Monthly Archives: September 2021

A Saginaw resident says the parking tickets she acquired violated her constitutionalrights.

Alison Taylor had an assigned parking spot, but she says it was not being maintained so she had to park in the street. While doing so she received and paid for 14 parking tickets from the city. Before Taylor received each ticket, a parking attendant marked her vehicle with chalk to track how long it had beenthere.

The significance of this case is that even when the government is violating your rights a little bit, versus a whole lot, its still problematic and still should not be done.Philip Ellison, Alison Taylorsattorney

Taylor decided to sue the city in a class action lawsuit claiming that chalking tires to track how long a car has been parked is a violation of the Fourth Amendment, which protects against unreasonablesearches.

The significance of this case is that even when the government is violating your rights a little bit, versus a whole lot, its still problematic and still should not be done, says Taylors attorney, PhilipEllison.

The case was thrown out at first but won an appeal. Then it was thrown out again, but just recently won a second appeal with the 6th U.S. Circuit Court inCincinnati.

WDETs Laura Herberg spoke with Ellison about the case. Click on the audio player to hear that conversation or read a transcript, edited for brevity andclarity,below.

Laura Herberg, 101.9 WDET: What made you and your client think you had a casehere?

Philip Ellison, Taylors attorney: So for many years in the United States, the law on the Fourth Amendment was whether the activity or the area that was sought to be searched would be deemed reasonably private based on community expectations. In 2012, a U.S. Supreme Court case came out called Jones. And the Jones decision said, in addition to all the reasons for all the places where we say that we treat it with the reasonable expectation of privacy, were also going to say that when the government trespasses onto your property for the purpose of extracting information for enforcement thats asearch.

And lets back up just a little bit. For folks who arent really familiar with the Fourth Amendment, can you talk aboutwhat its intended todo?

The Fourth Amendment is a constitutional amendment. It protects people from unreasonable searches of their persons, houses, papers and effects unless the government gets a warrant first. And what thatsdesigned to do is to put somebody in between law enforcement officials, or what they called back in the day the constables, versus the citizenry. Essentially cops and constables cant come busting in your door or come busting in your horse and carriage without someone else reviewing the need for that, which would have been a judge or a magistrate signing off onthat.

Well, as the years have gone by and as our constitutional laws developed there have been some exceptions that have been created for when law enforcement no longer needs to get a warrant. But for the most part, when a law enforcement officer wants to search your private property they have to get a warrant from a judge. And if they dont get a warrant from a judge that generally violates the FourthAmendment.

How are you arguing that a chalk mark on a car qualifies as an unconstitutionalsearch?

Well, so the case in Jones was one where the law enforcement had placed a GPS tracking device physically on the vehicle of Mr. Jones wifes car. And so when Mr. Jones started driving around the police were tracking where he was or where he wasnt based on that GPS tracking device. And so when we looked at that case, we thought,isnt chalking essentially the same thing, a low-tech version, but the same thing? Its a device thats hooked to a vehicle to tell where someone is or isnt for a certain period of time. So we drew what we call in the legal business an analogy. We analogized it to the same circumstances. Chalking is not a GPS tracking device. But the principle is the same. Its the government tracking where you are and where you arent for the purposes of law enforcement or to enforce the law in some way. So, we came up with this idea and argued its very similar, and for the most part, at least for the appellate courts, its been verysuccessful.

It is a big deal, because its that old slippery slope argument. If you let them do A, then theyre going to want to do B. And then if you want to do B, theyre going to want to do C. And before you know it our rights under the Constitution have been completely eroded. PhilipEllison

What did the courtsay?

Well, this time around the court held that the reason that the lower federal court threw out our case the second time was anerror.

The lower court decided that the City of Saginaw could conduct chalking then later issue tickets based on a concept called the administrative search doctrine. An administrative search doctrine is very similar to why, for example, the government can come inspect power plants or the Liquor Control Commission can inspect bars. Theres a set regulatory way in which we dont require those types agencies to get a warrant ahead of time because basically you know when theyre coming, they announce when theyrecoming.

We argue that chalking is not the same thing. Here the government official, being the parking enforcement officer, comes through and just marks everybodys car with or without notice and just shows up to do that. And when youre trespassing on a car, much like the tracking device from Jones to see where someone is or where someone isnt, that provides the basis by which we can say the administrative search doctrine does not apply. And thats what the Sixth Circuitruled.

So these are all exceptions to the warrant requirement. The last time around, there was a couple other exceptions, one was called community caretaking, another one was called the automobile exception. The court there in the previous appeal said those dont apply. In this case, they held that the administrative search doesntapply.

So basically, were slicing the salami down to not much left for the city to be able to argue to make a sandwich out of to say theres no casehere.

Is this all about parking tickets and chalking or whats the significance of thiscase?

Well, the significance of this caseis that even when the government is violating your rights a little bit, versus a whole lot, its still problematic and still should not be done. I know theres a lot of folks when I review the comments online to some of the stories people post about this they say, Well, this is kind of ridiculous. Of all the problems we have in the world, why are we focused on chalking tires? Its no big deal. But it is a big deal, because its that old slippery slope argument. If you let them do A, then theyre going to want to do B. And then if you want to do B, theyre going to want to do C. And before you know it our rights under the Constitution have been completelyeroded.

Whats next for your client and for thecase?

Well, we head back to the local court and were back down for another round of legal cases and arguments to see how the case will develop and if we ultimately succeed in the case. Because interestingly, the Sixth Circuit didnt grant us the full win. They just simply said what the judge below did was an error. And we sent it back and we continue on with the case. We pick up right where we leftoff.

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A Saginaw Woman Who Sued the City Over How It Issues Parking Tickets Continues Fight in Court - WDET

The formal investigations into the fatal shooting of Ashli Babbitt by U.S. Capitol Police Lt. Michael Byrd on Jan. 6, 2021, have come to a close. The Department of Justice announced in April that it would not pursue criminal charges, and the Capitol Police have announced that Byrds actions were lawful and within Department policy. Babbitts family has filed a wrongful death lawsuit, and Byrd has now gone public, sitting for an interview with NBC Nightly News.

