Asset Forfeiture: Killing Criminal Organizations With $16 Seizures

from the imperceptible-wounds dept

When asset forfeiture is pitched to Americans, law enforcement agencies roll up to press conferences with shiny, new seized vehicles and large stacks of cash. This public preening is meant to assure everyone that forfeiture kills drug cartels and cripples large criminal organizations. But the day-to-day reality is much different. Pathetic, even. Here's Eric Boehm of Reason on Utah's yearly forfeiture roundup:

Utah police seized more than $1.4 million in cash during 2016 and federal law enforcement agencies operating in Utah took another $1.3 million in assets from people suspected of crimes, a new report shows.

Sounds impressive until you start digging into how that $2.7 million was amassed. It wasn't a few large seizures with definite ties to criminal activity. It was a bunch of petty, nickel-and-dime seizures where the amounts taken could easily have earned by the property's owners through completely legal means.

Most forfeitures (69 percent) take place during traffic stops and most of the time only money is seized. According to the state report, cash was taken in 99 percent of forfeitures during 2016, with the median seizure amounting to only $1,031.

The paperwork alone for the following seizure easily surpassed the value of the property seized. And that's just in terms of office supplies. Add on the labor involved and what is even the point.

That means, in many cases, the amount seized was considerably less than four-figures. In one instance, the report shows, police took $16 from a motorist.

So much for the "don't drive around with large amounts of cash" solution. To avoid being robbed by opportunistic law enforcement, the mantra needs to be shortened to "don't drive." Or simplified to "don't leave the house."

Utah's smallball seizures aren't an aberration. Before the Washington DC Metropolitan PD was hit with minor forfeiture reforms, it also believed no amount of cash was too small to be seized. It racked up nearly $3 million in seizures slowly and steadily from citizens who went on to sue the department.

Altogether, the nearly 1,400 claimants in the class action lost almost $700,000 to forfeiture, so the settlement will restore roughly three-quarters of what was taken from them. Yet the claimants represent just 14 percent of those affected by this particular D.C. forfeiture policy. Over a six-year period, the Metropolitan Police Department seized a staggering $2.9 million from these owners collectively.

Among the owners represented in the lawsuit, the median amount of cash seized was a mere $120. In fact, the MPD seized as little as $1 from some owners. There is little indication trivial amounts of money can be plausibly tied to the drug trade, noted Sean Day, who was co-counsel on the class action.

These low dollar amounts discourage owners from seeking the return of their property. In some places, the fee just to file a motion for return is higher than the amount taken. Even the median seizure in Utah (~$1,000) is easily dwarfed by filing fees and the costs of legal representation. It would be ludicrous to believe officers aren't aware of these facts when they seize cash.

It's hard to see how civil asset forfeiture benefits society. It doesn't take criminals off the street because criminal charges are rarely filed. It doesn't put criminal cartels out of business because the few hundred dollars lifted off random people likely isn't directly tied to these organizations -- and if it is, the hit is so small an organization won't feel it.

Law enforcement agencies fight reform by claiming it will harm taxpayers if the agencies are forced to rely solely on general funds (something with actual oversight) to pay officer overtime and purchase equipment. But the alternative is even worse: agencies and officials are arguing it's OK to tax certain citizens the amount of cash they happen to have on them when interacting with police officers. It's a preposterous argument that says law enforcement agencies not only shouldn't be expected to play by the same public funding rules as every other agency, but will actually be unable to perform their basic functions without a second stream of income.

Filed Under: asset forfeiture, civil asset forfeiture, law enforcement, stealing

Watchdog Stings Defense Dept., Obtains $1.2 Million In Military Gear With A Fake Cop Shop

from the 1033-open-air-bazaar dept

The Defense Department's 1033 program allows local law enforcement agencies to buy military equipment. Often, the purchases are made easier with sizable grants, meaning agencies can load up on assault rifles, grenade launchers, armored vehicles, and extra ammo at nearly no cost. (They can also get computers, office furniture, etc. through these grants, but if that were the extent of the program, there would be zero controversy.)

The 1033 program is supposed to be tightly controlled and every acquisition vetted to prevent high-powered military gear from falling into the wrong hands. We've already noted local agencies aren't performing much in the way of oversight, resulting in several agencies receiving suspensions for failing to account for the whereabouts of purchased gear.

The problem, however, isn't just on the receiving end. The Defense Department isn't doing much in the way of due diligence when adding new agencies to the list of military gear purchases. The Government Accountability Office (GAO) performed a sting operation, setting up a fake law enforcement agency to see if it could acquire used military gear. By the end of it, the fake agency had obtained $1.2 million in gear, all without ever having to speak directly with anyone at the Defense Department. From the GAO's report [PDF]:

[O]ur investigators, posed as authorized federal law enforcement agency officials of a fictitious agency, applied and were granted access to the LESO [Law Enforcement Support Office] program in early 2017. In late 2016, we emailed our completed application to the LESO program office. Our application contained fictitious information including agency name, number of employees, point of contact, and physical location. We also created mail and e-mail addresses, and a website for our fictitious law enforcement agency using publicly available resources. All correspondence, including follow-up questions regarding our application, was conducted by email with LESO officials.

The first application was sent back for fixes. The revised application -- still loaded with fake info -- sailed through. It even included fake legal authorization.

