Daily Archives: August 26, 2020

Vice President Mike Pence speaks during the first day of the Republican National Convention on Monday, August 24, 2020, in Charlotte, N.C. (Chris Carlson / AP Photo)

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On Sunday night, video was released showing the attempted murder of Jacob Blake on a street in Kenosha, Wis. The video shows Blake, a Black man, walking towards his parked vehicle followed by two police officers who have their guns drawn on him. As Blake reaches his car door, one of the officers grabs Blakes tank top and holds him in place as he, or the other officer, fires multiple shots into Blake at point-blank range. In the video, seven shots can be heard.Ad Policy

Witnesses say Blake had exited his car not long before to break up a fight between two women. Cops, who were apparently called to the scene, claim that Blake was noncompliant with their instructions when they arrived.

Blakes three young children were in the car when the police shot him. Blake was taken to a hospital, where he remains in the intensive care unit.

Less than 24 hours later, on Monday, Republicans started their national nominating convention in a crowded, mask-optional room in Charlotte, N.C. Vice President Mike Pence, accepting his renomination to his office, declared, Were gonna back the Blue. Pence, apparently, couldnt say Black lives matter. Not only that, he insisted on elevating the police, which is a profession, to the level of an immutable (if, yes, constructed) characteristic like race, color, or ethnicity. Theres no such thing as a blue life. There are just people armed at the behest of the state who are supposed to follow constitutional guidelines while they protect and serve unarmed citizens.

Such was the first installment of the Republicans days-long convention-as-culture war, which will cast cops, like the ones who shot Blake, as victims in need of protection from an unarmed citizenry. If Blakes story comes up at all, it will arrive in the form of red-faced denunciations of the protesters decrying Blakes attempted murder, rather than outrage over the attempted murder of another unarmed Black man.

Pence didnt even bother to offer thoughts and prayers to Blake or his children or family. When it comes to Black men gunned down by the cops, even the usual useless platitudes get caught in Republican throats.Current Issue

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Pence, presumably, isnt at all sorry that a Black man was shot several times in the back as his children cried out in horror. I imagine he, and most Republicans, think the murder was justified. I can tell you exactly what the cops will say: Theyll say that they thought Blake was reaching for a gun somewhere in his vehicle (even though there was no gun). The cops will say, with a straight face, that they shot a man in the back in self-defense. And that defense might work. Betty Shelby, the cop who shot Terrence Crutcher in the middle of a Tulsa street when she was surrounded by fellow officers and a police helicopter, was acquitted.

Many Republicans just dont think gunning down unarmed Black men is illegal. Many of them probably think the Black guy had it coming, for one reason or another. The Republican Party has fully aligned itself with the most violent and racist elements in our society. Everybody from the white supremacists who showed up in Charlottesville to QAnon conspiracy theorists to unashamed bigots like Laura Loomeranybody, quite simply, who has violent impulses toward people of colorhas a home in the modern Republican Party.

Theres a reason the New York Police Union openly endorsed Donald Trump for president. Its because cops know that Trump and the Republicans will take their side against any Black person they murder. Republicans simply do not want to protect Black people from the police.

Democrats havent always been champions of Black lives either. But Republicans have stood, and continue to stand, against every suggested measure to address police brutality. Im not just talking about the big, structural changes that progressives have been pushing in recent years; Republicans oppose even the small changes that would simply make it harder for cops to gun down Black people with impunity. Republicans oppose measures that would bring more transparency to police forces through the disclosure of their disciplinary records. Republicans oppose a national registry of bad apples so that they cant be shuffled from one department to another. Republicans oppose independent commissions set up to prosecute police. Republicans oppose federal oversight and consent decrees entered into with the Department of Justice, oppose federal use-of-force regulations, and oppose strengthening Fourth Amendment protections to prevent cops from racial profiling or executing no-knock warrants.

It would be possible to support any or all of these positions and still be a law and order Republican. Transparency, accountability, and oversight over policing are ideas everybody should agree to, whether they believe that systemic racism infects law enforcement or not.

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But you wont find those kinds of Republicans, or plans, at the convention. Instead of an anti-police-brutality agenda, Republicans have Tim Scott, the Senator from South Carolina who happens to be Black. Scott spoke last night at the convention. Scotts proposals to address police brutality are underwhelming, but if Scott represented the actual Republican agenda on police violence, it would at least be a starting point.

But Scotts ideas were not adopted as part of the Republican Party platform. In fact, the Republican Party in 2020 adopted no platform at all. The GOP blamed (wait for it) coronavirus social-distancing rules for preventing it from gathering and agreeing on a 2020 agenda. Instead of adopting actual policies, the Republicans just put out a blanket resolution enthusiastically supporting Donald Trump. Im not making that up. The 2020 GOP is not a political party; it is, officially, a cult of personality set up to support Trump.

If there is one thing we know about Trump and the party that is now forever tied to his existence, its that they do not care if people die. Black and brown people are, and have long been, at the top of that list of not caring, but the thing about death cults is that they tend to expand. Todays Republicans dont care if people are killed by law enforcement. They dont care if people die in floods, hurricanes, or fires brought on by climate change. They figuratively shrug their shoulders as our children are gunned down at school. And just a few weeks back, we saw President Trump literally shrug his shoulders and say It is what it is when confronted with the reality of the Americans felled by Covid-19 on his watch.

The callousness of Trump and the Republicans is matched only by the nihilism of their supporters. A recent poll found that 57 percent of Republicans viewed the 170,000 (and counting) American deaths from Covid-19 as acceptable.More from Mystal

This willful indifference in the face of systemic suffering is the defining feature of the modern Republican Party. By championing a kind of latter-day social Darwinism, Republicans try to absolve themselves of responsibility. They dont have to come up with a national plan to combat the virus if there was nothing that could be done anyway. Grandma had to die of something, I guess. They dont have to respond to mass shootings if they act like school shooters are unpredictable lightning bolts from an angry God. They dont have to address police brutality if Black lives do not matter.

