Appeals Court Denies Qualified Immunity To Cop Who Argued Citizens Have No Right To Defend Themselves Against Armed Intruders

from the play-no-knock-games,-win-no-knock-prizes dept

The Fourth Circuit Court of Appeals has denied immunity to a cop involved in a no-knock raid that left the raided house's resident, Julian Betton, paralyzed. This case was touched on briefly in a previous post discussing legal arguments made by law enforcement officers that attempt to portray people in their own homes as dangerous aggressors when police crash through their doors unannounced.

In this case, South Carolina police officer David Belue's legal rep tried to tell the court Betton's response to a bunch of heavily-armed men rushing through his door -- grabbing a gun and moving into the hallway from the bathroom -- created a situation where Betton deserved every bullet fired at him by officers. In other words, if Betton didn't want to get shot, he shouldn't have been in his own house when it was invaded by officers who never informed him they were police officers.

Here's a recap of the events leading to the lawsuit, from the Fourth Circuit's decision [PDF]:

In the afternoon of April 16, 2015, a team of plain-clothed law enforcement officers armed with “assault style rifles” used a battering ram to enter Julian Ray Betton’s dwelling to execute a warrant authorizing a search for marijuana and other illegal substances. The officers did not identify themselves as “police” or otherwise announce their presence before employing the battering ram. From the rear of his home, Betton heard a commotion but did not hear any verbal commands. Responding to the tumult, Betton pulled a gun from his waistband and held it down at his hip.

Three officers, including Myrtle Beach, South Carolina police officer David Belue, fired a total of 29 shots at Betton, striking him nine times. Betton suffered permanent paralysis resulting from his gunshot wounds.

This shooting was immediately followed by a bunch of lies. Officer Belue first claimed Betton fired his gun at officers. The ensuing investigation showed Betton's weapon was never fired. Faced with this direct contradiction of his statement, Officer Belue revised his, claiming Betton pointed his gun at officers. According to Betton, he never got the chance to point a gun at anyone. The moment he appeared with his gun, officers opened fire.

Officers also lied about their entrance to Betton's home. They claimed they knocked and announced their presence. Betton's surveillance camera told the real story. Nine seconds elapsed between the officers' arrival on Betton's lawn and their entrance into his house. None of the officers present appeared to announce anything before bashing down his door and swarming inside.

Officer Belue also initially had asserted that the agents had knocked on Betton’s door and announced their presence, and had waited before forcibly entering the home. However, footage from the video cameras on Betton’s front porch showed that the officers had not knocked on the door or announced their presence, and had not waited any length of time before using the battering ram to gain entry.

To the contrary, the video recordings showed that the officers ran up the front steps and immediately began using the battering ram. Moreover, Garcia confirmed that the officers did not announce that they were law enforcement personnel before entering the home. The record before us also contains a statement from a former DEU agent, who related that the DEU agents “almost always forcibly entered [residences] without knocking and announcing” their presence.

Despite this -- and despite inverting the Castle Doctrine to say its the invaders of a home who need protection from the home's occupants -- Officer Belue still sought qualified immunity. The district court denied his request, pointing to the facts still in dispute, as well as the officer's actions.

Regarding Betton’s unlawful entry claim, the magistrate judge found that the officers had not knocked or announced their presence before entering, and that there were no exigent circumstances warranting abandonment of the “knock and announce” procedure. The district court adopted the magistrate judge’s recommendation to deny qualified immunity on the unlawful entry claim, and Officer Belue has not challenged this ruling in the present appeal.

With respect to Betton’s excessive force claim, the magistrate judge found that there were material facts in dispute regarding whether Betton had pointed a gun at the officers before Officer Belue fired his weapon. Thus, the magistrate judge concluded that a jury could find that Betton did not pose an immediate deadly threat to Officer Belue or others justifying the use of deadly force.

The Appeals Court sees no reason to upend this finding, especially when there's precedent on point saying actions like this clearly violate Constitutional rights.

[A]s of 2015, the law in this Circuit was clearly established that a person is entitled to be free from excessive force when the person “is on his property or in his residence, is in possession of a gun that he is not pointing at police officers, and is not given a warning or command to drop the gun before he is shot.”

Officer Belue also argued Julian Betton was so inherently dangerous it didn't matter whether officers announced themselves or ordered him to put his weapon down before opening fire. This claim basically turns Betton's mere existence into an exigent circumstance where Constitutional rights no longer apply. The Appeals Court isn't interested in advancing this terrible legal theory.

[N]o information in Betton’s criminal history suggested that he was inherently violent to a degree that the officers would have been justified in storming into his home unannounced and in firing their weapons at him when he did not present a current threat. Notably, the search warrant was based on Betton’s conduct of selling small amounts of marijuana on two occasions. And, although the informant observed security cameras and two firearms in Betton’s home, there was no evidence indicating that Betton had engaged in threatening or violent conduct toward the confidential informant.

Betton's case goes back to the district court and Officer Belue will have to face a jury if he doesn't attempt to settle this lawsuit first. Denying immunity preserves the rights of homeowners to defend themselves from unexpected intruders in their homes. Officer Belue's attempt to separate one action (his shooting of Julian Betton) from another of his actions (entering a home unannounced) is soundly rejected. Even when an officer subjectively "fears for his safety," context matters. If officers want to use the element of surprise to their advantage in no-knock raids, they can't turn around and claim residents have no right to react with alarm to armed intruders.

Filed Under: 4th circuit, david belue, julian betton, myrtle beach, no knock raid, qualified immunity, south carolina

Appeals Court Gives Gov't One More Chance To Lock Up Men For Producing An 'Illegal' Drug Its Own Chemist Said Wasn't Illegal

from the keep-your-chins-up,-g-men! dept

How many chances does the government get to try to convict a couple of people for selling a drug analogue the DEA's own chemist said wasn't "substantially similar" to any controlled substance? Apparently the government will get at least one more swing at the plate, having batted .500 during its first two tries.

