Police Union Offers Citizens $500 To Get Hurt, Killed, Or Sued As Amateur Cops

from the new-level-of-audacious-stupidity dept

Police unions have never been the sharpest tool in the law enforcement PR shed. Over the years, they've claimed officers should be subjected to less scrutiny than Walmart employees, flashbang-burned toddlers are the price society pays for "safe" neighborhoods, and anything remotely suggesting greater accountability or transparency will probably result in dead cops.

Hey, I get it. Zealous advocacy and all that. Unions need to show the rank-and-file their dues are being put to use. And it's the best use possible: self-preservation and consistent maintenance of the status quo. Unions will always strongly advocate for their officers, even when advocating positions officers don't agree with. To sum up: ridiculous. And here we are with yet another ridiculous police union action.

Recently, a video went viral showing an officer begging for help from a security guard while a number of people stood around filming his losing battle with an arrestee. Maybe the problem was callous citizens and their anti-cop attitudes. Maybe the problem is the reduction of real life to social media filler. Or maybe it was just the bystander effect: the more bystanders there are, the more everyone assumes someone else will step up and help out.

The correct response from New York City's Sergeants Benevolent Association would have been nothing more than some grousing about civilians and their nipple-suckling. Instead, the SBA chose to get involved in the worst possible way.

A police union wants to turn random bystanders into vigilantes-for-hire — by offering $500 to any civilian who helps cops wrestle down suspects who are resisting arrest.

The cash proposal from the Sergeants Benevolent Association is aimed at getting those who normally would make videos of cops taking people into custody to put down their phones and actually get involved.

“When you see an officer struggling, rather than take your cellphone out, assist the officer and you’ll receive an award of $500,” SBA president Ed Mullins told The Post.

Oh my. $500 is barely going to cover an hour of bystanders' attorney's time. Good lord, what an awful idea.

If Joe Self-Deputization decides to pitch in and help a professional suspect-subduer subdue a suspect, he could get injured or killed. Who's legally responsible in this wrongful death suit? The union? The PD? The city? The suspect? The officer who needed help? Someone's going to get sued and all the union can offer is a conditional $500.

Let's up the ante: instead of the civilian being injured during the helpfulness, it's the cop. Can the cop sue the person incentivized to assist the officer by the officer's union? Does the officer sue the union for pitching such a stupid idea?

What if the amateur officer has a gun and handles it as responsibly and accurately as cops do? Now he's got a dead cop on his hands and zero chance of obtaining $500 since the suspect has probably used this unexpected opportunity to flee the scene. Is this person going to jail? A lawsuit is inevitable. No one knows who's suing who at this point, but what happens to the erstwhile officer while the litigation logistics are sorted out? Assaulting an officer charges and all the sentence enhancements that brings?

What if the suspect is killed or injured by the non-officer? Can he sue or press charges?

These are all questions no one's answering. And they need to be answered. You can't just encourage a bunch of non-professionals to pitch in with crime fighting without deciding who's indemnifying who when everything goes sideways.

The only bright spot in all of this stupidity is only bright if you're as cynical as I am. It appears one New York legislator is planning to introduce a bill that will make it much easier for those involved to sue the government post-clusterfuck.

State Sen. Martin Golden (R-Brooklyn), a retired cop, will introduce a new good Samaritan law to shield civilians from liability if they help cops. The bill is still being drafted, his office said.

“The current good Samaritan law does not protect citizens who assist first responders. It is my intent to introduce legislation in the Senate that corrects this shortcoming,” Golden said.

Cool. This almost makes it official policy. This might codify the state's liability when suspects, cops, or citizens are injured and killed during assisted altercations. It shields citizens from liability, which pushes it back on the government. Officers have a variety of immunities already available to them, but this law would implicitly condone assistance efforts by citizens, making it a policy issue when lawsuits start rolling in. If an injury/death stems from a policy or law, it's much harder for government entities to dodge liability.

My guess is there will be few takers. Attempting to help a cop out with an arrest is an activity with very few positive outcomes. People jumping into these situations greatly increase their risk of being injured or killed, and they sure as hell do not possess the training needed to assess the danger before getting involved. $500 doesn't pay for much medical care, much less much lawyering.

If the police union would like more citizens to support their officers, perhaps it should spend more time considering how much its own actions and statements have harmed community relationships with law enforcement. The fact that the union feels it needs to pay citizens to help cops is an indictment of the system unions helped create -- one that has elevated officers from their position as public servants to one of warlords presiding over disputed territories.

If fewer people are interested in coming to the aid of cops, it's not because there's no financial incentive. Only an organization completely out of touch with the people its officers serve would arrive at this conclusion. And because it came to this conclusion, the union has again illustrated why it shouldn't be allowed to represent the officers it's supposed to be serving. Officers have been dumping dues into a PR disaster for years. Maybe it's time they made their money do a little talking of its own.

Filed Under: arrests, assistance, pay offs, police, police unions

Court Says Cop Gets No Immunity For Pulling A Man Over For Flipping Him Off

from the raises-own-middle-finger-in-footnote dept

Expressing your displeasure with law enforcement via hand gestures is not an arrestable offense. It can't even justify a traffic stop. Officers are learning this, one federal case at a time.

Tim Geigner covered a case five years ago involving a cop, a veteran, and the veteran's upraised middle finger. It was expressive conduct the cop manning the speed trap found worthy of a traffic stop. A federal court disagreed, finding the officer's stated reason for conducting a traffic stop laughable.

