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In its 4th revision to the SEC, Palantir tries to explain what the hell is going on – TechCrunch

For a company vaunted for its clandestine government work and strong engineering culture, you cant help but wonder if the governments bureaucratic norms and paperwork pushing are starting to flood into the Shire.

When most companies go public, they file a Form S-1 with the SEC, wait a few weeks through the investor road show, then submit an amended filing with the final details of the offering before trading commences. Simple, easy, effective. No one wants to mess with the SEC, and so top securities law firms work diligently to ensure that everything is in order when that initial form is filed.

Palantir has done nothing of the sort. It filed a confidential draft registration statement back in July. It filed an amendment. It filed another amendment. It filed its official S-1. Then an amendment, and an amendment, and an amendment, and an amendment. And its still not trading, so another amendment is in the offing.

Palantir is not a complicated business. Its a software business (mostly) today with 125 customers, making real revenues, and with a decent story to tell investors. And yet, you cant help but look agog at the level of complication and paperwork the company has created for itself by just trying to be a little bit different from everyone else.

One part of that complication was its invention of a direct listing with a lockup. When a company directly lists on a stock exchange, recent tradition holds that insiders are not locked up, which means that they will be allowed to start buying and selling their shares as soon as the company hits the market. For reasons that are known only to Palantir, the company decided to mostly block employee trading, limiting the float that can be expected when it begins trading.

So in todays 4th amendment to its S-1, we have some updated figures of what the lockup will look like. Palantir will lock up about 80% of shares in the company, allowing about 380 million shares to trade on opening day. Eight million more shares will come on the market in November when certain restricted stock units vest for company employees, and other vested RSUs will also not be beholden to the lockup agreement as they come next year.

In addition to those figures, the company noted that it is pushing back its target opening day from September 23rd to September 29th. So about a week delay, although nothing particularly notable (such changes are often made in these processes).

The direct listing with lockup was complication number one. Complication number two is the absolute byzantine ownership structure that Palantir has selected for itself. In a note added this morning in its filing, the company admits that This is a novel capital structure that differs significantly from those of other companies that have dual or multiple class capital structures. Thats quite an understatement.

In Palantirs governance structure, it will have three classes of shares. Class A shares have 1 vote, Class B shares have 10 votes and Class F shares (for Founder) have a variable number of votes that will ensure that Palantirs founders Alex Karp, Stephen Cohen and Peter Thiel maintain 49.999999% control of the company essentially in perpetuity (or at least until they want to give it up by selling).

Today, the company provided a handy table on exactly what that all means, as its not simple at all. Lets take a look at a cleaned-up version of their voting table, based on which founders are employed at Palantir at a specific time:

The key here is that so long as the three founders are all actively working at Palantir, their ownership is meant to be capped at 49.999999% of the company. In other words, any other shares they own of the Class A and Class B varietals are included within that ownership number. This is something I have gotten wrong, so mea culpa, although frankly, if you need to file a half dozen amendments to the SEC to explain what you are doing, I feel like I am in good company.

Where it gets bizarre is if one of the three founders leaves. In those scenarios, the three of them collectively will have even more power than if they all actually work at the company simultaneously. For instance, if Thiel leaves the company (which in his case means resigning from the board), the three founders actually increase their voting power collectively from 49.999999% to 64.999999%, assuming Thiel doesnt sell any of his own shares. What do those calculations ultimately mean? Well, Palantir was gracious enough to put an explanation in its fourth amendment on exactly what it all boils down to:

While the Board retains the power to hire and remove members of our management, which currently includes two of our Founders, the Founders would continue to beneficially own shares of Class F common stock and Class B common stock and be able to exercise control over matters submitted to a vote of our stockholders so long as our Founders who are then party to the Founder Voting Agreement and certain of their affiliates collectively meet the Ownership Threshold on the applicable record date, even if one or more of our Founders resigns from the Company or is terminated. (Emphasis mine)

In other words, if you strike them down, they shall become more powerful than you can possibly imagine, Shareholder.

Palantir in this filing also made clear that there is at least some floor by which the three founders have to collectively own the company. With all three of them onboard, they have to maintain ownership over 100 million shares of the company, or slightly less than 5%. So they cant, say, own 0.0001% of the company and control 49.999999% of the vote. What a relief!

Look, founder control is a mainstay of modern Silicon Valley tech IPOs. But weve never seen such an extensive, interlocking set of systems designed to make a company absolutely impregnable to any form of external governance. I can understand the concerns with Palantir, given its work, its controversies and the extreme media attention it receives. It probably needs some form of governance that provides it stability amidst the maelstrom. But all of this sets such a bad precedent for the rest of Silicon Valley that I hope its recognized in their share price.

Updated September 18 to add Palantirs delay of its opening day to September 29.

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In its 4th revision to the SEC, Palantir tries to explain what the hell is going on - TechCrunch

City of Pierre among South Dakota towns ordered to pay a total of $440000 because of forced catheterizations – Drgnews

The towns of Pierre, Sisseton and Wagner and former South Dakota Highway Patrol officer Adam Woxland have agreed to collectively pay a total of $440,000 in damages, legal costs and attorneys fees from a case involving the use of forced catheterizations to obtain urine samples from suspects.

A federal judge has ruled the practice of forced catheterizations is unconstitutional.

The ACLU of South Dakota and attorney Jim Leach of Rapid City filed the Fourth Amendment case on behalf of several individuals against the city of Pierre and the Pierre Police Department, the city of Wagner and the Wagner Police Department, the city of Sisseton and the Sisseton Police Department and the South Dakota Highway Patrol.

In the case, the plaintiffs said they were held down and subjected to involuntary catheterization after police obtained search warrants for urine samples to detect the presence of drugs. However, none of the search warrants obtained by police specifically authorized forced catheterization as a means of obtaining evidence.

In his April ruling, US District Judge Roberto Lange said the mere suspicion of low-level drug crimes did not justify the procedure. He says the plaintiffs were not smuggling drugs or weapons in their urethras and bladders and the catheterizations would only provide evidence of drug ingestion rather than the more serious crime of drug trafficking. Lange continued saying ingesting drugs is one of the least serious drug crimes a person can commit.

South Dakota is the only state in the nation that imposes a felony for ingestion of a controlled substance.

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City of Pierre among South Dakota towns ordered to pay a total of $440000 because of forced catheterizations - Drgnews

Former Torrington officer seeks to have evidence suppressed before trial – Scottsbluff Star Herald

A former Torrington Police Officer accused of sexual assault is seeking to suppress evidence in the case.

Attorney for Anthony John Scoleri, filed a motion on Aug. 5, to suppress evidence based on the State of Wyoming not providing evidence during discovery.

Scoleri, a former Torrington Police Department (TPD) officer, has been charged with five felony counts: One count of first-degree sexual assault, three counts of sexual abuse of a minor in the first degree, and one count of incest.

Scoleris attorney, Donna D. Domonkos, claims the state attained a search warrant on Feb. 23, 2020, for the home of Scoleri. The warrant, she said, describes the location to be searched, but does not give any particularity to what the officers were seeking. The warrant merely states that Sgt. Joel Sandlian has reason to believe there is property being concealed at the home, property that is designed or intended for use or has been used in committing a criminal offense, or tends to show a particular person committed the offense.

According to Domonkos, the search warrant in this case is invalid and the defendant was unlawfully searched and seized under the Fourth Amendment under the Constitution. The warrant for search and seizure of the property of the defendants residence did not describe any property to be seized and was left blank.

His attorney claims he was not given a copy of the search and seizure papers at the time of the search. When officers arrived, he was also told he could not go into the house while it was being searched. After the search, Scoleri found the warrant with items taken attached, in the home.

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Former Torrington officer seeks to have evidence suppressed before trial - Scottsbluff Star Herald

Council To Have One-Day Session To Learn About Police – The Rhino TImes

Greensboro City Councilmember Marikay Abuzuaiter is finally going to get a long time request granted.

For months Abuzuaiter has been pushing for a mini-police academy course for members of the City Council.

Abuzuaiter is a proud graduate of the Police Citizens Academy, which is a program to teach citizens about the Police Department, and has long advocated for the City Council to spend a few hours in a similar setting learning about police policies and procedures.

The City Council has been focused on police procedures this year and during just about every discussion Abuzuaiter has advocated for a mini-police academy class for councilmembers. At one point, Abuzuaiter had given up on the idea of ever having a mini-police academy and suggested that the City Council simply have a work session on the Police Department rather than looking at the issue of the day in isolation.

At the City Council virtual work session on Tuesday, Sept. 15, City Manager David Parrish confirmed that a mini-police academy session would be provided for councilmembers who wished to participate and it would last for less than a day.

Assistant City Manager Trey Davis said it would be a short course based on the Police Citizens Academy model and would cover things like use of force, procedural justice, traffic stops, the early warning system, the Fourth Amendment and other topics. Abuzuaiter said, A lot of these questions that keep arising would be handled in a course like that.

Councilmember Sharon Hightower said, We dont need to learn how to be a police officer. She added, I think we already know what they do.

Mayor Nancy Vaughan said that she did a similar one-day course with the fire department, learned a lot and had a lot of fun.

Vaughan also said that the media was invited to the fire department class.

Councilmember Goldie Wells said that police were under attack all over the country and would benefit the council in its decision making to know and understand more about the day-to-day life of a police officer.

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Council To Have One-Day Session To Learn About Police - The Rhino TImes

Things to Know Before Your Neighborhood Installs an Automated License Plate Reader – EFF

Every week EFF receives emails from members of homeowners associations wondering if their Homeowners Association (HOA) or Neighborhood Association is making a smart choice by installing automated license plate readers (ALPRs). Local groups often turn to license plate readers thinking that they will protect their community from crime. But the truth is, these cameraswhich record every license plate coming in and out of the neighborhoodmay create more problems than they solve.

Some members of a community think that, whether theyve experienced crime in their neighborhood or not, a neighborhood needs increased surveillance in order to be safe. This is part of a larger nationwide trend that shows that peoples fear of crime is incredibly high and getting higher, despite the fact that crime rates in the United States are low by historical standards.

People imagine that if a crime is committed, an association member can hand over to police the license plate numbers of everyone that drove past a camera around the time the crime is believed to have been committed. But this will lead to innocent people becoming suspects because they happened to drive through a specific neighborhood. For some communities, this might mean hundreds of cars end up under suspicion.

Also, despite what ALPR vendors like Flock Safety and Vigilant Solutions claim, there is no real evidence that ALPRs reduce crime. ALPR vendors, like other surveillance salespeople, operate on the assumption that surveillance will reduce crime by either making would-be criminals aware of the surveillance in hopes it will be a deterrent, or by using the technology to secure convictions of people that have allegedly committed crimes in the neighborhood. However, there is little empirical evidence that such surveillance reduces crime.

Like all machines, ALPRs make mistakes

ALPRs do, however, present a host of other potential problems for people who live, work, or commute in a surveilled area.

ALPRs are billed as neighborhood watch tools that allow a community to record which cars enter and leave, and when. They essentially turn any neighborhood into a gated community by casting suspicion on everyone who comes and goes. And some of these ALPR systems (including Flocks) can be programmed to allow all neighbors to have access to the records of vehicle comings and goings. But driving through a neighborhood should not lead to suspicion. There are thousands of reasons why a person might be passing through a community, but ALPRs allow anyone in the neighborhood to decide who belongs and who doesnt. Whatever motivates that individual - racial biases, frustration with another neighbor, even disagreements among family members - could all be used in conjunction with ALPR records to implicate someone in a crime, or in any variety of other legal-but-uncomfortable situations.

The fact that your car passes a certain stop sign at a particular time of day may not seem like invasive information. But you can actually tell a lot of personal information about a person by learning their daily routinesand when they deviate from those routines. If a persons car stops leaving in the morning, a nosy neighbor at the neighborhood association could infer that they may have lost their job. If a married couples cars are never at the house at the same time, neighbors could infer relationship discord. These ALPR cameras also give law enforcement the ability to learn the comings and goings of every car, effectively making it impossible for drivers to protect their privacy.

These dangers are only made worse by the broad dissemination of this sensitive information. It goes not just to neighbors, but also to Flock employees, and even your local police. It might also go to hundreds of other police departments around the country through Flocks new and aptly-named TALON program, which links ALPRs around the country.

HOAs and Neighborhood Associations are rarely equipped or trained to make responsible decisions when it comes to invasive surveillance technology. After all, these people are not bound by the oversight that sometimes accompanies government use of technology--theyre your neighbors. While police are subject to legally-binding privacy rules (like the Fourth Amendment), HOA members are not. Neighbors could, for instance, use ALPRs to see when a neighbor comes home from work every day. They could see if a house has a regular visitor and what time that person arrives and leaves. In San Antonio, one HOA member was asked what they could do to prevent someone with access to the technology from obsessively following the movements of specific neighbors. He had never considered that possibility: "Asked whether board members had established rules to keep track of who searches for what and how often, Cronenberger said it hadnt dawned on her that someone might use the system to track her neighbors movements.

Like all machines, ALPRs make mistakes. And these mistakes can endanger peoples lives and physical safety. For example, an ALPR might erroneously conclude that a passing cars license plate matches the plate of a car on a hotlist of stolen cars. This can lead police to stop the car and detain the motorists. As we know, these encounters can turn violent or even deadly, especially if those cars misidentified are being driven by Black motorists.

