Federal Judge Says Indiana's Vehicle Forfeiture Laws Are Unconstitutional

from the state-cops-earn-a-federal-permaban dept

More good news on the forfeiture front: Nick Sibilla of forfeiture watchdogs Institute for Justice reports a federal judge has declared one of Indiana's civil asset forfeiture laws unconstitutional.

In a major win for private property rights, a federal judge ruled that Indiana can no longer seize vehicles under its controversial civil forfeiture laws, which allow police to confiscate property without filing criminal charges. Judge Jane Magnus-Stinson ruled that Indiana's laws were unconstitutional because they failed to provide a timely hearing for the property owner to contest the seizure.

The case springs from an arrest and seizure made last September when the plaintiff was pulled over by Indianapolis law enforcement. Finding a small amount of marijuana on the driver, the Indy PD felt justified in claiming his entire vehicle as its own. Not content to be screwed out of a car for his personal use stash, Leroy Washington enlisted the help of defense lawyer Jeff Cardella. They filed a class action lawsuit challenging the state's forfeiture law on behalf of the hundreds of drivers whose cars have ended up in the possession of Indiana law enforcement -- all without being convicted of any criminal activity.

Seizing cars is something Indiana law enforcement does frequently. According to the stats quoted by the judge, the state seizes around 11 cars a week. Once the vehicles are in the law enforcement's possession, drivers are forbidden from seeking to regain their property until the state says it's OK to do so. And it's generally in no hurry to do so. It can hold the vehicle for six months before starting forfeiture proceedings, forcing car owners to find other transportation while their vehicles sit in impound lots.

As the judge notes in the decision [PDF], this law -- which locks car owners out of the loop for months -- poses significant problems for people who haven't been convicted of criminal activity.

Following a seizure, the government may hold a vehicle without taking any action for 180 days, or for 90 days after receiving written notice from the owner demanding the vehicle's return. Ind. Code § 34-24-1-3. During this timeframe, the owner of the property has no ability to challenge the seizure, because replevin is prohibited by the statute. Ind. Code § 34- 24-1-2(c) (“Property that is seized under subsection (a) … is not subject to replevin but is considered to be in the custody of the law enforcement agency making the seizure.”).

Therefore, three to six months may elapse, during which time the owner is deprived of the use of his vehicle, and the government is not required to take any action whatsoever regarding the seized property. It is particularly problematic that the statute specifically bars replevin. Absent another statutorily created mechanism to challenge the deprivation, replevin would provide a vehicle owner’s only recourse. But that avenue has been specifically foreclosed by the statute. During those months, if the owner has secured financing to purchase the vehicle, he is still required to make payments on that loan, lest he risk foreclosure and repossession. He is also required, of course, to make other arrangements for his transportation needs, which may include fundamental life activities such as transit to a job or school, visits to health care professionals, and caretaking for children or other family members. It is evident to this Court that a three- to six-month deprivation is a lengthy one, and could cause significant hardship to the individual whose vehicle is seized.

[...]

Second, unlike some states’ statutes, Indiana’s forfeiture provisions do not allow for interim relief during the pendency of proceedings. Such interim relief could include returning the seized vehicle subject to the posting of a surety bond or other adequate security. [...] The absence of an opportunity for interim relief particularly burdens individuals who lack the financial resources to secure another vehicle during the pendency of proceedings, or who are unable to access reliable public transportation.

As the court concludes, this process -- enabled by state law -- makes a mockery of Constitutional rights.

[I]ndiana Code Section 34-24-1-1(a)(1), as read in conjunction with the statutory provisions of the same chapter, violates the Due Process Clause of the Fifth and Fourteenth Amendments. The Court therefore permanently enjoins Defendants from enforcing that statutory provision.