In 2012, the DEA raided Zencense, a business owned by Charles Ritchie and Benjamin Galecki. They were charged with conspiracy to distribute controlled substance analogues. The "spice" made by Zencense used XLR-11 and UR-144 as active ingredients. The government claimed these were analogues of JWH-018, which is a controlled substance.

The defendants argued that their spice was not an analogue of a controlled substance. If true, this sunk the government's case, because the conspiracy charges relied on the "knowing" distribution of illegal drug analogues.

The government claimed XLR-11 and UR-144 were pretty much the same thing and pretty much identical to JWH-018. This testimony was undercut by one of the DEA's own chemists, who had stated in other prosecutions that UR-144 was not an analogue of JWH-018. Not only that, but the chemist's professional opinion on this subject was freely available online, as part of a handout on litigating synthetic drug cases.

The defendants hoped to have the chemist testify on the differences between these substances, which would likely have resulted in them being found innocent of the conspiracy charges. The trial court denied this request, resulting in the defendants' first appeal.

On appeal, the Fourth Circuit sided with the defendants, finding the government could not claim the chemist's testimony was "privileged" -- not when it had relied on it in other prosecutions. It sent the case back down to the district court to reconsider the admissibility of this exculpatory evidence.

The case is now back in the Fourth Circuit Appeals Court, thanks to the lower court deciding once again that this testimony isn't relevant and would have had no effect on the outcome of the case. That the outcome was one mistrial and one hung jury (one that was un-hung with an Allen charge) seems to have escaped the attention of the court.

The Appeals Court [PDF] wants to make sure this doesn't happen again. The lower court looked at the testimony that directly contradicted the assertions made by the government and shrugged.

On remand, the district court concluded that Dr. Berrier’s testimony was not material to Defendants’ case because it would have been “merely cumulative” to testimony from Defendants’ two other expert chemists. Ritchie III, 2018 WL 4693811, at *4. The district court determined that those chemists used the same methods and came to the same conclusion as Dr. Berrier, and that his “position at the DEA would not provide any new relevant information” to the jury. Id. The court accordingly held that Dr. Berrier’s exclusion from the trial did not violate Defendants’ Sixth Amendment compulsory process rights.

But it wouldn't be merely "cumulative." Yes, the defendants brought in their own expert witnesses but their opinions were pretty much nullified by statements the government's lawyers made during cross-examination.

Barred from questioning Dr. Berrier, Defendants relied on the expert testimony of two chemistry professors, Drs. Croatt and Dudley, who gave the same opinion that Dr. Berrier would have given—an opinion that contradicted Dr. Trecki’s. During cross-examination, the Government questioned Defendants’ “hired guns” about the compensation they received for testifying. In convicting Defendants, the jury ultimately rejected Drs. Croatt and Dudley’s expert opinion about XLR-11 and JWH-018.

The lower court claimed testimony from a DEA chemist about the non-similarity of the contested substances "would not have altered the trial's outcome." Nothing could be further from the truth, the Appeals Court explains.

[W]e disagree with the district court’s analysis of the “not merely cumulative” component, as we conclude that Dr. Berrier’s testimony was qualitatively different from the testimony of the other defense witnesses. In stark contrast to Drs. Croatt and Dudley, Dr. Berrier was not paid outside his DEA employment to form his opinion about XLR11’s chemical similarity to JWH-018. Nor would Defendants have paid him to testify at trial. Consequently, the Government could not have impeached Dr. Berrier in front of the jury for having a pecuniary motive for testifying. Dr. Berrier’s inability to be impeached on that ground made his testimony unique and particularly relevant, not cumulative.

[...]

Also unlike Drs. Croatt and Dudley, Dr. Berrier could have rebutted the testimony of Dr. Trecki, the Government’s DEA expert, with his own knowledge of the DEA’s processes and analyses. His expert testimony, which diverged from Dr. Trecki’s, could have shown the jury that the DEA’s own scientists could not agree on the substantial similarity of the chemicals at issue. Drs. Croatt and Dudley could not have provided that type of rebuttal testimony.

The testimony is material, not cumulative. And the error in disallowing it was far from "harmless." As the Appeals Court points out, the DEA expert's testimony would have introduced a significant amount of reasonable doubt -- enough to turn a hung jury into an exoneration.

Unfortunately, this means the defendants have to go through all of this again. Their convictions have been vacated but the government will get a third chance to put them behind bars. The government is failing forward and it's facing people who don't have the luxury of taxpayer-funded, inexhaustible resources.

Filed Under: 4th circuit, benjamin galecki, charles ritchie, dea, doj, expert witness, synthetic drugs

Appeals Court Shoots Down The Unconstitutional 'Non-Disparagement' Clauses Baltimore Attaches To Lawsuit Settlements

from the court-says-it-won't-be-a-bagman-for-hush-money dept

When the City of Baltimore agreed to settle with a victim of police brutality, it inserted the usual clauses that come with every settlement. There was the standard non-admission of wrongdoing, along with a "non-disparagement" clause the city's attorney told courts was used "in 95% of settlements" to prevent those being settled with from badmouthing the entity they sued.

Ashley Overbey received a $63,000 settlement from the city for allegations she was beaten, tased, verbally abused, and arrested after calling officers to her home to report a burglary. When a local newspaper published a story about the settlement, the City Solicitor chose to disparage Overbey by saying she was "hostile" when the police arrived at her home. As the comments filled up with invective against Overbey, she showed up in person to fire back at her detractors, claiming the police had been in the wrong and detailing some of the injuries she suffered.

The City -- which had chosen to skew public perception against Overbey by commenting on the settlement -- decided Overbey's defense of herself violated the non-disparagement clause. So, it clawed back half of her settlement -- $31,500 -- for violating its STFU clause.

Overbey sued again, claiming this clause violated her First Amendment. Now, seven years after police showed up at her home and treated like the perpetrator -- rather than a victim -- of a crime, the Fourth Circuit Court of Appeals has ruled [PDF] these non-disparagement clauses are unconstitutional bullshit.