An unarmed Black man was shot seven times in the back in broad daylight on camera on the eve of the Republican National Convention, and the vice president of the United States didnt even adjust his talking points to suggest that cops are anything other than the victims of the protests against that kind of violence. Two tropical storms will slam into the Gulf Coast, at nearly the same time, during the convention, and the Republicans will not adjust their speeches that portray climate change as a liberal hoax perpetrated by people who want to raise the cost of doing business. And the entire convention will be held in an alternate reality where the coronavirus either doesnt exist, or has already been defeated, or will be defeated by a miracle cure Trump will present to the nation very soon.

The only response Republicans have to the human suffering theyve caused is to spend a week pretending that the humans who died on their watch never existed in the first place.

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At the RNC, Republicans Go All-In on Police Impunity - The Nation

Law enforcement continues to buy private data from brokers. And investigative journalists continue to uncover these shocking truths.

Location data seems to be law enforcersfavorite retail therapy target. And the latest agency to be found using it is the US Secret Service. Fourth Amendment be damned.

And, in the end, the love you take is equal to the love you make. In this weeks Security Blogwatch, we cross over, between Belishas.

Your humble blogwatcher curated these bloggy bits for your entertainment. Not to mention:ykcul teg.

Here come oldJoseph Cox. He come groovin up slowlySecret Service Bought Phone Location Data from Apps, Contract Confirms:

Something in the wayChristine Fisher knowsNormally, law enforcement would need a warrant or court order:

Bang bang,Rhett Jones silver hammer came downSecret Service Paid to Get Americans' Location Data Without a Warrant:

Well, you know I nearly broke down and cried.Heres what Immerman wants to know:

But I feel that ice is slowly meltingcoryseaman is unclear why people keep banging on about warrants:

Users have consented to the sharing of the underlying datawhether knowingly or not, and it doesn't include the identities of the device owners. [Police] would need to obtain a warrant to discover its owner, obtain call records, or get its identifiable device ID and attempt to trace its location in real time.

This is a fair bit different than offering the fourth amendment up for sale.

And neitheris TimothyHollins, because the sky is blue:

If you have a problem with this development in law enforcement I suggest you go to the root, the gathering and collation of information on private citizens in general.

Youre gonna carry that weight.So run, DMCVegas:

What happens when youhave a suspect [who] learns how to game the system to skew the datathat applications like this run off of? What happens when common sense is rejected entirely, and instead we rely upon data streams and algorithms? What happens when [individuals] send false location information, and LEOs fail to stop criminals?

Surely everyone knowsthat apps can record your location? DogDude barks in the middle of negotiations:

I really doubt that anybody doesn't know they're spying devices by now. That seems really far-fetched.

iOS 14 is going to blur the location accuracygiven to apps. But Omnom Bacon tanta mucho que canite carousel:

Meanwhile,NoNonAlphaCharsHere sleeps in a hole in the road: [Youre firedEd.]

If your apps gather location data, think carefully about what you do with it, in case a PR firestorm blows up in your face. (And if youre buying it, quit the police department and get yourself a steady job.)

Ykcul teg

Previously in And finally

You have been reading Security Blogwatch by Richi Jennings. Richi curates the best bloggy bits, finest forums, and weirdest websites so you dont have to. Hate mail may be directed to @RiCHi or sbw@richi.uk. Ask your doctor before reading. Your mileage may vary. E&OE. 30

This weeks zomgsauce: Claudio Toledo (cc:by). Someday I'm going to make her mine.

The rest is here:
Secret Service dodges location-data warrants there's an app for that - TechBeacon

Fort Worth, Texas: When David Collie slipped off his shirt as he set out one sultry night to visit some friends, he didnt know he was putting himself in grave danger. But he was. He now fit the description: shirtless, Black, male.

Moments later, Collie lay face down on the pavement, gunned down as a possible suspect in a crime he didnt commit.

The shooter was Fort Worth, Texas, police officer Hugo Barron. He and his partner had been looking for two shirtless Black men wanted for an armed robbery involving tennis shoes. When the cops spotted David Collie, they pulled into the apartment complex, got out of the squad car and started shouting commands at him.

Police dashboard camera video shows that Collie was walking away from the two cops as he pulled his hand out of his pocket and raised his arm. Thats when Barron fired his gun. A hollow-point bullet slammed into Collies back, punctured a lung and severed his spine, leaving him paralyzed from the waist down.

In the four years since then, Collie, now 37 years old, has lived in nursing homes, afflicted with infections, pressure sores, and bouts of crushing depression. As he talked about the July 2016 shooting and what it took from him, wails from an elderly patient echoed down the corridor. The odours of urine and excrement wafted in from the hall. Collie closed his eyes and exhaled. Paralyzed over some tennis shoes? Come on, man, he said. Youre playing with a human life here.

To many Americans, the outlines of Collies encounter with police have become dismayingly familiar in recent years and all the more so since the May 25 death of George Floyd, a Black man, under the knee of a Minneapolis cop sparked mass protests against racism and aggressive police tactics. The fate of Collies attempt at redress has become familiar, too, and now underpins demands that police be held accountable when they kill or seriously injure people.

In a lawsuit filed in federal court in Fort Worth, Collie accused Barron of excessive force, a civil rights violation under the Fourth Amendment to the US Constitution. He thought that any money from a settlement or jury award would give him some measure of independence after the shooting cost him his job and derailed his plans to return to college. He also thought Barron should be held responsible for what he did.

Collie didnt get very far. Barron, who hadnt been disciplined or charged with any wrongdoing for the shooting, argued that he had acted reasonably on a fear that Collie was about to shoot his partner. Collie said he took his hand from his pocket to point to where he was going when Barron shot him. The judge sided with Barron though Collie had nothing to do with the robbery the cops were investigating, had no gun on him, and was 30 feet away with his back to Barron when the cop fired.