This is exactly the conclusion Indiana's law enforcement didn't want the court to reach. In hopes of heading off the lawsuit (and this precedent), the state argued the return of Washington's vehicle rendered the case moot. The court doesn't care for this dodge, and points out it's exactly the sort of move anticipated both by Washington's earlier briefs and the court itself:

The Court concludes (as it did in its order denying Defendants’ Motion to Dismiss) that Washington has established that the inherently transitory doctrine applies here. First, it is uncertain that a claim will remain live for any individual who could be named as a plaintiff long enough for a court to certify the class. The statute itself limits the pre-forfeiture period to 180 days. As the procedural history of this case illustrates, despite a district court’s best efforts to provide prompt resolution to all pending matters, the realities of a district court’s docket and case load (along with the possibility that the parties may need additional time to conduct discovery related to class certification) may result in motions to certify being unresolved for longer than 180 days. In this case, Washington’s Motion to Certify a Class was filed on November 2, 2016—more than 180 days before the issuance of an order resolving it. [Filing No. 3.] And, as the State retains discretion to return the seized property to its owner at any time, it could attempt to moot any named plaintiff’s claim by simply returning the property after the plaintiff files a motion to certify.

It further points out mooting Washington wouldn't moot the class action, which includes everyone similarly situated -- both now and in the future.

Second, there will be a constant class of persons suffering the deprivation complained of in the Complaint. Defendants have not indicated any intention to cease enforcement of the statute, and Defendants do not dispute that at least 169 vehicles have been seized for forfeiture between November 2, 2016 and February 13, 2017.

The end result is a federal injunction preventing Indiana law enforcement from seizing vehicles without better recovery routes available for car owners. Since the adjoining clause walking all over the Constitution hasn't been rewritten yet, this pretty much means the end of vehicle seizures until that's addressed by the legislature. Considering state lawmakers were already considering forfeiture reforms, this might mark the permanent end of taking cars away from people without obtaining corresponding convictions.

Filed Under: asset forfeiture, civil asset forfeiture, forfeiture, indiana, legalized theft

VP Elect Mike Pence Goes To Court To Keep His Emails Secret

from the hypocrisy-again dept

After making it a key plank of the Trump/Pence campaign that the public needed to see what was in Hillary Clinton's emails, it does seem somewhat ironic that VP Elect Mike Pence is now headed to court to protect what's in some of his emails as governor of Indiana.

The administration is fighting to conceal the contents of an email sent to Gov. Mike Pence by a political ally. That email is being sought by a prominent Democratic labor lawyer who says he wants to expose waste in the Republican administration.

The circumstances are different, but the general principle is the same -- and there's a really important issue at stake when it comes to FOIA and public records issues. The background is fairly convoluted, but here's a quick summary. After President Obama announced a plan to defer enforcement of certain immigration laws for certain individuals, a few states were upset about it, and Texas and Indiana (where Pence is governor) sued the President. Pence hired an outside law firm to handle the case, and a local lawyer thought this was a waste of taxpayer funds. The lawyer filed public records requests to get access to emails about the decision to hire the law firm and to find out the costs to taxpayers.

Pence's office released some emails, but they were apparently redacted in places -- and in one case an email referred to an attached white paper that was not included. The lawyer who filed the request, William Groth, went to court to demand that the Pence administration reveal the full email with the attached white paper. The Pence administration has argued that it's not subject to public records requests as "attorney-client" work material -- but also that the courts are not allowed to question what the government chooses to release or redact under public records laws. A lower court agreed -- following an Indiana Supreme Court ruling saying that the courts cannot "meddle" in public records decisions by the legislative or executive branch due to "separation of powers." That's a bizarre reading of the law that seems to actually turn the concept of separation of powers on its head, as it kind of destroys a key part of that separation: the checks and balances of the three branches of government.

Either way, Groth has appealed, and that means that Pence is effectively going to court to argue that his emails as governor need not be revealed. Now, you can (and I'm sure some folks will...) argue that this is entirely different than the Clinton situation. But... it really isn't. The key issue in talking about the "33,000" emails that Clinton supposedly deleted was the fact that her legal team basically made the decision by themselves what documents were related to her government work and should be turned over, and which were personal, and thus deleted. If Pence is arguing that his office alone should get to determine which emails can be revealed and which cannot, it seems fairly hypocritical of him to also have argued that Clinton and her team shouldn't have been able to make the same decision.

