Cop To Cameraman: 'If You're Invoking Your Rights, You Must Be Doing Something Wrong'

from the we'll-let-you-know-when-you-have-some-'rights'-you-can-use dept

The notion that certain rights are guaranteed to citizens is being proven false every day. For instance, you have the First Amendment right to film police officers and other public officials, but it often takes an official policy change (usually prompted by lawsuits) before these public servants will begrudgingly respect that right.

You also have certain rights guaranteed by the Fifth Amendment, but even these aren't innate. You can't simply remain silent while detained or arrested. You have to invoke these rights (often repeatedly) or risk having your silence (things you didn't say) used against you.

In the case of photographing police officers, you'll notice that activists and others who are recording will invoke their rights repeatedly. In some cases, this forces those being recorded to back off and reconsider their attempts to shut down recordings or seize cameras. It doesn't always work but it works often enough to show that these police officers know you have this right but won't respect it unless you invoke it.

Techdirt reader timlash sends in this video of two citizens filming a sally port (where prisoners are shuttled in and out of the courthouse) in Jacksonville, Florida. As is to be expected, police officers show up and try to shut down the recording of a public building from a public sidewalk. But the most amazing part of the video is the police officer's statement in response to the cameraman invoking his rights.

"You must be doing something wrong if you invoke your rights."

That's the prevailing attitude. Invoke your Fourth Amendment rights to be free of unreasonable searches and seizures and the government assumes you have something to hide. Invoke your Fifth Amendment rights and the government assumes you've committed a crime. Invoke your First Amendment right to record police officers and you're told that you're "obstructing" an investigation or creating a public disturbance.

You have rights as an American citizen. They just won't be respected by default. And when you invoke them, you'll be treated as an activist (at best) or a criminal (at worst). The land of freedom has tipped the balance away from the citizens and towards the government -- because whether we're fighting terrorism, drugs or illegal immigration, the respect of citizens' rights impedes the progress of the nation's many "warriors."

Filed Under: cameras, invoking rights, police, recording police, rights, threats

City Of Peoria Claims No Rights Were Violated When Police And Mayor Shut Down Parody Twitter Account

from the 'because-we-all-thought-we-were-doing-the-right-thing' dept

Back in April, humble Peoria, Illinois, made national news when its mayor and police department combined forces to shut down a parody Twitter account. The account, named after Mayor Jim Ardis, sent out a few days worth of sex-and-drugs tweets, something that very obviously would not have come from a mayor's actual Twitter account (exception: Rob Ford).

This very public display of stupidity may cost the City of Peoria, along with the many other defendants named in the lawsuit filed on behalf of the Twitter account owner (Jon Daniel) by the ACLU. Obviously, the First Amendment was all but forgotten in the mayor's quest to make this account -- one that was only seen by Mayor Jim Ardis and a handful of others -- disappear.

As is to be expected in responses to allegations, almost everything damning is denied. The only allegations the city's lawyers affirm are those that can't be refuted. Freedom of Information requests by Matt Buedel of the Peoria Journal Star brought the warrant application and email conversations between the police department and Mayor Ardis into the public eye. As a result, the city's plausible deniability options are extremely limited. But that hasn't stopped the city from making some very questionable denials. (via Ars Technica)

Defendants admit that from March 9 through March 19, 2014, Plaintiff tweeted from a twitter account, @peoriamayor, which used a picture of Defendant Ardis, the mayor of Peoria, as the account’s avatar. Defendants further admit that they pursued available legal means to shut down the account and to identify and pursue legal action against its creator. Defendants deny that they embarked on a plan to violate Plaintiff’s constitutional rights. Defendants admit that, after obtaining appropriate warrants, Peoria Police Department officers searched Plaintiff’s residence and seized certain of his personal property, and imaged certain personal information as a result. Defendants deny that they arrested, detained and interrogated Plaintiff for the crime of false personation of a public official.

While there's no record that indicates the defendants "embarked on a plan" to violate Daniel's First Amendment rights, his rights were violated all the same. But the last sentence skirts the edges of plausibility. While it's true that the police never issued an arrest warrant for the charge of false personation, it did use that charge to obtain a search warrant of Jon Daniel's home. Daniel was picked up by the police and questioned about his involvement with the Twitter account, but he was never truly arrested. Instead, he was detained -- the sort of thing that can turn indefinite while simultaneously freeing the police from having to file any possibly damning paperwork. So, the first part ("arrest") didn't happen. But the last two ("detained," "interrogated") did.

The claim that the city used "legal means" to pursue the Twitter user is also dodgy. While all the appropriate paperwork was indeed legal, the charge under which they were acquired was bogus, as became completely apparent when the State's Attorney's office refused to prosecute.

While still in full denial mode, the city also takes issue with certain characterizations made by the plaintiff.