LESO officials also emailed us to request confirmation of our agency’s authorizing statute; in response, our investigators provided fictitious authorizing provisions presented as a provision in the U.S. Code. At no point during the application process did LESO officials verbally contact officials at the agency we created—either the main point of contact listed on the application or the designated point of contact at a headquarters’ level—to verify the legitimacy of our application or to discuss establishing a MOU [Memorandum of Understanding] with our agency.

Not only were there no phone calls, there was no attempt by LESO officials to physically verify the existence of this fictitious law enforcement agency.

LESO’s reliance on electronic communications without actual verification does not allow it to properly vet for potentially fraudulent activity. For example, DLA [Defense Logistics Agency] did not require supervisory approval for all federal agency applications, or require confirmation of the application with designated points of contact at the headquarters of participating federal agencies. Additionally, at the time we submitted our application, DLA officials did not visit the location of the applying federal law enforcement agency to help verify the legitimacy of the application.

Since the DoD didn't perform any sort of prerequisite checks, it comes as no surprise it paid little attention to who was receiving the 1033 handouts.

Our independent testing of DLA’s internal controls also identified deficiencies in the transfer of controlled property, such as DLA personnel not routinely requesting and verifying identification of individuals picking up controlled property or verifying the quantity of approved items prior to transfer.

[...]

Using fictitious identification and law enforcement credentials, along with the LESO-approved documentation, our investigator was able to pass security checks and enter the Disposition Service warehouse sites. Personnel at two of the three sites did not request or check for valid identification of our investigator picking up the property.

From the GAO's description, acquiring controlled items appears to be no more difficult than shopping on Amazon.

Our investigators, after being approved to participate in the LESO program, obtained access to the department’s online systems to view and request controlled property. We subsequently submitted requests to obtain controlled property, including non-lethal items and potentially-lethal items if modified with commercially available items. In less than a week after submitting the requests, our fictitious agency was approved for the transfer of over 100 controlled property items with a total estimated value of about $1.2 million. The estimated value of each item ranged from $277 to over $600,000, including items such as night-vision goggles, reflex (also known as reflector) sights, infrared illuminators, simulated pipe bombs, and simulated rifles.

And, to top everything off, the DLA managed to ship this fake agency more items than it actually requested.

Furthermore, although we were approved to receive over 100 items and the transfer documentation reflects this amount, we were provided more items than we were approved for. The discrepancy involved one type of item—infrared illuminators. We requested 48 infrared illuminators but onsite officials at one Disposition Services site provided us with 51 infrared illuminators in 52 pouches, of which one pouch was empty.

The report goes on to note the DLA has never performed its own fraud audits, suggesting it has almost no interest in ensuring military gear only ends up in the hands of approved and thoroughly-vetted law enforcement agencies. Yes, all of this appears to be changing going forward, but considering the 1033 program has transferred billions of dollars of equipment already, there's really no telling how many others have obtained equipment with fictitious entities or simply ended up with a bunch of items they never ordered. That the weapons obtained were only simulators is of little comfort. They're simply modified versions of the real thing which could be made operable again with items obtained from non-government entities.

It's not that the DoD is only a few steps away from being logistically-bulletproof either. The GAO report notes the systems and controls used aren't even adequate -- which would be the minimum needed to ensure control of potentially-dangerous items. When presiding over the distribution of military gear, the DoD needs to implement controls far surpassing "adequate." So far, it can't even meet this very low bar.

Filed Under: 1033, controls, defense department, dod, gao, law enforcement, military gear, surplus

DOJ Forfeiture Directive Gives Local Law Enforcement A Chance To Dodge State Reform Efforts

from the Sessions-taking-it-back-to-the-old-school-cause-he's-an-old-fool dept

As threatened during comments to an association of district attorneys, Attorney General Jeff Sessions is bringing back asset forfeiture. Specifically, Sessions is loosening the restrictions placed on federal adoption of local seizures by Eric Holder during the last years of the Obama presidency. Holder's directive prevented local agencies from routing cash or vehicle seizures through the feds to dodge local rules. That's all over now. An order [PDF] and directive [PDF] issued by the DOJ are welcoming local law enforcement agencies to once again skirt restrictive state forfeiture laws by asking the DOJ to "adopt" their seizures.

On July 19, 2017, the Attorney General issued an Order allowing Department of Justice components and agencies to forfeit assets seized by state or local law enforcement (referred to in the order as "federal adoptions"). Under the Attorney General's Order, federal adoption of all types of assets seized lawfully by state or local law enforcement under their respective state laws is authorized whenever the conduct giving rise to the seizure violates federal law.

"Conduct giving rise to the seizure" almost makes it sound as though the federal government is limiting this to criminal asset forfeiture, which comes as the result of a conviction. Nothing could be further from the truth. In practical terms, this allows cops to say they smell the odor of drugs (or ask their dog's opinion) before hauling away an uncharged citizen's personal effects -- mainly cash, since it's easy to carry and difficult to prove its legal origin.

Multiple states have passed legislation curbing civil asset forfeiture. Fourteen states now require convictions before assets can be forfeited. This will no longer be the case. The DOJ is giving local agencies a way to avoid these restrictions by stating anything considered a federal crime (like drug trafficking) can be used as an escape hatch to ensure these agencies keep at least part of the property they've taken.

Sessions is promising this won't be abused. Given Sessions' comments on civil forfeiture, it's hard to imagine a case where he'd consider a seizure abusive, but there is a limited safeguard built into the new directive.

