Bad Faith Politicians Are Using Social Media Suspension To Boost Their Own Profiles

from the how-do-you-deal-with-this? dept

You may have heard that conspiracy theorist and nonsense-spouting Rep. Marjorie Taylor Greene has, not for the first time, been temporarily suspended from Twitter for passing along conspiracy theory nonsense regarding vaccines. She's unable to tweet for 7 days. I, unfortunately, can't find the tweet now, but back in July when she was similarly suspended for just 12 hours, I saw someone jokingly note that temporarily suspending someone like Greene was the equivalent of Twitter throwing her a fundraiser, since she would immediately turn around, play the victim, and get her gullible, duped followers to throw more money at her. And, no doubt the same is true with this suspension as well. She's already put out a statement and the usual "conservative" media orgs are already talking about how "Twitter can't handle the truth" or some such nonsense.

And then, of course, you have people who are reasonably ticked off at Twitter "only" temporarily suspending Greene for spreading nonsense info, rather than permanently banning her.

So, in the end, you have both ends of the political spectrum mad about this setup, and trying to spin it to their own advantage. However, once again, it really seems to highlight the impossible nature of content moderation at scale, especially when some of the parties are clearly acting in bad faith.

Twitter has its escalation policies in place, and they're designed (reasonably!) to deal with good faith users, who might not realize they're violating the rules or spreading dangerous disinformation. In that world, an escalating penalty system makes sense. Getting suspended for a few hours or a week generally sucks for users who actually like to use the site but it's a sort of "cool off" period combined with a gentle nudge to be a better participant on the internet. But, of course, that system kind of breaks down when you have not just bad faith actors who are deliberately testing the boundaries of what they can get away with, but who actually benefit from the suspension and the press attention that comes with it.

At this point, some will say "well, that's a perfect reason to just suspend such people permanently." But, alas, that comes with its own challenges. Indeed, jumping straight to a permanent suspension only proves that the company would be treating some people differently, and would be treated by people like Greene as "proof" of "anti-conservative bias" (again, this would be bad faith, but it would allow the story to have some level of confirmation). So, Twitter can't do that without providing what a bunch of people will see as confirming evidence. So Twitter follows its rules, and continues to escalate the punishment (eventually MTG will get permanently suspended, it seems only a matter of time).

Looked at realistically, the fact that Twitter is following its stated escalation policies, rather than doing an outright ban should be seen as evidence that it is not "biased against conservatives," but is treating everyone the same. If you violate the company's policies about COVID vaccines, then you go through the escalation process -- whether you made a mistake in good faith or whether your a bad faith grifter. Of course, that's not how it will play out anywhere, because no one does nuance any more.

Some might argue that the obvious bad faith nature of MTG's arguments mean that Twitter should just have a policy of banning bad faith grifters. And that's certainly tempting, but how do you define bad faith grifter within a policy such that a large team of content moderation professionals can apply it consistently? The problem is that you really can't. The very nature of an escalation policy is that it does, eventually, take care of most bad faith grifters. It just takes time, and allows them to violate the rules a bunch of times before getting the final send-off.

Filed Under: bad faith, content moderation, politicians, social media
Companies: twitter

Documents Show No One In The Defense Department Is Doing Much Vetting Of Law Enforcement Requests For Military Gear

from the capitalizing-on-perpetual,-manufactured-fear dept

We've covered the Defense Department's 1033 program several times here at Techdirt. The program allows law enforcement agencies to acquire surplus military gear at low, low prices in exchange for little more than their claim to need anything from filing cabinets to grenade launches to mine-resistant armored personnel carriers (MRAPs).

Thanks to the never-ending "War on Terror" and "War on Drugs," the DoD has allowed law enforcement agencies to blur the line between serving the public and invading a war zone. Officers regularly don camouflage when rolling out of armored personnel carriers, turning warrant service into a paramilitary invasion. MRAPs tend to make appearances at protests targeting police violence, giving responding officers the appearance of an occupying force, rather than the domestic peacekeepers they're supposed to be.

Multiple efforts have been made to curtail the acquisition of gear clearly designed for war zones, rather than domestic policing. None of those efforts have been permanent. The distribution of war gear to cops is subject to the whims of the sitting president and very few have felt too concerned about the program's ability to widen the chasm between the public and the people who are obligated to serve them.