Public discussion, however, is ongoing, and in that sphere the shooting of Ashli Babbitt has become particularly polemical. The controversy itself is familiarpolicing and police homicides have been under a renewed spotlight since the summer of 2014, and especially the summer of 2020but the public response to this particular shooting has played out in a unique way. Many pundits and commentators on the right have bucked their general tendency toward police apologetics by celebrating Babbitt, who entered the Capitol wearing a Trump flag as a cape. For example, Fox News opinion host Tucker Carlson has framed the question of Babbitts death as whether anonymous federal agents [are] now allowed to kill unarmed women who protest the regime, even parroting Russian President Vladimir Putins criticism of the death as an assassination. On the left, reliable police critics have been largely silent, their statements essentially limited to the (accurate) observation that Babbitt was among a group of insurrectionists who illegally and violently breached the Capitol building and was shot while pushing through a barricaded door while lawmakers were being evacuated. As CNN summarized, To [some] on the left, shes a domestic terrorist who got what she deserved. To a significant and obvious extent, the partisan divide in perceptions of Babbitts death reflects the current ideological division in the country.

But the shooting of Ashli Babbitt is more complicated than ideologically grounded conclusions suggest. We are scholars who have studied policing for a combined four decades and experts in police tactics and the use of force who have testified in state and federal courts, and weve noticed legal and factual complexities that have gone largely unacknowledged. Applying the typical legal framework, we have serious reservations about the propriety of the shooting. We also have some doubts about whether the typical legal framework is the right one to apply.

As weve explained previously, an officers use of force is regulated by multiple legal standards, agency policies and informal practices. In most cases, an officers actions must be reviewed to determine whether they were consistent with the Fourth Amendment; constituted a federal crime; violated state criminal law; were actionable under state tort law; were contrary to agency policy, procedure, or training; or failed to live up to community expectations. Some of those issues are irrelevant to the Babbitt shooting, and others are beyond the scope of our review here, which is limited to constitutionality and whether there was a federal crime. Even with these limited legal issues, though, and even looking only at Byrds decision to shoot rather than at all the factors that led up to and may have contributed to the shooting, complexities abound.

The first layer of complexity comes from a series of distinct but interrelated legal questions implicated in this case: whether Byrds use of force was constitutional, whether it violated federal law, and whether prosecutors could prove any violation beyond a reasonable doubt. The second arises from the observation that this shooting happened in a unique context: the physical invasion of the U.S. Capitol. We see some potential for that fact to shift the otherwise applicable legal rules.

Applying Settled Fourth Amendment Law

Police uses of force are regulated by the Fourth Amendments prohibition of unreasonable seizures. For constitutional purposes, a seizure occurs when an officer applies physical force to the body of a person with the intent to restrain the persons freedom of movement. One of us has criticized this legal formulation, which gives rise to a number of unanswered questionswhether uses of force that affect someone other than the intended target constitute a seizure, for examplebut this case, at least, is relatively straightforward: Shooting Babbitt to prevent her from making it through the door certainly constituted a seizure for constitutional purposes.

Determining that Byrd seized Babbitt is only the first step, though. In a highly influential Fourth Amendment case, Graham v. Connor, the Supreme Court held that, as a seizure, an officers use of force must be objectively reasonable. In another, Tennessee v. Garner, the Court held that the use of deadly force is reasonable when officers have probable cause to believe that someone poses an imminent threat of death or serious physical injury. (The court used the term immediate; we use immediate and imminent synonymously.)

Drawing from common law, the policing community has defined a threat as imminent when someone has the ability, opportunity and intention to cause the specific harm at issue (here, death or serious physical injury). Ability refers to the persons capacity to cause the identified harm and requires asking whether the person is physically capable, at the time, of inflicting the harm. For example, a person holding a knife can use it as a weapon, so the individual has the ability to cause serious injuries or death. Opportunity refers to the subjects proximity to a potential target and requires asking whether anyone is vulnerable, at the time, to the specific harm. For example, a person with a knife who is standing immediately next to an officer has both the ability and the opportunity to attack the officer with it, while an individual with a knife who is 50 feet away has the ability, but not the opportunity, to do so. Intent refers to the persons apparent desire to cause the identified harm and requires asking whether the person wants, at the time, to cause the harm. For example, a person who is physically close to an officer while cutting cucumbers with a knife in the kitchen might have the ability and opportunity, but not the intention, to cause death or serious physical injury.

Importantly, the Graham court held that the reasonableness of force requires looking at the facts not as they actually were, but as they would have appeared to a reasonable officer on the scene. As courts have made clear, this standard allows for mistaken perceptions and conclusions so long as all such errors were reasonable. For example, if an individual is stabbing at officers with a shiny, rigid object that a reasonable officer would believe is a knife, then the courts will assess the reasonableness of the officers actions as if the object were a knife even if it later turns out to have been a harmless rubber toy.

In assessing what a reasonable officer would have been aware of, its important to keep in mind that use-of-force situations can be chaotic. As the Supreme Court described it, [O]fficers are often forced to make split-second judgments [] in circumstances that are tense, uncertain, and rapidly evolving. This description isnt always accurateindeed, as one of us has written elsewhere, this description is simply wrong almost all the timebut it seems generally apt in this case.

One additional point bears mentioning. Most police uses of force, including the discharge of a firearm, are individualized; they are justified only if a specific target presents the appropriate level of threat. Officers absolutely cannot shoot indiscriminately into a mob, for example, even if some members of a mob absolutely present an imminent threat of death or great bodily harm.

Putting that framework together and applying it to this case, the constitutional question is whether a reasonable officer in Byrds position could have believed, in light of the cognitive and perceptual challenges that existed at the time, that Babbitt had the ability, opportunity, and apparent intention to cause death or great bodily harm. The government has not yet released sufficient information to definitively answer that question, but there are reasons to doubt that the answer is an obvious yes.

Ability

Officers must base their conclusions and actions on specific and articulable facts. It is not enough to say that someone might have had a gun, for example. Officers must be able to explain the specific reasons they believed that someone had a gun at the particular time in question. We have very limited information about the specific and articulable facts that would have been available to a reasonable officer in Byrds position, however, because no comprehensive report has yet been issued.

