Wisconsin Court Dumps Conviction Of Middle School Kid Who Drew A Picture Of A Bomb

from the whispering-fire-in-a-home-theater dept

The intersection of school administration and law enforcement leads directly to insanity. All logic goes out the window when school administrators come across something that makes them feel slightly uncomfortable. Adding cops to the mix doesn't help anything. It only serves to turn every mildly misbehaving student into a criminal.

We're here to talk about bombs. I'm sorry. Let me clarify. Not actual bombs. Drawings of bombs. Drawings created by students who are likely to draw bombs, guns, and general violent mayhem without actually wishing any of that on their fellow students.

It took a couple of rounds in court to actually set this right. We've covered similar insanity over drawings of bombs here at Techdirt before, like the (temporarily) indefinite suspension of an autistic student who drew a bomb that looked like something straight out of a Looney Tunes short.

This bomb drawing was a little more intricate but no more threatening than the round black bomb with a fuse we've all seen in any number of cartoons no one saw fit to prosecute. (h/t Ari Cohn)

The Wisconsin Court of Appeals has finally ended the madness that began with terroristic threat and disorderly conduct charges being leveled against a middle school student.

The decision [PDF] recounts the unfortunate chain of events that ultimately needed to be addressed by the penultimate level of the state's criminal justice system.

The court found the following facts. In 2018, A.N.G. and T.B. were classmates in a middle school summer school program. During class one day, T.B. created a drawing on a page in his science workbook. T.B. did all the drawing and writing, but A.N.G. contributed ideas.

The drawing contained T.B. and A.N.G.’s names, images of what appears to be a cartoon-style bomb, a building labeled “school,” and a body lying on the ground. Around these images are written the following words: “pigs,” “preplay,” “bomb,” and “gun.” The court determined that the content of the drawing “conveys a threat of bodily harm.”

The Appeals Court points out something the lower court mentioned, but erroneously failed to give appropriate weight during its handling of the case.

However, as will be significant in analysis below, the court also specifically found that T.B. and A.N.G. did not intend for the drawing to be “for public consumption.” Instead, the court found, T.B. and A.N.G. intended to keep it “private.”

If it's private, no one's attempting to threaten others. That undercuts the charges brought against the student, which rely on communication of a threat. Instead, the court assumed even a private sharing of violent ideas between two students was enough to satisfy the charges because anything containing bombs and whatever would be viewed as "threatening" by interlopers the creators never intended to share their drawing with.

Returning to the circuit court’s decision, the court stated that it considered it “impossible,” “in the atmosphere in which we live,” that “a student would create a document like this and not assume a reasonable person would interpret” it as a “threat” that was “a serious expression of an intent to do harm.”

Wrong, says the Appeals Court. The surrounding circumstances matter. A person entertaining themselves by drawing depictions of violent dismemberment in their own home cannot be considered "threatening" to others in the legal sense because there's no communication of these subjective "threats" to others. Just because a teacher saw it and decided to get involved doesn't change the legal math.

However, as discussed below, this observation assumes an intended recipient of, or (using the term from First Amendment doctrine) “listener” to, the document, and in this case there was no intended recipient-listener.

The state's arguments are nonsensical and the court gives them no sympathy.

The State argues that the drawing was a true threat because it was not created as part of a classroom assignment or a creative school-related expression. The State also contends that it was not mere hyperbole or an innocuous joke. Further, the State argues that the drawing was not reasonably intended to be kept private because it was reasonably foreseeable to A.N.G. that it would be seen in the school setting by school staff or other students who would interpret it as a serious expression of a purpose to inflict harm, and that, when it was discovered, school officials did reasonably interpret it this way.

The court says the state's argument inverts First Amendment protections to strip them from anyone whose communications are inadvertently witnessed by others. An inadvertent discovery is not the same thing as a distributed communication originating from the now-unintended "sender."

I see no reasonable way to construe the findings of the circuit court and the uncontested testimony at the hearing to reflect that A.N.G. meant to cause the drawing to come to the teacher’s attention, or to the attention of any other school staff or students other than T.B., its co-creator. Based on the circuit court’s findings and the uncontested evidence, the teacher’s awareness of the drawing and decision to demand it were just accidental from A.N.G.’s point of view.