This isnt a hypothetical scenario. Just last month, a false alert from an ALPR led police to stop a Black family, point guns at them, and force them to lie on their bellies in a parking lotincluding their children, aged six and eight. Tragically, this is not the first time that police have aimed a gun at a Black motorist because of a false ALPR hit.

Though police have used these tools for decades, communities have only recently had the ability to install their own ALPR systems. In that time, EFF and many others have criticized both ALPR vendors and law enforcement for their egregious abuses of the data collected.

Police abuse this technology regularly. And unfortunately, neighborhood users will likely do the same.

A February 2020 California State Auditors report on four jurisdictions use of this tech raised several significant concerns. The data collected is primarily not related to individuals suspected of crimes. Many agencies did not implement privacy-protective oversight measures, despite laws requiring it. Several agencies did not have documented usage or retention policies. Many agencies lack guarantees that the stored data is appropriately secure. Several agencies did not adequately confirm that entities they shared data with had a right to receive that information. And many did not have appropriate safeguards for users accessing the data.

California agencies arent unique: a state audit in Vermont found that 11% of ALPR searches violated state restrictions on when cops can and can't look at the data. Simply put: police abuse this technology regularly. And unfortunately, neighborhood users will likely do the same.

In fact, the growing ease with which this data can be shared is only increasing. Vigilant Solutions, a popular vendor for police ALPR tech, shares this data between thousands of departments via its LEARN database. Flock, a vendor that aims to offer this technology to neighborhoods, has just announced a new nationwide partnership that allows communities to share footage and data with law enforcement anywhere in the country, vastly expanding its reach. While Flock does include several safeguards that Vigilant Solutions does not, such as encrypted video and 30-day deletion policies, many potential abuses remain.

Additionally, some ALPR systems can automatically flag cars that dont look a certain wayfrom rusted vehicles to cars with dents or poor paint jobsendangering anyone who might not feel the need (or have the income required) to keep their car in perfect shape. These vehicle fingerprints might flag, not just a particular license plate, but a blue Honda CRV with damage on the passenger side door and a GA license plate from Fulton County. Rather than monitoring specific vehicles that come in and out of a neighborhood via their license plate, vehicle fingerprint features could create a trouble drag-net style of monitoring. Just because a person is driving a damaged car from an accident, or a long winter has left a persons car rusty, does not mean they are worthy of suspicion or undue police or community harassment.

Some ALPRs are even designed to search for certain bumper stickers, which could reveal information on the political or social views of the driver. While they arent in every ALPR system, and some are just planned, all of these features taken together increase the potential for abuse far beyond the dangers of collecting license plate numbers alone.

Unfortunately, ALPR devices are not the first piece of technology to exploit irrational fear of crime in order to expand police surveillance and spy on neighbors and passersby. Amazons surveillance doorbell Ring currently has over 1,300 partnerships with individual police departments, which allow departments to directly request footage from an individuals personal surveillance camera without presenting a warrant. ALPRs are at least as dangerous: they track our comings and goings; the data can indicate common travel patterns (or unique ones); and because license plates are required by law, there is no obvious way to protect yourself.

If your neighborhood is considering this technology, you have options. Remind your neighbors that it collects data on anyone, regardless of suspicion. They may think that only people with something to hide need to worrybut hide what? And from who? You may not want your neighbor knowing what time you leave your neighborhood in the morning and get back at night. You may also not want the police to know who visits your home and for how long. While the intention is to protect the neighborhood from crime, introducing this kind of surveillance may also end up incriminating your neighbors and friends for reasons you know nothing about.

You can also point out that ALPRs have not been shown to reduce crime. Likewise, consider sending around the California State Auditors report on abuses by law enforcement. And if the technology is installed, you can (and should) limit the amount of data thats shared with police, automatically or manually. Remind people of the type of information ALPRs collect and what your neighbors can infer about your private life.

If you drive a car, youre likely being tracked by ALPRs, at least sometimes. But that doesnt mean your neighborhood should contribute to the surveillance state. Everyone ought to have a right to pass through a community without being tracked, and without accidentally revealing personal details about how they spend their day. Automatic license plate readers installed in neighborhoods are a step in the wrong direction.

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Things to Know Before Your Neighborhood Installs an Automated License Plate Reader - EFF

Attorney argues Haynes and his brother bribed witness to recant his testimony in 1999 murder case – Kankakee Daily Journal

KANKAKEE The attorney representing several people and government agencies being sued by Terrence Haynes argued in a motion Haynes and his brother, Jemiko Bates, bribed a witness in order to get his release from state prison and murder charges dropped from a 1999 case.

Haynes had served 20 years of a 45-year sentence, but the Illinois Appellate Court ruled in May 2018 he should be tried again when it was learned a key witness recanted his testimony and as other facts came to light.

The latest motion in the case was filed Wednesday in U.S. District Court in Urbana by Chicago attorney James Sotos.

Sotos represents the City of Kankakee, Kankakee police officers Kenneth Lowman, Samuel Miller and Susan Wagner, Kankakee County, and former Kankakee County Assistant States Attorneys Frank Astrella and Michael Jeneary.

Lowman, Miller and Wagner investigated the case, while Astrella and Jeneary prosecuted it.

In his new filing, Sotos argued that tapes of phone calls Haynes made with family members, including Bates, show he and his brother conspired to pay $1,000 to Marcus Hammond, the states key witness at his August 2000 trial.

According to Sotos filing, Haynes discussed in early 2015, a $1,000 payment from his brother to Hammond in exchange for his testimony.

Those calls demonstrate that [Haynes] actively approved of and offered money to fund the bribe, according to the filing.

Plaintiff has benefited tremendously from the bribery, including through the dismissal of criminal charges and receipt of a Certificate of Innocence. But Plaintiffs use of the bribe to manufacture and advance this lawsuit in discovery now places him in the crosshairs of this Courts broad remedial powers.

Hammond recanted his earlier testimony that Murrell did not have a gun when Haynes fired two shots, hitting Murrell. Hammond was 10 years old when the shooting occurred on the porch of his brothers (Gary Hammond) house.

According to court documents, Hammond told investigators Murrell was armed and going for his gun. Hammond said prosecutors told him to say he did not see Murrell with a gun.

Michael Jeneary and Marcus Hammond are cousins. This fact was brought up when Haynes filed a motion in 2008 that his due process rights were violated.

The 43-year-old Haynes is represented by Chicago attorneys Andrew M. Hale and Shawn W. Barnett of the firm Hale & Monico. They filed the lawsuit in October 2019.

Haynes and Bates are currently out on bail after both were arrested in July in Coles County and charged with drug trafficking.

Haynes lawsuit seeks compensatory damages, punitive damages, attorneys fees, costs and for any additional relief that is just and proper.

They argue that Haynes constitutional rights were violated, including the Fourth Amendment (unreasonable search and seizures) and 14th Amendment (due process).

The other four counts deal with Illinois state law in regard to malicious prosecution, intentional infliction of emotional distress, legal malpractice and compensation.

In June 2019, Haynes had all charges dropped against him from a 1999 arrest for the homicide of May 1999 shooting and killing of Cezaire Murrell.

Murrell and Haynes were involved in a fight prior to the shooting, according to court documents. Haynes was convicted in August 2000 and was sentenced to 45 years by Kankakee County Judge Kathy Bradshaw Elliott.

After the Illinois Appellate Court ruled in May 2018 he should be tried again, Kankakee County States Attorney Jim Rowe dismissed the charges rather than try Haynes for a third time.

Rowe also agreed with a motion filed by Haynes attorneys for the court to grant a Certificate of Innocence. The certificate can remove the conviction from a persons record. If granted, a wrongly convicted person can bring a claim for damages against the state.

According to the motion filed Wednesday by Sotos, the amount paid by the state was $236,095.

At Haynes hearing in regards to the Certificate of Innocence, Jeffrey R. Kivetz, an attorney with Sotos firm, was escorted from the courtroom after trying to get Judge Michael Sabol to allow him to speak.

Kivetz said he wanted to speak about the certificate. Rowe and Barnett both said Kivetz had no connection with this case.

As Kivetz was being escorted out he said, I wasnt trying to be rude. I just was trying to give our opinion.

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Attorney argues Haynes and his brother bribed witness to recant his testimony in 1999 murder case - Kankakee Daily Journal

Justice Ruth Bader Ginsburgs Lasting Impact on U.S. Traffic Laws – The Art of Gears

Justice Ginsburg was involved in several seminal traffic stop cases.

In honor of the passing of Justice Ruth Bader Ginsburg of the Supreme Court of the United States, we are covering a topic thats slightly different from the norm today.

Ginsburg is nothing short of a monumental figure in the history of the American legal system. She served for 27 years on the nations highest court, the culmination of a long and storied career as a jurist and judge.

What car enthusiasts might not know is that Ginsburg tackled automotive-related legal issues throughout her time on the bench. Ginsburg, along with her Supreme Court colleague Antonin Scalia, authored numerous opinions addressing the rights of Americans as drivers and passengers of wheeled vehicles.

Consider, for example, the Supreme Courts recent ruling inKansas v. Glover. That case involved a legal question of whether a police officer, who runs a vehicles license plate, can assume that the car is being driven by the registered owner and conduct a traffic stop. In the specific case, the registered owner of the car had a revoked drivers license, which the officer used as a basis for pulling over the car.

The Supreme Court ruled that the vehicle owners revoked license was basis enough for a traffic stop to occur, even if the officer may not know who is actually driving the car. Ginsburg, at oral argument, questioned attorneys for the state about whether they believed that a driver with a revoked license would subsequently break the law. Ginsburg subsequently sided with the majority, which ruled that such a traffic stop was constitutional and thus permissible.

Rodriguez v. United States Length of traffic stops

Ginsburgs focus on personal liberties was more fully realized in thecase ofRodriguez v. United States, which concerned the question of how long traffic stops may last.

Rodriguez concerned the question of whether a traffic stop, occurring on the basis of a traffic violation, could be extended to cover additional law enforcement measures, such as the use of a drug-sniffing dog.

Ginsburg wrote the eloquent majority opinion, stating that a traffic stop will become unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation. Ginsburg reasoned that because the initial purpose of the stop was to investigate why the driver in question had swerved out of his lane, the scope of the traffic stop was limited to investigation of that question.

Notably, Scalia joined in the majority opinion, despite the well-publicized differences in opinion between himself and Ginsburg.

Ginsburg joined the majority inBrendlin v. California, which held that both passengers and drivers are seized under the Fourth Amendment during a traffic stop.

This ruling matters because evidence discovered by police as a result of anunreasonable traffic stop is not admissible in court, due to the Fourth Amendments protection against unreasonable searches and seizures.

Justice Ginsburg is a legendary judge, and her legacy lives on in how traffic laws are enforced in America. While Ginsburgs personal feelings on cars are unknown, her impact will forever be felt when drivers are detained for traffic violations.

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Justice Ruth Bader Ginsburgs Lasting Impact on U.S. Traffic Laws - The Art of Gears

Editorial, August 10, 2020: Your cellphone might be "Big Brother" – Richmond.com

You might not know geofencing, but it knows you.

Geofencing is defined as a technology that draws a virtual line around a physical area so that a signal can be sent to a mobile electronic device, such as a cellphone, that has passed through that area.

If youve ever walked into a store, spoken to no one and then very shortly gotten an email or text from that store, youre familiar with the practice if not the word.

Geofencing also is a law enforcement tool, at least until and unless the courts decide otherwise.

Last year, a man robbed a Richmond-area bank of $195,000. A search warrant led to Google opening its cellphone accounts to focus on everyone near the bank at the time of the robbery. With a little sleuthing, the cops narrowed their search down to one man whose phone was inside the bank when it was robbed. He was caught with $100,000 and he confessed.

Now the mans lawyers claim that the Google search violated the Fourth Amendment, which guarantees citizens protection against unreasonable searches and guards our expectation to privacy.

His attorneys say finding the location of every cellphone near that bank is like searching every home in a neighborhood because of a nearby robbery. The federal court in Richmond will decide whether theyre right.

Freeing a man who pretty obviously did the crime on a technicality would be a hard pill to swallow. However, the way he was caught is problematic.

If you have an Android phone or iPhone, and Location History is enabled, the data from that phone is tracked and stored.

Many of us do not like the idea that our every move is being recorded. That seems invasive, not to say irritating.

A man in Florida learned that police were seeking information on his Google account. He coincidentally was in the same area where a home was burglarized and was a suspect. He spent thousands clearing his name.

An Arizona man spent six days in jail after a geofence search showed him at a place where a crime was committed. Turns out, hed given his old cellphone to another man, who did the deed.

New York state is considering a bill that would ban geofence warrants there. The federal ruling in Richmond will help determine their legality nationwide.

Geofencing is no doubt valuable in catching criminals, but the amount of privacy every citizen gives up seems like a high price to pay for making crime prevention a little easier.

If the police came knocking on your door, demanding to search your house because somebody on your block committed a crime, you likely would feel violated. Geofencing is like that, except you dont even know youre being searched. That makes it even scarier.