28. On March 20, 2014, Ardis and the City, in a letter to Twitter written by the Interim Corporation Counsel for the City, threatened to file a federal lawsuit seeking an injunction against Twitter to terminate the Twitter account. Twitter suspended the Twitter account that same day.

ANSWER:
Defendants admit the allegations contained in paragraph 28, except Defendants deny the characterization of the letter as “threatening.”

A letter that informs a party that efforts will escalate if cooperation isn't forthcoming is, by definition, a "threatening" letter. There's no way around it. The only way the city counsel's letter wouldn't have been threatening is if it hadn't been written at all. The defendants may not like the characterization (which, it should be noted, is a characterization the plaintiff never makes in the allegations), but that's an inarguable point. Friendly letters don't contain warnings about potential legal actions.

Further on, the city's lawyers attempt to deny the plaintiff felt the way he claims to have felt.

At the police station, Mr. Daniel was told he had to take everything out of his pockets before entering an interrogation room. Mr. Daniel emptied the contents of his pockets, which included his cellular telephone, and placed the items on a chair in the station. He was then taken into an interrogation room. Mr. Daniel reasonably believed he was not free to leave the interrogation room or the police station.

ANSWER:
Defendants admit the allegations contained in paragraph 37, except Defendants deny Plaintiff’s characterization of the interview room as an interrogation room, and further deny that Plaintiff reasonably believed he was not free to leave when he was at the police station.

I'm not sure how a defendant can claim a plaintiff is wrong about their beliefs. We're not talking about creation vs. evolution or round earth vs. flat earth but whether Daniel felt he could just get up and walk out of the interrogation/interview room. Most people -- many of them "reasonable" -- feel that being detained by police officers only ends when the officers say it ends. They may be able to force the issue by asking (repeatedly) "Am I free to go?" but it's a nearly universal feeling that one does not simply leave an interview room -- especially when a police officer or two are standing in it.

Not only is it a terrible claim to make in general, but it's an awful thing to say in a court document. This is the City of Peoria telling the judge that it knows how Daniel felt when he was detained and he didn't feel the way he says he felt in his allegations. That's a pretty audacious statement even if it is the sort of thing that routinely graces defendants' response filings.

And, finally, the city asks everyone to trust that it hasn't dug through the contents of the numerous electronic devices that were seized.

Defendants deny that Defendant Hughes searched Plaintiff’s electronic devices. Defendants admit that Defendant Feehan imaged Plaintiff’s cell phone, and that other electronic devices which may have belonged to Plaintiff may also have been imaged for subsequent review by detectives, but state affirmatively that the State’s Attorney’s Office indicated it would not be pursuing charges against Plaintiff before any such data was reviewed and that, as a result, it was determined that the data would not be reviewed.

First off, we're expected to believe no searching occurred (or will occur) despite the fact that the electronics were imaged by the Peoria police. At the very latest, the police secured warrants to search the electronics by April 17th. It wasn't until April 23rd that it was announced that the State Attorney was dropping the charges. That's nearly an entire week. (Daniel's phone -- seized during his "interview" with the Peoria PD -- wasn't returned until May 2nd, and only after he non-threateningly threatened legal action.) The investigation was still open during the intervening six days and the police had secured warrants, so it seems highly unlikely no one took at look at the data obtained. And unless someone specifies otherwise during the course of this lawsuit, the police still have the imaged content.

The denials are followed by a three-page list of affirmative defenses that states the rest of the defendants are either entitled to qualified immunity or not directly liable for these actions. The most ridiculous claim here is that shutting down a parody Twitter account (one that was marked as a parody before most of the legal action took place) wasn't a violation of Daniel's First Amendment rights.

With regard to Plaintiff’s First Amendment claim, Defendants have qualified immunity from liability for the damages claimed by Plaintiff because Defendants did not violate any clearly established constitutional rights of which a reasonable person would have known.

So, the city's lawyers feel Jon Daniel "reasonably" should have known he could just walk out of a police interview room at any time, but that shutting down a Twitter account and searching a house for electronics related to it wasn't the sort of thing that any "reasonable person" might find to be a violation of their First Amendment rights.

I realize a lot of this is just normal defensive legalese, but it doesn't make some of these assertions any less ridiculous, especially considering the events leading to this litigation -- namely, a mayor's offense at a clearly parodic Twitter account culminating in the seizure of every electronic device in Daniel's house. The fact that internal emails show that the police knew they had no solid legal footing to pursue this case is going to hurt the city's claims that everything about this debacle was lawful and reasonable.

Filed Under: free speech, jim ardis, parody, peoria, rights
Companies: twitter

Ferguson Law Enforcement: An 'Occupying Force' With 'Special Rights'

from the even-the-military-knows-you-have-to-win-hearts-and-minds dept

As we've covered in two previous stories here at Techdirt, Ferguson, Missouri is a mess. The events, which now include three days of cops vs. citizens, were set off by the shooting of an unarmed black man, Mike Brown.

