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The New York Times recently reported that the FBI had an undercover informant amid the mob that entered the U.S. Capitol on Jan. 6 who had related to them his knowledge of the demonstrators' plans beforehand and his observations of events in the building in real time. The informant was a genuine member of the Proud Boys, one of the groups the feds are trying to charge with conspiracy to overthrow the government.

According to the Times, the informant told the FBI in advance that there was no plan by his colleagues to disrupt the government. He also reported violence and destruction in the Capitol to his FBI handler as it was happening, and the FBI did nothing timely to stop it.

The presence of the informant as a de facto federal agent at the scene before, during and after the commission of what the government considers to be serious felonies raises serious constitutional questions about the FBI's behavior. The feds have not revealed the existence or identity of this informant; rather, the Times' reporters found out about him and found another person to corroborate what they learned that he did.

Can the government insert a person into a group under criminal investigation -- or "flip" a person who is already in the group -- and use him for surveillance without a search warrant? And, when they do this, must prosecutors tell defense attorneys about their informant, particularly if his knowledge and observations are inconsistent with the government's version of events?

Here is the backstory.

The Fourth Amendment to the Constitution was written to protect the quintessentially American right to be left alone. It was enacted in the aftermath of egregious violations of colonial privacy by British soldiers and agents.

The typical violation of privacy came in the form of British soldiers knocking on the door of a colonial home -- or breaking it down -- bearing a general warrant. A general warrant, issued by a secret court in London or by colonial courts here whose judges were loyal to the king, permitted the bearer to search wherever he wished and seize whatever he found.

The Fourth Amendment was ratified to force the government to focus its searches on evidence of crimes for which the government had probable cause, and to protect the privacy and security of "persons, houses, papers, and effects" by requiring search warrants before the government could invade any of them.

The warrants must be issued by a neutral judge, must be based on probable cause of crime sworn to under oath, and must specifically describe the place to be searched and the person or things to be seized.

In the early 1960s, the Supreme Court realized that the use of electronic surveillance was just as much a search as a physical search, and it required search warrants for the government to be able to use at trial whatever it learned from the surveillance. This is universally accepted today as the contemporary understanding of the Fourth Amendment. Yet, it applies only to searches by government agents or their use of evidence obtained from electronic surveillance. It does not pertain to informants.

Stated differently, the feds and the states need search warrants to bug your bedroom, your office or your cellphone, but they do not need a search warrant to threaten, bribe or employ your neighbor or colleague or brother-in-law to engage you in a conversation about personal behavior and then report the contents of that conversation to them.

The government's argument is that you have waived your right to privacy by trusting the person to whom you were speaking, and that waiver obviates the need for a search warrant.

But the use of an informant can be as invasive as the use of a wiretap. Because the informant is usually capable of getting in the face of the person being surveilled, his presence is a direct violation of the Fourth Amendment's protection of "persons." Since the informant can often prod the person to say what he might not say if unprodded, the use of informants is arguably more invasive of privacy and hence more violative of the Fourth Amendment than a wiretap silently recording a conversation.

Now back to Jan. 6 at the Capitol. The Department of Justice requires approval by FBI management before an agent can engage an informant. Thus, senior FBI personnel knew that a trusted member of the Proud Boys trusted by the Proud Boys and by the FBI had advised one of their agents that the group had no plans for violence or disruption of a governmental function. We also know that senior FBI personnel knew that personal injury and property damage were happening at the Capitol and they did nothing to stop it.

The Times reporters promised anonymity to their sources. But their identity is now of paramount importance to some of the folks whom the FBI has arrested and whom federal prosecutors have charged with felonies. If the feds have an eyewitness who works for them -- even though his presence at the scene was unconstitutional -- and whose testimony contradicts the prosecutors' narrative, the feds have a moral and legal obligation to reveal all this to defense counsel.

Who knows what the FBI knew of Jan. 6 ahead of time and did nothing or why it conveniently looked the other way during the events in the Capitol? We do know that every FBI agent and federal prosecutor has taken an oath to uphold the Constitution, whether convenient or not.

The Fourth Amendment is the framers' value judgement that the privacy of all persons is a greater moral good than the government's convenience. It is an intentional obstacle to law enforcement to keep it respectful of our rights. Why do we hire the FBI to protect our safety but permit it to invade our liberty?

