Mediaboss Marketing

ISTANBUL A last-ditch effort by President Recep Tayyip Erdogans governing party to annul the election for mayor of Istanbul has opened wide divisions in the partys rank and file and with its nationalist allies, as even the president has come under unusual attack.

These tensions, including an ugly physical assault on an opposition lawmaker, have underscored just how severe a blow the loss of Istanbul, still to be officially confirmed, has inflicted on Mr. Erdogans once seemingly solid power structure.

For the first time in 25 years, since Mr. Erdogan first won power as mayor of Istanbul in 1994, his Justice and Development Party, or A.K.P., has lost control of his home city and power base, along with four other major cities, including the capital, Ankara.

The party has mounted an extraordinary appeal to have the Istanbul election canceled and a new election held. Yet it remains deeply divided about the best way forward.

Supporters and opponents of the party are warning that an annulment with a new election has steep risks in itself and may in fact only compound the political fallout for the president.

The three-week-long dispute over the election results has brought no reprieve to Turkeys economic woes, and politicians and analysts on all sides predict that a do-over of the election would risk social chaos.

Opposition supporters, whose candidate, Ekrem Imamoglu, has already taken up office as Istanbuls mayor, are still camping out at election counting centers and are expected to protest any redo.

A second election would raise the prospect of further repression and legal wrangles, and a prolonged struggle could spark another crash of confidence in Turkeys economy.

The Turkish lira, which lost 30 percent of its value last year, dipped again toward record lows this week, recording 5.9 to the dollar on Thursday. Unemployment has risen to nearly 14 percent, and the government depleted its reserves propping up the currency in the run up to the March 31 election.

Mr. Erdogan has already come under attack from within his own party, revealing the animosities beneath his increasingly authoritarian presidential rule.

Ahmet Davutoglu, a former foreign minister, in a rare public statement posted on his Facebook page, criticized the governments handling of the economy, as well as the new presidential system that has given Mr. Erdogan enhanced powers.

But he saved his most scathing criticism for the presidents inner circle, which, he said, sees itself above the committees of our party and aims to rule the party like a parallel structure.

Our country cannot be left to the concerns for the future of a narrow and self-seeking group who are slaves to their ambitions, he wrote.

That group is believed to have pushed hardest to redo the election in Istanbul, which has been a source of power, prestige and great wealth for the president, his family and the ruling clique.

The group is led by Mr. Erdogans son-in-law Berat Albayrak, 41, who was promoted to minister of finance and treasury last year. The interior minister, Suleyman Soylu, 49, has also emerged as an aggressive player.

Mr. Davutoglu, a charismatic ideologue who was sidelined after Mr. Erdogan dropped him from his cabinet in 2016, also criticized Mr. Erdogans alliance with the Nationalist Movement Party.

The party provided a critical alliance for Mr. Erdogan in last years presidential and parliamentary elections and in last months local elections.

But since the Istanbul election, its leader, Devlet Bahceli, has stoked emotions further with a speech criticizing the opposition leader and urging the High Election Council to order a rerun as a matter of national survival.

The tensions peaked last weekend when a mob assaulted Kemal Kilicdaroglu, the leader of the opposition Republican Peoples Party, at a funeral for Turkish soldiers.

Mr. Kilicdaroglu was punched and pushed by a crowd after the prayer ceremony in an attack that has shocked many Turks because of the ugly nationalism on display.

The opposition leader, a member of the Allevi minority, was in danger of being lynched, according to his party, corralled in a house as members of the crowd called to burn it down. He had to be evacuated by security forces in an armored vehicle.

The man who punched Mr. Kilicdaroglu was found to be a member of Mr. Erdogans party, which has promised disciplinary action.

Mr. Kilicdaroglu has alleged the attack was planned beforehand and said the aim was to make his party back out of the alliance that brought his party apparent success in the election in Istanbul.

That alliance included a tacit understanding with the pro-Kurdish Peoples Democratic Party, which Mr. Erdogan has often accused of being linked to a designated terrorist group.

The attack against me is an attack against our unity, Mr. Kilicdaroglu said at a rally after the attack. They think, If we attack, will he give up? Whatever you do, I will not give up.

An investigation by his party has found that batons were handed out by one man from a rooftop, that piles of stones and barrels had been placed to block his exit from the funeral, and that the police had evacuated him as they learned of the mob calling in reinforcements from other villages, the opposition newspaper Cumhuriyet reported Thursday.

Ali Sirmen, a columnist with the same newspaper, blamed Mr. Erdogan for stoking the tension by relentlessly accusing the opposition of siding with terrorists during the election campaign.

