Louisiana Law Enforcement Has Been Abusing An Unconstitutional Law To Arrest People For Trying To File Complaints

from the very-convenient-knowledge-of-the-law dept

Police officers aren't legal experts. No court expects them to know the intricacies of the laws they're paid to enforce. Close enough is good enough when it comes to pretextual stops, street-level friskings, and other assorted Constitutional skirtings.

But no one but a cop would know the ins and outs of stupid laws left on the books by careless legislators or how to wield them like weapons against those who dare to start hassling The Man. Got a criminal defamation law still laying around? Why not use it to arrest and charge critics gathering a few too many eyeballs to their personal blogs. Any number of charges, from disorderly conduct to "assaulting an officer" can be made to cover "contempt of cop" arrests. And every stupid "Blue Lives Matter" law has been abused at least once, with the oversensitive cops of New Orleans leading the way.

Given that two-thirds of the links above direct you to Louisiana law enforcement officers and officials, it should come as no surprise Louisiana officers are using another bad law to bring criminal charges against people who aren't absolutely enthralled with their law enforcement experience. (via The Watch)

On April 30, 2015, William Aubin Jr. was at home with his wife in Livingston Parish, Louisiana when a patrol car from the sheriff’s office pulled onto his street. The deputy, William Durkin, was there to investigate a reckless driving complaint. Aubin wasn’t involved in the incident but he knew about it and went outside of his home to speak with Durkin. During a vulgar and combative conversation, according to Aubin, Durkin repeatedly called Aubin a “pussy.”

“I’m calling your supervisor,” Aubin said. “I’m gonna get you fired.” Aubin took out his cell phone, called the sheriff’s department, and started walking back towards his house. But before he made it inside, Durkin arrested him. The charge: intimidation of a public official — a felony that in Louisiana carries a maximum penalty of five years’ imprisonment.

This isn't the first time the law's been used to charge someone for attempting to file a complaint. Michael Stein of In Justice Today points out the same charge was leveled against Travis Seals, an arrestee seeking to file a complaint after he was pepper sprayed despite already being handcuffed. Seals got another charge added to his docket: public intimidation.

In both cases, the state DA showed up in court to defend the use of the law to charge citizens looking to file complaints.This law should have been tossed in the legislative trash last year when a federal judge had this to say about it:

In a September 2017 ruling, Chief Judge Brian A. Jackson of the United States District Court for the Middle District of Louisiana pilloried the application of the statute in the Aubin case. “The right to criticize the police without risk of arrest distinguishes a democracy from a police state,” he wrote.

The same thing happened in the Seals case. Another federal judge took a look at the law and found it egregiously unconstitutional, considering it could be deployed to arrest people complaining about cops, filing lawsuits against government officials, or voting for the "wrong" public officials.

Anything a public employee could possibly takes offense to can be construed as "intimidation." ANYTHING.

In August 2017, the ACLU condemned the statute after it was used in the case of a Northern Louisiana man who raised his middle finger to a state trooper.

Despite the law's clear lack of constitutionality, the state District Attorney continues to fight for the law's continued existence. So do law enforcement officials. Sheriff Ard -- a defendant in the Aubin lawsuit -- claimed the law was necessary to prevent "threats" from "influencing the behavior of police officers." Seems like better training and better officers would take care of this problem -- especially when the "threat" consists of curse words, extended fingers, and filing complaints.

Despite the legal challenges, the law lingers. It will continue to be abused until it's rewritten or stricken. State prosecutors have already shown their willingness to treat these as criminal violations, rather than law enforcement abusing the law and their position to shut down criticism of police officers.

Filed Under: arrests, complaints, intimidation, intimidation of a public official, louisiana, police

Two-Man Police Department Acquires $1 Million In Military Gear

from the and-you-get-a-truck-and-you-get-a-truck-and-everyone-gets-a-truck! dept

An ultra-safe Michigan town of 6,800 has claimed more than $1 million in military equipment through the Defense Department's 1033 program. The program allows law enforcement agencies to obtain anything from file cabinets to mine-resistant assault vehicles for next to nothing provided the agencies can show a need for the equipment. Most can "show" a "need," since it's pretty easy to type something up about existential terrorist/drug threats. Boilerplate can be adjusted as needed, but for the most part, requests are granted and oversight -- either at the federal and local level -- is almost nonexistent.

This has come to a head in Thetford Township, the fourth-safest municipality in Michigan, and home to more than $1 million in military gear and two (2) police officers.

The free material, received through a federal program, includes mine detectors and Humvees, tractors and backhoes, hydroseeders and forklifts, motorized carts and a riding lawnmower. The landlocked township also has gotten boat motors and dive boots.

While much of the gear worth $1 million has never been used by the township, some has been given to residents, township officials said.

The township supervisor and a trustee said the police have stymied their attempts to find out what equipment they have, where it’s located and why some of it has been given away. The police didn’t keep track of what they had or what they had given away, according to a township audit last year.

A belated, half-hearted audit by Police Chief Bob Kenny (supervisor of one [1] police officer) showed his department had acquired 950 pieces of equipment, including a couple of Humvees, three ATVs, a tractor, a forklift, and a number of other vehicles. More than 300 items are stored "off-site," which apparently means parked on private property and used by private citizens.

Town supervisor Gary Stevens has been trying to get to the bottom of this outsized stockpile. But he's running into resistance. Supporters of the town's two-person police force (and apparent beneficiaries of the federal program) have been pushing back. A recall campaign has been started by farmer Eugene Lehr, who has 21 pieces of military surplus equipment on his property.