There's a criminal prosecution involved and yet the school's actions -- once the disturbing artwork had been inadvertently discovered -- do not reflect the state's assertions that administrators felt justifiably threatened by their discovery. If the school felt violence was imminent, it certainly didn't act like it did.

[E]ven if I were to assume that school personnel could reasonably be classified as “listeners,” how these “listeners reacted to the” drawing (as Perkins refers to the first factor) does not weigh heavily towards classifying the drawing as a true threat. Based on the testimony of the teacher and administrators involved, the circuit court found that the drawing was “obviously concerning [to the school] and obviously the school took steps within the school setting to address these issues.” Yet, they did not take it so seriously that there was an evacuation or a search of the school. Further, instead of seeking to have A.N.G. removed from the school, administrators placed A.N.G. in an in-school suspension and did not impose more significant discipline. The assistant principal testified that she takes seriously all expressions that she construes to be threats, suggesting a low threshold for school reaction to any and all conduct that might represent a danger.

Constitutional rights for students may be limited but they're not nonexistent.

Weighing all of the above considerations under the Perkins factors, I conclude that A.N.G.’s private drawing was not a true threat in the constitutional sense. Based on all of the circumstances, a reasonable “speaker” in A.N.G.’s position would not foresee that a reasonable “listener”—someone he never in fact envisioned—would interpret the drawing as a serious expression of a purpose to inflict harm. Case law interpreting the First Amendment protects from prosecution the expressions under the particular facts here.

Away goes the delinquency petition tied to two trumped-up charges that never fit the crime the student never committed. When you put kids, cops, school administrators, and a post-9/11 "everything is a threat" mentality in the same room, idiotic decisions get made and lawsuits get filed. A little bit of rational thinking would go a long way. Unfortunately for this student, it took two years for cooler heads to prevail.

Filed Under: bombs, drawings, kids, law enforcement, schools, wisconsin

Accountability Is Nowhere To Be Found For Foxconn's Wisconsin Head Fake

from the hype-and-bluster dept

If you recall, the state of Wisconsin had originally promised Taiwan-based Foxconn a $3 billion subsidy if the company invested $10 billion in a Wisconsin LCD panel plant that created 13,000 jobs. But as the subsidy grew to $4.5 billion, the promised factory began to shrink further and further to the point where nobody is certain that anything meaningful is going to get built at all.

Last October, reports emerged clearly illustrating the ever-shrinking nature of the deal. They also highlighted how Foxconn was effectively just using nonsense to justify its failure to follow through, showing that while the company hadn't built much of anything meaningful in the state, it was still routinely promising to deploy a "AI 8K+5G ecosystem" in the state to somehow make everything better. Shockingly, that mish-mash of buzz words is effectively meaningless.

Whatever Foxconn is building in the state now, it's certainly not the massive factory that was supposed to create 13,000 jobs. Feckless leaders appear to have just finally figured out the original deal should be amended in the wake of Foxconn's head fake (something even Foxconn seemed amenable to initially), yet documents obtained by The Verge show that the company is refusing to budge in any meaningful capacity until somebody grows a spine and forces them to:

"Documents obtained by The Verge show that Wisconsin officials have repeatedly — and with growing urgency — warned Foxconn that its current project has veered far from what was described in the original deal and that the contract must be amended if the company is to receive subsidies. Foxconn, however, has declined to amend the contract, and it indicated that it nevertheless intends to apply for tax credits.

Foxconn has “refused by inaction” to amend the deal, says Wisconsin Department of Administration Secretary Joel Brennan. “They were continuously encouraged. It’s a relatively recent development, where they have said, ‘No, we don’t want to do anything with the contract.’ Our expectation has been, and continues to be, that they should want to come back and have discussions about this."

Local politicians have compared the scandal to the Fyre Festival, and many locals say the company is being aggressively secretive and often misleading. Even many of the "innovation hubs", which Foxconn promised would somehow be better than the ever-shrinking factory it originally proposed, are little more than empty buildings at this juncture, and we still seem miles away from the company -- or any of the project's original architects and hype men (Paul Ryan, Scott Walker, Donald Trump) -- being held accountable in any way that actually matters.

