Court Holds NYPD In Contempt For Refusing To Hand Over Documents Related To Black Live Matter Surveillance

from the momentary-stay-of-the-judicial-backhand dept

The NYPD continues to extend a middle finger to every entity that isn't the NYPD. The department's long history of doing everything it can to thwart public records requesters has been discussed here several times. It's not on much better terms with its oversight, which it routinely ignores when directed to do something about its officers' routine rights violations and deployment of excessive force.

If it's not going to be accountable to the public -- either via FOIL (Freedom of Information Law) compliance or respecting the decisions of its oversight -- it's certainly not going to let the judicial branch push it around.

The NYPD has 30 days to turn over surveillance videos of Black Lives Matter protesters after a Manhattan judge ruled Wednesday that the department flouted his previous order to disclose the records.

Manhattan Supreme Court Justice Manuel Mendez, who issued the contempt of court ruling, stopped short of immediately imposing sanctions on the police. Instead, he said the NYPD could "purge" the contempt ruling by turning over more material related to the monitoring of protesters at Grand Central Terminal in November 2014 and January 2015 within a month.

This ruling arrives eight months after the NYPD made a mockery of an earlier court order on records disclosure, turning over nothing more than a few pieces of paper and short, blurry cell phone recording of Black Lives Matter protesters. According to Judge Mendez, the NYPD's efforts to comply with the FOIL request at the heart of the lawsuit have been "disingenuous" at best.

Undoubtedly, the NYPD has a large number of records related to its surveillance of protesters. It just doesn't want to release them. The NYPD has repeatedly engaged in surveillance of First Amendment activity. That's the sort of thing one should expect from a law enforcement agency that views protests and terrorism as two sides of the same coin. When that's your viewpoint, you get you a special operations unit that can do both: the Strategic Response Group, which, according to the Mayor, is capable of handling both protests or "attacks like those in Mumbai."

Mendez may have issued a ruling of contempt, but city lawyers aren't exactly springing into action to comply with the judge's February order. According to the city, it's still "weighing its options" and angsting away uselessly.

The city’s Law Department immediately cried foul, saying it is reviewing its legal options and is “deeply concerned with this ruling and the dilemma in which it places the city.”

“On the one hand, we are constrained by genuine security concerns from explaining publicly how disclosure could endanger the lives and safety of undercover officers,” a Law Department spokesman said. “On the other hand, we were not afforded an opportunity to explain those concerns to the court in a non-public setting.”

Well, I call bullshit. There's not a court in the land that won't allow in camera hearings or ex parte submissions where the government can attempt to explain its refusal to hand over evidence or documents. I'm sure Judge Mendez would have allowed it if he thought this sort of hearing was appropriate. Chances are he would have been much more amenable to the city's request for a private explanation if it had engaged in a little more good faith effort during its search for relevant documents.

If the city returns to court with nothing more than its unearned dismay, the judge will probably start issuing sanctions. As it stands now, the NYPD has the choice of producing more responsive documents or submit sworn affidavits explaining why it can't -- or won't -- turn over more documents related to its surveillance of Black Lives Matter protesters.

It's hard to imagine what sanctions will have a lasting deterrent effect on the NYPD. Everything else that's been tried hasn't produced a more accountable entity. Short of jailing some top brass, any punishment the court hands out will likely be suffered by the public, especially if it's nothing more than fines the NYPD can pay with other people's money.

Filed Under: black lives matter, contempt, foia, nypd, surveillance, transparency

FBI Acts Like It's Still 1960 With Its Report On 'Black Identity Extremists'

from the agency-eats-its-own-speculative-dog-food dept

We already knew Jeff Sessions was a throwback. The new head of the DOJ rolled back civil rights investigations by the agency while calling for harsher penalties and longer jail terms for drug-related crimes, while re-opening the door for asset forfeiture abuse with his rollback of Obama-era policy changes.