Perhaps there is a police officer somewhere who would interpret an automobile passenger's giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer.

Yes, the officer actually claimed the bird is a universal distress signal and initiated the stop only because he believed Swartz was trying to flag down help for his wife, who was driving the vehicle.

Let the deja vu commence. (via The Newspaper)

Plaintiff and his sister, Beth Richardson, left the courthouse in her car. (Brian Clark Aff. ¶ 6, May 30, 2018 [ECF No. 48-1].) As they were leaving, Plaintiff saw several deputies “rush” to their patrol cars. (Id.) While riding in the car with Richardson a short time later, Coleman effectuated a traffic stop on her car. According to Coleman, he saw Plaintiff make a “gesture” that “concerned” him, so he pulled the car over. (Robert Coleman Decl. ¶ 7, May 14, 2018 [ECF No. 40-3].) Plaintiff categorically denies that he made any obscene, inappropriate, or concerning gesture to Coleman or anyone else. (Clark Decl. ¶¶ 12–13.)

According to Plaintiff, after stopping the vehicle, Coleman approached the passenger side of the car; no officer approached the driver. (Id. ¶¶ 14, 17.) Coleman asked for Plaintiff’s identification, which Plaintiff provided, and Coleman asked Plaintiff why he “had ‘gigged’ him (or why [Clark] had given [Coleman] the finger).” (Id. ¶ 15.) Coleman returned to his car and, for twenty minutes, Clark and Richardson were detained. (Id. ¶ 19.)

The federal judge finds Coleman's defense of his actions similarly comical. The decision [PDF] contains this incisive footnote:

Although I am more or less constrained to reject his version of events for the purposes of this Motion, Coleman asserts, in conclusory fashion, that the stop of Clark was “lawful,” and that, in his experience, “people do not wave inappropriate or obscene gestures to a law enforcement officer unless something is wrong.” (Coleman Decl. ¶ 7.) Tellingly, he does not allege that he ever asked Clark if he was safe or that he inquired anything of the driver, nor does he assert any other interaction throughout his entire career where an “obscene” gesture was displayed towards him in an effort to indicate duress or request police assistance.

So, it's a case exactly on point, even if the court doesn't have to reference the Swartz case to deny Coleman's requested immunity.

If Plaintiff did not “gig” Coleman, then there is no question that the right to be free from a traffic stop without probable cause was clearly established at the time Coleman stopped Plaintiff and his sister. There is no dispute that the authority to detain citizens, conferred on deputy sheriffs, does not include the power to harass and intimidate those with whom one disagrees. See Trulock v. Freeh, 275 F.3d 391, 405 n.10 (4th Cir. 2001) (noting that “police officers . . . may not exercise their authority for personal motives, particularly in response to real or perceived slights to their dignity”). Under that factual scenario, Coleman is not entitled to qualified immunity. But even if Plaintiff did “gig” Coleman, I believe the law clearly establishes that a traffic stop under those circumstances would not comport with the First or Fourth Amendments.

On top of that, there's another case directly on point that can be used to hold Coleman liable for his retaliatory traffic stop.

It is rare to have the exact factual scenario an officer faced to have been clearly ruled on before, but Duran has remarkably similar facts and a defendant who went further than simply “gigging” a police officer. Although not a case from this circuit, Duran was decided nearly twenty years ago and accurately states the law.

From Duran:

The Court concluded that, “[i]narticulate and crude as Duran’s conduct may have been, it represented an expression of disapproval toward a police officer with whom he had just had a run-on. As such, it fell squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech—such as stopping or hassling the speaker—is categorically prohibited by the Constitution.” [emphasis in the original]

The plaintiff, Brian Clark, maintained he didn't flip off the officer, so that eliminates his First Amendment claim. If Clark did not engage in one-fingered expressive conduct (as he denies doing), there's no First Amendment activity prompting retaliation. However, the Fourth Amendment remains alive, if currently covered by the clumsy, authoritarian footprints of Lt. Coleman, who is now completely stripped of his immunity shield.

Cops see a lot of animosity from citizens. But it's just part of the job. It may be unpleasant but it's not an arrestable offense, much less reasonable suspicion for a traffic stop. With rare exceptions, courts have sided with citizens and their expressive conduct. And they should continue to do so, because that's what separates the US from the world's authoritarian governments. This is also from the Duran decision, which is quoted directly in this case:

The freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic by which we distinguish ourselves from a police state. Thus, while police, no less than anyone else, may resent having obscene words or gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.

If a citizen lets the bird fly, officers should either let it ride or immediately seek legal representation. The courts say expressions of displeasure towards our government are the reason the First Amendment exists. Any cop who thinks an obscene gesture justifies a traffic stop is in the wrong business. Or the wrong country.

Filed Under: immunity, middle finger, police, traffic stop

Two-Person Police Department's Million Dollar Military Gear Grab Ends In Arrest Of Police Chief

from the Thetford-Township:-where-accountability-goes-to-die dept

A tiny unincorporated town in Michigan continues to draw national heat, thanks to the police department's apparent abuse of the Defense Department's 1033 program. This program allows law enforcement agencies to obtain military surplus -- which can include armored vehicles, aircraft, and weapons -- for next to nothing through its Law Enforcement Support Office (LESO).