A nearby sheriff's department has stepped in to perform an independent audit but has yet to release its findings. Equipment has apparently been given to citizens but no paper trail exists to track who ended up with what and how much may have been sold by the department. But what's left is still impressive. A two-man department somehow justified the acquisition of seven trucks and nine trailers over the last decade, in addition to everything else the department has stockpiled since Bob Kenny became chief.

While it may seem like most of the acquisitions are innocuous -- not the sort of thing one associates with a militarized police force -- the fact remains the program has almost zero oversight. Not until after more than $1 million in equipment was routed to a place that did not have a pressing need for the items did the DoD finally step in and suspend the department's participation in the program. Equipment that may have been put to better use elsewhere is parked on private property or has simply vanished into thin air. This is a waste of tax dollars that does nothing to make policing better or a safe township even safer.

Filed Under: 1033, defense department, michigan, military gear, military surplus, police, thetford township

Appeals Court: Driving Attentively While Black Isn't Probable Cause For A Traffic Stop

from the ends-still-not-a-justification-for-the-means dept

The courts have allowed police officers to engage in pretextual traffic stops. Minor moving violations -- including some that aren't actually moving violations -- have been used to engage in fishing expeditions for drugs, cash, or evidence of some other criminal activity. The Supreme Court dialed this back a bit with its Rodriguez decision, allowing pretextual stops but forcing them to end once the stop's objective is complete. When an officer hands out a citation or warning, the person is free to go, no matter how much the officer may want to ask more questions or run a drug dog around the vehicle.

This hasn't deterred fishing expeditions as much as one might hope. If a drug dog can be summoned while the officer slow-walks paperwork, it will probably be found Constitutional by the courts. And the hopes of netting bigger fish with stops for improper signal use or whatever will never completely die. The risk/reward factor still favors law enforcement, so pretextual stops will continue.

But, as the Sixth Circuit Appeals Court points out, even pretexts need to have some statutory basis. A recent decision [PDF] comes as close as the courts ever have to decrying law enforcement's tendency to pull people over for "driving while black." The lower court's awful decision finding all of this Constitutional is reversed. [h/t Keith Lee]

Ohio State Trooper Hartford knew three things about Tyrone Warfield before stopping his car. He knew that Warfield, having recently exited a construction zone, was driving under the speed limit with both hands on the steering wheel. He knew that Warfield had touched the lane line twice. And he knew that Warfield was black. From there, Hartford cast off on a freewheeling investigation that began with a supposed marked lane violation, moved to suspicions of drunk driving, then to suspicions of trafficking untaxed cigarettes, and then on to drugs. The offense Warfield pleaded guilty to was even further adrift: the possession of gift cards re-encoded with stolen information. Because the initial stop was not supported by probable cause or reasonable suspicion, we reverse the district court’s denial of the motion to suppress and remand for further proceedings consistent with this opinion.

The government probably didn't want to have to defend this one, but since the decision was appealed, it had to. The court goes into detail about the legal rationales offered by the State Troopers who had -- at least momentarily -- seen blatant Fourth Amendment violations transformed into criminal charges.

The court doesn't hide its disdain for the creative license deployed by the testifying officer.

Just after midnight, Trooper Hartford saw a car driving at a speed that, by his visual estimation, was under the 70-mile-per-hour speed limit. The car had passed through a construction zone, requiring slower speeds, about a mile from where Hartford was stationed. As the car passed, Hartford observed that the driver—later determined to be Warfield—was sitting upright and rigidly in his seat, staring straight ahead, and had his hands on the steering wheel at ten and two. His suspicions aroused (apparently) by the textbook careful driving, Hartford followed the car. He caught up to Warfield and paced the car at around 50 to 53 miles per hour. Hartford testified that in the two minutes he was following Warfield, he saw the car “weaving a little bit” (which he incorrectly describes as “veer[ing]”) and that the car’s tires touched the solid lane line and the hash line dividing the lanes. These lane touches, along with Warfield’s slow driving, were the basis for the traffic stop. We need not just take Hartford’s word on what happened: the traffic stop was recorded on a dash cam video.

Warfield passed the field sobriety test with "flying colors," according to the trooper. But that didn't end the "investigation." Eight cartons of cigarettes lying on the backseat turned this from a drunk driving arrest into a "selling untaxed cigarettes" investigation, even though it was perfectly plausible the vehicle's passenger would have purchased cigarettes for personal use.

Warfield's information was run through law enforcement databases, returning zero hits. Still, the trooper continued his ad hoc investigation, hoping to find something criminal to justify the unjustified stop. A drug dog was brought in -- not because the trooper suspected drugs would be found in the vehicle -- but because why not?

Even though drug dogs are not typically used during DUI investigations, Hartford thought that the cigarettes plus Warfield and Knox’s nervous body language and inconsistent answers to his questions were suspicious and indicated general criminal activity. This activity— “not necessarily drugs”—encouraged Hartford to “exhaust what options” he had “available to [him].” Suppression Hr’g Tr., R. 27 at PageID 165, 201. According to [Trooper] Stroud, this option, a drug dog walk-around, is exercised more frequently when the driver is a person of color. The dog was led around the car twice and did not indicate the presence of narcotics.

This failed search led to a more fruitful one. Warfield agreed to let the trooper search the trunk. More cigarette cartons were found -- some from another state Warfield claimed he hadn't driven through. This led to a search of the glove compartment, where the re-encoded gift cards were found. Even though consent was given for these searches, the court finds the trooper didn't have enough probable cause to make the stop, much less question the driver until he consented to a search.