We now know that there were eight separate breaches in the Capitol, and that some of those breaches involved insurrectionists armed with firearms, bats, and chemical sprays, and using flagpoles, fire extinguishers, and skateboards as weapons of opportunity. We know that officers were violently assaulted with weapons including with some of those weapons (e.g., chemical spray, a fire extinguisher and a TASER). We know that officers, by their own descriptions, were grabbed, beaten, crushed ... between doors and bashed ... in the head. And we know, from Byrds description, that he was at least generally aware of the violent and chaotic situation. In his interview with NBC News, he described hearing about the breaches of different barricaded areas, officers being overrun, officers being down, as well as reports of shots fired through the House main door onto the floor of the Chamber (the reports of shots being fired later turned out to be false, but nevertheless it was information a reasonable officer would have considered at the time).

Regarding the mob that gathered in front of the Speakers Lobby, we know that some of them used a wooden flagpole, a helmet, and their own hands and feet in an attempt to break through the barricaded door. We know that several officers were positioned in front of the door to the Speakers Lobby and that the crowd yelled at them but did not physically attack them. We know that the uniformed officers moved out of the way of the door when other officers, equipped with tactical gear, were arriving behind the group of rioters. But we dont know what Byrd was aware ofor, more precisely, what the reasonable officer in his position could have been aware ofregarding the specific situation at the door to the Speakers Lobby. Byrd stated in his NBC News interview that it was impossible for [him] to see what was on the other side of the door. We do not yet have sufficient information to determine whether the reasonable officer would have known that there had been officers stationed outside the door and, if so, whether they had been evacuated or overwhelmed.

No specific information has yet been released that would support the conclusion that Babbitt, individually, had the physical ability to kill or seriously injure someone. The only available informationByrds statement in the NBC News interviewis that he could not fully see [Babbitts] hands or what was in the backpack. Thats important. Officers cannot rely on generalized assumptions. They must base their conclusions on specific and individualized facts. And while it is not unheard of for an unarmed person to pose a threat of serious injury or death, no specific facts have yet been released indicating that Babbitt had the ability to do so.

Without additional information indicating that a person is likely armed, officers cannot conclude that someone has a weapon just because they cannot see definitively that the person does not have a weapon. For example, had Byrd stated that all the rioters he had seen up until that point were armed, the fact that Babbitt was among the rioters could provide some support for believing that she, too, was armed. The same might be true if Babbitt made specific statements or movements indicating that she was armed. But that is not the case.

It cannot be denied that the situation generally was chaotic and violent. As yet, though, the limited information that has been made public does not offer much, if any, support for the conclusion that a reasonable officer would have believed that Babbitt, individually, had the physical ability to cause serious injury or death at the time she was shot.

Opportunity

Officers should use tactics and communications to reduce the likelihood that they will use force, but the constitutional rules do not require officers to wait until a threat has fully manifested before using force. In other words, officers are empowered to use force against an imminent threat of harm, not just the actual infliction of harm. For example, if officers wait until that person with the knife gets within arms reach and starts stabbing, it might be too late to prevent the person from killing or seriously injuring someone. In assessing whether anyone was in a vulnerable position, the question is not just whether Babbitt had the opportunity to seriously injure or kill anyone as she was climbing through the door but, rather, whether officers would have been able to stop her from doing so if she had gotten to the other side. In short, would she have had an uninterrupted opportunity had she not been shot?

In this case, we know that lawmakers and other officials were evacuated through the Speakers Lobby, on the other side of that barricaded door, mere minutes before the shooting. We do not know, however, who else was in the immediate area or, most importantly, who Byrd might reasonably have believed was in the immediate area. In an interview with the media, Rep. Markwayne Mullin said that there were members [of the House] still in the balcony at the time of the shooting and that he, personally, was in the area immediately afterward. It is worth pointing out, however, that no comprehensive accounting has been released concerning who else, if anyone, was in the House chamber or was accessible from the Speakers Lobby at and shortly before the time of the shooting.

Again, we need more information. If lawmakers and others were still in the immediate areain the House chamber, say, or being evacuated through the Speakers Lobbyit is highly likely that a reasonable officer in Byrds position could have concluded that they were vulnerable to attack should Babbitt breach the doors. But if he were not aware of lawmakers or other potential targets in the area, then there is reason to doubt that Babbitt had the opportunity to kill or seriously injure anyone.

In the same vein, we lack information about whether there were reasonable alternatives to the use of deadly force. If, for example, officers could have physically prevented Babbitt from making it through the door or taken Babbitt into custody as she came through the door while still maintaining the barricade to allow for the safe evacuation of anyone else in the area, it would suggest that Babbitt did not have the opportunity to inflict serious injury or death. If, by contrast, the reasonable officer on the scene would have believed that they could not stop Babbitt from getting to the evacuees if she came through the door, the argument that she had the opportunity to kill or seriously injure becomes much stronger.

Intention

In most cases, this is the most difficult aspect of assessing whether someone presents an imminent threat. Officers, after all, cannot peer into the depths of someones mind to gauge the persons intentions; they must rely on behavioral indicators. In this case, however, the analysis is rather more straightforward: Babbitt was part of a mob that had breached the Capitol and was trying to break through the barricaded door to the Speakers Lobby. Babbitt herself was attempting to climb through a barricaded door that had been broken by members of her mob. Although Byrd said in his NBC News interview that he did not know what the intentions were, it seems highly likely that a reasonable officer in Byrds position, knowing the general situation as he described it and observing her actions, could have concluded that Babbitt had the intention to kill or seriously injure lawmakers or others.

So, considering these three factors, could a reasonable officer in Byrds position have believed that Babbitt had the ability, opportunity, and intention to kill or seriously injure someone? Based on the limited information currently available, we have serious reservations about whether that question can be answered in the affirmative, especially with regard to ability and opportunity.

Even assuming, for the sake of argument, that Byrd violated the Fourth Amendments prohibition on unreasonable searches and seizures, determining whether criminal prosecution was warranted requires navigating an additional layer of complexity. The most applicable statute, 18 U.S.C. 242, makes it a crime to willfully subject any person ... to the deprivation of any rights ... secured or protected by the Constitution.

