it is at the heart of several court decisions on the matter. That includes the U.S. District Court for the Middle District of Tennessee, which ruled last year that the Slaybaughs were not entitled to a payout because, in the court's view, the Takings Clause of the Fifth Amendment does not apply when the state seizes and destroys someone's property in the exercise of "police powers."

The Slaybaughs are unfortunately not alone. The notion that "police powers" immunize the government from liability is what doomed Leo Lech's lawsuit, which he filed after a SWAT team did so much damage to his home—in pursuit of a suspect that broke in and had no relation to the family—that it had to be demolished. In 2020, the Supreme Court declined to hear the case.

Similar claims are continuing to accumulate. The city of Los Angeles refused to compensate Carlos Pena after a SWAT team destroyed his North Hollywood print shop in pursuit of a suspect who barricaded himself inside, and the government in McKinney, Texas, turned away Vicki Baker after police ruined her home and much of its contents while, again, trying to catch a fugitive. After a legal odyssey of sorts, Baker was able to secure a judgment from a federal jury—though that was ultimately overturned by the U.S. Court of Appeals for the 5th Circuit, which ruled there was a "necessity" exception to the Takings Clause. Most recently, the local government in South Bend, Indiana, rejected Amy Hadley's pleas for help after police mutilated her home in search of a suspect she'd never met and who'd never been to her home. An officer's botched investigation led law enforcement to her house, and she has been forced to pay the price of that blunder. Accountability should not just be for the little people.

"The plain text of the Just Compensation Clause contains no exemptions for the police power, for public necessity, or for damage done by law enforcement. And the government bears the burden of establishing that any such exception is grounded in our nation's history and tradition," Jeffrey Redfern, an attorney with the Institute for Justice representing the Slaybaughs, told the 6th Circuit yesterday. "But the government hasn't even tried to meet that burden. Instead it asks this court to blindly follow decisions from other jurisdictions—decisions whose reasoning the government isn't really defending."

In some sense, the government is throwing what it can at the wall to see what sticks. And a fair amount of nonadhesive material is successfully latching on—an exception to the laws of nature that few entities other than the government could reasonably hope to enjoy.

The post A SWAT Team Blew Up This Innocent Couple's Home and Left Them With the Bill. Was That Constitutional? appeared first on Reason.com.

In December 2022, Reason reported that both state and federal wildlife agents routinely trespass onto private land and plant cameras. Two Tennessee homeowners successfully sued the state over the practice, and a three-judge panel ruled in their favor. The state appealed the decision, and this week the court of appeals ruled in the homeowners' favor.

At issue is a state law allowing officers of the Tennessee Wildlife Resource Agency (TWRA) to "go upon any property, outside of buildings, posted or otherwise," in order to "enforce all laws relating to wildlife." In the case of Terry Rainwaters and Hunter Hollingsworth, TWRA officers not only entered their respective properties but also installed trail cameras to look for hunting violations, all without a warrant and ignoring "No Trespassing" signs. A lawsuit filed by the Institute for Justice (I.J.) on behalf of Rainwaters and Hollingsworth asked the court to declare the law unconstitutional and issue an injunction against the TWRA, barring it from carrying out any further unwarranted intrusions.

Under the "open-fields doctrine," Supreme Court precedent dating back to Prohibition holds that undeveloped land on someone's property lacks the same rigorous Fourth Amendment protections as their home and the "curtilage," the area immediately surrounding the home.

In March 2022, a three-judge panel from the Benton County Circuit Court ruled in the homeowners' favor, finding that the state constitution provided more protections than the Fourth Amendment. It determined that the state law allowing the TWRA practice created an "intolerable risk" of abuse and was "facially unconstitutional," but it stopped short of issuing an injunction. The state appealed the decision the following month.

In a hearing before the Tennessee Court of Appeals Western Section on June 20, 2023, I.J. attorney Josh Windham argued that the state law is unconstitutionally broad. "It allows TWRA officers to enter and roam around private land, fishing for evidence of crime," Windham said. "It doesn't require consent. It doesn't require warrants. It doesn't require probable cause….It's a blank check for officers to invade private land whenever and however they please."

Amanda Jordan argued for the Tennessee Attorney General's office that the statute was not unconstitutional and that the policy was necessary for the TWRA to do its job. She argued that "it's the particular purpose and function of the TWRA which makes such warrantless entry reasonable."