Adapted from The Free Lance-Star, Fredericksburg

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Editorial, August 10, 2020: Your cellphone might be "Big Brother" - Richmond.com

Legal Brief: Surveillance and the Fourth Amendment – SecurityInfoWatch

Timothy J. Pastore, Esq., is a Partner in the New York office of Saul Ewing Arnstein & Lehr LLP (www.saul.com), where he is the Chair of the Security Systems Practice Group. Before entering private practice, Mr. Pastore was an officer and Judge Advocate General (JAG) in the U.S. Air Force and a Special Assistant U.S. Attorney with the U.S. Department of Justice. Reach him at (212) 980-7204 or by e-mail at timothy.pastore@saul.com.

Are you a homeowner? Do you value your privacy?

Do me a favor stand inside your front door. Do you expect that your conduct is private in your home? Now, step immediately outside your front door, just a few feet from where you stood inside. How about now?

You may be surprised to learn that the law may treat these two spots very differently.

It could be that you have a reasonable expectation of privacy inside your home, but no such reasonable expectation immediately outside your home. This appears to be the ruling of the United States Court of Appeals for the First Circuit (an intermediate federal appeals court) in a case known as United States v. Moore-Bush, 2020 WL 3249060 (1st Cir. 2020).

In this recently decided case, the court considered whether the governments warrantless use of a pole camera to continuously record the front of the defendants home infringed on the defendants reasonable expectation of privacy in and around their home and, thereby, violated the Fourth Amendment of the U.S. Constitution. The appellate court reversed the trial court and determined that the warrantless use of the camera was permissible and not a violation of the defendants fourth amendment rights.

As a former prosecutor, I agree with the decision, and I am glad that the drug and gun dealing defendants were caught and are subject to punishment; however, the decision is nevertheless thought-provoking and controversial.

The principal defendant an attorney and magistrate operated a side business dealing in illegal drugs and guns. Not a good idea.

She and her boyfriend lived with her mother in a quiet residential neighborhood. After a confidential informant bought four guns illegally at the residence, officers installed a pole camera across the street that viewed one side of the house.

The pole camera took continuous video recording for approximately eight months; focused on the driveway and the front of the house; had the ability to zoom in so close that it can read license plate numbers; and created a digitally searchable log.

The police also conducted physical surveillance of the residence seeing what anyone on the street could see.

Based, in part, on evidence gathered by the pole camera, the police obtained a series of other search warrants related to the investigation. Eventually, the principal defendant, her boyfriend and the principal defendants mother were charged with drug trafficking.

In advance of the presentation of evidence, the trial court ruled that the use of the pole camera for an extended period, coupled with the ability to zoom and to search the recordings, constituted an illegal search under the Fourth Amendment, leading to suppression of critical evidence in the case.

The government appealed the ruling of the trial court that the use of the pole camera violated the defendants rights. The appellate court reversed holding that the pole camera revealed nothing more than could be lawfully viewed by officers on the street; and therefore, no warrant was required, and the evidence gathered by the camera and other warrant-based evidence gathered subsequently was admissible and could be used against the defendants in their criminal trial.

Among other things, the appellate court held that what one knowingly exposes to public view does not invoke reasonable expectations of privacy protected by the Fourth Amendment.

The majority opinion in the Moore-Bush case was accompanied by what is known as a concurring opinion where one or more appellate judges agree with the conclusions of the majority of the court, but for different reasons. In this case, one of the appellate judges separately wrote a concurring opinion that began by acknowledging the logic of defendants arguments. In particular, the judge analogized the case to sign stealing in baseball, where it is acceptable that a base runner might steal a sign from the other team, but using a hidden camera to continuously record all signs throughout a game is not.

The concurring opinion also raised a concern that, given the pace of innovation, law enforcement will have license to conduct a degree of unchecked criminal investigatory surveillance that the Fourth Amendment could not possibly have been intended to allow. Nevertheless, the concurrence did not disagree with the result.

What is interesting is that the police officers investigating the defendants could have sought a warrant from a court at any time for the use of the camera essentially mooting the issues ultimately raised in the appeal. For whatever reason, they did not. Maybe they did not want to risk being denied a warrant, maybe they were worried about bias because one of the defendants was a magistrate judge, maybe they deemed it totally unnecessary because, in their view, it did not rise to the level of an unreasonable search and seizure otherwise prohibited by the Fourth Amendment.

We may never learn the motivation of these investigating officers, but, at a minimum, we can thank them for getting guns and drugs off the street. The issue, of course, is whether they violated the Constitution in the process. I believe not and the United States Court of Appeals for the First Circuit agrees.

How about you? Do you agree? I suggest you think about it maybe out on your front porch and be sure to smile for the camera.

Timothy J. Pastore, Esq., is a Partner in the New York office of Saul Ewing Arnstein & Lehr LLP (www.saul.com), where he is the Chair of the Security Systems Practice Group. Before entering private practice, Mr. Pastore was an officer and Judge Advocate General (JAG) in the U.S. Air Force and a Special Assistant U.S. Attorney with the U.S. Department of Justice. Reach him at (212) 980-7204 or by e-mail attimothy.pastore@saul.com.

Originally posted here:

Legal Brief: Surveillance and the Fourth Amendment - SecurityInfoWatch

Common Ways to Fight Against a Drug Possession Charge – Student Assembly of the State University of New York

Drug possession is the most common type of drug charge there is. Possession can fall under either a felony or a misdemeanor, and the category of crime it will fall under hinges on the type of controlled substance involved and how much of it there is.

Getting arrested for drug possession can be frightening, but you have less to worry about if your case is in the hands of an experienced drug possession attorney. Depending on the nature of your charges and your arrest, you and your attorney have a number of defenses to use to fight against your charge.

Here are the most common defenses you can expect to use for your case.

Entrapment is a defense that is built on the interaction you had with the arresting officers before or during the alleged crime. Illegal entrapment occurs when the arresting officer lures you into committing a crime that you wouldnt perpetrate otherwise. Police officers have every right to set up a string operation, but its illegal for them to compel you to do something you wouldnt have anyway. For example, if an officer forces you to consume a drug or offer to them to someone else, this can be considered illegal entrapment.

In the case of unwitting possession, your defense is that you werent aware the substances were in your person. This could happen if perhaps you were borrowing your friends car or watching their house for them while they were away and the police find the drugs in these locations and pin the crime on you.

Lack of possession means that there is a lack of evidence that establishes beyond a reasonable doubt that the controlled substance actually belonged to you. You cant be found guilty on the basis of mere proximity to the item since there is no sufficient proof to demonstrate that its yours.

There are plenty of substances that only simulate the appearance of drugs, but are actually made up of a completely different material. For example, talcum powder may resemble a drug like cocaine, even though they have completely different chemical make-ups. If the crime lab analysis shows that the controlled substance is not an illegal narcotic or if the lab makes an error in their investigation, then its likely that you can use this defense to get your case dismissed.

As an American citizen, you have the right to due process under the Fourth Amendment to the U.S. Constitution. This law protects you from illegal search and seizure procedures made by the police. Youre required to give your full consent for them to be able to do so, or they must have a search warrant or establish probable cause to legally conduct a search. Any piece of evidence against you that had to be obtained illegally cant be used in a trial which increases the chances of your case being dismissed.

This defense works much like the entrapment defense in that it claims that a police officer is forcing you to commit a crime you wouldnt normally commit. The only difference is that in this particular case, the drugs were planted on you by the arresting officers without your knowledge.

If you or someone you know is currently facing drug possession charges, an experienced attorney may use any of these defenses to help you get the most favorable results for your case.

Here is the original post:

Common Ways to Fight Against a Drug Possession Charge - Student Assembly of the State University of New York

Trump Judge Casts Deciding Vote to Grant Qualified Immunity on First Amendment Retaliation Claim: Confirmed Judges, Confirmed Fears – People For the…

Confirmed Judges, Confirmed Fears is a blog series documenting the harmful impact of President Trumps judges on Americans rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Sixth Circuit judge Chad Readler cast the deciding vote to reverse a district court and rule that a government security officer had qualified immunity and could not be sued for excessive use of force in responding to a persons protest against government officials. The July 2020 decision is Sevy v Barach.

Anthony Sevy went to a Michigan state courthouse to pay a $10 parking ticket. When he tried to pay with a debit card, he was told he would have to pay an additional $1.75 processing fee. He refused and later returned with $10 worth of pennies as a form of protest, which officials refused to accept. Things escalated and two security officers became involved. According to Sevy, one of those officers, Philip Barach, grabbed him as he was leaving, threw him to the ground, and choked him until he lost consciousness while he was placed under arrest. When he awoke, he was handcuffed and taken to an elevator where, Sevy explained, Barach threw him to the ground and knocked his head against the side of the elevator. Sevy was charged with disorderly conduct, to which he pleaded no contest, and was allowed to go home.

Sevy then proceeded to sue the officers in federal court, claiming Fourth Amendment excessive force and First Amendment retaliation. The district court granted qualified immunity to the other officer but denied it to Barach, who then appealed.

All three judges ruled against Barach on the Fourth Amendment immunity claim, either based on the merits or for lack of jurisdiction. In a 2-1 vote with Readler providing the deciding vote, however, the majority reversed the district court and ruled that Barach should get immunity on the First Amendment claim. In order to overcome qualified immunity, a person must show that clearly established constitutional rights were violated. The majority maintained that Sevys First Amendment claim was not clearly established because he could point to no caselaw establishing a right to recover on a First Amendment retaliation theory for excessive use of force in executing an arrest.

Judge Karen Nelson Moore strongly dissented. Sevys First Amendment right to protest and criticize government officials, Moore explained, is clearly established such that a reasonable officer would know that he could not use any force to retaliate against an individual for the exercise of that speech. Moore continued that [a]mple precedent supports the clarity of Sevys rights, and that a reasonable officer cannot claim that they would be surprised to learn that the use of physical force in retaliation for the exercise of those First Amendment rights was a constitutional violation. A previous decision addressing identical action, as the majority seemed to be demanding, was simply not necessary according to Moore, and the decision should have been affirmed.

As a result of Readlers deciding vote, however, Sevy will not be able to pursue his First Amendment retaliation claims. The case is yet another example of an appeals court decision made possible by a Trump nominee that reversed a lower court and dismissed a claim without trial against a law enforcement official for excessive use of force, in this case in retaliation for the exercise of a First Amendment right to protest.

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Trump Judge Casts Deciding Vote to Grant Qualified Immunity on First Amendment Retaliation Claim: Confirmed Judges, Confirmed Fears - People For the...

Did Judge Reeves Reach the Correct Result in Jamison v. McClendon? – Reason

As many readers know, District Judge Carlton Reeves recently published a blistering opinion about the injustice of qualified immunity law in Jamison v. McClendon. In the case, Judge Reeves argues that its factsinvolving a Black driver allegedly badgered, lied to, and searched by a white police officershine a light on why justice demands that qualified immunity must be overturned. The officer violated the Constitution, Judge Reeves concludes, but he cannot be held liable thanks to the "unsustainable" doctrine of qualified immunity that in "real life . . . operates like absolute immunity." Judge Reeves writes: "Just as the Supreme Court swept away the mistaken doctrine of separate but equal, so too should it eliminate the doctrine of qualified immunity." He concludes: "Let us waste no time in righting this wrong."

There's a lot going on in the Jamison case, and there are many aspects of the case that are very interesting and very much worth reading. As most readers know, there's an ongoing national conversation about whether qualified immunity should be abolished. I gather Jamison was designed to be (and already is) part of that public conversation. That's a hugely important debate that has often been discussed here at the blog, in particular with respect to Will Baude's important scholarship.

As a Fourth Amendment nerd, though, I wanted to focus on a doctrinal part of the case that has not been discussed: Was Judge Reeves correct that the officer was entitled to qualified immunity under current law?

I'm skeptical. It seems to me that that Judge Reeves likely was wrong, and that the officer was not entitled to qualified immunity. In particular, I worry that Judge Reeves may have misunderstood the relevant Fourth Amendment doctrine. That misunderstanding may have led Judge Reeves to treat the constitutional violation as a close call that required ruling in favor of the officer on qualified immunity grounds. It seems to me, though, that the officer's constitutional violation was obvious. It therefore violated clearly established law, and the officer should not be entitled to qualified immunity.

Let me be the first to add: Yes, I realize that, if it turns out I'm right, it doesn't undermine the case against qualified immunity. Most of Judge Reeves's opinion is addressed to a public debate about whether the Supreme Court should overturn its qualified immunity cases. My post is on a really small-scale issue. I'm only talking about how current law should apply to this one case. And to the extent it's relevant to some readers, I oppose qualified immunity, too, I would like to see it overturned. (At least as long as that change wouldn't lead to eliminating the exclusionary rule or create other systematic changes in Fourth Amendment law, which is entirely possible. But that's a complicated question for another day. )

Nonetheless, given that this opinion is already getting a lot of attention, I thought it might be interesting to explain why I think the result in this particular case was likely incorrect. It shouldn't change the national debate, but it does lead me to wonder if Judge Reeves picked the wrong case to demonstrate qualified immunity's problems. It's a small point, I concede, but perhaps of interest to the fellow Fourth Amendment nerds reading.

I'll start with the facts; turn to the Fourth Amendment analysis; next turn to the qualified immunity question; and conclude with my own take.

