Category Archives: Fourth Amendment

from the cops:-we-of-course-we-can-because-no-one-has-told-us-we-can't dept

The top court in Massachusetts is asking itself (and legal counsel representing both sides) questions that -- on the surface level -- don't really appear to be that difficult to answer. Here's how Thomas Harrison sums it up for Courthouse News:

The Massachusetts Supreme Judicial Court struggled Wednesday to figure out whether police can use trickery to conduct unlimited surveillance of social media accounts even if they have no reason to think that anyone did anything wrong.

I mean, phrased that way, it seems like this should be a "no." Should the government be able to surveill people suspected of nothing? What else could the answer be in this particular nation with this particular Constitution? And yet, the discussion continues because it's not quite as simple as that.

The government, however, sees this supposedly easy question and says "Yes." The government seems to think it's just that simple, even when it's pointed out that it's not quite that simple.

The breadth of this is what is worrisome, Justice Scott Kafker complained to Boston-area prosecutor Ian MacLean. I get that cops are doing this to detect kiddie porn, but youre saying they can just go out on social media exploring. You may be right, but its concerning that they can just go through peoples social media and go hunting. Youre saying they can do that, right?

Yes, said MacLean, an assistant district attorney for Suffolk County. In the same way cops can approach random people on a street corner.

Yes. Cops can approach random people. A cop can walk up to anyone and start asking questions. No one's obliged to stick around but it's true cops can just hassle people without violating the Constitution. If they want to really dig into their doings, they need more. And comparing approaching random people to peering through their online lives is an analogy that only works if you also believe cops can rifle through whatever mail that random person might be carrying or page through their address book to see who they know and spend time with. And yes, those comparisons are as outdated as this simplistic attempt to turn long-term eavesdropping on social media into something as harmless as idle queries from cops who apparently have nothing better to do.

Here's what was actually happening, as described in an amicus brief [PDF] filed by the Massachusetts Association of Criminal Defense Lawyers.

The Boston Police Department has created and used an unknown number of accounts on Snapchat, a social media platform, to lure users into accepting their friend requests, so that the police can electronically surveil and record private communications sent by those users to their Snapchat friends. The police have done so with no judicial oversight; no probable (or frankly any) cause; and no constraints on what they will surveil or record, or how long their surveillance will last.

So, this isn't like approaching random people. This is more like an undercover cop hanging out at a house party. Subterfuge is involved, which is generally something necessary in criminal investigations with targeted suspects. And cops apparently believe subterfuge is acceptable, even when doing nothing more than trawling social media services looking for a bite. Courthouse News points to this long-standing belief there's nothing wrong with refusing to comply with platforms' terms of use:

A study back in 2014 revealed that 81% of police officers use social media in investigations, and 80% think its ethical to create fake accounts to get a suspect to friend them.

In this case, it's the Boston PD using fake Snapchat accounts to eavesdrop on communications senders likely presumed were private. And officers do it all without training, supervision, or oversight.

Other Boston police officers also use Snapchat as a part of their police work, despite the fact that none have been trained on how to use it. [...] There appear to be no policies or even supervision governing these warrantless, suspicionless electronic surveillance efforts by police.

And here's how that played out in this case:

Before gaining access to the defendants Frio Fresh private Snapchat account, the police officer did not even know that the account belonged to the defendant. After gaining access to the account -- using what the court assumed was a fake name intended to resonate with the audience he was attempting to try to . . . snoop on,-- the officer was able to use the content of the defendants private Snaps, which included an undisclosed number of videos and photographs, to identify the defendant as the account owner. For one month, the officer reviewed the content of every communication sent by the defendant to his private friend network without any judicial supervision and without any limitation on the scope or length of the surveillance or which communications he could record.

And that would seem to be a clear violation of constitutions, both national and local.

Article 14 and the Fourth Amendment preclude the police from unilaterally listening in on private telephone calls, sticking electronic devices on walls or in cars, or generally using new technology to learn what would otherwise be unknowable without the investment of substantial investigative resources. In addition, Articles 1, 10, and 16, and the First, Fifth, and Fourteenth Amendments, protect our fundamental rights as citizens of a free democracy to freely associate and speak together, and enjoy due process and the equal protection of our laws -- rights that are severely threatened by the police action in this case.