The City argued Overbey's acceptance of the clause was actually an action of free expression. By opting for a payout, she was (and I am quoting the City here) "exercising her right not to speak in exchange for payment." Alternatively, it argued that even if it was an unconstitutional waiver of rights, the court has no reason to intercede and nullify the clause.

The court agrees that it's a waiver of rights, but disagrees about what it's allowed to do about it:

We hold that the non-disparagement clause in Overbey’s settlement agreement amounts to a waiver of her First Amendment rights and that strong public interests rooted in the First Amendment make it unenforceable and void.

It goes on to point out that the government has no business compelling speech -- i.e., violating someone's decision to not speak about something. But that's not what's going on here. The clause penalizes settlement recipients for choosing to speak, which is definitely not Constitutional.

Overbey’s promise not to speak about her case cannot be fairly characterized as an exercise of her right to refrain from speaking, because none of the interests protected by the right to refrain from speaking were ever at stake in this case. No one tried to compel Overbey to make speech she did not want to make; no one tried to punish Overbey for refusing to say something she did not want to say. Instead, Overbey agreed, on pain of contractual liability to the City, to curb her voluntary speech to meet the City’s specifications. In doing so, she waived the First Amendment protections that would have otherwise shielded her speech from government sanction.

While it is possible for people to voluntarily waive their rights in certain situations, the discussion of a settled lawsuit isn't one of these situations. Especially not when it deals with issues of considerable public interest, like allegations of police misconduct and abuse. The clause inserted into settlement agreements also drives a wedge between public agencies and the public they serve, contributing to the omnipresent distrust. In a case like this, the only purpose the clause serves is to silence speech the government doesn't like.

Standing shoulder to shoulder with the citizenry’s interest in uninhibited, robust debate on public issues is this nation’s cautious “mistrust of governmental power.” Citizens United, 558 U.S. at 340. This mistrust is one of the “premise[s]” of the First Amendment, id., and we think it well-warranted here, because the non-disparagement clause is a government-defined and government-enforced restriction on government-critical speech. Indeed, when the government (1) makes a police-misconduct claimant’s silence about her claims a condition of settlement; (2) obtains the claimant’s promise of silence; (3) retains for itself the unilateral ability to determine whether the claimant has broken her promise; and (4) enforces the claimant’s promise by, in essence, holding her civilly liable to itself, there can be no serious doubt that the government has used its power in an effort to curb speech that is not to its liking.

That unconstitutionality voids the clause.

Accordingly, we conclude that enforcement of the non-disparagement clause at issue here was contrary to the citizenry’s First Amendment interest in limiting the government’s ability to target and remove speech critical of the government from the public discourse.

The court has zero patience for the City's exhausting arguments about how unfair this is to the City:

As the City would have it, Overbey “sold her [speech] rights, with an option to buy them back, which she exercised, and now she has [her rights] again.” Id. at 39. Essentially, the City argues that half of Overbey’s settlement sum was earmarked for her silence, and that it would be unfair for Overbey to collect that half of her money when she was not, in fact, silent. When the second half of Overbey’s settlement sum is viewed in this light, it is difficult to see what distinguishes it from hush money. Needless to say, this does not work in the City’s favor. We have never ratified the government’s purchase of a potential critic’s silence merely because it would be unfair to deprive the government of the full value of its hush money. We are not eager to get into that business now.

The City will now have to give back the other half of Overbey's money. You can't beat the hell out of the First Amendment and expect to cash out. Litigants in Baltimore -- and elsewhere in the circuit -- have been freed to discuss the details of their cases in public without fear of reprisal. Hopefully, this will reduce the percentage of settlements with gag orders from 95% to 0% very quickly.

Filed Under: 1st amendment, 4th circuit, ashley overbey, free speech, non-disparagement

Appeals Court: Stored Communications Act Privacy Protections Cover Opened And Read Emails

from the shouldn't-have-needed-to-be-said,-but-at-least-it-was-said-forcefully dept

The Fourth Circuit Court of Appeals has handed down an important decision [PDF] bolstering privacy protections for stored email. As we're painfully aware, unopened email older than 180 days is granted zero privacy protections, treated like unopened snail mail left at the post office. Opened email, on the other hand, would seem to carry an expectation of privacy, but a district court ruling came to exactly the opposite conclusion, prompting this appeal.

A lawsuit involving a pair of affairs and one party's decision to read someone else's emails surfaced a question not often posed without a government party involved. Here's the court's summary of the convoluted backstory that led to accusations of federal law violations:

From August 2011 to February 2015, [Patrick] Hately had an intimate relationship with Nicole Torrenzano (“Nicole”), with whom Hately has two children. During their relationship, Hately and Nicole shared login and password information for their email accounts—including Hately’s Blue Ridge College email account. But when, about March 2015, Nicole informed Hately that she also was involved in an intimate relationship with [Dr. David] Watts, who was her co-worker and married to Audrey Hallinan Watts (“Audrey”), Hately and Nicole separated.

Pertinent to this action, Hately did not change the password that he shared with Nicole for his Blue Ridge College email account. Watts and Nicole continued their personal relationship, and during the fall of 2015, Watts and Audrey initiated divorce proceedings. In an effort to help Watts in his divorce proceedings, Nicole told Watts that Hately and Audrey were having an affair. Nicole said she knew of emails between Hately and Audrey that Watts could obtain by using the password that she had to Hately’s Blue Ridge College email account.

This certainly doesn't make what Watts did OK, but he seemed to feel it at least made his actions legal.

Watts stated that he used the password Nicole gave him to browse through Hately’s emails but contended that he “did not open or view any email that was unopened, marked as unread, previously deleted, or in the [student email account]’s ‘trash’ folder.”

