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At the end of its recent term, the U.S. Supreme Court handed down a new decision on the law of takings. The case, Cedar Point Nursery v. Hassid, was a labor relations dispute disguised as a takings case, but its resolution has important implications for the terms on which New York developers can get access to adjoining property in aid of their construction projects. In Cedar Point Nursery, a divided Court ruled, by a 6-3 vote, that a state regulation authorizing very limited temporary entry by union organizers onto private agricultural property amounted to a physical taking of property that violated the Fifth and Fourteenth Amendments to the Constitution.[1] The decision expands the concept of what is a physical taking and raises questions about the further expansions of takings law that may follow.

The last clause of the Fifth Amendment to the U.S. Constitution, part of the Bill of Rights adopted in 1791, provides: nor shall private property be taken for public use, without just compensation. Although originally applicable only to the federal government, the Fourteenth Amendment, adopted after the Civil War, makes the principle equally applicable to the states and their political subdivisions.[2]

The most obvious example of a taking is when the government or a private party authorized by law to do so (such as a utility) exercises the power of eminent domain to acquire actual ownership of private property, or at least a permanent interest in property. In that situation, a public purpose and just compensation are required by the Constitution.[3] Other situations are not so obvious and have spawned a large body of court decisions addressing countless permutations.

Supreme Court precedent distinguishes between physical takings and regulatory takings. Physical takings are unconstitutional per se (i.e., automatically) in the absence of a public purpose and compensation. By contrast, an owners claim that it has been subjected to a regulatory taking in effect, a claim that although there has been no physical invasion of its property, a law, regulation or other governmental action has intruded so far into its property rights as to amount to a taking must be analyzed and evaluated on a fact-specific, case-by-case basis.

What rises to the level of a physical taking, however, isnt always clear either, and the concept has expanded over the years. In 1946, the Supreme Court held that repeated low-altitude overflights by military aircraft approaching and leaving a nearby airport, the effect of which was to destroy the owners ability to operate their chicken farm, constituted a taking.[4] In 1979, the Court held that the governments claim of a navigational servitude over private property, the effect of which was to allow the public to access the property on a continuous basis, effectuated a taking.[5] And in 1982, the Court held that even a de minimis permanent physical occupation of property is a taking; more specifically, the Court struck down as unconstitutional a New York statute requiring owners of apartment buildings to allow cable TV companies to attach their cables to the owners buildings.[6] Which brings us to the Cedar Point Nursery case.

A regulation under Californias Agricultural Labor Relations Act gave labor organizations a limited right of access to private agricultural property. Access was allowed in no more than four 30-day periods in any one calendar year, and only during three hours during any one day one hour before work, one hour during the lunch break and one hour after work. Access was limited to two organizers per work crew, plus one additional organizer for every 15 workers over 30 workers in a crew. The property owner was entitled to prior notice. Disruptive conduct was prohibited, but the union organizers were otherwise free to meet with employees to discuss labor or union issues.

Cedar Point Nursery is a large California strawberry grower. It claims that, one morning in 2015, United Farm Workers organizers entered its property and disturbed its operations, causing some workers to join a protest and others to leave the worksite. Along with a second grower, it sued in federal court, arguing that Californias regulation effected an unconstitutional physical taking of its property. The trial court dismissed the lawsuit, and a divided U.S. Court of Appeals for the Ninth Circuit affirmed that decision. The Supreme Court agreed to hear the case.

The Court reversed the Ninth Circuits decision and ruled in favor of the nursery. Perhaps not surprisingly, given the cases origin in a dispute about union activity, the Court split along partisan lines, with the six Republican-appointed justices forming the majority and the three Democrat-appointed justices dissenting.

Chief Justice John Roberts wrote for the majority that the access regulation appropriates a right to invade the growers property and therefore constitutes a per se physical taking. The opinion emphasized that the short duration of time during which the regulation allowed entry onto property was irrelevant, and the length of the appropriation bears only on the amount of compensation. The opinion affirmed that physical invasions are takings even if they are intermittent instead of permanent, citing United States v. Causby, the 1946 decision in which the Court held that occasional low-altitude military overflights had effected a taking (although in Causby the overflights had destroyed the owners business).

