Students Make A Video Depicting A School Shooting; Sheriff Decides Everyone Needs To Have Their Rights Violated

from the if-he's-lucky,-he'll-only-face-one-lawsuit dept

Heightened sensitivities and a law enforcement track record of overreaction has prompted a New York Sheriff's Office into actions that will probably result in at least one civil rights lawsuit. When students of a New York school decided to create a couple of videos and post them to Instagram, the Sheriff felt compelled to violate the students' Fourth Amendment rights after disregarding their First Amendment rights.

Three students face felony charges of making a terroristic threat for posting online two brief videos where they act out a school shooting in someone’s house.

[...]

The Albany County Sheriff’s Office said the videos were made by Ravena-Coeymans-Selkirk students aged 10, 14 and 15 and posted to Instagram. They show a student with a fake gun barging into a living room and “shooting” two other students. In one video, students, who are all white, use a racial epithet.

Sheriff Craig Apple called the videos “very graphic, very racist and horrifying.”

Lots of movies, books, TV shows, and videogames contain "graphic and horrifying" content. Some even include "racist" dialogue, just as this video did. At no point did any of the participants mention a school, mention an intent to perform these acts at a school, or even tag other students/schools in the posting. It was simply a dramatization of events that happen far too often in this country.

The videos were noticed by a student of the school the three arrested students attended. No one's faulting the school for handing over the videos to law enforcement, but the sheriff's office should have recognized the students were engaging in protected speech, not issuing terroristic threats. A simple conversation about why the videos might be disturbing to others should have been the end of it. Instead, there are now three arrests and a bunch of civil rights lawyers pointing out exactly why these arrests should not have occurred.

Manhattan civil rights lawyer and television commentator Ron Kube said the videos don’t rise to the level of terroristic threat because there was no specific target or agenda. “This appears to be a wild overreaction driven by the legitimate concerns about school shootings,” Kube said Monday.

Civil rights lawyer Normal Siegel, former executive director of the New York Civil Liberties Union, also said there was no terroristic threat and that the videos appeared to be an attempt at acting.

“The arrests raise serious and substantial First Amendment concerns,” said Siegel. “Making a video is protected by the First Amendment.”

Content disturbing to others is present in a lot of content. Just because this dramatization happened to be produced by students and distributed by Instagram doesn't somehow entitle it to less First Amendment protection than a motion picture released by a major studio. Just because the participants happened to be school students doesn't mean their speech is less protected than someone with a multi-million dollar budget.

Sheriff Craig Apple's speech -- as moronic as it is -- is also protected by the same First Amendment he won't extend to these students.

“There’s been enough shootings going on around the country. This is despicable artistic expression, if that’s what it was.”

Sheriff Apple is free to hate the expressive speech. But he's not free to arrest people for speech he doesn't like. And all the "but what if a shooting actually happened?" excuses don't make this any less of a compound civil rights violation.

Filed Under: 1st amendment, 4th amendment, albany, craig apple, overreaction, police, school shootings, videos

Kansas Supreme Court Says Cops Can Search A House Without A Warrant As Long As They Claim They Smelled Marijuana

from the I-love-the-smell-of-exigency-in-the-morning dept

The Kansas Supreme Court has just given cops a pass to treat residents' homes like cars on public roads. Being in a car greatly diminishes your Fourth Amendment protections and many a warrantless search has been salvaged by an officer (or a dog) testifying they "smelled marijuana" before tearing the car apart.

Unlike a car on a public road, a person's home has traditionally been given the utmost in Fourth Amendment protections. The bar to search a home is higher than the bar to search a vehicle. Cops aren't supposed to be walking up to windows to peek inside. Nor at they supposed to hang out by the door, hoping to catch a whiff of something illegal.

But that's exactly what they'll be able to do now. If they can find a reason to approach someone's home, all they need to do is declare they smelled marijuana to get past the front door without a warrant. This completely subjective form of "evidence" can be used as probable cause to effect a warrantless search.

The stupefying opinion [PDF] opens with an equally-stupefying bit of exposition:

While on routine surveillance at a local convenience store, Lawrence Police Officer Kimberly Nicholson checked a vehicle's license plate. That records check indicated the car had been stopped several weeks earlier with Irone Revely driving. It was noted there was an active arrest warrant for Revely's brother, Chayln Revely. Nicholson confirmed Irone was the driver, and she believed the passenger matched Chayln's description.

Nicholson followed the vehicle, looking for a traffic violation that would permit a vehicle stop and might allow the officer to confirm the passenger's identity. No violation occurred, so Nicholson followed the vehicle to an apartment complex. The passenger got out and ran into an apartment. Irone trailed behind. Nicholson approached and asked Irone if the person who ran into the apartment was his brother. Irone did not answer and continued walking toward the apartment with Nicholson following.

I'm still trying to wrap my mind around the phrase "routine surveillance at a local convenience store" that's just casually dropped into the opening of the opinion as if that collection of words made any sort of sense. Is this how we're spending our law enforcement dollars? Hanging out by local businesses and running plates? It seems, at best, incredibly inefficient.

That being said, the 7-11 stakeout (or whatever) led Officer Nicholson to the door of Lawrence Hubbard's apartment. That's when the law enforcement magic happened:

Nicholson later testified she was about 2 feet from the front door when Hubbard exited. She further testified she "smelled a strong odor of raw marijuana emanating from the apartment." The officer questioned Irone and Hubbard about the smell. Hubbard denied smelling anything and said his lawyer told him humans cannot detect a marijuana odor.