This program has contributed greatly to the militarization of US police forces, allowing officers to dress up like soldiers while waging the War at Home on the constituents they supposedly serve. What happened in Thetford, however, wasn't a sudden ramping up of military gear/tactics. Instead, the Thetford PD -- which boasts two officers -- simply took the 1033 program for an extended ride. Chief Robert Kenny managed to obtain 950 items through the 1033 program, valued at over $1.1 million... at least according to his own, very conservative estimate.

Obviously, a two-person police force had no use for much of this equipment, much less the room to store it. So, vehicles and other items ended up on land owned by residents. After the town started asking questions, it quickly became clear the chief didn't know where all this acquired property was actually located.

Things went from bad to worse to farcical in a hurry. Town residents began dumping PD equipment previously stored on their property in the city hall parking lots. Town meetings were called. Accusations (and the occasional chair) were hurled and recalls were threatened. A nearby sheriff's office was called in to investigate and the Thetford PD's building was raided for 1033 records. Along the way, an envelope stuffed with cash was discovered among the PD's many, many stashes of 1033 goods. Chief Kenny said the money it contained came from the sale of equipment for scrap metal, but otherwise couldn't explain why it was located in a pile of stuff, rather than in a bank account.

Explanations will be forthcoming. The Genessee County Sheriff's Department seems to have its investigation of the Thetford PD almost wrapped up.

Thetford Township Police Chief Robert Kenny was arrested this week in connection with an investigation into surplus military equipment his department received.

Genesee County Sheriff Robert Pickell scheduled a press conference for Thursday morning to discuss "the arrest and charges" Kenny is facing.

Court records show Kenny is charged with embezzlement and obstruction of justice dating back to 2012.

Here's a link to the court records [PDF]. The embezzlement charge apparently stems from Kenny selling 1033 goods for scrap and depositing the payments into his personal account. The obstruction of justice charge would be everything Kenny did to cover up the embezzlement. Handily, the origin of both charges is explained in a single anecdote.

[Sheriff] Pickell said Kenny took several heavy-duty metal storage containers obtained through the support program to a Vienna Township scrapyard in 2012 and 2013.

Kenny allegedly received more than $5,000 in three different checks and deposited the money in his own account or took it in cash, Pickell said.

"Those three checks should have been placed in the Thetford Township banking account, not in Chief Kenny's personal account," Pickell said.

Kenny then gathered other Thetford Township officers and a journalist to go search a storage container at Dodge and Saginaw roads.

While moving the items, Kenny found an envelope containing cash with "LESO" written on it inside a container holding sleeping bags, Pickell said.

"Chief Kenny assembled what I believe to be unsuspecting witnesses to vindicate himself," Pickell said.

There was almost $4,800 in cash in the envelope that Kenny found, according to Pickell.

Now that the investigation has concluded, there's a far more accurate total for Chief Kenny's 1033 haul. Keep in mind, the Defense Department's LESO continued to approve requests for this 2-person police department, so it bears some responsibility for this debacle.

[Sheriff] Pickell said Kenny received almost 4,000 items that had a retail value of more than $2.7 million since 2012. Items included parachutes, mine-detecting devices, excavators, hydroseeders and other equipment.

The charges are worth about a half-decade each, but it's unlikely he'll serve more than a tenth of that if convicted. But it does put an end to his quasi-spending spree, which hoovered up goods taxpayers paid for and scattered them across the township when not being converted to scrap metal and Chief Kenny's walking around money.

Filed Under: 1033, defense department, genesee county, michigan, police, robert kenny, robert pickell, thetford

Research Paper Shows Militarized SWAT Teams Don't Make Cops -- Or The Public -- Any Safer

from the treating-citizens-like-enemy-combatants-is-never-a-good-idea dept

A study has been released confirming what many have suspected: militarization of law enforcement doesn't make communities safer, has zero effect on officer safety, and is rarely deployed as advertised when agencies make pitches for the acquisition of military gear.

The most frequent recipient of military tools and training are SWAT teams. Professor Jonathan Mummolo's research -- published by the National Academy of Sciences -- gained unprecedented access to SWAT deployment numbers, thanks to a public records request and a Maryland state law requiring documentation of every SWAT raid performed. (That law was allowed to expire by legislators who apparently felt it provided too much transparency and accountability.)

With these numbers, Mummolo was able to compare SWAT deployments to other stats, as well as see just how often SWAT teams were deployed to handle dangerous situations like robberies, shootings, hostage-taking, etc. What he discovered was, sadly, unsurprising. Police officials talk about the necessity of SWAT teams and military gear using references to barricaded suspects, terrorist attacks, active shooters…. pretty much anything but what they actually use them for. From the paper [PDF]:

[R]oughly 90% of SWAT deployments in that state over 5 fiscal years were conducted to serve search warrants. Previous work has shown that the use of SWAT teams to serve warrants, a practice which escalated as a result of the war on drugs, is an extremely disruptive event in the lives of citizens and often involves percussive grenades, battering rams, substantial property damage, and in rare cases deadly altercations stemming from citizens’ mistaken belief that they are experiencing a home invasion. [...] less than 5% of deployments involved a “barricade” scenario, which typically involves an armed suspect refusing to surrender to police. Violence to people and animals is rare, and gun shots are fired 1.2% of the time—roughly 100 deployments during this period. While the data suggest that indiscriminate violence is less common than some anecdotal reports suggest, they also show that the vast majority of SWAT deployments occur in connection with non-emergency scenarios, predominately to serve search warrants.