The judge ruled that Barron was entitled to qualified immunity, a legal doctrine meant to protect police and other government officials from frivolous lawsuits. A federal appeals court, saying the case exemplifies an individuals being in the wrong place at the wrong time, upheld the lower courts decision.

You shoot me, paralyze me, put me in a nursing home, ruin everything, and I cant get no type of compensation? Collie said. He leaned back in his bed. This aint justice.

David Collie who was shot by police sits beside his mother, Pam McCloud, during her visit to the nursing home where he lives in Fort Worth, Texas, US, September, 27, 2019. Photo: REUTERS/Callaghan OHare

Collie would have stood a much better chance of getting the justice he sought if he had been able to sue elsewhere. Thats because, in excessive force lawsuits, courts in some parts of the United States are more likely to deny cops immunity than others.

In a review of 529 cases since 2005, Reuters found significant differences in how the federal appeals courts treat qualified immunity.

Plaintiffs fared worst in the court that heard Collies appeal, the 5th US Circuit Court of Appeals, where judges habitually follow precedents that favour police. The court granted 64% of police requests for immunity in excessive force cases.

By contrast, the 9th Circuit has set a higher bar for police. The appellate judges there granted immunity in just 42% of police requests for immunity in excessive force cases.

The regional disparities are also evident in federal district courts, where excessive force lawsuits are actually heard and which must follow precedents set by their respective appellate courts. In an analysis of 435 federal district court rulings in excessive force cases from 2014 to 2018 in California and Texas, the two most populous states, judges in Texas granted immunity to police at nearly twice the rate of California judges 59% of cases, compared to 34%.

A plaintiffs chances are so much better in California that one who was armed in an encounter with police is more likely to overcome qualified immunity than one who was unarmed in Texas.

Target of outrage

For years, the words qualified immunity were seldom heard outside of legal and academic circles, where critics have long contended that the doctrine is unjust. But outrage over the killing of George Floyd and incidents like it have made this 50-year-old legal doctrine created by the US Supreme Court itself a target of broad public demands for comprehensive reform to rein in police behaviour.

The criticism that qualified immunity denies justice to victims of police brutality is well-founded. As Reuters reported just two weeks before Floyds death, the immunity defence has been making it easier for cops to kill or injure civilians with impunity. Based on federal appellate court records, the report showed, courts have been granting cops immunity at increasing rates in recent years even when judges found the behaviour so egregious that it violated a plaintiffs civil rights thanks largely to continual Supreme Court guidance that has favoured police.

The regional differences Reuters has found in how qualified immunity is granted only add to arguments that the doctrine is unfair. Its essential to our system of government that access to justice should be the same in Dallas and Houston as in Phoenix and Las Vegas, said Paul Hughes, a prominent civil rights attorney who frequently argues before the US Supreme Court. It shouldnt turn on the happenstance of geography as to whether or not they (plaintiffs) have a remedy.

The happenstance of geography shows up in a comparison of Collies case to the one Benny Herreras family filed after a cop killed him in 2011. Police in Tustin, California, were looking for the 31-year-old father of four after a former girlfriend reported that he had assaulted her. They found him walking along a lightly trafficked road, behaving erratically. As in Collies case, a cop opened fire when he thought Herrera was about to shoot him. Like Collie, Herrera did not have a gun.

In the Herrera familys lawsuit, the cop was denied immunity. The district court judge, and the 9th Circuit Court of Appeals after him, weighed the same question as the courts in Collies case: Did the shooter act reasonably on a fear for his and others safety when he used deadly force? In this instance, the court said no. The case could move forward.

Before the familys lawsuit got to trial, the plaintiffs secured a $1.4 million settlement. Herrera always wanted his children to be financially secure, Elizabeth Landeros, mother of one of his children, said. They lost their father, she said, but at least now theyll be OK.

Benny Herrera poses for a photo with his two-year-old daughter Abygail Herrera in this undated handout. Photo. Elizabeth Landeros/Handout via REUTERS

Philosophical differences

Qualified immunity plays out differently from region to region because of differences in judicial philosophies among those regions, lawyers and legal experts said.

Over the years, the Supreme Court has repeatedly told lower courts to use an objective analysis when weighing police claims of immunity: They must determine whether the force used was reasonable or excessive, and if the latter, whether the specific type of force used has already been defined as illegal under clearly established precedent.

But how judges answer those questions is influenced by their personal views on police authority and individuals rights, and their views often reflect the cultural and political landscapes they inhabit. In typically conservative areas, judges tend to favour police, while in more liberal parts of the country, they tend to favour plaintiffs. Those tendencies get baked into circuit court precedents that all judges in that circuit must follow.

Most judges are from the area where they serve and grew up in that culture, and whether they are liberal or conservative, they are bound to apply the law as its developed in that circuit, said Karen Blum, a professor at Suffolk University Law School in Boston and a critic of qualified immunity. Is it fair? No.

The liberal-leaning 9th Circuit, where the Herrera family sued, has established in its precedents powerful support for plaintiffs. Among them are rulings cautioning against throwing out excessive force cases before a jury has had a chance to weigh an officers credibility, and requiring more than officers claims that they feared for their safety as grounds for granting immunity.

The Supreme Court has repeatedly rebuked the 9th Circuit for its willingness to deny cops immunity, and especially for applying, as the high court wrote in a 2011 ruling, a high level of generality when analyzing the question of clearly established precedent.

Perceived threats

Judges in the 5th Circuit, where Collies case was heard, are more likely to prioritize police power over citizens rights and liberties. Courts in the 5th Circuit habitually cite precedents that favour police by treating an officers perception of a threat as the key consideration. They do the same when deciding whether the force used was illegal under clearly established precedent, requiring that the material facts of the two cases be nearly identical.

If you approach these cases by placing a thumb on the scale in favour of police officers, you will tend to search the record for any basis in which to conclude that the actions police officers ultimately took were justified, said Hughes, the civil rights lawyer.