The Huffington Post has acquired nearly 1,200 pages of 1033 program acquisition forms via public records requests. (Unfortunately, it has decided the public will get to see them whenever it gets around to publishing them, which means it has provided no access to the underlying documents at this point.) What these show is the Defense Department rubberstamping requests for military gear (such as MRAPs) by law enforcement agencies, even when the requesting agency can barely demonstrate a need for the equipment. They also show law enforcement agencies consider the public to be their enemy -- one that must be confronted with as much force as possible.

The 1,200-plus pages of documents HuffPost obtained expose the flimsy pretext that police will only use military gear in a genuine crisis — and how explicitly many police acknowledge that their goal is to intimidate vulnerable members of their communities. The requests also reveal how thoroughly many police have learned to fear the public as potential combatants, how automatically they are able to perceive everyday situations as potentially lethal, and how fervently they believe that their fear justifies extreme countermeasures for everyday conflicts. A few times, police departments even referred to their officers as “troops” or to police shifts as “tours of duty.”

The letters also reflect a disturbing comfort with — even an expectation of — using military gear and tactics to respond to civil demonstrators. Multiple agencies explicitly asked for armored vehicles to use at protests against police violence toward Black people and pipeline resistance led by Native Americans.

We've seen the ridiculous excuses used by law enforcement to obtain military gear. The town of Keane, New Hampshire (pop. 40,000 with a police force of 23 officers) claimed terrorists might target its annual Pumpkin Festival. A California school district was only persuaded to give up its tear gas launchers after weeks of public backlash. A two-person law enforcement agency in Michigan managed to acquire more than $1.1 million in military gear before the town caught wind of its abuse of the 1033 program.

These are just a few examples of what happens when no one in the Defense Department seems willing to vet agencies before handing out military surplus. The Huffington Post has more:

The sheriff of Beaver County, Pennsylvania, went so far as to assert that a police officer could die serving a notice of a civil lawsuit — and so his agency ought to have two armored vehicles.

[...]

One department after another described broad criteria for using an armored vehicle that bordered on cavalier: whenever police are going somewhere they believe someone could have a gun, even legally; whenever a suspect “could” become violent.

[...]

Countless departments pointed out that they were home to attractions and infrastructure that are essentially ubiquitous: turnpikes, highway overpasses, train trestles, a bus garage, hotels, a casino, hospitals and surgical centers, business parks, “abundant day care facilities” government buildings, movie theaters, amusement parks, county fairs, college sports tournaments, and minor league sports stadiums. Not one but two agencies pointed out that they should get consideration because their jurisdiction was located near the fifth-busiest airport in the Pacific Northwest.

This shouldn't come as a surprise. This is the expected result of the government waging concurrent, never-ending wars. Whatever isn't consumed by one war (Terror) can be repurposed for another (Drugs). Since we're in no danger of winning either of these "wars" (and, indeed, seem to be losing both), the federal government's 1033 program has become a perpetual motion machine that converts failure to funding, ensuring neither of these resources will ever be fully expended. Very few people in power dare to ask the military what it's spending trillions of dollars on, even when there appears to be little return on investment. And since no one's asking them tough questions, those in charge of dispensing military gear to local law enforcement agencies feel no compunction to call bullshit on ridiculous justifications for war machines that will be used to carry out standard warrant service when not being used to intimidate people exercising their First Amendment rights.

Filed Under: 1033 program, defense department, law enforcement, military gear, police militarization, surplus military equipment

Louisiana & Alabama Attorneys General Set Up Silly Hotline To Report 'Social Media Censorship' They Can't Do Anything About

from the stop-wasting-everyone's-time dept

While various states are pushing unconstitutional laws to try to compel social media websites to host content they don't want to host, it appears that some state Attorneys General are seeing what kinds of questionable things they can do even without a law. Florida's law was already declared unconstitutional, but other states are still trying to pass these laws. One feature seen in a bunch of them is the ability for residents in a state to complain to the Attorney General and to ask the AG to investigate.

It appears that Louisiana and Alabama aren't waiting around for a law on that front. The Attorneys General from both states, Jeff Landry from Louisiana and Steve Marshall from Alabama, have announced plans to set up a special hotline for ignorant people who are sure they've been "censored by big tech."

Louisiana Attorney General Jeff Landry and Alabama Attorney General Steve Marshall on Tuesday launched an initiative aimed at addressing censorship on social media platforms.