To be convicted under this statute, Byrd not only would have had to violate Babbitts Fourth Amendment rights but he also would have had to do so willfully. Federal courts have interpreted this as a specific intent requirement. As Stanford Law professor David Sklansky pointed out seven years ago:

Exactly what that means has never been clear. It doesnt mean that the officer had to be thinking about the Constitution, but it is not enough that the officer intentionally did something that a judge or jury later decides was unconstitutional. At a minimum, federal case law suggests that the officer must have acted in open defiance or reckless disregard of a clearly articulated constitutional prohibition. And even that may not be enough. Most federal courts require proof that the officer acted with a bad purpose or evil motive, by which they mean some kind of an intention to deprive the victim of a constitutional right.

Thats a high bar. Even if the shooting were unconstitutional, it was not criminal if Byrd shot Babbitt because he made a good-faith (if unreasonable) mistake or if he simply overreacted. As the Department of Justice correctly summarized in a press release, [E]vidence that an officer acted out of fear, mistake, panic, misperception, negligence, or even poor judgment cannot establish the high level of intent required. Byrd would have had to know that he was in the wrong, a point he vigorously denied in his interview.

Of course, prosecutors bring charges every day against defendants who vigorously deny wrongdoing. In most of those cases, though, there is plausible evidence of guilt notwithstanding the defendants denials. Prosecutors have an ethical obligation to seek or file criminal charges only if the prosecutor reasonably believes ... that admissible evidence will be sufficient to support conviction beyond a reasonable doubt. They cannot just bring charges based on their personal belief that there was a criminal intent. They have to be able to prove it.

Given the backdrop against which Byrd acted and the limited information available, we do not see how prosecutors could reasonably believe they could establish a criminal violation in this case even if Byrds actions ran afoul of the Fourth Amendment.

A slightly stronger argument can be made for a criminal prosecution under the Code of the District of Columbia, which has homicide offenses that mirror those of many states and have a different and less demanding standard than 242. But the Justice Department press release addressed this point as well, stating that there was no evidence that Byrd did not reasonably believe that it was necessary to do so in self-defense or in defense of the Members of Congress and others evacuating the House Chamber. In other words, the prosecutors did not believe that they could overcome a self-defense or defense-of-others claim. We cannot fully assess the strength of this conclusion without access to facts that, thus far, have not been publicly released.

Is Settled Law the Correct Law?

One of the complex issues in this case is that it didnt happen in the context of a normal police encounter. Thats potentially very important. As the Supreme Court articulated, the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individuals Fourth Amendment interests against the countervailing governmental interests at stake. As University of Virginia law professor Rachel Harmon has identified, in use of force cases, the governments interest is generally limited to law enforcement, order maintenance and public safety, and officer safety.

The Supreme Court has identified some contexts in which the Fourth Amendment just applies differently than normal. The Fourth Amendment rules that generally require reasonable suspicion, probable cause, or a warrant do not apply in the same way, for example, when government agents are searching someone at a border. Or in public schools. And they do not apply at all in prisons. In each of these cases, there are governmental interests beyond the normal interests in law enforcement, order maintenance and public safety, and officer safety.

We do not mean to suggest that the breach of a government building will fundamentally change the constitutional analysis. Such actions are unusual but not unknown, as demonstrated by the armed anti-public health protesters who forced their way into the Oregon state capitol in December 2020. Indeed, creating a special government building rule would seem deeply problematic in light of the long history of both left-wing and right-wing protests against government institutions, from the anti-war and civil rights sit-ins of the 1960s and 1970s to the 2016 standoff at the Malheur National Wildlife Refuge and protesters taking control of police precinct buildings in Seattle and Minneapolis in 2020. Although that backdrop is certainly relevant to the determination of whether an officer acted reasonably, we think it unlikely to introduce new or different interests beyond the normal scope of Fourth Amendment protection.

But this case is unique. This was not a typical arrest situation or even the type of protest with which police agencies are familiar. This was not even the physical invasion of a random government building that created a threat of violence to building occupants.

This was an invasion of the Capitol by a throng of people openly attempting to prevent the Electoral College from engaging in its lawful functions so that their preferred candidate would be declared the winner of a presidential election. That fits neatly within almost any dictionarys definition of insurrection. Members of the insurrectionist mob had erected a gallows across from the Capitol building; chanted, Hang [Vice President] Mike Pence; and were equipped with flex-cuffs.

Moreover, the elected officials inside the building at the time included the vice president of the United States and federal lawmakers who sit in oversight of the U.S. military and intelligence communities. The courts could well conclude that the ordinary government interest in preventing violent criminal activity, such as kidnapping, is supplemented by a national security interest that simply is not implicated in other contexts. Historical review shows that national security interests affect the manner in which the Fourth Amendment applies.

Under the circumstances of this case it is at least plausible that courts will not simply apply the familiar legal framework that we discussed in the preceding section. The unprecedented nature of the invasion of the Capitol may well require a different analytic framework, leading courts to either relax the standard Fourth Amendment definition of reasonableness or put a heavier thumb on the scales when the governmental interests are balanced against the nature of officer actions.

Summing Up

The invasion of the U.S. Capitol by a mob of insurrectionistshundreds of whom have been criminally chargedshocked the nation and the world. Although we must wait for the results of a comprehensive investigation before coming to any definitive conclusions, the Capitol Police may have been handicapped by failures in intelligence-gathering, in risk assessment, in planning, and in implementation. There is no doubt that manytoo manyCapitol officers went to hell and back, as Officer Michael Farone described in his testimony.

The politics of the situation have, unfortunately, colored the public response. And they have done so in an unusual way. With some notable exceptions, Republicans have downplayed the severity of the threat, and Democrats have defended the police actions. That is particularly true with regard to the shooting of Ashli Babbitt.

In this post, we attempted to bring a balanced perspective to the shooting, applying the now-familiar constitutional standard that regulates the use of deadly force. The limited public information that exists raises serious questions about the propriety of Byrds decision to shoot, especially with regard to the assessment that Babbitt was an imminent threat. To belabor the obvious, though, we cannot definitively analyze a situation without the relevant facts, and there is a frustrating shortage of facts. But there are enough facts to conclude that even if Byrd violated Babbitts Fourth Amendment rights, it is highly unlikely that he could be ethically charged with, let alone convicted of, a crime.

Those conclusions, tentative as they are, assume that courts will apply the legal rules that usually apply to police shootings. Given the unique context present here, though, we would not be surprised if that turned out not to be the case.