This bizarre defense of invading someone else's privacy convinced the lower court that Watts' actions were legally in the clear, even if they were clearly morally wrong. It dismissed his Stored Communications Act claims against Watts, stating that the SCA did not protect opened email. According to the lower court, the only email protected by the SCA is email still in transit. Once it's been downloaded and opened, it's apparently cool for other people to access and read, even if it's not their email account.

With this bizarre take, the lower court basically stated spam email routed directly to the trash has more privacy protections than direct communications between living, breathing persons. The appeals court points out this interpretation is off base by a long distance. A lengthy discussion of the SCA and Congressional intent -- along with a revival of Hately's state law claims -- takes up a great deal of the opinion's 55 pages.

Dr. Watts -- the email interloper -- argued the SCA did not protect these communications because the Blue Ridge College email server was not an "electronic communication service," but rather a "remote computing device." This argument hinged on the email system's construction, which used Google's services for transmitting and storing email. But the university also stored a copy of all Blue Ridge email on its own servers as a backup for users. This crucial fact restores the expectation of privacy, according to the appeals court, which points out Blue Ridge's backup server actually makes it both.

The district court's reasoning rests on the premise that, for purposes of the emails in question, Blue Ridge College's email service could not simultaneously function as both an electronic communication service and a remote computing service. But nothing in the plain language of the definitions of electronic communication service and remote computing service precludes an entity from simultaneously functioning as both.

There is no logical or technological obstacle to an entity "provid[ing] to users thereof the ability to send or receive wire or electronic communications"—i.e., functioning as an electronic communication service—while, and as part of the same service, "provi[ding] the public [with] computer storage or processing services by means of an electronic communications system"—i.e., functioning as a remote computing service. And the relevant legislative history expressly contemplates as much, stating that "remote computing services may also provide electronic communication services." S. Rep. No. 99-541, at 14; see also H.R. Rep. No. 99-647, at 64 ("[T]o the extent that a remote computing service is provided through an Electronic Communication Service, then such service is also protected [under Section 2701(a)].").

As the appeals court notes, it makes no sense to suggest email users consider opened email worthy of less protection than others they've sent directly to the trash without reading. Servers like the one used by Blue Ridge to back up the Google-based email system are the end result of users' desires. Users want to store emails for later reading or use. And Congress -- even with its horribly-outdated Stored Communications Act -- recognized the privacy inherent to these personal communications. This covers delivered and opened email, no matter where the original or its backup resides.

To read the law otherwise is to upend the personal nature of email communications, allowing almost anyone to access anyone else's email without permission and face zero consequences (at least under federal law) for doing so.

The district court’s construction of Subsection (B)—that previously delivered and opened emails stored by a web-based email service are not in “electronic storage” and therefore not actionable under Section 2701(a)(1)—would materially undermine these objectives. Potential users of web-based-email services—like Blue Ridge College’s email service—would be deterred from using such services, knowing that unauthorized individuals and entities could access many, if not most, of the users’ most sensitive emails without running afoul of federal law. Likewise, without the prospect of liability under federal law, unauthorized entities will face minimal adverse consequences for accessing, and using for their own benefit, communications to which they are not a party. The legislative history establishes that Congress did not intend such a result.

The district court’s interpretation of Subsection (B)—which would protect only unread emails stored in by web-based email service—also leads to an arbitrary and untenable “gap” in the legal protection of electronic communications.

Back the case goes to the lower court, reversed and remanded with instructions to reach a less illogical conclusion. And in doing so, the appeals court sets an important precedent that clarifies what the SCA actually covers.

Filed Under: 4th circuit, ecpa, emails, privacy, stored communications act

Appeals Court Tells DOJ To Drop The Glomar And Hand Over Records About Prosecutorial Misconduct To Requester

from the after-the-fact-and-after-the-injustice dept

A man convicted for fraud makes his second appearance in the Fourth Circuit Appeals Court. The first was an attempt to have his sentence vacated via complaints of prosecutorial misconduct. Gregory Bartko not only discovered a government witness had perjured himself, but during his trial, the prosecution routinely delayed its production of evidence -- something the district court noticed. It didn't result in a new trial, but it did bring judicial hellfire down on the heads of the prosecution team.

The Fourth Circuit's 2013 decision doesn't pull punches.

A cursory review of this Court’s opinions reveals recent consideration of at least three cases involving discovery abuse by government counsel in this district. [...] And this case, which confronts us with three alleged constitutional violations—two instances of withholding discoverable evidence and one choice to leave uncorrected a witness’s false testimony—only adds to the list.

[...]

Mistakes happen. Flawless trials are desirable but rarely attainable. Nevertheless, the frequency of the “flubs” committed by this office raises questions regarding whether the errors are fairly characterized as unintentional…

[Quoting an earlier case involving the same prosecutor's office] “This is a repeat offense by the government. The order is entered by the court requiring disclosure by a certain date, and the government simply ignores it. And their explanation for ignoring it is, ‘I missed it. So what. There’s no prejudice.’ And it just happens again and again.”

Moreover, the government’s responses to queries regarding its practices are less than satisfactory. For example, in this case, when asked at oral argument about its failure to correct Scott Hollenbeck’s testimonial misstatement regarding promises he had received, the government suggested that at the time Hollenbeck made the misstatement, trial counsel had no recollection of the promises made to him. But as Judge Keenan aptly noted, such an idea “just strains credulity.” [...] And here, when we gave counsel an opportunity to correct her farfetched assertion, she refused. Faced with such behavior, we must conclude that this office is uninterested in placating concerns about its practices.

In this case, the multiple prosecutorial "errors" failed to undermine the case against Bartko, resulting in the government getting away with multiple due process violations. The court notes this is the government acting in bad faith and rolling the dice that the presented case will survive its misconduct.

Remedies elude defendants because discovery violations ultimately prove immaterial to the verdict. But that is not the true problem. The problem is that the government appears to be betting on the probability that reams of condemning evidence will shield defendants’ convictions on appeal such that at the trial stage, it can permissibly withhold discoverable materials and ignore false testimony.