Judge Jeffrey Usman asked Jordan why, if the state would need a warrant in order to enter someone's property to look for criminal violations, it should not also need a warrant to do the same for civil violations of hunting laws. Jordan agreed that "while normal law enforcement officers would not be able to enter" without a warrant, "you have to look at the state's interest in furthering its duty of protecting and preserving" Tennessee's wildlife.

But Usman pressed further, asking whether the state has "an even stronger interest in protecting persons than wildlife." Further, he asked, "If you can't enter to investigate a crime being committed against a person…why is the interest greater to enter to protect wildlife?"

In a decision issued Thursday, the court of appeals ruled in favor of the property owners. The TWRA claimed that the homeowners' claims of injury were "speculative" as "TWRA agents have not entered the Plaintiffs' lands since September 2018." The court disagreed: Writing for a unanimous court, Usman noted in the decision,

Even if the TWRA has not entered the Plaintiffs' properties since 2018, it continues to assert its power to do so. The TWRA has asserted a continuing right to enter upon the Plaintiffs' properties. At oral argument, the TWRA suggested that if the Plaintiffs want to keep the TWRA off of their land in the future that they should desist in hunting.

"At the most foundational level," the court determined, "the statute is facially constitutional because there are applications of the statute that are constitutionally permissible," including "wild waste land areas." But in this specific scenario, where wildlife agents planted cameras on homeowners' land without ever even pursuing a warrant, the court found the TWRA's actions unconstitutional as applied.

"The TWRA's contention is a disturbing assertion of power on behalf of the government that stands contrary to the foundations of the search protections against arbitrary governmental intrusions in the American legal tradition, generally, and in Tennessee, specifically," Usman wrote. "What the TWRA claims is reasonable is not."

"Our entire theory of the case was vindicated by this decision," Windham tells Reason. "The part that goes against the trial court ruling [says] that the statute can be constitutionally applied to land where people haven't taken any steps to exert control or exert their privacy, which is a rule we don't particularly object to."

The post Tennessee Appeals Court Rules Against Wildlife Agents Who Planted Cameras on Private Land appeared first on Reason.com.

On May 10, 1924, one of the worst events in history for American civil liberties happened: 29-year-old J. Edgar Hoover assumed the role of director of the then-Bureau of Investigation. Ambitious, power-hungry, and conniving, Hoover epitomized the snake in the proverbial garden. Under his watch, which lasted until his death in 1972, the FBI emerged as an alarming adversary to constitutional freedoms. 

Starting his career at the Justice Department in 1917 at only 22 years old, Hoover quickly ascended the ranks, often at the expense of Americans' civil liberties. By 1919, he headed the Justice Department's Radical Division, charged with destroying the supposed communist infiltration of America. Hoover's lifelong disdain for communists was matched only by his disregard for their constitutional rights, making this role a perfect fit for his ambitions. 

Hoover Cuts His Unconstitutional Teeth

As head of the Radical Division, Hoover began developing the dirty tricks he would become known for, relying on tactics fundamentally at odds with a free society. For example, he started compiling the secret files that made him infamous and feared by the political elite. "What Hoover accomplished during his first months at the Radical Division forever changed the nature of American politics," writes Beverly Gage in G-Man: J. Edgar Hoover and the Making of the American Century, "launching an unprecedented experiment in peacetime political surveillance."

Under Hoover's leadership and fueled by the Espionage Act of 1917, federal agents aggressively pursued radicals—communists, socialists, and anarchists—tapping their phone lines and intercepting their mail. Hoover amassed more power, and at the tender age of 24, according to Tim Weiner in Enemies: A History of the FBI, Hoover "could call for the arrest of almost anyone he chose."

In April 1919, a coordinated anarchist campaign of mail bombs targeted prominent Americans, including Hoover's boss, Attorney General A. Mitchell Palmer. Though none of the bombs met their intended targets, the first Red Scare was on. 

Hoover answered by organizing what became known as the Palmer Raids, with the initial raid in November 1919 leading to the mass arrests of nearly 1,200 suspected radicals—far more people than Hoover secured warrants for. Many rotted in city and county jails for months, and nearly 200 were deported under the Anarchist Exclusion Act of 1918.