Meanwhile, the few jobs that are created by Foxconn's efforts could ultimately cost state taxpayers anywhere between $300,000 to $500,000 per job, once again highlighting how we may just want to reconsider this generation-long habit of throwing billions at giant corporations for doing nothing.

Filed Under: handouts, subsidies, wisconsin
Companies: foxconn

Violating The Fourth Amendment To Break Up An Underage Drinking Party Means No Qualified Immunity

from the this-backyardigans-reboot-blows dept

How far would a cop go to break up an underage drinking party? Far enough to get sued in federal court. (h/t Peter Bonilla)

Responding to a tip from a snitch app ("Tip411"), Mequon (WI) police officers rolled up on a house supposedly containing an underage drinking party. The officers first noticed four cars in the driveway and one parked in the street. Hardly indicative of a rager, but the officers had an anonymous tip and apparently nothing better to do.

Officer Kristin Toryfter rang the doorbell but received no answer. She called the phone numbers of two of the house's residents -- John and Todd Reardon -- but was similarly rebuffed. What the officers could see from the driveway was "several young people" peeking out at them and various doors and windows closing.

At some point, even more officers showed up, including shift supervisor Matthew Schossow. Schossow went around back to "secure the perimeter." Since fleeing teens are a constant threat to law enforcement, Officer Schossow decided to go traipsing across the curtilage to get a look inside the house. Peering through the blinds, Schossow saw -- and let's go to the decision [PDF] for this one...

a can of Pabst Blue Ribbon on the end-table, and an open bottle of vodka on the floor, along with other non-alcoholic beverages…

Again, hardly indicative a party was underway (much less one involving underage drinkers), especially since Schossow's unconstitutional peek didn't catch any teens drinking alcohol. Using this complete dearth of information (and after taking an illegal peek herself), Officer Toryfter applied for a search warrant. The warrant was an exercise in carefully crafted, but ultimately creative, writing.

Toryfter attested that there were items to be searched in the house that included alcoholic beverages and persons under the age of 21, both of which were potentially evidence of a violation of Wis. Stat. § 125 et seq., which prohibits furnishing alcohol to underaged persons. She also stated that there was a party at the house “which possibly included guests under the age of 21 consuming intoxicants or illegal drugs,” that there were “numerous vehicles” outside the home, that she had “observed intoxicants within the premises, having seen them. . .through the window. . .of the residence,” and that “young people scatter[ed] or hid[] when it appeared that the officers had been noticed or recognized.” (Docket #27-2 at 2). At no point did Toryfter represent that she saw the young people consuming intoxicants inside the premise.

This was [sigh] signed by a local judge at his home and, roughly one-and-a-half hours after first showing up at the house, officers entered the home. The younger of the two Reardons was charged with violating the city's "social host" ordinance, which prohibits gatherings where underage drinking will occur. Those charges were dropped. As the Journal Sentinel reports (but WITHOUT INCLUDING A LINK TO THE DECISION), eight of the twelve guests seized by officers passed breathalyzers, which again suggests this wasn't a drinking party so much as it was a gathering where some people chose to drink.

The federal judge says the invalid warrant isn't at issue here. Obtaining a bad warrant isn't a Fourth Amendment violation. Executing one is. Here, the larger problem is Officer Schossow's decision to enter the backyard and peek through the back window of the house. That was a violation, and it set up the warrant for failure.

The walkway from which Defendants claim they saw the contraband was approximately ten feet from the home, putting it well within an area where “privacy expectations are most heightened.” French, 291 F.3d at 951 (noting that areas within twenty feet of the home generally have higher expectations of privacy). The walkway itself was not enclosed, but it was secluded, flanked by shrubs and trees, and not visible from the street or even the front of the house. Rather, it snaked closely around the back of the house, linking the very end of a lengthy driveway to the patio, which was located on the other side of the yard, and which could not be seen from the start of the walkway. See (Docket #28-1 at 1). This was not an open-to-thepublic walkway that lead to structures in plain view of the driveway. See French, 291 F.3d at 953. Nor was any of the activity occurring “in plain view of the public way.” United States v. Contreras, 820 F.3d 255, 262 (7th Cir. 2016). Nor did this walkway clearly lead to a door that would be open to visitors or delivery people.

