Court Tells Cops Who Got A Man Wrongly Imprisoned For 25 Years That Of Course Framing People For Crimes Is A Rights Violation

from the just-wrecking-up-people's-lives-and-walking-away-from-it dept

There's a constitutional right not to be framed by cops for a crime you didn't commit. This shouldn't even need to be argued in court once, much less twice. But "framed by cops" is exactly what happened to James Dennis, who spent 25 years in prison after being falsely accused of murdering a high school student back in 1991.

After having his wrongful conviction vacated in 2013 (and this decision affirmed by the Third Circuit Appeals Court in 2016), Dennis sued the cops that took 25 years of his life away by hiding exculpatory evidence and creating a narrative that put him behind bars.

Back to the Third Circuit goes Dennis again, with the Appeals Court handling an attempt by two detectives to escape Dennis' lawsuit [PDF]. The district court stripped immunity from the detectives who built the case against Dennis. The detectives appealed but they're not going to be able to walk away from this one.

The allegations are severe. According to Dennis, detectives Frank Jastrzembski and Manuel Santiago hid evidence that would have cleared Dennis and worked together to railroad him into a murder conviction. Buckle up, there's a lot to take in here.

First, Dennis alleges that the detectives concealed information about other individuals, who had confessed their involvement with the murder or who knew who was involved, and that the detectives coerced/concealed certain other witnesses. Specifically, Dennis alleges that the detectives never followed up on inconsistencies in statements made by Zahra Howard, who was with Williams on the day of her murder. Ms. Howard originally told the detectives that she never saw the assailants but later told her aunt and uncle that she recognized the assailants from Olney High School, a school that Dennis had never attended. Howard’s aunt and uncle informed the detectives about her statement; it was also corroborated by the victim’s aunt. This information, which was recorded in the detectives’ activity logs, was concealed from Dennis for ten years.

In addition, Dennis alleges that several days after the murder, Montgomery County law enforcement advised the Philadelphia Police Department that an inmate in their County Prison spoke with a man who confessed his involvement in Williams’s murder. A signed statement from the inmate included details about all three men involved in the murder and identified the source of the information. However, defense trial counsel never received any materials relating to the investigation of these three individuals; the information was only revealed 10 years later during Post Conviction Relief Act (PCRA) discovery.

Second, Dennis alleges that the detectives fabricated evidence to secure his conviction. Specifically, Dennis alleges that the detectives falsely claimed to have found certain clothing items that matched those of the shooter, as described by eyewitnesses to the murder. He further alleges that Detective Jastrzembski falsely testified that the clothing was found at Dennis’s residence but later “disappeared” from police headquarters prior to trial...

Third, Dennis alleges that the detectives concealed evidence that would have supported his alibi. Specifically, Dennis’s alibi that he was elsewhere at the time of the murder would have been corroborated by a witness’s time-stamped welfare receipt. When questioned by the detectives, the witness based her time estimates on the receipt’s military-style timestamp of 13:03 (1:03 PM), which she mistook to mean 3:03 PM. The detectives did not correct the witness when she misread the receipt’s military-style timestamp while they were interviewing her; instead, they took the only copy of the receipt and never shared it with Dennis or the prosecutors…

Dennis also alleges that only four of the nine eyewitnesses identified by Philadelphia Police had selected him from the lineup; three of those four testified for the Commonwealth at Dennis’s trial. After learning this information, Dennis’s counsel requested a new lineup with all nine eyewitnesses. The new lineup never occurred.

The detectives argued that even if they were in the wrong, they were not unreasonably wrong and could not have possibly known from court precedent that hiding information from accused criminals and framing them for a murder was a violation of his rights.

Wrong, says the Third Circuit. It's not even a close call. There's plenty of precedent and it dates back decades -- long before the detectives' actions in 1992.

[C]iting McDonough v. Smith, the detectives contend that a fabrication of evidence claim has been recognized under the Fourteenth Amendment only where the government officer involved in fabricating evidence was a prosecuting attorney. Not so. In Halsey v. Pfeiffer, we concluded that it was axiomatic that “those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit.” Halsey involved an evidence fabrication claim under the Fourteenth Amendment brought against police officers. We emphasized that the Supreme Court decades ago had established that the Constitution forbids those tasked with upholding the law from knowingly using falsified evidence to secure a criminal conviction.