The story behind the shooting is still clouded by contradictory accounts. Police say there was a "scuffle" and that Brown tried to grab the unnamed officer's gun. The police chief points to the officer's "facial swelling" as definitive proof of this narrative. The other story is that Brown was gunned down by a pissed off cop who didn't like the fact that Brown didn't immediately comply with his "get the fuck onto the sidewalk" request.

Here are two facts: Brown's body was 35 feet away from the vehicle where the scuffle supposedly took place. Brown's body was left unattended for hours before being removed by a police.

Here's one more, not that it should matter, but it does: Mike Brown had no criminal record.

Even if he was a criminal, his killing wouldn't be justified. But even the most die hard cop supporter has to wonder why a person with no criminal record would suddenly escalate a jaywalking beef to the point of trying to take an officer's gun. That doesn't add up. Nothing does, not when filtered through the source delivering its top down narrative.

Local law enforcement has gone into complete lockdown mode. It has detained journalists without explanation. It has fired tear gas at an Al Jazeera America camera crew. It has filled the streets with armored vehicles, police officers in combat fatigues and has done nothing to defuse the situation.

Beyond that, local law enforcement has done the following:

Enacted a no-fly zone over the town.

Told people they can't protest after dark.

Refused to release the name of the officer who shot Mike Brown.

Refused to release Mike Brown's autopsy results.

Instructed people to return to their homes to "avoid tear gas" and then fired tear gas into people's yards.

It's ugly all over and it's a prime example of the "what could go wrong" with the steady militarization of the police. Law enforcement has rolled in like an invading force, with gunners peeking out of the top of armored cars and citizens confronted by multiple gun barrels everywhere they look.

The police department demands patience and understanding as it investigates the shooting. But it deserves none of that. For one, it's handling of the situation has gone from bad to horrific and it shows little desire to scale back its aggression. Anil Dash at Medium points out that none of this needed to be handled this way.

It's plain as day that the cops have no strategy, no end goal in Ferguson. There's no leadership. They don't even understand the situation that they've found themselves in.

Basic crowd management for a group that will not, or can not, disperse is to de-escalate. The rent-a-cops at a hippie music festival know exactly what to do when the sound cuts out, but somehow the heavily militarized police force in Ferguson missed the lesson. It's a hot summer day? Well, then you hand out some water to folks. You even smile while you do it. No, the water shouldn't be coming out of firehoses while you hold back your German Shepherds.

For that matter, take off the helmets, and holster your weapons. This is basic shit for police! Never point a gun at anything you are not willing to destroy. Don't point an assault rifle at someone unless you intend to kill them. These are fundamentals of firearms safety that every 8-year-old who's ever gone on a hunting trip learned.

Instead of being cops, they're now an occupying force, setting new rules for public interaction, intimidating journalists and doing everything but ousting the population and taking over their dwellings.

This is the byproduct of militarization. No longer are they peace officers. They are now soldiers, fighting a war against their fellow citizens. Billions of dollars have been funneled into local law enforcement agencies by the DHS, giving them military tools, tactics and vehicles. And in Ferguson, we now see that every dollar of it was misspent. The local cops are geared up for a war, but they're missing one piece of technology that could likely have cleared up the mystery surrounding Mike Brown's shooting almost immediately.

#Ferguson Police Department: Riot Gear ✔️ Tear Gas ✔️ Camouflage ✔️ Assault Rifles ✔️ Armored Land Mine Vehicles ✔️ Dashboard cameras 🚫

— RB Blair (@TuxcedoCat) August 13, 2014

The police department doesn't have a single dashboard camera in operation. It owns both dash cams and body cams, but not a single one is in use.

What it does have in full working condition (along with its war toys) is a handful of rights that only law enforcement officers possess. These rights aren't found in the Constitution and the only way to access them is to be a cop. Citizens don't have this extra layer of protection. Ken White at Popehat:

If you are arrested for shooting someone, the police will use everything in their power — lies, false friendship, fear, coercion — to get you to make a statement immediately. That's because they know that the statement is likely to be useful to the prosecution: either it will incriminate you, or it will lock you into one version of events before you've had an opportunity to speak with an adviser or see the evidence against you. You won't have time to make up a story or conform it to the evidence or get your head straight.

But what if a police officer shoots someone? Oh, that's different. Then police unions and officials push for delays and opportunities to review evidence before any interview of the officer. Last December, after a video showed that a cop lied about his shooting of a suspect, the Dallas Police issued a new policy requiring a 72-hour delay after a shooting before an officer can be interviewed, and an opportunity for the officer to review the videos or witness statements about the incident. Has Dallas changed its policy to offer such courtesies to citizens arrested for crimes? Don't be ridiculous. If you or I shoot someone, the police will not delay our interrogation until it is personally convenient...