But it's more than just the new old-school DOJ. The FBI is just as regressive. Under its new DOJ leadership, the FBI (inadvertently) published some speculative Blue Lives Matter fanfic [PDF] -- an "Intelligence Assessment" entitled "Black Identity Extremists Likely Motivated to Target Police Officers."

There's no hedging in the title, despite what the word "likely" usually insinuates. According to the FBI, this means there's an 80-95% chance it believes its own spin.

Here's the opening sentence:

The FBI assesses it is very likely Black Identity Extremist (BIE) perceptions of police brutality against African Americans spurred an increase in premeditated, retaliatory lethal violence against law enforcement and will very likely serve as justification for such violence.

And here's what the term "very likely" means when the FBI uses it:

Beyond that, the FBI says this:

The FBI has high confidence in these assessments…

And here's how the FBI defines "high confidence."

High confidence generally indicates the FBI’s judgments are based on high quality information from multiple sources. High confidence in a judgment does not imply the assessment is a fact or a certainty; such judgments might be wrong. While additional reporting and information sources may change analytical judgments, such changes are most likely to be refinements and not substantial in nature.

What's in this open-and-shut report? What key elements lead the FBI to believe "BIEs" will be killing cops in the future? Well, it appears to be nothing more than a recounting of recent cop killings, coupled with anecdotal evidence, like the expression of anti-white sentiment in social media posts. Beyond that, there's little connecting those who have killed cops with the ethereal FBI BIE ideal. There's certainly no organization behind the killings -- only a few common factors. And those factors -- if the FBI is allowed to continue to treat "BIE" as a threat to police officers -- will do little to discourage violence against police officers.

What it will do is allow law enforcement to engage in racial profiling and to overreact to social media rants by angry black men. And it will allow the FBI to turn into the same FBI that targeted Martin Luther King Jr. and other civil rights activists during the 1960s. In fact, it almost acknowledges as much in the report.

BIEs have historically justified and perpetrated violence against law enforcement, which they perceived as representative of the institutionalized oppression of African Americans, but had not targeted law enforcement with premeditated violence for the nearly two decades leading up to the lethal incidents observed beginning in 2014. BIE violence peaked in the 1960s and 1970s in response to changing socioeconomic attitudes and treatment of blacks during the Civil Rights Movement.

The composers of this report may have a lot of confidence in their assumptions, but no one else seems to.

Daryl Johnson, a former Department of Homeland Security intelligence agent, when asked by Foreign Policy in October why the F.B.I. would create the term “B.I.E.,” said, “I have no idea” and “I’m at a loss.” Michael German, a former F.B.I. agent and fellow with the Brennan Center for Justice’s liberty and national security program, said the “Black Identity Extremists” label simply represents an F.B.I. effort to define a movement where none exists. “Basically, it’s black people who scare them,” he said.

“Could you name an African-American organization that has committed violence against police officers?” Representative Karen Bass asked Attorney General Jeff Sessions at Tuesday’s hearing. “Can you name one today that has targeted police officers in a violent manner?” It’s no surprise that he could not. Mr. Sessions, who confessed that he had not read the report, said he would need to “confirm” and would reply in writing at a later time. The F.B.I. itself admits in the report, that, even by its own definition, “B.I.E. violence has been rare over the past 20 years.”

If the report is acted on, it will be the 1960s all over again.

Although it’s unclear what actions the F.B.I. will take as a result of the report, the conclusions pave the way for it to gather data on, monitor and deploy informants to keep tabs on individuals and groups it believes to be B.I.E.s. This could chill and criminalize a wide array of nonviolent activism in ways that have terrifying echoes its infamous Cointelpro program, which investigated and intimidated black civil rights groups and leaders, including Marcus Garvey and the Rev. Dr. Martin Luther King Jr. Under this program, F.B.I. agents concocted a false internal narrative connecting Dr. King to foreign enemies, allowing agents to justify threatening to publicize his private life and encouraging him to commit suicide. This is a reminder that while the “Black Identity Extremist” designation is new, the strategy of using a vague definition to justify broad law enforcement action is not.