Across the country, different judicial approaches result in different outcomes for similar cases including numerous cases like Collies, in which cops claimed they were countering a threat to themselves or others when they shot someone from behind.

In Indio, California, a cop was denied immunity after fatally shooting Ernest Foster Jr three times in the back during a foot chase at a shopping plaza, even though police recovered a gun from the scene. And in Denver, Colorado, an officer was denied immunity after shooting Michael Valdez in the back, severely injuring him, though the cop himself had been shot during the preceding car chase.

These cases were in the 9th and 10th Circuits, respectively, both relatively plaintiff-friendly, based on the Reuters analysis of how often they granted qualified immunity.

But in Houston, a cop was granted immunity after fatally shooting Gerrit Perkins in the back while Perkins crouched in a closet holding a cordless phone. Perkins was unarmed. And in Bradley County, Arkansas, an officer was granted immunity after shooting Davdrin Goffin in the back, partially paralyzing him, even though he had already been patted down for weapons. He, too, was unarmed.

These cases were in the more police-friendly 5th and 8th Circuits, respectively, based on how often they granted qualified immunity.

Minnesota, where George Floyd lived, is also in the 8th Circuit. The day state investigators arrested the Minneapolis officer who knelt on Floyds neck as he died, the appellate court granted immunity to cops in Burnsville, Minnesota, who killed Map Kong, a man in a mental health crisis, when they shot him in the back as he ran away holding a knife.

Essential to policing

Police officers and their supporters say qualified immunity is essential to ensure that police can make split-second decisions in dangerous situations without having to worry about being sued later. If we expose police officers to these suits on a regular basis, who would ever want to be a police officer? said Kent Scheidegger, a lawyer with the pro-law enforcement Criminal Justice Legal Foundation, based in Sacramento, California.

However, denial of immunity doesnt necessarily mean a certain loss for police. It means only that a lawsuit can move toward a jury trial or a financial settlement. District court data show that when cops were denied immunity in California and Texas, the cases were settled at about the same rate, 64% of the time. In nearly all of the remaining cases, a jury decided in favour of the police.

Even when a plaintiff secures recompense through a settlement or a jury award, the cops are nearly always indemnified against personal liability, meaning local governments typically named as defendants or their insurers cover the costs.

This widespread practice, legal experts said, undermines the ability of lawsuits to deter excessive force, particularly since cops are rarely prosecuted or otherwise disciplined for their actions. There is no sense of justice being done, said Blum, the Suffolk University law professor. The goal should be to deter, in some way to have a price paid if you engage in this kind of behaviour.

Blum is part of a broad coalition of lawyers, scholars, civil rights groups and politicians who in recent years have called for qualified immunity to be reined in. As currently applied, they say, the doctrine too often denies even an attempt at justice to people who believe they are victims of excessive force and fails to hold police accountable.

An increasing number of judges of all stripes have also expressed frustration with the doctrine and the Supreme Courts repeated interventions that have made it harder to deny immunity. In an opinion last year, Judge Don Willett, appointed to the 5th Circuit by President Donald Trump, put it bluntly: The real-world functioning of modern immunity practice essentially heads government wins, tails plaintiff loses leaves many victims violated but not vindicated.

The justices have offered few explanations for their stance on qualified immunity beyond writing in opinions that the doctrine is important to society as a whole and balances individuals rights with the need to curb litigation that could unduly burden government officials. Two of the justices liberal Sonia Sotomayor and conservative Clarence Thomas have criticized qualified immunity in written opinions in recent years. All nine current justices declined to be interviewed for this article.

Amid the protests in the wake of Floyds death, expectations ran high that the Supreme Court would finally move to restrict or end qualified immunity by taking up at least one of several petitions to hear cases backed by opponents of the doctrine. But in early June, it rejected those petitions.

Congress moved swiftly to draft police reform measures, but legislative proposals, including some that would have ended qualified immunity, stalled as Democrats and Republicans deadlocked over issues of addressing racial inequality and police accountability. President Donald Trumps White House and some Republicans in Congress have called eliminating qualified immunity for police a non-starter on the grounds that it would deter police officers from doing their jobs properly.

US President Donald Trump addresses a coronavirus disease (COVID-19) pandemic briefing in the Brady Press Briefing Room of the White House in Washington, US, August 5, 2020 Photo: Reuters

A new beginning

In the summer of 2016, David Collie was putting his life in order and putting a troubled past behind him.

More than a decade earlier, as a student at Texas Southern University in Houston, he had become involved in a gang, indulging in glamour, clothes, money and girls, he said. When he pulled a gun on an adversary and took his car for a ride, Collie was charged with robbery and evading arrest and spent 11 years in prison.

Two months before Barron shot him, Collie had landed a full-time gig building supermarket produce displays. He liked the work, and he was cheered to be saving money before resuming college classes in cinematography in the fall. Work and school, that was always the plan, he said.

On the night of July 27, he got a call. Some friends who lived in the same apartment complex were arguing. It was late, and he had to be at work at 7 a.m., but he decided to walk over to the couples home to try to calm them and provide a diversion for their children, who called him Uncle David.

Officer Barron of the Fort Worth police and Tarrant County Deputy Sheriff Vanesa Flores were working off-duty paid security detail for a nearby apartment complex that night. They had just heard from dispatch that two shirtless Black men had made off with two pairs of tennis shoes, valued at $225 each, in a deal organized through Facebook. One of the suspects, the officers heard, had brandished a gun.

Just after midnight, police dashboard camera video shows, the two officers were walking toward Collie when Flores trains her flashlight on him. Barron pulls out his pistol. Collie turns around briefly and then continues to walk away.

Collie said the pair were shouting commands at him and over each other. He was confused, unsure about what to do, he said. They asked me where I was going, I was pointing, he said. I was trying to comply.