The police department has not released the name of the shooter. Because he's one of the insiders. As has been pointed out by several people, we know the names of everyone charged with looting-related felonies in Ferguson. But we still don't know who shot Mike Brown. The police chief wants to protect the officer and his family, but law enforcement agencies will not return that favor should a citizen kill someone. And they will unleash entire police departments to destroy you if you shoot a cop. If you're still alive enough to give a statement, your name will be prominently displayed everywhere. Your family will be harassed by cops and citizens. Death threats will make their way through phone lines and into the mailbox. But only cops are immunized against this by policies backed by police unions and government officials.

If anyone is still wondering what happens when you increase police power (with protective policies and secondhand war machines) while decreasing accountability, Ferguson is your answer. And it's only the most visible indicator. Around the nation, it's more of the same -- but seething under the surface.

Filed Under: due process, ferguson, michael brown, militarization, missouri, occupying force, police, rights

DC Court Confirms That Government Agents Can Abuse US Citizens' Rights With Impunity If They Leave The Country

from the the-problem-is-that...-no-one's-ever-told-them-'no' dept

Your rights as an American citizen are null and void if you happen to be outside the nation's borders when those rights are violated. That's the gist of a ruling handed down by the DC district court last Friday.

A federal court on Friday dismissed an American Civil Liberties Union lawsuit on behalf of a U.S. citizen who was illegally detained and mistreated by American officials in three east African countries in 2007. After fleeing unrest in Somalia, New Jersey resident Amir Meshal was arrested, secretly imprisoned in inhumane conditions, and harshly interrogated by FBI agents over 30 times before ultimately being released without charge four months later.

The ACLU had argued that Meshal's Fourth and Fifth Amendment rights were violated by these FBI agents, but the court has found that there's no legal recourse available for Meshal. It even admitted that the allegations, along with the legal questions the decision itself raises, are "deeply troubling." Unfortunately, the district court finds itself unable to do anything more than dismiss the case.

The defendants have moved to dismiss his case, alleging that even if Mr. Meshal’s allegations are true, he has no right to hold federal officials personally liable for their roles in his detention by foreign governments on foreign soil.

Except that it wasn't just foreign governments. It also involved US FBI agents who operated extraterritorially, operating in an area where they had no true legal authority to pursue or detain suspects. Any imprisonment was courtesy of local governments in three East African nations. The alleged torture, however, was All-American.

Despite it being held that Americans are not stripped of their rights when they leave the country, the court finds that earlier precedent finds in favor of the government thanks to the always-useful evocation of "national security" and "terrorism." (The FBI agents believed Meshal was connected with al-Qaeda.)

[I]n the past two years, three federal courts of appeals, including the United States Court of Appeals for the District of Columbia Circuit, have expressly rejected a Bivens remedy for citizens who allege they have been mistreated, and even tortured, by the United States of America in the name of intelligence gathering, national security, or military affairs.

The decision notes that courts have been reluctant to insert themselves in matters of national security, either in terms of military detainment or actions resulting from executive orders. This court is no different, although Judge Emmet Sullivan at least has the modicum of decency to note how truly screwed up this whole situation is.

The facts alleged in this case and the legal questions presented are deeply troubling. Although Congress has legislated with respect to detainee rights, it has provided no civil remedies for U.S. citizens subject to the appalling mistreatment Mr. Meshal has alleged against officials of his own government. To deny him a judicial remedy under Bivens raises serious concerns about the separation of powers, the role of the judiciary, and whether our courts have the power to protect our own citizens from constitutional violations by our government when those violations occur abroad.

This is another win for the unsavory side of our government, which uses fear of terrorism as an excuse for all sorts of malfeasance and overreach. Rather than buck precedent, Judge Sullivan cites and follows, creating even more precedent that will make attempts to reverse this trend less and less likely.

As it stands now, the government need only claim it suspects you of terrorism to treat you however it wants once you leave the relative safety of the United States. No one is allowed to question actions performed under the color of national security. The State knows best and if you try to challenge its actions, you'll find that route has been blocked by bad precedent set in deference to executive branch FUD.

The ACLU completely understates its opinion of this ruling.

"It is a sad day for Mr. Meshal and for all Americans, who have a right to expect better of their government and their courts than immunity for terrible government misconduct."

Oh, we certainly have the right to expect better. We just don't have any way of demanding it. That decision currently lies in the hands of legislators, a group that has also shown an appalling tendency to defer to national security fearmongering. Judge Sullivan knows this is terribly wrong but can't find a way to get out from under bad precedent. Here's hoping judges in the future can do better.

Filed Under: constitution, rights, us citizens

Police Chief: Not Wanting To Talk To Police Officers Is 'Odd'

from the and-following-a-woman-down-the-street-on-your-bike-ISN'T? dept

This insight into how police think the public should interact with them is certainly enlightening. (via this tweet and Amy Alkon's Advice Goddess blog)

The backstory is this: a woman was walking down the street when a motorcycle cop approached her, asked her if she lived in the area and if she would talk to him. She says his approach made her feel uncomfortable, so she refused and continued on her way.