But it was Hoover's encore the following January that epitomized what would become his lasting legacy: utter disregard for constitutionally protected rights. Beginning at 9 p.m. on January 2, 1920, Hoover led the largest mass arrests in American history. The raids continued into the week, and thousands were detained indiscriminately, many without warrants or just cause. 

According to Weiner in Enemies, "somewhere between 6,000 and 10,000 people were swept up in the raids." However, he notes that we will likely never know the exact number as "no official accounting ever took place."

Rather than landing Hoover behind bars or at least ending his career, he evaded accountability and mastered the art of bureaucratic survival that protected him through eight presidential administrations. Before long, he was rewarded. On May 10, 1924, Attorney General Harlan Fiske Stone named Hoover acting director of the Bureau of Investigation. Stone was a believer in civil liberties, notably, and told Hoover he was on probation and that the Bureau was out of the secret police game. 

But Hoover would have the last laugh. Soon after, he revived his domestic intelligence operations and unconstitutional ways, often operating beyond public and political accountability scrutiny.

Friends in High Places

Presidential administrations throughout the 20th century—likely fearing Hoover and his secret files—left him unchecked and either actively supported or tacitly approved of his methods. Presidents from Franklin Delano Roosevelt to Richard Nixon found Hoover's capabilities useful for their political agendas, thus embedding a culture of surveillance and political manipulation that Hoover masterfully orchestrated. 

"He wasn't acting on his own," writes FBI Special Agent Paul Letersky in The Director: My Years Assisting J. Edgar Hoover. "Since before World War II, every president he'd served—those revered by the left and those revered by the right—knew what Hoover and the Bureau were doing in domestic security and surveillance." 

During the run-up to World War II, FDR turned Hoover loose, empowering the FBI director to return to gathering intelligence on American fascists and communists. Hoover revived secret warrantless wiretapping only two years after Congress banned it in the Communications Act of 1934. 

With war breaking out in Europe, Hoover's worries about internal subversion grew. On December 6, 1939, Hoover issued his agents a secret (read: unauthorized) order named "Internal Security." The agents were to begin compiling a list of "dangerous" people—not just immigrants but also American citizens—to be detained when the war came to American shores. 

The list was known as the Custodial Detention Program. It categorized people into three groups (A, B, and C), with people in Group A considered to be the most dangerous—if war broke out, they would be arrested and detained immediately. One conspicuous name in Group A was Roger Baldwin, one of the founders of the American Civil Liberties Union and its current chief. 

Attorney General Francis Biddle learned about the Custodial Detention Program in 1943 and ordered it shuttered. Hoover simply renamed it the Security Index. It would remain secret until after Hoover's death, growing to include well over 20,000 names, almost all Americans. 

But no matter how many laws or norms Hoover broke, he continued atop his powerful perch at the FBI. President Harry Truman didn't like Hoover. In the words of his Treasury Secretary John Snyder, Truman believed "Mr. Hoover had built up a Frankenstein in the FBI." 

John F. Kennedy—like his brother, Attorney General Robert Kennedy—wanted to send Hoover packing. Bobby Kennedy said Hoover was "frightening" and called the FBI "a very dangerous organization." But JFK ultimately concluded, "You don't fire God."

Hoover, if nothing else, was a survivor.

Seeing Red Again

Perhaps the most infamous example of Hoover's brazen attacks on American civil liberties was the Counterintelligence Program (COINTELPRO). Initiated in 1956, COINTELPRO's operations were characterized by illegal surveillance, organizational infiltration, and police harassment. With this tool in place, Hoover shifted his concentration to a new enemy: the civil rights movement and its leader, Martin Luther King Jr.

Hoover believed the Soviets—not black Americans fed up with segregation and racial injustice—were behind the civil rights movement. He also believed King was a Moscow stooge, which landed him on the Security Index.

The FBI's disdain for the civil rights movement was so visceral that agents would tip off police in Alabama about the plans of the Freedom Riders, a contingent of black and white demonstrators protesting Jim Crow laws. Freedom Riders were often met with overwhelming violence by both police and the Ku Klux Klan, who had also thoroughly infiltrated the Alabama police. 

In arguably the FBI's most infamous COINTELPRO operation, agents bugged MLK's hotel rooms as he traveled. The preacher had his own dark side. The bugs would frequently pick up the sounds of sex after late-night parties. In an effort to destroy King for good in November 1964, Hoover's intelligence chief sent the sex tapes to King's wife with a letter that gave him an ultimatum—suicide or disgrace. Its conclusion read:

King, there is only one thing left for you to do. You know what it is. You have just 34 days in which to do…You are done. There is but one way out for you. You better take it before your filthy, abnormal fraudulent self is bared to the nation.