I. The Basic Facts

The plaintiff, Jamison, was stopped for a license plate tag violation. The defendant, Officer McClendon, pulled him over. Jamison is Black. McClendon is white. McClendon became suspicious that Jamison had something illegal in the car. However, McClendon had zero actual legal suspicion to think Jamison had anything illegal in the car. It was purely a hunchand one, we can assume, was based in part on Jamison's race.

Eventually, Jamison expressed consent to search the car . An extremely thorough search of the car followed. After almost two hours, absolutely zero evidence was found. McClendon then allowed Jamison to leave, although Jamison's car was damaged as a result of the search.

Jamison later sued McClendon. The Jamison opinion is focused on the first of Jamison's claims, brought under the Fourth Amendment. In particular, the new decision focuses on a specific part of the traffic stop. In their depositions, Jamison and McClendon gave starkly different recollections of what happened in this part of the stop. But because Jamison involves a motion for summary judgment filed by McClendon, we have to accept Jamison's version of the facts as true.

According to Jamison's deposition, McClendon repeatedly badgered him into consenting. McClendon pleaded with Jamison to consent five times before Jamison finally gave up and permitted the search. To pressure Jamison to consent, McClenson lied multiple times to him about a report that there were massive amounts of cocaine in the car.

And this next part is particularly important. According to Jamison, while McClendon was trying to get Jamison's consent, McClendon "placed his hand into the car, and patted the inside of the passenger door," and then "moved his arm further into the car . . while patting it with his hand."

For what it's worth, McClendon denies all of this happened. His story is just that he asked Jamison for consent and Jamison simply consented. But McClendon's conflicting version of events is not relevant at this stage because McClendon is the moving party. Where the facts conflict, we have to accept Jamison's version of events as true.

II. The Intrusion Into the Car

Now let's turn to the Fourth Amendment claim. Just to make this super-long post more manageable, I want to focus specifically on Jamison's claim that McClendon violated the Fourth Amendment by placing his hands inside the car and patting the inside of the passenger door.

Was that an unconstitutional search? Judge Reeves reasons that it was. First, it was obviously a search. McClendon's body physically intruded into the car. The next question is whether it was an unreasonable search.

And here Judge Reeves makes a critical assumption. Judge Reeves assumes that whether an officer's physical intrusion into a car is reasonable is governed by a Fifth Circuit case, United States v. Pierre, 958 F.2d 1304, 1309 (5th Cir. 1992), that involved a border check point.

In Pierre, a border patrol agent stuck his head inside a car at a border check point to speak with a passenger about his citizenship. Upon poking his head in the car, he smelled marijuana. The Fifth Circuit analyzed the constitutionality of the officer sticking his head into the car using a totality of the circumstances analysis that looked to the extent of the privacy right, how much the border agent needed to see the passenger, and officer safety concerns.

Pierre in turn relied on New York v. Class, 475 U.S. 106 (1986), a case in which an officer, during a traffic stop, reached into the passenger compartment of the car to move papers that had obscured the car's VIN. The Court subjected that search to a general reasonableness analysis, holding that the search "was sufficiently unintrusive to be constitutionally permissible in light of the lack of a reasonable expectation of privacy in the VIN and the fact that the officers observed respondent commit two traffic violations."

In Jamison, Judge Reeves applies the totality of the circumstances inquiry from Pierre and Class to McClendon's search into the car. Applying the Pierre factors, Judge Reeves concludes that Officer McClendon's search of the car was on balance unreasonable and therefore unconstitutional.

III. The Qualified Immunity Analysis

Judge Reeves then concludes that McClendon is nonetheless entitled to qualified immunity. Because the reasonableness of searching the car is based on a totality of the circumstances, he reasons, we need factually similar caselaw telling us how the totality of the circumstances test should apply before the violation is clear.Here's how Judge Reeves frames the question:

The question in this case is whether it was clearly established that an officer who has made five sequential requests for consent to search a car, lied, promised leniency, and placed his arm inside of a person's car during a traffic stop while awaiting background check results has violated the Fourth Amendment. It is not.

It was not clearly established, Judge Reeves reasons, because there was no factually similar caselaw that could establish how the totality of the circumstances test applied. In particular, neither Pierre nor Class clearly established that the search here was unreasonable:

While it has been clearly established since at least 1986 that an officer may be held liable for an unreasonable "intrusion into the interior of a car," this is merely a "general statement of the law." Clearly established law must be particularized to the facts of the case.

In Pierre, the officer could not see into the suspect's back seat and had to put his head inside to speak to the suspect. In Class, the suspect had been removed from his car and the officer put his hand inside to move papers so that he could see the car's VIN. Neither case considered a police officer putting his arm inside a car while trying to get the driver to consent to a search. Both cases also found the officer's conduct to be reasonable, thus not providing "fair and clear warning" of what constitutes an unreasonable intrusion into a car.

"Given the lack of precedent that places the Constitutional question beyond debate," Judge Reeves concludes, "Jamison's claim cannot proceed." Officer McClendon is entitled to qualified immunity.

IV. Why I Think Judge Reeves Likely Was Mistaken

That brings me, finally, to why I think Judge Reeves was likely wrong. By focusing on Pierre (the check point case), and Class (the VIN case), Judge Reeves concluded that the constitutionality of an officer reaching into a car must be analyzed in the Jamison case using a totality-of-the-circumstances test. That created lots of room for qualified immunity because vague standards can't provide the clear notice to the police of a bright-line rule. You need similar cases before the vague standard becomes clear.

But I think that framing was problematic. Pierre and Class were specific kinds of Fourth Amendment cases that fit into a specific doctrinal box. Pierre was a border check point case. Class was a case about finding a VIN to check for traffic violations. Both are examples of non-law-enforcement so-called "special needs"-type searches. In that doctrinal box of Fourth Amendment law, the doctrine relaxes the usual probable cause requirement and instead applies a more relaxed reasonableness test given the non-law-enforcement interests (such as border inspections or traffic safety) advanced by the search.

But Jamison is not a special needs case. McClendon does not claim that he physically intruded into the car and patted the inside of the door for reasons of officer safety. He doesn't claim he did that to inspect Jamison's car for safety violations. There was no border checkpoint. McClendon's claim, as I understand it, is just that it didn't happen at all. Once we accept Jamison's claim that it did happen, as I believe we must at this stage of the case, we have a clear search (McClendon placing his hands in the car and patting down the inside of the door) that has absolutely zero legal justification and that is not subject to a general reasonableness test.

Outside the special-needs context, the Fourth Amendment law of searching a car is a clearly established bright-line rule. Because it's a bright-line rule, the violation becomes obvious even if there is no factually identical or closely similar case.

Consider how the Fifth Circuit stated the rule, citing cases, in Emesowum v. Cruz, 756 Fed.Appx. 374 (5th Cir. 2018): "It has long been clearly established that police may not search a car for evidence absent probable cause or consent." There's considerable Fifth Circuit caselaw not just establishing that rule, but also saying the rule is clearly established. See, e.g., Mack v. City of Abilene, 461 F.3d 547 (5th Cir. 2006) ("Appellees' search of a car in an open parking lot without a search warrant, without probable cause, without a concern for officer safety, and without consent violates clearly established law. A reasonable officer would not think the Constitution allows a random search of a vehicle where none of the above justifications apply.").

To be sure, qualified immunity can still apply if there are fair questions about how that clearly-established rule applies. For example, imagine an officer searched a car but was just slightly short of probable cause. Qualified immunity will apply because how the clearly established doctrine applies is tricky: the officer might reasonably believe that there was probable cause even if a court later disagrees. But when it's clear that the clearly established rule was violated, then qualified immunity can't apply.

My sense, then, is that McClendon did violate clearly established law. Sticking his arm inside the car and patting down the inside of the door was obviously a search. It was governed by the rule, long recognized in the Fifth Circuit as clearly-established law, that the officer needed some justification for that searchprobable cause, or a warrant, or a safety concern, or a special needs concern. But there's no plausible argument I am aware of that any of those justifications could apply. To use the Fifth Circuit's language in Mack, this was "a random search of a vehicle where none of the above justifications apply."

V. Conclusion

For these reasons, I tend to think Judge Reeves was mistaken to confer qualified immunity on McClendon as to that particular part of the case.

As always, I have posted my best sense of things, but I may be wrong. If you think I'm mistaken, I'd appreciate it if you could explain why so I can consider the argument and post a correction if I've erred. And there are lots of other fascinating doctrinal parts of the opinion to talk about, as well as of course the underlying policy debate over whether the Supreme Court should overturn qualified immunity.

Go here to read the rest:

Did Judge Reeves Reach the Correct Result in Jamison v. McClendon? - Reason

The Police Lie. All the Time. Can Anything Stop Them? – Slate

Police patrol outside of a Manhattan courthouse on Jan. 9, 2015, in New York City.Spencer Platt/Getty Images

Christopher Parham was grocery shopping for his boss when Henry Daverin, a plainclothes NYPD officer, approached him. Daverin accused Parham of driving recklessly on an illegal scooter without a helmet; a few minutes later, Parham was writhing in pain on the sidewalk outside. What happened during those few minutes was a matter of dispute. The NYPD said that Parham, a Black 19-year-old, had violently resisted arrest. Daverin and his colleagues said that they did not use force against him even though Parham had gruesome Taser burns all across his back.

Then surveillance video of the episode emergedand proved that nearly every detail of the NYPDs account was false. Parham had immediately cooperated with Daverin; he did not resist arrest. Nonetheless, Daverin and his colleagues had assaulted Parham, tackling him to the ground, then Tasing him over and over again. After Parhams attorneys released the videoand his local representatives raised concernsthe district attorney dropped all charges. Daverin, who had been named in at least 10 other misconduct lawsuits, was never disciplined, either for brutalizing Parham or for lying about it. Two years later, he remains on the force.

The police reaction to George Floyds murder, as well as the resulting nationwide protests, introduced many Americans to the fact that law enforcement officers lie. After officer Derek Chauvin killed George Floyd, the Minneapolis Police Department issued a statement falsely claiming that Floyd physically resisted officers and excluding the fact that Chauvin knelt on Floyds neck for nearly nine minutes. When Buffalo police officers violently shoved a peaceful 75-year-old man, their department falsely asserted that the victim tripped and fell during a skirmish involving protesters.

This tendency to lie pervades all police work, not just high-profile violence, and it has the power to ruin lives. Law enforcement officers lie so frequentlyin affidavits, on post-incident paperwork, on the witness standthat officers have coined a word for it: testilying. Judges and juries generally trust police officers, especially in the absence of footage disproving their testimony. As courts reopen and convene juries, many of the same officers now confronting protesters in the street will get back on the stand.

Defense attorneys around the country believe the practice is ubiquitous; while that belief might seem self-serving, it is borne out by footage captured on smartphones and surveillance cameras. Yet those best positioned to crack down on testilying, police chiefs and prosecutors, have done little or nothing to stop it in most of the country. Prosecutors rely on officer testimony, true or not, to secure convictions, and merely acknowledging the problem would require the government to admit that there is almost never real punishment for police perjury.

Officers have a litany of incentives to lie, but there are two especially powerful motivators. First, most evidence obtained from an illegal search may not be used against the defendant at trial under the Fourth Amendments exclusionary rule; thus, officers routinely provide false justifications for searching or arresting a civilian. Second, when police break the law, they can (in theory) suffer real consequences, including suspension, dismissal, and civil lawsuits. In many notorious testilying cases, including Parhams, officers blame the victim for their own violent behavior in a bid to justify disproportionate use of force. And departments will reward officers whose arrests lead to convictions with promotions.

Two major cities are taking two different approaches to the problem. In New York City, prosecutors keep secret databases of unreliable police officers, though only two boroughs actually prohibit those officers from taking the stand. Without further reforms, however, this approach fails to address the underlying problem: Prosecutors are reluctant to accuse officers of lying in the first place, or to investigate an officers claims to learn if they align with reality. As a result, an officer who lies convincingly can evade the list indefinitely. In San Francisco, by contrast, District Attorney Chesa Boudin has sought to eradicate the incentives that lead police to lie in the first place. Both cities are witnessing an experiment play out in real time: What happens when the criminal justice system can no longer rely on its enforcers to tell the truth?

The New York Police Department provides a case study in how the criminal justice system rewards lying. One NYPD officer, David Griecocommonly known as Bulletheadhas been sued at least 32 times, costing the city $343,252, for civil rights violations, including excessive force and fabrication of evidence. Yet Grieco was promoted and prosecutors continued to call him to the stand long after a slew of his victims blew the whistle on his violent and lawless behavior. Judges continued to rely on his word to lock up defendants. And Griecos name did not appear on Brooklyn District Attorney Eric Gonzalezs long-secret list of officers with known credibility problems.

When you have a system of that kind of impunity, it snowballs. It teaches, encourages, and enforces badbehavior. Chesa Boudin, San Francisco district attorney

Grieco is a symptom of a much deeper problem. Widespread lying about Fourth Amendment violations is at least as old as the exclusionary rule itself. The Supreme Court applied this rule nationwide in 1961s Mapp v. Ohio, preventing state prosecutors from relying upon illegally obtained evidence to secure a conviction. Mapp spawned a surge in dropsy cases: Rather than admit to an illegal search, police claimed that defendants simply dropped drugs on the ground in front of them, since evidence found in plain view can be used at trial. Studies of criminal trials in New York City found that, after Mapp, police began lying about arrests to ensure that evidence would be admissible. In the early 1970s, the New York district attorney even told the New York Court of Appeals that, since Mapp, officers lied on the stand in a substantial number of dropsy cases. Two decades later, the Mollen Commissiona famous investigation of the NYPDfound that officers routinely engaged in perjury and falsification of records, the most common form of police corruption.