(That last sentence is equally stupefying. Marijuana does have an odor. That being said, that odor is not always present when an officer claims it is. See also: every search predicated on the smell of marijuana that fails to turn up any marijuana.)

More officers had arrived by that time and decided they might need a warrant. The officers told everyone present to leave until the apartment could be searched. Three officers, including Nicholson, performed a "security sweep" to make sure everyone had left. During this sweep, officers saw drug paraphernalia, a gun, and a locked safe. The warrant arrived and the safe was pried open, resulting in the discovery of 25 grams of marijuana.

Now, let's look at Officer Nicholson's claim:

Nicholson said she "smelled a strong odor of raw marijuana emanating from the apartment."

Here's what was found:

[O]fficers pried open the safe and found 25.07 grams of raw marijuana inside a Tupperware container…

So, from two feet outside the doorway, Officer Nicholson smelled raw marijuana located in Tupperware container inside a locked safe inside a bedroom inside the "back bedroom" closet. That's the story she stuck with, which seems facially unbelievable given the facts of the case.

Whatever, says the Kansas Supreme Court. Officer Nicholson was declared credible, given her past nasal expertise. The same with the other officer, who also smelled raw marijuana through the Matryoshka-esque layers shielding the contraband from random apartment visitors.

Among its factual findings, the court concluded: (1) Nicholson had "detected the smell of raw marijuana 200 to 500 times and burnt marijuana 100 to 300 times" in her law enforcement training and professional experience; (2) when Hubbard came out of his apartment, closing the door behind him, both Nicholson and Ivener could smell what they identified as the odor of raw marijuana coming from the apartment; (3) Ivener testified the smell was "potent" and "overwhelming…"

LOL at "overwhelming." One burnt cig and 25 grams in a locked safe inside a sealed Tupperware container. Officer Ivener is more bloodhound than human and is obviously credible as fuck. This third attempt to suppress the evidence fails because the state Supreme Court says assertions that cannot be proven are all that's needed to waive probable cause search requirements. If an officer claims to smell marijuana, the exigent circumstances exception to the warrant requirement kicks in. After all, preventing someone from flushing weed down the toilet is more important than ensuring the rights of the policed.

[W]e agree with the panel that the probable cause plus exigent circumstances exception permitted the warrantless sweep. Therefore, to the extent the paraphernalia evidence and the search warrant were fruits of a warrantless search, the sweep was not illegal and the challenged evidence is not subject to exclusion.

The sound you hear accompanying this sentence is the Constitution being run through the shredder like Banksy artwork:

We hold that the totality of the circumstances surrounding a law enforcement officer's detection of the smell of raw marijuana emanating from a residence can supply probable cause to believe the residence contains contraband or evidence of a crime.

There's all officers need to obtain a warrant. And since you can't have anyone destroying the evidence you claim you smell while you're waiting for a warrant, you get a free warrantless peek.

The panel focused on the second, fourth, and fifth Dugan factors. Under the second, the court highlighted Ivener's testimony that he did not know how many people had been in the apartment originally and whether they all left, so the officers could not know whether everyone was out. This weighs in the State's favor. Under the fourth factor, the panel noted there was evidence the occupants were aware of the officers' presence, so this also weighs in the State's favor because it demonstrates anyone staying behind would be alerted to the likelihood of an impending search.

The dissent says the lower court did not do enough to vet the officers' claims about their ability to identify the odor of raw marijuana a few dozen feet away from where it resided inside a sealed container inside a locked safe. It points out that if officers want to be considered experts on the odor of marijuana, they should be treated as expert witnesses when testifying. Instead, the lower court accepted their claims of expertise (the hundreds of past marijuana odor sniffs) but then decided they should only be held to the same standard as a lay person giving non-expert testimony. From the dissent:

The officers in this case were not testifying as mere lay persons. On the contrary, they specifically stated that the origin of their ability to smell and identify the source of their olfactory perception as raw marijuana stemmed from their brief exposure to the identified odor during their study at one or more police academies, followed by their experience with numerous cases in which they had successfully detected the substance. This uncontroverted dependency between the officers' training and experience on the one hand and the opinions they expressed on the other hand qualified their testimony about detecting the strong, potent, or overwhelming odor of raw marijuana as expert opinion testimony.

[...]

As urged by the defense, the science, if any, behind the officers' apparently sincere belief in their professed ability to detect an odor of raw marijuana should have been subjected to vetting under the rule of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), which is now codified in subsection (b). The officers' expert opinion testimony should have been admitted on the critical issue of the existence of probable cause at the time of the sweep of the apartment only if "(1) [t]he testimony [was] based on sufficient facts or data; (2) the testimony [was] the product of reliable principles and methods; and (3) the witness[es] ha[d] reliably applied the principles and methods to the facts of the case." K.S.A. 2017 Supp. 60-456(b). The district judge erred by failing to exercise her gatekeeping function under subsection (b).

This would have given the defendant a chance to raise a Daubert challenge during trial, which could have resulted in the lower court finding in his favor on the unconstitutional search argument. Rather than officers simply saying "Oh, I've smelled weed a lot and also this time," they'd actually have to provide some evidence of their claims. Is there anything "scientifically valid" about claiming to have experienced the "overwhelming" odor of raw marijuana safely ensconced in a goddamn safe? Probably not. But we'll never know because Kansas courts won't apply that standard. And the state's courts will never have to apply the standard because the top court has stated it's now OK for cops to rescue a warrantless search simply by saying they smelled something illegal.