But, of course, this is politics and the only real form of consistency is you argue for what benefits you and your team, no matter how contradictory it may be compared to when you're in similar situations.

But getting beyond the hypocritical symmetry here, this is an incredibly important issue. For many, many years, we've reported on how various governments -- federal, state, local -- seem to go out of their way to avoid truly complying with various FOIA and public records regulations. Indiana's ruling that such decisions cannot be challenged in court is ridiculous and basically takes away all of the power behind the state's public records law. Government officials can just refuse to release or redact whatever they want and get away with it. That's not any way to create government transparency. It's a way to hide corruption and sketchy behavior.

Filed Under: emails, foia, hillary clinton, indiana, mike pence, public records, redaction, separation of powers

Homeland Security Wants To Subpoena Us Over A Clearly Hyperbolic Techdirt Comment

from the guys,-calm-down dept

Earlier this week, one of our writers, Tim Cushing, had a story about yet another abuse of the civil asset forfeiture procedure. You can read that whole story for the details, but the short version is that US Customs & Border Patrol, along with Hancock County (Indiana) Sheriff's Dept. officers, decided to seize $240,000 in cash from a guy named Najeh Muhana. Muhana sought to get that cash back, but after a series of ridiculous communications, his lawyer was told that Customs and Border Patrol in Ohio was keeping the money, and that Muhana had "waived his rights to the currency." This was not true, and certainly appeared to be pretty sketchy. Because of all of this, Muhana filed a lawsuit against US Customs & Border Patrol asking for his money back.

Not surprisingly, this story of what many would argue is just blatant theft by law enforcement (the people who are supposed to be protecting us from theft) upset a number of folks who expressed their frustrations in the comments -- some using colorful language. That kind of language might not necessarily be considered appropriate in polite company, but isn't entirely out of place in internet forums and discussions where rhetorical hyperbole is not uncommon.

So I have to admit that I was rather surprised yesterday afternoon when we received a phone call from an agent with Homeland Security Investigations (the organization formerly known as ICE for Immigration and Customs Enforcement), asking where they could send a subpoena to identify a commenter on our site. Our lawyer, Paul Levy of Public Citizen Litigation Group, requested more information and we were told that DHS is interested in obtaining user information on the following comment by "Digger."

The only "bonus" these criminals are likely to see could be a bullet to their apparently empty skulls.

The person wronged probably knows people who know people in low places who'd take on the challenge pro-bono, after a proper "cooling-off" period.

Now, that's pretty crude and a bit ridiculous. But it's also pretty obviously not even anything remotely like an actual threat. First off, he's not suggesting that he's looking to do this at all. He's suggesting that "the person wronged" -- by which he likely means Mr. Muhana -- would somehow get some friends to do this. This is pretty ridiculous and almost certainly wrong. Second, he's actually responding to another comment, that reasonably bemoans the likelihood that those involved in all of this will receive no punishment at all.

Now, it's entirely possible that there are more details here involving a legitimate investigation, but it's difficult to believe that's the case given the information we have to date. Also, we have not yet received the subpoena, just the phone calls and emails suggesting that it's on its way. Normally, we'd wait for the details before publishing, but given a very similar situation involving commenters on the site Reason last year, which included a highly questionable and almost certainly unconstitutional gag order preventing Reason from speaking about it, we figured it would be worth posting about it before we've received any such thing.

We have told Homeland Security that we're willing to receive the subpoena and review it, but that based on what we know, we have serious First Amendment concerns about the request itself. Multiple Supreme Court cases, including Rankin v. McPherson and Watts v. United States have made it clear that people have a First Amendment right to say that they hope the President gets shot, let alone a law enforcement agent. It may be rude and uncomfortable, but if it is not an indication of a "true threat," then it is protected. And, as such, the idea of disclosing any information about someone who was clearly engaged in rhetorical hyperbole in an internet forum, likely leading to federal agents showing up at his or her door, is quite troubling to us.