This is what the report looks like from the outside. It's unclear if those inside the agency feel the same way. The leaked report confirms many people's suspicions about law enforcement agencies: they view minorities as threats and will concoct narratives to support these views. There's no evidence any sort of BIE organization exists, much less the existence of a concerted effort to inflict violence on police officers. But this report is a gift to every police officer and FBI agent who really wants to believe African Americans are out to get them. Given the administration's unqualified support for law enforcement, coupled with the Commander in Chief's off-the-cuff encouragement of violence, this report is basically an invitation to start policing like it's 1960, rather than 2017.

Filed Under: black lives matter, blm, doj, extremism, fbi

Judge Smacks Down Another Anonymous Cop's Lawsuit Against Black Lives Matter

from the tired:-filing-RICO-suits;-wired:-suing-social-movements dept

For the second time in less than a month, a judge -- the same judge -- has tossed out lawsuits from anonymous law enforcement officers filed against the social movement known as Black Lives Matter. Much like the no-name cop in the other idiotic lawsuit, this anonymous cop swore up and down (as one tends to do in legal filings) Black Lives Matter was responsible for injuries he sustained during an ambush.

Judge Brian Jackson warned the unnamed plaintiff his suit was on its way to the dustbin of history shortly after tossing the first officer's suit -- one that included a hilarious attempt to hold a Twitter hashtag responsible for injuries sustained during a protest. Finding this suit to be more of the same, the judge warned the officer to start making some actual actionable claims or face dismissal. No such claims have been stated apparently, as Courthouse News Service reports.

“Based on the facts alleged, plaintiff’s counsel has failed to plead a plausible claim that defendants can be held liable for Officer Smith’s injuries,” the judge wrote in Friday’s ruling. “Instead, plaintiff’s counsel simply asserts—without pointing to any supporting facts—that the shooter was acting ‘as [‘Black Lives Matter’] leaders had directed its followers.’”

Jackson ruled that isn’t enough to assert a claim against the movement and McKesson.

He said Grodner had not shown that there was “any contact either directly or indirectly” between Black Lives Matter and the shooter, Gavin Long, a 29-year-old former Marine from Kansas City, Mo.

Gavin Long shot and killed three officers a few days after Alton Sterling was killed by Baton Rouge police officers. The anonymous officer suing Black Lives Matter was injured in the shooting. As tragic as the whole situation is, it still doesn't justify suing a non-entity with allegations a social movement somehow pushed a person to kill and injure police officers. There's no case to be made, as the court points out in a paragraph both devastating and succinct. From the opinion [PDF]:

All of Plaintiff’s Counsel’s allegations against Defendants suffer from the same deficiency: the facts pleaded do not give rise to a plausible inference that Defendants are liable for the conduct alleged. Plaintiff’s Counsel’s rambling Complaint focuses almost exclusively on events in other states, in other cities, and at other periods of time entirely unconnected to the shooting that gave rise to this cause of action. To the extent the Complaint describes allegations against named Defendants, such general allegations consist either of protected free speech activity or wholly conclusory statements that do not meet the plausibility standard required to survive a motion to dismiss.

Suing Black Lives Matter for being shot at by some rando criminal is like suing Blue Lives Matter every time an officer kills or wounds a citizen. Neither nebulous entity is responsible for the actions of an individual. Both are social movements incapable of being sued, even if someone could somehow provide a credible link between the movement's rhetoric and the plaintiff's injuries. It's an impossible bar to reach because this sort of evidence simply does not exist.

Attorney Donna Grodner -- the same attorney behind the other failed v. Black Lives Matter lawsuit -- asked the court for a mulligan. Denied.