Adoptions of cash in amounts equal to or less than $10,000 may require additional safeguards. Those adoptions will be permissible where the seizure was conducted: (1) pursuant to a state warrant, (2) incident to arrest for an offense relevant to the forfeiture, (3) at the same time as a seizure of contraband relevant to the forfeiture, or (4) where the owner or person from whom the property is seized makes admissions regarding the criminally derived nature of the property. If a federal agency seeks to adopt cash equal to or less than $10,000 and none of these safeguards is present, then the agency may proceed with the adoption only if the U.S. Attorney's Office first concurs.

I wouldn't read too much into this provision. For starters, it includes the word "may" in the first sentence, which means the DOJ will be able to waive these restrictions whenever it feels like it. Seizures can still be effected "incident to an arrest," which further undermines the conviction requirements put in place by fourteen states.

Forfeitures under $10,000 need more protection, not another outlet for abuse disguised as a "safeguard." Most cash seizures are under $10,000. Forfeiture reform laws tend to target those, as they're most often abused. AG Sessions is leaving it up to US Attorneys' offices to make the final determination.

Those over $10,000 tend not to be as much of a problem, but now there won't be any close cases. Federal adoption is pretty much guaranteed, which will encourage law enforcement to spend more time looking for expensive seizables than real criminal activity.

Then there's this statement, made by Sessions in his announcement of the resumption of federal indifference to individual property rights.

Our law enforcement officers do an incredible job. In fact, over the last decade, four out of five administrative civil asset forfeitures filed by federal law enforcement agencies were never challenged in court.

This goes past simple disingenuousness into the land of deliberate obtuseness. The absence of challenges is not the evidence of minimal forfeiture abuse. Fighting forfeiture is expensive and time-consuming. In most cases, it's futile. This is why so many seizures are $1,000 or less. The lower the dollar amount, the less likely it is someone will fight to get it back. As was pointed out by John Jackson on Twitter, this is like saying all fatal shootings by police officers are justified because not a single victim has filed a sustained complaint.

Sessions' forfeiture move isn't exactly being greeted with applause by members of the president's party. Sen. Mike Lee and Rep. Darrell Issa have already made statements condemning the loosening of federal restrictions. These reactions hew closer to the Republican party line -- small government, less regulation. For some reason, though, many conservatives seem to think expansions of government power and regulation is just fine when it comes to law enforcement or national security. This is the only reason the president's AG pick isn't facing more criticism for overriding states' reform efforts.

Filed Under: civil asset forfeiture, doj, forfeiture, jeff sessions, law enforcement

Court Says Gov't Has To Do More Than Say It Doesn't Believe The Property Owners If It Wants To Keep The Cash It Seized

from the so-much-for-the-K-9-unit-as-star-witness dept

The federal government thought it had laid an easy claim to someone else's cash, but the DC Court of Appeals is telling the government it's not quite as easy as it makes it out to be.

The court lets everyone know things aren't entirely normal with the first sentence of the opinion [PDF]:

This is a civil-forfeiture case, which is why the plaintiff is the United States of America and the defendant is a pile of cash.

From that starting point we arrive at two sets of claims. First, the government's:

The government claims that the cash is subject to forfeiture because it is connected to the “exchange [of] a controlled substance,” i.e., drug trafficking.

And here is the government's sole basis for this conclusion:

This case traces its roots back to March 28, 2014, when an Amtrak passenger mistakenly removed another person’s backpack from a train at Washington’s Union Station. Later that day, he opened the backpack to find a shopping bag containing $17,900 in cash.

Commendably, he turned the backpack over to Amtrak police. In addition to the money, Amtrak police officers found inside the bag a student notebook and other personal effects. One of the papers contained the name Peter Rodriguez, as did the train manifest. A police narcotics dog alerted to the backpack, suggesting the presence of drug residue.

That's basically it. A dog said it smelled drugs. Or, rather, an officer said a dog said it smelled drugs. The only other thing the government has to offer is that it doesn't believe the appellants' story about the legality of the money.

Using a contact number from the manifest, a detective with the Metropolitan Police Department called Peter Rodriguez, who gave a detailed description of the contents of the backpack—except for the money. Twice asked whether there was money in the backpack, Peter said no. Later, the detective called Peter to inform him that currency was found in the backpack, and that the bag—sans cash—could be recovered from Amtrak, though the money would remain with the MPD Asset Forfeiture Unit.

Shortly thereafter, appellant Angela Rodriguez, Peter’s mother, contacted MPD, explaining, according to the government’s verified complaint, that the cash belonged to her and her domestic partner, appellant Joyce Copeland, who lives with her in New York City. The couple, she recounted, had left the money in a bag in Peter’s apartment, but neglected to tell him that it contained currency. When Peter later announced that he was coming to New York to visit his mother, she told him to bring the bag along. Unconvinced by Ms. Rodriguez’s story, the police formally seized the currency and turned it over to the DEA, which initiated administrative forfeiture proceedings.

The government says the appellants' story is unbelievable -- that someone wouldn't just stash $18,000 in someone's backpack and not tell them about it. The court points out it really doesn't matter what the government believes.

In this case, the couple has offered sworn testimony detailing how they amassed the money, why they transported it to North Carolina, and how it ended up in Peter’s hands. In fact, there is little in the record other than their declarations. Certainly, nothing in the record directly contradicts the pair’s sworn account—no evidence that they did not travel to North Carolina, for instance, nor evidence that the cash had another source. Given our responsibility to “view[] the evidence in the light most favorable” to the couple and to “accept . . . uncontroverted fact[s],” Johnson, 823 F.3d at 705, we have little trouble concluding that the couple has asserted ownership and offered “some evidence” of ownership sufficient to withstand summary judgment.