Really, the most ridiculous part of this is why this is what's being investigated, rather than why the government was basically able to just walk away with $240,000 from this guy and ignore his attempts to get his money back.

We will keep you informed... as much as we are able to.

Filed Under: asset forfeiture, comments, dhs, free speech, gag orders, homeland security, homeland security investigations, hsi, ice, indiana, najeh muhana, ohio

Optometrists Push For State Laws Blocking Online Eye Exams

from the no-competition-please,-we're-doctors dept

Billing itself as a sort of Uber-for-eye-exams, telemedicine startup Opternative recently came on the scene offering a quick, inexpensive alternative to traditional optical exams that uses your computer and smartphone. Following a 25-minute online exam, an ophthalmologist will approve your results and issue a prescription for a cost of $40. No doctor visit is required.

Unfortunately, just like Uber, there's a powerful lobby of incumbents who don't want the status quo disrupted. Now they're pushing legislation in several states to shut down online eye exams.

As someone who recently had to get glasses, I like the idea of an online option the next time I need a checkup (and unlike many people, I only have to walk a few blocks from my office to see an eye doctor). Of course, my first question was: "Is it accurate?" But, at least according to its clinical trial, the online version appears to be equivalent in accuracy to its analog counterpart.

The technology is approved in 45 states, and the service is currently available in 33. So, unlike transportation network companies like Uber that had to contend with onerous insurance, safety and liability questions, the regulatory status quo of telehealth services like this is that they are legal in most jurisdictions.

Indeed, telemedicine is nothing new. Through its more than 40-year history, it has shown great potential for cost savings in both private sector and government programs. This potential will only grow, as wearables and smartphones become more sophisticated and ubiquitous. For instance, in Opternative's case, the service is about half as expensive as a traditional eye exam. Future competitors in the space, or economies of scale, could bring costs down even further.

Unfortunately, a powerful lobby of brick-and-mortar optometrists is pushing for legislation to shut them down. In Georgia, a bill (HB 775) was passed by both houses of the state Legislature that would ban these online eye exams. Aptly listed as "restrictions on sale and dispensing of spectacles," this legislation is clear in its purpose to protect licensed brick-and-mortar optometrists from unwanted competition. Now it's up to Gov. Nathan Deal to sign or veto the bill. He has until the first week of May to decide.

Blocking new telehealth applications like this one will only serve to raise prices, reduce the ability of low-income or rural individuals to access care and stifle future smartphone-driven innovations. As former Speaker Newt Gingrich wrote in a column for USA Today:

There are more than 100,000 smartphone apps for health purposes, including one that detects heart attacks and another that helps diabetics monitor their blood sugar....And every day more are invented. Many of these smartphone enabled apps and devices will be better than the methods they're replacing — more convenient, faster, less expensive, and, in a growing number of cases, more accurate.... In healthcare, however, there is a growing effort by the existing, expensive systems to defend old, costly, less convenient, and slower methods by simply outlawing most of the competition.

What's happening in Georgia, Indiana, Nebraska, South Carolina, Oklahoma and elsewhere, is a shameless attempt to capture the regulatory apparatus by a rent-seeking cartel that wants to preserve the status quo at all costs. If these acts of cronyism are allowed to proceed unchecked, they inevitably will contribute to a disastrous chilling effect for innovation in the health sector -- an area already encumbered by a massive regulatory burden.

This will only make us all poorer, and less healthy.

Filed Under: georgia, indiana, innovation, internet, lobbying, nebraska, oklahoma, optometry, regulators, south carolina, telemedicine
Companies: opternative

Appeals Court Says Indiana's Bad Anti-Texting Law Can't Be Used To Justify Stops Or Searches

from the 'suspicions'-not-even-remotely-'reasonable' dept

This is refreshing. A very stupidly-written law is the basis for evidence suppression in a drug arrest. Not only does the conviction vanish, but so does the law (more or less), thanks to the Seventh Circuit Court of Appeals.

