Facebook Tells Cops Its 'Real Name' Policy Applies To Law Enforcement Too

from the ignorance-of-the-policies-is-no-excuse dept

Facebook's real name policy forbids fake profiles. Needless to say, this rule is broken all the time. Fake profiles are created every day. When they're discovered, they're shut down. People like breaking rules and a handful of moderators per millions of users can't really keep up. We expect this kind of juvenile bullshit from average jerks like you and me, but shouldn't we be expecting more from our public servants?

Of course we should. And Facebook -- finally -- is feeling the same way, as Dave Maass reports for the EFF.

This summer, the criminal justice news outlet The Appeal reported on an alarming detail revealed in a civil rights lawsuit filed by the ACLU of Tennessee against the Memphis Police Department. The lawsuit uncovered evidence that the police used what they referred to as a “Bob Smith” account to befriend and gather intelligence on activists. Following the report, EFF contacted Facebook, which deactivated that account. Facebook has since identified and deactivated six other fake accounts managed by Memphis police that were previously unknown.

In a letter to Memphis Police Director Michael Rallings dated Sept. 19, Facebook’s legal staff demands that the agency “cease all activities on Facebook that involve the use of fake accounts or impersonation of others.”

Fake Facebook accounts being used by law enforcement is nothing new, but we are hearing about it more frequently these days. Law enforcement officers should probably respect the rules put in place by service providers, but if they're not going to, it's up to service providers to enforce their terms of service.

No doubt being singled out for abusing Facebook policies will feel unfair to law enforcement personnel, who have used fake accounts to surreptitiously surveil Facebook users for the purposes of compiling criminal charges. There's nothing illegal about it -- at least as far as the courts can tell -- so it's really all about taking advantage of your host's hospitality.

Facebook's letter [PDF] basically just reiterates long-existing policies and asks the Memphis PD to knock it off. It's unclear what the company will do if it suspects the MPD has ignored its "we see you" letter. It does appear the MPD has lost a few of its undercover accounts, as the letter states Facebook has "disabled the fake accounts [Facebook] identified" in its "investigation."

If history is any indication, some words will be exchanged (in letter form) and then not much else will happen. Dave Maass notes the EFF brought the DEA's use of fake profiles to the company's attention four years ago. Some letter writing ensued then, but there's nothing on the record indicating the DEA has ceased setting up fake profiles or that Facebook is proactively monitoring accounts for signs of fakery. Since neither side seems to be taking the fake profile issue seriously, fake accounts set up by law enforcement will continue to proliferate.

On the plus side, law enforcement can no longer pretend it's unaware setting up fake profiles violates the terms of service. The company's "Information for Law Enforcement Authorities" has been updated to make it clear there's no law enforcement exception to the Facebook rules. But it's likely the use of fake profiles will continue unabated. After all, you can't catch scofflaws without breaking a few policies, right?

Filed Under: content moderation, police, real names
Companies: facebook

Study Buried For Four Years Shows Crime Lab DNA Testing Is Severely Flawed

from the doing-what-works-rather-than-doing-it-right dept

DNA is supposed to be the gold standard of evidence. Supposedly so distinct it would be impossible to convict the wrong person, yet DNA evidence has been given far more credit than it's earned.

Part of the problem is that it's indecipherable to laypeople. That has allowed crime lab technicians to testify to a level of certainty that's not backed by the data. Another, much larger problem is the testing itself. It searches for DNA matches in samples covered with unrelated DNA. Contamination is all but assured. In one stunning example of DNA testing's flaws, European law enforcement spent years chasing a nonexistent serial killer whose DNA was scattered across several crime scenes before coming to the realization the DNA officers kept finding belonged to the person packaging the testing swabs used by investigators.

The reputation of DNA testing remains mostly untainted, rose-tinted by the mental imagery of white-coated techs working in spotless labs to deliver justice, surrounded by all sorts of science stuff and high-powered computers. In reality, testing methods vary greatly from crime lab to crime lab, as do the standards for declaring a match. People lose their freedom thanks to inexact science and careless handling of samples. And it happens far more frequently than anyone involved in crime lab testing would like you to believe.

An op-ed about the failures of crime lab DNA testing at the New York Times -- written by Boise State Professor of Biology Greg Hampikian -- discusses this ongoing problem using some science of his own: a recently-released NIST study. (h/t Grits for Breakfast)

Researchers from the National Institute of Standards and Technology gave the same DNA mixture to about 105 American crime laboratories and three Canadian labs and asked them to compare it with DNA from three suspects from a mock bank robbery.

The first two suspects’ DNA was part of the mixture, and most labs correctly matched their DNA to the evidence. However, 74 labs wrongly said the sample included DNA evidence from the third suspect, an “innocent person” who should have been cleared of the hypothetical felony.