[...]

[A] case that is directly on point is not required so long as the precedent placed the constitutional question beyond debate. Halsey did so, recognizing prior precedent that held the fabrication of evidence by law enforcement officers violates the Fourteenth Amendment and that such a right had been established since at least 1985.

The next argument by the detectives was also off by several decades.

[T]urning to Dennis’s deliberate deception claim, the detectives contend that this claim is based on the right not to be framed by law enforcement agents, which is too broadly worded and was not established until 1995, when the Supreme Court decided Kyles v. Whitley.

The right not to be convicted on perjured testimony used by prosecutors at trial has been clearly established by the Supreme Court since at least 1935 in Mooney v. Holohan. Seven years later, in Pyle v. Kansas, 317 U.S. 213, 216 (1942), the Court extended this right by recognizing as a due process violation the conviction of a defendant through perjured testimony and the deliberate suppression of evidence favorable to the accused.

Even if this precedent did not exist, the court says the due process violations are so blindingly obvious that there's no plausible excuse for the detectives' actions.

We conclude that the constitutional rule that framing criminal defendants through use of fabricated evidence, including false or perjured testimony, violates their constitutional rights applies with such obvious clarity that it is unreasonable for us to conclude anything other than that the detectives were on sufficient notice that their fabrication of evidence violated clearly established law.

That's what qualified immunity has done to the judicial system. The Supreme Court's alteration of the contours of the doctrine it created has made it more difficult for lower courts to address the rights violations, shifting focus to judicial precedent instead. Fortunately, there's plenty of it here. But more than that, it's good to see a court tell officers attempting to raise their qualified immunity shields that the stuff they did was so obviously wrong they'd still be denied immunity even if there wasn't any precedent to rely on. That needs to happen more often.

Filed Under: 3rd circuit, due process, framing people, frank jastrzembski, james dennis, lying cops, manuel santiago, police, qualified immunity, wrongful conviction

Prosecutor Who Used Bite Mark Analysis Even The Analyst Called 'Junk Science' Can Be Sued For Wrongful Jailing Of Innocent Woman

from the mouthful-of-garbage dept

A lot of stuff that looks like science but hasn't actually been subjected to the rigors of the scientific process has been used by the government to wrongly deprive people of their freedom. As time moves forward, more and more of the forensic science used by law enforcement has been exposed as junk -- complicated-looking mumbo-jumbo that should have been laughed out of the crime lab years ago.

Tire marks, bite marks, hair analysis… even the DNA "gold standard" has come under fire. If it's not the questionable lab processes, it's the testimony of government expert witnesses who routinely overstated the certainty of their findings.

Bite mark analysis has long been considered junk science. But for a far longer period, it was considered good science -- a tool to be used to solve crimes and lock up perps. This case, handled by the Third Circuit Court of Appeals, contains an anomaly: the bite mark expert who helped wrongly convict a woman of murder -- taking away eleven years of her life -- actually stated on record that bite mark analysis is junk science.

This case starts with some DNA testing. Supposedly, this is as scientific as it gets. But the prosecutor appeared to have wanted to pin this crime on Crystal Dawn Weimer. So investigators chose to ignore what the DNA evidence told them. Investigating the murder of Curtis Haith, who had been beaten and shot in the face, investigators started talking to party guests who had been at Haith's apartment the night before. They zeroed in on Weimer even when available evidence seemed to point elsewhere.

From the decision [PDF]:

When officers arrived at her house, Weimer was still dressed in the clothes she had been wearing the night before. She had minor injuries to her face and foot, and officers observed what looked like mud and blood on her clothes. Weimer told officers that she, Haith, and others had attended a party the night before and that she had given Haith a ride from that party and dropped him off at another party. She then spent the rest of the night at the housing community where her mother and sisters lived. Her cousin, sisters, and then-boyfriend Michael Gibson confirmed her story. Weimer and Gibson also told officers that Weimer injured her foot when they were “horseplaying” a few days earlier. App. 87 ¶ 31. And Weimer said that the blood on her shirt and the injury to her eye were caused by a fight with Gibson. DNA testing later confirmed that the blood on Weimer’s clothes belonged to Gibson, and none of the DNA samples collected from the crime scene matched Weimer—in fact, the samples suggested a male DNA profile.