The instant Collie pulled his right hand out of his pocket to point, Barron fired. You didnt have to shoot me, Collie recalled saying after the force of the bullet slammed him to the pavement.

Time elapsed from the cops first appearing on the dash-cam to the shooting: five seconds.

The Fort Worth Police Department declined to comment and declined to make Barron available for comment. Flores, who no longer works for the Tarrant County Sheriffs Office, could not be reached.

After the Fort Worth police internal affairs division investigated the shooting, the Tarrant County Criminal District Attorneys Office presented the evidence to a grand jury, which declined to indict Barron on any criminal charges. A spokeswoman for the office noted that Flores did not cause, participate in, or contribute to the shooting, and had no further comment.

Shackled in recovery

Collie endured a difficult two-month recovery in hospital. In addition to his paralysis and other medical issues that linger to this day, he was diagnosed with post-traumatic stress disorder. Doctors removed a bullet fragment from his chest seven weeks after the shooting.

He was also shackled to his hospital bed for nearly the entire time because police had charged him with aggravated assault on a public servant. A grand jury eventually declined to indict him.

In March 2017, Collie filed his lawsuit in federal district court in Fort Worth, naming Barron, Flores, the City of Fort Worth, Tarrant County, and several other officers as defendants. Any money Collie got would allow him to afford a home and a car modified for his disability. He also hoped to pay for physical therapy to try to walk again, though doctors said that was a long shot. Its like the world is saying, Im sorry, were wrong we did thatWere going to help you out, help you get back on your feet, Collie said of the recompense he sought.

Less than a month after Collie sued, lawyers for Barron, provided and paid for by Fort Worth, requested qualified immunity for the cop. Early on, Judge John McBryde dismissed Collies claims against all defendants other than Barron and Fort Worth.

In court papers, Barrons lawyers said the cop had acted reasonably because he believed Collie had a handgun and was moving to take aim at Flores. Flores had also told investigators that night that she thought she saw something in Collies hand. In using reasonable force to stop an apparent deadly threat, Officer Barron violated none of Plaintiffs constitutional or other rights and is entitled to qualified immunity, Barrons lawyers argued.

Collie had no gun. A boxcutter was found in the grass near where Collie went down, according to the police report. Collie said he always carried a boxcutter with him because it was necessary for his job. He adamantly denied that he was holding the boxcutter when he raised his hand to point. He said he believes Barron cited it as an excuse to cover up a mistake.

Barrons request for immunity asserted that whether Collie was armed or not was irrelevant. Merely arguing that in the end it must somehow be unreasonable to shoot an unarmed suspect is not enough to let a lawsuit go forward, the request said.

Collies lawyers countered that Barron created a threat in his mind that did not exist. A forensic expert they hired to map the scene, capture images using a drone and analyze the dash-cam footage concluded that Collie was not holding an object, let alone pointing it at Flores, when he was shot.

David Collie who was shot by police speaks to a reporter at the nursing home where he lives in Fort Worth, Texas, U.S., September, 27, 2019. Photo: REUTERS/Callaghan OHare

Excessive and unreasonable?

In July 2017, McBryde granted Barrons request for immunity. In his decision, he relied on a stringent 5th Circuit standard for finding that excessive force was used: not only that the plaintiffs injury resulted from force that was clearly excessive, but also that the excessive force was clearly unreasonable.

As a Texas judge, McBryde supported his ruling that shooting Collie was reasonable by drawing on 5th Circuit precedents that elevate an officers perception of a threat as the key consideration in weighing an immunity claim. He cited a 2003 precedent that force is presumed to be reasonable when police perceive a threat, even if alternative courses of action were available.

Even if Collie had nothing in his hand and did not point at Flores, he had no right to a trial, McBryde said in his ruling, because the test is whether Barron acted reasonably in light of what he perceived.

McBryde declined to comment.

Collie fared no better with his appeal to the 5th Circuit. Noting that Collie fit the description of one of the suspects, the appeals court in 2018 agreed that Barrons perception that night mattered most.

The appeals court cited its own precedents. One was a 2008 ruling, Ramirez v. Knoulton, which said that cops do not have to wait to act against a threat and that courts should not second guess the timing of that realization. Another was a 2016 ruling that singled out a Houston cops perception of an immediate threat as the most important consideration in granting immunity. In that case, the cop claimed he shot Ricardo Salazar-Limon in the back, paralyzing him, after Salazar reached for his waistband. Salazar was unarmed.

A spokesman for the 5th Circuit declined to comment for this article.

Manny Ramirez, president of the Fort Worth Police Officers Association, said the courts made the right decision to throw out Collies suit. Barron is a good officer, Ramirez added. His work product speaks for itself. The legal system, he said, must recognize the dangers officers face on the job.

Barron was moved to a special tactical unit of the Fort Worth police in 2018.

Plaintiffs and civil rights activists said the 5th Circuit is providing an easy out for cops who use excessive force because it is particularly receptive to the argument that they perceived a lethal threat.

Daniel Harawa, a lawyer affiliated with the NAACP Legal Defense and Educational Fund, called this defence How to get out of a civil lawsuit 101. He said he fears that as this line of defence succeeds, we almost incentivize police officers to reflexively say, I saw him reaching, I saw an object.

Meanwhile, in California

The cop who shot and killed Benny Herrera used the same defence as Barron. But that was in California, not Texas.

On the morning of Dec. 17, 2011, Herrera was visiting his former girlfriend, Hilda Ramirez. He spent time playing with her children and making them breakfast. Over the meal, Ramirez later told detectives, Herrera said he had a feeling something big was going to happen that day.

Around 2 p.m., he left for home. He returned just 15 minutes later, his demeanour changed paranoid, pacing back and forth, his eyes glossy. Ramirez recognized the signs: Herrera battled substance abuse for much of his life. He had been in and out of prison, too, for armed robbery, drug possession and parole violations. Court records show that in two instances, girlfriends had called the cops because they feared for their safety after Herrera became agitated.