Similarly unsurprising is data showing SWAT teams are deployed far more often in areas with a higher concentration of African American residents. Mummolo's research shows a 10% increase in African American population resulted in a 10.5% increase in SWAT deployments.

All the gear obtained by police agencies to make officers safer doesn't seem to have an effect on officer safety. The data shows negligible effects on officer injuries or deaths. Despite being touted as essential tools to combat a supposed increase in criminal firepower, SWAT teams and their military gear spend more time serving warrants than facing dangerous situations. Maryland SWAT stats -- compared against other data reported by law enforcement agencies -- results in this conclusion:

[T]here is no evidence that acquiring a SWAT team lowers crime or promotes officer safety.

Surveys conducted by Mummolo show SWAT teams -- and police militarization in general -- have a negative effect on public perception. SWAT teams make the places they're frequently deployed seem less safe, even if crime stats don't back that up. Dressing up in military gear increases distrust of the law enforcement agency -- something especially pronounced in African American respondents.

Mummolo's conclusion, based on stats supplied by law enforcement agencies, is devastating. And it's likely to be ignored by every law enforcement agency in Maryland.

Given the concentration of deployments in communities of color, where trust in law enforcement and government at large is already depressed, the routine use of militarized police tactics by local agencies threatens to increase the historic tensions between marginalized groups and the state with no detectable public safety benefit. While SWAT teams arguably remain a necessary tool for violent emergency situations, restricting their use to those rare events may improve perceptions of police with little or no safety loss.

SWAT teams arose out of a need for elite response units to send to especially dangerous situations. It's quickly devolved into nothing more than a sideshow for warrant service -- an excuse to treat citizens like enemy combatants while needlessly escalating situations until they can justify the absurdly overblown tactics and weaponry being deployed.

Filed Under: militarized police, police, public safety, safety, swat teams, warrior cop

Researcher Says Police Body Cameras Are An Insecure Mess

from the internet-of-cop-things dept

The promise of transparency and accountability police body cameras represent hasn't materialized. Far too often, camera footage goes missing or is withheld from the public for extended periods of time.

So far, body cameras have proven most useful to prosecutors. With captured footage being evidence in criminal cases, it's imperative that footage is as secure as any other form of evidence. Unfortunately, security appears to be the last thing on body cam manufacturers' minds.

Josh Mitchell, a consultant at the security firm Nuix, analyzed five body camera models from five different companies: Vievu, Patrol Eyes, Fire Cam, Digital Ally, and CeeSc. The companies all market their devices to law enforcement groups around the US. Mitchell's presentation does not include market leader Axon—although the company did acquire Vievu in May.

In all but the Digital Ally device, the vulnerabilities would allow an attacker to download footage off a camera, edit things out or potentially make more intricate modifications, and then re-upload it, leaving no indication of the change. Or an attacker could simply delete footage they don't want law enforcement to have.

This is already bad news. We've already seen some evidence that officers have altered/destroyed footage. This attack vector allows almost anyone to do the same thing, all without leaving a trace of intrusion. But the flaws run deeper than this. According to Mitchell's research, some cameras can have their signals intercepted, allowing criminals to locate law enforcement officers or simply eavesdrop on recordings as they occur. It's not just a matter of criminals eluding cops. Hijacking signals obviously has a serious impact on officer safety.

And this is only the problem created by the cameras themselves. Every camera has to interact with another computer system to upload footage. In many cases, they're linked to cloud services as well, which introduce further vulnerabilities. Attackers could use body cams to deliver malicious payloads to law enforcement computer systems or the cloud services used to store recordings.

But underneath everything else runs this crucial part of the justice process: footage is evidence and evidence must be kept intact. Cameras and camera services simply aren't doing enough to prevent evidence tampering. The chain of evidence is relied on to ensure its integrity, but until these vulnerabilities are removed, body cam footage may as well be hearsay.

The bodycams don't have a cryptographic mechanism to confirm the validity of the video files they record either. As a result, when the devices sync with a cloud server or station PC, there's no way to guarantee that the footage coming off the camera is intact. "I haven’t seen a single video file that’s digitally signed," Mitchell says.

The good news is companies were alerted before Mitchell went public with his Defcon presentation. Most are implementing fixes, although a couple of smaller manufacturers refused to comment on the issues. The bad news is these fixes shouldn't have been necessary. The cameras and the services they rely on were put into service without many of these considerations being taken seriously. It appears they're no more secure than an off-the-shelf $30 webcam, even though they're only being sold to law enforcement agencies.

Filed Under: accountability, body cameras, police, security, transparency

New Bill Aims To Pierce The Darkness Surrounding California Police Officers' Disciplinary Records

from the long-awaited-correction-to-the-[permanent]-record dept

Cops in California have literally unbelievable protections. To ensure the "privacy" of government employees sworn to serve the public, the Cali legislature has kowtowed to state police unions to make disciplinary records all but impossible to obtain… by anyone.

This has led to the expected results. Professional liars in cop uniforms offer unimpeached testimony filled with more lies as defense lawyers stand helplessly by, screwed out of offering effective counsel by state law. The law is so restrictive prosecutors are often unable to obtain these files. In the unlikely event a cop is being prosecuted, past misdeeds are hidden under a heavy layer of legislated opacity, hindering effectiveness on the other side.