To reconcile this absolutist definition of a taking with commonly recognized circumstances in which limited entry onto private property has long been allowed, the majority opinion articulated a series of exceptions to this per se rule. First, isolated physical invasions, not undertaken pursuant to a granted right of access, are properly assessed as individual torts rather than appropriations of a property right. Second, access that is consistent with longstanding background restrictions on property rights, including traditional common law privileges to access private property, is another exception. And third, the government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking.

The dissenting opinion was written by Justice Stephen Breyer. It argued that the California regulation did not effect a per se taking because it did not appropriate anything, but only regulated employers right to exclude others from their property.

The Cedar Point Nursery majority and dissenters disagreed about how to distinguish between the appropriation of property and regulation of the right to exclude. Because the Court held that the California regulation allowing limited access by union organizers to agricultural properties was in fact an appropriation, the decision raises questions about how much further the Court might go and how far property rights advocates will push the Supreme Court and lower courts in expanding the concept of a taking.

To begin with, any law or regulation requiring that union representatives be given access to a workplace or job site is now to say the least constitutionally suspect.

In future cases, moreover, courts are likely to be asked to clarify the exception to the per se rule that Cedar Point Nursery recognized for access that is consistent with longstanding background restrictions on property rights. The opinion provided no further definition of this exception beyond a reference to traditional common law privileges. Prior case law from around the country has recognized multiple situations in which entry onto anothers land without the owners permission is allowable, including, for example, to bypass an impassible section of a public road, to retrieve personal property, to abate a private or public nuisance, to stop a crime or to make a lawful arrest.[7] Are all of these examples still good law after Cedar Point Nursery?

Even if these cases remain good law, is only court-made law still valid? One possible implication of the absolutist interpretation of a taking in Cedar Point Nursery is that, while court-made exceptions to the per se rule remain valid, state and local governments are powerless to enact statutes that recognize limited rights of entry in defined circumstances.

In 1980, for example, a unanimous Supreme Court agreed that Californias Supreme Court could properly interpret its state constitution as protecting the right of peaceful protestors to set up a card table in a shopping malls central courtyard, distribute pamphlets and collect signatures over the objection of the malls owner, which maintained a blanket policy against expressive activity on its premises.[8] In reaching this result, the Courts opinion, written by Justice (later Chief Justice) William Rehnquist, explained that, while property does not lose its private character merely because the public is generally invited to use it for designated purposes, that principle does not limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.[9] In response to the mall owners contention that a right to exclude others underlies the Fifth Amendment guarantee against the taking of property without just compensation, the Supreme Courts opinion explained that it is well established that not every destruction or injury to property by governmental action has been held to be a taking in the constitutional sense, and the determination whether a state law unlawfully infringes a landowners property in violation of the Takings Clause requires an examination of multiple factors.[10]

The only way to reconcile this case-by-case approach with the per se rule of Cedar Point Nursery is to rely on the fact that the shopping mall was open to the public, although not for the purpose that the visitors in that case sought to use it, while in Cedar Point Nursery the owners did not open their land to the general public. But the Court specifically said in the shopping mall case (and in prior cases) that private property does not lose its private character even if it is open to the general public a point that is inconsistent with a distinction based on private propertys status as open to the general public.

Closer to home, New York has a statute, Section 881 of the Real Property Actions and Proceedings Law, that empowers courts to grant licenses allowing property owners to gain temporary access to neighboring property for the purpose of effectuating repairs or improvements to their own property upon such terms as justice requires. The statute often has been used by developers and their contractors to compel recalcitrant neighbors to allow them to enter onto adjoining property to perform surveys and install protective measures. The statute does not require compensation, although it is not unusual for courts, in the exercise of their discretion, to require the payment of a fee if the entry is for more than a de minimis length of time for example, if the purpose of the entry is to install and maintain temporary protective scaffolding. Is this statute unconstitutional due to its failure to expressly require the payment of just compensation in accordance with the Fifth Amendment? Or perhaps due to its creation of a right of access in the service of a private purpose rather than a public one? It seems inevitable that these issues and others of a similar nature will be litigated in a future case. The risk of the issue being raised should motivate developers to avoid litigation if possible and to be prepared, if necessary, to augment the usual protections provided in access agreements (such as indemnification and insurance) with some amount of compensation for the temporary intrusion onto a neighbors property.