The Court finds that leave to amend would be futile. In response to the Court’s Order to Show Cause, Plaintiff’s Counsel requests the opportunity to amend the Complaint only to add more of the same: allegations against Defendants unconnected to the incident giving rise to the tragic shooting of Officer Smith. Plaintiff’s Counsel states that it can provide “more factual allegations about each of the leaders and what each has done personally in his/her role as a founder/leader to invoke violence against police . . . to provide ample evidence that the leaders and founders incited a nation to violence against police.” Notably, Plaintiff’s Counsel still does not offer to provide any facts that connect the words or actions of named Defendants to the actions of the individual who ultimately shot Officer Smith. Generalized allegations that named Defendants expressed anti-police sentiments, without temporal or causal connection to the shooting, are insufficient to state a plausible claim for relief.

Perhaps the court was already well aware of what laid ahead if it allowed Ms. Grodner to better explain herself. Here's Judge Brian Jackson's statement on a motion filed by Grodner in a case brought against her for professional misconduct.

The Court granted Ms. Grodner's request, ordering that Ms. Grodner's Response be entered as "a new docket entry." (Doc. 3 at p. 1). Despite its styling, Ms. Grodner's rambling 18-page pleading was largely unresponsive to the Court's Show Cause Order, devoting significant portions to irrelevant issues, (Doc. 4 at pp. 3-4, 10-17 (discussing whether Ms. Grodner is subject to sanction for violation of Federal Rule of Civil Procedure 11, 28 U.S.C. § 1927, and/or her performance in unrelated cases)), non sequiturs, (see id. at p. 14 n.17 ("The secretary, who made this error, no loner [sic] works for Ms. Grodner, because she had to leave once she was accepted into the Harvard Law School on a full scholarship."), and ad hominem attacks, (see id. at p. 15 ("This Court, itself, is not immune from human error."); id. at p. 15 n.21 ("The undersigned has not attempted to comb the docket of this Court to see if other human errors may be found, but suspects that there are other harmless errors."); id. at p. 17 ("There are a couple of admitted instances of human error, but this Court itself has committed human error.")).

That's the second loss for Grodner in two consecutive, spectacularly bad lawsuits -- both argued in front of a judge that has had his patience tested by the attorney in earlier cases. It's unclear who's money she's wasting filing these suits. It could quite possibly be her own. If her anonymous cop clients were paying in full, it's unlikely she would have attempted to crowdfund their legal offense. Her YouCaring fundraising page for the lawsuits was deleted by the platform earlier this year for violating its rules.

“In alignment with our mission, we removed this fundraiser because it was not within our community guidelines around promoting harmony,” YouCaring Chief Marketing Officer Maly Ly told PBS NewsHour Weekend in an email. “We are not the right platform to air grievances, or engage in contentious disputes or controversial public opinion.”

Hopefully, this will deter copycat lawsuits. As amusing as the judicial smackdowns are to witness, they're a waste of everyone's time, including this particular judge's.

Filed Under: black lives matter, free speech, lawsuit, police

Court Tosses Cop's Lawsuit Against Social Movement, Twitter Hashtag

from the flipping-the-'fool-for-a-client'-adage dept

If you're a cop patrolling a demonstration and you get hit by a flying rock, you most likely shrug it off as the hazards of work and set out making an arrest. If you're one anonymous Baton Rouge cop, you sue ethereal non-entities and someone who did nothing more than speak at the protests where the officer was injured. (h/t Adam Steinbaugh)

We don't know who this cop is but we do know his lawyer, who had this to say about the recently-tossed lawsuit.

The officer's attorney, Donna Grodner, said in an email that she was "not at liberty to discuss the case."

This explains everything. Actually, considering the lawsuit aped one of Larry Klayman's more... um... inventive litigation escapades, the less said about the tossed suit, the better. In no particular order, AnonCop sued:

1. Activist DeRay Mckesson, who spoke at the Baton Rouge demonstrations.

2. Black Lives Matters -- a name used by several concurrent movements to protest police violence against blacks

3. A Twitter hashtag

The suit has been tossed -- hard -- by a Louisiana federal court. Dismissed with prejudice [PDF], which blocks AnonCop from attempting anything this ridiculous again -- at least against these defendants.