And yet the Supreme Judicial Court thinks it still may be ok for cops to engage in suspicionless, warrantless, long-term surveillance. Its arguments seem to boil down to a definition of privacy that relies heavily on a person's online popularity. If someone broadcasts a message to enough people, the expectation of privacy dissipates.

Justice Serge Georges objected that a really big wedding isnt a public wedding, but if an account owner indiscriminately accepts people and has 1,000, 2000 or 3,000 friends, at what point does it become absurd to say theres a reasonable expectation of privacy?

We'll have to see how this is resolved. The government apparently believes anyone with over 100 followers is fair game, even if investigators don't have any articulable reason to eavesdrop on these conversations. While there's little dispute that public posts on social media are fair game, private messages sent to others (even hundreds of others) aren't visible by those who haven't been invited to in-group. That may be the distinction that matters. If cops want to go "undercover" to listen in on non-public conversations between social media users, they probably should have something more to justify these activities with than "because we can."

Thank you for reading this Techdirt post. With so many things competing for everyones attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise and every little bit helps. Thank you.

The Techdirt Team

Filed Under: 4th amendment, massachusetts, police, social media, warrantless surveillance

See the original post here:
Massachusetts Supreme Court Being Asked To Decide Whether Cops Can Engage In Warrantless Surveillance Of Social Media Users - Techdirt

Although not mentioned in the Constitution, the right to privacy has been invoked by its enormous following as thoroughly American and indispensable to our conception of liberty and freedom.

It prevents the government from spying on the people. It protects personal data. It protects freedom of speech and freedom of religion. It protects ones reputation, voting rights and participation in politics.

The right to privacy, the Supreme Court has held, also encompasses the use of contraception, access to abortion and, of course, privacy in our homes.

The right to privacy is not enumerated in the Constitution. Its lack of textual paternity is not unique; the right to travel, the right to marriage and the freedom of association, universally valued by Americans, are other examples of unenumerated rights. Nor does the textual omission make them less important than enumerated rights.

Like other rights and liberties, the right to privacy enters the annals of Anglo-American legal history through mere assertions that form a rhetorical tradition. The immediate gateway is the Fourth Amendment, which provides protection from unreasonable searches and seizures of ones property.

English law and practice permitted governmental ransacking of private homes and places of business upon the flimsiest pretexts of illegal possessions, especially whenever the prospects for British revenue gleaned from taxation schemes were at stake.

The majestic Magna Carta, written in 1215, and exalted as the basis for English liberty, as well as the legal conceptions of due process and equal protection, both fundamental to American Constitutionalism, was linked in the 16th Century to the fiction that a mans home is his castle.

A clerk of the Privy Council Robert Beale connected the dots in 1589, when he asked, rhetorically, what had happened to Chapter 39 of Magna Carta, which provided the basis for the law of the land, when agents of the prerogative courts could enter mens homes, break up chests and chambers and cart away as evidence whatever they pleased. Beales conversion of Chapter 39 into a ban on general search warrants influenced Americans thinking about privacy rights.

It was a masterful speech to Parliament by William Pitt in 1763 that summoned the idyllic symbol of a mans castle assaulted by unlawful governmental intrusions that played upon the heartstrings of Americans in defending the privacy of their homes. Pitt famously stated, The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.

The repetition of this argument against general search warrants by great English legal scholars and statesmen created a tradition that was eagerly embraced by Americans.

In 1756, the Massachusetts Bay colony passed legislation that prohibited general searches. This landmark legislation would pave the way for the Fourth Amendment to the Constitution. What was missing on the American scene, however, was the sort of drama embodied in William Pitts speech to Parliament, a moment that might captivate the citizenry and become a cause.

That drama was supplied by a Boston attorney, James Otis Jr. who, in 1761 presented American colonists offended by the British practice of issuing writs of assistance, a kind of general warrant, that empowered the agent to enlist the help of English subjects American colonists to aid the search.