It also points out why cash seizures in particular raise these issues, and why the government shouldn't be so quick to assume every story told by appellants is bullshit.

[B]ecause the case concerns cash, it demonstrates how challenging it can be to document ownership of property seized by law enforcement. Indeed, the very qualities that make paper money useful for illicit activity—in particular, its untraceability—often make it difficult to prove that any cash is legitimate, no matter its source. This is especially true for those in our society who rely on cash to the exclusion of banking and other financial services. As Justice Thomas has recognized, it is “the poor and other groups least able to defend their interests in forfeiture proceedings” who bear the brunt of civil asset forfeiture. Leonard, slip op. at 4 (internal citation omitted). And it is these same groups that are “more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture.” [...] So especially when cash is at issue, requiring more than “some evidence” of ownership would be onerous, unfair, and unrealistic.

The court also has nothing good to say about the government's singular insistence that the appellant's money story is made up, despite being unable to produce any evidence to the contrary. Taking the government at its word eliminates any remaining shreds of due process left in the forfeiture process.

The government’s argument perfectly illustrates why credibility determinations and the weighing of evidence are left to juries rather than judges. Government counsel may well be able to convince judges that it is inconceivable someone would choose to keep sizeable cash savings, to travel with cash, or to pay for routine expenses using cash rather than a credit card, but a jury of laypeople with different and more diverse life experiences might view these very same choices with considerably less suspicion. We are thus especially reticent to circumvent the jury process and throw out sworn testimony because it is out of line with our own lived experiences.

The appeals court reverses the lower court's decision. The government will have to do something it explicitly tries to avoid by using civil asset forfeiture rather than criminal asset forfeiture: taking a case to trial and actually having to provide more definitive evidence than "the dog said it smelled like drugs."

Filed Under: cash, civil asset forfeiture, dc circuit appeals court, law enforcement

Court Says Gov't Has To Give Back $167,000 It Seized During A String Of 4th Amendment Violations

from the rare-loss-for-civil-asset-forfeiture dept

The Ninth Circuit Court of Appeals has no good news for the lying law enforcement officers who were hoping to walk off with $167,000 of someone else's money. Two years ago, the district court ruled in favor of Straughn Gorman, who was subjected to two lengthy traffic stops in less than an hour by officers hoping to help themselves to cash he was carrying in his RV.

After stopping Gorman for a non-violation (driving too slow in the left lane), State Trooper Greg Monroe spent roughly a half-hour trying to obtain consent to search Gorman's RV. His reasonable suspicion? Gorman's use of the word "chick" to describe the girlfriend he was driving to visit and the supposedly "rehearsed" aspects of his employment history. Trooper Monroe performed an extensive background check on Gorman while hoping to prolong the stop until a K-9 unit could be deployed, but even his non-routine call to an El Paso DEA records center failed to drag out the traffic stop long enough for it to arrive.

All Monroe knew when he finally let Gorman go is Gorman had at least $2,000 on him. Monroe wasn't going to let this money get away, so he called up another officer from another agency and "relayed his suspicions." He also told the other officer (Deputy Doug Fisher) to bring a drug-sniffing dog with him. Fisher wasn't assigned to patrol the highway Gorman was traveling on, but decided that would be the best use of his time.

Fisher pulled over Gorman after his tire touched the fog line a couple of times. Another records check was run, even though Fisher already knew what results to expect, thanks to Trooper Monroe's heads-up. The drug dog supposedly alerted near a right-rear compartment of the RV. Gorman gave the deputy permission to search that area, but that wasn't good enough for Fisher. Fisher said the alert gave him permission to search the entire RV. This resulted in the discovery of $167,000 in cash, which Fisher took. Gorman was (again) free to go. Gorman was never charged with any criminal act, much less given a citation for the supposed moving violations that predicated the two stops.

The government appealed the lower court's decision, which gave Gorman back his $167,000 plus legal fees. It raised a number of defenses for its actions (which included the state's attorney omitting several facts about the two searches from its affidavits), but the Appeals Court is no more receptive of this deception and deceit than the lower court. From the decision [PDF]:

We hold that the search of Gorman’s vehicle following the coordinated traffic stops violated the Constitution and affirm the district court’s order granting Gorman’s motion to suppress. Gorman’s first roadside detention was unreasonably prolonged in violation of the Fourth Amendment. The dog sniff and the search of Gorman’s vehicle, in turn, followed directly in an unbroken causal chain of events from that constitutional violation. As a result, the seized currency is the “fruit of the poisonous tree” and was properly suppressed under the exclusionary rule.

[...]

The coordinated action at issue in Gorman’s case offers a prime illustration of the value of the “fruit of the poisonous tree” analysis. The analysis allows us to see the officers’ conduct in Gorman’s case as what it is: a single integrated effort by police to circumvent the Constitution by making two coordinated stops. When the result of one stop is communicated and, on that basis, another stop is planned and implemented, the coordinated stops become, in effect, one integrated stop that must as a whole satisfy the Constitution’s requirements. An illegal police venture cannot be made legal simply by dividing it into two coordinated stops.