When NYPD officers are accused of illegal behavior, the department itself usually investigates, then conceals its findings and imposes, at worst, a slap on the wrist, like brief paid leave. Prosecutors could separately investigate, but they have little incentive to question an officers story: If they know an officer is lying, they cannot legally rely on his testimony; if they remain in the dark, they can still use his perjury to clinch a conviction. Moreover, prosecutors and police work together to put defendants behind bars, developing a team mentality that prevents prosecutors from scrutinizing officers testimony with appropriate skepticism. As long as officers lies cannot be proved false, prosecutors have little reason to question their account of events. As a New York assistant district attorney told the Mollen Commission: Taking money is considered dirty, but perjury for the sake of an arrest is accepted. Its become more casual.

Occasionally, the system will catch these lies. Yvette, an Egyptian American who lives in New York City, believes cross-examination of deceitful officers likely secured her acquittal. (Her name has been changed at her request to protect her from retaliation.) In 2017, Yvette witnessed three NYPD officers arresting the owner of a Brooklyn hookah lounge. As the police were detaining him, he handed Yvette his phone and asked her to call his mom. The officers promptly attacked her, she told me, severely damaging her knee. When she begged for an ambulance, the officers ignored her. Yvette eventually called one herself and learned at the hospital that the attack tore her ACL. When two officers visited her bedside, she asked if they were going to take her statement. They explained that they were there to arrest her for allegedly attacking the officers at the hookah lounge.

What these officers did not know was that Yvette had recently recovered from multiple surgeries on her knee, one of which resulted in a staph infection. It had been a mere two weeks since Yvette learned how to walk without a cane again. Now the NYPD was accusing her of a violent assault.

At a three-day bench trial, Yvettes public defender, Theodore Hastings, grilled the cops about their account. Two officers claimed that Yvette had attacked them at the exact same time, a physical impossibility. A third alleged that Yvette had run about 500 feet before lunging at the officers.

Yvette herself also testified. The judge heard my story and understood and felt my pain, she told me. She saw I really wasnt lying. The judge acquitted Yvette of all charges.

But hoping a judge will vindicate the truth is a luxury most wrongfully accused people cannot afford. Not everyone has a medical record or video footage to prove their account. If an individual goes to trial, they have a right to access the arresting officers record of misconduct because it could help prove their innocence. But the vast majority of criminal cases do not go to trial, and until recently, defense attorneys in New York City could not obtain officers disciplinary records due to a notorious shield called Section 50-A. The state repealed this law in June, and Mayor Bill de Blasio has since promised to publish an online database of police disciplinary records. With New York Citys prosecutors still fighting to conceal their do-not-call lists, it will now be left to defense attorneys, activists, and the public to track untrustworthy officers.

Across the country in San Francisco, newly elected District Attorney Chesa Boudin is taking a different approach. Boudin, a former public defender and staunch critic of mass incarceration, confronted testilying head-on. Police are allowed to lie and get away with it over and over and over again in matters big and small, he told me. I can think of dozens of examples where police were either able to get away withor faced no consequences if they were impeached and called out on their dishonesty. When you have a system of that kind of impunity, it snowballs. It teaches, encourages, and enforces bad behavior.

Boudin has minimal control over the SFPD itself. But he has created a robust do not call list of officers whom his office will not call to the stand as a witness. Officers who are caught testilying go on the list, as do those who commit other forms of misconduct. Boudin has also mandated careful assessment of charges like assaulting an officer and resisting arrest. When police use excessive force or brutalize someone, Boudin said, the most common outcome is that the police arrest the person and ask prosecutors to charge that person with resisting arrest or assaulting an officer. He now requires his staff to review video footage of the incident before filing those charges. Its not because we think officers are lying most of the time, he said. We just know that, until we watch video footage, we have no ability to distinguish between a testilying police report to cover up excessive force and legitimate criminal activity of assaulting an officer.

A third reform may have more direct practical consequences for victims of routine testilying designed to avoid the exclusionary rule. Too often, officers find a trivial reason to stop someone, or just make one up, then discover drugs or weapons in the ensuing search. The target of these pretextual stops is usually a person of color. We know driving while black is a reality for far too many people, Boudin said. If you have dark skin, youre more likely to get pulled over, more likely to get searched, and more likely to get arrested. Youre also more likely to have force used during your arrest than if youre white.

To disincentivize this behavior, Boudins office stopped charging any contraband case that grew out of a pretextual stop. As an example, he cited searches initiated after a stop for some minor traffic offense. Our vehicle code makes it possible for police to legally stop any car, Boudin said. We all know that most drivers do not come to complete stops at stop signs and most police dont enforce that law most of the time. If the police do pull over a driver for an incomplete stop, and the encounter results in an arrest for possession of drugs or guns, his office will not bring charges.

Ilona Solomon, a San Francisco public defender and former colleague of Boudins, admires his work but remains skeptical that he has the power to change the citys broken law enforcement apparatus. There is an entrenched culture in the DAs office that is very resistant to reform, Solomon told me. Chesa cant fix all the problems immediately, and some things he doesnt have control over.

Still, in his seven months on the job, Boudin has made headway in the face of sustained opposition from the SFPD. Solomon pointed to two recent cases involving the same officer, Robert Gilson. In 2017, a California judge found Gilson had changed his testimony regarding a search and arrest, deeming him not reliable. Yet prosecutors continued to call him to the stand, and judges continued to paper over his inconsistencies.

In one recent case, Gilson stopped a Samoan man who was holding a bag of marijuana, which is legal in California. After a lengthy search, the officer discovered bindles of cocaine. Gilsons reason for the stop shifted: At the time, he said he wanted to search bulges in the mans pocket; later, he testified that he sought to determine if the man was holding an illegal amount of marijuana. A judge accepted this reasoning and refused to suppress the cocaine. In another case, Gilson stopped a Black man, justifying the action because the man was jaywalking. After Gilson threatened to strip search the man, he let the officer search him, uncovering a small stash of cocaine. A judge refused to suppress the evidence, crediting Gilsons testimony that he believed the man was concealing drugs due to his worried demeanor during the search.

Solomon represented both men. She told Boudin that, in both cases, Gilson had engaged in blatant racial profiling. Boudin agreed and dismissed all charges. Still, Boudins office could not say whether it had placed Gilson on its do not call list, which is not public. The SFPD confirmed Gilson was assigned to field operations but said they could not comment further on personnel matters.

The system cannot exist without it. It would grind to ahalt. Bennett Capers, Fordham Law professor

Kate Levine, a Cardozo Law professor and former public defender who studies police accountability, told me shes skeptical that patchwork solutions like a do not call list can ever stamp out testilying. Maryanne Kaishian, a public defender in Brooklyn, agreed, noting that its easy for clean officers to conceal the involvement of a known dirty cop by keeping his name off all paperwork. Nor do these lists remove officers strong incentive to lie: Police are more likely to get promoted if they effect more arrests that result in successful prosecutions. Promotions come with more prestige and a higher salary. Prosecutors still have an incentive not to question officers blue lies.

To end testilying, Levine said, I would entirely change incentive structures. Officers would be rewarded for reporting on their colleagues lies and scrutinized when their stories do not line up. They would no longer be able to coordinate their stories before testifying, a common procedure that lets them iron out potential inconsistencies. Nor could they watch bodycam footage before providing their version of events, another perk thats not provided to civilians. Prosecutors would be rewarded for rooting out unconstitutional behavior. Officers who lie, and prosecutors who tolerate them, would be terminated immediately. In short, the system would encourage police officers and prosecutors to focus less on winning cases and more on following the rules, even when a constitutional violation stands in the way of a conviction.

What would happen if a city really tried to eliminate testilying? I posed this question to Bennett Capers, a former federal prosecutor and Fordham Law professor who studies police lies. In all honesty, I think my initial reaction would be that the system cannot exist without it, he told me. It would grind to a halt. Capers said that run of the mill policing would have to change. We are doing about 13 million misdemeanor arrests a year. With a lot of those small crimes, theres fudging. Nobodys paying attention.

Police, in other words, would have to stop arresting so many people for minor crimes. Once cities stopped deploying officers to harass misdemeanants, they could shrink their police force, reducing the number of encounters between cops and civilians. Agencies might then dedicate those resources to investigative and detective work in order to build solid cases against suspects, thereby creating a higher bar for which cases to pursue. Prosecutors would be forced to make a more careful calculation about the risk of bringing a case to trial and drop cases that rested on a search of dubious legality. In the short term, the legitimacy of the entire system might take a hitthough only because its participants confronted the illegitimate basis of so many convictions. Over time, however, the system might regain the legitimacy it lost with a preference for punishment over justice.

We all wanted to see justice happen, Capers recalled from his time as a prosecutor. And law enforcement often thinks that, in the interest of justice, the rules get in the way. Im not aware of ever saying, Does this story sound quite right? We benefited from small lies.

For more of Slates news coverage, subscribe to What Next on Apple Podcasts or listen below.

Readers like you make our work possible. Help us continue to provide the reporting, commentary, and criticism you wont find anywhere else.

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The Police Lie. All the Time. Can Anything Stop Them? - Slate

The Court of Justice of the European Union in Schrems II: The impact of GDPR on data flows and national security – Brookings Institution

The recent Court of Justice of the European Union (CJEU) decision in Schrems II finding that the EU-U.S. Privacy Shield is invalid and its additional findings with respect to standard contractual clauses, closes off key mechanisms for transferring persona data from the EU to the U.S., with important impacts on trade and the development of technologies such as cloud computing and artificial intelligence (AI).

This is the second time the CJEU has found that the General Data Protection Regulation (GDPR) mechanisms for transferring personal data from the EU to the U.S. is invalid.1 The earlier CJEU decision in Schrems I found that the European Commission adequacy decisions with respect to the EU-U.S. Safe Harbor was invalid.2 An adequacy decision is a finding by the European Commission that a third countries privacy laws are essentially equivalent to the rights and obligations under the GDPR.3 The importance of data flows for transatlantic economic relations necessitates that the U.S. and EU engage in a third attempt to develop a mechanism that can enable data flows and pass muster with the CJEU. However, whether this remains a fruitful path forward is uncertain in light of what we now know about the approach of the CJEU to adequacy under GDPR. In particular, the focus on how government agencies access data for national security purposes is becoming the key barrier to data flows between the EU and the US. More broadly, the CJEU decision makes clear that all the key GDPR mechanisms for transferring personal data from the EU to third countries are unstable, namely adequacy decisions, standard contractual clauses (SCCs) and binding corporate rules (BCRs).4 In this respect, the CJEU decision will have ramifications beyond its immediate impact on data flows between the EU and the U.S. The following addresses the explicit CJEU findings on adequacy and SCC as well as the broader issue of how to balance national security and privacy. The paper concludes with observations about the potential impact of the decisions for the U.S. and beyond and suggests some ways forward.

In this column I focus on two key issues at play in this most recent Schrems case: (1) the disconnect between application of EU law to national security agencies in third countries compared with domestic security agencies; and (2) and the severe limits the decision places on existing GDPR mechanisms for transferring personal data from the EU to third countries. I also offer observations on what this will means for data flows, and in particular the implications for small and medium-sized enterprises (SMEs).

A core issue in both Schrems cases was how national security agencies operate to preserve security and also ensure sufficient levels of privacy, and whether this is consistent with GDPR. The attempt by GDPR to extend EU privacy rights and obligations to countries and entities receiving EU personal data reflects a broad dynamic, which is that as the global free flow of data increases the scope for national security agencies to access the personal data of everyone, national privacy standards need to be globalized as well to be effective. Yet, governments often provide different levels of privacy protection and redress depending on whether a person is a citizen and where they are located. Under the Fourth Amendment to the Constitution, the U.S. provides different levels of legal redress to people in the U.S. compared to those outside the U.S., including access to U.S. courts. GDPR in effect seeks to extend the full suite of rights and obligations available in the EU under GDPR, to any country receiving EU personal data.