It would take the rifle of James Earl Ray to do what the FBI couldn't—end King's life.

Hoover's corruption extended into his personal realm, too. He maintained a luxurious lifestyle, heavily subsidized by the FBI's budget and, therefore, the American taxpayer. "The Bureau provided with him chauffeurs, handymen, gardeners, valets, and the tax accountants who sorted out the honoraria he received, totaling tens of thousands of dollars, from corporate grandees," explains Weiner in Enemies. "The gifts, given for ghostwritten speeches and articles, and as private awards for public service, supplemented the freely spent tax dollars that financed Hoover's four-star style." 

On May 2, 1972, Hoover's heart gave out in his sleep. While this ended his reign of terror, Hoover's methods and the culture he cultivated within the FBI have left a lasting imprint on American law enforcement and intelligence practices. Libertarians often describe government as a form of organized crime. Hoover's godfather-like dominion over the FBI makes that comparison harder to dismiss. 

A Man of Zeal

In his dissent in Olmstead v. U.S., which coincidentally legalized government wiretapping for a short time, Justice Louis Brandeis wrote: "The greatest dangers to liberty lie in insidious encroachments by men of zeal, well-meaning but without understanding."

And therein lies the danger of men like Hoover. To give the devil his due, Hoover most certainly believed plunging his hands into the latrine was necessary to defend the country he loved from those he thought would destroy it. As Letersky writes in The Director, Hoover was "a man who in his sincere belief that he was protecting his country had repeatedly violated the principles of the Constitution on which the country was founded." 

The 100th anniversary of Hoover's rise to power should serve as a reminder that the FBI—and the national security state it exemplifies—remains a dagger pointed at the heart of American civil liberties. All the Bureau needs to break bad again is another man "of zeal, well-meaning but without understanding" to return to Hoover's dirty tricks. 

There is no greater domestic threat to American freedom than a secret police. Hoover proved that for five decades until the devil called him home. May his ghost never wander the FBI's halls.

The post An American Gangster at 100: J. Edgar Hoover's Authoritarian Legacy appeared first on Reason.com.

Retiree Jim Ficken can finally breathe easy. After six years, two lawsuits, and harrying legal wrangling over a $30,000 fine for tall grass in Dunedin, Florida, a new settlement has brought him closure.

The agreement, announced on April 22, ends the city's pursuit to recover $10,000 in attorney fees that Dunedin officials tried to characterize as "administrative expenses" after reducing Ficken's original fine by 80 percent. The reduction was only possible because of reforms the city instituted soon after Ficken filed his first lawsuit.

Initially, the city attempted to tack on $25,000 for out-of-pocket legal expenses before realizing it had miscalculated that figure. As a result of this settlement, Ficken will not have to cough up any amount for bogus fees—an important consolation following setbacks in his first lawsuit.

Ficken attempted to reason with code enforcers before going to court—explaining that his lawn had grown long while he was settling his late mother's estate in South Carolina and that the landscaper he had hired to mow his grass while he was gone had died unexpectedly. He asked for leniency, but the city refused to budge and insisted on full payment: $500 per day for nearly two months, plus interest. They even put liens on Ficken's home and authorized city attorneys to initiate proceedings to seize it.

In response, Ficken filed a federal lawsuit with representation from the Institute for Justice, asserting that the excessive fines and lack of due process violated his Eighth and Fourteenth Amendment rights. He lost in district court in 2021 and again in 2022 at the 11th Circuit Court of Appeals—but he won in other ways. His case ignited a media frenzy and public calls for reform, prompting Dunedin to overhaul its code enforcement regime to prevent ruinous fines for trivial offenses.

After his legal battles, Ficken managed to get the fines reduced enough to prevent foreclosure. He thought he was safe. But then the city hit him with the bill for attorney fees, a retroactive attempt to penalize him for seeking his day in court. Left with no choice, he sued again in 2023.

The city could have avoided both lawsuits merely by treating Ficken like a neighbor instead of a cash machine.

While Ficken acknowledged his breach of a city ordinance and expected some penalty, Dunedin's aggressive tactics—aiming to extract tens of thousands of dollars and take his home—were blatantly excessive. American jurisprudence dictates that punishment must fit the crime. Municipalities must balance code enforcement with common sense and respect for property rights.