This is already a problem. People's lives are literally on the line and crime lab testing is more likely to make the wrong call on evidence than the correct one. What's truly disturbing is this study was completed in 2014, but the report was apparently buried by the scientists it implicated. As Dr. Hampikian states in his op-ed, the study's results may still be unpublished if it weren't for forensic scientists publicly complaining about the burial.

Four years have passed since the study's completion and it appears no improvements have been made. The study notes testing protocols vary widely and very little effort is being made to improve error-prone procedures. In addition, the study [PDF] comes with a disclaimer meant to dissuade litigants from challenging DNA evidence by quoting the study's findings.

The results described in this article provide only a brief snapshot of DNA mixture interpretation as practiced by participating laboratories in 2005 and 2013. Any overall performance assessment is limited to participating laboratories addressing specific questions with provided data based on their knowledge at the time. Given the adversarial nature of the legal system, and the possibility that some might attempt to misuse this article in legal arguments, we wish to emphasize that variation observed in DNA mixture interpretation cannot support any broad claims about “poor performance” across all laboratories involving all DNA mixtures examined in the past.

This certainly doesn't raise the reader's confidence in crime lab DNA testing. Instead, it gives the impression the four-year delay between completion and public release was for wagon-circling purposes as crime lab forensic scientists looked for ways to mute the impact of the study's findings.

But there are also problems with the study itself. The authors of the study appear far too willing to cut crime labs slack for their failures. Rather than point out the problems originating from a lack of standardized processes, the study uses them to excuse the failures, as if unintentionally nailing the wrong person for the crime was somehow worthy of gold stars for effort. Here's Hampikian's take:

It is uncomfortable to read the study’s authors praising labs for their careful work when they get things right, but offering sophomoric excuses for them when they get things wrong. Scientists in crime labs need clear feedback to change entrenched, error-prone methods, and they should be strongly encouraged to re-examine old cases where such methods were used.

The study confirms much of what has been exposed earlier: DNA evidence may be based on hard science, but any small variable -- including the inevitable tainting of DNA samples -- has the ability to throw things off. And when it's used as evidence in criminal trials, it has the potential to destroy lives. This study shows -- at least indirectly -- the labs handling DNA evidence aren't taking it nearly as seriously as they should.

Filed Under: crime lab, dna, evidence, police, study

California Police Officers Used Self-Destructing Messaging App For Years

from the TigerText-also-destroys-reputations! dept

The Long Beach Police Department has bravely struck a blow against police accountability. An investigation by Al Jazeera uncovered use of self-deleting messaging by the department.

Current and former officers from the Long Beach Police Department in Southern California have told Al Jazeera that their police-issued phones had Tiger Text installed on them.

The Tiger Text app is designed to erase text messages after a set time period. Once the messages have been deleted, they cannot be retrieved - even through forensic analysis of the phone.

The police officers who spoke with Al Jazeera said the confidential messaging system was used to share details of police operations and sensitive personnel issues.

This may be true. But even if this was the full extent of TigerText usage, it's still a problem. Personnel issues can become matters of public interest, especially in civil rights lawsuits. Details of police operations are normally inaccessible to the public, but in rare cases, these too become matters of public interest.

On top of that, there's a good possibility some of these vanished discussions may have been pertinent to criminal trials. Defendants should have the chance to obtain relevant discussions that may help their defense, but Tiger Text ensures information that prosecutors might be obligated to turn over to the defense is now completely inaccessible.

In fact, the Al-Jazeera article quotes two former officers as claiming their superiors told them to use TigerText specifically to prevent conversations from being discoverable. The department has denied giving officers these instructions, but former officers claim the PD's participation in the discovery process is anything but "on the up and up."

The Long Beach PD had more than 100 officers using TigerText to preemptively destroy possible public records and/or evidence. The use of self-destructing messages, if nothing else, violates record preservation laws. Depending on what disappeared into the ether, there's a good chance criminal cases were also affected by the rolling destruction of communications.

It didn't take long for the Long Beach PD to reverse course after having its shady texting exposed. The LA Times reports the department has already officially ditched TigerText.

The Long Beach Police Department has suspended its use of a mobile texting application that permanently erases messages after civil liberties advocates and media outlets raised concerns that the app could be used to hide evidence useful to the other side in criminal and civil court cases.

In a statement, the city said the decision to halt the use of TigerText came “pending further review of whether the use is consistent with the city’s record retention policy and administrative regulations for the use of mobile devices.”