Otis arguments followed the familiar rhetorical tradition of asserting that the right in question had existed since time immemorial. Otis plea was futile, of course, for he was arguing before a panel of English judges committed to pleasing King George III, but he made history and, in the words of John Adams, who had decided to attend the argument so that he could watch the brilliant young lawyer at work, Otis was a flame of fire! He later wrote of Otis argument and eloquence: Then and there the child Independence was born.

Otis told the court that the only legitimate warrant was a specific one, directed to specific officers, to search certain houses, upon an oath sworn by the person who believes certain goods to be concealed. A writ that permitted a customs officer to enter private homes upon bare suspicion violated the liberty of every English subject, that of enjoying the benefits of a mans castle. With an eye to history yet to unfold, Otis declared such a writ represented a violation of the English Constitution and should be held by the court to be null and void.

Otis constitutional arguments lit the way for state legislation that required specificity in search warrants. His influence on American Constitutionalism, immeasurable in so many ways, was easily calculated in its impact on specific requirements for searches and seizures. Adams borrowed Otis learned courtroom reasoning in writing Article XIV of the Massachusetts Declaration of Rights of 1780. James Madison also drew upon Otis in his introduction of what became the Fourth Amendment.

While the right to privacy entered American law through the Fourth Amendment, it found expression and defense in other provisions of the Bill of Rights.

(This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.)

Read the rest here:
The origins of individual rights to privacy | The Journal - Journaltrib

A Toccoa man authorities describe as a known gang member has been arrested and charged with trafficking methamphetamine and heroin. 26-year-old Shaun Mayfield faces a host of other drug-related charges following a 6-month-long investigation, officials say.

On Friday, September 17, law enforcement officers executed a Fourth Amendment Waiver search on Mayfield at 1520 Defoor Road in Toccoa. During the search, agents say they found nearly $68,000 worth of illegal narcotics in his possession.

Law enforcement officers seized over nine pounds of marijuana, a half pound of methamphetamine, and 11 grams of heroin. They also seizedbutane hash oil,Ecstasy pills, and cocaine says Trent Hillsman, Special Agent in Charge of the Appalachian Regional Drug Enforcement Office.

Hillsman says Mayfield is a known member of the Gangster Disciple criminal street gang. He was on active probation at the time of his arrest.

During Fridays search, officers also reportedly discovered an AR15 style rifle, semiautomatic pistol, and revolver.

In addition to the trafficking charges, agents charged Mayfield with six weapons violations, felony possession of marijuana,possession with intent to distribute Ecstasy, butane hash oil, marijuana, and cocaine, andfelony theft by receiving a stolen motorcycle.

The Stephens County Sheriffs Office, Toccoa Police Department, Department of Community and Supervision, FBI, and ARDEO participated in the investigation.

The case is still active and ongoing and, according to Hillsman, additional charges may be filed.

Read the original here:
Reputed Toccoa gang member charged with drug trafficking - Now Habersham

REXBURG A man shot by a Rexburg Police officer in 2019 has filed a lawsuit against the city, its police department and several officers.

Ashtyne Lane Whitings attorneys filed the federal lawsuit Wednesday, 21-months after then Madison County Prosecuting Attorney Sid Brown cleared Rexburg Police Officer Bransen Devey of any wrongdoing. Whiting is suing for an unspecified amount above $10,000 for damages he says he incurred after the Oct. 22, 2019, officer-involved shooting.

Whiting accuses the city and its officers of violating several of his rights and of violating laws, including that officers violated his Fourth Amendment right protecting him against unreasonable searches and seizures. The attorneys also claim the city engaged in malicious prosecution, failure to train, lack of policy, or having an unconstitutional policy.

RELATED | One man injured after officer-involved shooting in Rexburg

The incident in question began when Devey responded to a 911 call on 222 West 2nd North around 1 a.m. A woman reported her boyfriend, Whiting, was angry, drunk, suicidal and possibly armed with a knife.