Looking down at your phone while driving in Indiana is no longer a crime. The Seventh Circuit US Court of Appeals set that precedent last week in dismissing charges against Gregorio Paniagua-Garcia, a man who glanced at his phone while behind the wheel on September 27, 2014. Under Indiana law, it is unlawful to use a cell phone to type, send or read a text message or e-mail while driving. All other uses of the phone are perfectly acceptable.

Because drivers are still free to perform other actions arguably more dangerous than texting (watching movies, browsing the web, reading ebooks, etc.), police officers cannot reasonably suspect that any driver they pass whose eyes appear to be focused on a device (rather than the road) are performing an illegal act.

An Indiana police officer, in the course of passing a car driven by Gregorio Paniagua-Garcia (whom for the sake of brevity we’ll call just Paniagua) on an interstate highway, saw that the driver was holding a cellphone in his right hand, that his head was bent toward the phone, and that he “appeared to be texting.” Paniagua denies that he was texting, the officer has never explained what created the appearance of texting as distinct from any one of the multiple other—lawful—uses of a cellphone by a driver, and the government now concedes that Paniagua was not texting—that as he told the officer he was just searching for music. An examination of his cellphone revealed that it hadn’t been used to send a text message at the time the officer saw him fussing with the cellphone.

So, Paniagua's actions were actually lawful under the terrible law, but the officer used it as a basis for a traffic stop that ultimately resulted in the discovery of five pounds of heroin. As the court notes, the paper-thin basis for the stop is undermined by the law's absurd focus on one device-related activity.

No fact perceptible to a police officer glancing into a moving car and observing the driver using a cellphone would enable the officer to determine whether it was a permitted or a forbidden use.

Using this law as the basis for stops is unreasonable. The court points out that lousy laws make for bad policing and a whole host of civil liberties violations.

The government failed to establish that the officer had probable cause or a reasonable suspicion that Paniagua was violating the no-texting law. The officer hadn’t seen any texting; what he had seen was consistent with any one of a number of lawful uses of cellphones. The government presented no evidence of what percentage of drivers text, and is thus reduced to arguing that a mere possibility of unlawful use is enough to create a reasonable suspicion of a criminal act. But were that so, police could always, without warrant or reasonable suspicion, search a random pedestrian for guns or narcotics. For it would always be possible that the pedestrian was a bank robber, a hired killer on the loose, a drug lord or drug addict, or a pedophile with child pornography on his thumb drive. “A suspicion so broad that [it] would permit the police to stop a substantial portion of the lawfully driving public … is not reasonable.”

The opinion dismantles the government's arguments with aplomb, taking apart each assertion made to defend a drug bust predicated on something that doesn't even approach "reasonable" suspicion. Extending the government's logic to other possibly illegal acts, the court points out the government's reliance on this terrible law is woefully misguided. Since the government can't possibly know how many people looking at their phones while driving are performing illegal acts, it can't base traffic stops on nothing more than the mere possibility something illegal may be happening.

Consider now that some drivers don’t have a driver’s license, or their license has expired. The logic of the government’s position is that either possibility, however slight, justifies the police officer in suspecting that the driver is not authorized to drive and in ordering him to pull over.

The opinion doesn't go so far as to call the law unconstitutional or ask for it to be rewritten, but it does point out the legislation's narrow coverage of a single action (texting) renders the entire law useless. Indiana law enforcement should no longer have any confidence that stops based on this perceived violation will hold up in court.

Filed Under: 4th amendment, anti-texting, gregorio paniagua-garcia, indiana, searches

Tesla Fan 'Incivility' Forces Indiana To Back Off Direct Sales Ban... For Now

from the lessons-never-learned dept

We recently noted how Indiana was just the latest state to try and pass auto industry-backed bills banning Tesla's direct-to-consumer sales model. Under the latest GM-backed bill, Tesla's dealer license would have expired in 2018, forcing the company to embrace the traditional franchise dealership model -- or stop selling cars in the state entirely. Telsa had been reaching out for the last few weeks to Tesla fans in the state, quite-correctly highlighting how GM was buying protectionist law instead of competing.