[1] Cedar Point Nursery v. Hassid, 594 U.S. ___ (No. 20-107, June 23, 2021).

[2] Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897).

[3] Id.

[4] United States v. Causby, 328 U.S. 256 (1946).

[5] Kaiser Aetna v. United States, 444 U.S. 164 (1979).

[6] Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

[7] See, generally, Restatement (Second) of Torts 195-211.

[8] PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980). Members of the Court issued multiple separate opinions explaining their reasoning, but all of the justices agreed with the result.

[9] The internal quotation in PruneYard is from the Courts prior opinion in Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), where the Court upheld the right of a shopping mall owner to prohibit public expression on its premises.

[10] The internal quotation in this excerpt from PruneYard is from Armstrong v. United States, 364 U.S. 40 (1960).

The author gratefully acknowledges the valuable contributions to this alert of Aaron Jacobs, a member of the Columbia Law School Class of 2022 and a 2021 Kramer Levin summer associate.

[View source.]

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The Supreme Court Further Expands the Definition of a Physical Taking of Property That Violates Fifth Amendment Protections - JD Supra

As Democrats push to renew the nationwide ban on evictions that expired Saturday, theyre squabblinger, screamingover whos failing the partys progressive base. Speaker Nancy Pelosi puts the onus on President Biden, urging him to act unilaterally. The White House says it lacks legal authority, as the Supreme Court recently made clear.

Mr. Biden is correct: The public-health powers of the Centers for Disease Control and Prevention do not extend to an interminable blanket prohibition of evictions across the entire nation. Any ban also may be an unconstitutional taking of property under the Fifth Amendment, though thats an argument for another day. The point is that for 11 months President Trump and President Biden stretched their authority, but now Mr. Biden must heed the Supreme Courts warning.

What is Mrs. Pelosis alternative? Five Justices this summer let the eviction ban stand until it expired. But Justice Brett Kavanaughs caveat was that the policy couldnt be continued without clear and specific congressional authorization (via new legislation). On Tuesday a defiant Mrs. Pelosi lauded the White Houses intention to identify all available authorities to extend the eviction moratorium. In other words, Mr. Biden might be bending under progressive pressure to reinstate the ban. This would be strikingly lawless, as the White House has admitted.

Little is being said in this debate about economics, but the numbers make it hard to see any case for a blunt national policy. The unemployment rate is 2.5% in Nebraska. Its 2.7% in Utah, 2.9% in both New Hampshire and South Dakota, and 3% in Idaho. How much more recovered from Covid can those labor markets get? Other places that suffered longer lockdowns are lagging. But if state and local leaders want, they can pass tailored eviction policies, and then they can be accountable for the results.

Too often ignored are the costs on the other side of the evictions ledger. Renters are facing hardships, but so are landlords. There are about 48 million rental housing units in the U.S., according to a 2018 federal survey. For 42% of them, day-to-day management of the property was performed by either the owner or an unpaid agent. Another 25% had a paid manager who was still directly employed by the owner.

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The Eviction Ban Has to End Sometime - The Wall Street Journal

While divisions on the Court are common, cleanly ideological breaks are less so. Justice Stephen Breyer explained it this way in a June 2021 podcast for the non-partisan National Constitution Center: I mean, we agree almost half the time, were unanimous. And, he continued, the five-fours are about, I dont know, 20 percent, 25 percent, 15 percent depending on the year. And its not the same five and the same four. Thats what makes the cases involving the rights of criminal defendants and immigrants this term so notable: The split was often the same six and the same three, a detail that offers some insight into one aspect of the Courts developing identity.

Because the criminal justice system in the U.S. is vastly over-represented by Black and brown defendants, who are five times more likely to end up in state prisons than whites, this predictable ideological split is not good news from the standpoint of racial and ethnic justice. The extraordinary interpretive power of nine unelected justices cannot be overstated. The U.S. Constitution houses the primary legal prohibitions on arbitrary governmental constraints on life and liberty, with the Fifth Amendment preserving due process rights vis--vis the federal government and the Fourteenth Amendment binding the states.