Sure, if you're the victim of police violence, your past is an open book. The cops will dump everything they have on you, from the shoplifting citation two decades ago to every charge ever brought (but ultimately dropped or dismissed) against you in your lifetime to smear your reputation and burnish their own. But if the court would be better served knowing the witness on the stand is an inveterate liar with a history of misconduct, justice will not only go blind but underserved under state law.

This bill aims to change that.

There is currently a bill before the California Legislature that would ease the burden for the prosecutors and the public to know whether the officers in their communities are trustworthy. SB1421 would require police departments to release information about, inter alia, sustained findings of dishonesty in the course of criminal cases and other instances of police misconduct. This bill would also require police departments to release information about serious uses of force, including officer-involved shootings, to increase transparency.

As the article notes, cops -- especially the good ones -- should welcome this move towards transparency.

[C]urrent California law protects the worst officers by hiding their identities from the public and makes them indistinguishable from the bulk of the officers who do their jobs faithfully in accordance with the Constitution.

But they won't. Or, at the very least, their support will be overridden by all the other cops: the mediocre, the bad, the repugnant, and the morally and criminally corrupt. These are officers and former officers currently holding prominent positions in the state's unions, and police unions are universally opposed to transparency, accountability, or minor policy changes that might make policing better.

This bill could change things but it faces the same opposition that managed to talk the legislature into turning police officers into an extremely protected class. It's a welcome effort, but has little chance of survival. Maybe the tide has turned. Maybe this time police unions will be told to stop standing in the way of rebuilding California communities' trust in the officers and agencies policing their neighborhoods.

Filed Under: california, disciplinary records, police, transparency

Appeals Court Says Law Criminalizing Threats To Sue Or Complain About Police Officers Is Unconstitutional

from the real-concern-is-these-gov't-employees-thought-it-was-ok-to-do-this dept

A few months ago, we wrote about (YET ANOTHER) terrible law Louisiana has on the books. Like its other terrible laws, this one is abused by law enforcement. The law itself -- which forbids the "intimidation" of public officials -- has already been ruled unconstitutional by a federal judge.

This law is wielded by officers and prosecutors to ring people up for "intimidating" cops by doing things like threatening to sue or file complaints. The wording lends itself to this. It criminalizes anything that might "influence" a public official's "conduct." No doubt threats of lawsuits or complaints have some effect on officers and how they behave and react. The most noticeable effect isn't on the public officials. It's the addition of a charge specifically related to what a citizen says to a law enforcement officer if they're unhappy with the way they're being treated.

Travis Seals was the recipient of one of these bogus charges as the result of him informing an officer he was going to file "lawful complaints" during his arrest for unknown charges. (The opinion only says "conduct not specifically reflected in the record.") He verbally objected to the arrest, which apparently led to the application of pepper spray and Seals' announcement of the pending filing of complaints.

The lower court said the law was unconstitutional. Even though Seals was never officially charged by the DA, the DA still chose to fight for the bad law in court. And again, it's the state appealing the lower court's ruling. The state tried to get the case tossed for lack of standing, saying it had promised not to use that law against Seals in the future. The court disagrees, using a couple of footnotes (p. 5) to explain why this promise isn't really worth the PDF it's printed on before ruling on the law itself. It also points out the state has brought this charge in circumstances like these against 150 people, so it's not as though it's restraining itself for abusing a bad, broadly-written law.

And it is incredibly broad, as the Fifth Circuit Appeals Court points out in its opinion [PDF]. (h/t Volokh Conspiracy)

The statute criminalizes “public intimidation,” defined as “the use of violence force, or threats upon [a specified list of persons, including any public officer or public employee] with the intent to influence his conduct in relation to his position, employment, or duty.” (Emphasis added.) On its face, the statute is extremely broad. The definition of “threat” generally encompasses any “statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done.” That definition easily covers threats to call your lawyer if the police unlawfully search your house or to complain to a DMV manager if your paperwork is processed wrongly.

The appeals court notes that, even if it accepts the conclusion of state court rulings, which create a requirement that such "threats" or "intimidation" produce a "corrupting effect" (bribery is one example), that still doesn't make the law Constitutional. (Also: state law rulings aren't considered precedent by federal appeals courts.)

Accordingly, we assume, but only for purposes of this appeal, that Section 14:122 requires a corrupt intent, defined as the intent to obtain something that the speaker is not entitled to as a matter of right.

Yet we can narrow Section 14:122 no further. According to the state, we should construe the statute to apply only to true threats, i.e. “a serious expression of an intent to commit an act of unlawful violence” toward specific persons. There are several reasons why we cannot do so. First, the definition of “threat” is broader than true threats: any “statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done.” Second, the reporter’s comments to Section 14:122 provide that the statute “should include threats of harm or injury to the character of the person threatened as well as actual or threatened physical violence.” Thus, the section is not “readily susceptible” to such a limiting construction.

The third reason is the biggest -- and it's supplied by Louisiana's government itself.

As plaintiffs note, the Louisiana Court of Appeals has upheld the conviction of a defendant who violated Section 14:122 by threatening “to sue” an officer and “get [his] job” if the officer arrested him. See State v. Mouton, 129 So. 3d 49, 54, 59 (La. App. 3d Cir. 2013). Plainly, such a threat suggests no violence—indeed, the threat appears to be a plan to take perfectly lawful actions. Accordingly, we cannot construe Section 14:122 to apply only to true threats of violence.

The law is so broadly written it criminalizes protected speech.