Judge Andrew Napolitano's column is syndicated by Creators.

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Napolitano: On Jan. 6, what did the FBI know? - The Winchester Star

Photo: Lev Radin/Pacific Press/LightRocket via Getty Images

Ed Mullins, the controversial head of one of the largest cop unions in New York City and a bitter foe of police reform, resigned from his position as Sergeants Benevolent Association president following early-morning FBI raids on his office and home on Tuesday.

Federal agents hit the Manhattan headquarters of the Sergeants Benevolent Association and Mullinss home on Long Island, according to the New York Post, in what the FBI said was part of an ongoing investigation that the Post said involves accusations of mail and wire fraud. Agents seized computer gear from his residence, per the Post, and were seen carting off boxes of documents from SBA headquarters. The SBA did not respond to a request for comment.

The SBA is the second-largest of the citys five police unions, which represent the citys nearly 35,000 officers, including Mullins, who is a sergeant. He was elected president of the SBA in 2002 and has been a thorn in the side of four commissioners, Bill Bratton, the police commissioner under both Bill de Blasio and Rudy Giuliani, told New York last year. On Tuesday night, the SBA announced that Mullins had resigned upon request by the unions executive board:

The New York Daily News reports that Mullins officially filed for retirement Wednesday after turning in his gun and badge. Sgt. Vincent Vallelong, previously the SBAs vice president, will now take over as president.

Mullins has frequently made offensive comments on race and crime, once comparing an arrested NFL player to a wild animal. Many of these comments came from the official SBA Twitter account, which Mullins controls, and included calling Representative Richie Torres a first class whore and Dr. Oxiris Barbot, then the citys health commissioner, a bitch.In another, the Civilian Complaint Review Board is called a disgrace for a tweet reminding New Yorkers about their Fourth Amendment rights, which protect them from unlawful search and seizure. Last year, the SBA account posted the arrest report on Chiara de Blasio, the mayors daughter, which included personal information such as her birth date and home address.

Earlier this year, the CCRB recommended three misconduct charges against Mullins: two counts of offensive language for the comments against Torres and Barbot and one count of abuse of authority for the arrest report. Last month, Mullins was put on trial in a departmental hearing on the charges.

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Belligerent Boss of an NYPD Union Resigns After His Home Is Raided by FBI - New York Magazine

PRIVACY experts are concerned the US government is overreaching by secretly issuing warrants for Google to turn over a person's search terms.

Federal investigators are pursuing so-called "keyword warrants" and getting Google to provide information based on anyone who searched a victim's name or their address during a particular year, according to a court document that was mistakenly unsealed in September.

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The revelation came in a 2019 federal case in Wisconsin where investigators pursuing men they suspected were trafficking and sexually abusing a minor who had gone missing.

The investigators approached Google to supply information on anyone who used their search engine to type in the victims name, two spellings of her mothers name and her address over 16 days that year, according to Forbes.

Authorities being able to access peoples searches is concerning to privacy experts who fear they could breach of Fourth Amendment protections from unreasonable searches.

Trawling through Googles search history database enables police to identify people merely based on what they might have been thinking about, for whatever reason, at some point in the past, surveillance and cybersecurity counsel at the American Civil Liberties Union Jennifer Granick told Forbes.

Google didnt deny the searches and claimed they were fairly supportive of both law enforcement and protected individual rights.

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As with all law enforcement requests, we have a rigorous process that is designed to protect the privacy of our users while supporting the important work of law enforcement, a Google spokesperson said.

While the Silicon Valley tech giant responds to thousands of warrant orders every year, the governments keyboard warrants are a new and potentially controversial pursuit.

The document was also unredacted, meaning the accidental unsealing published the kidnapping victims name, her Facebook profile, her phone number and address - a potential breach of a minors privacy, according to Forbes.

Aside from the Wisconsin sex abuse case, which has since been sealed, Forbes was able to find at least one other instance where a keyword warrant was sought.

That case occurred in the Northern District of California in December 2020, but unlike the Wisconsin case, the document was sealed.

That order is listed in the docket as: Application by the United States for a Search Warrant for Google Accounts Associated with Six Search Terms and Four Search Dates, according to Forbes.