See original here:
Evaluating the Police Shooting of Ashli Babbitt - Lawfare

I get slightly amused when I hear someone say they will not receive a COVID-19 vaccination because the shots contain a microchip that allows Bill Gates and the government to monitor their location. Bill Gates could care less about what you do. But the government ...?

Along with being perplexed, I admit to being slightly amused when I hear someone say they will not receive a COVID-19 vaccination because the shots contain a microchip that allows Bill Gates and the government to monitor their location 24/7.

Friends, I have two bits of news for you. First, Bill Gates could care less about what you do. Second, if you have a cell phone or other internet-connected devices like an Apple watch, or use cloud-based apps or drive a car with a GPS system, the government, including law enforcement, can already track where you are, where you have been and when you were there.

You, me, just about everyone other than Luddites living in caves, are traceable because cellphone and wireless service providers, services like OnStar, and tech companies like Google are able to store historical and real-time location data that is generated when our devices connect to cell towers or our vehicles are linked to GPS satellites.

And if you think turning all this stuff off enables you to hide, you are sorely mistaken. The info is still being collected and stored, often for as long as five years.

The untold terabytes of location data being gathered every second of every day has proven to be a powerful crimefighting tool. Historical or real-time cell-site location information (CSLI) and GPS satellite signals can help police pinpoint where a suspect is or has been. If there is no suspect, tower dump and geo-fencing reverse location searches can identify all the devices that were in or near the scene of a crime when it occurred.

Police can then use traditional investigatory techniques to nab the offender.

But as is often the case when disruptive technology intersects with the law, the rapidly growing use of data collection and analysis raises a number of serious Constitutional issues. Chief among them: Is location data protected by the Fourth Amendments prohibition against unreasonable search and seizure?

The answer thanks to the Supreme Courts 5-4 ruling in Carpenter v. United States, has been an equivocal Yes! since 2018.

Prior to the Carpenter case, all police needed to obtain a warrant for location data was a "reasonable basis" to believe the material was relevant to an ongoing criminal investigation. In what has become a landmark decision, the majority held that James Carpenters historic CSLI data was indeed protected by the Fourth Amendment and therefore could only be accessed if the government had probable cause to believe it bore evidence of a crime.

Carpenters conviction for stealing cell phones how is that for irony was overturned as a result of the imposition of this much more rigorous evidentiary standard.

It is important to note, however, that Carpenter applies only to a specific individuals historic CSLI data. Law enforcement can still use the highly subjective reasonable basis standard to obtain the information needed to conduct tower dump and geo-fence-based reverse location searches for now.

I added that caveat because litigation related to this aspect of data retrieval and usage is now working its way through state and federal courts.

I will almost certainly address this topic again as the law evolves. Until then, remember, someone is watching you, and it is not Bill Gates.

Read the rest here:
YOUR LEGAL RIGHTS | Is it legal for the government to use my phone to track my whereabouts? - Mahoning Matters

from the 'fast-moving-situation'-means-more-than-a-cop-shooting-quick dept

I don't often write about cops killing dogs. It's not that it's a rarity. It actually happens all the time.

Laurel Matthews, a supervisory program specialist with the Department of Justice's Community Oriented Policing Services (DOJ COPS) office, says it's an awful lot. She calls fatal police vs. dogs encounters an "epidemic" and estimates that 25 to 30 pet dogs are killed each day by law enforcement officers.

Cops kill dogs at an alarming rate. And it remains alarming, despite the increased possibility of them encountering actually dangerous dogs. True, cops are often the first to respond to calls about stray dogs. But they also put themselves in danger by wandering into fenced areas meant to keep dogs contained when pursuing suspects or just meandering around in hopes of finding something that justifies their intrusion.

More than half of our federal court districts have held that killing or wounding a family pet is a "seizure" under the Fourth Amendment. Nonetheless, this behavior persists, with cops seemingly willing to shoot any animal that heads towards them, even when propelled by nothing more than their innate friendliness and curiosity.

Being trigger-happy in the presence of animals can have more serious consequences. Cops have wounded and killed human beings while trying to shoot dogs that had the temerity to ignore shouted orders.

A recent lawsuit [PDF] has highlighted another senseless killing of a family pet by a cop. (While multiple outlets covered this lawsuit, Law and Crime actually posted the complaint, which is why we're linking to that site.)

According to the lawsuit, Wendy Love and Jay Hamm had stopped in the parking lot of a vacant business to do some work on a second-hand ice machine and give their three dogs a chance to stretch. The business had no name on the front and all the windows were covered. There were no other people or vehicles in the lot.

However, the business owner was apparently monitoring still-live CCTV cameras. He called the Loveland (CO) police department, asking them to send someone out to remove them from the premises, claiming he was concerned the couple was going to tamper with his locked dumpster. The couple was parked nowhere near the apparently-sacred dumpster nor did they approach it at any time, something admitted by the business owner during his call to dispatch.

Officer Mathew Grashorn was the first to arrive. Within 13 seconds, he had exited his vehicle and mortally wounded the couple's 14-month-old dog.

There's body cam video of the shooting.

It happens so fast it's entirely contained in the camera's 30-second rolling buffer, hence the initial lack of sound. What happens in these 15 seconds is the officer's arrival, which is followed almost immediately by the officer brandishing his weapon. It's unclear which threat justified this action. Was it the people hanging out in a vacant parking lot? Or was it the happy dog approaching him at a medium lope? Whatever it was, it resulted in the dog being shot by the officer. And those shots resulted in the dog dying, euthanized four days later because of the severity of the wounds.

There's something incredibly eerie about the recording. The violence is silent. That disturbing silence is finally interrupted by the distressed shouts of Wendy Love, the first of which is rendered soundless by the body cam's built-in recording features.

This probably won't have much legal relevance, but it's still worth pointing out: the couple accuses the city of fostering this shoot-first behavior in Loveland police officers by continually stressing the importance of protecting local businesses. As the lawsuit notes, this "business-first" mentality has resulted in other acts of police violence. (There are recordings of these incidents as well.)