Almost two years later, an ex-boyfriend of Weimer's (Thomas Beal) told investigators that she had shot Haith and told him that the blood on her clothes came from the victim. Of course, DNA evidence had already ruled this out, which should have made this witness' statement a bit more suspect. But investigators went back over the photographs taken at the scene and found something they could possibly use to tie Weimer to a crime DNA evidence heavily suggested she hadn't committed. The first attempt to implicate Weimer failed.

When reviewing Haith’s autopsy photos, a state investigator saw what she believed to be a bite mark on Haith’s hand. A Fayette County dentist analyzed the injury. The dentist first concluded that Gibson bit Haith, but after examining teeth impressions for Weimer, she reported she could not identify which set of teeth caused the mark.

The investigator sought a second opinion and got the one she wanted.

A bite-mark expert then reviewed Beal’s statement, photos of the injury to Haith’s hand, and teeth impressions from Gibson and Weimer. He concluded the bite mark matched Weimer.

The investigation continued. This ended up raising questions about the origin of this bite mark. Some evidence suggested the bite could have taken place hours or days before the murder. The prosecutor went back to the "expert" and, conveniently, secured a revision that turned Weimer back into the prime suspect.

Without reviewing additional evidence, he determined the bite occurred seven to ten minutes before Haith’s death.

The prosecutor went back to the state's key witness -- the ex-boyfriend who was already wrong about the blood on Weimer's clothes. His story changed. The witness claimed "a black man named Lonnie" had helped Weimer with the murder. But this "Lonnie" had been in jail at the time the murder took place, further distancing the state's key witness from anything resembling the truth. Somehow this failed to dissuade the state from relying on this very sketchy testimony. Adding this questionable testimony to other questionable testimony from a jailhouse informant -- one who claimed the state's favorite witness was involved in the murder -- prosecutors went after Weimer.

The case fell apart immediately. Weimer's ex-boyfriend recanted his story on the stand, claiming a police officer "kind of like coaxed me along" when preparing his statement. The state remained immune from dissuasion and took another swing at Weimer after the first trial had ended in a dismissal of all charges. The second time around it worked. Weimer was convicted of third-degree murder and conspiracy to commit murder.

Nine years later, Weimer had her charges vacated by a judge who found enough evidence to suggest she had been wrongly incarcerated and imprisoned. A whole bunch more evidence came to light during her retrial. That's where the state's bite mark "expert" performed his own Perry Mason move.

The bite-mark expert also disavowed his trial testimony, stating that his opinion that the bite mark was Weimer’s was based on “junk science.”

Also uncovered were letters from jailhouse informants that showed investigators and prosecutors handing out unspecified deals in exchange for testimony against Weimer. In June 2016, the charges were dropped with prejudice, ending eleven years of wrongful imprisonment.

Unfortunately, the ending for Weimer is far from happy. Too many layers of immunity stand in the way of prosecutors, experts, and investigators being held personally accountable for destroying an innocent woman's life. The prosecutor who led this witch hunt-esque "investigation" -- DA Nancy Vernon -- will escape some of the claims brought by Weimer. Most significantly -- at least in terms of what this post is highlighting -- she'll dodge any responsibility for using junk science to help press a very shaky case against Weimer. According to the court, everyone was still in the bite mark Dark Ages and can't be held responsible for the collective ignorance of law enforcement forensic techniques.