"I thought that maybe he was flirting," she said. "I just thought it was odd, I thought it was odd. I wasn't really sure but I felt uncomfortable because there wasn't anyone around."

She says she was worried he might not even a real cop, so she refused to stop and began jogging away from him.

"He just crept along beside me on his motorcycle and he started saying, 'Hey ma'am! I want to talk to you. Hey stop, ma'am! I want to talk to you.' Then my anxiety rose even higher," she said.

This was followed shortly thereafter by the cop dismounting, chasing her down, tackling her and placing her under arrest. The police chief claims this arrest was for "walking on the wrong side of the road," (as well as "evading arrest" and "resisting arrest") despite the fact that the woman wasn't ultimately charged with anything.

Even if the preceding events could possibly be dismissed as hearsay, or something tainted by false impressions and emotions, there's the police chief's responses to questions about this interaction.

Whitehouse Police Chief Craig Shelton says this:

Shelton says by law you're not required to stop and talk to an officer if there's not a lawful reason for them to be stopping you.

But then he says this:

"Normally if a police officer pulls up, in my opinion, it's awful odd for somebody just to take off and not want to speak to the police officer," Shelton said.

Yes, this may seem "odd" to a police officer, but it's not all that odd for citizens, even those committing no real crime (Shelton justifies the stop with the "walking on the wrong side of the street" crap) to have no desire to talk to police officers. A huge imbalance of power makes conversation uncomfortable. Anyone who's attempted small talk with their boss understands this. If someone doesn't want to talk to a cop, it's not odd, it's normal.

Only a cop -- someone who doesn't understand the strain caused by the imbalance of power -- would consider this response "odd." And when law enforcement officials use the word "odd," they actually mean "suspicious." (Hence this woman being chased, tackled and arrested -- all for "walking on the wrong side of the street.") Holding a conversation with a cop without somehow appearing nervous, fidgety or otherwise strained (all natural body responses that will be read by most cops as signs of guilt) isn't something many people can do. Knowing that these common reactions will only serve to "alert" cops to theoretical criminal behavior further exacerbates the situation.

Beyond that, there's the other assertions Shelton makes in defense of his officer's actions. First, he claims the cop's motorcycle and uniform clearly indicated he was a cop and not some bad guy seeking to do harm.

"The motorcycle has a patch on both sides of the gas tank. It's black and white and says 'Whitehouse Police,' and has red and blue lights on it," Whitehouse Police Chief Craig Shelton said. "So you have to take it for what it is. Do you think he's a Whitehouse police officer? Why would you think he's someone impersonating a police officer?"

Why would you assume he isn't? Shelton is completely divorced from reality. For one, most people can't determine the difference between a cop and an impostor, especially if they're making active efforts to disengage from the interaction.

For another, plenty of cops -- real cops -- have been charged with rape and sexual assault. So, being a legitimate cop doesn't really eliminate the danger for a woman walking on her own with no one else around. Sure, this cop may not be a rapist, but I would imagine those who have been raped by a cop probably thought the officer who violated them wasn't a rapist right up to the point they were being raped.

The fact is that the woman probably would have extricated herself from the situation no matter what. A strange man -- in uniform or out -- persistently trying to get a woman to talk to him in an area with few other pedestrians is almost always going to be treated as a possible threat. It's the persistence that sets off the alarms. If you're rebuffed and go away, the threat subsides. But if you persist, whether you're just some stranger or a guy in full uniform on a police motorcycle, it will continue to push the needle toward "threat."

But that's the problem. Despite all of this, Chief Shelton just thinks it's "odd" the woman wouldn't stop. Shelton makes things even worse by making this contradictory claim.

Bonnette hasn't been charged with anything, but the entire incident was caught on dashcam video and Shelton says it will be investigated further. He also says Johnson acted appropriately and won't be reprimanded.

There go the odds of ever seeing the video. Shelton has already cleared the officer ahead of his promise to investigate further. How does that even add up in his head? He's already made his decision. Unless, of course, he means he's going to investigate to see if any further charges can be brought against the "odd" woman who refused to talk to his officer until he had her pinned on the ground and handcuffed. But that would just be vindictive and surely the Whitehouse PD is above that. If that's not what Shelton meant, then the investigation he's performing will be open-and-shut, caged in by air quotes and quite possibly doing away altogether with the bothersome "open" half of open-and-shut.