The court waves away the allegations against Mckesson as lacking in any evidence the activist was responsible for the rock/concrete that hit the suing officer.

In his Complaint, Plaintiff alleges that Mckesson "le[]d the protest and violence that accompanied the protest." (Id. at ¶ 3). As support for this contention, Plaintiff pleaded that Mckesson "was in charge of the protests[,] and he was seen and heard giving orders throughout the day and night of the protests." (Id. at ¶ 17). Further, Plaintiff avers that Mckesson "did nothing to calm the crowd" during the demonstration; rather, Mckesson "incited the violence." (Id. at ¶ 19). All of these allegations are conclusory in nature, however, and they do not give rise to a plausible claim for relief against Mckesson.

In order to state a claim against Mckesson to hold him liable for the tortious act of another with whom he was associating during the demonstration, Plaintiff would have to allege facts that tend to demonstrate that Mckesson "authorized, directed, or ratified specific tortious activity." Id. Plaintiff, however, merely states – in a conclusory fashion – that Mckesson "incited the violence" and "g[ave] orders," (id. at ¶¶ 17, 19), but Plaintiff does not state in his Complaint how Mckesson allegedly incited violence or what orders he allegedly was giving.

Then it gets to the even more ridiculous claims. The judge point out you can't sue Black Lives Matter because it's something people align with, not an actual entity representing BLM ideals. It's a movement participated in by many, but there is no official HQ for BLM all the franchisees report to.

"Black Lives Matter," as a social movement, cannot be sued, however, in a similar way that a person cannot plausibly sue other social movements such as the Civil Rights movement, the LGBT rights movement, or the Tea Party movement. If he could state a plausible claim for relief, a plaintiff could bring suit against entities associated with those movements, though, such as the National Association for the Advancement of Colored People, the Human Rights Campaign, or Tea Party Patriots, because those entities are "juridical persons" within the meaning of Louisiana law.

Nevertheless, Plaintiff merely has identified "Black Lives Matter" as a Defendant in his Complaint, and that term connotes a social movement that is not a "juridical person" and that lacks the capacity to be sued.

It's far more blunt about AnonCop's hashtag defendant, #BlackLivesMatter:

Plaintiff... is attempting to sue a hashtag for damages in tort. For reasons that should be obvious, a hashtag – which is an expression that categorizes or classifies a person's thought – is not a "juridical person" and therefore lacks the capacity to be sued. See La. Civ. Code art. 24. Amending the Complaint to add "#BlackLivesMatter" as a Defendant in this matter would be futile because such claims "would be subject to dismissal"; a hashtag is patently incapable of being sued.

The officer hoped to amend his lawsuit to include Black Lives Matter, Inc., which he discovered to be the entity on the receiving end of a donation he presumably made in hopes of finding a defendant he could actually sue. The court agrees this might make for a serviceable (in the legal sense of the word) defendant, but says there's nothing linking the recipient of his investigatory donation to the rock that hit his face.

Plaintiff's only attempt at characterizing the unidentified tortfeasor as an agent of Black Lives Matter Network, Inc., is located in paragraph 37 of the Proposed Amended Complaint, in which Plaintiff alleges that the tortfeasor was a "member of Defendant Black Lives Matter, under the control and custody of Defendants." Not only does Plaintiff specifically fail to mention Black Lives Matter Network, Inc., whatsoever, but Plaintiff also fails to allege that such an agency relationship existed between the tortfeasor and "Defendants" with anything more than a "[t]hreadbare recital[] of the elements" of agency, "supported by [a] mere conclusory statement[]." Iqbal, 556 U.S. at 678. Further, Plaintiff has failed to plead that Black Lives Matter Network, Inc., in particular, "had knowledge and specifically ratified" the unidentified tortfeasor's act of throwing a rock at Plaintiff, Claiborne Hardware, 458 U.S. at 930; Plaintiff merely alleges, in a conclusory fashion, that "Black Lives Matter leadership ratified all action taken during the protest," and that "Black Lives Matter promoted and ratified" the tortious conduct that gave rise to this suit.