Whiting left the home in his car by the time Devey arrived, but seconds later, Whiting sped down the street in front of the apartment building. He stopped, revved his engine, turned around and sped toward the area where the officer was standing, Rexburg Police Chief Shane Turman said at a 2019 news conference.

Believing he was in imminent danger, Devey drew his weapon and fired.

Prior to firing upon Ashtyne, Officer Bransen (Devey) did not issue any command or warning to Ashtyne to stop or exit the car, Whitings attorneys write in the lawsuit. Furthermore, he did not even make himself known to Ashtyne.

READ THE ENTIRE LAWSUIT HERE

An investigative report obtained by EastIdahoNews.com shows Devey fired 10 shots followed by an additional four. As Devey was firing, Whiting stopped the vehicle, and one bullet hit him in the left shoulder, and another grazed his calf. He was taken to Madison Memorial Hospital and released a few hours later.

As a result of defendants tortious and unconstitutional behavior, Ashtyne suffered severe pain, lost a significant amount of blood, and had to undergo surgery to remove the bullet in his shoulder and to repair (his) other gunshot wounds, the lawsuit alleges. To date, Ashtyne continues to suffer the physical and mental trauma caused by Defendants unconstitutional and tortious conduct.

RELATED | Officer shot driver who was speeding toward him, say Rexburg Police

Following the shooting, the East Idaho Critical Incident Task Force, led by the Idaho Falls Police Department, investigated the incident and interviewed Whiting, Devey, Whitings girlfriend and other officers who responded to the scene, as well as other witnesses.

When their investigation was complete, Brown and Turman asked the Force Science Institute in Illinois to review the case. The institute interviewed Devey, reviewed body camera footage and investigative documents. Experts with the organization deemed Deveys actions were typical of others in similar situations.

RELATED | Rexburg police officer cleared in shooting that wounded driver

It is my conclusion that Ashtyne Whiting took actions and drove his vehicle in such a manner as to create in Officer Devey a well-founded and reasonable fear that his life, and possibly the life of (Whitings girlfriend), was in imminent danger, Brown wrote in a 2019 letter clearing the officer of criminal wrongdoing. Officer Devey was justified and acted reasonably in opening fire on the rapidly approaching vehicle. I believe that all of the shots fired by Officer Devey were a result of Officer Deveys perception of a continuing threat and his effort to bring the vehicle to a stop and end that threat.

Following Browns decision, Turman convened an officer-involved shooting review board to determine if department policies were followed during the incident. The board concluded Devey acted appropriately, and he was permitted to come back to work.

Whiting was charged with misdemeanor DUI as he told police he had drunk whiskey that evening. His blood-alcohol level was nearly double the legal limit when he was arrested, according to police documents. However, the case was eventually dropped by the Madison County Prosecutors Office.

As the officer defendants were the ones to decide to initially arrest and charge Ashtyne, they are the prosecutors for purposes of a claim for malicious prosecution, the lawsuit alleges.

EastIdahoNews.com has reached out to Rexburg City Attorney Stephen Zollinger for comment. We will update this story if we received one.

Read the rest here:
Man shot by officers sues city of Rexburg and its police department over 2019 incident - East Idaho News

Image courtesy of CNN

By Fabrizio Gowdy

This week, we marked twenty years since 9/11. With each passing year, an uncomfortable truth becomes more obvious: the terrorists won, not because of what they did on September 11, 2001, but rather as a result of the United States response in the months and years after the attack. We plunged into costly, prolonged military intervention in the Middle East.

Domestically, we quickly surrendered our liberty and privacy rights for the promise of security. And on the most fundamental level, we seem to have accepted a new permanent status quo of surveillance and paranoia that represents a departure from the American cultural identity and way of life. Our response to 9/11 has made us weaker, poorer, and less free.

On September 10, 2001, America stood atop the world, a lone superpower still basking in its triumph over the USSR. September 11th should be considered the beginning of our decline from the height of our global power. We invaded Iraq and Afghanistan, wars that to date have cost American taxpayers $2 trillion and $2.3 trillion respectively. An estimated 801,000 Afghans and Iraqis perished in these wars, 335,000 of whom were civilians.