As part of the initiative, the official websites of each attorney general now provide a “Social Media Censorship Complaint Form” for the public to report abuses by Big Tech, according to press releases sent by the attorney generals’ offices in both states.

Of course, what they never mention is that websites are allowed to do whatever the hell they want on their own websites, because it's their private property. And if you violate their laws, they can ask you to leave. Remember when Republicans used to support that kind of thing? Anyway, this is just performative nonsense:

Landry and Marshall are encouraging citizens in their states who have been censored online to file formal complaints with their respective offices.

The information provided in these complaints will be kept confidential, in accordance with each state’s laws, Landry’s office said. Each complaint will be reviewed and will be reviewed and analyzed to determine whether the reported conduct by social media companies constitutes a violation of federal or state law.

Here, I'll help both offices "review and analyze" the complaints for free: "No, nothing the websites do with regards to moderation violates federal or state law, because moderation choices are fully protected by the 1st Amendment." In fact, the more questionable thing is setting up this complaint form, because it sure looks like an effort to pressure private websites to change their content moderation practices and that could violate the 1st Amendment.

I'm not linking to the forms themselves, but they are just as dumb as you would expect. The Louisiana one is... not even on a government website, but on AG Landry's own .com (though it also claims -- falsely -- that all content is copyright to the Louisiana Department of Justice, even though state governments are not supposed to copyright their own content, so who the hell knows if this is a government website or a private one). That form is pretty short, though I'm amused that it asks people to say whether they felt the moderation actions taken against them were justified. Like, who's going to say that it was?

The Alabama form is way more ridiculous. Even the framing of it is ridiculous, saying it's a "social media censorship complaint form."

The Alabama page asks all sorts of information -- including asking you to say if a website fact checked your content, which is obviously 1st Amendment protected speech (and is "more speech" not "censorship.")

All of this is nonsense, of course. As noted above, websites have every right to manage the content on their sites how they see fit. And these forms are just useless grandstanding from two Attorneys General who must know better and simply don't care. They're misleading the public and pretending to do be able to do something they cannot. And, if they actually did try to do something, that would be completely unconstitutional. The chief legal officer in a state shouldn't be setting out to (1) mislead the public with nonsense, and (2) set up to do something unconstitutional. Alabama and Louisiana: elect better people.

Filed Under: 1st amendment, alabama, censorship, complaint line, content moderation, jawboning, jeff landry, louisiana, steve marshall
Companies: facebook, twitter, youtube

Daily Deal: The 2021 Complete Angular Developer Bundle

from the good-deals-on-cool-stuff dept

The 2021 Complete Angular Developer Bundle has 10 courses to help you learn about web development. Courses cover Angular, Advanced RxJS, Nx Monorepos, and more. You'll configure an Angular app and deploy it to production, learn about accessibility issues, learn how to build Micro Apps, as well as other useful skills. The bundle is on sale for $40.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Laura Loomer Owes $124k In Legal Fees After Losing Lawsuit Over Having Her Twitter Account Reported And Banned

from the $124,000-more-expensive-than-just-letting-the-ban-ride dept

Alt-right "personality" (I guess?) Laura Loomer keeps filing lawsuits and losing them. Loomer seems to believe it's legally actionable to be moderated by social media services. No court has agreed with her. Between Section 230 and the First Amendment, Loomer doesn't have a case. Oblique approaches -- like claiming getting kicked off Twitter is tortious interference in a (nonexistent) business relationship (Loomer and Twitter, according to Loomer, but definitely not according to Twitter) -- haven't been any more successful.

Grasping at straws and switching attorneys in midstream hasn't helped matters. This case involved Loomer trying to sue CAIR (Council on American-Islamic Relationships) and Twitter in Florida, claiming CAIR's reporting of her Twitter account tortiously interfered with Loomer's get-rich-quick plan of being extremely extremist online. It only took six pages for a federal judge to dismiss Loomer's baseless claims.

By the time that dismissal happened, it was too late for Loomer. Seven months after the lawsuit was filed (in October 2019), CAIR approached Loomer and suggested a settlement under Florida state law -- one that would have been much cheaper for Loomer. Loomer refused. That has turned out to be a very expensive decision. (h/t Techdirt reader Thad)

The court [PDF] says the offer of judgment complied with Florida law and could have provided Loomer a quicker, cheaper way to step away from her doomed litigation. Loomer argued the offer wasn't proper because she was seeking injunctive relief in addition to monetary damages. A judgment offer would obviously have short-circuited injunctive relief. But the court points out Loomer only mentioned an injunction in the complaint and never bothered to follow up on seeking this particular form of relief.