Both Toryfter and Schossow said they had every right to be in the backyard (and, apparently, peeking through windows) because the "perimeter" need to be "secured." Wrong, says the court. There is no precedent that agrees with the officers' arguments and no court in the land would be willing to concede this argument, at least not as presented here.

Defendants do not, however, cite any cases in support of their broad contention that legitimate law enforcement objectives are an exception to the curtilage rule. (Docket #33 at 7–8). In United States v. Butler, this Court noted that officers may have had a “legitimate reason” to enter the common area backyard of a duplex—where the defendant did not have a reasonable expectation of privacy—in order to conduct a “knock and talk” procedure as part of a criminal investigation. 2007 WL 2220260, at *8 (E.D. Wis. Aug. 1, 2007). That case did not, as Defendants suggest, stand for the proposition that law enforcement officers may intrude upon a home or curtilage anytime they have a “legitimate law enforcement objective.”

Similarly, in United States v. Davis, which is the magistrate’s report and recommendation that this Court adopted in Butler, the magistrate determined there was no Fourth Amendment violation because there was no evidence that the backyard was not open to visitors or delivery people. 2007 WL 2220261, at *8 (E.D. Wis. April 16, 2007). After drawing this conclusion, the Davis court then speculated that the police’s presence in the backyard was appropriate because it was related to protecting officers conducting the “knock and talk” occurring around front.

Like this Court’s order in Butler, the Davis report and recommendation did not cite any precedential caselaw in support of the contention that law enforcement officers may intrude upon a home anytime they have a “legitimate law enforcement objective.” Nor could it: such a holding would gut the Fourth Amendment of its protections, and result in routine circumvention of the warrant process.

Since the court isn't going to gut the Fourth Amendment, the officers lose their qualified immunity.

In light of these well-settled principles and the Supreme Court’s instruction in Jardines on the boundaries of the “knock and talk” investigative tactic, a reasonable police officer in 2015 would know that the broad catch-call of “legitimate law enforcement objective” is not an exception to the Fourth Amendment’s curtilage rule, particularly when the law enforcement objective is to catch drunk teenagers running home.

As to the warrant, the court says it's terrible. The warrant was predicted on a number of faulty assertions. First, there was the tip that prompted officers to check out the house in the first place. There's no evidence the tip or the tipster was reliable. Officers saw five cars, which hardly indicates a party was taking place. Residents not answering their doors on Halloween is hardly an uncommon thing when people are wandering from house-to-house demanding candy. And, finally, officers observed nothing that indicated underage drinking until they violated the Fourth Amendment by peeking in the back window. Even then, all they saw was a couple of containers of alcohol. The only thing that might have tied what the officers saw to a perceived criminal violation was the thing they couldn't have seen without walking across the Fourth Amendment on their way to the back window.

Both officers are now on the hook for Constitutional violations.

[T]he Court finds that Toryfter and Schossow violated Plaintiffs’ Fourth Amendment right to be free from unreasonable searches in the curtilage. Flowing from this, Toryfter also violated Plaintiffs’ Fourth Amendment rights when she obtained an invalid warrant on the basis of the unlawful curtilage search.

It seems no crime is too small for Fourth Amendment violations. And maybe that's where they happen most. After all, how often are misdemeanor charges going to result in federal civil rights lawsuits? At least this one did, as it adds to the ever-growing impression that law enforcement very often views the Constitution as damage and routes around it. And in a distressing number of cases, they get away with it. But in this one they didn't. Party on, Wisconsonians.

Filed Under: 4th amendment, kristin toryfter, matthew schossow, mequon, qualified immunity, underage drinking, wisconsin

Feds Used A 'Reverse' Warrant To Try To Track Down Bank Robbers In Wisconsin

from the doesn't-appear-to-have-worked dept

Reverse warrants are the new tech-related toy law enforcement is experimenting with. Oddly, a lot of what's come to light so far originates in the Midwest, an area not exactly known for early adoption. Outside of the NYPD and feds confirming they use warrants to seek a list of possible suspects (rather than targeting any specific suspect), most reporting has covered deployments by law enforcement agencies in Minnesota.