It doesn't take much to establish probable cause for a stop, but this low bar wasn't even approached by the trooper's own testimony (and dash cam footage).

Merely touching a lane line is not a violation of Ohio’s marked lane statute. Trooper Hartford thus lacked probable cause when he stopped Warfield’s car for a marked lane violation when Warfield’s tires only touched the solid edge line and the hash line for the lane divider.

The attempt to escalate this into suspicion of drunk driving fares even worse, considering the driver did not engage in any actual moving violations.

The dash cam footage from the traffic stop shows, at most, that Warfield touched the lane lines on two occasions and slightly drifted within his lane. Because touching the lane line is not a violation of Ohio’s traffic code, it cannot be evidence of intoxication in the same way that driving exactly at the speed limit cannot.

[...]

Warfield’s driving was far from erratic—he was driving under the speed limit with his hands properly positioned on the steering wheel. Warfield’s only mistake was his failure to follow a perfectly straight line down the highway. Id. at 466. This is insufficient to suspect Warfield of driving under the influence. A different holding would subject many of us to regular invasions of our privacy.

The government tried to claim Warfield's failure to meet the speed limit was somehow a moving violation and/or evidence of drunk driving. This argument fails as well.

But wait, says the government: Aren’t Warfield’s slow speed and rigid position other indicia of drunk driving? We think not.

Warfield’s speed was not illegal. Under Ohio Revised Code § 4511.22, it is a misdemeanor to travel “at such an unreasonably slow speed as to impede or block the normal and reasonable movement of traffic.” Hartford testified that Warfield was not impeding traffic by driving around 50 miles per hour, and the dash cam footage corroborates this fact. Nor was it unreasonable for Warfield to be driving at this speed. The law does not require a driver to travel at exactly the posted speed limit. It is a limit, not a mandate. Additionally, Warfield’s slow speed is easily attributable to driving through a construction zone, which Hartford knew about, less than a mile before the car was stopped.

Then the government posited that careful driving -- the kind they teach you in drivers ed -- is somehow indicative of illegal behavior.

Warfield’s “rigid position” with hands at ten and two is also insufficient to suggest that Warfield was driving drunk. We have held that such a position is “law-abiding behavior” and “cannot be the basis of . . . reasonable suspicion to stop a vehicle.”

The court then goes on to say it's impossible to combine three incidences of law-abiding behavior and somehow come up with probable cause for a traffic stop. The only other factor -- Warfield's race -- cannot be used to justify a stop either. Thanks to the trooper's admission drug dogs are more often deployed when motorists are black, the court has some pointed words for the government.

While the law allows pretextual stops based on minor traffic violations, no traffic law prohibits driving while black. The protections of the Fourth Amendment are not so weak as to give officers the power to overpolice people of color under a broad definition of suspicious behavior.

It then goes on to chastise the government for its own inconsistent behavior.

Accepting the government’s arguments that Warfield’s driving was suspicious would drain the Fourth Amendment of any meaning. Here, the government argues that Warfield could be pulled over for, essentially, driving too cautiously. It finds fault in Warfield’s “rigid position,” yet in other cases the government justified a stop in part because the defendant was slouching. Gross, 550 F.3d at 580. It says that it may stop Warfield for driving below the speed limit, but the government has also argued that it can pull over a driver for driving a mere two miles per hour over the speed limit. United States v. Akram, 165 F.3d 452, 454 (6th Cir. 1999). And it says that Warfield’s nervous, shaking hands are indicators of supposed criminal activity, even though it has also cited overly deliberate, rehearsed conduct as suspicious behavior.

The lower court's findings basically erase the Fourth Amendment. The Appeals Court firmly reinstates the right of motorists to travel without continual molestation by law enforcement officers hoping to get lucky.

A different result in this case would neglect our duty and would allow the police to stop you, demand your identification, check for outstanding warrants, and call for a drug dog—even if you are doing nothing wrong.

This is what law enforcement truly desires. But the rights granted to the public keep getting in the way. That's why law enforcement supporters trot out lines like "nothing to hide, nothing to fear." Citizens should be an open book to be read at the government's convenience. Only criminals exercise their rights.

Filed Under: 4th amendment, 6th circuit, driving while black, police, pretextual stops, probable cause, traffic stops

Gov't To Court: Driving A Car In Iowa With A Valid Iowa Temporary Tag Is A Traffic Violation

from the some-stops-are-more-pretextual-than-others dept

We have a new item to add to the list of things law enforcement finds suspicious. And not just "hmm, that's strange," but rather, "hmm, let's stop this vehicle and search everyone and everything in it." To date, a long list has been compiled of activities law enforcement finds inherently suspicious, many of which are contradictory or encompass the routine daily activities of millions of non-criminal US citizens.

People have been declared "suspicious" for being too calm or too nervous. For making eye contact and not making eye contact. Talking too much is suspicious. The same goes for not talking enough. Driving roads that connect major cities is suspicious because all major cities contain both buyers and sellers of drugs. Cops have argued that activities they've witnessed daily without affecting an arrest is suddenly suspicious when a traffic stop/fishing expedition results in a drug bust.

An officer with the Waterloo, Iowa police department is adding something new to this impossibly long list of dubious traffic stop justifications: driving with valid Iowa dealer's plates in Iowa. (via Brad Heath)

The traffic stop was initiated because officer witnessed something possibly suspicious two days earlier involving the vehicle officers pulled over two days later. A shooting was being investigated and appellant Joshua Rode was spotted exiting the vehicle in a gang-operated area. At the point the stop was initiated, Rode was presumably considered to be a possible gang member. But according to the officers' testimony, he was also "suspected" to have been the victim of the unreported shooting the officers were investigating.

