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On Tuesday, as the FEC case restarted in Salt Lake City's U.S. District Court, Johnson's attorney said his decision not to cooperate with the government stems in part from the Swallow case.

Johnson was ordered to a 30-day jail sentence for refusing to testify and has been held in solitary confinement since he was returned to a California federal prison where he is serving an 11-year sentence for his conviction in another case.

"He had not been in this situation until after he refused to testify in the John Swallow case," Kara Porter told U.S. District Judge Dee Benson. Johnson understands that failing to respond to the FEC's demands for evidence comes with consequences, Porter said, but he doesn't trust the government.

FEC attorney Kevin Hancock said Johnson should have to explain with specificity just why he fears the government if he plans to invoke the Fifth Amendment.

Porter disagreed and said she wasn't aware of any requirement for defendants to "identify their fear level." Johnson, she said, has good reason for his caution. Past promises of immunity offered to Johnson by federal prosecutors in exchange for information in other cases were ignored, triggering both the criminal case brought against him and the FEC civil action, she said.

Any missteps or statement he makes could be seen as inconsistent by government attorneys and grounds for new criminal charges.

"Mr. Johnson is understandably skeptical about the federal government's intentions toward him," Porter said.

Swallow's attorney Scott C. Williams told Benson he believes Johnson has cause for concern. The FEC case, he told Benson, is based largely on supposedly confidential statements Johnson was "incentivized" to make in 2013 interviews with state and federal agents investigating alleged acts of corruption by Swallow and his predecessor Mark Shurtleff.

Since then, Johnson has told the Swallow defense team that his statements to agents are "not reliable" and that if deposed or called to testify he would deny that Swallow had aided and abetted him in any election-fraud scheme.

Benson sided with the FEC's attorneys, however, ordering Porter to file a response to the government's motions for evidence that offers some explanation of Johnson's refusals.

Johnson and Swallow have denied involvement in any scheme or effort to illegally bundle campaign contributions.

FEC attorneys say the funds went to the campaigns of U.S. Sens. Mike Lee, R-Utah, and Harry Reid, D-Nev., as well as Shurtleff during the 2009-2010 election cycle.

Court papers say all the money came from Johnson, once a successful internet marketer, who was directed by Swallow to push the money through conduit contributors.

Under FEC rules, individual campaign contributions are capped at $2,400.

On Tuesday the FEC said it is preparing subpoenas for each of the individuals they believe were repaid by Johnson or his companies for making contributions.

jdobner@sltrib.com

Continued here:
Jeremy Johnson to invoke Fifth Amendment in campaign scheme ... - Salt Lake Tribune

Anthony Levandowski, the Uber executive and former Waymo employee at the center of a trade-secrets lawsuit between the two firms, wont be able to use the Fifth Amendments protections against self-incrimination to prevent Uber from turning over documents in the case, an appellate court ruled today.

Levandowski is the key figure in the suit that Waymo, the self-driving car unit spun off by Google parent Alphabet, filed in February. Waymo has accused Levandowski of stealing 14,000 files, amounting to 9.7 gigabytes of highly confidential data, before leaving the company in January 2016. He went on to start Otto, a driverless trucking startup that was acquired by Uber last year for $680 million.

Waymo alleges that Levandowski started talking with Uber about forming a self-driving car startup Uber would be interested in buying as early as mid-2015. It has urged the court to bar him from any work related to Ubers self-driving-car efforts.

Levandowski isnt a named defendant in the suitthose are Uber and Ottobut as a central figure he has retained his own counsel. In late March, Levandowski invoked the Fifth because of the potential for criminal action, precluding Uber from disclosing certain information requested by the court.

After multiple appeals, the court denied Levandowskis request as it applies to the documents sought from Uber. We are not persuaded that the district court erred in its ruling requiring defendants to produce an unredacted privilege log, states an order from the US court of appeals for the federal circuit, according to a copy viewed by Quartz. The unredacted privilege log is the evidence the court ordered Uber to produce and which Levandowski said could potentially incriminate him.

Mr. Levandowski has therefore failed to establish that he has a clear and indisputable right to the issuance of a writ of mandamus, the order concludes.

Levandowskis failed bid to use the Fifth here could prove very bad for Uber if it forces the company to serve up incriminating documents. Even without those documents, William Alsup, the federal judge overseeing the case, has called Waymos case against Uber extraordinary, saying earlier this month, I have never seen a record this strong in 42 years.