Bear in mind too, that in effect, the Supreme Court amends the Constitution through interpretation irrespective of each justices politics. For actual voters to amend the Constitution, by contrast, they must elect politicians who will ratify revisions by two-thirds in both Houses of Congress and three-quarters in all state legislatures. This is nearly impossible to achieve, a reality that shines a light on the mammoth power of the unelected justices, whose decisions cannot be altered absent a fresh majority on the Court or a formal amendment to the Constitution overruling a particular decision.

Paradoxically, it is the aforementioned cases in which justices crossed ideological lines that demonstrate how significant it is that on questions of incarceration, conservatives and liberals split so cleanly. Because it represents such a departure from the Courts historical behavior. In 2014, a panel of scholars concluded that the John Roberts Court at that point actually [produced] a notable number of rights-protective liberal decisions, and that when the Roberts Court [was] most deeply divided on criminal justice issues, it has produced more liberal decisions than conservative decisions, due largely to the voting patterns of Justice Anthony Kennedy whose moderate voting record place[d] him at the Courts center.

The late Justice Antonin Scaliaa conservative icon who reshaped constitutional jurisprudence in a number of wayshad developed a spacious view of individual rights within the criminal justice system, particularly under the Fourth Amendment, which governs unreasonable searches and seizures. With Kennedy, Scalia and the reliably liberal Ruth Bader Ginsburg now gone, those enmeshed in the coercive criminal justice and immigration systems must rely on President Donald Trumps appointees to exercise their vast discretion to either affirm or dissolve constitutional rights. So far, the new conservative coalition belies a discomforting callousness in close cases.

The ideologically split cases were not the most attention-grabbing of the Courts recent docket. But a closer examination of how the majority ruled shows why they collectively reveal the modern Courts emerging character.

Jones v. Mississippi was an Eighth Amendment case challenging a 15-year-old minors sentence to life without parole for murdering his grandfather. Writing for a 6-3 majority, Justice Kavanaugh acknowledged that the Court had issued two landmark rulings in 2012 and 2016 constitutionally outlawing mandatory life-without-parole sentences for juvenile offenders. At a resentencing hearing in light of these rulings, counsel for the defendant Brett Jones, who is now 32 years old, argued unsuccessfully that the sentencing court must...make a separate factual finding that the defendant is permanently incorrigible before deciding to lock him up for life. Kavanaugh concluded that a more detailed finding regarding a juveniles prospect for rehabilitation was not constitutionally required so long as the sentencer consider[s] the defendants youth.

In a dissenting opinion, Justice Sotomayor said [t]he Court is fooling no one. Time and again, this Court has recognized that children are constitutionally different from adults for purpose of sentencing, she wrote, as the character of a juvenile is more transitory and the impetuousness and recklessness that may dominate in younger years can subside. But with Ginsburg and Kennedy no longer on the Court, the new majority was collectively more sanguine about condoning discretionary life sentences for juveniles, likely paving the way for more children to spend their adult lives behind bars.

Kavanaugh wrote for the same 6-3 majority in Edwards v. Vannoy, refusing to apply a prior Supreme Court ruling to benefit a criminal defendant. Just months before, in April 2020, the Court had decided in Ramos v. Louisiana that criminal convictions by non-unanimous juries were unconstitutional. The question in Edwards was whether that ruling should apply retroactively to non-unanimous jury convictions that occurred before Ramos. Although Justice Neil Gorsuch delivered the lead opinion in Ramos, the other justices fell all over the map in that case. Gorsuch was joined in part by Ginsburg, Breyer, Sotomayor and Kavanaugh, for example, while Justice Elana Kagan joined part of Alitos dissenting opinion. But once Coney Barrett had joined the Court, the conservative bloc became more cohesive in rejecting the criminal defendants plea in Edwards, leaving prisoners who had been sentenced without the benefit of the Ramos decision to serve their time. Kagans dissent underscored that, [c]iting centuries of history, the Court in Ramos termed the Sixth Amendment right to a unanimous jury vital,' essential,' indispensable,' and fundamental to the American legal system, and vindicated core principles of racial justice. The touchstone of the new conservative majority looks decidedly different.