If the officer has more money to waste, he can appeal the decision. But the caselaw is rock solid: you can't sue hashtags, social movements, or people who happened to be in the same city as the person who threw a rock at your head.

Filed Under: #blacklivesmatter, baton rouge, black lives matter, deray mckesson, donna grodner, hashtag, lawsuit

Black Lives Matter Sues Police Department Over Illegal Surveillance Based On First Amendment Activities

from the wrong-thing-targeted dept

Members of a New York "Black Lives Matter" group are suing the town of Clarkstown and its police department over illegal surveillance. The plaintiffs allege they were placed under surveillance by the Clarkstown PD's Strategic Intelligence Unit (SIU) for a number of reasons, none of which were legal uses of the agency's spy wares.

It would seem the lawsuit [PDF] has a good chance of paying off. Allegations of racial profiling and illegally surveilling citizens for their First Amendment activities are backed by the results of investigations and one police official's own admissions.

A letter to the US Attorney's office in New York, attached as an exhibit, bolsters the claims made in the BLM lawsuit. In it, Clarkstown town Supervisor George Hoehman details a long list of surveillance violations and other police misconduct.

According to the letter [PDF], the SIU began surveillance of members of a play entitled "A Clean Shoot?" performed by a group called "We the People." The surveillance included constant monitoring of their social media profiles and the deployment of geofencing in hopes of capturing anyone else who might be involved with the group and/or the play.

The Clarkstown PD shared the information it gathered with the Haverstraw Police Department -- information that included the results of searches of criminal databases. Clarkstown's SIU "warned" Haverstraw the next production of the play would be in September, but noted that participants posed no threat of violence despite harboring "strong opinions."

When setting up the geofences, Clarkstown PD lumped BLM and We the People members in with gang members, terrorists, and other more legitimate targets of police surveillance. This continued even though they were told (repeatedly) by the local district attorney's office they should not have Black Lives Matter listed as a surveillance target.

In August 2016, the special prosecutor handling the investigation of this surveillance demanded Clarkstown PD hand over communications pertaining to its spying on the two groups. He never received anything. Instead, Police Chief Michael Sullivan deleted all of the data from his issued cellphone. He also allowed Sgt. Steven Cole-Hatcher (head of the SIU) to wipe his own cellphone and to delete possibly-incriminating files from his departmental computer. Sullivan was suspended for fifteen days. Cole-Hatcher was given the opportunity to retire. He's now suing to get his job back and it's his filings that have generated a lot of the evidence needed by BLM to successfully pursue this lawsuit.

The letter also alleges things unrelated to the BLM lawsuit, but equally disturbing. Local law enforcement officials have apparently engaged in election interference, surveillance of judges, and monitoring of the town supervisor's social media profiles with the department's surveillance software.

Much of what's in the most recent lawsuit retreads allegations made previously. Fortunately, some of those allegations have already been sustained. The lawsuit pleads violations of the First and Fourth Amendment and seeks damages and injunctions against future unlawful surveillance.

Chief Sullivan has (unhelpfully) explained BLM and We the People weren't singled out for unlawful surveillance. He stated "many other groups and individuals" were surveilled by the SIU -- a statement he made without clarifying whether these others instances were for legitimate reasons.

Adding the latest allegations to those already sustained suggests local law enforcement agencies have more in common with cancerous growths than the "protectors and servants" ideal.

Filed Under: black lives matter, clarkstown, first amendment, new york, surveillance