Dunedin moved in the right direction by making adjustments to its policies; however, the problem of excessive fines and fees is not confined to Dunedin—it is a national issue.

Across the country, similar stories of overzealous code enforcement abound. In Lantana, Florida, homeowner Sandy Martinez was fined more than $100,000 for parking violations on her own property. In Doraville, Georgia, Hilda Brucker was criminally prosecuted for having cracks in her driveway. And in Pagedale, Missouri, Valerie Whitner had to pay a fine for not having a screen on her back door.

Florida demographics create additional pressures. Many residents are retirees on fixed incomes living in single-family housing. People like Ficken have a right to stay, but some officials would prefer younger, more affluent taxpayers in their communities. Aggressive code enforcement is one way to target less desirable residents.

Sometimes enforcement is about preserving a certain aesthetic, as seen in Miami Shores, Florida in 2013. Officials declared vegetable gardens unsightly and threatened Hermine Ricketts and Tom Carroll with daily fines if they did not remove their front yard vegetables.

Regardless of motive, cities and towns must exercise restraint. The Constitution sets the baseline, and without it, abuses can and will grow quickly out of hand, and tall grass will be nothing in comparison.

The post Florida Man's Tall Grass Saga Comes to an End appeared first on Reason.com.

At press time, the U.S. Senate is debating whether to not only renew the U.S. government's spying powers under Section 702 of the Foreign Intelligence Surveillance Act (FISA) but dramatically expand them. That's because the House, in reauthorizing the expiring powers last week after an extended battle, adopted language that broadens the definition of those who can be forced to help the government snoop. That leaves the Senate as the last check on already controversial legislation that just became more dangerous before it's signed by a president eager to exercise its power.

Unchecked Surveillance Authority

"The legislation coming from the House gives the government unchecked authority to order millions of Americans to spy on behalf of the government," warns Sen. Ron Wyden (D–Ore.). "Under current law—section 702 of the Foreign Intelligence Surveillance Act—the government can order the telephone companies and email and internet service providers to hand over communications. This bill expands that power dramatically. It says that the government can force cooperation from, quote, 'any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications.'"

The problem, point out privacy advocates, is that even before the House of Representatives debated the provisions of the Reforming Intelligence and Securing America Act (RISAA)—rejecting (on a tie vote) a requirement that government agents get a warrant before searching records about Americans, and ultimately settling on a two-year renewal of surveillance powers—members of the House Intelligence Committee inserted new and troubling language.

Their intention, according to Charlie Savage of The New York Times, was to clarify that cloud-computing data centers must cooperate with government spooks. But that's not what they confined themselves to in their changes to the text. As Wyden emphasizes, the bill now broadly applies to service providers with access to communication equipment. After much protest, exceptions were written in for hotels, restaurants, dwellings, and community centers. But everybody else is subject to the law.

Everyone Is a Spy

"An enormous range of businesses would still be fair game," protests a coalition of privacy, civil liberties, and civil rights groups in a letter to Senate leadership from both parties, "including grocery stores, department stores, hardware stores, laundromats, barber shops, fitness centers, and—perhaps most disturbingly—commercial landlords that rent out the office space where tens of millions of Americans go to work every day, including news media headquarters, political campaign offices, advocacy and grassroots organizations, lobbying firms, and law offices."

The coalition, which includes groups of widely varying political views, refers to this language as the "Everyone Is a Spy" provision, since potentially anybody with access to a laptop or WiFi router could be compelled to help the government conduct surveillance. Given how broadly the word access can be defined, that might even include cable installers, repairmen, and house cleaners.

"If this became law, millions of American small business owners would have a legal obligation to hand over data that runs through their equipment," caution former Rep. Bob Goodlatte (R–Va.) and former Sen. Mark Udall (D–Colo.), both now with the Project for Privacy and Surveillance Accountability. "And when they're done with doing their part in mass surveillance, these small businesses would then be placed under a gag order to hide their activities from their customers."

RISAA's Section 702 reauthorization is pending in the Senate, though the White House is pushing lawmakers "to swiftly pass this bill before the authority expires on April 19," so abuses of the new language are hypothetical. But it's a fact that the law's existing surveillance power, without the broadened scope of the "Everyone Is a Spy" provision, has already been misused against a great many Americans.