The court noted the violations may have been "harmless" in the context of this specific case, but they are far from harmless in terms of due process. The appeals court asked the DOJ's Office of Professional Responsibility to investigate the US Attorney's office in North Carolina -- especially prosecutor Clay Wheeler's [ed: oh, the irony available at that link] -- repeated flouting of discovery rules and orders.

Five years later, Bartko is receiving his second opinion from the Fourth Circuit Court of Appeals -- this time pertaining to the DOJ's repeated refusal to hand over documents, specifically those related to the OPR's investigation of the prosecutor's office involved in his criminal case. The DOJ handed over a few documents listing Bartko as the "complainant," but for everything related to the court-requested investigation it gave him a Glomar.

The court is about as impressed with the OPR's arguments as it was with prosecutor Clay Wheeler and the US Attorney's Office during its last discussion with Bartko. From the opinion [PDF]:

Because Exemption 7(C) shields from disclosure “records or information compiled for law enforcement purposes” that “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C), to invoke Glomar, OPR had to make a threshold showing that the FOIA request seeks records “compiled for law enforcement purposes.” OPR also bore the burden of making an across-the-board showing that the privacy interest the government asserts categorically outweighs any public interest.

[...]

In defense of its sweeping Glomar response, OPR offered only a bare-bones declaration that “[t]he records requested by [Bartko] from OPR consist of complaints or allegations of misconduct which, if they exist, would have been compiled as part of OPR’s investigations of Department of Justice attorneys who are alleged to have committed specific acts of professional misconduct which, if proved, could result in civil or criminal penalties.” J.A. 207. That is not even in the ballpark.

Not only that, but the OPR's own statements on its investigatory process made it clear most cases are closed quickly due to lack of evidence and those that survive are shopped out to other offices to handle reprimands, etc. As the court notes, this disconnects OPR from its firmly-held illusion that it possesses "law enforcement" info.

[The] description of OPR’s review process reveals just how attenuated its “law enforcement” function is. For starters, most matters do not even result in an investigation, making a finding of law-enforcement-triggering misconduct implausible in the vast majority of cases. That summary treatment seems to have been what was accorded to the Fourth Circuit’s referral in Wheeler’s case because there is no record evidence or attestations from OPR indicating that they interviewed witnesses or requested additional documents for review.

The OPR also claimed any release of investigation records would violate prosecutor Clay Wheeler's privacy. The court says there's a slim possibility that might be true, but the DOJ has provided no reason for it to believe these assertions.

Much like its vaporous justification for claiming that the requested documents constituted law-enforcement records, OPR just sweepingly asserted that the disclosure of any record regarding any allegation of misconduct would be an unwarranted invasion of Wheeler’s privacy. OPR ignores altogether its obligation to specifically identify the privacy interest at stake, which can vary based on many factors, including frequency, nature, and severity of the allegations.

Not only that, but there's more than Wheeler's privacy interest at stake. The public also has a right to know about government misconduct -- an interest the DOJ apparently believes doesn't exist.

OPR also made no apparent effort to weigh any privacy interest against the countervailing public interest in the disclosure of information concerning allegations of government attorneys’ misconduct. OPR cannot issue a blanket proclamation that a loss of privacy would be “unwarranted” without considering whether there is a public interest that might well warrant it.

This puts Bartko in line for some disclosure, roughly five years after he asked for it. Unfortunately, it appears from what little he has received, the prosecutor who engaged in misconduct was allowed to resign and avoid an OPR investigation. But what he will finally obtain should show how often that office engaged in behavior bad enough to warrant official court notice. And that's something of interest to everyone, not just the person whose case suffered directly from this abuse of due process.

Filed Under: 4th circuit, doj, glomar, public records

Fourth Amendment Gets A Small Boost At The Border From Fourth Circuit Appeals Court

from the better-than-maintaining-the-status-quo dept

The Fourth Circuit Appeals Court has handed down a decision [PDF] suggesting the Fourth Amendment might still provide some minimal protection at our nation's borders. Most rights are considered to be waived -- especially those affecting privacy -- thanks to a prevailing national security interest that is seldom challenged by courts. Two years ago, a California federal court looked at the Supreme Court's Riley decision (which instituted a warrant requirement for cellphone searches) and decided that simply didn't apply within 100 miles of US borders.

This precedential decision doesn't cut the government quite as much slack. While it recognizes border security is a national priority, it's not as quick to give federal agencies a free pass on Fourth Amendment exceptions. The underlying facts make it a less-than-ideal challenge, but even so, the court finds enough to work with in the Riley decision to suggest not all border searches should be suspicionless.

Hamza Kolsuz, the appellant, had been caught twice exiting the country with firearms parts in his luggage. Those incidents occurred in 2012 and 2013. The parts were seized both times, with federal agents explaining licensing requirements but choosing not to arrest Kolsuz for violating federal law.

In 2016, the same thing happened again. Agents searched his luggage and found firearms parts. One agent then performed a cursory examination of the phone Kolsuz was carrying. This search the court has zero issues with. It's easily covered by the border search exception.

At a border – or at a border’s “functional equivalent,” like the international airport at which Kolsuz was intercepted – government agents may conduct “routine” searches and seizures of persons and property without a warrant or any individualized suspicion.

Not much Fourth to be had there and the underlying circumstances -- the discovery of more firearms parts being moved out the country without proper export licenses -- gave the agents more reasonable suspicion than they actually needed.

But it wasn't the only search performed on Kolsuz's phone. An offsite forensic search followed the airport search.

At that point, CBP Special Agent Adam Coppolo initiated the second search of Kolsuz’s phone, this one commonly known as a “forensic” search. Coppolo first transported the phone approximately four miles from Dulles to the Homeland Security Investigations office in Sterling, Virginia. There, Computer Forensic Agent Michael Del Vacchio attached the phone to a Cellebrite Physical Analyzer, which extracts data from electronic devices, and conducted an advanced logical file system extraction. The phone remained in airplane mode throughout, so the forensic examination did not reach data stored remotely – or “in the cloud” – and was instead limited to data stored on the phone itself. Even so, the data extraction process lasted for a full month, and yielded an 896- page report that included Kolsuz’s personal contact lists, emails, messenger conversations, photographs, videos, calendar, web browsing history, and call logs, along with a history of Kolsuz’s physical location down to precise GPS coordinates.