I find that the true relief sought against the CAIR Defendants in the Amended Complaint was only monetary damages and that the Amended Complaint makes only a “passing reference” to equitable relief. The only equitable relief directly mentioned in Plaintiffs’ complaint is a summary request for “preliminary and permanent injunctions to prevent defendants from continuing their unlawful conduct.” ECF No. 1-2, at 41. During the 8 1/2 month period between the filing of the Amended Complaint (March 3, 2019) and the District Court’s dismissal order (November 19, 2019), Plaintiffs never filed a motion for a preliminary injunction or temporary restraining order. This evidence circumstantially shows that Plaintiffs were not actually pursuing equitable relief. And, in addition to Plaintiffs not seeking an injunction, the Amended Complaint is framed in terms of monetary damage; it repeatedly and exclusively alleges economic harm to Plaintiffs “in an amount to be proved at trial.”

Monetary it is! But not the way Loomer hoped. After doing some back-of-the-filing-envelope math bringing hourly rates down from their DC levels (where CAIR is HQed) to Florida levels (where the lawsuit was originally filed), the court has some bad news for a plaintiff who arguably doesn't have enough cash on hand to buy new tires.

Accordingly, Defendants’ Motion is GRANTED IN PART and DENIED IN PART. Plaintiffs shall reimburse Defendants:

Attorneys’ Fees: $123,761.65 allocated as follows:

CAIR Foundation, Inc. $117,297.90

CAIR Florida, Inc. $6,463.75

Costs: $661.72

That's how much being this wrong costs someone who's so sure they're right they blow off a cheaper offer made months before the attorneys' fees really started racking up. I don't know how many people are still interested in Loomers' windmill tilts, but I have to imagine an eighth of a million puts a pretty good dent in her legal warchest.

Filed Under: content moderation, fees, florida, laura loomer, legal fees
Companies: cair, twitter

Hacked Facebook Users Forced To Buy $300 Oculus VR Headset Just To Talk To Customer Support

from the too-big-to-function dept

Back in 2014 when Facebook bought Oculus, there were the usual pre-merger promises that nothing would really change. Oculus founder Palmer Luckey, who has since moved on to selling border surveillance tech to the Trump administration, made oodles of promises to that effect after selling the company to Facebook for $2 billion. Facebook itself also promised that users would never be forced to use a Facebook login account just to use your VR headset and its games, and that the company wouldn't track your behavior for advertising.

Like every major merger, those promises didn't mean much. Just about a year ago, Facebook and Oculus announced that users will soon be forced to... use a Facebook account if they want to be able to keep using Oculus hardware, so the company can track its users for advertising purposes.

Fast forward a year and things have been flipped a bit on their heads.

Facebook users who have their accounts hacked and subsequently locked say it's impossible to get anybody at Facebook support to even listen to them. There's no real customer support helpline, and like many places COVID has made customer service staffing harder than ever. There is apparently an online form you can use that requires you provide your driver's license and other data to unlock your account, but Facebook users say it's apparently less than useless:

"Instead, Facebook tells users to report hacked accounts through its website. The site instructs them to upload a copy of a driver's license or passport to prove their identities. But the people NPR spoke with said they had trouble with every step of this automated process and wish Facebook would offer a way to reach a real person. "I sent these forms in morning, noon and night, multiple times a day," Marsala said. "Nobody got back to me, not once."

But if you actually buy something from Facebook they actually at least try to care. So, following in the footsteps of some Reddit users, hacked Facebook users have been buying $300 VR headsets (then often returning them unopened) just to get help:

"I ultimately broke down and bought a $300 Oculus Quest 2," he said...Sherman contacted Oculus with his headset's serial number and heard back right away. He plans to return the unopened device, and while he's glad the strategy worked, he doesn't think it's fair.

"The only way you can get any customer service is if you prove that you've actually purchased something from them," he said."

Granted this probably won't work for long. And Facebook recently announced it was halting sales of the Oculus Quest 2 for now because the device's foam face plate was causing skin irritation for some people. Still, it shows that at the scale Facebook operates at, semi-consistent content moderation isn't the only thing the company finds impossible. Basic customer support for people locked out of their accounts at no fault of their own is also too much to ask. Which then again raises the question: if you can't function as a business at the scale Facebook operates, maybe you shouldn't exist at that scale.

