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'Constitutionalist sheriffs' won't enforce coronavirus restrictions

Greenwich Time
April 23, 2020

In Snohomish County, Washington, Sheriff Adam Fortney is refusing to enforce the governor's stay-at-home order. He claims the order "intrudes on our right to life, liberty and the pursuit of happiness." On April 22, he told constituents via a Facebook post that "along with other elected Sheriffs around our state, the Snohomish County Sheriff's Office will not be enforcing an order preventing religious freedoms or constitutional rights."

In this Jan. 28, 2020 photo, Snohomish County Sheriff Adam Fortney holds a press conference in Everett, Wash., explaining why he reinstated two deputies who were fired for violating policy. Fortney, the sheriff of Washington state’s third largest county, says he won’t enforce Gov. Jay Inslee’s stay-at-home order to slow the spread of the coronavirus, saying it violates people’s constitutional rights. (Andy Bronson/The Herald via AP)

These Washington sheriffs are far from alone. They're part of a nationwide group of sheriffs who feel beholden to no one but their voters. As they have on issues such as immigration and gun regulations, they will lead rebellions against higher levels of government - in this case, undermining public health efforts in the name of their interpretation of the U.S. Constitution. Here's how.

- Sheriffs are unlike other elected officials

Unlike police chiefs or commissioners who are generally appointed, sheriffs are law enforcement officials elected by residents of their counties. While research finds that police generally try to carry out their responsibilities in a nonpartisan manner, sheriffs are influenced by the desire to be reelected. Sheriffs run for office in the same way that members of Congress or the president do: they run on campaign platforms they believe will win a majority of votes. Sheriffs' campaign platforms consist of their political and law enforcement records, personal philosophies and policy priorities.

What sheriffs promise to do is quite likely to come true, because they have much more autonomy than do other elected officials. Legislators can't do much without first going through lengthy and involved policymaking efforts that involve collaborating with their fellow legislators. Governors and presidents have to work with the legislative branch of government. Because sheriffs don't have these constraints, their personal attitudes are quite likely to affect how they carry out their jobs.

For example, research finds that sheriffs choose whether and how they cooperate with federal immigration authorities. On one end of the spectrum is a group of sheriffs in North Carolina who campaigned on the promise to cut ties between their offices and Immigration and Customs Enforcement (ICE). Since their elections, they have refused to honor immigration detainers, which are official ICE requests to take custody of someone who has been arrested; these sheriffs no longer allow ICE into county jails. On the other end of the spectrum was Joe Arpaio of Maricopa County, Ariz., well known for relentlessly policing immigration status, at the expense of civil rights and neglecting other aspects of his job.

Now combine that popular mandate from being directly elected with law enforcement power. What you get are sheriffs willing and able to lead local rebellions against the government - something that for decades has been happening from a group known as "constitutionalist sheriffs."

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LEGAL ANALYSIS: Why Mueller’s Seizure of Transition Emails Likely Violated the Law

Law & Crime
December 19, 2017

Robert Mueller

According to published reports, Special Counsel Robert Mueller engaged in a mass seizure of all emails of the Trump transition team without even a warrant or a subpoena. In my opinion, a mass seizure – as is alleged here against Mueller – cannot conform to either Fourth Amendment standards or attorney-client privilege protections. The questions boils down to this: was there a reason for the individuals communicating by email, including with their lawyers, to believe their communications were private or privileged? Or, did the individuals forever waive or “implicitly consent” to any future search or seizure of their emails?

The Supreme Court in 2010 “counsels caution” before too soon defining “the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices” until popular use of the technology used was better developed socially. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010). In other words, do most people expect privacy in that use of technology to communicate, or do they assume it is equivalent to talking in an open office where anyone from the public can walk by? The court made clear a government search was not reasonable if not “justified at its inception” or “excessively intrusive” or “not reasonably related to the objectives of the search.”