During the relevant time period—from late 2002 to early 2006—the unreliability of bite-mark evidence was not widely recognized such that “any reasonable official in [Vernon’s] shoes would have understood that [s]he was violating” Weimer’s rights by directing officers to investigate the timing of the bite mark on Haith’s hand. Despite allegations that the bite-mark expert later referred to such evidence as “junk science” during Weimer’s post-conviction proceedings, such evidence was widely used in criminal proceedings during and after Weimer’s trial, see Erica Beecher-Monas, Reality Bites: The Illusion of Science in Bite-Mark Evidence, 30 Cardozo L. Rev. 1369, 1375–87, 1408 (2009) (outlining the scientific unreliability of bite-mark evidence and arguing that judges “circumvent[] their gate-keeping responsibilities” by “continu[ing] to admit bite-mark testimony into evidence”); see also Brewer v. Hayne, 860 F.3d 819, 824–25 (5th Cir. 2017) (holding forensic odontologists were entitled to qualified immunity when the plaintiffs showed only that the evidence the experts presented at trial in the 1990s was no longer considered trustworthy by later standards and that the experts may have been negligent in their analysis). Thus, based on the law as it existed at the time, Vernon was not on notice that her alleged conduct of directing further investigation into the bitemark evidence would violate Weimer’s rights.

But almost every other claim survives. The prosecutor who ignored the evidence she didn't like (DNA evidence suggesting a male committed a crime/the lack of victim's DNA on Weimer) in favor of the stuff she did (bite mark "analysis," a bunch of jailhouse informants being offered deals) will have to face Weimer's malicious prosecution and civil rights conspiracy claim without the shields of qualified or absolute immunity.

Filed Under: 3rd circuit, bite marks, crystal dawn weimer, curtis haith, fake science, forensics, junk science, nancy vernon, police, prosecutors, thomas beal

Courts Shoot Down Yet Another FCC Proposal For Being Factually Sketchy

from the facts-and-stuff dept

As the net neutrality fracas made clear, Ajit Pai's FCC has been widely criticized for playing a bit fast and loose with the facts (read: disregarding facts entirely) as it rushes to eliminate most meaningful oversight of media and telecom giants (and the arguably broken markets they inhabit). For example, the net neutrality repeal was based in large part on bogus data directly copied from telecom lobbyists with zero real effort to disguise that fact.

And while that's not a big deal to Pai or the kind of partisan true believers who see no problem with Pai pandering to telecom and media giants, the courts have tended to see things differently. For example, Pai's attempts to strip away broadband subsidies for tribal residents was recently shot down by the courts for failing to provide any real supporting justification whatsoever. The courts also recently shot down most of an FCC wireless proposal that attempted to eliminate local authority (including things like environmental impact review) over cellular tower placement. Here too the courts found the FCC failed utterly to provide actual data supporting its policy shift.

Fast forward to this week and one begins to sense a bit of a theme. This week the U.S. Court of Appeals for the Third Circuit issued a ruling (pdf) shooting down the Trump FCC's attempt to obliterate media ownership limits to aid giants like Sinclair Broadcasting, who've had an eye on cornering the already semi-lobotomized local broadcasting sector.

Throughout much of 2017, the FCC worked overtime to eliminate decades-old media consolidation protections designed to prevent any one broadcaster from dominating the media space. Historically these rules have had broad bipartisan support, given smaller right and left wing outlets alike worry about being crushed by media monopolies who've cornered local TV markets. But the court ruled that the FCC completely ignored the impact mindless media consolidation would have on the quality of local journalism, the public, or women and people of color:

In a 2-1 new ruling, the U.S. Court of Appeals for the Third Circuit forced the FCC to go back to the drawing board in its quest to make life easier for media giants, arguing the agency “did not adequately consider the effect its sweeping rule changes will have on ownership of broadcast media by women and racial minorities."..."[the court stated] that FCC analysis justifying its decision was “so insubstantial that it would receive a failing grade in any introductory statistics class."

That's, you know, not subtle. The data on this subject is pretty clear. As Media broadcast giants hoover up local broadcast stations and eliminate quality local newsrooms, they're replacing quality, more culturally diverse local journalism with homogenized, mindless prattle. This lower quality "journalism" not only opens the door to less transparency and more corruption, but it results in more partisan, tribal political coverage that erodes nuance. In turn, data shows the public ends up less informed and more divided than ever, a measurable shift that can be profound enough to sway elections.