Based on this weird connective tissue, Sergeant Kye Richter radioed Officer Diana Del Valle and suggested she initiate a pretextual stop of the vehicle. Del Valle needed a bit of outside prompting to find a traffic violation to trigger the stop. From the Eighth Circuit Appeals Court decision [PDF]:

When the BMW departed ten minutes later, Del Valle followed. She saw that the BMW had a dealer advertising plate instead of a rear license plate, which she had noticed two days earlier, and a temporary paper card taped to the inside of the left rear window. Del Valle radioed Richter and Sullivan she had seen “no violations yet.” They asked about the card in the back window. Del Valle said, “you can see a plate, but you can’t read what’s on it.” Officer Sullivan replied, “there you go.” Del Valle activated the lights on her police cruiser and made an “equipment stop.”

Probable cause for the stop? Officer Del Valle seemed to think so. But her own testimony shows no traffic violation had occurred.

She testified that she could first read the numbers on the temporary card when “I got to the trunk area.” She did not examine whether the temporary card was valid (it was) because “I already had the probable cause, which was a temporary tag. I wasn’t focused on whether that tag was valid or not at that time.”

But that was exactly the reason she stopped the vehicle. Sergeant Richter prompted the stop with "there you go," but Del Valle carried out the stop based on the completely wrong theory that possession of a dealer's plate was a traffic violation in and of itself. The district court disagreed and suppressed the weapon found during the ensuing search.

The government appealed, arguing that Del Valle's inability to read every piece of information contained on the temporary tag in the window gave her probable cause to stop the vehicle. The court disagrees. Temporary tags are required to contain certain information, but nothing in the law says all that info needs to be immediately visible to officers following vehicles in all weather at all times of the day.

Del Valle also did not identify what information she could not see that gave her (or Officer Sullivan) reasonable suspicion of a violation. If her reference to “letters or numbers” meant the unique vehicle registration letters and numbers on a license plate, which law enforcement officers often use to identify specific vehicles, then she had no reasonable suspicion at all, because § 321.25 only requires disclosure of “the registration number of the dealer from whom the vehicle was purchased and the date of delivery of the vehicle.” If she meant the dealer’s registration number, she did not explain why she needed to see that when she could plainly see a dealer’s advertising plate in the BMW’s license plate location. If she meant the expiration date -- and nothing in the record even hints at that -- neither Del Valle nor Richter testified as to their basis for believing that the requirement in § 321.25 that this information be “plainly stamped or stenciled” on the temporary card meant that, unless it is readable at night from a pursuing police cruiser, the vehicle is likely breaking the law.

Temporary tags must be visible and legible at all times from any distance is the government's argument. That's the corner it painted itself into with Officer Del Valle's testimony and its insistence on appealing the lower court's decision. The Appeals Court quotes the lower court's ruling, hammering home the fact the government should have known the stop was initiated without probable cause and should have cut its losses at the district level.

As the district court recognized, the government’s position in this case would mean that an Iowa police officer may stop a vehicle displaying a proper form of temporary registration card whenever the officer cannot read the dealer registration number and the card’s expiration date from inside the officer’s following police cruiser.

The Appeals Court refuses to grant the officer good faith, pointing out the government failed to raise this argument at the lower level. Even if it had, the Appeals Court wouldn't have allowed the government to use this escape hatch.

[E]ven if not forfeited, the argument that the officers made a reasonable mistake of Iowa law is without merit: (a) it is not reasonable to construe the requirement of “plainly stamped or stenciled” information in § 321.25 as meaning information that can be read from a pursuing officer’s police cruiser... On the other hand, if the government is arguing that Officer Del Valle (or Officer Sullivan) reasonably believed there was reasonable suspicion to make a traffic stop, “mistakes about the requirements of the Fourth Amendment violate the Fourth Amendment even when they are reasonable.”

Filed Under: iowa, law enforcement, police, suspicious activity, temporary tags, traffic stops

Supreme Court Says Shooting A Non-Threatening Person Without Warning Is Just Good Police Work

from the boys-in-blue-need-our-help-more-than-ever-it-would-seem dept

The Supreme Court -- without additional input -- has decided it's still OK for officers to kill people as long as they can express some sort of fear in a courtroom setting.

In Kisela v. Hughes, the justices overturned – without briefing or oral argument – the ruling of the U.S. Court of Appeals for the 9th Circuit in favor of Amy Hughes, whom police corporal Andrew Kisela shot and wounded in 2010. Kisela had responded to reports that Hughes was in the street with a large knife “screaming and crying very loud”; when he arrived, he saw Hughes approaching another woman. After Hughes ignored orders to drop the knife and continued to move toward the woman, Kisela fired at Hughes. The shots struck Hughes several times, although her injuries were not life-threatening.

Hughes filed a lawsuit against Kisela, alleging that the shooting violated her federal civil rights. A federal district judge ruled for Kisela, but the 9th Circuit reversed. Today, in an unsigned opinion, the Supreme Court reversed the 9th Circuit’s ruling. The opinion explained that, even if Kisela had violated the Fourth Amendment by using deadly force against Hughes (which the ruling described as “a proposition that is not at all evident”), Kisela still could not be sued because any rights that he might have violated were not clearly established – a key factor in whether government officials enjoy immunity from lawsuits.