Filed Under: 4th amendment, kansas, kansas supreme court, marijuana, police, smells

Federal Court Says Massachusetts' Wiretap Law Can't Be Used To Arrest People For Recording Public Officials

from the because-duh-this-was-decided-seven-years-ago dept

Seven years ago, the First Circuit Court of Appeals released its Glik decision. This decision found that recording public officials was protected by the First Amendment, overriding Massachusetts state law. The state wiretap law says recordings must have consent of everyone captured on the recording. The Appeals Court said recording police officers while they performed their duties in public was clearly covered by the First Amendment. The opinion also dealt with some ancillary Fourth Amendment issues, but seemingly made it clear these recordings were protected activity.

The law remained on the books unaltered. Thanks to legislative inaction, the law is still capable of being abused. Since the Appeals Court didn't declare the law unconstitutional, or even this application of it, it has taken another federal court decision nearly a decade later to straighten this out. (h/t Courthouse News Service)

The ruling [PDF] deals with two First Amendment cases. One deals with activists recording cops. The other deals with another set of activists -- James O'Keefe's Project Veritas -- and its secret recording of Democratic politicians. The specifics might be a bit different, but the outcome is the same: recording public officials is protected by the First Amendment. The state law is unconstitutional.

Consistent with the language of Glik, the Court holds that Section 99 may not constitutionally prohibit the secret audio recording of government officials, including law enforcement officials, performing their duties in public spaces, subject to reasonable time, manner, and place restrictions.

That just reiterates Glik's findings. The Massachusetts federal court goes further, though:

The Court declares Section 99 unconstitutional insofar as it prohibits audio recording of government officials, including law enforcement officers, performing their duties in public spaces, subject to reasonable time, place, and manner restrictions. The Court will issue a corresponding injunction against the defendants in these actions.

The court also points out the state government's response to the Glik ruling was wrong. The ruling did not limit itself to "openly" recording public officials. It said the First Amendment protected the recording of public officials performing public duties whether or not government officials knew they were being recorded.

In October 2011, the bulletin was accompanied by a memo from the Commissioner citing the Glik decision. The memo instructs officers that “public and open recording of police officers by a civilian is not a violation” of Section 99. The cover memo for the May 2015 recirculation “remind[s] all officers that civilians have a First Amendment right to publicly and openly record officers while in the course of their duties.”

[...]

But Glik did not clearly restrict itself to open recording. Rather, it held that the First Amendment provides a “right to film government officials or matters of public interest in public space.”

The court says siding with the government's interpretation would just result in more bogus arrests under the state's wiretap law.

But the training materials go beyond telling officers when it is impermissible to arrest; taking a narrow construction of Glik, they also communicate that it is permissible to arrest for secretly audiorecording the police under all circumstances. In other words, it gives the green light to arrests that, as the Court holds below, are barred by Glik.

This ruling should put an end to that. You'd think the last ruling would have done the job, but despite the Appeals Court never ruling that secret recordings of public officials were illegal, the state decided to interpret the decision this way, leading directly to the lawsuits requiring the record to be set one more time, seven years down the road.

Filed Under: 1st circuit, first amendment, first circuit, free speech, massachusetts, police, politicians, public accountability, recording

Atlanta Cops Caught Deleting Body Cam Footage, Failing To Activate Recording Devices

from the all-the-accountability-a-lack-of-internal-accountability-can-provide! dept

Atlanta, Georgia, August 23, 2016:

Officials are promising more transparency on the part of law enforcement, and greater trust between cops and the community. The body cameras “will strengthen trust among our officers and the communities they serve by providing transparency to officer interactions,” said Atlanta Mayor Kasim Reed this past week in announcing a purchase.

Oh, we were all so very young then. Look at us (including me!), pointing to the increasing adoption of body cameras as the ushering in of a new era of transparency and accountability. Didn't take long for this lily to get unceremoniously de-gilded.

Cameras are great tools of accountability. They just can't be controlled and maintained by cops. Two years after promising a better police force brimming with accountable officers steadily working to rebuild relationships with the citizens they police, Atlanta residents are being informed their servants/protectors are cheats and liars.

The audit looked at a random sample of 150 videos from officers’ body cameras. In more than half the cases, officers failed to activate and deactivate their cameras at the required time, the audit said.

Officers also miscategorized 22 of the videos, including a use of force incident. Auditors said mislabeling the videos may have led to some being deleted prematurely.

And the audit said that officers failed to capture two-thirds of dispatched calls between November 2017 and May 2018.

These results shouldn't shock Atlanta residents or readers of this site. It doesn't even shock Atlanta Police officials. Police Chief Erika Shields says she's "not happy" with the results of the audit, but also "not surprised." She excuses her officers actions in the worst possible way:

"I knew that what we are asking of officers is a culture shift."

It's your job to make sure the "culture" actually "shifts," Chief Shields. That it hasn't budged despite the addition of body cameras says a whole lot about the culture at the top of the PD. Whatever discipline Shields has meted out (she only says it happens, not how frequently or severely) clearly isn't enough. And the culture that remains in place in the Atlanta PD is downright nasty.

Auditors identified 64 videos “that were deleted by users who should not have had been authorized to delete videos from the system” from November 2016 to 2018.