When Herrera saw Ramirez texting her new boyfriend, he punched her in the head, grabbed her cellphone and left. Ramirez called 911 to report what had happened. She told the operator that Herrera had not used a weapon and did not carry one. A dispatcher relayed to the responding officers that Herrera was not known to carry weapons.

Minutes later, Tustin police officers Brian Miali and Osvaldo Villarreal in separate vehicles found Herrera walking along El Camino Real where it runs alongside Interstate 5. A cigarette dangled from Herreras lips. It was a cold and cloudy afternoon, and he kept his right hand in the pocket of his black hoodie.

Dashboard camera video from the scene shows Herrera running away and then turning around and skipping backwards as he veers into the middle of the street. The officers close in, trying to hem in Herrera between the two vehicles. Each cop drew his gun.

Get your hand out of your pocket! Villarreal shouted as his vehicle approached Herrera, who at that instant wheeled around toward Villarreal with his right arm flailing. Almost immediately, Villarreal fired his gun through the cars open passenger side window.

Villarreal told investigators that he felt trapped when Herrera turned toward him and that he believed Herrera was armed and would shoot him. When Herrera charged at me and started to pull his hand out of his pocket, Villarreal told investigators, I knew he had the drop on me, and as I came up, I fired twice.

But Herrera was unarmed. A pack of cigarettes, a syringe, and several coins were recovered near his body. Toxicology tests found methamphetamine and tranquilizers in his blood.

After investigating the incident, the Orange County District Attorneys Office concluded in a January 2013 report that Villarreals use of deadly force was reasonable because he thought Herrera was armed. It recommended no criminal charges.

Herreras family filed an excessive force lawsuit in federal district court in Santa Ana against Villarreal and the City of Tustin.

Villarreal quickly requested qualified immunity. Judge Josephine Staton denied the request. She cited a 9th Circuit ruling, Deorle v. Rutherford, that sets a higher bar for cops than the 5th Circuit precedents cited in Collies case. It says that a simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.

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US: Shot by Police, Thwarted by Judges and Geography - The Wire

By John W. Whitehead

They came again this morning at about 8:00 oclock. A large cargo-type helicopter flew low over the cabin, shaking it on its very foundations. It shook all of us inside, too. I feel frightened I see how helpless and tormented I am becoming with disgust and disillusionment with the government which has turned this beautiful country into a police state I feel like I am in the middle of a war zone.Journal entry from a California resident describing the governments aerial searches for marijuana plants

Backyard gardeners, beware: tomato plants have become collateral damage in the governments war on drugs, especially marijuana.

In fact, merely growing a vegetable garden on your own property, or in a greenhouse on your property, orshopping at a gardening storefor gardening suppliesincredibly enoughcould set you up for a drug raidsanctioned by the courts.

Its happened before.

After shopping for hydroponic tomatoes at their local gardening store, a Kansas family found themselves subjected to a SWAT team raid as part of a multi-state, annual campaign dubbed Operation Constant Gardener, in whichpolice collected the license plates of hundreds of customers at the gardening storeand then investigated them for possible marijuana possession.

By investigated, I mean that police searched through the familys trash. (You can thank the Supreme Court and their1978 ruling inCalifornia v. Greenwoodfor allowing police to invade your trash can.) Finding wet glob vegetation in the garbage, the cops somehow managed to convince themselvesand a judgethat it was marijuana.

In fact, it was loose-leaf tea, but those pesky details dont usually bother the cops when theyre conducting field tests.

Indeed, field tests routinely read positive for illegal drugs even when no drugs are present. According to investigative journalist Radley Balko, its almost as if these tests come up positive whenever the police need them to.A partial list of substances that the tests have mistaken for illegal drugs would include sage, chocolate chip cookies, motor oil, spearmint, soap, tortilla dough, deodorant, billiards chalk, patchouli, flour, eucalyptus, breath mints, Jolly Ranchers and vitamins.

Theres a long list of innocent ingredients that could be mistaken for drugs and get you subjected to a raid, because thats all it takesjust the barest whiff of a suspicion by police that you might be engaged in criminal activityto start the ball rolling.

From there, these so-called investigations followthe usual script: judge issues a warrant for a SWAT raid based on botched data, cops raid the home and terrorize the family at gunpoint, cops find no drugs, family sues over a violation of their Fourth Amendment rights, and then the courts protect the cops and their botched raid on the basis of qualified immunity.

It happens all the time.

As Balko reports, Police have broken down doors, screamed obscenities, andheld innocent people at gunpoint only to discover that what they thought were marijuana plants were really sunflowers, hibiscus, ragweed, tomatoes, or elderberry bushes. (Its happened with all five.)

Surely, you might think, the government has enough on its hands right nowpolicing a novel coronavirus pandemic, instituting nationwide lockdowns, quelling civil unrests over police brutalitythat it doesnt need to waste time and resources ferreting out pot farmers.

Youd be wrong.

This is a government that excels at make-work projects in which it assigns at-times unnecessary jobs to government agents to keep them busy or employed.

In this case, however, the make-work principle (translation: making work to keep the police state busy at taxpayer expense) is being used to justify sending police and expensive military helicopterslikely equipped with sophisticated surveillance and thermal imaging devicesonexploratory sorties every summeragain at taxpayer expensein order to uncover illegal marijuana growing operations.

Often, however, what these air and ground searches end up targeting are backyard gardeners growing tomato plants.

Just recently, in fact, eyewitnesses in Virginia reported low-flying black helicopters buzzing over rural and suburban neighborhoods as part of a multi-agency operation to search for marijuana growers. Oftentimes thesejoint operations involve local police, state police and the Army National Guard.

One woman reported having her tomato plants complimented by the 7 cops that pulled up in my yard in unmarked SUVs, after a helicopter hovered over our house for 20 minutes this morning. Another man reported a similar experience from a few years ago when police showed up inunmarked SUVs with guns pulled. Then the cops on the ground argued with the helicopter because the heat signature in the copter didnt match what was growing.