Following the publication of Googles keyboard warrants article, Jennifer Lynch, surveillance litigation director at the Electronic Frontier Foundation (EFF), detailed three other Google keyword warrants.

She found they involved an investigation into serial Austin bombings in 2018, which resulted in the deaths of two people.

Also, Google is not the only company serving up such information to law enforcment agencies.

Both Yahoo and Microsoft appear to have supplied the similar search data in two cases, Forbes reported.

Just last month, Google was under pressure to explain is method of providing location data to law enforcement in an attempt to catch criminals.

Authorities were able to seek a geofence warrant' that puts Google on the clock to hand over a persons data.

Google reported it fielded 11,554 geofence location warrants from law enforcement last year.

It said 8,396 had been requested in 2019.

Police in Gainesville, Florida turned to Google to Google supply intel about a man called Zachary McCoy after they determined his routine bike ride had him passing through a crime scene.

McCoy was received an alarming email from Google in January 2020 informing him that the police had requested his user data.

He had seven days to go to court if he wanted to block the release of his Google data.

He learned that the case involved a burglary that had happened at a home on his bike route that particular day in 2019.

Police had obtained McCoy's Google location data at the time through a geofence warrant.

The connection between his location and the site of the crime meant the police wanted to access more data about McCoy.

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Michael Valdez filed a lawsuit in 2015 after he was shot twice in 2013 following a police chase.

DENVER A Denver jury awarded more than $2.4 million to a man who was shot by a Denver Police (DPD)officer in 2013, court records show.

According to the verdict form, the jury said Sgt. Robert Motyka should pay $131,000 in damages and that the city and county of Denver should pay $2.4 million. That decision was made on Sept. 23 in connection with a civil lawsuit filed by Michael Valdez in 2015.

The jury found Denver liable for a failure to train and found that Motyka used excessive force which violated Valdezs Fourth Amendment rights.

That lawsuit named Motyka, four other officers, and the city of Denver as defendants.

>The video above contains a report from the day of the shooting in 2013.

On Jan. 16, 2013, Valdez was at a store when an acquaintance named John Montoya, offered him a ride home in his red Dodge pick-up, which offer Valdez accepted, according to the lawsuit.

Valdez sat in the middle of the cab section of the truck. Two other men were located by the passenger window of the truck and in the bed of the truck; a female passenger was seated with Valdez in the middle of the cab section.

According to the lawsuit, Valdez did not know that Montoya and his vehicle were wanted by DPD for an incident earlier that morning. At some point during the ride DPD officers began chasing the truck, the lawsuit says.

At least one of the vehicle's occupants fired shots at bystanders and officers during the chase, according to prior 9NEWS reporting. Motyka was hit in the shoulder and wounded, Montoya was fatally shot by officers.

Ultimately the pick-up truck crashed into a tree near the intersection of West 39th and Osage streets in Denver, the suit says and Montoya and several passengers got out.

Valdez initially stayed inside, the lawsuit says, but eventually exited with his hands up the lawsuit says.

While on the ground with his face in the grass and his hands extended overhead, Valdez was shot by officers, the lawsuit says. He was hit once in his back and once to his fourth finger as he tried to shield his head from gunshots, the lawsuit says.

In addition, the lawsuit says, police pursued charges against Valdez which were ultimately dismissed by the District Attorney.

9NEWS has reached out to the city attorney's office but has not yet heard back, but a spokesperson told our partners at the Denver Gazette that they're reviewing the case to determine next steps.

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Jury sides with man shot by officer in 2013, awards him more than $2.4 million - 9News.com KUSA

A jury has awarded more than $2.5 million to a man who sued a Denver police sergeant and the city in 2015 when he was shot in the back and hand while he lay facedown with his hands above his head, after getting caught in the crosshairs of a shootout as an unarmed bystander when an acquaintance he had taken a ride from led police on a chase.

Michael Valdez claimed in a federal lawsuit the city failed to adequately train the officers on reasonable use of force during arrests. A jury on Sept. 23 found Denver liable for a failure to train and found that Sgt. Robert Motyka, Jr. used excessive force in violation of Valdez Fourth Amendment rights.

The verdict includes $131,000 in damages against Motyka whom Valdez sued in his individual capacity and $2.4 million against Denver.