On June 26, 2020, Walmart suffered no loss when dementia-sufferer and 73-year-old woman Karen Garner walked out of the store without paying for $13.88 of items. When confronted, she gave the items back and attempted to pay for them. Walmart refused and instead called LPD to deal with it. LPD sent multiple officers, including Sergeant Metzler, to locate and tackle Ms. Garner, causing her to suffer a broken and dislocated shoulder. The multiple officers involved did this knowing that Walmart hadnt suffered any loss. They did it pursuant to the aforementioned policy of making large, demonstrative showings of allegiance to Loveland businesses.

On July 20, 2020, Target contacted Loveland PD to deal with a man (Keenan Stuckey) suffering from mental health issues in their parking lot, requesting that they arrest or remove him even though he was breaking no laws and bothering nobody. Loveland PD sent six officers there in minutes, and they promptly brutalized the man with batons, kicking him, punching him, and doing a pile-driver type of jump atop his lifeless body.

The lawsuit also notes the Loveland PD's internal investigation cleared the officer of any wrongdoing, claiming he reasonably feared for his safety. But if the officer was fearful, he didn't show it (other than the immediate use of his weapon). He could have retreated to the safety of the car he had just exited. He could have stepped behind his still-open door. He could have used any less-lethal weapon to subdue the animal. But he chose to kill.

As if this isn't enough to show just how dangerous law enforcement officers can be, there's this:

Loveland sergeants and officers next discussed together concern that Ms. Love and Mr. Hamm had mentioned sharing what had happened with the media. Sergeant Metzler told Officer Grashorn that since [Hamms] saying hes going to go to the press, we better scratch him a ticket for something.

The officers decided they would claim that Herkimer [the dog shot by the officer] had attacked Officer Grashorn. They did in fact tell this lie over and over again. They told this lie to Larimer County Animal Control and to the veterinarians attempting to treat Herkimer.

[...]

This lie was also at the foundation of the Defendant officers decision to give Mr. Hamm a ticket for having a dangerous dog, a charge that the Larimer County District Attorneys office later dismissed as not having any basis in fact.

It's not enough that officers can kill people (or their pets) with near impunity. They also have the power to punish people for having their pets killed by an officer. In this case, it appears this was done to get out ahead of the pet owner's attempt to tell his story via social media. With the only recording being in police possession, the "our word against theirs" would have ensured the cops' narrative -- the one about an unsecured, "dangerous" dog -- would receive the most air time and been immediately granted the most credibility.

That's an absurd amount of power. And it comes with so very little accountability. The lawsuit -- even with the seemingly-damning recording -- is still a longshot. And the couple doesn't get to use tax dollars to move their allegations forward. It's coming out of their own pockets while the city gets to defend itself and its officers using unlimited funds provided by Loveland residents. And even if the officer is found to be at fault, he'll likely be indemnified, meaning it won't cost him anything either. The city will just take that judgment money from taxpayers as well.

The whole thing was recorded. There can be no claims that something is being "taken out of context." It shows everything the cop did, which was respond to a possible trespass call with deadly force -- all within 15 seconds of arriving on the scene. The danger was entirely imagined. And it was justified by retconning the encounter with the issuing of a "dangerous animal" citation. It's ugly enough that a pet was killed for no justifiable reason. Attempting to punish the pet owner for witnessing an unjustified act of violence is disgusting.

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Filed Under: body cameras, dogs, loveland pd, police

See original here:
Body Cam Video Shows Cop Killing A Harmless Dog Within 15 Seconds Of Arriving At The Scene - Techdirt

Enlarge / Los Angeles Police Department officers patrol Union Station on Wednesday, August 11, 2021.

The Los Angeles Police Department (LAPD) instructs officers to collect social media account information and email addresses when they interview people they have detained, according to documents obtained by the Brennan Center for Justice at NYU School of Law.

The Brennan Center filed public records requests with LAPD and police departments from other major cities, finding among other things that "the LAPD instructs its officers to broadly collect social media account information from those they encounter in person using field interview (FI) card." The LAPD initially resisted making documents available but supplied over 6,000 pages after the Brennan Center sued the department.

One such document, a memo from then-LAPD Chief Charlie Beck in May 2015, said that "When completing a FI report, officers should ask for a person's social media and e-mail account information and include it in the 'Additional Info' box." That includes Twitter, Instagram, or Facebook profiles, the memo said.

This may be an unusual policy even though the LAPD has been doing it for years. "Apparently, nothing bars officers from filling out FI cards for each interaction they engage in on patrol," wrote Mary Pat Dwyer, a lawyer and fellow in the Brennan Center's Liberty and National Security Program. "Notably, our review of information about FI cards in 40 other cities did not reveal any other police departments that use the cards to collect social media data, though details are sparse." The center reviewed "publicly available documents to try to determine if other police departments routinely collect social media during field interviews" but found that "most are not very transparent about their practices," Dwyer told Ars today.

LAPD field-interview cards.

LAPD

While people can refuse to give officers their social media account details, many people may not know their rights and could feel pressured into providing the information, Dwyer told Ars. "Courts have found that stopping individuals and asking for voluntary information doesn't violate the Fourth Amendment and people are free not to respond," she told us. "However, depending on the circumstances of a stop, people may not feel that freedom to walk away without responding. They may not know their rights, or they may be hoping to quickly end the encounter by providing information in order to ensure it doesn't escalate."

The Brennan Center has also been seeking police department records since January 2020 from Boston, New York City, Baltimore, and Washington, DC, but is still fighting to get all the requested information.

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A field interview is defined as "the brief detainment of an individual, whether on foot or in a vehicle, based on reasonable suspicion, for the purpose of determining the individual's identity and resolving the officer's suspicions concerning criminal activity," according to an International Association of Chiefs of Police model policy for field interviews and pat-down searches. Field-interview cards can play a significant role in investigations.

"These cards facilitate large-scale monitoring of both the individuals on whom they are collected and their friends, family, and associateseven people suspected of no crime at all," Dwyer wrote. "Information from the cards is fed into Palantir, a system through which the LAPD aggregates data from a wide array of sources to increase its surveillance and analytical capabilities."