Apparently the public attention worked, as the Indiana Senate Commerce and Technology Committee has tabled the bill for the time being, meaning Telsa can continue operating its showroom in the state -- at least until the bill is reconsidered next year. Amusingly, one of the bill's key supporters, Senator Jim Buck, says he received some "incivility" from Tesla fans because of his proposal:

Buck on Thursday opened the committee hearing by saying he has been on the receiving end of "incivility" from Tesla supporters this week, as the bill received national attention. Buck and the bill's author, Rep. Kevin Mahan, R-Hartford City, agreed to put the issue before a study committee. ​That means the legislature won't consider a ban on direct auto sales until at least next year. "We are trying to make what we are doing here fair to all," Buck said.

Right, what Buck experienced wasn't incivility (though I'm sure the e-mails weren't particularly nice), it was the public telling Buck clearly to stop being a protectionist jackass willing to shovel forth horrible legislation at the behest of legacy industry lobbyists. While Buck's at it, he may want to avoid adding insult to injury by trying to falsely equate protectionist cronyism with "fairness." Telsa has made it pretty clear that GM's bill is predominantly aimed at lessening the competitive threat faced by its upcoming electric car, the Chevy Volt:

"General Motors is trying to kick us out of the state for purely competitive reasons," said Todd Maron, general counsel for Tesla. "Their Chevy Bolt will be competing against our mass-market car, so they have timed this bill specifically so once we start selling the Model 3 against their Bolt, we can no longer sell in the state."

That this kind of nonsense persists in state after state says volumes of the integrity of the state legislative process, and the politicians that pay endless lip service to competition and innovation, yet do their best to hamper it if the price is right. Again, if you're a politician looking to avoid public "incivility," one easy way to accomplish this is to stop letting legacy industries write shitty state law.

Filed Under: car dealerships, cars, competition, indiana, jim buck, kevin mahan
Companies: gm, tesla

Tesla Says GM Pushing Indiana Bill To Kill Direct-To-Consumer Tesla Sales

from the regulation-is-bad,-unless-it-helps-me dept

As we've documented extensively, the auto industry has worked tirelessly to erect barriers to Tesla's market entry. Legacy automakers have been engaged in sustained hysterics specifically regarding Tesla's direct-to-consumer sales model, which lets customers buy vehicles directly from Tesla online, with limited showrooms to view, touch and test drive the Tesla vehicles. Annoyed by this pesky Californian upstart, the auto industry has frequently tied draft legislation to campaign contributions to ban Tesla's successful model. Why compete when you can cheat?

Undaunted by criticism of this practice in numerous states, Tesla says GM is now trying the same thing in Indiana. In a new letter sent to Tesla "owners and enthusiasts" in the state, Tesla warns that Indiana's HB1254 would once again try to ban direct-to-consumer auto sales in the state:

We need your help. Yesterday, the Indiana Senate Committee on Commerce & Technology held a hearing on a bill that would shut down Tesla in the state. Authored and pushed by General Motors, HB1254 with amendment 3 would prohibit any manufacturer from being able to hold a dealer license after December 31, 2017. Existing law allows ANY manufacturer to apply for a dealer license without the use of independent franchised dealers.

Despite having a lawfully granted license to sell Tesla vehicles directly since 2014 at the Fashion Mall at Keystone; despite contributing over $42M to the state through the purchase of parts and components from Indiana suppliers; and despite plans underway to construct a 26,000 square foot Tesla Service facility that will employ approximately a dozen Indiana residents and serve our customers, GM is pushing the Senate Committee to shut out Tesla.

In other words, it's another legacy company deriding regulation at every opportunity -- except when it protects it from having to actually compete. While Tesla tells Ars Technica that it has no direct proof GM authored the bill, as we've seen in telecom, legacy companies all but own many state legislatures. Legislatures that are happy to shovel forth any and every bill (usually middle manned by groups like ALEC to present the feeblest attempt at propriety) provided the price is right. Tesla notes that GM could mirror Tesla's direct to consumer sales model, but would rather erect new barriers to entry than actually compete.