A lot of the FCC's movements on this front were framed as "modernization" of media regulations, though the real goal appears to have been to help Sinclair Broadcasting and its attempted merger with Tribune. But while the FCC spent much of 2017 chipping away at these rules to seemingly aid Sinclair, the deal ultimately had to be scrapped anyway after Sinclair was ironically caught allegedly lying to the FCC and engaging in a number of shell games to give the illusion that the deal would fall under the media ownership cap.

The FCC's continued failure to support its policies with actual data is a bit of a trend, as former FCC lawyer Gigi Sohn suggests:

"In his desire to destroy as many protections for consumers, diversity, competition and democracy as quickly as possible, the Chairman has forgotten one of the core tenants of administrative law; that an agency must adequately justify its decisions based on the record before it,” Sohn said."

Again, while making up facts may play well to Pai's partisan supporters and feel good to folks who think with their gut, it's not working out particularly well in the courts. And given Pai's net neutrality repeal (which not only gutted net neutrality but FCC authority) is based on a long list of provably false claims, there's a sense that Pai's attack on net neutrality could soon share a similar fate.

Filed Under: 3rd circuit, ajit pai, arbitrary and capricious, evidence, fcc, media ownership, statistics
Companies: sinclair broadcasting

The Internet Remains Broken In The Ninth Circuit And, At Least For Now, The Third

from the third-state dept

Hopes that the Ninth Circuit would correct its earlier awful ruling against HomeAway and Airbnb were dashed recently when the court denied the petition for rehearing. We had supported that petition because the original decision read in an exception to Section 230's statutory protection that is not present in the statute, is out of step with prior precedent (including in the Ninth Circuit itself), and threatens the Internet economy. Unfortunately, now that rehearing has been denied, any platform that facilitates commercial speech, and whose revenue model depends on facilitating the transactions arising from commercial speech, will no longer be able to reliably depend on Section 230's protection, at least not in the Ninth Circuit.

It also remains vulnerable in the Third. The Oberdorf v. Amazon case allowed a products liability claim to proceed against Amazon based on Pennsylvania law. Subsequently, a district court in New Jersey – a state within the Third Circuit, for which the Oberdorf would be binding precedent – decided to allow a similar products liability claim to proceed against Amazon based on New Jersey law, finding that, under its relevant statute, Amazon is a "seller" for purposes of its products liability law.

All these decisions are troubling, and the New Jersey one pointedly illustrates why. Not only does this decision incorporate the same analytical defects as the previous decisions, but it also reflects how all the ignorance about and hostility toward Section 230 of late has been infecting the courts.

As we explained before, all these decisions look past these platforms' role as an enabler of other people's speech. In the case of Amazon, it is other people who say they have something to sell. Denying these platforms Section 230 protection for this sort of user speech means that few, if any, platforms will be able to remain available to facilitate similar commercial speech offering something to sell. Before cheering how this state of affairs might hobble Amazon, however, bear in mind that it will hobble ANY platform that offers independent merchants a chance to offer their goods to a wider audience - including platforms that might be able to compete with Amazon. The more distaste we have for large, incumbent market players, either as platforms or even direct merchants, the more this turn of events should alarm us, because it will ensure we remain stuck with the ones who are already well-capitalized enough to endure this liability minefield and prevent us from getting any new ones.

In most of these cases the courts tried to pretend that there is something different about Amazon's relationship with third party vendors that should put them on the hook for their liability. In this case, the New Jersey court didn't like that Amazon fulfilled orders, or otherwise reserved the right to exercise editorial control over the listings it hosted.

It is true that the agreements did not make Amazon the ultimate decisionmaker as to the prices or physical qualities of the product. As to the sale process, however, the level of control was greater. For example, Amazon processed all payments. [The seller] was required to provide information about its product in the manner that Amazon prescribed. Amazon exercised control over the listing itself—in particular, it retained the right to change, suspend, prohibit or remove listings. If notified that a product was defective, Amazon had the power to take it off the shelf, i.e., to remove the website listing and thereby shield innocent consumers. Under the EBA program, Amazon even had the right to dispose of products that were defective. Compare Oberdorf in which the vendor did not use Amazon’s fulfillment services, so Amazon never physically possessed or shipped the product. Not so here. The vendor in our case signed the FBA and used the fulfillment services, so Amazon physically took custody of, packaged, and shipped the scooter which injured the plaintiff. [p. 26]