We can add Wisconsin to the list of areas where cops are working backwards to suspects by using the copious amount of GPS data hoovered up by Google and others. Russell Brandom of The Verge has more details:

[P]olice and federal agents have struggled to track down the bank robbers. Local media sent out pictures from the bank’s security cameras, but it produced no leads. Finally, police hit on a more aggressive strategy: ask Google to track down the bank robbers’ phones.

In November, agents served Google with a search warrant, asking for data that would identify any Google user who had been within 100 feet of the bank during a half-hour block of time around the robbery. They were looking for the two men who had gone into the bank, as well as the driver who dropped off and picked up the crew, and would potentially be caught up in the same dragnet. It was an aggressive technique, scooping up every Android phone in the area and trusting police to find the right suspects in the mess of resulting data. But the court found it entirely legal, and it was returned as executed shortly after.

The warrant [PDF] was requested by a federal agent. This doesn't rule out the use of reverse warrants by local law enforcement, but this request originated at the federal level. The feds are involved in almost every bank robbery, so the appearance of federal officers here isn't a surprise.

Nor is the use of the reverse dragnet. In this case, the submitted geofence was far more constrained than some we've seen in other cases. But considering how many people go into (or near) banks for completely innocent reasons, the GPS data/phone info of hundreds of non-bank robbers ended up in the hands of the feds. It's up to investigators to sort through the data for possible suspects and they can make mistakes. The more data investigators get, the less likely it is they'll find who they're looking for and the more likely it is they'll mistake innocent people in heavily-trafficked areas for criminals.

Right now, it's just another tool for law enforcement to use. But it's one that inverts the normal expectations of warrant procurement. Instead of targeting an individual or place, the warrants allow cops to search Google's data stores for information about anyone who wandered into a targeted area during a certain time period. This shouldn't be acceptable but there's no record of any court rejecting these broad demands for data about thousands of people no one suspects of committing crimes. Until a court steps up to shut these down, their use will continue to escalate. The problems already seen in limited use will escalate right along with them. That's bad news for cell phone users, which at this point is pretty much everybody.

Filed Under: 4th amendment, gps, location data, reverse warrant, surveillance, wisconsin
Companies: google

New Report Further Clarifies Foxconn's Wisconsin Deal Was An Unsustainable Joke

from the grifters-ahoy dept

It hasn't taken long for Trump's and Paul Ryan's once-heralded Foxconn factory deal in Wisconsin to quickly devolve into farce. The state originally promised Taiwan-based Foxconn a $3 billion subsidy if the company invested $10 billion in a Wisconsin LCD panel plant that created 13,000 jobs. But as the subsidy grew to $4.5 billion the promised factory began to shrink further and further, to the point where nobody at this point is certain that anything meaningful is going to get built at all.

Reports last fall detailed the ever-shrinking nature of the deal, and how Foxconn was using nonsense to justify its failure to follow through, claiming it was building an "AI 8K+5G ecosystem" in the state to somehow make everything better. But the buildings Foxconn have purchased remain largely empty and the lion's share of the company's promises unfulfilled, despite mounting taxpayer cost.

Fast forward to this week, when an analysis of the cost impact of the downsized project basically concluded what most knew all along: the deal was never going to work as structured, and throwing taxpayer funds at Foxconn isn't likely to pay dividends. And while there's still the possibility some jobs get created (assuming the company actually builds anything of note), the math still doesn't add up:

"If the subsidy levels in the current contract are kept, each Foxconn job would cost taxpayers about $290,000, Bartik found, compared to $172,000 if Foxconn built the original $10 billion, 13,000-job facility. For comparison, Bartik estimated the subsidies Virginia offered Amazon for its second headquarters amounted to between $10,000 and $13,000 per job.