The PD claims it used TigerText as a stopgap solution when it moved away from Blackberry phones. Supposedly the search for an encrypted messaging system led the LBPD to this program, despite there being plenty of other options on the market in 2014. I guess the built-in autodelete feature was a pleasant bonus. TigerText was originally developed for the medical industry to allow care providers to send sensitive patient information to each other. The self-destruct feature helped hospitals comply with HIPAA regulations -- both by encrypting communications and ensuring records no longer needed were removed from issued phones.

To its credit, the swift abandonment of TigerText means future violations will be minimal. The PD has also promised to release more info about the department's utilization of the messaging app, including which officers and commanders used the app. But the damage that has been done probably can't be undone. If no messages were archived, the last four years of TigerText communications no longer exist. Nothing can be proven one way or another and taxpayers who paid $10,000 a year to help the PD destroy public records will just have to take the department's word that nothing illegal or unconstitutional occurred while TigerText was in use. That's a giant leap of faith most people won't make. If the Long Beach PD didn't have a trust issue before, it definitely has one now.

Filed Under: disappearing messages, evidence, long beach, long beach police department, police, public records, transparency
Companies: tiger text

Jeff Sessions Says If You Want More Shootings And Death, Listen To The ACLU And Black Lives Matter

from the on-the-plus-side,-Trump-seems-to-want-him-gone dept

Jeff Sessions is still quoting a bad study to score points with law enforcement officials. Earlier this year -- while speaking to the National Association of Police Organizations -- he cited a study by two Chicago lawprofs that supposedly drew a connection between violent crime spikes in Chicago and a settlement with the ACLU, reached after years of police misconduct and abuse.

The Attorney General's point was clear: misconduct and abuse are what's keeping criminal activity at bay. Constitutionally-sound police work lets the criminals win. The problem with Sessions' assertions -- and the law profs' conclusions -- is several cities with consent decrees or settlements in place have seen violent crime rates continue to go down, indicating there's really no provable connection between violent crime rates and so-called "limitations" on police activity.

Nevertheless, he persists. Speaking to the VALOR Survive and Thrive Conference, Sessions chose to quote the same faulty study again. (Quick sidebar: VALOR stands for "Preventing Violence Against Law Enforcement Officers and Ensuring Officer Resilience and Survivability."Really.) [h/t Ryan Reilly]

More people were murdered in Chicago in 2016 than in New York and Los Angeles combined—even though Chicago has one-fifth of the population of those two cities.

The situation was so bad that nearly a quarter of the nationwide increase in homicide that year happened in Chicago alone.

This did not need to happen. In 2015 and 2016, Chicago had the same police on patrol and the same prosecutors in court, but dramatically different results.

So what happened?

According to a study by two professors from the University of Utah—one of whom is a former federal judge—the consent decree mandated a major change in Chicago’s community-based policing—including Terry stops—that allowed this bloodshed to take place.

The professors found that the increased crime cost a staggering $1.5 billion and noted that 78 percent of its victims were African-American and 16 percent were Latino. Ninety-four percent of the victims were minorities.

What happened is officers refused to do their jobs. Some saw the agreement as a trap. Others just didn't feel like making an effort.

The ACLU consent decree required police officers to submit a detailed report to the ACLU, a former federal judge, and a publicly available database after every single Terry stop.

John’s predecessor as United States Attorney, Zachary Fardon, said in an open letter to the City that the ACLU agreement “[told] cops if you go talk to those kids on the corner, you’re going to have to take 40 minutes to fill out a form, and you’re going to have to give them a receipt with your badge number on it.”

And he noted that as a result, by January 2016, “the city was on fire” because “the rule of law, law enforcement, had been delegitimized.” That is a devastating analysis.

Reporting by the Chicago Sun Times confirms this, stating in January 2016, that Chicago officers say that “they fear getting in trouble for stops later deemed to be illegal and the new [required forms] take too much time to complete.”

Roughly the same thing happened in New York City, but there were no increases in violent crime. Officers were supposed to justify stops and produce documentation. The difference is NYPD officers continued to make stops, rather than abandon their duties. There are still unanswered questions about the legitimacy of some NYPD stops, thanks to missing mandatory paperwork, but the court-ordered overhaul of the department's stop-and-frisk program did not result in the apocalypse promised by the outgoing mayor.

Simply put, Chicago police officers don't want to engage in Constitutional policing -- not if it means spending a bit more time filling out paperwork. The supposed "gotcha" moments will never occur if stops align with the Constitution, the agreement, and include the required paperwork. Abdicating your responsibilities has unpleasant outcomes, especially if you're in the business of law enforcement. A spike in violent crime is one conceivable result. But don't blame the agreement. Blame the officers for their lack of interest in respecting the rights of others.

Sessions goes even further in these remarks, though. He blows past the so-called "ACLU effect" the Chicago law profs claimed to have pinpointed in their study to blame the ACLU (and others) directly for spikes in violent crime.