Filed Under: customer service, oculus, vr
Companies: facebook

Brooklyn DA Releases 10,000 Police Misconduct Records To Gothamist, Exposing Cops Prosecutors Don't Want In Their Courtrooms

from the copious-cop-shop-docs-copped dept

Nearly two years ago -- prior to the 2020 repeal of 50-a, the statute that codified law enforcement opacity in the state of New York -- the Brooklyn DA's office released part of its "Brady list" to Gothamist. The "Brady" (or "Giglio," depending on who's naming it) list tells prosecutors (and [supposedly] defense attorneys) which cops aren't to be trusted, thanks to previous perjury/severe misconduct/evidence-planting/etc. This keeps prosecutors from calling witnesses who can be easily impeached. And it helps defense lawyers know which government witnesses are ripe for undermining.

It's the latter reason that often keeps these lists shrouded in secrecy. While some law enforcement agencies are more than willing to share with prosecutors in order to keep convictions intact, they're far less willing to give the defense anything to work with. But some of this information can be obtained through public records requests. And some of it can be obtained through new transparency laws or court orders.

The list handed to Gothamist in 2019 was far from complete. Now with 50-a repealed, the information is flowing more freely. The NYPD is still doing what it can to withhold its own version of its Brady list, but that's not stopping others in possession of at least part of this list from releasing what they have on hand.

Once again, it's both the Brooklyn DA and Gothamist combining forces to provide more information about bad cops to the public. While others have attempted to compile Brady lists from public records requests, this proactive move by the Brooklyn DA's office far outpaces any independent collection of Brady-listed officers.

The latest publication by Gothamist contains 679 records in a searchable database compiled by Tarak Shah, a data scientist for the Human Rights Data Analysis Group. There are redactions, but they do not serve the NYPD's interests. As Shah notes in his statement accompanying this release, the redactions only cover information that "could have put those involved with investigating this story at risk."

More than 10,000 documents are now in the hands of Gothamist, courtesy of Brooklyn DA Eric Gonzalez. What's in there? Plenty of cop bullshit. Here are just a few highlights:

One officer had his honesty on the witness stand questioned by two separate judges in 2011. The next year, the NYPD busted him for asking colleagues to engage in ticket fixing. A few years later, yet another judge in another criminal case discredited portions of his sworn testimony.

Another officer “misrepresented” his record of military service to his colleagues, and was later caught by department investigators for making false statements about his decision to shut down the music at a community concert. The next year, the department closed a substantiated case against him for failing to notify the NYPD that he was involved in five “domestic incidents.”

A third officer was disciplined in 2013 for speeding through red lights, using NYPD computers to make numerous searches unrelated to work, and failing to notify the department’s Internal Affairs Bureau about serious misconduct or corruption allegations against several colleagues—a responsibility that NYPD officers take on when they join the force.

The only thing comparable to the size of this database is the one created by the NYPD in response to public pressure and the repeal of 50-a. But that's controlled by the NYPD, which is free to redact all sorts of information and make it deliberately unclear which officers have had complaints filed against them. The NYPD's database contains information on more officers, but the sortable fields do not include the number of complaints against an officer.

Instead, the NYPD has obscured this information and has chosen to highlight "Arrests Totals" and "Department Recognitions," which appears to indicate the department feels the end justifies the means. Only by clicking through on names can one access misconduct documents. But it's more miss than hit, which is good news for the NYPD (not many officers with complaints!) but worse for people seeking transparency and accountability. And it does not appear to contain records for officers who've been fired for misconduct or excessive force, allowing the NYPD to whitewash its troubled history.

If police departments are really serious about ridding themselves of the low-value employees holding them down, they'll be more like the Brooklyn DA and less like the NYPD. A bad cop helps no one. Outing and eliminating cops who jeopardize prosecutions will do more for public safety than all the spy tech, sentence enhancements, and "proactive" policing combined.

Filed Under: 50-a, brady list, brooklyn, police, police misconduct

It Happened Again: Antipiracy Outfit Asks Google To Delist 127.0.0.1 On Behalf Of Ukrainian TV Station

from the where-the-piracy-is dept

We've made this point before, but the moment you attempt to scale up copyright enforcement, you run into problems. Collateral damage from automated systems mistaking non-infringing content for infringing, the possibility of fraud and abuse, the blind eye towards Fair Use all become problems. But sometimes those problems are so silly that they expose what a pure fiasco this has become. Several years back, we discussed Universal Pictures asking Google to delist a bunch of supposedly infringing sites, listing one of them as 127.0.0.1. Depending on how computer savvy you are, you may recognize that this IP address is how a computer or system refers to itself. In other words, it essentially means "home."