Underlying the CJEU decision in Schrems I and Schrems II that invalidated the EU-U.S. Safe Harbor agreement and in this most recent case, has invalidated the EU-U.S. Privacy Shield, is a disconnect between the GDPRs international impacts, and its domestic application to member state national security agencies. In both Schrems cases, the issue was U.S. government access to personal data for national security purposes and the rights of EU citizens in the U.S. to judicial review and redress. In both cases the CJEU found that the U.S. fell short in that the U.S. was not according EU personal data the protection and rights of redress available in the EU. When it comes to access to data for national security purposes, under EU law, including GDPR, any limitation on EU rights to privacy must be necessary and proportionate.5At the same time, national security is the sole responsibility of member states.6In effect, each EU state is given the discretion to balance national security needs with data privacy rights. Yet, the EU is not according a similar discretion to third countries. In fact, GDPR uses the threat of withdrawing access to EU personal data as a tool to seek reform of other countrys security agencies to reflect the CJEU notion of proportionality, while exempting member state governments from similar expectations or threats. This effectively sets up the CJEU as the arbiter of whether other countries approaches to accessing data for national security purposes are proportional.7

This disconnect between GDPRs international and domestic application when it comes to national security also risks EU demands becoming increasingly detached from the reality and practices of national security agencies. On the one hand, the outcome in the U.S. between security and privacy reflects U.S. constitutional constrains, national security needs and privacy concerns. In the EU, it does not appear that any such balancing took place, leaving the EU approach to privacy untouched in important ways by the equities and needs of member state national security agencies. The result is a set of demands on third country national security agencies that the EU does not, and could not, make of its own national security agencies. This dissonance between what the EU is expecting of other governments and what it is able to ask of its member states is compounded by various findings that EU data may in fact be safer and accorded better due process when in the U.S. than in the EU.8

The issue with how the U.S. government accesses data for national security is what lead the CJEU in both Schrems cases to invalidate the European Commissions adequacy finding with respect to the U.S. This Schrems decision also makes clear that not only adequacy decisions but also SCC and BCRs are much more limited than originally thought. Another consequence of the Schrems decision is to underscore the fragility of these GDPR data transfer mechanism. As the Irish High Court and CJEU overturns a second adequacy finding by the Commission, the CJEU has made clear that SCCs (and BCRs) may require data flows to be terminated at any point should the processor in the third country be unable to comply with GDPR, either due to requests from a third government for access to data or due to changes in legislation. These outcomes will inevitably increase risk for businesses that rely on cross-border transfers of personal data. This will affect not only the large tech companies but also those in manufacturing and services that are increasingly data driven.

To understand the implications of this decision for these GDPR transfer mechanisms, it is helpful to reflect on the institutional incentives and priorities driving the different finding by the European Commission on the one hand, and EU domestic courts and the CJEU on the other. The European Commission in making an adequacy decision weighs a range of goals that are in tension with each other. While focused on assessing whether U.S. laws and practice are adequate under GDPR, the Commission also takes into account the impact of stopping flows of personal data on international trade, investment and diplomatic relations. In contrast, the process for challenging an adequacy finding rests upon findings by a National Data Commissioner, findings by domestic courts, and finally the CJEU. None of these bodies is expected to consider the range of issues at play for the Commission. Instead, the question is more narrowly whether the third country provides a level of privacy protection consistency with the Charter of Fundamental Rights of the European Union. It is these competing institutional incentives and focus that helps explain the different conclusions as to whether the U.S. confers adequacy.

These internal institutional tensions raise several issues for the EU. First is the validity of other adequacy findings. For instance, what does the Commission really know as to how national security agencies in Israel, Japan or Argentina collect, use or share EU personal data. Second is the stability of any adequacy findings. The narrow focus of the CJEU on consistency with the EU Charter and demand for essential equivalence leads very little room for different approaches to privacy in other countries, reducing scope for adequacy findings and to using any transfer mechanism under GDPR. When it comes to determining whether the actions of other governments in collecting data for national security purposes are consistent with GDPR and the EU Charter, the vague standard of proportionality has led the Commission and CJEU to different conclusions regarding the adequacy of U.S. limits and safeguards.9Taken together, this suggests that all adequacy decisions by the Commission must be treated as potentially suspect and open to being declared invalid by the CJEU.

Another impact of this Schrems case is to limit the availability of SCC (and BCRs).10The issue with SCC (and BCRs) is that it is a contractual obligation that does not bind other governments. Therefore, where practices by national security agencies for accessing personal data are inconsistent with GDPR, SCCs do not obviously remedy this problem. The CJEU nevertheless held that SCCs remain valid where the controller adduces additional safeguards that rectify these gaps.11It is not clear what these safeguards are or how they could work in practice. Another wrinkle here is the finding by CJEU of the accountability for processors in the EU to ensure that the legislation in the third country allows the data processor to comply with the SCC, before transferring personal data.12It is not clear whether this merely requires comparing third party laws with GDPR or also the practice of national security agencies, which is harder to assess but arguably what should matter the most.

The result is that after Schrems II, all GDPR mechanisms for transferring personal data to third countries are much more limited in scope, durability and stability.

The first thing this Schrems case makes clear is the extent of the tension created by GDPR between balancing access to and use of data, and the privacy rights and obligations in GDPR (Mattoo and Joshua Meltzer 2018). The EU view is that they can have strong privacy and a strong digital economy, including cross-border data flows, and this is likely correct at a certain level of abstraction. However, the details of GDPR now make clear how GDPR sets up real tensions and trade-offs in terms of getting what the EU wants under GDPR in terms of privacy, and access to and use of data consistent with a robust engagement in the digital economy and digital trade (Jia et al. 2019).

In practical terms, Schrems II calls into question the availability of adequacy findings, SCCs (and BCRs) as reliable and stable mechanisms for cross-border data transfers. If the U.S. is still not adequate, then it must be the case that other countries, including China will never be adequate and not only that, but it is hard to see how any Chinese company collecting EU personal data can transfer it back to China consistently with GDPR. Large companies may have to localize data storage and process in the EU.

Yet for small companies, the impacts are most pronounced. For many, setting up in the EU is not an option. There are SCCs, but depending on the government, additional safeguards may be needed for SCCs to be viable. Again, it is unclear what such safeguards may be or whether SMEs could implement them even if they exist. The CJEU decision also establishes an obligation on processors in third country to notify controllers in the EU of changes in legislation that prevent compliance with a SCC. This is an additional monitoring burden on SMEs in third countries and failure here can expose these companies to liability for harm caused to EU data subjects. The difficulties with SCCs also create additional costs and disincentives for EU companies to develop digital supply chains with SMEs in third countries.

As discussed, another issue at play is the balance between how security agencies use data for security, and also protect personal privacy in a globalized world. It is likely that GDPR is too unilateral and too EU-specific, and that national security is too important, for GDPR to lead to the types of changes the EU needs for an adequacy finding to work. The EU bet with GDPR has been that the economic importance to U.S. companies of allowing cross-border data flows of EU personal data will be enough to force the U.S. to reform how its national security agencies collect and use data. This has been a somewhat reasonable bet so far in that the U.S. has shown a willingness to negotiate and engage in some reform. But even here, U.S. reforms in order to obtain an adequacy decision have been limited and as we now know, not enough. It is also the case that the trend is not in the EUs favor. For while the economic importance of data grows, so do the security issues related to data flows. In fact, the trend is arguably towards security becoming a more important organizing principle for how digital economies develop and where data flows. Given this, the risk is that GDPR fails to lead to enough U.S. reform that can justify another adequacy finding, forcing the EU into self-imposed data isolation. In such an outcome, large U.S. and other companies will still service the EU market but the EU will become increasingly closed, reducing access to large global data pools and the opportunities for insights and the machine learning that underpin AI developments that the EU seeks to develop (European Commission 2020).

Given these risks and developments, what is needed is an international agreement on how to balance national security and access to data, with other key goals such as privacy. Such an outcome could be deemed an international agreement under GDPR article 45(2(c) that would support an adequacy finding and by extension, short up access to SCC and BCRs.

Authors note: The author was an expert witness for Facebook in the latest proceedings before the Irish High Court.

European Commission (2020), White Paper on Artificial Intelligence A European Approach to excellence and trust, COM(2020) 65 final.

Jia, J, G Jin and L Wagman (2019), The short-run effects of GDPR on technology venture investment, VoxEU.org, 7 January.

Mattoo, A and J P Meltzer (2018), Resolving the conflict between privacy and digital trade, VoxEU.org, 23 May.

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The Court of Justice of the European Union in Schrems II: The impact of GDPR on data flows and national security - Brookings Institution

Calls for police reform and racial justice spur a flurry of resolutions before the ABA House – ABA Journal

Annual Meeting

By Matt Reynolds

August 4, 2020, 4:53 pm CDT

Protests like this one, the Black Clergy United March for Justice on June 13 in Tampa, Florida, prompted a number of resolutions before the House of Delegates at the ABA Annual Meeting. Photo from Shutterstock.com.

The ABA House of Delegates responded forcefully to calls for police reform at this year's annual meeting, passing resolutions calling for a curtailing of the qualified immunity doctrine blocking civil lawsuits and for heightened oversight of law enforcement through a national use-of-force database.

The House adopted Resolution 301A on qualified immunity with the backing of a vast majority of delegates at Tuesdays session. The legal doctrine has become a focal point for backers of police reform who see it as an obstacle to accountability for police misconduct.

In June, the U.S. Supreme Court declined to take on eight cases related to qualified immunity. Critics would like the court to review the doctrine, which they say shields officers accused of using excessive force or unlawful searches.

Absent a ruling from the Supreme Court, a report accompanying the resolution says legislatures should now review the doctrine to decide whether to curtail it.

Paul Wolfson of the ABA Section of Civil Rights and Social Justice argued that without ending or limiting the doctrine, people who are victims of police misconduct would have no avenue for relief.

In recent months, weve all been vividly reminded of the need to deter and remedy unconstitutional conduct by law enforcement officers, Wolfson said. Our fundamental constitutional rights will be meaningless unless those who are injured have a forceful remedy.

On Monday the House adopted Resolution 116A, which encourages the collection of records and data on use of deadly force, another flashpoint in the national debate over police brutality and racial injustice.

The passing of the resolution comes after both Republicans and Democrats have called for greater oversight of police officers through federal data collection.

Robert Harris, director of the Los Angeles Police Protective Leaguethe union representing the Los Angeles Police Departmentsays a national registry is a step in the right direction but said that the ABAs resolution on qualified immunity misses the mark.

If the goal is to hold officers accountable, theres a better way to do that, Harris said in an interview.

Harris said that people filing lawsuits over police misconduct may still win damages, despite the legal doctrine. His union supports stronger use of force policies and officer training, as well as technology that flags and weeds out problem officers, he said.

On Tuesday, the House also passed and adopted Resolution 10I encouraging the creation of legislation outlawing lynching.

A federal law to criminalize lynching, the Emmett Till Anti-Lynching Act, has stalled in Congress, California Lawyers Association president Emilio Varanini said. Attorney Laura Farber said that it was time for the ABA to take a stand as she urged delegates to pass the resolution.

Im also disheartened, sad and frankly a little disgusted to know that here in 2020 we have not yet, and Congress has not yet passed legislation making lynching a hate crimea federal crime, Farber said.

Resolution 301C, also adopted Tuesday, asks the government to desist from using force to suppress lawful First Amendment activity. That comes after President Donald Trump sent federal officers to Portland, Oregon, who fired tear gas and stun grenades at demonstrators and hauled some protesters into unmarked vehicles.

Oregon Attorney General Ellen Rosenblum spoke in favor of the resolution. She said that in some cases, protesters had been grabbed off the street as they were leaving demonstrations. Federal officials had assaulted peaceful protesters, including the Wall of Moms activist group, she said.

The federal governments actions in Portland served as a direct assault on the right to organize, to assemble, to march and to protest, Rosenblum said. I sincerely hope never again to see these infringements upon peoples First and Fourth amendment rights in my city or any other.

On Tuesday, the House also passed Resolution 301B to make Juneteenth a paid legal holiday. Black Americans have long celebrated June 19 to the mark the day that slaves in Galveston, Texas, learned they had been freed. Support for a national federal holiday has gained steam since the death of George Floyd while in police custody in May.

Delegate Deborah Enix-Ross said she could think of no better way for the ABA to show support for a more just society and an understanding of our nations history.

I know there are some who may have concerns about the economic impact of another federal holiday. But I would hope that we will never again equate the evils of slavery with economics. There is simply no price on doing what is right, Enix-Ross said.

ABA president-elect Reginald Turner voiced his support for the resolution and said slavery was the nations original sin.

Juneteenth is an appropriate commemoration of the end of slavery in the United States. It should be a national holiday, to be celebrated by all, Turner said.

Because of the coronavirus pandemic, the ABAs annual meeting was held online for the first time in its history. Against the backdrop of recent protests, the meeting became a forum for how the legal community can address police brutality and racial injustice.

In her final speech before she handed the gavel to incoming ABA President Patricia Lee Refo, Judy Perry Martinez urged lawyers to root out racism.

Let none of us say the job is too big or the problems of racism run too deep, Martinez said. This is our torch to carry. Lawyers have a special responsibility to fight injustice, especially injustice caused by laws and practices that are racist and unjust in word or effect.

At a the ABA forum Justice and PolicingA Path Forward, on Friday, Martinez asked Sen. Tim Scott, R-S.C., about his thoughts on police defunding and qualified immunity.

ABA President Judy Perry Martinez interviews Sen. Tim Scott of South Carolina.

The senator said he was no stranger to discrimination. He said that in the last 20 years, he has been stopped by state or local police officers 18 times, including seven times while he was in office. Scott said that underlines the importance of voting in local elections.

Those are the folks directly in positions of power to determine the type of local law enforcement you have, Scott said. When we dont vote in those elections, we are actually taking a step back from the one place where police reform comes to life immediately.

Scott, the GOPs only African American senator, led a Republican bill on police reform that would require departments to use body cameras and limit the use of chokeholds. However, the bill would not loosen the qualified immunity doctrine. Scott bristled against the notion of defunding police departments. He said he instead supports a strategy of providing police units with mental health experts to help prevent incidents from escalating.