Filed Under: civil rights, law enforcement, police, rights, talking

Drug Task Force Officer Denied Qualified Immunity For Violating Citizen's Rights With Illicitly-Obtained No-Knock Warrant

from the law-enforcement's-'get-out-of-jail-free'-card-just-took-a-hit dept

The law enforcement community and their love of no-knock warrants is starting to cost them. Multiple lawsuits have been filed over the past several years because of these tactics and just last month, a cop was shot dead by a homeowner defending himself against armed attackers who bashed in his door unannounced at 5:30 in the morning. The sick twist to that last incident is that the homeowner is now charged with capital murder, an offense that is punishable by death in Texas.

Now, another suit stemming from a no-knock warrant has gone badly for the law enforcement officer behind the raid. Michael Riley, an investigator for the Rensselaer County (NY) Drug and Gang Task Force is now facing the possibility of a jury trial, all without the safety net of qualified immunity. According to the 2nd Circuit Court's opinion, this is how the no-knock raid went down.

On July 3, 2008, at approximately 6:00 a.m., McColley was awoken in her home by the sound of the City of Troy Police Department Emergency Response Team ('ERT') knocking down her door and the explosion of a flash-bang grenade. Dressed in all black, wearing face masks, and carrying automatic weapons, the members of the ERT screamed for McColley to get on the floor, but as there was not enough space for her to lie on the floor, a member of the ERT instead shoved McColley face down onto her bed. As she had been roused from sleep, McColley was clad in only a T-shirt and underwear. She repeatedly requested to cover herself but was repeatedly denied.

This raid in search of crack cocaine was based on a "confidential informant's" statement that he had visited that particular address "twenty or thirty times" during the previous six months to make drug deals. The task force placed the house under surveillance to verify the informant's claims but noted no drug-related activity. Riley then ran a background check on the house's listed occupant, Ronita McColley, which came up clean. The report indicated she had no criminal background and, additionally noted that a child resided in the house with her.

Riley then acquired a no-knock warrant based solely on the informant's unverified claims, omitting everything the task force had observed (that being "nothing") ass well as the results of the background check. Judge Pooler dissembles exactly how Riley lied by omission to obtain this warrant.

For each of the search locations with the exception of McColley’s home, Riley identified the resident individual and described his or her ties to drug dealing and criminality. Riley never mentioned McColley’s identity, lack of criminal history, or even the fact that there was a resident who lived at 396 First Street—as opposed to the apartment being a location exclusively used by Stink in his drug dealing enterprise. In the warrant application, Riley also made no mention of the fact that surveillance had been conducted and yielded no evidence or even suspicion of narcotics or other criminal activity…

While it is indeed the case that where a warrant “does not report a prior conviction for a particular crime, the magistrate assumes for purposes of determining whether the government has carried its burden that no such conviction exists,” Walczyk, 496 F.3d at 161, the pertinent omission here was not merely McColley’s lack of criminal history. Rather, McColley herself was omitted entirely from the application. The issuing judge did not have the benefit of assuming that “no such conviction exist[ed]” because he was not informed that anyone other than Stink, who was the identified target of the drug investigation, resided in or maintained the first floor apartment at 396 First Street.

Riley, on the other hand, fully knew that McColley, an individual with no criminal history and no purported ties to the targets of the drug investigation, lived there with her child. Especially in the face of Riley’s inclusion of the identity of the residents for each of the other apartments and their present connection to the drug trade, the omission of McColley’s existence is all the more glaring. As drafted by Riley, with no mention of McColley, the warrant application makes it appear to the issuing magistrate that Stink was the only individual with custody and control of 396 First Street. If the residents of 396 First Street were properly identified, a reasonable issuing judge would have questioned the assertion that Stink had “custody and control” over the apartment.

Not only did Riley omit McColley's very existence, but he covered up other areas where evidence lacked. Pooler attacks Riley's double-standard on submitting supporting facts in his warrant applications.

While the police may not have been required to corroborate the CI’s assertions, once they undertook this surveillance and observed no such criminal activity, this lack of corroboration should have been included in the warrant application. The materiality of this information is underscored by the common sense observation that if the surveillance had yielded evidence of criminality, that information certainly would have been included in the warrant application and deemed to have been damning. The mere fact that the outcome of the surveillance was not the one the police would have preferred does not render the information immaterial.

These omissions are what cost Riley his immunity in the first place. The lower court determined these factual omissions raised sufficient Fourth Amendment questions that the county and its employee could not be granted immunity, which the defendants sought through a motion for summary judgement. This was denied and the immunity yanked, prompting the appeal to 2nd Circuit Court. This appeal has now been denied. Despite Pooler's enumeration of Riley's wrongdoing, the appeal is mainly denied on technical grounds (i.e., lack of jurisdiction).

The case is now being sent back to the lower court for a jury trial. McColley still has a chance to hold the county and Riley accountable for violating her Fourth Amendment rights.

And what did Riley's task force secure with its illicitly-obtained no-knock warrant?

The search of McColley’s home did not uncover any money, weapons, drugs, drug related paraphernalia, or any evidence of criminality of any kind. The ERT took only a National Grid electric and gas bill and a registration bill for Hudson Valley Community College as fruits of the search.