Conservatives were likewise unsympathetic to criminal defendants complaints of bad lawyering. In Shinn v. Kayer, a 6-3 majority in a per curiam opinion (meaning no justice claimed authorship) reinstated an Arizona inmates death sentence for the 1994 shooting death of one Delbert Haas during a gambling trip in Nevada. The U.S. Court of Appeals for the Ninth Circuit had thrown out defendant George Kayers sentence of death, persuaded that his Sixth Amendment right to effective assistance of counsel was violated during sentencing because his lawyer failed to investigate evidence of addiction, mental illness and a recent heart attack, among other mitigating factors. But the Supreme Court majority concluded that a fairminded jurist would have given more weight to the defendants prior conviction for burglary with a handgun and doubted whether Kayers addictions and bipolar disorder significantly impaired his ability to appreciate the wrongfulness of his conduct. In Dunn v. Reeves, the same 6-3 majority reversed a lower courts decision granting habeas corpus relief to a death row prisoner who claimed that his trial counsel failed to present mitigating evidence of his intellectual disability.

On the immigration front, the scorecard was similarly stacked against individual petitioners to favor the government. Justice Alito authored the opinion for a 6-3 majority in Johnson v. Guzman Chavez, ruling against a group of noncitizens who were deported from the United States but later reentered without authorization. When the government discovered they had returned, it reinstated their removal orders. The petitioners filed asylum proceedings because they feared persecution or torture if they returned to their home countries. The Court held that, in the interim, while their asylum pleas were adjudicated, they were subject to mandatory detention, denying them so much as a bond hearing. Without a hearing, the government would effectively keep the immigrants indefinitely jailed. As Breyer noted in dissent, they face proceedings that may last for many months or years.

Justice Gorsuch seemed equally unsympathetic to the plight of non-citizens in his opinion for a 5-3 majority in Pereida v. Wilkinson, which ruled against an undocumented resident who challenged deportation based on his guilty plea for the minor crime of attempted impersonation under Nebraska law. The Court placed the burden on the immigranta father of three who had been in the United States illegally for 25 years but sought to avoid deportation under a provision that makes exceptions for family hardshipto prove that his crime was not one of moral turpitude that would disqualify him from using the deportation exception. The trouble was that his criminal record did not make clear what his underlying crime was. As Justice Breyer explained in dissent: "We cannot look to jury instructions because there was no jury. Nor is there any plea agreement, plea colloquy, or 'comparable judicial record of the plea that might help determine what Mr. Pereida admitted. To make matters worse, [t]he Government confirmed several times at oral argument that it had not argued that a judge should be allowed to look at a broader array of evidentiary materials because, in its view, that issue was not implicated since no other documents exist. That did not stop the majority from ruling against Pereida for failing to prove what the government apparently could not.

For the most part, the Courts latest slew of cases signals that the law, in all its ambiguities, still trumps partisanship. But the handful of cases where conservatives joined forces also suggest that personal ideologyor perhaps the conservative focus on individual responsibility makes them loath to allow people second chances at liberty or legal immigration statusremains stealthily at play. Meanwhile, the United States has the highest prisoner rate in the world, with 639 prisoners per 100,000 people. So far this court appears unmoved by such statistics.

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Opinion | The One Area Where the Supreme Courts Six Conservative Judges Could Agree - POLITICO

A judge has cleared the way for the state of Oregon to bring Washington County sheriffs deputy Rian Alden to trial in November for an alleged assault of a jail inmate, denying his motion to dismiss the case.

Aldens lawyer Dan Thenell argued during hearings in April that the case should be thrown out, alleging a longtime prosecutor pressured two sheriffs training officers to withdraw their support of Aldens use of force and not testify in his defense.

Thenell argued that the sheriffs office found Aldens use of force to be within policy and consistent with his training.