Surveillance Abuse Under Existing Law

In 2023, the House Judiciary Committee held two hearings to examine "the FBI's abuses of its Foreign Intelligence Surveillance Act (FISA) authorities." Declassified documents offered glimpses of misuses of surveillance power including FBI spying on a U.S. senator, a state lawmaker, and a judge.

"Section 702 poses significant privacy and civil liberties risks, most notably from U.S. person queries and batch queries" in which multiple search terms are run through the system as part of a single action, according to a report published last September by the federal Privacy and Civil Liberties Oversight Board (PCLOB). That report revealed that roughly three million queries on Americans were run just in 2021.

"Significant privacy and civil liberties risks also include the scope of permissible targeting," added the PCLOB review.

If the scope of permissible targeting is already risky, expanding the law's language to compel cooperation from "any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications" would seem to dramatically compound the risks.

Government Itself Is a Threat

"No democracy should give its government the Orwellian power contained in the House bill," cautions Elizabeth Goitein of the Brennan Center for Justice at NYU Law. "The Senate must take the time it needs to get this right, or our democracy will pay the price."

Fortunately, Ron Wyden isn't the Senate's only skeptic when it comes to Section 702 and domestic surveillance. Sen. Rand Paul (R–Ky.) opposed extending the law even before its language was broadened to include the "Everyone Is a Spy" provision.

"Using 702, Americans' communications content and metadata is inevitably swept up and kept in government databases without a warrant. Law enforcement agencies then access Americans' communications without a warrant," Paul warned in December. "Those who make the lazy and predictable argument that government is your only shield from threats always fail to mention that government itself often is the threat."

Civil libertarians were right about the dangers of Section 702 before it was amended to apply to landlords and cable installers. Last year's House hearings demonstrated that the law's power has already been abused by government officials. There's no reason to believe they'll be more restrained in their snooping when the law is less so.

The post Revised Section 702 Surveillance Authority Poses More Danger Than Ever appeared first on Reason.com.

The Scottish Ambulance Service fired Christopher Gallacher, a duty manager at West Centre in Glasgow, after finding he had an on-duty emergency dispatcher pick him and his family up at the airport after a vacation. According to a disciplinary tribunal, this happened on an evening when there were a "high number of calls" and patients were waiting for "lengthy periods of time." The dispatcher was away from his post for 45 minutes. Gallacher said he had assumed the man would use his break to pick him up.

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During the height of the pandemic summer of 2020, the proprietors of the Burning Bridge Tavern worked with local officials in Wrightsville, Pennsylvania, to host a series of outdoor gatherings for the community.

For their trouble, the bar's owners got slapped with a series of citations by the Pennsylvania Liquor Control Board (PLCB), the government agency that oversees and manages the sale of alcohol in the state. The citations were ticky-tack offenses, according to Burning Bridge's chief financial officer, Mike Butler. Twice, the bar was cited for noise violations because they'd allowed a band playing at the gathering to plug into the tavern's electricity supply. Another offense occurred when the owners and some family members were drinking inside the tavern, which was closed to the public, during a period when indoor dining was prohibited.

A frustrating situation, but not the end of the world. Burning Bridge's owners paid the fines associated with the citations and assumed that was that. But then the bar had to renew its liquor license.

"They denied it. They said, 'Oh, you're the guys that got all those citations,'" Butler says. "It was a real gut punch."

Turns out, over the past two years the PLCB has pushed dozens of Pennsylvania establishments that racked up pandemic-​related citations to sign "conditional licensing agreements" to renew their liquor permits. In some cases, those agreements have forced the sale of licenses—but in most cases, as with Burning Bridge, they've added additional conditions to the license that could prevent a future renewal from being approved.

While the PLCB cannot revoke existing licenses, the board is empowered to object to the renewal of a license or to demand the license can only be renewed conditionally. "In extreme cases," PLCB Press Secretary Shawn Kelly says, the PLCB can force the sale of a liquor license, though the board only pursues that option when "there is an operational and citation history that calls for such an agreement."

Even though Burning Bridge's owners weren't forced to sell their license, Butler says signing the conditional licensing agreement has come with real costs: The bar's insurance premium tripled as a result of being viewed as a greater risk.