And, yet, despite how silly this all is, it just keeps happening. Most recently, the anti-piracy outfit used by a Ukrainian television broadcaster may have outed its own client by also asking Google to delist 127.0.0.1.

Ukrainian TV channel TRK has sent a rather bizarre takedown request to Google. The company's anti-piracy partner Vindex asked the search engine to remove a search result that points to 127.0.0.1. Tech-savvy people will immediately recognize that the anti-piracy company apparently found copyright-infringing content on its own server.

The request was sent by TKR’s anti-piracy partner Vindex, which essentially flagged a file on its own machine. The ‘infringing’ link is 127.0.0.1:6878/ace/manifest.m3u. This points to a playlist file, possibly for the P2P streaming platform Ace Stream that’s often used to pirate content.

Now, a number of things here should be unsurprising to our regular readers. That an antipiracy outfit sucks at identifying proper sites for delisting is no surprise. Likewise, the idea that a company that is crying about copyright infringement might be guilty of infringement itself also fails to shock the mind. But what is surprising is that the antipiracy outfit may have accidentally outed its own client through its own stupidity as a party infringing copyrights so thoroughly.

Google obviously cannot delist the IP address, as there is nothing to delist. And, frankly, Vindex is known to suck at its one job.

Since 127.0.0.1 refers to the host computer, Google is technically asked to remove a file from its servers. A file that doesn’t exist. Needless to say, Google hasn’t taken any action in response.

The above suggests that Vindex may want to take a good look at its takedown bots. The company doesn’t have a stellar reputation when it comes to DMCA notices. Of all the links that were reported to Google, little more than 10% were removed by the search engine.

Adding to it that you imagine there are some uncomfortable conversations being had between Vindex and its client today and you're left with the impression that there is a ton of egg on its face right now.

Filed Under: 127.0.0.1, antipiracy, copyright, home, ip addresses, piracy, ukraine
Companies: google, trk

Tenth Circuit Says Pretextual Inventory Searches Need To Be A Whole Lot Less Pretextual

from the mic-is-hot,-boys dept

One of the great warrant exceptions is the "inventory search." Stop a car in a high-traffic or "high crime" area, and officers will feel compelled to tow it away. But before it's towed, they'll make a list of everything in the car to ensure the vehicle's owner gets all of their possessions back when they retrieve it from the impound lot. If there happens to be contraband in the car, it's a win for the cops. The "discovery" (even if derived from a mostly-pretextual search) will be called "inevitable" and can be used against the person to deprive them of their freedom along with their car.

This one simple trick usually works out for law enforcement. But every so often it doesn't. And when it doesn't work, it's usually because officers were in such a hurry to carry out the warrantless search that they completely forgot about the pretext.

That's the case here in the Tenth Circuit Appeals Court's handling of a motion to suppress. The lower court denied the suppression motion, but the Appeals Court reverses [PDF] that decision, finding that the officers created an excuse to search the car, making their discoveries less than inevitable.

It all started with a call to the Tulsa (OK) Police Department about Evan Woodard. The caller said Woodward was in the middle of a drug case, may have smoked PCP, had three previous gun charges, and had violated a protective order. Tulsa PD officers headed out to find Woodard and serve him with an outstanding warrant for public intoxication and the protective order he was allegedly violating.

Here's what happened next:

Police officers found Mr. Woodard in Tulsa, Oklahoma, at about 8:00 a.m. and initiated a traffic stop. Mr. Woodard pulled into a parking lot at a QuikTrip convenience store and stopped there. The police told Mr. Woodard to get out of the car, arrested him based on the warrant, and took his cellphone. Mr. Woodard then asked if he could call someone to pick up the car. One of the police officers responded “I don’t think so,” and the police decided to impound the car.

But it wasn't that simple. The stop and search were captured on the officers' body cameras, which caught them saying things that made it clear they were looking for an excuse to search the car, rather than performing a regular inventory in preparation for towing the vehicle from the convenience store parking lot.