Alden is accused of slamming a jail inmate against a concrete wall during booking in a 2018 case that prosecutors first dropped and then revived in 2020 when a racist email sent by Alden surfaced.

The county last year paid $625,000 to settle a suit filed by the inmate, Albert Molina, who suffered a fractured skull. County commissioners found that Alden needlessly injured and traumatized Molina.

Washington County Chief Deputy District Attorney Jeff Lesowski argued in court that the allegations raised by Aldens lawyer were intended simply to derail his clients prosecution.

Lesowski told a judge that the prosecution results from a video of the alleged assault depicting a shocking act of police brutality, of a physically imposing veteran law enforcement officer slamming the head of an intoxicated, unarmed and shoeless prisoner against a concrete wall.

It also rests on the medical records that showed Molina suffered an immediate loss of consciousness and a serious brain injury, he said.

The apparent motive for those actions was the victims disrespect for Alden by saluting him in a mocking way and flipping him off, after Alden had been laughing at the victim with his younger deputy colleagues, Lesowski said.

It would be outrageous if the district attorneys office werent prosecuting the jail deputy, Lesowski argued.

Were sitting here with a pretty obvious crime staring us in the face, he told the judge.

Washington County Circuit Judge Beth L. Roberts dismissed Aldens allegations of outrageous government conduct, in a written ruling.

Having considered all the testimony and evidence presented to the court, under the totality of the circumstances, the court does not find that the governments conduct is grossly shocking and so outrageous that it violates a universal sense of justice, the judge wrote in her ruling.

Alden, 41, has pleaded not guilty to second-degree assault and official misconduct. He remains on paid leave. His trial is set for Nov. 2.

The defenses allegations stemmed from June 2020 conversations between Bracken McKey, another chief deputy prosecutor in the District Attorneys Office, and two sheriffs training officers.

Both training officers - Sgt. James Cuthbertson and Cpl. Cade Edwards - signed sworn statements that Thenell filed in court, contending McKey told them he was pursuing Alden so he didnt look soft on crime if he ever ran for district attorney and that their testimony wouldnt look good for the sheriffs office.

But Edwards later recanted his accusations against McKey, saying Thenell had swayed him to sign the declaration that improperly characterized his remarks, according to court records.

The recantation stirred concerns about the honesty of the two training officers.

McKey in no way intended to threaten Cuthberson but gave him a courtesy heads up when he told him by phone that hed have a duty to disclose Cuthbertsons opinion in support of Aldens use of force to Aldens lawyer, and that it may not look good, according to Lesowski.

When considered in light of the damning video and the fact that the Oregon State Police concluded Aldens violence was unjustified, McKeys words were simply a way of stating an obvious fact: This was a very ugly incident that was going to be difficult to defend or justify, Lesowski wrote to the court.

Cuthbertson, who was the use of force manager for the sheriffs office at the time Molina was injured in the jail, testified in court earlier this year that he felt threatened, that if I testified for the defense it wont go well for me. Since that day, things have not gone well. Ive been assigned to a desk. ... Ive been criminally investigated.

Cuthbertson also testified that the sheriffs office teaches a crashing the line technique. If someone is combative or coming at a deputy, the deputy would go forward at them, and meet them to stop that distance. ... We try to overwhelm the person that potentially can be assaultive toward you, he explained on the witness stand.

Cuthbertson testified, though, that when he met with McKey in June 2020 he hadnt yet formed a final opinion on Aldens use of force, and had questions, such as whether Alden experienced an adrenaline rush, or took into account the wall that was behind Molina when he slammed him into it.

Lesowski later wrote to the court that Cuthbertsons testimony suggesting he hadnt yet formed an opinion on Aldens use of force in that June meeting with McKey was not credible.

If Cuthbertson had not expressed an opinion, McKey would have had no reason to call Cuthbertson the next day to tell him that his opinion would need to be disclosed to the defense as exculpatory evidence, Lesowski wrote.

Edwards, the other training officer, declined to testify in court, citing his Fifth Amendment right not to incriminate himself.

The district attorneys office granted Edwards immunity in December for his changing statements, but Edwards lawyer Mark Makler said that didnt absolve him of any potential criminal exposure going forward by the county prosecutors office, or by other state or federal agencies.