Back in 2013, an aerial surveillance mission spotted what police thought might be marijuana plants. Two days later, dozens of city officials, SWAT team, police officers and code compliance employees, and numerous official vehicles including dozens of police cars and several specialized vehicular equipment, including helicopters and unmanned flying drones, descended on The Garden of Eden, a 3.5-acre farm in Arlington, Texas, for a10-hour raid in search of marijuanathat turned up nothing more than tomato, blackberry and okra plants.

These aerial and ground sweeps have become regular occurrences across the country, part of the governments multi-million dollar Domestic Cannabis Eradication Program. Local cops refer to the annual military maneuvers as Eradication Day.

Started in 1979 as a way tofund local efforts to crack down on marijuana growersin California and Hawaii, the Eradication Programwent national in 1985, right around the time the Reagan Administrationenabled the armed forces to get more involved in the domestic war on drugs.

Writing forThe Washington Post, Radley Balko describes how these raids started off, with the National Guard, spy planes and helicopters:

The project was called the Campaign Against Marijuana Production, or CAMP In all, thirteen California counties were invaded by choppers, some of them blaring Wagners Ride of the Valkyries as they dropped Guardsmen and law enforcement officers armed with automatic weapons, sandviks, and machetes into the fields of California In CAMPs first year, the program conducted 524 raids, arrested 128 people, and seized about 65,000 marijuana plants. Operating costs ran at a little over $1.5 million. The next year, 24 more sheriffs signed up for the program, for a total of 37. CAMP conducted 398 raids, seized nearly 160,000 plants, and made 218 arrests at a cost to taxpayers of $2.3 million.

The areas larger growers had been put out of business (or, probably more accurately, had set up shop somewhere else), so by the start of the second campaign in 1984, CAMP officials were already targeting increasingly smaller growers. By the end of that 1984 campaign, the helicopters had to fly at lower and lower altitudes to spot smaller batches of plants. The noise, wind, and vibration from the choppers could knock out windows, kick up dust clouds, and scare livestock. The officials running the operation made no bones about the paramilitary tactics they were using.They considered the areas they were raiding to be war zones.In the interest of officer safety, they gave themselves permission to search any structures relatively close to a marijuana supply, without a warrant. Anyone coming anywhere near a raid operation was subject to detainment, usually at gunpoint.

Right around the same time, in the mid-1980s, the federal government started handing out grants to local police departments to assist with their local boots-on-the-ground war on drugs. These grants (through the Byrne Grant program and COPS program, both of which started to be phased out under George W. Bush, only to be re-upped by Barack Obama) could be used to pay for additional police personnel, equipment, training, technical assistance and information systems. However, studies show that while these federal grantsdid not improve police effectiveness or drug deterrence, they did incentivize SWAT team raids.

But how do you go from a war on drugs to SWAT-style raids on vegetable gardens?

Connect the dots, starting with the governments war on marijuana, the emergence of SWAT teams, the militarization of local police forces through the federal 1033 Program, which allows the Pentagon to transfer vast amounts of military equipmentmachine guns and ammunition, helicopters, night-vision gear, armored carsto local police departments, and the transformation of American communities into battlefields: as always, it comes back to the make work principle, which starts with local police finding ways to justify the use of military equipment and federal funding.

Each year, thegovernment spends between $14 and $18 million funding helicopter sweeps and police overtime to help the states track down illegal marijuana plants. These sweeps are even beingcarried out in states where its now legalto grow marijuana.

The sweeps work like this: Local police, working with multiple state agencies including the National Guard, carry out ground and air searches of different sectors.Air spotters flying overhead in helicopters relay their findings to police on the ground, who then carry out a search-and-destroy mission.

Mark my words: the use of police drones will make these kinds of aerial missions even more common.

For the most part, aerial surveillance is legal. As Arthur Holland Michel writes forThe Atlantic: When it comes to law enforcement,police are likewise free to use aerial surveillance without a warrant or special permission. Under current privacy law, these operations are just as legal as policing practices whereby an officer spots unlawful activity while walking or driving through a neighborhood.

There have been a few notable exceptions.

In 2015, the New Mexico Supreme Court ruled thatsurveillance from a low-flying helicopter conducting an aerial search for marijuana by state police and the national guard was illegalunder the U.S. Constitution. The court reasoned that when low-flying aerial activity leads to more than just observation and actually causes an unreasonable intrusion on the groundmost commonly from an unreasonable amount of wind, dust, broken objects, noise, and sheer panicthen at some point courts are cand require a warrant before law enforcement engages in such activity. The Fourth Amendment and its prohibition against unreasonable searches and seizures demands no less.

In Philip Cobbs case, helicopter spotters claimed to have seen two lone marijuana plants growing in the wreckage of a fallen oak tree on the Virginia natives 39-acre family farm.

Cobbs noticed the black helicopter circling overhead while spraying the blueberry bushes near his house. After watching the helicopter for several moments, Cobbs went inside to check on his blind, deaf 90-year-old mother. By the time he returned outside,several unmarked police SUVs had driven onto his property, and police (ten in all) in flak jackets, carrying semi-automatic weapons and shouting unintelligibly, had exited the vehiclesand were moving toward him.

Of course, it was never about the two pot plants.

What the cops were really after wasan excuse to search Cobbs little greenhouse, which he had used that spring to start tomato plants, cantaloupes, and watermelons, as well as asters and hollyhocks, which he planned to sell at a roadside stand near his home. The search of the greenhouse turned up nothing more than used tomato seedling containers.

Nevertheless, police charged Cobbs with misdemeanor possession of marijuana for the two plants they claimed to have found. Eventually, the charges were dismissed but not beforeThe Rutherford Institute took up Cobbs case, which revealed that police hadnt even bothered to secure a warrant before embarking on their raid of Cobbs propertya raid that had to cost taxpayers upwards of $25,000, at the very leastpart of their routine sweep of the countryside in search of pot-growing operations.