The Ninth Circuit's opinion stripped the officer of his immunity. This decision reestablishes it. And it reminds cops de-escalation rarely needs to be considered as a tactic because the courts will have their back in almost every case. While the presence of a knife suggests some sort of objective danger, the person experiencing the threat was Hughes' roommate, not the cops on the other side of the fence. (And she testified she did not feel threatened.) It took only 60 seconds for one officer to resort to deadly force, based solely on the fact that Hughes refused to immediately drop the knife.

The presence of a weapon changes the math a little, but it shouldn't change it so much as to dismiss this appeal with an unsigned opinion and zero input from the engaged parties. The dissenting opinion [PDF], written by Justice Sotomayor (and joined by Justice Ginsburg) points out the "threatening" situation used to justify the shooting wasn't all that threatening -- not even for other officers on the scene.

Officer Andrew Kisela shot Amy Hughes while she was speaking with her roommate, Sharon Chadwick, outside of their home. The record, properly construed at this stage, shows that at the time of the shooting: Hughes stood stationary about six feet away from Chadwick, appeared “composed and content,” Appellant’s Excerpts of Record 109 (Record), and held a kitchen knife down at her side with the blade facing away from Chadwick. Hughes was nowhere near the officers, had committed no illegal act, was suspected of no crime, and did not raise the knife in the direction of Chadwick or anyone else. Faced with these facts, the two other responding officers held their fire, and one testified that he “wanted to continue trying verbal command[s] and see if that would work.” Id., at 120. But not Kisela. He thought it necessary to use deadly force, and so, without giving a warning that he would open fire, he shot Hughes four times, leaving her seriously injured.

[...]

Kisela did not wait for Hughes to register, much less respond to, the officers’ rushed commands. Instead, Kisela immediately and unilaterally escalated the situation. Without giving any advance warning that he would shoot, and without attempting less dangerous methods to deescalate the situation, he dropped to the ground and shot four times at Hughes (who was stationary) through a chainlink fence.

If this truly was a "reasonable" use of force under the circumstances, you'd think Hughes would be dead, shot by multiple officers multiple times. But only one officer found the situation dire enough to shoot Hughes without warning. By refusing to weigh the arguments (and by choosing to rebuke the Ninth Circuit Court of Appeals for stripping away the officer's immunity), the Supreme Court has issued another blank check to be cashed at will by officers all over the nation. When events are unfolding quickly, the proper answer is to escalate the situation, rather than try to slow everything down and see if everyone -- not just the cops -- can make it out alive.

Sotomayor then goes on to point out this isn't just a qualified immunity problem: it's a Supreme Court problem.

As I have previously noted, this Court routinely displays an unflinching willingness “to summarily reverse courts for wrongly denying officers the protection of qualified immunity” but “rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases.” [...] Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.

This decision won't make the nation's policing any better. It will just make everything's that's already bad even worse.

The majority today exacerbates that troubling asymmetry. Its decision is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.

This is what it boils down to: a free pass on deadly force. Unless the courts can push a case directly on point in front of the justices, officers will get a pass just for claiming they feared… something. As Scott Greenfield points out, the reason no discussion was needed prior to the SCOTUS decision is the court already knew what it thought about reasonable uses of force, and this one was reasonable enough to dispense with the opening pleasantries.

Whether it’s “palpably unreasonable,” however, ignores the Supreme Court’s holding. It is not so glaringly wrong to the majority of the Court, to the majority of Americans and to the majority of police officers. In baseball, a tie goes to the runner. In police shootings, a tie goes to the cop. If there is any question of threat, the law is prepared to give the cop the benefit of the doubt. And whether there is any question of threat is a decision only cops can make. We don’t get a vote.

This type of city hall can't be fought. It can only be adjusted to. Unreasonable deployments of force will still be considered "objectively reasonable" in a great majority of decisions. Violations of rights won't be treated as violations unless they're so flagrant even deferential courts can't ignore them. Every decision like this is just another stack of paper to add to citable case law when defending officers who've killed people who really didn't need killing.

Filed Under: 9th circuit, civil rights, kisela v. hughes, police, reasonable force, supreme court

Recordings Capture Cops Discussing Department's Most Rotten Apple

from the thanks-for-the-convo,-but-what-are-you-doing-about-it? dept

Accountability begins at home. But nothing happens if no one's willing to make the first step. Officers who witnessed another officer's brutal act had plenty to say about it, but apparently not to anyone who mattered.

Recordings obtained through records requests by NJ.com contain three hours of candid conversations between officers about the actions of Cataret, New Jersey police officer Joseph Reiman. Reiman is a military veteran and the mayor's youngest brother. Officer Joseph Reiman is also responsible for 20% of the department's force deployment.

From the time Joseph Reiman was hired in July 2015, the 50-person department logged 115 incidents in which an officer used force, such as a punch, baton or weapon against a suspect, according to documents obtained under the state Open Public Records Act.

Reiman, 31, the brother of longtime Mayor Daniel Reiman, accounted for 24 of the incidents, more than twice as many as any other officer.

The obtained recordings captured the reactions of officers responding to the scene of an arrest handled by Joseph Reiman. When they arrived, they were confronted with a 16-year-old suspect lying face down in gravel with "blood all over the fucking place."

The officers, who have not been identified, remark that this disturbing situation is par for the course for Officer Reiman.

"I've been doing this less time than you but I've never punched anybody in the face like [inaudible]... never," an officer says in the recording.

"That's what I told Jerome last time," another officer responds.

The fact that these complaints never made their way up the chain of command likely has to do with the other officer at the scene: Charles Reiman, another of the mayor's brothers. As the officers leaving the scene point out, there's zero chance anyone in the department would be willing to pursue a case against the mayor's siblings.