There's a clear lesson here: if you want more shootings and more death, then listen to the ACLU, Black Lives Matter, or Antifa. If you want public safety, then listen to the police professionals who have been studying this for 35 years.

This is the sort of thing high-ranking officials shouldn't be seriously thinking, much less saying out loud in front of other public officials in law enforcement. This is Sessions saying the ends justify the means and groups seeking accountability from their public servants have the blood of crime victims on their hands just because they want officers to respect the Constitution.

Then he contradicts this assertion by citing falling crime rates in Los Angeles and New York -- both of which have been hit with settlements and consent decrees that altered how officers go about their daily business. Somehow he feels this doesn't undermine his "ACLU effect" comments or his willingness to saddle ACLU and BLM with the end result of police officers refusing to do their jobs.

And if it isn't the ACLU killing citizens, it's everyone who doesn't immediately stand and salute the Thin Blue Line flag.

The proof is in. It can no longer be denied: disrespect and lack of support for police officers has real world consequences.

Leaders must understand and affirm the important and dangerous work of our officers. Failure to support our professionals undermines the pro-active policing that has been shown to save lives.

The proof isn't in. The study he cites decides correlation is causation. The examples he gives about other major US cities undermine the vaunted "ACLU effect" conjured up by Chicago law profs. All Sessions has is some anecdotes and a deep disdain for anyone that isn't a cop or a prosecutor. American citizens are apparently whiny children who wouldn't know good policing if it stopped them on the street, threw them to the ground, and stood on their necks.

Respect is earned. Sessions -- and those echoing his sentiments -- believe it's something certain people are owed. And the more he tries to collect on their behalf, the more likely he is to diminish the respect the American public has for him.

Filed Under: black lives matter, crime, doj, jeff sessions, police, police violence
Companies: aclu

Qualified Immunity Contradicts Congressional Intent. It's Time To Kill It Off.

from the and-dance-on-its-grave dept

The doctrine of qualified immunity was conjured up by the US Supreme Court in 1982 and victims of rights violations have been paying the price for more than three decades. The doctrine was created by the Court, not by Congress. This is an important distinction, especially since qualified immunity directly contradicts the liability Congress created as an avenue of redress for citizens.

Congress specifically said anyone who uses governmental power to deprive others of rights can be sued.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…

These were the only exceptions granted:

… except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

Exceptions for judges. That's it.

As it stands now, qualified immunity lets everyone from cops to federal agents to IRS investigators off the hook for violating the rights of citizens. It's not supposed to be this way. Qualified immunity reverses the expectations of Congress to give government employees an easy way out. The Supreme Court felt the lack of safety valve for government employees meant they'd be too intimidated by possible liability to make quick judgment calls while performing their duties.

Instead, the doctrine has encouraged government employees to engage in blatant rights violations, secure in the knowledge the court-established doctrine will get them off the hook.

David French, writing for the National Review, says it's time for qualified immunity to die. Its burial would allow the nation to go back to what Congress intended: an avenue of recourse for citizens whose rights have been violated by the government. The key linchpin in qualified immunity determinations is "clearly established law." But what does "clearly established" mean in the context of a QI defense? Almost nothing.

[T]he entire notion of “clearly established law” rests on a series of absurd, fantastical premises. Are we really to believe that a police officer doesn’t know he shouldn’t pound on the wrong door and blow away the innocent occupant* unless a court said so in a case, say, five years before? Do we really believe police officers and university administrators are diligently reading such cases as they are decided anyhow?

Also note how qualified immunity flips the meaning of the statute upside-down. Section 1983 is a law designed to protect citizens and help them secure their rights. It was not designed to protect the “vigorous exercise of official authority” but instead to restrain that authority.

*Refers to the case covered here.

Judge Don Willett, writing for the Fifth Circuit Appeals Court, pointed out the ridiculousness of relying on "clearly established law" to determine whether or not government employees should be held directly accountable for unquestionable violations of citizens' rights.

Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

With few courts willing to draw the line in new cases, there's no precedent to look to when new troubling violations are alleged. The government can get a lawsuit dismissed in the first round of motions if there's no case directly on point in the jurisdiction handling the case. As Judge Willett pointed out, this only encourages novel rights violations, rather than deter future misconduct. To prevail on a QI motion to dismiss, a government defendant need only be the first to violate someone's rights in this manner.

Knowing that's the bar that must be hurdled to survive the initial round of motions in a civil rights lawsuits, future novel violations will likely never be converted into "clearly established law" cited by future litigants. Julian Sanchez's Twitter thread on the subject notes one side effect of three decades of qualified immunity is fewer civil rights lawsuits.