Typically, those agreements have been used to curb nuisance bars or force establishments with a history of legal problems, like serving underage patrons, to clean up their acts. Recently, however, the PLCB has taken a hardline stance against establishments that violated pandemic-era rules.

"The people who violated the governor's mandates and orders should face some consequences," argued Mary Isenhour, one of the PLCB's three board members, at a January 2022 meeting where the first several of the COVID-related conditional licensing agreements were approved.

Isenhour was responding to an objection raised by a fellow board member, Michael Negra, who argued that the PLCB should take the view that businesses had "paid their dues" during the pandemic and should not face additional sanction now. Negra left the PLCB in June 2022 and now works for a ​Pittsburgh-based lobbying firm. He did not return requests for comment.

After Negra's departure, the PLCB has unanimously approved dozens of conditional licensing agreements for COVID-​related violations, including at least 10 that have required the sale of a license, based on a review of PLCB meeting minutes.

Kelly, the PLCB spokesman, maintains that licensees are "under no obligation" to sign conditional licensing agreements.

But any licensee that refuses would face a set of unattractive alternatives: not having the license renewed, or being drawn into a legal battle against the PLCB in state court.

"Do you risk your entire business, your license, the loans, all of that to fight" in a real court, asks Butler. "Or do you just kind of hold your nose and take your medicine? Tactically, for us, we weren't in a position to say, 'Yeah, we'll run that risk.'"

Chuck Moran, executive director of the Pennsylvania Licensed Beverage and Tavern Association, acknowledges that pandemic-era public health orders left many establishments with a difficult choice between following the law and surviving financially. Fairly or unfairly, "those who broke the rules went the wrong way and now they're paying the price," he says.

The whole matter raises some complicated questions about how our political institutions ought to handle, with the benefit of hindsight, the unprecedented circumstances created by the pandemic and policy makers' response to it.

"The feeling was that our government really isn't working to try and help us," says Butler. "At this point, it feels like they're coming after us."

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Every year, thousands of New York City families are subjected to invasive home searches as part of child abuse and neglect investigations. While less than 7 percent of these investigations lead the agency to file claims of abuse or neglect, a new lawsuit alleges that the city's Administration for Children's Services (ACS) workers often make misleading—or outright false—threats to coerce parents to allow ACS to conduct warrantless searches of their homes.

According to the lawsuit, which was filed on Tuesday, ACS employs a widespread policy of coercing families under investigation to allow case workers into their homes. ACS workers allegedly often tell families that they "must" or "have to" let them search their homes, insist that they do not need a warrant for the search, and even threaten to take noncompliant parents' children away. 

Even though ACS workers are technically legally required to obtain a warrant to search homes, the agency very rarely seeks them. According to the suit, of the almost 53,000 investigations conducted by ACS in 2023, it only sought 222 court orders to search families' homes.

"Even assuming ACS completed only one home search during each investigation (it typically conducts several), ACS sought court orders for just 0.4% of home entries," the suit states. "This means over 99.5% of home searches that ACS conducts are 'presumptively unreasonable' under the Fourth Amendment."

Once inside a family's home, the suit claims that ACS workers engage in incredibly invasive tactics, looking "inside medicine cabinets, under beds, in closets and dresser drawers, in the refrigerator, and in cupboards." Even more troubling, strip searches of children are common, with workers demanding that children lift up their shirts or pull down their pants. Over the course of an investigation—the average length is 60 days—families are typically subjected to these searches more than once.

The agency itself seems self-aware about the impact of these coercive techniques. According to one 2020 report by the National Innovation Service, ACS policy "incentivizes [staff] to be invasive and not tell parents their rights." The report noted how "the experience of an investigation, even when an allegation is ultimately determined to be unfounded, too often traumatizes parents and children."

Further, agency leadership has also acknowledged that many reports of child abuse and neglect are completely unfounded, as individuals are allowed to make anonymous reports. A 2023 letter from the New York City Bar went so far as to state that a "significant percentage of" child abuse hotline callers "make false reports, for the purpose of harassment."

In all, the suit argues that ACS' policy of using coercive tactics to enter families' homes without a warrant constitutes a violation of their Fourth Amendment rights, arguing that the agency's "failure to adequately train or supervise ACS caseworkers regarding the protection of parents' Fourth Amendment rights" has directly led ACS workers to use manipulative, false tactics to persuade families to allow them to "conduct warrantless, non-exigent searches of Plaintiffs' and class members' homes."

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