Those who sow the wind have begun to reap the whirlwind, Mr. Sirmen wrote. Instead of debating who was at fault, now is the time to talk about what needs to be done to prevent a civil war.

Mr. Erdogan and Mr. Soylu, the interior minister, have both said the attack stemmed from the high emotions running at the funeral.

But analysts close to the government said the attack reflected a battle within the ruling alliance, between those who want to maintain tension in order to force a rerun of the election, and senior heads in the party who wanted to calm things down.

Naci Bostanc, leader of the A.K.P. parliamentary group, deplored the attack on Mr. Kilidaroglu as never acceptable in a speech at the parliaments opening session on April 23. Turkey needs to overcome every kind of tension with the line of reason and responsibility, he said.

Those who were stoking the tension were trying to sabotage an idea floated by Mr. Erdogan for a Turkey alliance to unite Turks after a bruising election campaign, wrote Muharrem Sarikaya, a columnist for the news channel Haberturk on Thursday.

A group inside the AK Party is uncomfortable that the masses have been filled with negative energy, he wrote. They are not content that the tension is being carried to such a high level.

The rest is here:
Erdogans Party Is Deeply Divided by Push to Redo Istanbul ...

In a new case, Taylor v. City of Saginaw, the Sixth Circuit has ruled that the common practice of parking enforcement officers "chalking" a tire to see if the car has been moved violates the Fourth Amendment. I'm not sure the decision is correct. But it's plausible on current law, and it raises some really interesting conceptual issues. [SEE UPDATE BELOW ON THE AMENDED OPINION]

Here's an overview of the new case and some thoughts on whether it's right.

First, the facts. Alison Taylor gets a lot of parking tickets, and she decided to make a federal case out of it. Specifically, she sued the city of Saginaw in federal court. She alleged that her constitutional rights were violated by practice of "chalking" her tire to figure out if she had overstayed the time she was permitted to park her car.

I don't know of any other cases in which "chalking" was alleged to violate the Fourth Amendment. But the Sixth Circuit ruled that it did, in a decision authored by Judge Donald joined by Judge Kethledge and Judge Keith. And the court's reasoning seems broadly applicable to all of our cars, not just Alison Taylor's.

Here's the court's thinking. First, the court reasons that the chalking is a search of the car because it is a trespass on to the car to obtain information under United States v. Jones. It's a trespass under Jones, the court says, because it satisfies the common law trespass test:

In accordance with Jones, the threshold question is whether chalking constitutes common-law trespass upon a constitutionally protected area. Though Jones does not provide clear boundaries for the meaning of common-law trespass, the Restatement offers some assistance. As defined by the Restatement, common-law trespass is "an act which brings [about] intended physical contact with a chattel in the possession of another." Restatement (Second) of Torts 217 cmt. e (1965). Moreover, "[a]n actor may . . . commit a trespass by so acting upon a chattel as intentionally to cause it to come in contact with some other object." Id. Adopting this definition, there has been a trespass in this case because the City made intentional physical contact with Taylor's vehicle. As the district court properly found, this physical intrusion, regardless of how slight, constitutes common-law trespass. This is so, even though "no damage [is done] at all." Jones, 565 U.S. at 405 (quoting Entick v. Carrington, 95 Eng. Rep. 807, 817 (C.P. 1765)).

Next, it is an act conducted to obtain information, as Jones requires:

[O]nce we determine the government has trespassed upon a constitutionally protected area, we must then determine whether the trespass was "conjoined with . . . an attempt to find something or to obtain information." Id. at 408 n.5. Here, it was. Neither party disputes that the City uses the chalk marks for the purpose of identifying vehicles that have been parked in the same location for a certain period of time. That information is then used by the City to issue citations. As the district court aptly noted, "[d]espite the low-tech nature of the investigative technique . . . , the chalk marks clearly provided information to Hoskins." This practice amounts to an attempt to obtain information under Jones.

Having concluded that the chalking was a search, the court then concludes that it was unreasonable and therefore unconstitutional. The basic idea here is that no exceptions to the warrant requirement apply, so by default the warrantless search is unlawful. First, the automobile exception does not apply:

The automobile exception permits officers to search a vehicle without a warrant if they have "probable cause to believe that the vehicle contains evidence of a crime." United States v. Smith, 510 F.3d 641, 647 (6th Cir. 2007) (citation omitted). No such probable cause existed here. Thus, the automobile exception is inapplicable.