The official narrative to explain the events, according to the officers, started at the scene and continued at headquarters: One recalls, "When I was there, they were like, 'Well, he was in a car accident. He was in a car accident.' I'm looking at this kid's face, I'm like, "that ain't a f-----g car accident... the whole side of his face has to be away from his skull and it's like repeated... lump... lump... lump."

Officer Charles Reiman, the middle Reiman brother who was the second on scene, had repeated, "He wouldn't show his hands," the same officer recalls.

"Charlie's already, ya know, writing his thesis," he says.

Another officer can be heard later in a separate recorded conversation,"They are going to blame it on the car accident... Nothin's gonna happen. They're gonna say nothing happen... he didn't have his body camera on."

The officer already knew Reiman's body camera wasn't on and questioned whether anyone's recorded the incident.

"What do you want to bet... they're all sitting around a table right now trying to get their f-----g story straight?" one officer asks after leaving the hospital.

And there it is: the legal defense for Reiman's actions was in development before this second set of officers arrived on the scene. When it's a cop's word against a beaten 16-year-old, "he wouldn't show his hands" tends to give officers permission to handle the situation with whatever level of force they want to, rather than what's actually necessary.

Joseph Reiman is now under indictment for criminal assault. He's still on the payroll while this advances through the judicial system. His history of excessive force is documented. Reiman is also a triple threat: writer, actor, and director of his own body cam footage.

[W]hile the Carteret police force is equipped with body cameras, videos that could tell the full story in some of Reiman's encounters do not exist or have been withheld, and at least one was corrupted, according to NJ Advance Media's investigation

Reiman's actions have prompted some interesting reactions. The most ridiculous reaction is that of Reiman's attorney.

Joseph Reiman's attorney, Charles Sciarra, said in a statement Friday, referring to the police heard in the videos, that these "officers are known malingerers who slow roll to calls like they did on this one, and are cut from the same cloth as the officer in the Florida school shooting who stayed outside the building while those kids were slaughtered."

Even if this were accurate, it would still be an incredibly shitty way to represent your client. It shows you're no better than the person you're representing -- someone willing to toss slurs at cops who don't regularly beat arrestees, and to portray appropriate force deployment as cowardice. But here's the thing: Reiman's attorney is making these accusations when he doesn't even know for sure which officers were captured on the recordings.

Sciarra also called on NJ Advance Media to name the officers so the attorney could "review their pitiful arrest numbers and lack of law enforcement activity as well as their agenda."

Reiman and his attorney deserve each other. Both have the mindset that efficient, brutal policing that steamrolls civilians' rights is the best policing.

The other reaction is (comparatively) much better. A letter from the county prosecutor puts a new person in charge of internal investigations. This "extraordinary measure" was prompted by the department's refusal to deal with mounting excessive force allegations -- a great many of them tied to Reiman and his partner -- and it's apparent unwillingness to conduct required background checks on gun purchasers. As the letter notes, the Cataret PD has spent two years ignoring its background check duties.

The scathing letter sent by Middlesex County Prosecutor Andrew Carey to borough officials --which was obtained by NJ Advance Media Thursday but dated Monday -- orders the recently hired Carteret police director, Kenneth Lebrato, to take over the department's internal affairs unit for at least six months.

[...]

Carey described Lebrato as "uniquely well qualified" because of his experience in the prosecutor's office.

Citing internal affairs issues in the letter, Carey calls current Carteret Deputy Chief Dennis McFadden, who is referred to as the chief in the borough's news releases, "ineffective in executing his official duties."

This may result in more attention being paid to the department's bad apples. Unfortunately, the better apples are only talking to each other, rather than their supervisors or city officials. Then again, the system is rigged against police whistleblowers, who will not only be ostracized, but possibly deliberately placed in danger by their colleagues. In this case, the system is even worse because the two officers involved in the cover-up of this excessive force are related to the top man in town. These officers stated as much on video: no one in the department would be willing to go head-to-head with the mayor's PD siblings.

So, the burden falls on the public. Investigative journalism has forced the system to address long-ignored problems. But this only goes so far, and it only works when journalists are able to apply consistent pressure via records requests (which often involves expensive lawsuits). Public servants are shirking their duties. Cops who have a duty to intervene are refusing to do so. The refusal to engage in internal accountability shifts an undue amount of the burden to private enterprises, who have to pay to perform oversight tasks that the public is paying PD officials to perform. The Cataret PD has been willing to house abusive cops for years, all on the taxpayers' dime. Only now, after being exposed, is it seeking to address its multiple issues.

Filed Under: accountability, bad apple, cataret, charles reiman, daniel reiman, joseph reiman, new jersey, police

Attorney General Says Texas Cops Can View All The Camera Footage They Want Before Being Questioned

from the no-reason-to-trust-them-then dept

Body cameras on cops are, generally speaking, a good idea. Anything that opens up law enforcement to a little more scrutiny is better than the alternative, even if body cameras contribute more to accountability in theory than in actual practice.

But just as soon as some cracks appear in the wall of opacity, legislators and government officials rush in to patch them. Multiple state legislatures have discussed bills making body camera footage immune from public records requests. In other states, the recordings are presumed untouchable until the legislature says otherwise.

Public access isn't the only issue to be considered, however. Just as important is officer access to camera footage when faced with accusations of misconduct or abuse. The Dallas PD already took the state's lack of firm guidelines to grant its officers privileges it would never extend to citizens accused of criminal acts. Dallas police are given 72 hours to get their stories straight before being questioned about officer-involved shootings. They are also given access to all video recordings of the incident before being questioned.