Officer use-of-force incident videos are supposed to be handled differently. Supervisors are supposed to upload them and they to be labeled properly in case the department or the public needs to review them later.

But the audit found APD supervisors routinely didn’t understand their responsibilities. One zone supervisor told auditors he was unaware that it was his job to upload use of force videos.

Officers know the system is flawed and abuse it. Those in charge of securing recordings officers may not want retained either don't know what they're doing or are playing dumb when questioned by auditors. At the top of the miserable heap is a chief who has allowed flagrant policy violations to occur under her watch.

An official worth a damn would never express their lack of surprise at this sort of behavior from underlings. There should be shock and dismay at these results, not a shrug of "They're cops, what can you do?" emanating from the top person in Atlanta law enforcement. If that's the official reaction, the next audit will just find more of the same.

Filed Under: accountability, atlanta, body cameras, police

New York Police Union Says More Reporting On Stops/Frisks Will Hurt The NYPD's Effectiveness

from the 'we're-at-our-best-when-we're-not-held-accountable' dept

If anything might make police-community relations better, the Patrolmen's Benevolent Association (PBA) -- the union representing NYPD officers -- is against it. PBA President Pat Lynch has come out against body cameras, community policing, and even his own union members.

The battle over the court-ordered revamping of the NYPD's stop-and-frisk program rages on five years after Judge Scheindlin found it to be unconstitutional. So does the PBA, which is now arguing keeping data on stops is throwing sand in the NYPD's gears.

The Patrolmen’s Benevolent Association swiftly condemned an order issued Nov. 20 by a Federal Judge concerning stop-and-frisk data that it said would further discourage “proactive policing in New York City.”

The directive from U.S. District Judge Analisa Torres requires the NYPD, in consultation with an outside monitor, to submit for approval a plan to implement “a program for systematically receiving, assessing, and acting on information regarding adverse findings on the conduct of police officers involving illegal stops or illegal trespass enforcements.”

The NYPD has been ordered to document its stops numerous times since the 2013 decision. And it has continued to fail to do so. Officers blame a lack of instruction and/or clarity from upper management. Upper management blames multiple court orders and outside oversight for its inability to deliver clear instructions. And the PBA blames the whole mess on officers being forced to engage in Constitutional policing, which apparently is the opposite of "proactive" policing.

What the PBA is agitating for is the return to halcyon days of stop-and-frisk when NYPD officers performed hundreds of thousands of stops a year, a majority of them targeting the city's minorities. Constitutional policing would trim hundreds of man hours from the production of mandated reports, but the PBA wants nothing to do with keeping officers on patrol, rather than tied up doing internal bookkeeping for the DA's office.

Judge Torres said she was requiring that the plan to provide extensive information on the program include “(a) declinations of prosecutions by the District Attorneys in New York City; (b) suppression decisions by courts precluding evidence as a result of unlawful stops and searches; (c) court findings of incredible testimony by police officers; (d) denials of indemnification and/or representation of police officers by the New York City Law Department; and (e) judgments and settlements against police officers in civil cases where, in the opinion of the New York City Law Department, there exists evidence of police malfeasance.”

The PBA's response? To deride the accountability mandates as "unnecessary" -- an abuse of the court's "narrow authority" that will somehow wreak havoc on the NYPD's rank-and-file. This production of information will "end proactive policing in New York City," according to PBA president Pat Lynch.

Fortunately, Pat Lynch has long been recognized as a blowhard who seldom has the full support of the officers he represents. According to this report, the PBA was "quietly critical" of the PD's stop-and-frisk program when it was being abused to its fullest extent. Now that it's being deployed in a more Constitutional fashion -- resulting in a severe decline in stops -- the PBA wants to pretend the same program it criticized as "overused" is now a critical aspect of New York law enforcement.

Filed Under: 4th amendment, data, nypd, oversight, police, police unions, stop and frisk
Companies: patrolman's benevolent assocation

Indiana Police Chief Promoting As Many Bad Cops As He Can To Supervisory Positions

from the Welcome-to-Zero-Accountability,-Indiana dept

Why is routine police misconduct a problem police departments can't seem to solve? It's a mystery, says Elkhart, Indiana law enforcement.

Twenty-eight of the Elkhart Police Department’s 34 supervisors, from chief down to sergeant, have disciplinary records. The reasons range from carelessness to incompetence to serious, even criminal, misconduct.

Fifteen of them have served suspensions, including [Police Chief Ed] Windbigler himself, who was once suspended for three days and ordered to pay punitive damages in a federal lawsuit alleging excessive force.

Change starts at the stop... unless it's stagnation you're really looking for. Then all you have to do is put someone as questionable as the officers he oversees in charge of the whole mess.

This report -- put together by ProPublica and the South Bend Tribune -- compiles information from public records and court documents to paint a disturbing picture of the Elkhart police force. Making bad cops supervisors ensures misconduct by officers will never be fully addressed.

One promoted officer fired his weapon in three fatal shootings in the span of four years. Sergeant Dan Jones has been promoted twice, despite being found at fault in at least four accidents. He's also Parent of the Year.

Jones was once disciplined for how he picked his child up from elementary school, according to his personnel file. In his squad car, Jones entered a drive marked “wrong way,” cut into line, failed to properly secure his child and then, at a pedestrian crossing, failed to stop for a student holding up her stop sign.