[T]he statute reaches both true threats—such as “don’t arrest me or I’ll hit you”—and threats to take wholly lawful actions—such as “don’t arrest me or I’ll sue you.” In both those examples, the speaker may be legally subject to arrest and is trying to influence a police officer in the course of his duties.

The court points out it's not impossible to craft a law targeting speech against public officials. Content-based restrictions can be Constitutional, but they have to be extremely narrowly-crafted. This law isn't, and its attendant abuse shows just how broadly written it is. When even stating you're going to run for office against a government official if they pass legislation you don't like (an example used in the ruling) can be construed as criminal under the law, there's zero chance it can survive a Constitutional challenge.

Section 14:122 could encompass an innocuous threat to complain to a DMV manager for slow service or a serious threat to organize lawsuits and demonstrations unless the police lower their weapons. And each kind of threat is constitutionally protected…. Section 14:122 undermines that freedom and thus is unconstitutional.

The Appeals Court hammers this point home twice in the same ruling.

A fortiori, Section 14:122 is not a time, place, and manner restriction. And not only does it encompass unprotected content, it reaches far beyond those constitutional limitations to target threats to complain to a school principal if one gets a bad grade, threats to run against an incumbent unless he votes your way on a bill, or threats to call the media if the police point a gun at you. Those kinds of threats are part of the core First Amendment rights “by which we distinguish [our] free nation from a police state.” Thus, insofar as it criminalizes “threats,” Section 14:122 is unconstitutionally overbroad.

The law may have to be rewritten. But for right now it at least can't be used the way it was in this case or several others involving Louisiana law enforcement.

Filed Under: 5th circuit, complaints, free speech, louisiana, police, travis seals

Cops Go To Wrong House, Kill Innocent Man, Receive A Free Pass From Local Grand Jury

from the so-much-for-the-vaunted-prosecutorial-railroad dept

A grand jury will indict a ham sandwich.

The corollary, of course, is "if that's what the prosecutor wants." And prosecutors rarely want their ham sandwiches indicted.

An unarmed man shot in the stomach by Officer Sarah Stumler of the Louisville Metro Police recently discovered the corollaries of this truism still hold, even if the city is giving the victim $1.8 million in taxpayer cash to settle his lawsuit.

There's another lawsuit underway over the killing of Ismael Lopez by a Mississippi police officer. The Southaven Police Department obtained a warrant but went to the wrong address, shot at Lopez's dogs, and apparently shot him after encountering him carrying a gun. The link between these is the failure to process the ham.

The grand jury declined to indict the officers who shot and killed a man when they served a warrant at the wrong house.

Ismael Lopez was shot and killed by police while he stood inside the front door of his Southaven home in July 2017.

District Attorney John Champion said he took the case to a grand jury in an effort to indict the officers on homicide charges. Champion failed to get the grand jury to return an indictment.

"The grand jury was given all of the evidence and they decided not to indict," Champion said. "From my perspective, the case is closed at this point."

The jury has spoken, I guess. When prosecutors want to obtain an indictment, they almost always get it. If they don't, it's an anomaly. The prosecutor controls the indictment process, so it's as easy to steer jurors away from an indictment as it is towards one. The process isn't adversarial, so any failure to obtain an indictment is… um… an indictment of the prosecutor's mindset.

This alone would be questionable if that were the only thing. But it isn't. The PD has never identified the officer who killed Lopez after entering a house they had no business being in. The family's lawyer apparently knows who it is, but this was acquired through a leak, not the PD itself.

And there's so much more that doesn't add up. Radley Balko's post does a great job bullet-pointing all the holes in the police narrative. Here are just a few of them:

The police claim Lopez was killed because he pointed his gun at them, even after they repeatedly announced themselves. Yet only one of the officers fired his gun at Lopez. If Lopez did indeed present a deadly threat, why didn’t the other officers fire?

According to the autopsy report, Lopez was shot in the back of the head. That isn’t impossible to square with the police narrative, but it certainly calls it into question.

[...]

According to Lopez’s attorney, two neighbors heard the raid, and neither heard the police announce themselves. One was a next-door neighbor whose window was open.

Lopez’s body was found several feet from the door, in a separate room.

Buying into the police narrative doesn't help much. According to their own statements, cops went to the wrong house, shot at the owner's dogs, and then shot the homeowner when he appeared at the door carrying a gun. The police shot through the door, so the narrative also includes something about Lopez poking his gun out through a crack in the door, as if that were enough to justify deadly force. But if he was shoving a gun through his cracked-open door, how did he get shot in the back of the head?

Balko points out the mayor of the city is smugly celebrating this non-indictment and blaming the media for making a horrible-looking situation look bad.

After the grand jury announcement, the district attorney, Champion, at least seemed somewhat chastened. Not so for Southaven Mayor Darren Musselwhite, who took the opportunity to gloat a bit in a press statement.

"It has been very disheartening to watch the persecution of our officers by some both prematurely and inaccurately. A picture painted with partial and inaccurate information is easy to create and very influential when strategically circulated through media avenues, but can be very misleading and dangerous to those that value the truth."

A bunch of misleading stuff the mayor refuses to discuss because of the ongoing lawsuit. Convenient. He had a chance to set the record straight, but decided he would rather snipe at the media before declaring he would not be taking questions from said media.