The concept of defunding the police is the scariest thought Ive ever heard as it relates to communities of color and the vulnerable communities, Scott told Martinez.

The report that accompanies Resolution 301A says qualified immunity makes it virtually impossible for people who have suffered violence at the polices hands to obtain redress through civil court actions. The law also means that individual officers are rarely held to account for their actions, the report adds.

Without an effective civil remedy, serious abuses of governmental power will persist unchecked, many motivated by racial discrimination. That is not acceptable in the United States in the 21st century, the report states.

Several states have moved forward on overhauling the definition of qualified immunity. Colorado passed a law in June that would make it easier for people injured by the police to override a qualified immunity defense and claim up to $25,000 in damages, Forbes reports. Massachusetts legislators are proposing police reforms that would curtail qualified immunity.

Resolution 116A encourages governments to collect accurate records and data on deadly force incidents. The resolution encourages the creation of laws that would mandate an independent investigation if someone is killed during an encounter with law enforcement or in custody.

The resolution also calls for a national database that would record disciplinary actions against officers and complaints of excessive force. That could prevent officers with a history of using excessive force from moving from one jurisdiction to another.

The ABA Section of Civil Rights and Social Justice and the ABA Coalition on Racial and Ethnic Justice co-sponsored the resolution. Speaking in support, former ABA President Robert Grey Jr. said demands for racial equality had grown louder because of recent events, including the death of George Floyd.

It is now an American movement and one that demands accountability and responsibility, Grey said.

President Bill Clintons sweeping crime bill in 1994 mandated the federal collection of use-of-force data from police departments. But reporting has not been enforced and is inconsistent.

The report that accompanied Resolution 116A estimates that in 2019, police killed more than 1,000 people but says those numbers are based on efforts by the Washington Post and other outlets to capture data. A central database is vital to ensure up-to-date and accurate information, the report says.

The House on Monday also adopted Resolution 106A on restorative justice. The resolution urges prosecutors, criminal defense attorneys and others in the criminal justice system to consider an approach that prescribes meetings between offenders and victims that are facilitated by trained specialists.

Follow along with our coverage of the 2020 ABA Annual Meeting.

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Calls for police reform and racial justice spur a flurry of resolutions before the ABA House - ABA Journal

Reporters Committee amicus brief in Alasaad v. Wolf – Reporters Committee for Freedom of the Press

Amicus brief filed by the Reporters Committee for Freedom of the Press, the Knight First Amendment Institute at Columbia University, and 12 media organizations

Court: U.S. Court of Appeals for the First Circuit

Date Filed: August 7, 2020

Background: Representing several international travelers, including journalists, the American Civil Liberties Union and the Electronic Frontier Foundation sued the heads of the U.S. Department of Homeland Security, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement, arguing that suspicionless searches of electronic devices at the U.S. border violated Fourth Amendment protections.

The district court agreed with the plaintiffs, but held that border agents needed to meet only the reasonable suspicion standard, rather than the more stringent probable cause standard, before searching a travelers devices. The government and the plaintiffs both appealed to the U.S. Court of Appeals for the First Circuit.

Our Position: Border officials should be required to seek warrants based on the higher probable cause standard before they can search electronic devices.

Quote: Electronic device searches are highly invasive, especially for journalists. The contents of electronic devices can reveal the stories a journalist is developing, with whom she is communicating, and her specific travel plans. Disclosure of such information can expose sensitive newsgathering methods and deter potential sources from speaking to members of the media.

Related: This is the second friend-of-the-court brief that the Reporters Committee and the Knight First Amendment Institute have filed on behalf of the plaintiffs in this case. At the trial court level, when DHS, CBP, and ICE asked the district court to dismiss the case, the Reporters Committee and the Knight First Amendment Institute, represented pro bono by attorneys from Jenner & Block and Morgan, Lewis & Bockius LLP, filed a brief urging the court to deny the governments motion. The court allowed the case to continue.

According to a Reporters Committee analysis of U.S. Press Freedom Tracker data, journalists reported being subjected to secondary screenings, questionings, or searches by U.S. Customs and Border Protection 16 times in 2019, compared to 11 in 2018 and 16 in 2017. Seventy-five percent of the stops in 2019 occurred at the U.S.-Mexico border.

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Reporters Committee amicus brief in Alasaad v. Wolf - Reporters Committee for Freedom of the Press

Who will police Springfields cops? – The Boston Globe

Under the Trump administration, the US Department of Justice has largely abandoned its oversight and accountability mandate over local police departments. In fact, since Trump took office more than three years ago, the DOJ has launched only one investigation into unconstitutional policing and systemic misconduct in local law enforcement departments, compared with almost two dozen during the Obama administration. The target? The police force in Springfield, the third-largest city in Massachusetts.

Its easy to see why after reading the findings of the DOJ probe, revealed last month and detailed in a recent Globe story looking at the history of misconduct at the Springfield Police Department. Its an appalling collection of blatant police abuse. The DOJ, in its 27-months-long investigation, found that officers in Springfields narcotics unit routinely escalated encounters with civilians when there was no need and used excessive force, including punching people in the face and using head strikes, in violation of the Fourth Amendment. Whats more, officers who engaged in these practices faced little to no consequences. One narcotics detective told a 15-year-old suspect being questioned: I could crush your [expletive] skull and [expletive] get away with it, as he was captured on camera.

The DOJ concluded it was a pattern directly attributable to systemic deficiencies in policies, which fail to require detailed and consistent use-of-force reporting, and accountability systems that do not provide meaningful reviews of uses of force.

And yet, contrary to what is common practice, the DOJ did not force Springfield Police to sign a consent decree, or a court-mandated agreement, to ensure reform. Instead, the report concluded with four recommendations for the department: to improve procedures for reporting use-of-force incidents; to implement new use-of-force training; to revise policies for internal investigations; and to implement more accountability mechanisms. These remedies, while urgent steps in the right direction, are mere suggestions without mandated enforcement from the feds. Had the DOJ negotiated and entered into a consent decree with the Springfield police, similar to one of the 14 consent decrees signed by the Obama administration, the reform plan would have been supervised and enforced by a federal judge. Instead, any policing reform is left to Springfield police leadership.

The pattern of brazen misconduct and brutality in Springfield is shocking. There is the 17-year-old punched by an officer as he rode a motorbike past members of the narcotics unit as they made unrelated arrests, the Globe story notes. And the slight middle-aged man punched in the face during a drug arrest despite not acting aggressively himself.

Naturally, civilians have sued the department repeatedly. Between 2006 and 2019, the city has paid more than $5.25 million settling police misconduct suits. Its an outsized cost to Springfield taxpayers.

For her part, Springfield police commissioner Cheryl Clapprood has pledged to collaborate with DOJ and follow the federal recommendations, some of which she has already started to implement. She also said that upon reading the DOJ report, she immediately ordered plainclothes narcotics detectives to wear body cameras.

But a consent decree may still be possible and may even be in Clapproods best interest. According to one review of DOJs civil rights cases, many police chiefs who have been through the process of a DOJ investigation said that the end result was a better police department with improved policies on critical issues such as use of force, better training of officers, and more advanced information systems that help police executives to know what is going on in the department and manage their employees. They added that, in some cases, consent decrees have been instrumental in giving chiefs the authority and the resources to act.

Indeed, the investigation is exhibit A in why the feds need to get back into the business of consent decrees in Springfield and across the country. This is an era when DOJ has already retreated from its congressionally mandated duty of policing local police misconduct, a dereliction that has come under bigger scrutiny recently after George Floyds death at the hands of four officers from the Minneapolis Police Department, an agency that the DOJ should be probing to find out whether cops there systematically violated civil rights. Reforms may come to the Springfield police, but without an enforceable agreement, theres a real risk that progress will stall. Given the severity of the findings, Springfield residents deserve a rock-solid assurance for change, and thats only possible if the federal government polices the police with tough recommendations that have consequences if theyre not met.

Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.

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Who will police Springfields cops? - The Boston Globe

Meet the Judge Who Thinks a Black Man Walking Around Is a Crime – Rewire.News

Each month, Rewire.News is examining the Trump judges behind some of the worst decisions in recent weeks. Read our previous columns here.

Judge Allison Jones Rushing, who sits on the U.S. Court of Appeals for the Fourth Circuit, is one of President Trumps youngest judge picks, having ascended to the federal appellate bench at only 37 years old.

To be fair, unlike some of Trumps other picks, Rushing did have some experience in the law before getting the nod for the bench. She spent several years at a fancy Washington, D.C., law firm, but her real appeal was likely that she clerked for then-Judge Neil Gorsuch when he was on the U.S. Court of Appeals for the Tenth Circuit and for Justice Clarence Thomas on the U.S. Supreme Court. She also spent time at the Alliance Defending Freedom (ADF), a group well known for its anti-LGBTQ stance.

But in her recent ruling in U.S. v. Mitchell, Rushings animus was aimed at Black people.

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The case started with a bar fight in Huntington, West Virginia. When police responded, a bystander told them a Black man wearing red pants and a black shirt had a gun and had walked away from the scene. Based on that minimal information, one of the officers stopped and frisked James Mitchell, a Black man, who was walking a block away. The officer found a firearm and arrested Mitchell.

Mitchell appealed, arguing that the police violated his Fourth Amendment right not to be subjected to unreasonable search and seizure.

The facts of the case werent great for the police. Officer BenjaminHoward, who took the report from the bystander, was not the same officer who stopped Mitchell. At Mitchells trial more than four years after the incident, Howard testified he had no doubt he was on the scene that night as he routinely responded to calls from that bar. However, he also could not specifically remember the night in question and could no longer remember who gave him the description of a Black man in red pants and a black shirt. There was no warrant. There was no evidence the tip was credible, particularly since the officer couldnt remember who gave him the tip. There was no particularized suspicion, which is a requirement before the police stop and frisk someone: They cant just stop a person because they feel like it or they have a vague sense the person did something wrong.

When police are allowed to stop whomever they want, you get what happened in New York City from 2002 to 2011, where police performed 5 million stop-and-frisks, overwhelmingly of Black and Latinx people. Nearly 9 out of 10 of those stopped turned out to be totally innocent.

Additionally, the Supreme Court decided 20 years ago that you cant just stop someone because they happen to be in an area of expected criminal activitywhich is really all the police had to go on in this instance.

Rushing threw all that law out the window.

She, along with Judge Marvin Quattlebaum, another Trump appointee, held that the officers actions were fine, in part because they were commonsense judgments and inferences about human behavior. Thats a backhanded way of saying its just fine if police officers are suspicious of Black men who happen to be nearby when a fight breaks out.

And the fact Mitchell was carrying a gun? West Virginia is an open carry state that doesnt require alicense to carry a firearm as long as youre over 18. It was only after the police took Mitchell into custody for the crime of walking near a fight and being Black that they learned he wasnt eligible to carry a firearm because he had previous felony convictions.

Plus, the tipster hadnt said that the Black man in red pants and a black shirt was involved in the assault that occurred at the bar brawl. Police couldnt recall who tipped them off about the Black man walking away from the fight. The tipoff itselfthat Mitchell had a gunwas about a thing that isnt illegal in West Virginia. But for Rushing, it was entirely reasonable that Mitchell was stopped based on a 911 call about a fight and a tip that a Black man was walking away and had a gun.

Judge James Wynn, an Obama appointee, dissented, in an opinion that can only be called blistering. His introduction to the dissent says it all: So, at the end of the day, this is what the majority opinion holds: police officers may lawfully stop anyone in the vicinity of reported unlawful activity whom a bystander says has a gun.

In the end, Mitchell was, as Wynn put it, simply a man with a gun near a disturbance, and thats not nearly enough to take away someones Fourth Amendment rights.

Rushings decision gives police a racist road map: Rely on a sketchy tip, violate someones rights and search them, and then hope that after theyre arrested, you can find a justification for your actions. Protests over the killing of George Floyd have been met with wave after wave of police brutality, and the last thing we need now is an easy way for police to ignore the Fourth Amendment.

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Meet the Judge Who Thinks a Black Man Walking Around Is a Crime - Rewire.News

‘Defund the police’ is not a real reform strategy – The Maine Wire

The last few months have been tense, marked by social distancing and physical isolation amid the outbreak of a new virus. In-person communication and deciphering nonverbal cues is made more difficult by widespread use of facial coverings and plastic barriers. The American public has watched as the chasm between them and their government widens, mostly from ever-lengthening, amorphous states of emergency.

Not to discount the persistent issue of violent crime in our cities, among the population, the many accounts of gratuitous violence at the hands of public officials has brought the most hardened supporters of law-and-order to the table to discuss how American society can reform its police and restore accountability.

But, how can this be solved? Police departments are run at the local level. Budgets are allocated through the little-understood mechanisms of city, town, and county government. To many Americans, it can seem like a long way to reform.

Not every police department needs reform. The vast majority of law enforcement officials (LEOs) enter the force to protect and serve their communities, and maintain that commitment throughout their service. Policing would be a dangerous job under the most limited and accountable form of government.

Today, officers are tasked with enforcing numerous laws and rules that do not enhance public safety. This has led to a greater divide between police and the people they serve in many areas of the U.S. and especially our metropolitan areas. To help to remedy this situation, state and local policymakers should look to a myriad of reforms to bridge this divide.