Next, the search was not reasonable under the community caretaker exception:

The City fails to carry its burden of establishing that the community caretaker exception applies in this instance. First, on these facts, the City fails to demonstrate how this search bears a relation to public safety. The City does not show that the location or length of time that Taylor's vehicle was parked created the type of "hazard" or traffic impediment amounting to a public safety concern. Nor does the City demonstrate that delaying a search would result in "injury orongoing harm to the community." Washington, 573 F.3d at 289. To the contrary, at the time of the search, Taylor's vehicle was lawfully parked in a proper parking location, imposing no safety risk whatsoever. Because the purpose of chalking is to raise revenue, and not to mitigate public hazard, the City was not acting in its "role as [a] community caretake[.]" Id. at 287.

And finally, the search was not justifiable based on a general interest in having an orderly parking system:

While the City is entitled to maintain efficient, orderly parking, the manner in which it chooses to do so is not without constitutional limitation. As the Supreme Court explains, "the [Fourth] Amendment does not place an unduly oppressive weight on [the government] but merely . . . an orderly procedure. . . ." Jeffers, 342 U.S. at 51 (citation omitted).

The City does not demonstrate, in law or logic, that the need to deter drivers from exceeding the time permitted for parkingbefore they have even done sois sufficient to justify a warrantless search under the community caretaker rationale. This is not to say that this exception can never apply to the warrantless search of a lawfully parked vehicle. Nor does our holding suggest that no other exceptions to the warrant requirement might apply in this case. However, on these facts and on the arguments the City proffers, the City fails to meet its burden in establishing an exception to the warrant requirement.

Here are a few thoughts on the case:

(1) From a practical perspective, this is a really important decision. It concludes that a routine practice that wasn't thought to be illegal (if it was thought of at all) is actually unconstitutional. I'm not sure if the decision is correct. And as I'll explain below, there are several plausible but debatable moves in the opinion. But this decision is now binding in the Sixth Circuit and may also be followed elsewhere: Traffic enforcement officers around the country should be paying attention to this.

(2) Is the decision right? As I said above, I'm not sure. United States v. Jones introduced the idea of the trespass or physical intrusion test for searches in 2012. As I've written before, Jones could mean a lot of different things. It's just not yet clear what the standard is or how it should apply. Given that, I think the result in Tayloris plausible but that it's also subject to several plausible objections.

(3) Start with the question of trespass. First, the court takes from Jones the idea that the test is "common law trespass." Maybe that's the test. But maybe it's not. The Court in Florida v. Jardines notably did not describe the Jones test as a trespass test. Instead, Jardines described the test as "physical intrusion." That's potentially pretty different. And assuming the test is common law trespass, figuring out what kind of trespass test that meant is actually pretty tricky. Maybe it's the Restatement test, but maybe it's something different.

(4) I'm also not sure of the court's conclusion that the chalking was "to obtain information," needed to satisfy the search test from Jones. That's certainly a possible result. But it also strikes me as a somewhat awkward fit.

Here's the context. In Jones, the officer installed the GPS device on a suspect's car and then obtained GPS info from it as the car was tracked for 28 days. The majority ruled this a search in part on the ground that installing the GPS was done to obtain informationspecifically, the stream of data from the GPS that would provide the location of the car to which it was attached. Here's the most relevant discussion of the intent test from Footnote 5 of Jones:

Trespass alone does not qualify, but there must be conjoined with that what was present here: an attempt to find something or to obtain information.

Related to this, and similarly irrelevant, is the concurrence's point that, if analyzed separately, neither the installation of the device nor its use would constitute a Fourth Amendment search. Of course not. A trespass on "houses" or "effects," or aKatzinvasion of privacy, is not alone a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy.

The Sixth Circuit in Taylor sees that element satisfied by the chalking. And it is no doubt true that the officer chalked the car with the ultimate goal of finding out a factwhether the car had moved. That may be right under Jones.

On the other hand, it seems like a somewhat unusual application of the intent test. I would think the Fourth Amendment idea of a "search" of a person's "effects" ordinarily implies intent to obtain information from the effect searched. Normally, searching a box means getting information from inside the box. Searching a home means getting information from inside the home.

In Taylor, however, the officer's plan is to place his chalk on the car and then come back later and see if the chalk movedthus giving the officer a clue about whether the car moved. That's information about the car, but it seems removed from a search of the car itself. After all, the car is just out in public. It is sitting on a public street for anyone to see. And the officer is just looking at the chalk the officer placed. Is it really a search of the car at Time A to see at Time B if the chalk moved between Time A and Time B?

Maybe yes. Maybe the problem is that Jones itself was an awkward fit. The obtaining of information in Jones was also just ultimately about the car and where it had been in public, as well. And the Supreme Court apparently found that sufficient. But it's at least a question worth raising: Are there limits on what kind of information the government needs to want to obtain, and from what, and when, to satisfy the Jones test?