First time around, the right violated won’t be “clearly established,” and the official responsible will have qualified immunity. The second time very similar facts show up in court, though, the first case will have “clearly established” the right violated, eliminating immunity.

But think about how this effects incentives to litigate. If the specific harm you suffered isn’t “clearly established’ in your jurisdiction, you’re incurring the cost and hassle of a lawsuit, but you won’t recover damages. You’ll only allow the NEXT victim to recover.

The arguments for keeping the qualified immunity intact are weak. Holes have been poked in these by multiple lawyers and law profs, but the doctrine lives on, propped up by the parade of litigation that would certainly result if government employees were held directly responsible for their actions.

One of the weakest of the arguments is that the removal of qualified immunity would result in long stream of impoverished cops. As this amicus brief submitted for a QI-centric Supreme Court case points out, government employees are rarely, if ever, held directly accountable for their actions. It's almost always taxpayers paying other taxpayers for rights the government violated.

This concern is empirically unfounded. The widespread availability of indemnification already protects individual officers from ruinous judgments. A recent study shows that governments paid approximately 99.98 percent of the dollars recovered in lawsuits against police officers.

Qualified immunity lives on, and it seems unlikely the Supreme Court will revisit its own failure. That's not to say there's no chance it will happen or efforts like these are wasted. The Supreme Court recently punched a hole in the Third Party Doctrine -- another of its long-time favorites -- so it's conceivable a future ruling may substantially narrow the breadth of qualified immunity's scope. But as long as it remains in place, the public will continue to suffer for the government's sins.

Filed Under: civil liberties, civil rights, courts, ignorance of the law, police, qualified immunity

Cop: Screwdrivers And Wrenches Are Drug Dealer Things; Appeals Court: WTF

from the you-can't-fix-stupid-but-you-can-at-least-deny-it-immunity dept

Some things most of us keep in our vehicles is considered by at least one police officer to be tools of the drug trade. Literal tools. Of the literal drug trade. I guess. The bad news is even more of us keep these items at home. We're drowning in contraband, it appears. Those of us with attached garages should just brace ourselves for early morning no-knock raids.

This decision [PDF] by the Sixth Circuit Appeals Court starts as so many qualified immunity cases do: with a pretextual stop.

On May 22, 2014, Harris, along with her mother, father and older sister, went out for dinner at TGI Friday’s. On the way home, their minivan was stopped by City of Erlanger police officers because of an obstructed license plate. The officers then conducted an investigation of Harris’s mother, who was the driver. Her mother was arrested for obstructing a license plate, driving with no registration plates, driving with a suspended license, and possession of a forged instrument.

The footnote attached to "forged instrument" notes there's nothing on the record showing Brittany Harris' mother was ever actually charged by prosecutors with these alleged crimes. All that's on record is the booking. Brittany, who was seventeen at the time, is the one bringing the suit. That's because as things developed during this stop, she was subjected to an invasive search.

Brittany asked to go to the restroom after she and her family had spent more than an hour being detained by six squad cars full of officers. She was accompanied by Officer Kimberly Klare, who did this before allowing Brittany to enter the restroom.

The parties agree that at this point, Klare secured Harris’s hands behind her back. What happened next is disputed, but, as noted, for purposes of this summary judgment appeal, we must accept Harris’s version of events. She claims that, as part of a pat down, Klare placed her hands under Harris’s brassiere and pinched the girl’s breasts, causing bruising. According to Harris, Klare told her that she searched her the way she did because a previous suspect at that location had “stuffed needles in her bra” and because “[y]ou have that look,” “[y]ou have the look of a junkie whore.” But Klare found no drugs, drug paraphernalia, weapon, or other contraband on Harris.

That's some fine community policing by Klare, who called someone a "junkie whore" but found nothing to corroborate her expert assessment of Harris' character. Now, you may be asking, why was a drug dog brought onto the scene when the only charges had to do with license plates and driver's licenses? Well, that's where it gets absolutely insane.

During the investigation, officers also noticed that Harris’s father had “equipment for his work” in the vehicle, including “tools, like screwdrivers and wrenches,” some of which were “sitting out” and some of which were “in containers.” Based on the presence of these tools in conjunction with the violations listed above, the officers began to suspect that Harris’s mother was engaged in drug activity.

No treats for the dog, though.

They sent for a drug dog, but it found no drugs.

I'm sorry. That's only the mostly-completely insane part of this. Here's the batshit insanity: the lower court granted Officer Klare qualified immunity.