Increase Accountability in Police Union Contracts

A point that cannot be overlooked in this larger debate is the role that public-sector labor unions play in obfuscating their members from full accountability. This facet is on display no more than within police union contracts. By reforming these contracts, policymakers can balance the scales between the powerful, politically-connected bargaining units and city leaders, who delegate managing their forces to their police chiefs.

At a basic level, public officials must be held to the same standards as the people they serve, whether they be police officers, bureaucrats or politicians. When individual police officers receive numerous complaints from the public, union contracts should not get in the way of proper discipline. Yet, quite often, they do.

Stephen Rushin, a Loyola University law Professor, in an interview with CBS News, gave an example from San Antonio, Texas, where all officers accused of a civil service rule violation are required to receive access to all sorts of evidence against them, such as video, GPS coordinates, witness statements, and affidavits before they can be questioned.

The union for the citys officers, the San Antonio Police Officers Association, noted that those requirements do not apply to criminal proceedings, but many officers are unlikely to face criminal charges for breaching standards of conduct. The union signaled that they understand that the winds of change are blowing in the direction of increased accountability, noting that as we move forward in time and our industry adapts to changes, there will be a need to make modifications.

In many cases dealing with alleged police misconduct, local taxpayers are likely to shoulder the financial burden. In just 2019 alone, the New York City Police Department (NYPD) paid out nearly $69 million in settlements; this number does not count the settlements paid in cases settled out of court.

Since the June 2018 U.S. Supreme Court ruling in Janus v. AFSCME, public employees are no longer required to financially support their union as a condition of employment. If individual police officers are concerned about losing their communitys trust, they may withdraw union support and form smaller, more accountable professional organizations bound by their own values.

While local leaders will need massive political will to take on these powerful public-sector unions, there are solutions that individual officers may pursue in order to strengthen the reputation of their profession and relationship to those they serve. An initiative called the Thick Red Line aims to reach local police officers and empower them to restore the trust and faith in the police by organizing with their colleagues, either with or without their union, into a department-wide refusal to enforce any law or regulation that doesnt have a real victim.

Eliminate Civil Asset Forfeiture in Every State

The next step in examining the interplay between LEOs and the public requires following the money, so to speak. This must include a hard look at the policy of civil asset forfeiture, which allows police to seize personal property simply through the suspicion of a crime.

The tricky thing about this problematic policy, is that it is adjudicated in civil court, instead of criminal court. In these proceedings, the state flips due process on its head, prosecuting your property for its involvement in a crime. This means that the individual whose property was seized must prove the innocence of their property by demonstrating that it is more likely than not (a preponderance of the evidence) that their property was not involved in the commission of a crime.

In many areas of the U.S., police rely on this tool to make up significant portions of their budgets. Because many jurisdictions allow police to keep much, if not all, of what they seize, a perverse incentive exists for officers and departments at large to engage in this type of activity. The positive side of this is that Maines laws on civil asset forfeiture are recognized as one of the best in the country.

Instead of seizure of property through a criminal conviction of an individual for a specified crime, police need only be suspicious that a crime took place using the property, in order to seize it under civil asset forfeiture. This practice should be ended in every state in order to protect the Fourth Amendment rights of Americans. No one should be punished with a loss of property without due process.

Roll Back Excessive Fees and Fines

Many laws, ordinances, and regulations are on the books all across the country that local governments rely on to pad their budgets.

A survey by the Institute for Justice, a liberty-focused national public interest law firm, found that in three Georgia municipalities that rely disproportionately on the accumulation of revenue through fees and finesdescribed as taxation by citationcontributed to significantly lower levels of trust in government, particularly among African-American communities, those most likely to be ticketed under these schemes.

By limiting ordinances to those that truly protect community health and safety, localities would greatly limit the incentive for police to become revenue collectors. Some local police budgets around the country depend on ticket fines for minor violations of traffic laws, and numerous other code infractions. An egregious case involving the town of Pagedale, Missouri showed ticketing for ordinances prohibiting barbecuing in front of a house and having holes in window screens.

By getting rid of the incentive for officers to accumulate revenue through fining the population for trivial offenses, such as the examples above, taxpayers may rest assured that local governments are spending their tax dollars more wisely while also maintaining a healthy relationship with those they serve.

Treat substance use and abuse as a public health issue, not one of criminality

Our nations outdated drug laws and enforcement regimes cause LEOs to view the drug user and the drug-addicted through a lens of criminality, instead of viewing the issue as it is, one that requires a holistic public health response. As my colleague, Julia Bentley argues, our current drug laws are more draconian than necessary for a free society, and have caused much more harm than good, whether measured in fiscal, public health, or social impact.

By reducing criminal penalties, and removing drugs from the criminal sphere altogether, we can eliminate the incentive for police to accost drug users who are not committing any type of violent or property crime. We can also reduce the societal stigma on drug use in order to prompt the drug-addicted to enter voluntary treatment. Yes, this would be a large shift in the mindset of Americans to drug use, but these policy changes will increase the likelihood that those who are addicted will seek therapy for their illness.

The idea of seeking harm reduction as a priority for policymakers has gathered greater popularity as public understanding of addiction as a mental illness has come to the fore. Looking at countries who have embraced this policy, namely Portugal, we see that use of drugs among the population, and especially among minors has decreased since the beginning of that policy. The drug-addicted have also been more willing and able to seek treatment and pull themselves out of a deadly downward spiral.

A white paper by journalist Glenn Greenwald published by the Cato Institute in 2009, noted that prior to decriminalization of individual possession of small amounts of drugs in 2001, The most substantial barrier to offering treatment to the addict population was the addicts fear of arrest. Portugal continues to hold drug trafficking and production as criminal offenses, but treats individual drug use as a public health issue, offering easier access to treatment. As a result, factors such as new HIV infections have substantially dropped over the last 20 years, reports the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA).

De-militarize Local Police Forces

In the late 1990s, the federal Department of Defense began the 1033 program, through which local police departments may accumulate excess military equipment from the Pentagon. The equipment has become excess because of updated congressional allocations to the military, rendering previous tools obsolete. The 1033 program equipment is provided to local law enforcement agencies by request, and at little to no cost to localities. Police departments in Maine covering college campuses, the wardens service and small towns and cities have received nearly $10 million in military equipment from the Pentagon since the beginning of the program.

The largest receipt of military gear went to Sanford since it houses the only SWAT team in Southern Maine. This may well be necessary, as long as use of SWAT force is reasonable given the circumstances. The Bangor Daily News reports that Sanford police have ordered more than $1.5 million in military equipment, including two Navistar Defense MaxxPro Mine-Resistant Ambush Protection vehicles, which were designed to protect U.S. soldiers from deadly mines during wars in Iraq and Afghanistan.

In 2014, after clashes between police and protesters as a result of the shooting of Michael Brown in Ferguson, Missouri, President Obama restricted the parameters of the 1033 program, but President Trump restored it in August 2017, after heavy police union lobbying. If the use of this equipment, if ever justified, is used in a reasonable manner, it is unlikely to draw much ire from the public. But combined with the aforementioned excessive fines, fees, and criminalization of victimless offenses, these disbursements can have the effect of further dividing the ethos of local police (to protect and serve) and their communities.

Societys goal for effective police reform, as it should be for any application of government force, should be a system that requires everyone to follow the same laws so all can be held accountable to the same standard. We must ensure the greatest possible level of human-to-human understanding between agents of the state and the public they serve.

Though not an exhaustive list, by enacting some or all of these reforms, policymakers may well be able to begin to heal the divide between police and some of the communities they serve, avoiding the vague, unnecessary, and unproductive calls from activists to defund the police.

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'Defund the police' is not a real reform strategy - The Maine Wire

Assessing Indias obsession with data localisation – Deccan Herald

Covid-19 has spawned contact-tracing worldwide, triggering collection and processing of personal data. Privacy protections surrounding this are nascent, raising significant concerns about their permanence in our society. The Supreme Courts landmark Puttaswamy judgement recognised privacy as intrinsic to personal liberty under Article 21.

Concurrently, it recognised that a legitimate interest, say, an epidemic, might restrain the right provided the doctrines of necessity and proportionality are satisfied. In this context, a recent order from the Kerala High Court in Balu Gopalakrishnan assumes significance.

The Kerala government contracted US-based Sprinklr Inc for Covid-related medical data analysis. Petitioners assailed this contract for lacking adequate privacy safeguards, arguing that the jurisdictional choice of New York virtually renders Indian citizens defenceless against a breach.

The courts order pervasively focuses on data localisation, that data concerning Indian residents must reside within India to secure jurisdiction of her courts. This sentiment has been echoed by Union ministers as well. We submit that data localisation is an anachronism, and severely inhibits privacy protections envisaged under the Constitution.

A comprehensive safeguard instead necessitates attaching jurisdiction through the residence of the data subject. In fact, Delhis obsession with data localisation stalls the resolution of another obsolescence ailing Indias privacy regime the absence of a data-protection legislation.

Currently, statutory protections are entirely contained within the Information Technology Act, 2000 (IT Act). Data localisation advocates, and respondents in Gopalakrishnan argue that localisation attaches jurisdiction using Section 75(2) of the IT Act, which applies the Act extra-territorially (outside India) if a breach involves a computer located in India.

Any reassurance from Section 75(2) is a facade. Consider this, Sprinklr decides to use a supercomputer in Ohio and copies data from Indian servers. The supercomputer at Ohio containing data of Indian nationals is breached. In such a case, Section 75(2) will not operate since the computer located in India was not breached, and absurdly, an Indian will be without remedy.

The IT Act was designed to facilitate e-commerce, not for data protection. Thus, virtually, the entirity of its penal provisions are predicated on tangible loss (see Sections 43A, 66, 66C, 66D, and 66E). Disclosure that someone is diabetic may not cause a loss but is still a privacy violation yet, the IT Act provides no remedy here.

Resolving these absurdities requires a fundamental re-imagination of our privacy jurisprudence. Jurisdiction should attach to any entity collecting, processing, and/or storing personal data based on the residence of the data subject, not its location. This approach allows greater flexibility for processing while also comprehensively protecting privacy.

The spatial approach of data-localisation is incongruent to the very concept of privacy. This was first enunciated by the US Supreme Court (Scotus) in Katz v United States, where wiretapping without entering a persons home was challenged as a violation of Fourth Amendment rights.

The Fourth Amendment is textually spatial; it protects against unreasonable search and seizure of someones persons, houses, papers, and effects. Drafted around 1791, its text could not possibly predict the intrusion that remote technologies can accomplish today.

Therefore, like data-localisation, it was written with spatial limitations and a literal interpretation renders it redundant today. Cognizant of this vulnerability, Scotus held that privacy attaches to people, not places, and therefore, wiretapping even absent a literal intrusion was unconstitutional.

The Indian Supreme Court, in Dist Registrar & Collector v Canara Bank, adopted Katz with approval, placing individuals at the locus of privacy. In Puttaswamy, Justice Chandrachud wrote, Privacy is a concomitant of the right of the individual to exercise control over his or her personality. Justice Nariman distilled an informational aspect of privacy, distinct from an individuals physical body. As a principle seeking to preserve privacy, therefore, data localisation ignores its evolution and attempts to restrict it to an obsolete conception of tangibility and spatiality.

Restrictive view

To argue that Indian courts cannot pursue offenders abroad without data localisation is a restrictive view of jurisdiction. The Supreme Court in GVK Industries acknowledged Parliaments power to legislate extra-territorially for the interests or welfare of inhabitants of India. Article 73 of the Constitution makes the Union executive power contemporaneous with Parliaments legislative authority.

Therefore, where the welfare of Indians is concerned, legislative and executive powers of extend outside India too.The Constitutions Fundamental Rights Charter is meant to check state authority. Consequently, it too, must operate abroad if the state pursues extra-territorial acts.

Concluding otherwise would confer absolute impunity to state action abroad, even when it infringes the rights, interests or welfare of the people of India. The Constitution provides for writs under Articles 32 and 226 for enforcing rights of Indians, indicating that the jurisdiction of the Supreme Court and high courts would extend extra-territorially in such cases.

There is precedent for this understanding of jurisdiction. Section 4 of the IPC provides that an Indian citizen may be charged with an IPC offence committed while she is abroad, even if it is not an offence in that country. Parliament has therefore attempted to regulate the conduct of Indian citizens abroad to accord with Indias standards of criminality. In such cases, Indian courts gain congruent jurisdiction already. For data protection, Europes General Data Protection Regulation statutorily attaches jurisdiction based on residence of data-subject, rejecting data-localisation. Under the Protective Principle, international law also permits extra-territorial jurisdiction of states for its own preservation or protecting its interests. Clearly, critical personal data of its residents is at the core of a states interests.

In Maneka Gandhi, the SC noted that courts should expand the reach and ambit of Fundamental Rights, rather than to attenuate their meaning and content by a process of judicial construction. By relying on constricted and overly simplistic anachronisms like data-localisation, policy makers are turning away from this guiding principle.

(Maniktala is an LLB student, Campus Law Center, University of Delhi; Khurana, is an LLM graduate from the UCLA School of Law, USA)

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Assessing Indias obsession with data localisation - Deccan Herald


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