In the end, what did we achieve? We handed Afghanistan back to the Taliban, only now they have billions of dollars worth of state-of-the-art military equipment.

We also rarely consider the possibility that our constant meddling in the Middle East is the cause of much of the anti-American sentiment in the region. We cant expect to strip people of their sovereignty and control other nations domestic affairs without experiencing massive blowback. In 1953, the U.S. engineered a coup and installed the Shah in Iran; 26 years later angry Iranians took our embassy and 66 hostages.

Our failed invasion and occupation of Afghanistan will be remembered for its hubris, especially in regards to our ill-advised attempt to install a Western-style democracy. How arrogant is the U.S. to think that it can defy all historical precedent? Why did the U.S. Military think it could march into the graveyard of empires, politically unify a country that has consisted of feuding warlords for virtually all its history, and establish a democracy where one has never existed?

Democracies cannot be willed into existence; they develop painstakingly slowly along with cultural attitudes and views on individual rights and human liberty. Britains democracy is healthy and functioning because it has 800 year-old roots going back to the Magna Carta.

Afghanistan has no such history. Furthermore, why is it our role to go around forcing democracy on people who do not want it? Many undemocratic countries exist today; we dont possibly have the money or manpower to invade and occupy them all for decades on end until Western democracy flourishes. Empires die when they overextend and spread themselves too thin militarily, incurring massive debt in the process and neglecting domestic issues.

Ironically, as we were busy trying to secure freedom and democracy for the people of Afghanistan, our government was actively restricting American citizens freedoms. The 2001 USA PATRIOT Act, the most unpatriotic of acts, as Kentucky Senator Rand Paul dubbed it, quietly authorized unconstitutional operations of mass surveillance against the general American populace and allowed for bulk data collection.

The act was an assault on the Fourth Amendment; if widespread, indiscriminate surveillance and collection of Americans activities and records is not unreasonable search and seizure, then what is? Rather than prosecuting whistleblower Edward Snowden, we should give him a pardon and a medal of freedom for defending Americans constitutional rights.

The FISA courts meant to check the surveillance state have proved to be a rubber stamp, denying just 12 warrants out of over 33,000 requested. The framers specifically included the 4th amendment because of the British writs of assistance, essentially generalized search warrants. The British officials who broke down colonists doors and trifled through their papers would be envious of the ease with which the NSA can monitor millions of Americans.

On a deep, cultural level, 9/11 caused a shift in the way Americans view and assess risk. Since 2001 the balance between freedom and security has slanted heavily in the direction of security. Weve become a far more paranoid and risk-averse society, which runs contrary to Americas notorious history of pioneers, risk-takers, and daredevils.

Weve accepted heightened security measures at airports, concerts, and sporting events. Weve accepted a stringent new regime of anti-money laundering laws meant to prevent financing of terrorism, laws that have hurt American banks and compromised our financial privacy. Even the Statue of Liberty, one of Americas most iconic and recognizable monuments, did not escape this cultural shift. Following the 9/11 attacks, the National Park Service permanently closed the statues crown to visitors, citing security concerns.

Now two decades out from 9/11, we are in need of a course correction, both domestically and with regards to our foreign policy. Lets stop deploying troops all over the world and consolidate our attention on true national security threats, like the rising Peoples Republic of China. Lets protect the Fourth Amendment by rolling back the powers of the NSA. Rather than living in fear and embracing the surveillance state, the best way to honor the legacy of those killed on 9/11 is to defend the American way of life and the freedoms our country was founded upon.

See the article here:
The Terrorists Won - Catholic University of America The Tower

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.

WDET strives to make our journalism accessible to everyone. As a public media institution, we maintain our journalistic integrity through independent support from readers like you. If you value WDET as your source of news, music and conversation, please make a gift today.

Donate today

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

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

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

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.

Thank you for reading this Techdirt post. With so many things competing for everyones attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise and every little bit helps. Thank you.

The Techdirt Team

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.

Advertisement

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