Correction: An earlier version of this story suggested the court denied Levandowskis ability to take the Fifth Amendment; what it specifically rejected was the argument that his Fifth Amendment rights should preclude Uber from turning over potentially incriminating documents sought in the case.

Read next: Waymo is hitting Uber where it hurts

See original here:
The Uber engineer accused of stealing 14000 documents from Waymo can't use the Fifth Amendment to stop Uber from ... - Quartz

If the police pull you over, it is your constitutional right to refuse to answer questions from the police, but does it violate the Constitution if they retaliate against you to punish you for refusing to answer their questions? That is the question at the center of case that went before the U.S. Court of Appeals for the 5th Circuit, Alexander v. City of Round Rock.

Orin Kerr, the Fred C. Stevenson Research Professor at The George Washington University Law School, took a look at the 5th Circuits decision for the Washington Post, and he writes that the court ruled while retaliation against a person for refusing to answer police questions may violate the Fourth Amendment, it does not clearly violate the First Amendment, and it does not violate the Fifth Amendment.

Kerr believes the courts ruling on the Fifth Amendment is missing some key complications, and he wrote about why its a tricky issue.

According to the facts presented in the case, Lionel Alexander was pulled over by police and declined to answer their questions. In response to that, police retaliated by ordering him out of his car and then pinning him face down onto the ground. Other officers joined in, and one officer pressed a a boot or knee on the back of Alexanders neck as his face was pressed into the concrete.

Alexander was then handcuffed, and an officer asked, Are you ready to talk to me now? to which Alexander responded with an expletive. Police then shackled his legs, and at that point he was arrested. According to the police report, Alexander was arrested for obstructing a police officer.

From the Post:

Alexander filed a civil suit against the officers and the municipality (collectively, the officers). The district court rejected the civil suit, and the 5th Circuit reversed in part and affirmed in part, in an opinion by Judge Edith Brown Clement joined by Judge Jerry Smith and Judge Leslie Southwick.

The 5th Circuits new decision makes several rulings against the officers in the case. It rules that Alexander has stated a Fourth Amendment claim for unlawful detention and arrest; that qualified immunity should not apply to those claims; and that Alexander has stated a claim for excessive force.

Alexanders suit claimed that the officers retaliated against him for refusing to speak to them, and said retaliation violated his Fifth Amendment right against self-incrimination and his First Amendment rights. The 5th Circuit disagreed and ruled that any retaliation could not violate his Fifth Amendment right and any First Amendment claim was barred by qualified immunity.

Kerr says that the U.S. Supreme Court has interpreted the Fifth Amendment right against self-incrimination in three different ways to do three different things that are all justified by the same constitutional text that no person shall be compelled in any criminal case to be a witness against himself.

More:

The first is a right a person can assert not to be compelled by threat of legal punishment to say something that would expose them to criminal liability. The second is a right not to have forced confessions admitted in a criminal proceeding. The third is a right to get warnings in custody and to be able to call off interrogations. Theyre all in the same ballpark in a broad sense. They all deal with government questioning under pressure. But theyre three distinct rights with three distinct histories.

Kerr disagrees with the 5th Circuits ruling on the Fifth Amendment in Alexanders case because it says the Fifth Amendment applies only in custodial interrogation which applies to the third definition of the amendment, or the Miranda right. Because Alexanders case doesnt include a Miranda claim, Kerr says that cant be a strong basis for the courts ruling.

Kerr comes to the conclusion that perhaps the idea that you have a right to remain silent is inaccurate, and that there are difficult issues lurking in the courts Fifth Amendment ruling that didnt come out in the short passage in the opinion.

This is an interesting case to look at, and Kerrs analysis goes into greater detail than I can put into this post, so its worth giving a read.

This ruling is especially timely at a time when our countrys attorney general is looking to police more power while simultaneously stripping protections from everyday citizens.

Understand what you can and cannot do during a police stop is likely to become much more important as this administration rolls on.

Read more at the Washington Post.

Continued here:
You Have the Right to Remain Silent, But Can the Police Retaliate Against You For It? - The Root

This is the third and final installment in our series on the Constitution at the border. Today, well focus on the Fifth Amendment and passwords. Click here for Part 1 on the First Amendment or Part 2 on the Fourth Amendment.

Lately, a big question on everyone's mind has been: Do I have to give my password to customs agents?

As anyone whos ever watched any cop show knows, the Fifth Amendment gives you the right to remain silent and to refuse to provide evidence against yourself even at the border. If a CBP agent asks you a question, you can tell them you choose to remain silent and want to speak to an attorney, even if you dont have one retained yet. That choice may not stop CBP agents from pressuring you to voluntarily talk to them, but they are supposed to stop questioning you once you ask for a lawyer. Also, beware that government agents are permitted to lie to you in order to convince you to waive your right to remain silent, but you can be criminally prosecuted if you lie to them.