The district court agreed with Klare. It held that the officers had probable cause to stop the minivan because of the obscured license plate and that the presence of Harris’s father’s tools and equipment in the car, in conjunction with her mother’s alleged misfeasance, created a reasonable suspicion of drug activity…

The appeals court says the lower court is oh so very wrong on both counts. It also has zero respect for any officer making these claims. As for the driving offenses "supporting" the drug dealer theory, the appeals court has this to say:

We have serious doubts as to whether the officers reasonably suspected the Harris family of manufacturing or transporting contraband. Klare provides no reason to suppose that Harris’s mother’s alleged traffic violations made it more likely that drug activity was afoot—if anything, one would expect a drug-trafficking family to avoid fastidiously such violations for fear of discovery.

If you don't want extra police attention, you keep your driving stuff in order. That's why police so often claim clean vehicles and drivers with no records are also tools of the drug trade -- because drug dealers don't want to give officers any reason to perform a pretextual stop. This claim goes the other direction, ensuring drivers are damned either way, and turning a nation of non-criminal drivers into erstwhile drug dealers.

As to the presence of tools everyone owns somehow being indicative of drug dealing, the appeals court finds this argument equally ridiculous.

Nor does Klare explain how the possession of worker’s tools, which is not itself “inherently illegal or even suspicious,” could have provided the officers with a reason to suspect drug activity. See United States v. Warfield, 727 F. App’x 182, 188–89 (6th Cir. 2018) (holding that the possession of eight cartons of cigarettes was not suggestive of the possession of untaxed cigarettes). The record contains no reason to believe that screwdrivers and wrenches—or any of the other tools in the vehicle—are particularly indicative of drug manufacture or transportation.

The rest of the opinion deals with the nature of the search performed on Harris. The court finds there's a factual dispute over the timing of the search, which Harris argues came after the drug dog arrived and found no drugs. If Officer Klare was aware of this, she no longer had probable cause to perform a search of Harris before she entered the restroom.

There was also no consent given for the search, further distancing it from Constitutionality. The appeals court notes a number of coercive elements that might have pressured Harris into subjecting herself to a search. The record shows nothing indicating she ever consented, but the presence of six police officers and a drug dog -- along with a need to use the restroom as the traffic stop extended into its second hour -- were coercive enough to eliminate the officer's claim about Harris' supposed consent. (All Harris did -- after being cuffed -- was come towards Officer Klare when she was asked to, at which point the search occurred.)

Officer Klare's qualified immunity -- handed to her by an amazingly helpful lower court -- is stripped. This doesn't mean she'll end up losing the lawsuit, but it does mean she'll have to face a jury trial over her alleged Constitutional violations.

The case in its entirety is a brutal reminder that officers -- if so inclined -- can declare anything kept in a vehicle to be indicative of criminal activity. This just adds tools to a long list that already includes air fresheners, trash, a lack of trash, cigarettes in the ashtray, too much luggage, too little luggage, a departure point or destination where people could conceivably be purchasing/selling drugs, etc. If a cop wants to search a vehicle, they'll find a reason to. And that leaves citizens with the option of living life with violated rights or hiring a lawyer to spend the next several years seeking redress.

Filed Under: 6th circuit, drugs, police, probable cause, searches

Police Officers At A Tactical Disadvantage Bravely Tase 87-Year-Old Woman Into Submission

from the when-u-gain-the-high-ground-just-by-showing-up dept

No police department should ever have to explain why they tased an 87-year-old woman. It's not that the public doesn't deserve an explanation. It's that there is seldom any reason to deploy force against 5'2" 87-year-old. But that's what Chatsworth Police Chief Josh Etheridge had to do after one of his officers tased the woman during a "confrontation" behind the local Boys and Girls Club.

The police chief of a small Georgia town is defending an officer who deployed a stun gun on a "smiling" 87-year-old woman, saying she refused to comply with numerous commands to put down a kitchen knife she was using to cut dandelions.

Perhaps we civilians just don't appreciate the danger presented by a smiling 87-year-old woman -- in this case, Martha al-Bishara, who lived across the street from the Boys and Girls Club. I mean, she was carrying a kitchen knife and "refused" to put it down. If we could just see the recordings…

He said there is police body-camera footage of the incident, but he has yet to release it because charges against al-Bishara are pending.

Oh.

Because we civilians probably can't imagine a situation where we might have to use a stun gun against an octogenarian, here's some helpful statements by the PD to help us visualize how a 5'2" 87-year-old got the drop on responding officers.

"We were able to contain her to the back area. She was in an elevated position above both myself and the other officer that was there on scene. She did have a knife in her right hand."

I understand the only way out of this debacle is going straight through it, but it's astounding the chief is actually trying to present this as a dynamic situation in which officers were at a tactical disadvantage. It was two (2) officers against a 5'2" 87-year-old woman who didn't speak English. It seems they could have regained the high ground by walking at a normal rate of speed around her. And if it looked like she might charge them, they could have walked slightly faster. (And it's your own damn fault you "contained" her on the high ground.)