Despite seven reprimands, a suspension, a demotion, and a finding of neglect of duty, Todd Thayer was promoted from corporal to assistant chief in 2016 by Chief Windbigler shortly after he took over the top spot in the department. His suspension involved officers taking suggestive photos of a woman waiting for a ride at the police station.

Another promoted officer shot and killed an unarmed man while serving a search warrant, and tasered a student at a local high school while acting as a school resource officer. Other members of the PD's supervisory team have used data terminals to "talk about white power," repeatedly switched recording devices off, threw away property seized from people they've stopped, slept on the job, filed incomplete paperwork, and been involved in large number of auto accidents and on-the-job shootings.

With these promotions, Chief Windbigler has made it clear he won't hold his officers accountable for their misdeeds. He's been in office for less than two years, but he's already shown he's not willing to mete out discipline.

This month, the city said two Elkhart police officers would be charged with misdemeanor battery after the Tribune requested video that showed them repeatedly punching a handcuffed man in the face. Windbigler had previously opted to limit the two officers’ discipline to reprimands. He told the oversight board they “just went a little overboard when they took him to the ground,” while making no mention of the punches thrown.

There's another level of oversight that may rein some of the worst cops in, but Chief Windbigler is actively avoiding its scrutiny. The Public Safety Board is supposed to be the disciplinary body handling misconduct cases, but Chief Windbigler isn't giving it anything to work with. As the article notes, previous police chiefs brought 20 cases a year to the PSB. Windbigler brought zero cases to the board during his first full year as chief. Since then, he has only brought eight. For all of this accountability-dodging, his officers voted the chief "Officer of the Year," despite the fact the honor is supposed to go to actual officers, not top PD brass.

The news only gets worse for Elkhart residents, who will be paying bad cops to oversee possibly worse cops. The mayor, Tim Neese, has decided to reform the Public Safety Board. Neese, whose son is an Elkhart police officer, will be dropping his two appointees and replacing them with more cops.

He said the board would be made up of five people — and all five would be police officers, including an assistant chief, a captain and an internal affairs lieutenant.

The mayor and police chief don't appear to care how much long-term damage they're doing to community relations and the police department itself. The Elkhart PD spent much of the early 90s defending itself in a long string of civil rights lawsuits that culminated in a study commissioned by the city that showed the department had a "reputation for brutality" and almost zero internal accountability. With these recent brass installations, it's the 90s all over again.

Filed Under: ed windbigler, elkhart, elkhart police department, indiana, police

Tennessee Legislators Can't Stand Up To Cops; Keep Federal Loophole Open For Nashville Law Enforcement

from the asset-forfeiture-gone-mad dept

Earlier this year, the Tennessee legislature passed some very minimal asset forfeiture reforms. The bill, signed into law in May, does nothing more than require periodic reporting on use of forfeiture funds and the occasional audit.

What it doesn't do is require convictions. It also doesn't close the federal loophole, which allows Tennessee law enforcement to bypass state laws if they feel they're too restrictive. Given that state law doesn't really do anything to curb forfeiture abuse, the federal adoption lifeline isn't used quite as often in Tennessee as it is by law enforcement agencies in others states with laws that are actually worth a damn.

But local cops really really really want the federal loophole open. They've been applying pressure to Nashville legislators and it has had the expected effect. (h/t Daniel Horwitz)

Nashville on Tuesday renewed its participation in a controversial 1980s-era federal program that's allowed the police department to keep proceeds from seized assets taken from people suspected of crimes involving drugs.

After spirited debate, the Metro Council voted 25-5 with two abstentions to renew Metro's participation in the "equitable sharing program" with the U.S. Department of Justice and federal Drug Enforcement Administration.

The loophole Nashville law enforcement barely needs will remain open. And it will remain open because… well, budgets are tight and we can't keep asking state taxpayers to make up the difference.

Councilwoman Jacobia Dowell, who also voted for renewing the agreement, said not renewing the program would leave a hole in the city's budget.

"I have zero confidence in this council body to find $150,000," Dowell said, noting the city's budget struggles this past year.

So, instead of all taxpayers, Councilwoman Dowell wants to have just a few taxpayers pitch in to help cops -- taxpayers who happen to have property law enforcement thinks they didn't acquire legally.

Or not even taxpayers! Why even trouble those who reside in the state to give law enforcement some extra cash. Why not just take money from people leaving the state? That's the way Tennessee's "drug interdiction" teams work. According to law enforcement, they want to stop the flow of drugs into the state. That doesn't really explain their actions:

While drugs generally come from Mexico on the eastbound side of Interstate 40 and the drug money goes back on the westbound side, the investigation discovered police making 10 times as many stops on the so-called "money side."

Law enforcement doesn't seem to mind the drugs coming in, but it's certainly not going to let the cash head back out. Councilwoman Dowell thinks if cops can't lift money from drug dealers, they won't be able to buy the stuff they need to continue to allow drugs to flow into the state.

What Dowell absolutely doesn't want to see is her poorest constituents asked to dig even deeper to keep the drug interdiction units in business.

She said [the budget shortfall] would end up coming from Nashville's "most distressed and the impoverished communities."

Bless her heart. Oh wait.

Although civil asset forfeiture affects people of every economic status and race, a growing array of studies indicates that low-income individuals and communities of color are hit hardest. The seizing of cash, vehicles, and homes from low-income individuals and people of color not only calls law enforcement practices into question, but also exacerbates the economic struggles that already plague those communities.