Three bills from an residence noted on the warrant application as a "stash house" and all based on the claims of a known criminal who would tell the police anything to stay out of jail and a cop who simply left out any info that would have made a no-knock warrant harder to obtain. CI's suddenly don't look all that "informative" when you depict them like any cop or DA would if they were on the stand rather than running "controlled buys" for their handlers. And the cop himself isn't looking any more trustworthy than his sources.

Filed Under: immunity, michael riley, no knock warrant, police, rights

Copyright Week: Fair Use Is Not An 'Exception' But The Rule

from the it's-your-rights dept

Update: This post was modified to better explain the role of the three-steps test in both Berne and the TPP.

Today is day five of Copyright Week, where the focus is on fair use. Earlier today we already had Michael Petricone's excellent post about the innovations and consumer benefits unleashed by the Betamax ruling, which hinged on the concept of fair use. Over at Wired, Automattic's (the makers of WordPress) general counsel, Paul Sieminski, also has a great post talking about how much innovation is enabled by fair use and why companies should be fighting more to support their users' fair use rights. Meanwhile, over at Public Knowledge, there's a good discussion of how the flexibility of fair use is important in enabling it to respond to new innovations. These are all great ways of looking at the issue.

I wanted to focus on a different aspect of fair use, however, and that's the unfortunate fact that it is often described (especially in official political discussions) as an "exception or limitation" to copyright. That implies, incorrectly, that copyright is "the normal state" and that fair use is something that can only be used in "exceptional" cases, where a political body has decided to carve out some small breathing space. But that's wrong. Fair use is about the rights of the public to speak, to make use of content, to comment, to criticize and to express themselves.

These are fundamental rights of the public -- not "exceptions or limitations."

It is, instead, copyright that has always been an "exception and limitation" on the rights to free expression. We can (and should) discuss and debate the proper levels of copyright and its limitations on expression. But to frame things as if fair use is a minor "exception" is a subtle but dangerous twist of language that copyright maximalists have been employing for far too long.

And it's a public right that is under threat. While negotiators were (after decades of negotiating) able to work out a WIPO Treaty for the Blind last year, copyright maximalists fought hard against it, because they were convinced that any attempt to expand what they called "limitations and exceptions" would set a dangerous precedent. And, if you look at things like the Trans Pacific Partnership (TPP agreement), the USTR tried to take credit for it being the first time that it was willing to include "limitations and exceptions" in a trade agreement. That, on its face, is true (and it's better than previous agreements, like ACTA, which ignored fair use and the public's rights entirely), but the wording does not in fact establish any limitations or exceptions: it sets out parameters that curb what limitations and exceptions countries are allowed to offer. The wording is based on a three-factor standard that is actually more restrictive than current fair use laws in the US. The standard is clearly modelled after the Berne convention, to which the US is already a signatory despite several differences, such as fair use, between US copyright law and that treaty's requirements. The TPP's "exceptions" would only serve to solidify these inflexible fair use requirements that the US currently, mercifully, defies.

Pay close attention to this issue as we go through the copyright reform process. Fair use isn't just some limitation or exception. It's not just -- as some have said -- a "valve" on copyright restricting speech. It is, instead, core to the very concept of free speech. It is the public's rights. Don't let the language twisters try to frame the debate as one about "limitations and exceptions" because if that's the debate, we've already lost. Fair use doesn't just enable all kinds of important innovations -- including much of the internet you use and love today. It represents a fundamental right of you to express yourself, and that right must not be taken away.

Filed Under: copyright, copyright week, exceptions, expression, fair use, free speech, innovation, limitations, public rights, rights

Should Robots Get Rights?

from the be-kind-to-skynet dept

I've written before about robots when someone imagines them rising to the level of cognition. Usually these stories are filled with luddite fear of the coming robot apocalypse. This time, however, let's take a quick trip down a robotic philosophical rabbit hole.

Computerworld has a story questioning whether or not the robots that will be increasingly life-like and ubiquitous in our lives will attain the kind of rights we afford animals.

Imagine that Apple will develop a walking, smiling and talking version of your iPhone. It has arms and legs. Its eye cameras recognize you. It will drive your car (and engage in Bullitt-like races with Google’s driverless car), do your grocery shopping, fix dinner and discuss the day’s news.

But will Apple or a proxy group acting on behalf of the robot industry go further? Much further. Will it argue that these cognitive or social robots deserve rights of their own not unlike the protections extended to pets?

If you're like me, your gut reaction may have been something along the lines of: of course not, idiot. But the article actually raised some interesting questions, based on a paper by MIT researcher Kate Darling.