But we're supposed to be grateful she was only tased. Chief Etheridge twice suggests she could have been shot. First, she might have been "accidentally" shot because an officer might have pulled a gun for god knows what reason…

Etheridge said he realizes that some people might ask why the officer didn't just retreat. But he said had the officer backed up down the sloping terrain, he could have fallen and accidentally shot the woman.

Go ahead and click through to view the gently sloping terrain for yourself. I guess this explanation is plausible. But that doesn't make it any less stupid. And the only plausible part is the "accidental" part. As we know, officers never shoot citizens. Their weapons "discharge" magically and fill citizens with bullet wounds. The only way an officer could "fall" and "accidentally" shoot someone is if the officer already has a gun out and pointing at the person. This is Chief Etheridge admitting he would have escalated to deadly force to "resolve" the situation.

Second, if the elderly woman had changed her grip on her kitchen knife in any way during the incident, she'd probably be dead right now.

"Lord help us if she had tried to stop the officer and held the knife in an aggressive manner, and then deadly force would have been used."

There are many problems with this statement, including the fact that "aggressive manner" is in the eye of the gun-wielding, badge-wearing beholder, but here's just one of them: for many people, knives are tools, not weapons. Its police officers who insist every tool is a weapon that keep situations like these from being de-escalated.

When an 87-year-old walks down a hill towards officers carrying a kitchen knife, she's not taking advantage of the high ground to overpower officers. She just wants to know why cops are yelling and pointing weapons at her. But these cops didn't want to know what she was doing. They just wanted her to stop walking around with a knife. So they tased her. And then they charged her. Here's one final detail from the story which indicates how little these officers actually care about the people they serve.

The grandmother was arrested on suspicion of misdemeanor criminal trespass and obstruction of an officer and held at the police station for about three hours, Douhne said. Police refused to allow his mother and sister to interpret for al-Bishara while she was being booked and having her mugshot taken.

At the end of the day, I guess we're supposed to be grateful officers showed up, took control of the situation, and got this 87-year-old miscreant off the street, if only for a few hours. I'm sure we'll see these same defensive statements again in the eventual civil rights lawsuit. When that happens, the cops will have to convince an actual court the force deployment wasn't excessive. Unfortunately for this woman, that court is far more easily persuaded than the court of public opinion.

Filed Under: martha al-bishara, police, police brutality, tasers

Couple Get Back $10,000 Seized By State Trooper After Local Media Starts Asking Questions

from the positive-power-of-shame dept

Here's one way to avoid the lengthy, often-futile process of recovering your assets after they've been seized by the government via civil asset forfeiture. The Charleston Gazette-Mail reports law enforcement suddenly decided to return $10,000 to the couple it seized it from, but only after being asked to comment on the forfeiture. (h/t C.J. Ciaramella)

After the Gazette-Mail reached out to the state police Monday with inquiries about the seizure, and after weeks of [Tonya] Smith calling police, the Jefferson County prosecuting attorney and local politicians, Smith said an officer returned her and [Dimitrios] Patlias’ possessions in full Thursday evening.

The couple was traveling from New Jersey to a casino in West Virginia. A West Virginia state trooper rolled the dice on the out-of-state plates and pulled over their car for "failure to drive within [their] lane." From there, the stop became exploratory with the trooper accusing them of smuggling drugs, smuggling cigarettes, or -- following a search of the vehicle -- gift card fraud.

Smith and Patlias had $10,000 in cash between both of them. In addition, they had a number of gift cards, loyalty cards, and cash cards -- all legally obtained -- which the trooper used to shore up the last accusation on the list. Despite being possible fraudsters/smugglers, the trooper handed the pair a warning for the lane violation and let them go on their way. So, they returned to New Jersey with $2 in their pockets.

This set the forfeiture in motion. The couple had 30 days to state a claim to their belongings, otherwise the proceeds would be split between the state police and the prosecutor. The trooper had every incentive to seize everything in the car (which included a cellphone): 90% of proceeds go to the agency that performed the seizure.

As the article points out, this could have been deterred, if not avoided completely. But, unfortunately, a bill requiring convictions for forfeitures died in the state legislature. Despite the incentive-skewing, asset forfeiture still has its advocates who make horrible arguments like this on its behalf:

Those in support of the practice say the ability of law enforcement officers to use forfeiture laws can hamstring drug dealing networks by leaning on their finances, which can be more effective than criminal charges. They also point out that the proceeds can help police buy much-needed equipment.