Even if some of the facts got distorted, the undisputed facts are still problematic. The PD refused to release the name of the officer to the family. The city refused to apologize or offer to fix the damage caused by officers when they raided the wrong house during a domestic assault call. The autopsy report on Lopez took a year to complete and was, at best, lousy: three pages, minimally-detailed, when most autopsy reports run at least 10 pages. (Even the prosecutor who failed to get an indictment seemed underwhelmed by the report: "There's nothing in it, honestly.")

This did at least give the family something to work with in its lawsuit: Lopez was shot in the back of the head -- something that seems unlikely at best when compared to the police narrative.

All in all, it's just another day in the land of zero police accountability. An officer "feared for their safety" after putting an innocent person into a dangerous situation by going to the wrong address and opening fire on the family pets. With those four simple words, cops can kill innocent people and deprive their survivors of recourse. A subjective feeling is usually enough to secure qualified immunity and the mere presence of a gun anywhere a cop might be (in the land of legal gun ownership) is enough to justify any force deployed. The police continue to fuck up and the public continues to pay the price, both with their lives and their tax dollars.

Filed Under: grand jury, ismael lopez, john champion, louisville metro police, police, sarah stumler, southaven police department

Funneling Trump Rally Attendees Directly Into A Violent Anti-Trump Crowd Costs Officers Their Qualified Immunity

from the DO-NOT-CONGRATULATE dept

Law enforcement officers have no duty to protect citizens. So many offer up "protect and serve" as a credo, but the Supreme Court ruled cops have no obligation to uphold the first half of that saying and law enforcement agencies have made it pretty clear the second half isn't going to be getting much attention either.

While officers may have no obligation to protect citizens, they do have to ensure they don't make things worse for those they're serving. The line isn't drawn especially clearly, but if you're policing the denizens of a frying pan, you definitely shouldn't push them into the fire. (h/t Volokh Conspiracy)

The frying pan in this Ninth Circuit Appeals Court decision [PDF] was a June 2016 Trump rally held in San Jose, California. The fire was the anti-Trump protesters gathered outside the arena. Aware that Trump rallies tended to produce violent clashes (of ideologies, but mainly fists and other thrown objects), 250 officers were sent to patrol the scene.

Things started to go badly quickly. According to the plaintiffs, the city instructed officers to stand back and let pro- and anti-Trump forces work it out between themselves. The rationale? "Intervention might cause a riot." There is some pragmatism to this statement, but not a whole lot of wisdom. Either way, it does clearly show the city understands officers have no duty to protect. If beatings were going to occur on their watch, they weren't going to jump in the middle of it and possibly become part of the problem.

But it was clear to officers anti-Trump protests tended to include violent acts directed at pro-Trump rally attendees. It was even more clear in this case, as officers witnessed violent acts (or had acts reported to them) but refused to intervene. In fact, the 250 officers racked up only three arrests between them -- and every one of those included an "assaulting an officer" charge.

The only time the officers appeared to step up was to "assist" pro-Trump rally attendees make their way out of the arena… and directly into the crowd of violent protesters.

Two Attendees—Hernandez and Haines-Scrodin—claim that San Jose police “directed [them] to walk through the antiTrump protesters, rather than . . . allow[ing] [them] to turn south, in the direction of safety.” “Soon after following the[se] directions . . . , [they] were struck repeatedly in their faces and heads by anti-Trump protester, Victor Gasca.” “Several other anti-Trump protesters also battered Hernandez and Haines-Scrodin, while Gasca kept up his assault.” As a result, “Hernandez suffered a broken nose [and several] abrasions,” and “Haines-Scrodin . . . suffered [various] bodily injuries.”

Another Attendee, I.P., claims he experienced similar violence due to the City Defendants’ poorly conceived crowd-control plan. Just like Hernandez and Haines-Scrodin, he “exited the east-northeast exit of the . . . Convention Center, where a line of police officers prevented [him] from turning right, to safety” and instead “directed [him] to turn left, into the anti-Trump protesters.” “I.P. was struck in the back of his head” by one protester and “tackled . . . to the ground” by another.” “After being attacked, I.P. made his way [back] to [the] police skirmish line, and was only later allowed to cross the line to safety.”

These allegations are sufficient to survive a qualified immunity defense… twice. The district court found the officers' actions could not be excused under two theories. First, it could be credibly alleged the department did not adequately plan for the event, eventually resulting in this debacle. Alternately, it could be argued the officers increased the risk of harm by funneling rally attendees directly into a crowd that meant to do them harm. Either way, officers created this danger to leaving attendees and that particular Constitutional point has been settled for more than a decade.

The officers argued they created no more danger than already existed. Their defense was basically this: anti-Trump protesters would have beaten up pro-Trump rally attendees whether or not we showed up to "police" the event. The appeals court vehemently disagrees.

The argument proves too much. If the Officers could avoid liability because the Rally was already dangerous and the Attendees were bound to be hurt, so too could the officer in Wood on grounds that the plaintiff was traveling through a high-crime area, the officers in Penilla because the plaintiff was already severely ill, and the officer in Kennedy on grounds that the plaintiff’s neighbor was known to be unstable and violent. Under the Officers’ theory, liability would only attach when an official does “more than simply expose the plaintiff to a danger that already existed.”

What happened here, the court reminds the defendants, is that officers refused to let attendees steer away from the protesters to find other ways to exit the rally. Indeed, officers directed exiting attendees directly into the anti-Trump crowd. The danger may have already existed, but officers ensured attendees would have to face that danger head on.