Valdez and his attorneys couldnt immediately be reached for comment Monday.

In January 2013 Valdez accepted a ride in a friends pickup truck. Valdez didnt know the friend and his truck were wanted by Denver police for involvement in an incident earlier in the day, according to the lawsuit. A chase ensued during which shots were fired at officers, and Motyka was hit. The truck eventually crashed, and Valdez and another passenger got out of the car a few minutes later and lay on the ground, the lawsuit says.

Valdez was shot in his back and finger as he tried to shield his head from gunshots, the lawsuit claimed.

The lawsuit said Valdez suffered fractures in his back that left bone fragments in his spinal canal and had to have part of a finger on his left hand amputated. The injuries confined Valdez to a wheelchair for more than a year and he regained only partial use of his legs and feet by the time of the lawsuits filing, according to the complaint.

City attorney spokesperson Jacqulin Davis said in a statement the city is reviewing the case to determine next steps. The officer couldnt participate during the first week of the trial because of COVID restrictions, she wrote in an email.

Officer training is taken seriously in Denver, Davis wrote.

An arrest affidavit issued for Valdez at the time said Motyka received treatment at a hospital for his gunshot wound.

The lawsuit claimed prosecutors filed unsubstantiated charges for attempted murder, assault and first-degree murder against Valdez in two separate cases despite the officers knowing Valdez wasnt involved in the incidents. The lawsuit said Valdez remained in jail in agonizing pain for more than two months, unable to post bond, until prosecutors dismissed the charges on March 19, 2013.

At no time on January 16, 2013, did Mr. Valdez possess a firearm, attempt to shoot anyone, or otherwise attempt to cause bodily injury to anyone. Mr. Valdez was simply an innocent bystander who was a captive passenger in the red Dodge truck, said the lawsuit.

The complaint claimed the city has a long-standing culture of tolerating excessive force by police. It pointed to an incident a few years earlier involving Motyka when officers forcefully entered a home without a warrant and assaulted a father and three sons, later realizing the people they actually were after a pair of brothers who reportedly sold drugs and ran a brothel out of the home had recently moved out of the home, The Denver Post reported.

Members of the family were falsely charged with assaulting officers, the lawsuit brought by Valdez said.

Qusair Mohamedbhai, a civil rights attorney and partner at Rathod Mohamedbhai,represented the family in a lawsuit that resulted in a $1.8 million verdict awarded to them in 2014.

He said the jury's finding of Denver's liability in Valdez' case for failure to train stands out to him because it seems to indicate the jurors believed systemic issues within the police department are a bigger problem than the individual officer's conduct.

"When you keep these kinds of officers who have been now tagged multiple times in federal court by juries, the problem might be the officers, or it sure seems like it's the system that allows them to remain," he said.

Motyka received the Denver Police Department's Medal of Honor for his involvement in the chase, The Denver Post reported in 2015.

But the 10th Circuit Court of Appeals upheld the trial courts denial of qualified immunityfor Motyka which shields government employees from lawsuits absent a violation of clearly established constitutional rights in 2020.

In its denial of qualified immunity for Motyka, the trial court described the injured officer as very angry as well and very eager to get the occupant who shot him. The scattered bullets and Motykas attitude suggested he started shooting without making any effort to determine whether there was any immediate threat to him or others as the occupants of the cab came out.

Court cases are an important part of establishing and clarifying constitutional rights, and in that way, Mohamedbhai said qualified immunity is a tricky concept because it assumes officers are "walking repositories of case law" who approach situations by "scanning their database brains" to understand when qualified immunity will protect them and make decisions about what they should and shouldn't do.

"That's the absurdity of it," he said.

The jury took less than three hours in Valdez' lawsuit to reach its verdict when the members began deliberating on Sept. 23 after a nine-day trial, courtroom notes indicate.

Valdez originally also sued officers Peter Derrick III, Jeff Motz and Karl Roller, but dropped his claims against them in August 2018. The trial court granted qualified immunity to a fifth officer Valdez brought claims against, John MacDonald.

Colorado Politics reporter Michael Karlik contributed to this report.

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Man wins $2.5 million verdict in excessive force lawsuit against Denver police sergeant and city - Denver Gazette