None of the rationale makes sense. The drug teams that don't actually catch drugs need money to keep doing the job they're not doing and they need to take it from someone since the state's not going to help them out. The people who are going to help them out are either people leaving the state or low-income residents.

The problem is that when you say someone's going to have to come up with $150,000, someone will have to come up with it. And when that number increases -- and it will -- the shortfall comes directly from residents and other US citizens who have their belongings taken from them without even being accused of a crime.

$150,000 is only the cut from federal sharing. That's Nashville law enforcement's manageable money habit. There's more to it than the federal slush fund. Nashville law enforcement has created a drug enforcement ecosystem that can't be sustained without the seizure of millions of dollars every year. Even prosecutors recognize the problem.

[Nashville County District Attorney Glenn] Funk stated that on his first day as Nashville’s District Attorney, he was told that $1.7 million to $2 million would be needed to be brought in through seizures in order to keep the drug task force in operation. He also expressed concern that individuals were indicted or subject to forfeiture proceedings who would not otherwise have been if civil asset forfeiture were not a “cash cow.” He stated that officers sometimes target people with high-value cars so they can forfeit them and put the cars into service. General Funk provided these as examples of problems that arise “when we don’t have legislative oversight over the funds and assets . . . that are being seized.”

If you want to start fixing forfeiture abuse, start with the federal loophole. Agencies will realize it's not impossible to live without this money. And from there, you can start cutting them off from the main supply by eliminating civil asset forfeiture altogether by adding a conviction requirement. But if you can't even make this small move, you're not serious about fixing the problem. That's Nashville's problem -- one that harms citizens while keeping law enforcement flush with funds they really didn't earn.

Filed Under: asset forfeiture, civil asset forfeiture, forfeiture, law enforcement, nashville, police, tennessee

Woman Sues Georgia Deputies After Their Field Drug Test Said Her Cotton Candy Was Meth

from the lazy-people-relying-on-stupid-tools dept

Cops love cheap field drug tests because they're cheap and as likely to generate "probable cause" for an arrest/search as their much more expensive drug dogs. No law enforcement agency has ever expressed concerns about these fields tests returning false positives at an alarming rate. They just book people and send them before a judge based on a $2 test that can find anything from drywall powder to doughnut crumbs to be controlled substances. This void in accountability has occasionally been filled by prosecutors, a few of which will not offer or accept plea deals based on nothing more than a field test.

A faulty drug test is at the center of a recently-filed lawsuit. Georgia resident Dasha Fincher is suing Monroe County and two sheriff's deputies over a field drug test that turned cotton candy into methamphetamines and upended her life. (via the Atlanta Journal-Constitution)

According to Fincher's complaint [PDF], she was stopped for a supposed window tint violation by Monroe County deputies Allen Henderson and Cody Maples. Ultimately, the deputies decided the tint on her windows was lawful. But that obviously wasn't the real reason for the stop. The deputies wanted to search the vehicle. According to their report [PDF] of the incident, consent was given by both the driver and Fincher, who was the passenger in the vehicle. Deputy Williams found a "blue crystal like substance" in a bag on the floor. Both the driver and Fincher told the deputy it was cotton candy. The deputies tested it with a field kit, which conveniently confirmed their suspicions.

Based on the packaging and its crystal like feature, Corporal Williams tested the substance using a field kit for Methamphetamine and MDMA. The field kit gave a positive reading.

Here's a picture of the alleged methamphetamine:

Fincher was charged with drug trafficking, a felony that comes with mandatory minimum sentences and hefty fines. Since the drug hadn't been tested at a lab yet, the deputy's guesswork on its weight put Fincher in line for a minimum ten year prison sentence and a fine of $100,000. Bail was set at $1 million, so Fincher had no choice but to remain in jail until the substance was tested by the state's drug lab.

When those results came back, Fincher was cleared. Not only that, but the amount recorded by the lab (26 grams) fell short of the 28 grams needed to charge Fincher with trafficking. But by the time Fincher's innocence was proven, a tremendous amount of damage had been done. Fincher spent three months in jail, missing the birth of her twin grandsons and being unable to help when her daughter suffered a miscarriage. Her charges were dropped April 18, 2017, 109 days after she was arrested. The felony arrest remains on her record.

The lawsuit argues the deputies operated in bad faith, knowing high bail would be set and Fincher would remain in jail until the substance was tested by a lab. She argues they should have known the field tests routinely generated false positives. And there's evidence to back that claim. This report, broadcast last month by a Fox affiliate in Georgia, shows the Georgia Bureau of Investigation's (GBI) crime lab has reversed dozens of field drug test results.

The FOX 5 I-Team obtained every negative drug test report from the GBI Crime Lab in 2017, then researched to find out how many of those cases began with a positive NIK test. We confirmed 145 false positives, wrongly implicating Georgians of all races in all parts of our state. The field tests got it wrong 11 times for heroin, 24 times for ecstasy, 40 times for cocaine and 64 times for methamphetamines.

In each case, someone's life was upended. Georgia's drug laws are harsh and bail amounts are unaffordable for all but the most wealthy. About the only positive resulting from this examination is the Georgia Tech University's police force deciding they'd no longer use field tests. Across the rest of the state, this option hasn't even been considered by law enforcement agencies utilizing the NIK tests.

It may take a lot of lawsuits like this one to push law enforcement agencies to consider quality over quantity. Judges need to be made aware of these problems as well, since they're the ones who can reduce bail, allow releases pending trial, and shut down guilty pleas predicated on tests that are wrong far too often to be considered reliable.