Two plants or two hundred or no plants at all: it doesnt matter.

A SWAT team targeted one South Carolina man for selling $50 worth of pot on two different occasions.The Washington Postreports: The SWAT team broke down Bettons door with a battering ram, then fired at least 57 bullets at him, hitting him nine times. He lost portions of his gallbladder, colon, bowel and rectum, and is paralyzed from the waist down. He also suffered damage to his liver, lung, small intestine and pancreas. Two of his vertebrae were damaged, and another was partially destroyed. Another bullet shattered his leg. After security footage showed that most of what police said about the raid was a lie, the copssettled the case for $2.75 million.

Monetary awards like that are the exception, however.

Most of the time, the cops get away with murder and mayhem. Literally.

Bottom line: no amount of marijuana is too insignificant if it allows police to qualify for federal grants and equipment and lay claim to seized assets (theres the profit motive) under the guise of fighting the War on Drugs.

SWAT teams carry outmore than 80,000 no-knock raids every year. The vast majority of these raids are to serveroutine drug warrants, many times for crimes no more serious than possession of marijuana.

Although growing numbers of states continue to decriminalize marijuana use and9 out of 10 Americans favor the legalization of either medical or recreational/adult-use marijuana, the governments profit-driven War on Drugswaged with state and local police officers dressed in SWAT gear, armed to the hilt, and trained to act like soldiers on a battlefield, all thanks to funding provided by the U.S. government, particularly the Pentagon and Department of Homeland Security (DHS)has not abated.

Since the formation of the DHS post-9/11, hundreds of billions of dollars in grants have flowed to local police departments for SWAT teams, giving rise to a police industrial complex that routinely devastates communities, terrorizes families, and destroys innocent lives.

No longer reserved exclusively for deadly situations,SWAT teams are now increasingly being deployed for relatively routine police matters, with some SWAT teams being sent out as much as five times a day. Nationwide, SWAT teams have been employed to address an astonishingly trivial array of criminal activity or mere community nuisances: angry dogs, domestic disputes, improper paperwork filed by an orchid farmer, and misdemeanor marijuana possession, to give a brief sampling.

Unfortunately, general incompetence, collateral damage (fatalities, property damage, etc.) and botched raids tend to go hand in hand with an overuse of paramilitary forces.

In some cases, officers misread the address on the warrant. In others, they simply barge into the wrong house or even the wrong building. In another subset of cases, police conduct a search of a building where the suspect no longer resides.

SWAT teams have even on occasion conducted multiple, sequential raids on wrong addresses or executed search warrants despite the fact that the suspect is already in police custody. Police have also raided homes on the basis of mistaking the presence or scent of legal substances for drugs. Incredibly, these substances have included tomatoes, sunflowers, fish, elderberry bushes, kenaf plants, hibiscus, and ragweed.

All too often, the shock-and-awe tactics utilized by many SWAT teams only increases the likelihood that someone will get hurt with little consequences for law enforcement, even when the raids are botched.

Botched SWAT team raids have resulted in the loss of countless lives, including children and the elderly. Usually, however, the first to be shot are the family dogs.

SWAT raids are usually carried out late at night or shortly before dawn. Unfortunately, to the unsuspecting homeownerespecially in cases involving mistaken identities or wrong addressesa raid can appear to be nothing less than a violent home invasion, with armed intruders crashing through their door.

Thats exactly what happened toJose Guerena, the young ex-Marine who was killed after a SWAT team kicked open the door of his Arizona home during a drug raid and opened fire. According to news reports, Guerena, 26 years old and the father of two young children, grabbed a gun in response to the forced invasion but never fired. In fact, the safety was still on his gun when he was killed. Police officers were not as restrained. The young Iraqi war veteran was allegedly fired upon 71 times. Guerena had no prior criminal record, and the police found nothing illegal in his home.

The problems inherent in these situations are further compounded by the fact that SWAT teams are granted no-knock warrants at high rates such that the warrants themselves are rendered practically meaningless.

This sorry state of affairs is made even worse by U.S. Supreme Court rulings that have essentiallydone away with the need for a no-knock warrant altogether, giving the police authority to disregard the protections afforded American citizens by the Fourth Amendment.

Clearly, as I make clear in my bookBattlefield America: The War on the American People,something must be done.

When the war on drugsa.k.a. the war on the American peoplebecomes little more than a thinly veiled attempt to keep SWAT teams employed and special interests appeased, its time to revisit our drug policies and laws.

You take the Constitution, the Bill of Rights, all the rights you expect to havewhen they come in like that, the only right you have is not to get shot if you cooperate.They open that door, your life is on the line, concluded Bob Harte, whose home was raided by a SWAT team simply because the family was seen shopping at a garden store, cops found loose tea in the familys trash and mistook it for marijuana.

Our family will never be the same, said Addie Harte, recalling the two-hour raid that had police invading their suburban home with a battering ram and AR-15 rifles. AsThe Washington Postreports:

Bob found himself flat on floor, hands behind his head, his eyes locked on the boots of the officer standing over him with an AR-15 assault rifle. Are there kids? the officers were yelling. Where are the kids? And Im laying there staring at this guys boots fearing for my kids lives, trying to tell them where my children are, Harte recalled later in a deposition on July 9, 2015. They are sending these guys with their guns drawn running upstairs to bust into my childrens house, bedroom, wake them out of bed.

It didnt matter that no drugs were foundnothing but a hydroponic tomato garden and loose tea leaves. The search and SWAT raid were reasonable, according to the courts.

Theres a lesson here for the rest of us. As Bob Harte concluded: If this can happen to us, everybody in the country needs to be afraid.

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Attack of the tomato killers: The Police State's war on weed and backyard gardens - Augusta Free Press