The state attorney general has now expanded the Dallas PD's ad hoc rule to every law enforcement agency in Texas. [h/t Grits for Breakfast]

[AG Ken] Paxton’s opinion follows a September request by Dallas County District Attorney Faith Johnson to clarify the sweeping body cam law the Texas Legislature passed in 2015, which entitles officers “to access any recording of an incident involving the officer before the officer is required to make a statement about the incident.” As Johnson’s office told us at the time, some Texas police departments interpreted that to mean officers could review only their own body cam footage before going on record, which civil rights groups like the ACLU still criticized as “poor investigative practice” that police would never use on other suspects. Others, including the Dallas Police Department, put that policy on steroids, allowing cops to also review the body camera footage of every other officer who was on the scene before giving a statement, according to Johnson’s office.

This interpretation -- which gives law enforcement officers access to all recordings of an incident before questioning -- was supposed to resolve a supposed prosecutorial dilemma. According to Johnson, prosecutors dealing with accused officers were having problems with testimony, considering it all could have been made up on the spot once the footage was reviewed. The dilemma was that cops were considered less trustworthy with a policy like the Dallas PD's in place. Even if officers weren't recalibrating their reports to match viewed footage, the public perception was that they were.

Instead of recognizing the problem and addressing it, AG Paxton has made it worse. Every officer accused of anything gets a few days and all the footage they need to address allegations. No criminal suspect has ever had the luxury of viewing all available evidence before even being charged. Cops, however, are special. So special their testimony should be viewed as suspect in cases where they're accused of misconduct. AG Paxton may think he's protecting cops, but he's actually undermining the public's steadily-diminishing faith in their public servants.

Paxton has chosen to make this a legislative problem, assuring it won't be addressed for several months. When it is finally addressed, lawmakers will be besieged by police unions and law enforcement reps who are willing to sacrifice officer credibility to protect them from accountability.

Filed Under: body cameras, police, texas, transparency

Appeals Court Has No Problem With Cops Using E911 Services To Perform Warrantless, Real-Time Tracking

from the what-part-of-'stored'-do-you-fail-to-comprehend? dept

The Fifth Circuit Appeals Court says it's fine if the government uses mandated emergency services to perform real-time GPS tracking. It doesn't go so far as to affirm the constitutionality of the actions, but it achieves the same ends by voting down the appellant's request for a rehearing.

What we can glean about the issue at stake comes from the eight-page dissent [PDF] written by judges James L. Dennis and James E. Graves, two of the seven judges who voted for a rehearing. In this case, the government used the defendant's cellphone provider to engage in real-time tracking. No warrant was obtained despite the government's shoulder-surfing of incoming GPS location data.

Defendant William Wallace contends that the Government violated the Fourth Amendment by ordering his service provider to activate his phone’s “Enhanced 911” capability and to relay his GPS coordinates in real time, including while he was in his home. The panel opinion concludes that, even if the Government’s real-time tracking of Wallace’s GPS coordinates was an unconstitutional search, Wallace cannot benefit from the exclusionary rule suppression of the fruits of that search because law-enforcement officials could have reasonably relied on open-ended language in 18 U.S.C. § 2703(c), a provision of the Stored Communications Act (SCA), as authorizing their actions.

Those are the facts of the case, but as the dissenting judges point out, the SCA clearly did not anticipate this use of the law, much less explicitly approve this GPS warrant end-around utilized by law enforcement. The government relied on good faith exception arguments made in two cases -- Leon and Krull. The latter holds that officers may rely on clear statutory authorization even if the statute is later proven to be unconstitutional. (In the Krull case, the statute was struck down a day after the disputed search took place.) This seems about right as courts hardly expect officers to know the laws they're supposed to enforce, much less the ones they're supposed to follow.

But that doesn't hold here. The dissent makes it explicit: the SCA provides no basis for warrantless commandeering of a phone's GPS system to track suspects. This isn't a passive collection of existing records. This turns a phone into a tracking device at the behest of law enforcement, even when the phone's owner may have taken measures to limit the collection of GPS data. There's nothing in the SCA that says any of this is constitutional.

Unlike in Krull, here there is no legislative judgment or dialogue between the courts and the legislature as to the constitutionality of the realtime GPS surveillance at issue. Congress passed the SCA over thirty years ago. At that time there was no E911 requirement, see 61 FED. REG. 40,374, and GPS was still experimental military technology that would not begin to be in widespread civilian use until over a decade later…

Furthermore, there's a Supreme Court decision to be considered -- one that strongly hinted real-time GPS tracking requires warrants (even if the Justices didn't actually go so far as to draw a bright line).

Moreover, as has been expressed by five members of the current Supreme Court and by members of this court, there is grave doubt as to the constitutionality of the kind of warrantless, real-time GPS tracking at issue in this case. See, e.g., United States v. Jones, 565 U.S. 400, 415–18 (2012) (Sotomayor, J. concurring) [...] Thus, both the nature of the statute and the nature of the alleged constitutional violation strongly suggest that Krull does not apply here.

The dissent then returns to the SCA. The government argues the SCA should be read to include real-time GPS tracking as something covered by the "or other information" phrase in the law. Since it's not communications, the government rationalizes, there should be no warrant requirement. The dissent points out the flaw in the government's reasoning by pointing to nothing more than the name of the law invoked to perform the warrantless tracking.