Washington County Sheriff Pat Garrett, called by Thenell as a witness, testified that Cuthbertson and Edwards had met with him and the undersheriff together, shortly after the meeting they had with McKey, in which they shared that they felt threatened to not testify in support of Aldens use of force. They shared that McKey said something like, this would not look good for you, Garrett said.

They expressed general concern about testifying for the defense, and we discussed that that was a distinct possibility if called upon by the defense, and we told him that that would be appropriate, Garrett said.

Lesowski told the court that Cuthbertson is not expected to face any discipline and was assured that his job is safe should he testify in support of Aldens use of force.

The state Justice Department ultimately found insufficient evidence to support allegations against McKey of witness tampering or coercion, department documents show.

The Washington County District Attorneys Office said it wont pursue perjury charges against Edwards but that his changing statements could raise potential concerns regarding his truthfulness and credibility if called to testify in future cases. Prosecutors asked state police to investigate Cuthbertson for alleged false swearing. That inquiry is ongoing.

-- Maxine Bernstein

Email at mbernstein@oregonian.com; 503-221-8212

Follow on Twitter @maxoregonian

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Assault case against Washington County sheriffs deputy can proceed to trial, judge rules - OregonLive

The Supreme Court of Pennsylvania recently overturned Bill Cosbys 2018 conviction for crimes of sexual assault. Most have focused on the justness of this outcome. But the courts 79-page opinion also has implications for how witnesses in civil cases navigate the potential risk of self-incriminationincluding witnesses testifying on behalf of a corporation as a corporate designee under Federal Rule of Civil Procedure 30(b)(6).

As we discussed in our blog on invoking the Fifth Amendment in a civil deposition, the privilege can only be claimed if the deponents answer to the question may render them vulnerable to prosecution for a crime. The question must require the witness to confront a substantial and real, and not merely trifling or imaginary, hazardof incrimination.[1] Whether the risk of incrimination is substantial and real is the very issue that has resulted in why Cosby is free today.

Cosbys legal issues started with a criminal investigation in 2005 by then Montgomery County District Attorney Bruce Castor after an alleged victim reported she was sexually assaulted by Cosby in 2004. For a variety of reasons, District Attorney Castor determined that he did not have enough evidence at the time to prosecute Cosby. Prosecutors weigh similar decisions every day, and typically, a prosecutors decision to not proceed with charges is not binding and is subject to reconsideration at a later date. But District Attorney Castor wanted to help the victim seek some justice in a civil case, so he made a promise he could not keephe publicly promised not to prosecute Cosby for that particular crime. Cosbys attorneys then determined that, because he had no reasonable fear of prosecution, he could not invoke his Fifth Amendment right against self-incrimination at a deposition in his civil case. Cosby made multiple admissions of guilt in the depositionin reliance on the promise that he would not be criminally prosecuted.

Whether this promise was enforceable and valid was a hotly litigated issue in the casebut the Supreme Court of Pennsylvania held that whether the promise was properly executed and / or enforceable was irrelevant since Cosby detrimentally relied on it. There was no way to un-ring the bell of his testimony and restore him to a position where he would not have incriminated himself had he utilized his Fifth Amendment protections. So, when District Attorney Castors successor later decided to charge Cosby and used his admissions in the civil deposition against him in the criminal trial, the court held that Cosbys rights to due process and protection from self-incrimination were violated. When an unconditional charging decision is made publicly and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness.[2]

The civil and criminal justice systems interweave and collide in many circumstances, and some conduct, even negligent omissions, can raise both criminal and civil consequences. The complex circumstances of Cosbys conviction and subsequent release serve as an ominous reminder that your attorney needs to understand all aspects of potential incrimination and liability.

[1] Marchetti v. United States, 390 U.S. 39, 453 (1968).

[2] Pennsylvania v. Cosby, Supreme Court of Pennsylvania Case No. 39 MAP 2020 (June 30, 2021).

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What Does Bill Cosbys Overturned Conviction Mean for Your Fifth Amendment Rights Against Self-Incrimination? - JD Supra