CBP agents are unlikely to advise you that you have this choice because the government generally argues that such warnings are only required if you are taken into custody and subjected to a criminal prosecution. And at least one federal court of appeals has determined that secondary inspection the separate interview area you get referred to if the CBP officer cant readily verify your information at the initial port of entry doesnt qualify as custody.

But you dont have to be in custody or subject to a criminal prosecution before you choose to invoke your Fifth Amendment rights to remain silent or to object to being deprived of your property without due process of law. For example, the Second Circuit Court of Appeals has held that a persons request for an attorney is enough to invoke the privilege against self-incrimination, even at the border.

And that privilege includes refusing to provide the password to your device. For example, in 2015, a Pennsylvania court held that you may properly invoke the Fifth Amendment privilege to avoid giving up your cell phone passcode even to an employers phone because your passcode is personal in nature and producing it requires you to speak or testify against yourself.

Some courts have been less protective, overriding Fifth Amendment protections where the information sought is a so-called foregone conclusion. In 2012, a Colorado court ordered a defendant to provide the password to her laptop, only after the government had obtained a search warrant based on the defendants admission that there was specific content on her laptop and that the laptop belonged to her. On appeal, the Eleventh Circuit clarified that the government "must [first] show with some reasonable particularity that it seeks a certain file and is aware, based on other information, that . . . the file exists in some specified location" and that the individual has access to the desired file or is capable of decrypting it.

So, Fifth Amendment protections do apply at the border, and they protect your right to refuse to reveal your password in most circumstances. That said, individuals passing through the border sometimes choose to surrender their account information and passwords anyway, in order to avoid consequences like missing their flight, being made subject to more constrictive or prolonged detention, or being denied entry to the US.

As we have noted in our Digital Border Search Whitepaper, the consequences for refusing to provide your password(s) are different for different classes of individuals. If you are a U.S. citizen, CBP cannot detain you indefinitely as you have a right to re-enter the country. However, agents may escalate the encounter (for example, by detaining you for more time), or flag you for heightened screening during future border crossings. If you are a lawful permanent resident, agents may also raise complicated questions about your continued status as a resident. If you are a foreign visitor, agents might deny you entry to the country entirely.

But whatever your status, whether you choose to provide your passwords or not, border agents may decide to seize your digital devices. While CBP guidelines set a five-day deadline for agents to return detained devices unless a CBP supervisor approves a lengthier detention, in practice, device detentions commonly last many months.

As always, we want to hear from you if you experience harm or harassment from CBP for choosing to protect your digital data. Were still collecting stories of border search abuses at: borders@eff.org

We recommend that you review our pocket guides for Knowing Your Rights and Protecting Your Digital Data Privacy at the border for a general overview or take a look at our Border Search Whitepaper for a deeper dive into the potential issues and questions you may face.

And join EFF in calling for stronger Constitutional protection for your digital information by contacting Congress on this issue today.

Go here to see the original:
The Bill of Rights at the Border: Fifth Amendment Protections for ... - EFF

Birds > private property rights in some courts.

Yesterday, we learned the Florida Supreme Court denied review of ourGanson v. City of Marathonregulatory takings case. Weve previously written about the case here, here,here, and here. In a nutshell, government officials in the City of Marathon, along with officials in Monroe County and the State of Florida, decided that Gordon and Molly Beyer, a married couple who owned a 9-acre piece of property in the Florida Keys, lost all rights to develop on the nine acres an island known as Bamboo Key because itmade a fine bird rookery. And when those officials made that decision, they further decided they did not have to pay the Beyers for the taking despite having rendered Bamboo Key virtually uninhabitable. I say virtually because the officials in their perverse form of benevolent despotism graciously allowed that the Beyers could use the island for temporary camping.

I kid you not.

Unsurprisingly, Pacific Legal Foundation believes that this amounts to a total taking of the Beyers property. We will now seek review of the case at the Supreme Court of the United States. The last time we took an adverse Florida Supreme Court decision to the nations High Court, we won a crucial victory for property rights on behalf of Coy Koontz and the Fifth Amendment rights of all Americans. We intend to win another case for all Americans this time, as well.

Go here to read the rest:
Florida Supreme Court rules for birds, against Fifth Amendment ... - Pacific Legal Foundation (PLF) (press release) (blog)