This holding ignores plain language in the SCA suggesting that real-time collection of GPS tracking information is not authorized by this statute. Section 2703(c) is part of the “Stored Communications Act.” (emphasis added). The pertinent section is entitled “Records concerning electronic communication service or remote computing service.” § 2703(c) (emphasis added). GPS coordinates that have not yet been created and would not be created absent the Government’s intervention cannot be called “records” or “stored” communications under any commonsense understanding of those terms.

This does nothing for the appellant or anyone who resides in the district, unfortunately. Law enforcement can still turn phones into tracking devices without warrants, barring any state legislation that provides more privacy protections than this district's interpretation of the Fourth Amendment. With its refusal to rehear this case, the Fifth Circuit has granted the government the luxury of interpreting "or other records" to include compelled real-time GPS tracking.

Filed Under: 4th amendment, 5th circuit, e911, police, privacy, real time tracking, surveillance, warrants

New Orleans' Secret Predictive Policing Software Challenged In Court

from the you-might-be-a-gang-member-if... dept

Predictive policing software -- developed by Palantir and deployed secretly by the New Orleans Police Department for nearly six years -- is at the center of a criminal prosecution. The Verge first reported the NOPD's secret use of Palantir's software a few weeks ago, something only the department and the mayor knew anything about.

The relationship between New Orleans and Palantir was finalized on February 23rd, 2012, when Mayor Landrieu signed an agreement granting New Orleans free access to the firm’s public sector data integration platform. Licenses and tech support for Palantir’s law enforcement platform can run to millions of dollars annually, according to an audit of the Los Angeles County Sheriff’s Department.

In January 2013, New Orleans would also allow Palantir to use its law enforcement account for LexisNexis’ Accurint product, which is comprised of millions of searchable public records, court filings, licenses, addresses, phone numbers, and social media data. The firm also got free access to city criminal and non-criminal data in order to train its software for crime forecasting. Neither the residents of New Orleans nor key city council members whose job it is to oversee the use of municipal data were aware of Palantir’s access to reams of their data.

Suspects being tried didn't know anything about it either. While the NOPD turned over 60,000 pages of documents to Evans "Easy" Lewis during his trial for conspiracy and murder charges, not a single one of them referenced the software the police were using to sniff out suspects. This was mainly due to Palantir giving the city the software for free, which allowed both the city and the PD to cut the public out of the equation by eliminating bidding processes and budgetary reporting requirements.

The mayor ended the program two weeks after the Verge report, choosing not to continue working with the contractor. It appears this decision was made to limit negative coverage of the secret software deployment, rather than out of any concern for the millions of New Orleans residents swept up in Palantir's dragnet.

Yesterday, outgoing New Orleans Mayor Mitch Landrieu’s press office told the Times-Picayune that his office would not renew its pro bono contract with Palantir, which has been extended three times since 2012. The remarks were the first from Landrieu’s office concerning Palantir’s work with the NOPD. The mayor did not respond to repeated requests for comment from The Verge for the February 28th article, done in partnership with Investigative Fund, or from local media since news of the partnership broke.

Now that the city's secret is no longer secret, defense attorneys are demanding the NOPD start handing over Palantir-generated evidence. A man challenging his conviction on gang-related charges in New Orleans is asking for everything Palantir has on him, under the theory the dragnet also swept up plenty of exculpatory info.

In the first courtroom challenge to the New Orleans Police Department’s use of sophisticated crime-fighting software, a judge on Wednesday granted a convicted Central City gang lord a chance to try to prove his allegation that a Palantir Technologies program spat out exculpatory information on him that was never revealed to his attorneys.

Criminal District Court Judge Camille Buras set an April 3 court date to rule on subpoenas that attorneys for Kentrell "Black" Hickerson will be seeking in order to learn how Palantir's program, called "Gotham," has been used in New Orleans — and particularly in the case against Hickerson and 19 other suspected "3NG" gang members.

Buras said that Hickerson's lead attorney, Kevin Vogeltanz, could add the argument to Hickerson's pending motion for a new trial.

Prosecutors are arguing the Palantir documents will add nothing new. They claim the only thing the software does is aggregate info from multiple law enforcement databases to make it easier to search. But that's not how the software is described in the Verge report. It's predictive policing software -- something that turns people into suspects based on their relationships with people in law enforcement databases or their location in the city. That's far more than "aggregation." It creates criminals who haven't committed crimes and encourages officers to view certain areas of the city as inherently suspicious.

This dovetails directly into the defense's theory about Palantir's attenuated associations and quasi-geofencing of suspected gang members: what Palantir "sees" isn't necessarily what's actually happening.

Hickerson, 38, was convicted of racketeering and drug conspiracy counts after a 10-day trial in Buras’ courtroom two years ago. Prosecutors and former gang allies said he committed or directed a series of killings in a battle over turf rights around Third and Galvez streets.

At the trial and afterward, however, Vogeltanz argued that authorities had created the idea that 3NG was a gang. He pointed to testimony from a key cooperating witness, Tyrone Knockum, who cast doubt on the gang’s cohesiveness.

“Is it a bona fide gang, or is it a group of people that grew up around each other and hang around with each other?” Vogeltanz asked.

“It’s a group of people that grew up around each other,” Knockum said.

That's what happens when algorithms decide people in the general vicinity of each other must all engage in the same activities. If some of them engage in criminal activities, then everyone the software declares to be risky -- based on law enforcement databases and math companies aren't willing to share with the accused -- faces the possibility of being swept up and charged with conspiracy, if nothing else. And criminal conspiracy charges result in real years in real prisons, based on little more than calculated assumptions about a person's relationship to those around them.

Filed Under: new orleans, nopd, police, surveillance
Companies: palantir