The Kantian philosophical argument for preventing cruelty to animals is that our actions towards non-humans reflect our morality — if we treat animals in inhumane ways, we become inhumane persons. This logically extends to the treatment of robotic companions. Granting them protection may encourage us and our children to behave in a way that we generally regard as morally correct, or at least in a way that makes our cohabitation more agreeable or efficient.

Now, this, to me, makes a bit of sense save for one detail. Yes, our values are reflected in the way we treat some animals, but there seems to be a vast difference between organic life and cognitive devices. Robots, afterall, are not life, or at least not organic life. They are simulations of life. This is, of course, where the rabbit hole begins to deepen as we have to confront some tough philosophical questions. How do you define life? If at some level we're all just different forms of energy, is the capacity to think and reason enough to warrant protection from harm? Can a robot be a friend, in the traditional sense of the word?

But, putting aside those questions for a moment and assuming robots do attain some form of rights and protection in the future, this little tidbit from the article made me raise my eyebrows.

Apple will patent every little nuance the robot is capable of. We know this from its patent lawsuits. If the robot has eyebrows, Apple may file a patent claiming rights to “a robotic device that can raise an eyebrow as a method for expressing skepticism.”

Here's where we may find commonality with our metallic brethren. With the expanded allowance for patenting genes, it becomes all the more likely that the same codes that manufacture our humanity could indeed be patented in the way that a robots manufactured "humanity" would be. If robotics progresses to produce something along the lines of EDI, the very things that make her "human" enough to be worthy of rights will be locked up in an increasingly complicated patent system. And, with our courts falling on the side of gene patents for humans, we've virtually ensured that all of that robotic humanity will indeed be patentable.

On the other hand, what happens if future courts rule that human genes cannot be patented? And then what happens if we do indeed define some kind of rights structure for our robotic "friends"? Do those rights open up the possibility that robotic "genes" should not then be patented?

Filed Under: rights, robots

US 'Blackmails' EU Into Agreeing To Hand Over Passenger Data

from the you-have-no-more-fundamental-rights dept

A couple months ago, we wrote about a debate in the EU Parliament, concerning an agreement over how much data should be shared with the US on passengers flying from the EU into the US. The person in charge of analyzing the agreement, Sophie in't Veld, urged the Parliament to reject the agreement, saying that it violated EU citizens' fundamental rights. Specifically, the US wanted access to more data with fewer restrictions than the EU felt was fair. However, it appears that after the US pulled out its big gun over this -- threatening to stop allowing EU citizens to visit the US without first obtaining a visa -- the Parliament caved and agreed to the deal. The one big concession from the US, however, was that EU passengers will be able to see their records and correct errors. Sophie in't Veld is still not happy -- and for good reason:

"This Agreement is contrary to European Treaties and privacy laws and does not meet the minimum criteria set by Parliament itself. Diplomatic relations with the United States appear to be more important than the fundamental rights of our own EU citizens."

In a statement sent to Techdirt, she also noted that, in caving, the EU Parliament "loses its credibility and EU citizens draw the short straw." Part of the problem is just how unequal the setup is, with the US getting tons of power over EU citizens. And, of course, the fact that the EU caved to the US sets a bad precedent. "The Trans-Atlantic relations need to become more balanced. EU should take a less timid stance towards the US." In the end, she notes that what happened was "almost to the extent of blackmail."

Filed Under: data sharing, european union, rights, visa

FIFA Orders Brazil To Overturn Ban On Selling Beer At World Cup Matches

from the I-am-the-law dept

One of the recurrent themes on Techdirt is the sense of entitlement the owners of various kinds of monopolies display, and their common belief that being able to maximize the profit from those monopolies trumps any other consideration.

For example, FIFA, the world governing body for soccer/football, uses its monopoly on organizing the World Cup to demand some rather extraordinary privileges. Here are just some of the things the UK government was prepared to accept as part of its bid to host the 2018 World Cup:

The U.K. said it would meet FIFA’s requirements to create a 2-kilometer perimeter around stadiums, and said the right to conduct commercial activities there was subject to the approval of FIFA or its appointees. The government also agreed to suspend some labor laws that affected FIFA’s activities and to lift restrictions on the import and export of foreign currency.

FIFA is currently trying to assert similar rights in Brazil, where the 2014 World Cup will be held:

Fifa General Secretary Jerome Valcke said the right to sell beer must be enshrined in a World Cup law the Brazilian Congress is considering.

Alcoholic drinks are currently banned at Brazilian stadiums and the country's health minister has urged Congress to maintain the ban in the new law.

FIFA evidently believes that keeping its sponsors happy (Budweiser is a "big Fifa sponsor" according to the article quoted above) is much more important than local laws or people's health. Valke explains:

"Alcoholic drinks are part of the Fifa World Cup, so we're going to have them. Excuse me if I sound a bit arrogant but that's something we won't negotiate," he said.

"A bit arrogant"? Surely not...

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Filed Under: beer, brazil, fifa, rights, world cup
Companies: fifa