One officer looked in the panel on the driver’s side door and on the floor under the driver’s seat, saying that Mr. Woodard was “fighting a huge drug case.” Defendant’s Mot. to Suppress, Exh. 4 (body camera). The other officer replied that Mr. Woodard liked PCP. As the officer replied, he opened the center console.

One officer commented that he was looking for verification of car insurance, expressing doubt that Mr. Woodard had insured the car. After seeing no verification in the center console, he eventually found proof of an old insurance policy in the glove compartment. By then, however, another officer had found marijuana, cocaine, a digital scale, and a gun.

Using this evidence -- as well as some information from another traffic stop of Woodard in Bartlesville, Oklahoma that resulted in the discovery of drugs and a gun -- officers obtained a warrant to search Woodard's phone. Text messages recovered from the phone indicated Woodard was dealing drugs.

Prior precedent from this circuit restricts officers' ability to impound vehicles, which, accordingly, also limits their ability to search vehicles without a warrant.

These heightened requirements allow impoundments from private property, like the impoundment of Mr. Woodard’s car, only when (1) the car is blocking traffic, (2) the car is posing an imminent threat to public safety, or (3) the impoundment is justified by a standardized policy and a reasonable, non-pretextual rationale of community caretaking.

The Tulsa PD's impound policies comply with this precedent. As conceded by the state, officers can only impound a car if the vehicle is blocking the "public way" or, if the vehicle is stopped on private property, the traffic stop "follows an offense committed on the public way." In this case, the stop didn't follow a traffic violation. It was performed to serve a warrant and protective order.

Hence, the impounding and the attached search were unjustified. And the government's arguments can't change that.

The police stopped Mr. Woodard to serve a protective order and execute an arrest warrant for public intoxication. The protective order and warrant were pieces of paper, not offenses. The only offense was public intoxication, and the intoxication did not take place on a public way.

The government contends that Mr. Woodard was stopped for a continuing offense: failing to pay costs for his charge of public intoxication. But failing to pay court costs is not a continuing offense.

Plus, there were things said by officers that made it clear they were really interested in searching the car, rather than ensuring it wasn't left on private property where it might have bothered the owner of the convenience store or been molested by an unspecified criminal element (based on the government's contention the QuikTrip was in a "high crime area").

While the government presented a long list of reasons it could have impounded the car (lack of proof of insurance, Woodard's lack of a valid drivers license, concern over ownership, evidence of a crime, etc.), the officers stated none of these reasons before performing the search, nor after it. These reasons didn't make an appearance until the search was challenged, indicating the impound was mere pretext for the warrantless search of the car.

Also indicative were statements like these:

Not only does every factor point toward pretext, but other powerful evidence of pretext exists. Before searching the car, the police officers discussed how to proceed and the senior officer declared his intent to “friggin’ light [Mr. Woodard] up with whatever we can.”

[...]

As the police started the search, one officer said that Mr. Woodard was fighting a big drug case and facing three gun charges. The other officer said that Mr. Woodard liked PCP, adding that he had been “digging around” the center console area, and the officer began his search there. Defendant’s Mot. to Suppress, Exh. 4 (body camera), Exh. 5 (body camera). These statements and actions showed the officers’ intent to look for drugs, not to safeguard the car and its contents

And the government couldn't even come up with any plausible excuse for the first officer's statement:

At oral argument, the government surmised that the officer might have meant only that he wanted to cite Mr. Woodard for whatever violations could be proven at the time of the decision to impound the car. This explanation is new and illogical. The explanation is new because the government never suggested in district court that this is what the officer had meant. The explanation is also illogical. The command to “light [Mr. Woodard] up with whatever we can” shows that the officer wanted to look for new evidence. The phrase cannot plausibly be interpreted to mean that the officer wanted only to bolster the public intoxication charge and serve the protective order.

The conclusion? The Tulsa PD is wrong and so is the lower court for approving these actions.

Because the Tulsa Police Department’s standardized policy did not apply and the stated rationale for impoundment was pretextual, the district court erred in denying the motion to suppress evidence of the drugs, digital scale, gun, and cellphone found in the Tulsa search.

With that evidence gone, so are the text messages taken from the search of the phone. Without those text messages implicating Woodard in drug distribution, the charges in the other stop in Bartlesville are reversed as well, leaving the officers with nothing but a couple of illegal searches.

Filed Under: 10th circuit, evan wodard, excuses, oklahoma, police, pretextual searches, tulsa