Put simply, the use of a government server, like the use of an employer’s server, does not control the privilege or privacy analysis. Instead, courts typically employ a four-factor test, that tends to be very fact-intensive, email-specific, and individual-specific. (In re Reserve Fund Securities and Derivative Litigation, 275 F.R.D. 154 (S.D.N.Y. 2011). First, whether the government or company maintains a policy banning personal use. Second, whether the government or employer monitors the use of the email. Third, whether third parties have a right of access to the emails beyond technical audits and maintenance. Fourth, whether the government or employer notifies the individual of the limits on privacy in the emails, whether the individual was aware of those policies, the use of those policies, and the monitoring of those policies. It boils down to whether a person in the individual’s shoes would have had no reasonable expectation of privacy in their email communications.

A fifth factor is relevant in the Fourth Amendment context: whether the government gave an individual notice and the individual had knowledge of the right to refuse to give consent to the future search of their emails. Courts held individuals who agreed, as a condition of employment to “any future searches” did not waive their right against such searches because the waiver failed to give them the “right to refuse to give consent to the future search.” For the government to claim implied consent or waiver, “requires clear notice that one’s conduct may result in a search being conducted of areas which the person has been warned are subject to search,” and such notice must ensure an individual “had knowledge of the right to refuse to give consent.” (Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y. 2008). Hence, a broad waiver was found inadequate to permit a search. (Anobile v. Pellegrino, 303 F.3d 107, 124-25 (2d. Cir. 2002). The Supreme Court made it clear the question usually “must be addressed on a case-by-case basis” and rarely subject to blanket waivers of Fourth Amendment liberties. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010).) As the court reiterated, “individuals do not lose Fourth Amendment rights” merely because they use government-provided servers, offices, or equipment. (O’Connor v. Ortega, 480 U.S. 709 (1987).

Courts held that an employee has a reasonably expectation of privacy in the contents of his computer even when given specific notice the computers could not be used for personal purposes and the individual had authorized disclosure for technical and maintenance audits. Leventhal v. Knapek, 266 F.3d 64, 74 (2d. Cir. 2001). Attorney-client privilege is broader. As courts have held, emails between government employees remained privileged even though sent over government email servers. (In re County of Erie, 473 F.3d 413 (2d Cir. 2007). Courts held an ex-employee could assert attorney-client privilege against use of such emails by his company even though emails were located on employer’s computer and employer gave employee notice any documents stored on computer not protected. (Curto v. Medical World Communications (E.D. N.Y. 2006).

The Mueller search runs afoul of many of these established court precedents and Fourth Amendment privacy and privilege principles. First, it appears Mueller searched and seized every email, without any kind of categorical or keyword search. This is exactly the kind of search the Supreme Court made clear was not allowed under the Fourth Amendment. This means Mueller can only prevail if he didn’t seize a single email of a single individual that the individual could have any expectation of either personal privacy or attorney client privilege in.

The primary excuses proffered so far for the broad seizure is the faulty assumption the use of a government server waived all privacy and all privilege of every email ever made over that server. As identified above, that has never been the law. The security and efficacy of government-owned servers for transition employees are not intended as a trap for the unwary to forever forfeit their privacy and privilege rights in their communications. Indeed, doing so would undermine use of such communications, and invite Hillary Clinton type bathroom closet email servers for everybody.

Mueller’s problem here is these were not even government employee emails; they were the emails of private individuals stored temporarily on a government server, and publicly declared to be “private materials” as a matter of custom, practice and the public policy of the National Archives. As Professor Jonathan Turley identifies, the National Archives recognize transition email records “are not federal or presidential records, but considered private materials.”

The only “notice” evidence otherwise given publicly is that an agreement between the GSA and the transition team identified the possibility of technical and maintenance audits, with some claiming this as a “waiver” of all privacy and privilege rights in the emails forever. Here again, the law does not support such a claim; even cases with much more specific notices and much less invasive searches, found privacy and privilege objections persisted. So far, a striking lack of arguments and evidence has been mounted for claiming every single email lacked any privacy or privilege.

It appears to me, Mueller deliberately skipped the court, the grand jury, and the government-imposed limits on investigative inquiries into worker conduct under Supreme Court precedent; he might have done so because he wanted a tactical edge, and was walling to ignore the Fourth Amendment restrictions on him to do so. Mueller may come to regret his choice.