First, most forfeitures performed in the US involve low dollar amounts, often taken from someone never charged with drug-related crimes. Second, what kind of idiot justifies the seizure of property from people who've never been convicted of a crime by stating that it helps the government buy new stuff for itself? The answer is: only the sort of idiot who can't see how it incentivizes exactly the sort of thing that happened here: a state trooper pulling over an out-of-state driver for a roadside fishing expedition. Nothing about the process deters police officers from shaking down anyone and everyone for valuables so long as they can imagine a criminal origin for the property of citizens.

This worked out well for this couple, who now won't have to spend more than what was seized to get their property returned. Fighting forfeiture is expensive and the outcome is far from guaranteed, even if there's no evidence the seized property was involved in or the byproduct of criminal activity. Officers looking at a 90% payout down the road know this. That's why asset forfeiture -- minus criminal charges -- is the abusive debacle it is today. Nothing about it rewards honest law enforcement work.

Filed Under: asset forfeiture, civil asset forfeiture, dimitrios patlias, jefferson county, media attention, police, west virginia

Officer Who Killed Unarmed Man Now Teaching Officers How To Go About The Difficult Business Of Being Alive

from the POLICE-STATE-UNIVERSITY dept

If a cop shoots an unarmed citizen, nothing much happens to the cop. Maybe some paid vacation. Maybe a desk stint. Maybe an internal investigation will deliver a "no policy violated" determination months down the road. Maybe a DA will make a disinterested presentation to an uninterested grand jury and shrug about how no charges will be forthcoming. Sometimes cops quit rather than face investigations. Sometimes cops quit rather than get fired. Every so often, a cop does time, but it's such a rarity it's viewed as breathtaking turn of events.

What no one really expects from this predictable life cycle is someone upcycling their homicide into an instructional career. That's what former Tulsa police officer Betty Jo Shelby is doing. Two years ago, Shelby shot an unarmed Terence Crutcher during a traffic stop, rationalizing the shooting by claiming he was exhibiting "zombie-like behavior." Can't have zombies without a corpse, so Shelby shot Crutcher, killing him. Another officer on the scene only felt the need to deploy a taser, making Shelby's stated fear much more subjective than objective. The other three officers did not open fire or deploy their tasers.

Unlike a lot of cops, Shelby was actually tried for first-degree manslaughter. She was acquitted before quitting the Tulsa PD rather than take a desk job. She has since returned to law enforcement as a Sheriff's deputy in Rogers County (OK) and is apparently focusing some energy on an extremely dubious sideline.

Two years after she fatally shot an unarmed black man in Tulsa, Betty Jo Shelby, now a police officer in an adjacent county, is teaching a course on how to “survive such events” — legally, emotionally and physically. The course, as she explained it to a local ABC affiliate, equips officers to withstand the effect — named for the Missouri city convulsed by the 2014 shooting of a black teenager — “when a police officer is victimized by anti-police groups and tried in the court of public opinion."

Ah, I see some of the most powerful government employees in the nation will be receiving instruction on how to be better victims. I guess being more alive than the bullet-filled decedent just doesn't cut it anymore. And let's not forget the all-powerful "court of public opinion," which is unable to convict officers for manslaughter (or other criminal charges), much less ensure officers are held accountable for questionable force deployments.

The value of the class is likely equal to its entry fee:

According to a state website, the training, which is certified by the Oklahoma Council on Law Enforcement Education and Training, or CLEET, “will describe some of the challenges in dealing with the aftermath of a critical incident such as Officer Involved Shooting. Participants will be exposed to many of the legal, financial, physical, and emotional challenges which may result from a critical incident.” The free course lasts four hours, including two “Mental Health Hours.”

Some of this information may be useful, but it's probably best imparted by lawyers, therapists, financial advisors, and other professionals with a bit more distance between them and the killing of an unarmed man. As if the whole thing weren't tone deaf enough, Deputy Shelby is bringing her class to Tulsa -- the city that employed her when she killed Terence Crutcher.

Shelby is being met with protests from locals who aren't interested in having a killer cop pass on her "wisdom" to her former coworkers. They have a point. Shelby shouldn't really be instructing other officers in anything, much less doing so in the same city where her training apparently failed her. While it was determined Crutcher was under the influence when he was shot (possibly explaining the "zombie-like" behavior), he was moving away from Shelby at a zombie-like pace only deemed threatening enough for a taser deployment by another officer at the scene.

After an acquittal and new job, Shelby is taking her cross from PD to PD to tell officers how they, too, can go about the difficult job of living after taking that option away from others. That anyone's willing to host this is an indictment of those agencies. That the one that put her on desk duty post-shooting would do so -- knowing it would have this effect on locals and the survivors of Terence Crutcher -- is simply appalling.

Filed Under: betty jo shelby, police, police shootings, terence crutcher