This won't be the only time officers behave this way. The Supreme Court's Rodriguez decision stated traffic stops are over once the "objective is complete." This forces officers to be a bit more creative if they're engaged in fishing expeditions without reasonable suspicion to extend the stop. One "solution" is shown above: have a second law enforcement officer initiate a stop to prolong the roadside investigation without triggering the protections of Rodriguez. Another "solution" is to have K-9 units perform stops or be in close proximity, thus lowering the chances of a court finding the stop to be "prolonged."

Both of these solutions are violations of Rodriguez, even if some courts will award the government points for effort. Fortunately, there are a few courts adhering to the intent of the decision: it's not the length of the Fourth Amendment violation, it's the violation itself.

Unfortunately, anything cash-related tends to make officers bypass their better judgment and push the edge of the Fourth Amendment envelope. The good news -- at least for Straugh Gorman -- is he's getting all of his cash back, plus legal fees. That it took more than two years for this to happen is unfortunate, but to be expected -- especially in a legal system that's stacked against victims of civil asset forfeiture.

Filed Under: 4th amendment, 9th circuit, asset forfeiture, asset seizure, law enforcement, straughn gorman

UK Law Enforcement Telling Citizens To 'See Something Say Something' About Dark Web Use

from the surfing-with-the-enemy dept

See Something, Say Something (UK Edition) has arrived! In the wake of terrorist attacks, local law enforcement are urging people to report "suspicious" activities. There's a long list of things to be on the lookout for, but most notable is the call to view certain internet use as suspicious, as Joseph Cox reports.

Police in the capital have reportedly been handing out leaflets listing what authorities deem as suspicious activity, in the hope that vigilant community members can continue to provide helpful information to law enforcement. Perhaps, in a sign of how online communities play an increased role in radicalization, the leaflet specifically points to use of the dark web as a potential link to terrorism.

"Be aware of what is going on around you—of anything that strikes you as different or unusual, or anyone that you feel is acting suspiciously—it could be someone you know or even someone or something you notice when you are out and about that doesn't feel quite right," another version of the leaflet, which is part of a national campaign and not London specific, reads.

Specifically, it asks citizens to report someone "visiting the dark web or purchasing unusual items online." Not exactly the sort of thing one's likely to catch shoulder-surfing. The leaflet also recommends reporting people for engaging in suspicious photography -- something that's worked out oh so well here in the US.

As Cox points out, tying terrorism to dark web use is kind of pointless. While the dark web is no doubt used by some terrorists, it certainly isn't where most of their activity takes place.

[M]uch of the communication between Islamic State supporters takes place on social media, such as Telegram. And the group's and supporters' propaganda videos are often distributed on everyday social network sites.

What an "education" campaign like this has the potential to do is turn any deviation from normal web use into something inherently suspicious. If law enforcement likes chasing down worthless tips, depicting things non-terrorists do as terrorist-centric is a good way to get that ball rolling.

I don't doubt the public can play a part in preventing terrorist attacks, but the leaflet asks citizens to become intrusive extensions of the government. Most citizens aren't going to know whether their friends and neighbors surf the dark web, much less have any idea if they're "carrying out suspicious transactions on their bank account." The upshot will be a generalized heightened level of suspicion that will most likely manifest itself as expressions of citizens' inherent biases and bigotry.

Filed Under: dark web, law enforcement, say something, see something, uk

There Is No 'Going Dark' Problem

from the to-make-investigative-omelets,-you've-got-to-crack-a-few-phones dept

Former FBI Director James Comey made plenty of headlines with his insistence cellphone encryption would be the end of law enforcement as we know it. Comey's assertions made it seem as though regular police investigative work was no longer of any use and that any and all evidence pertinent to cases resided behind cellphone passcodes.

He insisted the problem would only get worse in the future. If not put to an end by legislated backdoors or smart tech guys coding up "safe" holes in device encryption, we may as well accept the fact that no criminal committing more than a moving violation would ever be brought to justice.

Default encryption does pose a problem for law enforcement, but it's nowhere near as insurmountable as Comey has portrayed it. Multiple FOIA requests handled through MuckRock have shown law enforcement still has several phone-cracking options at its disposal and doesn't seem to be having many problems recovering evidence.

This is superbly illustrated in documents obtained from the Tulsa and Tuscon (AZ) Police Departments by Curtis Waltman. Tuscon PD documents [PDF] show law enforcement officers are using tools crafted by the same company that provided the hack to the FBI in the San Bernardino case, among several other options. But the real motherlode is the Tulsa PD's log of cracked phones.

The kicker really is how often these are being used - it is simply really hard to believe that out of the 783 times Tulsa Police used their extraction devices, all were for crimes in which it was necessary to look at all of the phone’s data… There are some days where the devices were used multiple times - Tulsa used theirs eight times on February 28th of this year, eight again on April 3rd, and a whopping 14 times on May 10th 2016. That is a whole lot of data that Tulsa was able to tap into, and we aren’t even able to understand the why.

The document contains page after page of cracked phones, ranging from Samsungs to HTCs to LGs… even iPhones (5 and 6). "Going dark" remains a Comey fairy tale, for the most part, if these documents are anything to go by.

And there's apparently very few rules for deployment of cellphone-cracking devices. Only one PD in Arizona returned any guidelines in response to requests and those rules basically state there are no rules. The Mesa PD's Computer Forensic Unit makes the most of its limited resources by limiting its work to… any crime at all.

This is the list of criminal activity the unit provides forensic work for, listed in order of priority.