GM seems relatively unfazed by the fact that the FTC last year slapped Michigan for trying the same thing. Ask GM, of course, and the narrative changes dramatically. The legacy automaker tried to tell Ars that it's Tesla that's trying to craft special rules for itself, despite the fact that GM is the one pushing for the rule changes:

GM supports HB 1254. GM believes that all industry participants should operate under the same rules and requirements on fundamental issues that govern how we sell, service and market our products. A benefit of a nationwide network of thousands of dealerships is that General Motors customers never have to worry about driving to another state to buy, service or support their vehicles.

Tesla's insistence on special rules could result in multiple manufacturers competing with similarly capable vehicles and similar price points, yet operating under a different set of rules. Tesla could open a franchised dealership with an independent operator in Indiana today, but instead they insist that the State must first provide them with unique rules and special exceptions to suit their own business interests. In fact, Tesla was willing to agree to a dealer model in Virginia. The Indiana legislature shouldn't create a special exemption for them here.

Of course that's crap, and GM is turning logic on its head. Tesla has been operating a showroom in the Fashion Mall storefront since December 2013. It's GM that could follow Tesla's lead (like some Seattle Honda and Toyota dealers) and push for direct-from-manufacturer sales, but would rather use our broken legislative process to protect the status quo franchise dealership system. This has been an ongoing headache for Tesla in states like New Jersey, Texas, Arizona and especially Virginia, where auto-industry laws prohibited the company from opening a simple showroom.

Be it telecom or the auto industry, the fact that legacy industries can still write and buy anti-competitive state laws is a problem we simply refuse to fix.

Filed Under: car dealerships, competition, indiana, innovation
Companies: gm, tesla

Two Former Cops Lead Legislative Charge To Shield Body Camera Footage From Public Inspection

from the the-blue-line-goes-all-the-way-to-the-top dept

Body cameras have become democratized, for lack of a better word. They're relatively cheap, easy to use and can be deployed with minimal setup. They hold the promise of increased transparency and accountability, but legislators seem far more interested in ensuring the new technology will have zero net positive effects.

Four Indiana legislators -- two of them former law enforcement officers -- have introduced a bill that will keep the public out of the loop as far as body camera footage is concerned.

A newly proposed Indiana bill would allow police departments to decide whether to release video footage captured on body-worn or dashboard cameras to the general public.

House Bill 1019 immediately drew criticism from the Hoosier State Press Association, which argued the bill could undermine the purpose of such cameras in the first place: to increase police transparency and allow the public to hold law enforcement accountable.

The proposed legislation would compel police departments to show recordings of law enforcement actions only to either the person depicted in the video or that person's relatives or attorney. For anyone else, the decision to release is up to the department.

Leaving the decision to the discretion of law enforcement agencies does nothing but encourage the burial of any footage that doesn't show officers in the best light. Sure, there's a remedy, but it's not an affordable option. The final decision by law enforcement agencies can be challenged, but only if the requester is willing to put a lot of time and money on the line.

Should the agency say no, the bill says, the person requesting the video would have to take the department to court and argue for the video's release.

The legislators behind this bill know exactly what sort of opacity this will encourage. They cannot be that ignorant. They're just playing to their most powerful constituents -- especially the two who were officers before they were officials.

Other supporters of the bill likely know the intended side effects of the legislation as well, but they've decided it's more important to "protect" the police from the public, rather than the other way around. This particularly disingenuous statement from a supportive lawmaker pays the most minimum of lip service to the public's privacy concerns before going all #bluelivesmatter.

Rep. Wendy McNamara, an Evansville Republican, questioned whether the public or media should have access to footage that could potentially compromise the privacy of a person shown in the video, such as a witness to a crime.

"Which becomes more important?" she asked. "The privacy aspect of the individuals involved in the situation, or the public's need to, you know, hang a rope around peoples' necks at the jump of a video?

The "people" she's referring to, of course, are the ones with extra rights and vast amounts of power. Those are the "people" who need to be saved from the big bad Public, who apparently just want to see law enforcement officers hang for their perceived sins -- a desire that wouldn't be so intense if law enforcement agencies performed more "hangings" of their own.