(5) Assuming the chalking is a search, the next question is whether it is constitutionally reasonable. I agree with the Court's analysis of the automobile exception and the community care-taking exception. But I suspect some courts might disagree with the Sixth Circuit's reasonableness analysis on the ground that chalking is a de minimis search as part of a regulatory scheme. It's just putting a temporary mark on a tire, it causes no damage, and it doesn't reveal anything. Some courts have articulated doctrines that allow low-level searches as reasonable based on a balancing of interests without particularized suspicion. I can imagine that as a possible path for other courts. We'll see.

(6) I have to wonder how much this issue matters in a world of smart phones. Everyone is now carrying around a camera. Instead of chalking the tire, the parking folks can just take a picture of the car. They can figure out if the car moved by comparing the pictures at Time A and Time B to see if the car is in the same place. It may be more complicated or expensive than chalking, but it avoids the Fourth Amendment concern by just observing what is in public without any physical attachment to property.

(7) Finally, it's not at all clear what if any remedies may be applicable. Chalking is common and hasn't been thought to be illegal. Given that, qualified immunity should attach and civil suits against the officers won't work. And it's not clear that there is any exclusionary rule available in an enforcement action to pay the parking ticket, as that is a civil proceeding and the exclusionary rule may not apply under United States v. Janis.

[UPDATE #1: Some readers suggest in that I should offer a more complete survey of remedies that are available in (7) above. In that case, I should note that civil suits should be available against municipalities that have a chalking policy, and injunctive relief may be available. For an overview of Fourth Amendment remedies, see this paper at pages 239-45.]

[UPDATE #2: Thinking about the case some more, let me add a new point (8). There's a way to read the Sixth Circuit's decision a lot more narrowly than I have above, and many others have elsewhere. Here's how. The ruling in Taylor was based on a motion to dismiss under Fed. R. Civ. Pro. 12(b)(6). This means that whenTaylor sued, the defendants (the city and officer) responded that the case should be tossed out at the outset because the complaint itself didn't establish a plausible case. The court in Taylor is just ruling on that, and it isn't actually offering a full ruling yet on the constitutionality of the search. Ordinarily, the government has the burden of showing that a warrantless search was reasonable. But the government hasn't had the opportunity to make that showing yet, as we're just going on the complaint.

This means, if I'm understanding the civil procedure aspects of this case correctlyI'm a crim pro prof, not a civ pro profthe rulings that the court offers on reasonableness are particularly tentative. Now that the case goes back down to the district court on remand, the civil defendants can make different arguments about why the searches were reasonable and can offer new evidence to support their reasonableness arguments (both old and new, if applicable). The Sixth Circuit's opinion notes this very briefly near the end:

Nor does our holding suggest that no other exceptions to the warrant requirement might apply in this case. However, on these facts and on the arguments the City proffers, the City fails to meet its burden in establishing an exception to the warrant requirement.

I had missed this in part because the court offers a pretty thorough discussion of several fact-specific exceptions to the warrant requirement. It's a little bit unusual to see that given the procedural posture. But I think the procedural posture of the case may end up being important, as it means that the court could issue a new ruling reaching a different result when the case is more fully litigated.]

UPDATE #3: The Sixth Circuit has issued an amended opinion clarifying the narrow scope of its holding. Here's the new conclusion:

Taking the allegations in Taylor's complaint as true, we hold that chalking is a search under the Fourth Amendment, specifically under the Supreme Court's decision in Jones. This does not mean, however, that chalking violates the Fourth Amendment. Rather, we hold, based on the pleading stage of this litigation, that two exceptions to the warrant requirementthe "community caretaking" exception and the motor-vehicle exceptiondo not apply here. Our holding extends no further than this. When the record in this case moves beyond the pleadings stage, the City is, of course, free to argue anew that one or both of those exceptions do apply, or that some other exception to the warrant requirement might apply.

More:
Chalking Tires and the Fourth Amendment Reason.com

SEARCH AND SEIZUREFOURTH AMENDMENT

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Annotations

History.Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the use of the writs of assistance. But though the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the colonies late and as a result of experience,1 there was also a rich English experience to draw on. Every mans house is his castle was a maxim much celebrated in England, as Samans Case demonstrated in 1603.2 A civil case of execution of process, Samans Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the Kings agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the Kings process. Most famous of the English cases was Entick v. Carrington,3 one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes polemical pamphlets attacking not only governmental policies but the King himself.4

Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets, and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive of all the comforts of society, and the issuance of a warrant for the seizure of all of a persons papers rather than only those alleged to be criminal in nature contrary to the genius of the law of England.5 Besides its general character, the court said, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington, the Supreme Court has said, is a great judgment, one of the landmarks of English liberty, one of the permanent monuments of the British Constitution, and a guide to an understanding of what the Framers meant in writing the Fourth Amendment.6

In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize prohibited and uncustomed goods, and commanding all subjects to assist in these endeavors. Once issued, the writs remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conicted with English constitutionalism.7 Otis lost and the writs were issued and used, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.