Filed Under: cotton candy, dasha fincher, drug tests, field drug tests, forensics, georgia, meth, monroe county, police, probable cause

Ignorance Of The Law Is No Excuse, Court Tells Cop

from the one-small-stopgap-in-a-torrent-of-unearned-forgiveness dept

We've grown accustomed to law enforcement being given a pass for not knowing the laws they're enforcing. A 2014 Supreme Court decision made being ignorant precedential, providing cops with an out citizens can't use. Ignorance of the law can be the best excuse when it's a cop trying to keep his evidence from being thrown out of court.

With rare exceptions, courts have said it's okay for officers to predicate stops on perceived traffic violations, rather than actual traffic violations. Officers really have to make an effort to run afoul of the Supreme Court-created Fourth Amendment loophole.

Another rare exception to the Heien rule has surfaced. The Kansas State Court of Appeals has denied an officer's attempt to salvage a stop and the evidence derived from it by asking for an application of the "ignorance of the law is an acceptable excuse" band-aid. The appeals court isn't willing to allow an officer's personal interpretation of motor vehicle laws to stand in for the actual wording of the law used as an excuse to pull a driver over. (via The Newspaper)

In this case, the driver was ultimately charged with DUI and not operating a vehicle with an ignition interlock device. The defendant argued the stop wasn't reasonable under the Fourth Amendment because the violation stated as the reason for the stop wasn't actually a moving violation.

The officer argued it was. At the center of the case were the vehicle's tail lights. The left light was broken. The other two -- right and middle -- were still functional. Highway Patrol Officer Reed Sperry testified that he was mistaken about Kansas' tail light law. From the decision [PDF]:

Sperry admitted that he misunderstood the law about brake lights. He testified that he mistakenly believed that Lees' brake lights needed to be as widely spaced laterally as practicable and mounted at the same height. In other words, he thought that both the left and right brake lights had to be working and that the middle brake light did not count. Sperry testified that he stopped Lees for a brake light violation, and he said nothing about any intent to perform an inspection under K.S.A. 8-1759a.

Despite this, the state argued that the officer's mistake shouldn't result in the suppression of evidence. It pointed to the Supreme Court's Heien decision while arguing the officer's "reasonable" mistake did not make the stop unlawful.

First, the state appeals court goes to the state law to see if it contains any ambiguous language. Nope.

In Kansas, the requirements for stop lamps are set forth in K.S.A. 8-1708(a) which states that "[e]very motor vehicle . . . shall be equipped with two (2) or more stop lamps meeting the requirements of subsection (a) of K.S.A. 8-1721."

K.S.A. 8-1721(a) states: "Any vehicle may be equipped and when required under this act shall be equipped with a stop lamp or lamps on the rear of the vehicle which shall display a red or amber light, or any shade of color between red and amber, visible from a distance of not less than three hundred (300) feet to the rear in normal sunlight, and which shall be actuated upon application of the service or foot brake, and which may, but need not, be incorporated with one (1) or more other rear lamps."

As the court notes, the undisputed evidence shows the driver's car had two (2) working tail lights, even with the left side light burnt out. The US Supreme Court's decision happens to be directly on point, since it also deals with tail lights and state laws. Surprisingly, this doesn't help Officer Sperry. In the Heiein case, the law used to predicate the stop was unclearly-worded. The same can't be said for the Kansas law.

Applying Heien and Pianalto, the State asserts that Sperry's mistake of law about the brake light violation was objectively reasonable, rendering the traffic stop lawful. But as Lees points out in his brief, the statutes at issue in Heien differ from the statutes at issue here. In Heien, it was ambiguous how many functioning brake lights the statute required; but the Kansas statutes are clear that only two functioning brake lights are required.

Again, the definition of "reasonable" must be applied to the officer's misinterpretation of the law. Remarkably, the Kansas appeals court says the standard of reasonableness for officers is higher than the standard for citizens.

Reading K.S.A. 8-1708(a) and K.S.A. 8-1721(a) together, no reasonable officer would think that the law required brake lights to be spaced laterally as far as practicable and mounted at the same height, as Sperry wrongly believed; neither statute suggests such a requirement in any way. Granted it may be reasonable for the average citizen to believe the law likely requires left and right brake lights, but law enforcement officers are not average citizens. They must reasonably study the laws they are duty bound to enforce.

If officers are finding it difficult to stay on top of the laws they're supposed to enforce, maybe they need to have a few chats with lawmakers and remind them that quality is better than quantity. Officers expect citizens to know the details of laws officers themselves are unclear on. Courts seems to expect it, too. That's completely backwards. It's like expecting a client to know the law better than their legal representation.

But that's how law enforcement operates day in and day out. Pretextual stops happen hundreds of times a day based on legal violations officers may only think have occurred. It's not until someone challenges the stop itself in court that the reasonableness of the officer's actions is even questioned. What we see on the surface in the handful of cases that reach this level of review is only a tiny percentage of the legally-unreasonable stops made daily by law enforcement. And it's unlikely to change until more courts hand down decisions like this.