Homicide
Sexual Assault
Child Crimes (which I assume means "crimes against children," rather than crimes committed BY children)
Aggravated Assault/Robbery
Property Crimes
All other felonies
All misdemeanors

Everything. That would explain the number of cellphones accessed by these PDs. Presumably other PDs are also operating under very loose guidance or none at all.

This sort of intrusiveness should be limited to serious felonies and investigations where it's plainly apparent the best route to evidence runs through the suspect's cellphone. Otherwise, law enforcement agencies are just using these tools because they have them, not because they necessarily need them.

Filed Under: data extraction, encryption, fbi, going dark, jim comey, law enforcement

This Machine Kills Accountability: The Ongoing Persecution Of Good Cops

from the reason-for-termination:-did-the-right-thing dept

There are several ways the many problems with American policing could be addressed, but maybe a good starting point would be the way good cops are treated. It takes a concerted effort to remove a bad officer from the force. And, far too often, an ousted officer simply finds a new agency to work for.

Good cops are a relative rarity. There are several who go through their career with a minimal number of sustained complaints, but that alone isn't enough to earn them the label of "good." Far too many are unwilling to speak up when misconduct occurs. Of course, the entire system discourages officers from speaking up. Those that do are ostracized, at best. At worst, they're pressured into giving up their law enforcement career.

There's no better example of law enforcement's skewed priorities than the follow cases. In the first, officers who leaked body cam footage to the press to expose an officer's abusive behavior are facing more serious consequences than the cop they exposed. (via PoliceMisconduct.net)

The officers are accused of downloading and leaking body camera video and confidential records on Officer William Martin. The video shows Martin’s controversial arrest of Jacqueline Craig – the Fort Worth mother who called police to report an assault on her son, back in December.

Officer Martin received a suspension for his actions, but Pridgen and Keyes were demoted. As a result of that demotion the two are no longer a part of Chief Fitzgerald’s executive team and both have been busted down to the rank of police captain.

The video released went viral, and for good reason. It showed Officer Martin assaulting someone who had called the police to report a neighbor had choked her 7-year-old son for littering. If there's anyone to blame for how an attempt to file a police report became a viral example of inappropriate use of force, it's Officer Martin:

“My son is 7-years-old, [he] don’t have the right to grab him and choke him,” Craig tells Martin, referring to the neighbor.

“Why don’t you teach your son not to litter,” asks Martin in a mocking and accusatory tone.

“He can’t prove to me that my son did or didn’t, but it doesn’t matter,” Craig says. “That doesn’t give him the right to put his hands on him.”

“Why not,” Martin asks.

A bystander's video, posted to Facebook, was damning. The officer's own body camera footage was even worse. And yet, it's the officers who leaked the footage losing their titles and pay, rather than the officer who deployed the excessive force.

At the press conference this morning Craig’s attorney, Lee Merritt, talked about the punishment for Officer Martin versus the punishment for the FWPD officers. “Martin amassed a series of felonies on that day from assault, to aggravated assault, to perjury, official corruption, false arrest [and] to each of these he received no criminal investigation, no criminal prosecution. He received a 10-day vacation and he was returned to the force with a scheduled promotion,” Merritt said.

What hurts more, a demotion from the chief's executive force, or ten days off and the gentle reminder not to escalate routine policework into a viral media event?

The second incident is even worse, in terms of changing cop culture. An officer who didn't kill someone is suing his former employer.

A West Virginia police officer who was fired after not shooting an emotionally disturbed man with an unloaded gun filed a civil rights lawsuit Wednesday against his former department.

Mader's lawsuit, filed Wednesday on his behalf by the American Civil Liberties Union of West Virginia and the law office of Timothy O'Brien, claims he was wrongly terminated, and that the county, city and police department violated his First and Fourteenth Amendment rights. He is seeking compensatory and punitive damages in excess of $75,000.

Rather than view a suicidal person as an unfinished story just waiting for cops to write the final chapter, the officer talked to the man and attempted to resolve the situation without violence. This plan was ruined by the next cop through the door, who immediately shot and killed the suicidal man. The gun the man was holding was unloaded. Sure, the next officer through the door didn't know that, but it's not as though the officer took any time to assess the situation -- something that might have included speaking to the officer who was already present in the room with the "dangerous threat."

Officer Mader was fired. The other cop was praised. According to the department, Mader "put two other officers in danger" by not immediately killing the suicidal man. In his notice of termination, Mader was let go for "failing to neutralize a threat." Oddly, the only person who spent any time talking to the suicidal man didn't see him as a threat. It was only the other officers -- who had spent zero time interacting with the man -- who felt "endangered" and "threatened."

For this decision, Mader was not only fired, but dragged through the mud by his supervisors and fellow officers:

The department said Mader did not attempt to deescalate the situation, first yelling profanity at Williams and then freezing. City officials also said Mader was fired due to "multiple" prior incidents, including performing a search of a car without probable cause. Mader's lawsuit says those statements are false. Officials also called him a "disgruntled employee" and "a bad cop."

The officer who shot Williams texted Mader after the press conference, according to the lawsuit, and called him a "coward" who "didn't have the balls to save [his] own life."

This is the thanks officers get for attempting to protect and serve their community. Far too many officers act as though the world's out to get them -- a mindset that becomes a self-fulfilling prophecy when they treat everyone else not dressed in blue as a threat.