Excerpt from:
History and Scope of the Amendment :: Fourth Amendment ...

A traffic enforcement officer chalks tires in Arvada, Colo., in 2014. Physically marking a tire without a warrant is a violation of the Fourth Amendment, a federal appeals court ruled. Kent Nishimura/Denver Post via Getty Images hide caption

A traffic enforcement officer chalks tires in Arvada, Colo., in 2014. Physically marking a tire without a warrant is a violation of the Fourth Amendment, a federal appeals court ruled.

The next time parking enforcement officers use chalk to mark your tires, they might be acting unconstitutionally.

A federal appeals court ruled Monday that "chalking" is a violation of the Fourth Amendment.

The case was brought by Alison Taylor, a Michigan woman whom the court describes as a "frequent recipient of parking tickets." The city of Saginaw, Mich., like countless other cities around the country, uses chalk to mark the tires of cars to enforce time limits on parking.

By the time Taylor received her 15th citation in just a few years, she decided to go after the city and specifically after parking enforcement officer Tabitha Hoskins.

Hoskins, Taylor alleged in her lawsuit, was a "prolific" chalker. Every single one of Taylor's 15 tickets was issued by Hoskins after she marked a tire with chalk, and then circled back to see if Taylor's car had moved. That chalking, Taylor argued, was unconstitutional.

"Trespassing upon a privately-owned vehicle parked on a public street to place a chalk mark to begin gathering information to ultimately impose a government sanction is unconstitutional under the Fourth Amendment," Taylor's lawyer, Philip Ellison, wrote in a court filing.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit unanimously agreed. Chalking tires is a kind of trespass, Judge Bernice Donald wrote for the panel, and it requires a warrant. The decision affects the 6th Circuit, which includes Michigan, Ohio, Kentucky and Tennessee.

The Fourth Amendment protects people from "unreasonable searches and seizures." To determine whether a violation has occurred, the court first asks whether the government's conduct counts as a search; if so, it asks whether the search was reasonable.

The court found that chalking is indeed a "search" for purposes of the Fourth Amendment, because government officials physically trespass upon a constitutionally protected area to obtain information. Just as the Supreme Court ruled in 2012 that sticking a GPS tracker to a car counted as a "search," so is marking a tire with chalk to figure out how long it has been parked, the court wrote.

And that search wasn't reasonable, the court said. The city searches vehicles "that are parked legally, without probable cause, or even so much as 'individualized suspicion of wrongdoing' the touchstone of the reasonableness standard," the court wrote.

"We don't think everyone deserves free parking," Ellison, the attorney who brought the case, told The Associated Press. "But the process Saginaw selected is unconstitutional. ... I'm very glad the three judges who got this case took it seriously. It affects so many people."

Law professor Orin Kerr, noting that he had never seen a chalking case before, said parking enforcement officers could sidestep the constitutional issue altogether by simply taking a photo of the car rather than using chalk. "That way parking enforcement can learn the placement of the car [without] physically marking it," Kerr wrote.

On her Facebook page, Taylor the recipient of frequent parking tickets delighted in the fact that future law students would get to read about her case while studying the Fourth Amendment. "That's definitely the most exciting part!" she wrote. "I've helped change the law."

View post:
Parking Enforcers Who Chalk Tires Violate The Constitution ...

A partial transcript is as follows:

ARI MELBER: Theres a lot of talk about American being a leader as a democracy, quote unquote, in the 1800s when women and African-Americans couldnt vote. What kind of democracy is that?

ERIC HOLDER: Well, thats exactly right and thats why I hear lets Make America Great Again, and I think to myself when did you think America was great? It certainly wasnt when people were enslaved. It certainly wasnt when women did have the right to vote. It certainly wasnt when the LGBT community was denied the rights to which it was entitled.

MELBER:Does that phrase echo as discrimination in your ears?

HOLDER: It takes us back to an American past that never in fact really existed, this notion of greatness. You know, America has done superb things, great things, and it has been a leader in a whole range of things, but were always a work in process. Looking back, Make America Great Again is inconsistent with who we are as Americans at our best where we look at the uncertain future, embrace it, and make it our own.

View original post here:
Eric Holder: American 'Greatness' Never Really Existed