This search was challenged, with Kolsuz arguing the phone was no longer being searched under the border exception, but rather as "cident to arrest," subject to the Supreme Court's Riley decision. The court agrees… to a point. It doesn't find that taking the phone offsite for a deeper search affected the "border search" nexus. The search was still related to the transnational crime of weapons smuggling. It's the intrusiveness of the search that troubles the court.

We also agree with the district court that under Riley, the forensic examination of Kolsuz’s phone must be considered a nonroutine border search, requiring some measure of individualized suspicion.

It's not quite a warrant requirement, but it does suggest federal agents should no longer perform highly-intrusive searches without justification. However, the court won't go as far as to institute a warrant requirement.

What precisely that standard should be – whether reasonable suspicion is enough, as the district court concluded, or whether there must be a warrant based on probable cause, as Kolsuz suggests – is a question we need not resolve: Because the agents who conducted the search reasonably relied on precedent holding that no warrant was required, suppression of the report would be inappropriate even if we disagreed.

It's not a hugely helpful decision but it does show this court isn't willing to allow the border search exception to continue to expand, swallowing up the few shreds of Fourth Amendment that remain. Forensic searches must be justified with at least particularized reasonable suspicion, which is more than other courts have been willing to hold.

Filed Under: 4th amendment, 4th circuit, border, border exception, device searches, forensic search, hamza kolsuz, privacy

Appeals Court: Handcuffing A Compliant Ten-Year-Old Is Unreasonable But Deputy Had No Way Of Knowing That

from the those-without-common-sense-will-inherit-the-earth dept

Time and time again, courts remind officers of the law don't actually have to know the law to enforce the law. Yes, that's how it all works out for citizens, who are just as frequently reminded ignorance of the law is no excuse. This has lead to the prevalence of pretextual stops where minor traffic violations (that may not even be violations) are used to initiate long conversations with law enforcement officers with the end goal of obtaining consent for a search or to bring a drug dog onto the scene.

Qualified immunity, along with the good faith exception, have allowed an untold amount of law enforcement abuse. This has completely skewed judicial perception, turning law enforcement into noble fools and raising expectations of citizens' legal knowledge to that of seasoned criminal defense lawyers. Here's how occasional Techdirt contributor Andrew Norton breaks down the current state of judicial affairs:

2005, when [Tasers] were still being introduced to law enforcement at large, was a bad year for taser-victims, but not cops. In a California case, Bryan v. McPhearson, the court decided the officer’s actions qualified under the doctrine of qualified immunity (cops will only be responsible for excessive force if they act in a way that is so unreasonable any cop would have known such conduct was against the law – basically acting criminally) Since ‘the law on taser police brutality’ was still evolving when the incident happened in 2005 the cop should get a break from liability. You read that right, because no-one had told the cop, he didn’t have any notion of right and wrong. Ignorance is an excuse, if you wear the badge.

It’s this that characterizes many police brutality and excessive force cases. On one hand the police officers are professionals dedicated to knowing and enforcing the law, when they’re on the prosecuting side, their word is solid and their testimony is unquestionable. However if they’re a defendant, they’re amateurs who don’t know the law, can’t tell right from wrong, and whose training and instincts are so poor, that they can’t be held responsible for decisions made when doing their job because they have to do them quickly.

That's the ugly reality. Things that seem obvious to citizens are somehow inscrutable to police officers with years of legal training and, quite often, a degree in criminal law. Yet another "case in point" is this recent Fourth Circuit Appeals Court decision, in which something that seems obviously wrong is given a judicial hand-wave because the obvious wrong had not been "clearly established" by these judges in this circuit dealing with a carbon copy of these circumstances.

The civil rights lawsuit involves a minor who was in fourth grade at the time the violation occurred. E.W. is the minor suing. A bus surveillance camera caught her and another student fighting on the bus. Both were suspended by the school from riding the bus.

For whatever reason, the school didn't do anything about the altercation for 72 hours. Then they called in deputy sheriff Rosemary Dolgos, the school's resource officer. Dolgos questioned the other party in the fight and asked if she was injured. A.W. (the other minor in the altercation) showed the officer a couple of small bruises on her leg.

E.W. was summoned to the office. According to the deputy, E.W. didn't seem to care enough about the fight on the bus. From the opinion [PDF]:

Dolgos attempted to emphasize to E.W. the seriousness of the situation and the possible repercussions, telling her that adults could be jailed for such behavior. Still, in Dolgos’s opinion, “E.W. continued to act as if the situation simply was not a ‘big deal.’”

It wasn't a big deal. Or at least it wasn't something the school couldn't have handled without a law enforcement officer. But since a law enforcement officer was involved, law enforcement proceeded without any regard for the actual severity of the situation. Deputy Dolgos, presiding over an apathetic fourth grader, feared for her safety.

Dolgos placed E.W. in handcuffs from behind and reseated her. Dolgos inserted two fingers between the handcuffs and E.W.’s wrists to ensure that they were not too tight. In her affidavit, Dolgos stated that she was concerned about the physical safety of herself and the school administrators because of both the incident she observed in the surveillance video and E.W.’s apathy. Dolgos expressed concern in the affidavit that E.W. might act violently against her or someone else if she attempted to walk E.W. from the school to her patrol car.

Dolgos based these observations on her lack of knowledge.

Dolgos also admitted, however, that she had no idea whether E.W. had “any past or current behavioral issues or past involvements with law enforcement.”

She also likely could have controlled the situation without handcuffs, especially considering E.W.'s apparent compliance.