Being a good cop gets you nowhere. Or, rather, it gets you demoted or fired. Until the internal attitude changes, the external behavior of law enforcement officers will only get worse.

Filed Under: good cops, law enforcement, police, prosecution

Law Enforcement 'Training And Expertise' On Parade!

from the all-the-ineptitude-that's-fit-to-print dept

This is just a periodic reminder that these are the sort of people whose "experience" and "expertise" are routinely granted massive amounts of deference by judges (and stenographers pretending to be journalists). Warrant affidavits providing more detail about the requesting officer's law enforcement career than the target of the search are often rubberstamped into actionable pieces of paper. (But not always!) And yet, these experienced experts look far more mortal when their actions are given something more than a cursory examination.

Exhibit A: the Odessa PD's crack team of trained experts who participated in a daring no-knock raid of an empty motel room.

The search warrant was executed on Jan. 29 at the America's Best Value Inn, 3023 E. Highway 80.

Police officials say the officers involved in executing the warrant "used an unauthorized cooperating individual," and the cooperating individual did not have the required file.

The Professional Standards Unit Investigation also found that the officers involved failed to correctly identify and confirm the location of the criminal activity.

During the search, officers entered room #225 which was vacant, according to previous reports.

Officers then reportedly made a "split-second" decision and breached the next room (#226) at the hotel where suspects were located.

When reviewing the warrant, officers realized that on the warrant room #225 had been listed, police say.

The suspects in the room were held "pending the production of a second search warrant," police say in a release.

Post-facto warrants are seldom as legally-sound as warrants obtained before a search. Sometimes affidavit errors are excused but this case involved a confidential informant of uncertain trustworthiness and a lack of proper documentation. The officers are being lightly disciplined for their Keystone SWAT effort, but the department has cleared itself of any wrongdoing after investigating itself.

In the investigation, police determined that the breach of room #226 was "not illegal because the conduct of the officers prior to their entry into room #226 was lawful, there was no violation or threatened violation of the Fourth Amendment, and therefore the exigent circumstance rule applied and allowed for the entry and securing of room #226," the release reads.

I imagine any evidence will be challenged in court, despite the PD's claim no Fourth Amendment violations took place during the department's botched raid. We'll see how much claims of officer training and experience will hold up under judicial examination. (Sadly, they'll probably hold up much better than they should. While typos are an inevitability, the use of a CI with no pedigree or paperwork puts the warrant on severely shaky legal footing.)

Exhibit B: the cop who justified the frisk of someone with statements that immediately undermined the asserted justifications. Here's the court explaining to the officer why the frisk wasn't reasonable:

Officer Kim’s testimony about seeing the handle of a gun protruding from Smith’s pocket is not credible. At the evidentiary hearing, Officer Kim testified that she could see the black handle of a gun protruding from Smith’s pocket. However, in her arrest report, written shortly after the incident, Officer Kim wrote “[t]he handgun was concealed inside his pocket in such a manner as not to be discernible by ordinary observation.” (ECF No. 18-1 at 3) This statement directly contradicts her testimony. It is unlikely that Officer Kim, approaching a poorly lit landing in the wee hours of the morning, would have been able to discern a black gun handle allegedly sticking out of Smith’s pocket.

[...]

Indeed, Officer Kim acknowledged in her police report she only became aware of the handgun after she began the pat down.

The question that must be asked (but can't be answered) is: how many times has this sort of thing happened? Only a very small percentage of frisks receive courtroom challenges. And stop-and-frisk programs have been heavily criticized for their routine abuse of civil liberties. There's no expertise on display here: only the inability to work backwards from an illegal search, even when given a chance to "correct the record" post-search by aligning the paperwork with a less-unconstitutional narrative.

And, finally, Exhibit C: Police chief vows to make the same horrendous mistake if that's what it takes to somehow make a dent in sex trafficking.

"Everybody's like, 'Don't move, don't move or we'll shoot you,'" Noel Navarete told local 4 News. His brother Isaias, 18, said he was in the bathroom when police kicked down the door.

According to family matriarch Maria Navarete, police told her to "shut up, you have no rights" when she asked what was happening. She claims police never showed her or anyone in the household a warrant.

Police apologized, explaining that a mysterious heroin-addicted woman in a local hospital said she and several underage girls had been held against their will and forced into prostitution; the woman (visually) identified the Navarete's place as where it went down. That night, police began observing the house, soon witnessing two girls get dropped off by an SUV and go inside. Apparently, that was enough to warrant a furtive, middle-of-the-night raid on the place.

The kicker here is the apology came packaged with the police chief's assertion he would handle things EXACTLY THE SAME WAY in the future. Somehow, this department will stamp out the scourge of sex trafficking using proven law enforcement tools like "mysterious heroin addicts" and several minutes of results-oriented investigation.

These are just a few of the experienced experts serving the public -- men and women whose testimony is often considered unimpeachable and nigh unto God in terms of trustworthiness. Men and women whose errors ruin lives and whose shortcuts use the Constitution as a doormat.

Filed Under: law enforcement, police

FBI Releases 'Study' Of Law Enforcement's Persecution Complex

from the less-work,-more-griping dept

In what may be an attempt to bolster now ex-FBI director James Comey's oft-derided "Ferguson Effect" claims, the FBI has released a "study" that gathers facts feelings from law enforcement officers around the US and attempts to build a narrative somewhere between "life is unfair" and "there's a War on Cops." It's not a study. It's an opinion poll with the word "study" appended to it.