The above paragraph shows how a significant problem with this decision is how the court seriously overestimates just what sort of "control" Amazon actually has over the products sold through it. In reality there is no practical way for Amazon to police all the listings for all goods that all its users try to sell. The court confused Amazon's efforts to contractually reserve the right to try to police the listings anyway, which is exactly the sort of policing that Section 230 tries to encourage, with the actual ability to police each and every listing, which is functionally impossible. Just as Amazon could not possibly police all of its user reviews, and Section 230 exists to relieve them from the burden of this impossible task by shielding them from liability arising from these reviews, it could not possibly police all of its listings either, and so Section 230 should similarly insulate them from liability from this form of user expression too. Courts have been wrong to deny them this statutory protection, and especially so when this denial has been based on the unfounded and erroneous assumption that all this policing was something a platform could actually do.

Meanwhile, the fact that these decisions each quibble over the definition of "seller" under each individual state's law, on their way to deciding whether transactional platforms like Amazon should be liable for problems with their users' content, is itself further evidence that this sort of judicial inquiry should have been barred by the statute entirely. One of Section 230's most important provisions is its preemption provision, which forbids any state or locality from mucking about with its local law in a way that interferes with the reliable protection Section 230 is supposed to provide any online service provider, whose services are inherently available across the nation. It's easy to understand that this provision means that states can't change their definition of "defamation" in order to make a platform become liable for user content. But courts seem to be struggling to recognize that this provision should apply to any other state that would seek to make a platform liable for something wrong in their users' content (in this case the offer to sell a defective product). Allowing platforms' liability to hinge on the specific drafting of these state laws turns Section 230's protection into something inconsistent and provincial, instead of predictable and therefore useful, as Congress had intended.

The New Jersey decision did not blaze new ground here, however; it ended up being fairly consistent with the Oberdorf decision that preceded it. But it is notable for its candid hostility toward, and, dare I say, ignorance about, Section 230. In particular, in a chilling footnote, it dismissed Professor Jeff Kosseff's well-researched book, "The Twenty-Six Words That Created the Internet," and instead cited one of the completely fictional diatribes recently published in the New York Times as one of its sources underpinning its erroneous belief in the limits of Section 230.

I am not oblivious to the context or the stakes here. It has been said that the “twenty-six words” of Section 230 of the CDA, enacted in 1996, made e-commerce itself economically feasible by permitting platforms such as Amazon.com to match sellers with buyers without taking on the seller’s liabilities. See, e.g., J. KOSSEFF, The Twenty-six Words that Created the Internet, Cornell University Press (2019). It would perhaps be more sober and accurate to say that the twenty-six words of Section 230 promoted or facilitated important aspects of the internet as we now know it. A recent New York Times article, to pick an example almost at random, is a useful backgrounder on Section 230’s evolution as a tool for promotion of e-commerce (whether sly or serendipitous depends on your point of view). https://nvw.nytimes.com/2019/08/06/technology/section-230-hate-speech.html The article notes that political leaders as ideologically diverse as House Speaker Nancy Pelosi (D-CaI) and Senator Ted Cruz (R-Tex) have publicly criticized Section 230 as a giveaway to the tech industry, and have raised the possibility of reform or abolition. [fn. 18]

The court does go on to say that it was only crediting the animus against Section 230 insofar as it applied to e-commerce.

These e-commerce issues are to be distinguished. however, from others that are driving the current debate, such as Section 230’s grant of immunity for speech-based harms such as hate speech or libel. Id.; see also Reno v. ACLU, 521 U.S. 844 (1997). [id.]

But this clarification is hardly reassuring. Not only does it ignore that commercial speech is inseparable from any other sorts of expression Section 230 reaches, but if the court was in any way relying upon this ignorant media coverage, which almost universally misunderstand the purpose, value, and mechanics of the statute, then no wonder it felt comfortable ignoring them itself in gutting this critical statutory protection.