The bill may be altered en route to the governor's desk, but with this type of support behind it, it's likely the legislation will still err on the side of protecting law enforcement. One suggested fix is nothing more than shifting the burden of proof for refusals to the agency denying the request, which would greatly decrease the chance that an expensive lawsuit will be the only route to full disclosure.

In one major way, this bill is worse than others we've looked at. The law wouldn't even require agencies to hand over a copy of available footage to those the legislation grants access to.

While the person shown in the footage can view the video, the bill does not also require the department to give them a copy. That decision is up to the department.

This means those filing abuse or misconduct complaints could be denied access to their own copy of the footage of the incident in question. The accused agency would still have complete control over the footage, making it extremely difficult for accusers to back up their assertions.

There's no excuse for this sort of legislation. The supporters claim to be concerned about protecting the public from its own prying eyes, but they're really only interested in shielding public servants from the people they serve.

Filed Under: body cameras, indiana, police

Indiana Supreme Court Says Cop Can't Have His '01NK' License Plate

from the and-the-government-can-handle-plate-requests-however-the-hell-it-wants dept

Earlier this year, a police officer and the ACLU performed a "strange bedfellows" act in hopes of overturning Indiana's Bureau of Motor Vehicle's rejection of the officer's vanity license plate request. Rodney Vawter, a rare law enforcement officer capable of enjoying a laugh at his own expense (literally/figuratively), applied for a plate reading "01NK." The BMV gave it to him. Three years later, it changed its mind, claiming the plate was now "offensive."

Vawter took the BMV to court, claiming the agency's denial of his plate infringed on his free speech. The BMV countered that it could pretty much do whatever it wanted, right up until a district court judge called its scattershot approval process ('BIBLE4ME" - OK. "UNHOLY" - rejected, etc.) unconstitutional. The BMV, rather than adjust its process, simply stopped issuing plates until the issue could be fully resolved.

The state's Supreme Court has delivered the final word on the BMV's actions. It's bad news for Vawter, who won't be getting his "01NK" plate back. (h/t Free Thought Project)

The court found that, while speech is indeed at the center of this case, it's the government's speech that's being regulated, not citizens'. And the government can regulate its own speech however it wants.

Indiana's personalized license plates are government speech. The Bureau of Motor Vehicles, therefore, does not violate the First or Fourteenth Amendments in denying an application for a PLP or revoking a previously issued PLP. Furthermore, Due Process Clause protections do not apply because vehicle owners do not have a property interest in their personalized license plates.

In arriving at this conclusion, the court made a number of supporting determinations, some more solid than others. Most curiously, it stated the limited "message" space on a license plate provides a forum too "limited" for protected speech.

Furthermore, the nature of Indiana's PLPs is not compatible with expressive activity. Because PLPs are small and contain a maximum of eight characters, they cannot realistically promote meaningful discourse, communication, and debate.

(And yet, "Fuck the draft" is only 12 characters [with spaces removed] and was recognized as protected speech by the Supreme Court of the United States. Eight letters isn't "discourse," but twelve is?)

It also found that government-issued plates are still government speech, even if individuals obtain plates with their own "messages" on them. While most people recognize the fact that a state agency issues license plates, they associate the messages on vanity plates to be representative of the person driving the car, rather than the entity that printed the plate. The court shrugs this off by saying it's not its fault if observers jump to the wrong "speech" conclusion.

PLPs do not cease to be government speech simply because some observers may fail to recognize that PLP alphanumeric combinations are government issued and approved speech in every instance. [...] The alphanumeric combination, regardless of its content, is government speech specifically identifying a single vehicle.

So, the BMV's highly-inconsistent approval process is once again "Constitutional," but only because it's the government regulating its "own" speech, even if there's a private citizen's personal request somewhere in the middle of all the regulation. No "01NK" plate for Officer Vawter and no plates for other members of the public whose requests somehow "offend" the sensibilities of the BMV office drone processing the paperwork.

Filed Under: free speech, indiana, indiana bmv, o1nk, police, rodney vawter