According to Dolgos, E.W. stood 4’4” and weighed about 95 pounds, while Dolgos stands 5’4” and weighs 155 pounds.

Once placed in handcuffs, E.W. began crying and apologized for the fight. She said she did not want to go to jail and promised she wouldn't hit A.W. again. Apparently this was the reaction Dolgos was looking for. Having been taken seriously enough as a law enforcement officer, Dolgos removed the cuffs and released E.W.

The school, however, remained unmoved. It contacted E.W.'s mother and told her they would refer the matter to juvenile services. E.W.'s mother responded with disbelief ("[s]o you're going to put my… daughter in the system when she's 10?") and came to the school to retrieve her daughter. The lawsuit followed.

The district court took a brief glance at Dolgos' motion to dismiss and sided with the deputy. The decision was, at best, perfunctory.

In a short paragraph, without citing any case law, the district court concluded that Dolgos’s actions did not amount to excessive force because E.W. was handcuffed for only two minutes and then released to her mother. The court further concluded that Dolgos was “at least” entitled to qualified immunity as to the § 1983 claim.

The appeals court disagrees with the will-this-do assessment of the lower court. It finds the use of force excessive, considering the surrounding circumstances. In doing so, it finds Dolgos' assertions ridiculous.

Here, Dolgos could not have reasonably believed that E.W. presented any immediate risk of harm to anyone. Like the adult suspect in Solomon, E.W. had no weapons and made no threats, see 389 F.3d at 174, and like the eleven-year-old in Sonora, she was calm and compliant as Dolgos spoke to her, see 769 F.3d at 1030. In fact, Dolgos recognized that E.W. appeared calm. See J.A. 23–24. Also similar to the suspects in Solomon and Sonora, E.W., at 4’4” and ninety-five pounds, was quite small relative to Dolgos, the arresting officer, who was a foot taller and sixty pounds heavier. See Sonora, 769 F.3d at 1030; Solomon, 389 F.3d at 174. Not to mention, E.W. was in a closed office and surrounded by two school administrators and a deputy sheriff. Given these facts, E.W. posed little threat even if she were to become aggressive.

The significant time that had elapsed—without incident—since the fight on the bus further negates any notion that E.W. posed an immediate threat. While the scuffle took place on Tuesday, January 6, East Salisbury Elementary School waited three days to even contact Dolgos. In the interim, E.W. was allowed to and did in fact attend school without incident, indicating that she did not pose a risk to the children around her, much less to the adults.

In addition, the ignorance of the underlying circumstances Dolgos admitted to (and likely hoped would weigh in her favor by making her unreasonable actions reasonable) only further adds to the factors weighing against handcuffing a compliant 10-year-old.

Moreover, Dolgos had no reason to think that the scuffle between E.W. and A.W. was anything but an isolated incident. E.W. had no prior behavioral issues or involvement with law enforcement, nor did Dolgos have any indication that she did. The use of force is an intrusion on Fourth Amendment rights, and an officer must have a reason for using or escalating force. See Graham, 490 U.S. at 396 (intrusions on Fourth Amendment rights must be reasonably necessary given countervailing governmental interests). Even as to the altercation on the school bus, E.W., while unjustified in retaliating, did not become violent without physical provocation by A.W. Indeed, even a child with a history of attacking school officials should not be handcuffed if, at the time of handcuffing, she did not present a danger.

The appeals court also points to plenty of precedent, finding that handcuffing children tends to be excessive force in almost any situation. It also notes that the use of handcuffs in a school setting tends to undermine the mission of schools and school personnel. Students who see other students handcuffed for behavior that could be addressed by parental or school discipline are far more likely to distrust school administration and will be less likely to bring disciplinary issues to their attention. In extreme cases, parents and students may decide to take their scholastic business elsewhere, leaving the school with fewer students.

The court finds Deputy Dolgos violated the Fourth Amendment.

Dolgos took a situation where there was no need for any physical force and used unreasonable force disproportionate to the circumstances presented. We therefore find that Dolgos’s actions amount to excessive force. As such, E.W. has demonstrated a violation of her constitutional rights under the Fourth Amendment.

But here's where it all goes haywire. The court lists numerous reasons -- including circuit precedent -- why Dolgos should have known handcuffing children (absent extreme circumstances) would result in Fourth Amendment violations. It holds that this handcuffing was a Fourth Amendment violation. And then it goes on to declare that Dolgos can rely on her ignorance and her complete lack of better judgment to escape liability.

Conversely, it was not obvious that Dolgos could not handcuff E.W. here. Although precedent supports the conclusion that Dolgos acted unreasonably and violated E.W.’s Fourth Amendment rights, it did not put Dolgos on sufficient notice that her conduct was unlawful. Indeed, this Court previously stated that the use of handcuffs would “rarely” be considered excessive force when the officer has probable cause for the underlying arrest. See Brown, 278 F.3d at 369. And the parties do not point us to any controlling authority sufficiently similar to the situation Dolgos confronted. In fact, E.W. chiefly relies on Graham to define the clearly established law. Without more, we cannot conclude that it would have necessarily been clear to a reasonable officer that handcuffing E.W. would give rise to a Fourth Amendment violation.

This will help handcuffed students in the future, but it does nothing for E.W. And this conclusion comes after a lengthy diversion in the opinion in which the concurring opinion is called out for its willingness to say that handcuffing children reasonable.

The concurrence seems to suggest that elementary school children like E.W. are so inherently unpredictable and uncontrollable that officers would be reasonable in restraining them for our collective safety. Unsurprisingly, the concurrence’s authorities do not actually support that position or apply to this case. The concurrence cites to Knox Cty. Educ. Ass’n v. Knox Cty. Bd. of Educ., 158 F.3d 361 (6th Cir. 1998), for the proposition that young children are “unpredictable, in need of constant attention and supervision,” such that “[e]ven momentary inattention or delay in dealing with a potentially dangerous or emergency situation could have grievous consequences.” Post at 41 (quoting Knox, 158 F.3d at 378). What the concurrence leaves out is that Knox was discussing whether teachers may be required to undergo drug-testing in order to protect young children, who “could cause harm to themselves or others while playing at recess, eating lunch in the cafeteria (if for example, they began choking), or simply horsing around with each other.” See 158 F.3d at 378–79. Unless the concurrence suggests that we handcuff children as a reasonable method of “supervision” to prevent choking and horseplay, Knox has little relevance to the case at hand.