Fortunately, the one bit of tentative good news is that, unlike the Ninth Circuit, the Third Circuit has now granted rehearing of its Oberdorf decision. And, as a result, the district court in New Jersey has stayed the effect of its own decision, pending that reconsideration. Hopefully on further review the Third Circuit will be able to recognize how Section 230 is supposed to apply to even these transactional platforms, and the importance of not interfering with this operation.

Filed Under: 3rd circuit, 9th circuit, housing, rentals, section 230, transactions
Companies: airbnb, amazon

Third Circuit Says TSA Officers Can Be Sued Directly For Abuses And Rights Violations

from the trimming-the-edges-of-sovereign-immunity dept

Good news has arrived for the long, long, oh so very long list of travelers who've had their rights abused by TSA agents. Reversing its own decision, the full panel of Third Circuit Appeals Court judges has removed TSA agents from "can't be sued" list.

Originally, the court had held that Transportation Security Officers (TSOs) were immune from civil lawsuits under the Federal Tort Claims Act. For the most part, federal government employees can't be sued directly. Previously, this covered TSA employees, whom the Third Circuit claimed were not "investigative or law enforcement officers" -- one of the few exemptions from this blanket immunity.

That ended Nadine Pellegrino's lawsuit against the TSA agents who behaved abusively during her "extended screening." Here's a description of those events from the Third Circuit's reversal:

As Pellegrino passed through the security checkpoint, she was randomly selected for additional screening. A TSO began examining her bags, but she stopped him and requested a more discreet screening. In a private room, several TSOs combed through Pellegrino’s luggage, papers, and other effects. One allegedly counted her coins and currency, examined her cell phone data, read the front and back of her membership and credit cards, and opened and smelled her cosmetics, mints, and hand sanitizer. Per Pellegrino, the TSO also spilled the contents of several containers and was so rough with her belongings that her jewelry and eyeglasses were damaged. Frustrated, she told the TSOs that she would report their conduct to a supervisor.

The screening ended, but the TSOs’ alleged torment did not. Pellegrino was left to clean up the mess created by the search, a task that took several trips to and from the screening room. As she was repacking her first bag, one of the TSOs claimed that Pellegrino struck her with it. On a trip to retrieve another bag, another TSO allegedly blocked Pellegrino’s access to it, forcing her to crawl under a table to reach it. When she did so, the table tipped over, and the TSO claimed Pellegrino struck her in the leg while she was collecting the bag. Pellegrino denies striking either TSO and alleges she heard both say to one another, “[Y]ou saw her hit me, didn’t you?”

It got worse from there. The TSOs decided to respond with a complaint of their own. They took a bunch of bullshit allegations to local prosecutors, which resulted in Pellegrino being charged with ten (!) criminal acts, including assault, making terroristic threats (!!), and "possession of an instrument of crime" (her luggage) (!!!).

All of those charges eventually vanished when the TSA failed to produce a recording of the extending screening and a TSO gave contradictory testimony in court.

This decision [PDF] revives Pellegrino's lawsuit. The court says TSOs are authorized to search people and their belongings. This moves them into "investigative/law enforcement" territory and out from underneath the immunity blanket.

The court finds that TSOs meet every requirement needed to become the sort of federal employee that can be sued directly. No more sovereign immunity for these agents, who are officers "empowered by law to execute searches."

To repeat, the complete proviso definition for an “investigative or law enforcement officer” is “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” 28 U.S.C. § 2680(h). By its plain terms, the phrase “empowered by law” narrows the scope of “officer[s]” covered from the set of all “officer[s] of the United States” to the subset of those with the authority to, among other things, “execute searches.”

Turning, then, to the statutory authority of TSOs, they are empowered by law to conduct “the screening of all passengers and property.” 49 U.S.C. § 44901(a). Screening, in turn, is defined in part as a “physical examination,” including a “physical search.” Id. § 44901(g)(4) (regarding screening of luggage). Hence TSOs are “empowered by law” within the meaning of the proviso.