Filed Under: heien rule, ignorance of the law, kansas, police, pretextual stop

Court To Law Enforcement: You Can't Seize A House For 15 Hours Before Obtaining A Warrant

from the because-reasons...-a-lot-of-them dept

When you violate the Fourth Amendment so hard it practically becomes the Third Amendment. (via FourthAmendment.com)

Local law enforcement seized Defendant’s home around 7:00 a.m. Defendant spent the next two and a half hours at the police station speaking with Investigator Cooke and others. About 9:30 a.m., Defendant signed a limited consent to search form outside his home authorizing Investigator Cooke to enter the home and retrieve Candice’s medication. Cooke completed his search of Defendant’s home around 10:00 a.m. By 11:30 a.m. Cooke possessed sufficient knowledge to procure a search warrant. He knew Defendant was a convicted felon and had ammunition in his bedroom closet. Cooke did not seek a search warrant, however, until the early evening hours. The only event of sufficient note during the period between the establishment of probable cause that morning and the process of procuring a search warrant that evening was Candice’s autopsy which began at 1:30 p.m. and concluded around 3:30 p.m. A federal magistrate judge issued the warrant at 10:00 p.m. Three federal agents together with Investigator Cooke and another officer executed the warrant beginning at 11:18 p.m. or twelve hours after probable cause arose. Their search concluded at 1:20 a.m.

The Third Amendment says you can't be forced to quarter troops in your house. What about around your house? Here agents of the government took over a man's residence for over 18 hours -- 15 of them without a warrant -- refusing to even allow him to enter his own home for accompanied bathroom breaks.

The timeline above, taken from the 10th Circuit Court of Appeals decision [PDF], followed the discovery of the defendant's wife dead in his home around 5:00 a.m. The defendant, Walter Shrum, was the one who discovered her and it was he who called law enforcement. Three hours later, after being forbidden to enter his home, Shrum signed a limited consent form allowing a Sheriff's Office investigator to enter the home to retrieve his wife's medication prior to an autopsy. The investigator saw a bullet in a closet. Later, the same investigator recalled Schrum was a convicted felon.

It was still several hours before a warrant was secured. During that entire time, Shrum's house was controlled by law enforcement. They may not have been inside, but they prevented the house's owner from re-entering his own residence. He was "interviewed" for three hours by the investigator, who may not have actually gotten consent from Shrum to sign a search consent form. This footnote suggests a request for legal representation by Shrum may have been ignored.

At the suppression hearing, Investigator Cooke testified that after Defendant mentioned he wanted an attorney to review the consent form, Defendant “in what was a joking manner to me initially was, quote, ‘Shit, I’m just kidding,’ and we moved on.” Defendant’s reported statement is inaudible on the interview tape.

The court notes there's no question the Sheriff's department seized Shrum's home. This immediately implicated Shrum's Fourth Amendment rights. Denying him access to his own house for over 18 hours seals the deal, no matter how the government tries to portray it.

We see little difference between a perimeter stakeout and internal securing of a home from the standpoint of a Fourth Amendment seizure. Both interfere to the same extent with the possessory interests of those entitled to occupy the dwelling. The Government cannot reasonably dispute that the “securing” of Defendant’s home during the early morning hours of March 11, 2015 infringed not only on his possessory interest in the home but also on his liberty interest in free movement. The police deprived Defendant of his ability to access his home for his own purposes, in his own way, on his own time, and at a location where concerned friends and well-wishers would surely come calling.

"A man's house is his castle," as multiple court decisions have paraphrased, including ones issued by the Supreme Court. Once this illegal seizure commenced, it tainted everything that came after it, including the supposed "consent" of Shrum.

While the court agrees it is sometimes reasonable to very temporarily secure a suspected crime scene, the 15-hour delay between the home's seizure and the issuance of a search warrant is anything but. And the court drives a significant nail into the government's argumentative coffin: the warrant exception so many law enforcement officers believe exists doesn't actually exist.

[T]he Government has never suggested that probable cause (or any form of articulable suspicion for that matter) justified the initial seizure of Defendant’s home. And we have news for the Government. No such thing as a “crime scene exception,” let alone an “unexplained death scene exception,” to the Fourth Amendment exists.

When the initial seizure is bad, the search is bad, even if limited consent was obtained. As the court points out, without Shrum being denied access to his home, there would be no reason for the investigator to enter to retrieve the medication needed for the autopsy. And if the investigator never enters the home, the bullet is never seen and the search warrant isn't obtained and executed, producing even more evidence of criminal activity.

And the investigator himself steered Shrum towards compliance, leaning on him heavily when it appeared he wouldn't let law enforcement into the house he was forbidden from entering.

By all appearances, Investigator Cooke consciously designed the circumstances under which Defendant provided his consent to convince him that he had no choice but to accede to the investigator’s wishes. When a police officer claims authority to seize your home because your wife died unexpectedly, and tells you the coroner needs medication from the home to perform an autopsy but you cannot go inside the home to retrieve the medication, what choice do you have? Must you allow law enforcement to seize your home indefinitely? Defendant’s lack of choice once again is well illustrated by his statement to Investigator Cooke, “I know you have to,” and Cooke’s subsequent reminder, “I’ll just tell you I can’t let you go in the house, but if you’ll tell me where the stuff is.” Nothing between the time of law enforcement’s illegal seizure of Defendant’s home and Investigator Cooke’s search of the home broke the causal chain. Because Defendant’s consent was tainted, Cooke’s search pursuant to that consent also was tainted.

The taint travels down the line to the late-arriving warrant, resulting in the suppression of every bit of evidence the government used to convict Shrum. The government simply can't do what it did -- turn someone's house into occupied territory for several hours without probable cause  -- and expect its evidence to survive.

Filed Under: fourth amendment, police, seizure, third amendment