Attendees allege here they would have made it “to safety” had the Officers not affirmatively directed them into the crowd of protesters. Accordingly, they have alleged sufficiently this prong of their state-created danger claim.

Not only does the state-created danger claim survive, but so do the plaintiffs' allegations of deliberate indifference.

Like the officers in Wood, Munger, and Kennedy, the Officers here were aware of the danger to the plaintiffs—they knew the anti-Trump protesters posed an immediate threat to the Attendees. According to the FAC, “as early as [6 p.m.] the day of the Rally, the San Jose police warned all officers deployed around [the] Rally that assaults had already been reported outside the [Convention Center].” And throughout the Rally, the Officers “witnessed the many violent criminal acts perpetrated by dozens of anti-Trump protesters” and yet continued to “direct[] [the Attendees] into the mob.” The allegations here, if true, demonstrate the Officers “act[ed] with deliberate indifference to a known [and] obvious danger.” Patel, 648 F.3d at 971–72 (citation and internal quotation marks omitted).

Indeed, the Officers’ actions are in some ways even more culpable than those of the officer in Kennedy. The Court there found the officer was deliberately indifferent because he was aware of Michael’s past acts of violence—that he “had . . . beaten [his girlfriend] with a baseball bat” and had once “li[t] a cat on fire.” Kennedy, 439 F.3d at 1064. Here, the Officers were not only aware that Trump rallies had drawn violent crowds in the past but had also received reports of violence on the day of the Rally and witnessed the violence firsthand during the Rally.

This is what happens when officers read the 2005 Supreme Court decision on "protect and serve" and decide it means they can do the exact opposite ("ignore and endanger?") and still escape liability. They can't, not when the violations are this blatantly obvious. There were other exit paths available to rally attendees. Officers decided they had only one -- one that ran right through people just waiting to take a swing at people whose politics they disagreed with. And for that, they'll be forced to defend themselves against these allegations and possibly allow San Jose taxpayers to find out exactly how expensive deliberate indifference is.

Filed Under: police, qualified immunity, trump rally

You Caught A Bullshit 'Photographing The Police' Arrest Too Soon, Federal Judge Tells Plaintiff

from the should-have-held-off-for-a-year,-I-guess dept

A federal judge in Texas has ruled the right to photograph public officials in public is indeed protected under the First Amendment. The problem for the plaintiff in this case is that the right wasn't clearly established at the time his arrest occurred. The lawsuit survives, but just barely, and the transit cop who engaged in a pretty-much-established violation of the photographer's rights will escape being held liable for abusing their position. (h/t Eric Goldman)

Avi Adelman, a freelance journalist, was photographing EMS officers responding to the scene of an apparent overdose. DART (Dallas Area Rapid Transit) officer Stephanie Branch arrived at the scene and placed herself between Adelman's camera and the medical scene. Branch made up something about "establishing a perimeter" and "HIPAA violations" and told Adelman to stop photographing. According to the decision [PDF], Officer Branch also asked Adelman to leave the scene nine times and (for whatever reason -- most likely because Texas cops just don't seem to understand this particular law) for his ID four times. Adelman refused and was arrested, spending 20 hours in jail.

An internal investigation by DART resulted in a letter from Chief James Spiller to Adelman telling him the bogus "criminal trespass" charge against him would be dismissed. It also contained an admission of guilt: the letter stated the interaction and arrest were "not consistent with DART… policies and directives." And, just to prove the old adage holds true, DART discovered Officer Branch made twenty-three false or inaccurate statements in her report, including falsely claiming Adelman was only a "few feet" from responding paramedics.

So, you'd think an admission of wrongdoing would pave the way towards a successful civil rights lawsuit. Unfortunately, that's not the case. The admission the arrest was not consistent with DART policies pretty much defused any "policy and practice" or "failure to train" claims Adelman might have brought against DART. And circuit precedent shuts down Adelman's attempt to hold Officer Branch directly responsible for violating his rights.

In her motion for summary judgment, Branch argues that the First Amendment right to film the police or by reasonable extension to photograph emergency medical activity, as Adelman was doing, was not clearly established at the time of Adelman's arrest in 2016. [...] In support of her argument, Branch relies on the Fifth Circuit's holding in Turner v. Lt. Drive...

The Turner decision was handed down in 2017. In that case, the Appeals Court went the distance, clearly establishing a First Amendment right to record police activity. But that doesn't help Adelman at all and allows the cop who lied 23 times on her report to duck out this lawsuit.

The Court finds that the holding in Turner applies to the case at hand. At the time that Adelman was arrested for photographing a medical scene attended to by DFR paramedics and DART police, the right to photograph police was not clearly established. Therefore, Branch may assert a defense of qualified immunity.

And, despite DART's admission the arrest was not according to its own policies, Adelman is unable to move forward with his Fourth Amendment claims against Branch. Adelman's claims against DART, however, will move forward. Since a municipal entity is unable to assert a qualified immunity defense against claims like Adelman's, it will have to continue to defend itself against Adelman's First and Fourth Amendment claims. Unfortunately, DART's letter to Adelman seems to indicate his arrest was the work of a rogue transit cop who violated DART policy and lied about it. Ultimately, it may be found DART is not liable for arrests that violate policy, leaving Adelman with nothing but a legal bill for his troubles.

Filed Under: arrests, avi adelman, dallas, dart, photographing police, photojournalism, police, police intimidation, stephanie branch