So, the concurrence is only right so far as it agrees with the rest of the court that Deputy Dolgos can walk into a school office and slap handcuffs on a ten-year-old without having to worry about being held liable for violating the student's Fourth Amendment rights. On all other points, it's somehow wrong, but only because it chose the wrong standard of law enforcement ignorance to cite. The concurring opinion somehow manages to be worse than the majority opinion, because it wouldn't even go so far as to establish the handcuffing of compliant prepubescents as "unreasonable."

This is a good decision as far as establishing a baseline goes, but the cases cited suggest the baseline had already been set, but only as to eight-year-olds (James v. Frederick Cty. Pub. Sch.) and eleven-year-olds (Tekle v. United States). Ten-year-olds are apparently in need of their own separate precedent. This is how much the doctrine of qualified immunity has erased the word "justice" from the justice system. Anyone who suffers a Fourth Amendment violation had better hope someone in exactly the same circumstances landed a appellate unicorn with their lawsuit, or law enforcement skates away with another win and a very slight narrowing of the scope of civil rights violations officers can get away with.

Filed Under: 10 year olds, 4th circuit, civil liberties, cruel and unusual, handcuffs, kids, police, police brutality

Appeals Court Revives Wikimedia's Lawsuit Against The NSA

from the doesn't-'collect-it-all'-mean-'collect-it-all?' dept

Back in 2015, Wikimedia's lawsuit against the NSA -- filed with several other plaintiffs and with the help of the ACLU -- was tossed out by the district court. Wikimedia argued it was illegally the subject of NSA upstream surveillance, thanks to the nature of this Section 702 collection. Wikimedia's reach is global, making it highly likely the NSA was gathering its content and communications while snagging data off internet backbones.

To further demonstrate the probability of this happening, Wikipedia submitted leaked Snowden documents, including an NSA presentation slide that contained Wikimedia's logo.

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No dice. The district court said Wikimedia had no standing to pursue these claims, even with the unexpected buttress of leaked NSA documents. The court went even further, disabusing Wikipedia of its "99.9999999999% certainty" notion that the NSA had illegally harvested at least one of its trillions of internet transactions. In all, it was a very ugly day for Wikimedia and its lawsuit.

Fortunately, for Wikimedia, its lawsuit has been revived on appeal. The Fourth Circuit Appeals Court is far more amenable to Wikimedia's claims, finding them to be more credible than the lower court determined. From the opinion [PDF]:

[A]t least at this stage of the litigation, Wikimedia has standing to sue for a violation of the Fourth Amendment. And, because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the First Amendment.

The court doesn't necessarily treat all of Wikimedia's allegations as true, but finds it has handed over enough background evidence to give it standing to pursue its First and Fourth Amendment claims.

But this revival is limited to Wikimedia and only some of its claims. The seven other plaintiffs aren't invited to the next district court round. A lack of produced evidence appears to have killed off the "dragnet" claims raised by the plaintiffs (which includes Wikimedia). The other defendants have a much smaller web footprint, making it less plausible their communications were subjected to upstream collection by the NSA. The only way those claims would be plausible is if the court found the "dragnet" assertions plausible… which it doesn't.

The Dragnet and Wikimedia Allegations share much in common. Because each alleges the same particularized and ongoing cognizable injuries, our analysis of the injury-in-fact, traceability, and redressability elements of Article III standing with respect to the Wikimedia Allegation also applies here. But there’s a key difference in the scope of the two allegations. In the Dragnet Allegation, Plaintiffs must plausibly establish that the NSA is intercepting “substantially all” text-based communications entering and leaving the United States, whereas it’s sufficient for purposes of the Wikimedia Allegation to show that the NSA is conducting Upstream surveillance on a single backbone link. Because Plaintiffs don’t assert enough facts about Upstream’s operational scope to plausibly allege a dragnet, they have no Article III standing.

The difference between the two claims is one of numbers. Wikimedia only had to show its traffic traveled across enough internet backbones to plausibly claim harvesting from any one of them would result in interception of its communications. The "dragnet" argument claims the NSA is harvesting almost everything that travels across multiple backbones. The majority finds this assertion unlikely. The dissent, however, says the same arguments Wikimedia put forth to demonstrate the probability of illegally-intercepted communications lend credence to the "dragnet" argument simply because that's how internet traffic works.

Plaintiffs have plausibly alleged that the NSA surveils most backbone links because — based on the technical rules governing internet communications — the agency cannot know which link the communications it targets will traverse when they enter or leave the United States. The path that packets take along the internet backbone is determined dynamically based on unpredictable conditions. Thus, a communication sent by a surveillance target can enter the United States through one backbone link, but an immediate response returned to the surveillance target can traverse a different backbone link. Similarly, communications sent by a surveillance target at different times or locations can traverse different backbone links. Given this technical limitation, the government’s disclosure that the NSA seeks to “comprehensively acquire communications that are sent to or from its targets,” J.A. 49, renders Plaintiffs’ allegation plausible. If the NSA cannot know which backbone link its targets’ internet communications will traverse, then the only way it can comprehensively acquire its targets’ communications is by surveilling virtually every backbone link.

It's a good point but it's not enough to save the rest of the plaintiffs, which include the National Association of Criminal Defense Lawyers, Human Rights Watch, and Amnesty International. Perhaps a further examination of Wikimedia's arguments by the lower court will aid these plaintiffs in their future legal endeavors.

Filed Under: 4th circuit, nsa, section 702, standing, surveillance, upstream collection
Companies: wikimedia