In short, the Ferguson Effect theory is this: cops are afraid to do their jobs because they're undergoing intense scrutiny in the wake of controversial shootings. It's bullshit, but there are plenty of law enforcement officials willing to stake their reputations on assertions that portray their officers as cowards. Faced with heightened public scrutiny, officers are apparently deciding to do less work than before, supposedly to head off any misrepresentation of their tactics.

The FBI's study involved interviewing officers and supervisors at agencies where an officer had been killed in the line of duty. It studied the background of the assailants, but that appears to be the end of any factual basis for claims made. What these stats show is most attacks on officers involved a person who didn't want to be arrested. A smaller percentage of attacks were motivated by a desire to hurt cops.

Despite these conclusions, the FBI's study pushes forward with an officer-driven narrative that follows the War on Cops/Ferguson Effect: supposedly-increased violence towards cops (not supported by line-of-duty death statistics) and "de-policing." I supposed the FBI's "impartiality" restrained it from challenging contradictory and false assertions provided to it by officers. From the study [PDF]:

Since 2014 multiple high-profile police incidents across the country have occurred that law enforcement officials believe influenced the mindset and behaviors of the assailants. Specifically, the Michael Brown shooting in Ferguson, MO, in 2014, and the social disturbances that followed, initiated a movement that some perceived made it socially acceptable to challenge and discredit the actions of law enforcement. This attitude was fueled by the narrative of police misconduct and excessive force perpetuated through politicians and the media.

This narrative has apparently risen unbidden. It couldn't possibly have been the result of multiple DOJ civil rights investigations and the rise of non-police-controlled cameras. In other words, it couldn't possibly be the result of verifiable evidence, rather than hurt feelings of police officers who fear they're no longer viewed as minor deities.

Law enforcement agencies also complained they're no longer able to provide the only narrative after incidents of abuse or violence.

Due to the coverage of the high-profile police incidents, it appears that immediately following the incidents, assailants were constantly exposed to a singular narrative by news organizations and social media of police misconduct and wrong-doing. In many cases, this singular narrative came from the subject's friends and family, and witnesses to the incident who often knew the subject, long before law enforcement provided their findings to the public.

Reading this is like asking a four-year-old for their opinion on current events. This is so self-centered, self-pitying and bereft of awareness, it's ridiculous. The standard M.O. following the killing of someone by a police officer is to get the dead person's rap sheet into journalists' hands as quickly as possible. Meanwhile, the officer's agency will refuse to provide any information on the officer involved (in most cases, not even the officer's name) until everything is thoroughly investigated, which means weeks or months will pass before law enforcement is ready to tell its side of the story.

Both of these bogus assertions lead to a third: the inability of law enforcement to control the narrative has "emboldened" arrestees, making them less compliant, more argumentative, and more likely to engage in violence. The officers surveyed also threw out the following, which is so unmoored from reality, it calls their judgment into question:

Across the country, law enforcement officials link the de-criminalization of drugs to the increase in violent attacks on law enforcement.

If this were even remotely true, the number of officers killed in the line of duty should have dropped dramatically during the late 80s and early 90s when new, extremely-harsh statutory minimums were put into place in response to the crack epidemic. And those numbers should be on the rise in recent years, as marijuana legalization and sentencing reform efforts have taken hold. None of what's asserted by officers is reflected in killed in the line of duty stats. If anything, it shows deaths have decreased as legalization efforts have increased.

And, as officers have felt less support from non-cops and been subjected to unprecedented scrutiny (i.e., more than none), they've felt less and less like doing the job taxpayers are paying them to do.

The above-referenced factors have had the effect of "de-policing" in law enforcement agencies across the country, which the assailants have exploited. Departments - and individual officers - have increasingly made the conscious decision to stop engaging in proactive policing. The intense scrutiny and criticism law enforcement has received in the wake of several high-profile incidents has caused several officers to (1) "become scared and demoralized" and (2) avoid interacting with the community.

Let's just repeat this simple fact: being a law enforcement officer is not compulsory. If you no longer feel you can do the job, or don't like the working conditions, leave. Find something else to do. Taxpayers aren't interested in being under-served by officers who can't stand the heat but are unwilling to leave the kitchen.

I realize this is a facile response. Leaving a job, much less a career, is a very difficult thing to do. But these are facile answers. And they're being given by officers who are finding out they need to do their jobs better in the future, but are clearly unwilling to improve themselves or their agencies. Instead, they'd rather blame everyone outside of law enforcement for their problems, when years of opacity and unquestioned authority have turned them into the officers and officials they are.

We usually see the worst of law enforcement when it comes to the media. But we generally see the worst of all members of the public when filtered through this narrow lens. Police work is a customer service job, albeit one that grants employees an incredible amount of leeway to perform their duties.

The worst will be what's remembered. That may seem unfair, but that's just the way it is. United Airlines may fly millions of passenger miles without complaint, but it will be remembered for a long, long time as the airline that booted a paying passenger from its plane using law enforcement as the stick. (There was no carrot.) The same goes for law enforcement agencies.

The FBI's study contains no indication officers are willing to surmount the challenges of this era of policing. There's no sign officers are interested in making the effort needed to change the public's perception. Instead, it's an open airing of grievances that may have had limited therapeutic value for responding officers, but does nothing to repair the relationship between law enforcement and the public.

Filed Under: fbi, ferguson effect, law enforcement