Robert Barnes is a California-based trial attorney whose practice focuses on Constitutional, criminal and civil rights law. You can follow him at @Barnes_Law.

'They are coming to kill us': Last-standing four militia men in Oregon standoff say they are willing to die if the FBI won't give in to their demands

Daily Mail
January 28, 2016

Four militiamen are still refusing to leave the Malheur National Wildlife Reserve where they have been locked in a 27-day stand-off with police, which has left one dead; 11 arrested and has brought widespread condemnation from the local community.

In a live video broadcast from the Oregon ranch this week, one of the last-standing members, said he believes the FBI is 'going to kill them', but refused to leave unless the authorities would meet their demands.

Another militiaman added he is 'willing' to die in a final bloody siege with the authorities if negotiations fail. Their comments come after the last leader of the occupation voluntarily handed himself in at a police checkpoint.

However, the group's number is continuing to dwindle rapidly. The five remaining members quickly dropped to four on Thursday morning.

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Murder: This militiaman appeared on a YouTube video accusing the FBI of plotting to kill the remaining demonstrators

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Blackout: The armed protester claimed the FBI had ordered the media away from the nature reserve so the 'killings' wouldn't be recorded

A video posted Thursday to the YouTube channel DefendYourBase, which the group has been using to give live updates says the occupiers want assurances they won't arrested.

A speaker believed to be David Fry said: 'We're stuck here, four of us. They're telling us it's safe to leave, but it's not safe.'

Group co-leader Jason Patrick, 43, of Bonaire, Georgia, was arrested on Wednesday along with two other militiamen.

Eight members were already under arrest following the stand-off and fatal shooting of rancher Robert 'LaVoy' Finicum, 55, on Tuesday.

Militia leader Ammon Bundy was among those seized after the bloody traffic stop on Highway 395.

He and six others were declared a flight risk on Thursday afternoon and refused release lest they return for the group's last stand. Dozens of supporters packed the courtroom for the hearing.

Authorities claim father-of-11 Finicum reached for a gun in his waistband after fleeing in his vehicle from a police cordon and was promptly shot dead by officers.

Bundy's brother, Ryan, was also shot in the arm during the incident.

The remaining militiamen have spoken of their dismay at the death of Finicum.

In another live video rant, one militia member angrily blasted the FBI as 'murderers'.

'The media has been ordered to leave that means they're coming to kill us, they don't want them to see that. They're going to murder all of us... The American people better wake up,' he said.

Another said: 'If I die, I died for my country, I died a free man. That's how I want to die.'

And in an interview with the Plain Dealer on Wednesday, Fry said: 'I'll pass on and move on to the next life. I don't know (how it will end), but I'm willing to go that far.

'Obviously they are murdering people at this point. They've been doing it for a long time now, and you guys are watching it.'

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Shot dead: Rancher Robert 'LaVoy' Finicum, pictured, was shot in a clash with police on Tuesday

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Family man: Finicum (center) and wife Jeanette (right) had been married for 23 years. He had 11 children

The final four are refusing to leave unless authorities assure them they will all be free to return home.

The Oregonian reported on Thursday that the group is concerned about a warrant out for militiaman Sean Anderson's arrest and they want it dropped before they leave.

So far 11 members of the militia have been arrested.

Leader Ammon Bundy and his brother, Ryan Bundy were seized on Tuesday alongside Shawna Cox, 59, Brian Cavalier, 44, Ryan Payne, Joseph O'Shaughnessy and Peter Santilli. Jon Ritzheimer, 32, was arrested in Peoria, Arizona, after turning himself in to police

Duane Leo Ehmer of Irrigon, Oregon, Dylan Wade Anderson, 34, of Provo, Utah and Patrick, 43, were arrested on Wednesday.

The arrests follow the release of federal court documents which claim that the militiamen were equipped with night vision goggles and explosives.

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Read more: http://www.dailymail.co.uk/news/article-3421528/They-coming-kill-standing-militia-men-Oregon-standoff-say-willing-die-FBI-won-t-demands.html#ixzz3yb7tc7gB
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