Officers apparently have wide discretion in choosing which people they record information on and, in some cases, have falsified the inputted information. Last year, the Los Angeles Times found that an LAPD "division under scrutiny for officers who allegedly falsified field interview cards that portrayed people as gang members has played an outsized role in the production of those cards." The LAPD's "Metropolitan Division made up about 4 percent of the force but accounted for more than 20 percent of the department's field interview cards issued during a recent 18-month period," the Times wrote. Police officers can fill out these cards "to document encounters they have with anyone they question on their beat," the report also said.

It isn't clear how much social media account information LAPD officers have collected or what officers do when people decline to provide the details. We contacted an LAPD spokesperson today and will update this article if we get a response. According to an article published by The Guardian,an LAPD spokesperson said that "the field interview card policy was 'being updated,' but declined to provide further details."

Collecting social media details during field interviews is one of a growing number of components in the LAPD's use of social media for investigations. The Brennan Center said its public-records request found that LAPD "authorizes its officers to engage in extensive surveillance of social media without internal monitoring of the nature or effectiveness of the searches" and that, "beginning this year, the department is adding a new social media surveillance tool: Media Sonar, which can build detailed profiles on individuals and identify links between them. This acquisition increases opportunities for abuse by expanding officers' ability to conduct wide-ranging social media surveillance."

Media Sonar advertises that its products give investigators access to a "full digital snapshot of an individual's online presence including all related personas and connections." Advertisement

The LAPD's social media user guide encourages officers to monitor social media but imposes few restrictions on the practice, Dwyer wrote. The guide encourages officers to use "fictitious online personas" to conduct investigations and says that using these fake personas "does not constitute online undercover activity."

"Few limitations offset this broad authority: officers need not document the searches they conduct, their purpose, or the justification," she wrote. "They are not required to seek supervisory approval, and the guide offers no standards for the types of cases that warrant social media surveillance. While officers are instructed not to conduct social media surveillance for personal, illicit, or illegal purposes, they seem otherwise to have complete discretion over whom to surveil, how broadly to track their online activity, and how long to monitor them."

The LAPD told the Brennan Center that it does not track what its employees monitor on social media sites and "has not conducted any audits regarding the use of social media."

Dwyer argued that the expanding use of social media monitoring is particularly troubling at the LAPD because it has "identif[ied] people as gang members based on false or tenuous evidence" and "has a history of monitoring minority and activist communities." Another detail revealed by the Brennan Center's public-records request is that the LAPD used Geofeedia, a third-party vendor, "to search social media for information about Black Lives Matter activists and protests against police violence, using numerous hashtags to identify their posts," Dwyer wrote. That was before Facebook and Twitter cut off Geofeedia's access to social media data in 2016.

"Law enforcement should not have a free pass to broadly trawl the Internet without accountability or oversight," Dwyer wrote. "Communities in Los Angeles and elsewhere must demand transparency in and limits around social media monitoring practices."

Go here to read the rest:
LA police ask people they stop for their Facebook and Twitter account info - Ars Technica

LA Sanitation & Environment (LASAN) workers observe a sidewalk dwelling as police and sanitation workers clear a homeless encampment in Harbor City, Los Angeles, California, U.S., July 1, 2021. REUTERS/Bing Guan

A new LA law barring sitting or sleeping in the public right-of-way took effect on September 3.

The law, which was ruled "unconstitutional," also goes against CDC guidance.

The agency warns "Clearing encampments ... increases the potential for infectious disease spread."

See more stories on Insider's business page.

Los Angeles is moving ahead with a new law that homelessness advocates say could displace some unhoused people in the city.

The rule that took effect September 3 restricts "sitting, lying, sleeping" or setting up camp in the "public right-of-way." Mayor Eric Garcetti signed the ordinance in July, Insider previously reported.

The Centers for Disease Control and Prevention addressed the issue of managing groups of unhoused people in cities weeks before Garcetti signed the ordinance in Los Angeles, saying on July 8 that "clearing encampments can cause people to disperse throughout the community and break connections with service providers. This increases the potential for infectious disease spread."

The CDC did not immediately respond to Insider's request for further comment.

LA city councilman Mike Bonin, one of two councilors who voted against the ordinance, said he was "angry and frustrated," and said the city is responding to homelessness "the wrong way, with failed policies."

It may be too soon to tell whether sweeps have led to an outbreak of COVID-19, but Pastor Troy Vaughn, CEO of the Los Angeles Mission homeless shelter said, "I think it's a real concern to not have a controlled process in place to address the pandemic of homelessness in the middle of a public health pandemic."

Rev. Andy Bales, president and CEO of the Union Rescue Mission homeless shelter, told Insider "most of Skid Row is excluded from the ordinance" effectively preserving "the decades-long policy of corralling and containment of people on Skid Row."

Story continues

In a January 13, 2021 opinion submitted by the US 9th Circuit Court of Appeals, a panel of judges argued the city of Los Angeles' rule prohibiting bulky items in public spaces could be deemed a violation of the Fourth Amendment, which protects individuals from "unreasonable government seizures of their property, even when that property is stored in public areas."

In a joint statement published on September 3, Mayor Garcetti, the Los Angeles Police Department, and LA City Council President Nury Martinez suggested that, despite the city ordinance having taken effect, it doesn't need to be the last word on the matter of accommodating LA's unhoused population. "We don't need to choose between keeping our public spaces safe and clean, and connecting Angelenos experiencing homelessness with the services and housing they need," the statement read.

Kenneth Mejia, a 2022 candidate for Los Angeles city controller, told Insider he's disappointed the city went ahead with the rule. "We already know what works to end homelessness: housing," Mejia said.

"Unfortunately, evidence-based solutions are not reflected in the city's budget priorities."

Garcetti's proposed budget for the 2021-2022 fiscal year includes nearly $1 billion in spending to address homelessness. The city allotted $58 million of the homeless budget toward CARE+, a program that focuses on cleaning up housing encampments.

Read the original article on Business Insider

Read the original here:
Los Angeles is pushing forward with a new law that could displace unhoused people, despite the CDC's warning that it could lead to more COVID-19...

In less than two months after terrorists brought down the Twin Towers, Congress passed the USA PATRIOT Act, granting federal law enforcement and intelligence agencies expanded authorities to engage in surveillance to hunt down suspected terrorists.

The bill sailed through Congress. The House of Representatives voted 357-66 to pass it. Then-Rep. Ron Paul (RTexas) was one of only three Republicans to oppose it. In the Senate, only one senator, Russ Feingold (DWis.), voted against it.