"The most important conclusion of this analysis is that it is difficult to come up with plausible assumptions under which a revised Foxconn incentive contract, which offers similar credit rates to the original contract, has benefits exceeding costs,” Bartik wrote. “The incentives are so costly per job that it is hard to see how likely benefits will offset these costs."

That is, if you're playing along at home, a polite way of saying the deal was bullshit. The game for Foxconn will now shift toward restructuring the deal to not only make it more realistic, but to ensure Foxconn can't be held liable for effectively bullshitting taxpayers out of billions. The Verge reporter Josh Dzieza has been doing a phenomenal job clearly highlighting the ever-shrinking nature of the deal:

"Rather than a 20 million-square-foot factory manufacturing large LCD screens, Foxconn says the factory it’s now building will be less than 1 million square feet and make smaller screens. While the company had initially planned to employ 5,200 people by next year, it now says the new factory will employ only 1,500 people. Even that seems like a stretch goal: at the end of 2018, Foxconn employed only 156 people in the state."

Of course getting billions in taxpayer subsidies for doing nothing isn't unique in American industry. Just ask the telecom sector, which has received countless billions over the last few decades for fiber optic networks they only half constructed. This scandal, like that one, likely ends in deep-pocketed campaign contributions ensuring that nobody in this chain of dysfunction sees anything even vaguely resembling genuine accountability for promises they likely knew would never fully materialize from the start.

Filed Under: grifters, paul ryan, scott walker, wisconsin
Companies: foxconn

Foxconn Still Trying To Tap Dance Around Its Ever-Shrinking Wisconsin Promises

from the words-are-but-wind dept

If you hadn't noticed by now, Trump and Paul Ryan's once-heralded Foxconn factory deal in Wisconsin quickly devolved into farce. The state originally promised Taiwan-based Foxconn a $3 billion state subsidy if the company invested $10 billion in a Wisconsin LCD panel plant that created 13,000 jobs. But as the subsidy grew to $4.5 billion the promised factory began to shrink further and further, to the point where nobody at this point is certain that anything meaningful is going to get built at all.

Reports last fall detailed the ever-shrinking nature of the deal, highlighting how Foxconn was using nonsense to justify its failure to follow through, showing that while the company hadn't built much of anything meaningful in the state, it was still routinely promising to deploy a "AI 8K+5G ecosystem" in the state to somehow make everything better. Those empty buzzwords were accompanied by the promise of fully staffed "innovation centers" around the state.

Back in March, reporters visited many of these innovation centers scattered around Wisconsin and found them to be largely empty. Apparently not liking the bad press, Foxconn executives like Alan Yeung attempted to claim that these centers were in fact not empty and that the reports contained “a lot of inaccuracies." But according to locals in the state these supposed innovation centers are, you'll perhaps be shocked to learn, still empty:

"One month after Yeung’s comments and promise of a correction, every innovation center in Wisconsin is still empty, according to public documents and sources involved with the innovation center process. Foxconn has yet to purchase the Madison building Yeung announced, according to Madison property records. No renovation or occupancy permits have been taken out for Foxconn’s Racine innovation center, though a permit has been taken out for work on the roof of another property Foxconn bought for “smart city” initiatives. There has been no activity in Foxconn’s Green Bay building, either."

So what are Wisconsin residents getting for their whopping $4.5 billion in taxpayer-fueled subsidies? It's still not clear. There are thoughts that the state may see some kind of factory, but it's going to be a far cry from what was originally promised, and there are still questions about whether the state will see even a fraction of the jobs that were originally promised:

"Even if Foxconn does build an LCD facility, many questions remain. The company’s current plan is to build a far smaller factory than it initially promised, one that will employ 1,500 people rather than over 10,000. The shortfall leaves both Foxconn and the state in a tricky position. Given the slower pace of hiring, it may be difficult for Foxconn to reach the hiring quotas needed to receive state subsidies. State and local governments, meanwhile, have been building infrastructure and acquiring land based on the original, far more ambitious plan.

Foxconn still seems to be claiming it will be hiring 13,000 workers in the state, but it's getting harder and harder to find anybody who actually believes them.

Filed Under: boondoggle, donald trump, paul ryan, wisconsin
Companies: foxconn