In a speech on the Senate floor, Feingold warned against compromising our own civil liberties as we pursued Osama bin Laden and others who might mean Americans harm. He took note of the many, many times in America's history where the government chose security over liberty and the results were not pretty:

There have been periods in our nation's history when civil liberties have taken a back seat to what appeared at the time to be the legitimate exigencies of war. Our national consciousness still bears the stain and the scars of those events: The Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, the internment of Japanese-Americans, German-Americans, and Italian-Americans during World War II, the blacklisting of supposed communist sympathizers during the McCarthy era, and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King Jr., during the Vietnam War. We must not allow these pieces of our past to become prologue.

Twenty years after the Sept. 11 attacks, we can see now that Feingold's warnings were on point (as were many warnings by many civil liberties experts). The USA PATRIOT Act ultimately led to a massive federal campaign of internal domestic surveillance that, when revealed, outraged many Americans even as government officials attempted to downplay and mislead citizens about what was happening.

Edward Snowden became a household name for good reason. In 2013, Snowden, a military intelligence contractor, leaked classified documents showing how the National Security Agency (NSA) was using the authorities of the USA PATRIOT Act to collect massive reams of communication data not just from suspected terrorists but from millions of Americans as well. Government officials (when they weren't lying to Congress about the existence of the program) downplayed what the NSA was doing. President Barack Obama responded to the outrage by insisting, "Nobody was listening to your phone calls."

But what the government was doing was collecting lots and lots of information about everything else related to those calls. The term "metadata" slid into the popular lexicon. Metadata refers to all the information about a communication outside of the actual contents of itwho people call, when, and where they are when they do so. One of the lessons Americans learned about all this domestic surveillance was how easy it isas communications technology over the past two decades turned our phones and personal devices into actual computersfor the government to keep track of your behavior even when they aren't listening to your phone calls. Did you call a clinic that provides abortions? A person with a criminal history of dealing drugs? A leader of an organization with a history of protesting government behavior? Metadata collection allowed the government to collect all of this information about citizen behavior absent any suspicion of a crime or an individualized warrant, bypassing the protections of the Fourth Amendment entirely.

One man apparently shocked by the breadth of this surveillance was Rep. Jim Sensenbrenner (RWis.), the man responsible for authoring the PATRIOT Act in the first place. Sensenbrenner did not intend for Section 215 of the PATRIOT Act to allow for mass, warrantless collection of records of millions of Americans. He blasted the Department of Justice under the Obama administration for interpreting it that way, pointing out that the records of every American's phone calls are assuredly not relevant to any investigation of terrorism.

But the genie is not going back into the bottle easily. Section 215 of the PATRIOT Act did finally expire, replaced by the USA Freedom Act, which formalized some of these surveillance tools but added restrictions. NSA has since said that it is no longer collecting all of this data, and, by 2020, their authority to do so formally expired. It has never been shown to assist them in catching any terrorists.

Nevertheless, fear of terrorism has been used all this time and continues to be used to try to scare the public into making it easier for the government to snoop on them. The technology used to track terrorists' location data through their phones can and is used to track citizens through the commandeering of cell tower signals. The same thing has happened with facial recognition software. So-called Department of Homeland Security "fusion centers" formed in the wake of Sept. 11 were sold to the public as information clearinghouses between the feds and local police departments that allow them to better communicate with each other about potential terrorist threats. In reality, a Senate report from 2012 found no examples where they helped uncover a potential terrorist threat. Instead, there have been examples of these centers snooping on domestic activist groups and protests.

In recent years, fears of terrorism have been used by police and lawmakers to attack encryption, particularly end-to-end encryption, which helps protect the privacy of data on your computers, phones, and tablet devices. Encryption makes it harder for hackers and criminals to access your data. It also makes it harder (if not impossible) for the government to access your info without your knowledge or permission.

When two Muslim homegrown terrorists killed 14 people in an attack in San Bernardino, California, in 2015, the FBI attempted to force Apple to disable the phone's security to access the data within. The feds did have a warrant to search the phone, but Apple declined to assist, arguing that undermining their own encrypted security system via what's known as a "back door" would create security risks for users. Eventually, the FBI was able to turn to a third party to hack into a phone, which turned out to not have any information relevant to the attack stored on it.

Nevertheless, the war on terror has been invoked repeatedly by police, prosecutors, and lawmakers as a reason why tech companies should be required to allow for these back doors to allow officials access to data. Tech companies, privacy rights advocates, and cybersecurity experts are all pretty much in agreement here: Encryption back doors are very, very bad. There is no such thing as an encryption bypass that only the "right" people can access. Any mechanism that can break through this security can fall into the hands of criminals or authoritarian governments.

And even when they don't, the lesson of the PATRIOT Act is that we really cannot trust the government to accept limits on surveillance tools unless there is a transparent public mechanism of enforcement. The same government agencies who insist they'd be careful with encryption bypasses and would seek warrants are the same government agencies who had been secretly collecting whatever data they can about our personal communications as part of the War on Terror.

Feingold warned about all of these potential dangers in his critique of the PATRIOT Act:

But under this bill, the government can compel the disclosure of the personal records of anyoneperhaps someone who worked with, or lived next door to, or went to school with, or sat on an airplane with, or has been seen in the company of, or whose phone number was called bythe target of the investigation.

And under this new provisions all business records can be compelled, including those containing sensitive personal information like medical records from hospitals or doctors, or educational records, or records of what books someone has taken out of the library. This is an enormous expansion of authority, under a law that provides only minimal judicial supervision.

Under this provision, the government can apparently go on a fishing expedition and collect information on virtually anyone. All it has to allege in order to get an order for these records from the court is that the information is sought for an investigation of international terrorism or clandestine intelligence gathering. That's it. On that minimal showing in an ex parte application to a secret court, with no showing even that the information is relevant to the investigation, the government can lawfully compel a doctor or hospital to release medical records, or a library to release circulation records. This is a truly breathtaking expansion of police power.

This speech was given on Oct. 21, 2001. And it's exactly what happened.

See original here:
America's Post-9/11 Surveillance Authorities Were Inevitably Turned Against Its Own Citizens - Reason