As to the "searches" part of the provision:

TSO screenings are “searches” (i) as a matter of ordinary meaning, (ii) under the Fourth Amendment, and (iii) under the definition provided in Terry v. Ohio, 392 U.S. 1 (1968). Attempts to distinguish (iv) between administrative and criminal “searches” are divorced from the plain text, and any distinction, if one must be made, should account for (v) the fact that TSA searches extend to the general public and involve examinations of an individual’s physical person and her property.

The government tried to argue that passengers cannot sue over alleged Fourth Amendment violations because they trade their rights for the privilege of boarding airplanes. The court says this isn't correct and it certainly isn't a voluntary exchange.

The Government does not dispute that holding. Instead, it contends that consent by passengers cancels the Fourth Amendment’s effect. But the presence or absence of consent does not determine whether a search has occurred for purposes of the Fourth Amendment. [...] In any event, TSO screenings are not consensual. As noted, per TSA regulations any individual who does not consent to a “search or inspection” may not board a flight.

The government also tried to save TSOs from lawsuits by claiming these highly-intrusive airport searches were merely "administrative," the groin-grabbing equivalent of grabbing regulatory files from a local business. The court not only disagrees, but dunks on the government's terrible argument.

To begin, TSO screenings often involve invasive examinations of the physical person. As even the panel majority in this case acknowledged, TSA searches are “rigorous and intimate for individuals.” Pellegrino, 896 F.3d at 230. This sets them apart from other administrative searches that involve only inspections of property or the environment.

[...]

Next, the risk of abuse is greater for TSO screenings than for most other administrative searches. Because TSA searches affect the public directly, the potential for widespread harm is elevated. This potential for abuse in borne out by Pellegrino’s own experience. There is a reason that FDA meat inspectors do not generate headlines about sexual assault and other intimate violations.

The final word on TSOs and their immunity? They no longer have any.

Words matter. This core tenet of statutory interpretation channels our conclusion today: TSOs are “investigative or law enforcement officers” as defined in the Tort Claims Act at 28 U.S.C. § 2680(h). They are “officer[s] of the United States” by dint of their title, badge, and authority. They are “empowered by law to execute searches” because, by statutory command and implementing regulation, they may physically examine passengers and the property they bring with them to airports. And the TSOs’ searches are “for violations of Federal law” given that their inspections are for items that federal law bans on aircraft (often with criminal consequences).

If security officers violate rights (they do) and damage people's property (they do), then they should be held accountable for their actions. The TSA certainly doesn't seem interested in doing this, so it's left up to the courts to handle it. In this circuit, TSOs can be sued, but this doesn't change anything for those residing outside of this jurisdiction. If the government decides to challenge this decision, it may open itself up to a Supreme Court declaration that gives the entire nation the ability to directly sue TSA security officers. It will be interesting to see what it chooses to do, given the potential downside for its employees.

Filed Under: 3rd circuit, abuse, federal tort claims act, nadine pellegrino, screening, searches, security theater, standing, tsa, tso

The Sixth Circuit Also Makes A Mess Of Section 230 And Good Internet Policy

from the no-good-deed-goes-unpunished dept

Yesterday we wrote about a bad Section 230 decision against Amazon from the Third Circuit. But shortly before it came out the Sixth Circuit had issued its own decision determining that Section 230 could not protect Amazon from another products liability case. But not for the same reason.

First, the bad facts, which may even be worse: the plaintiffs had bought a hoverboard via Amazon, and it burned their house down (and while two of their kids were in it). So they sued Amazon, as well as the vendor who had sold the product.

From a Section 230 perspective, this case isn't quite as bad as the Third Circuit Oberdorf decision. Significantly, unlike the Third Circuit, which found Amazon to be a "seller" under Pennsylvania law, here the Sixth Circuit did not find that Amazon qualified as a "seller" under the applicable Tennessee state law. [p. 12-13] This difference illustrates why the pre-emption provision of Section 230 is so important. Internet platforms offer their services across state lines, but state laws can vary significantly. If their Section 230 protection could end at each state border it would not be useful protection.

But although this case turned out differently than the Third Circuit case and the Ninth Circuit's decision in HomeAway v. City of Santa Monica, it channeled another unfortunate Ninth Circuit decision: Barnes v. Yahoo. In Barnes Yahoo was protected by Section 230 from liability in a wrongful user post. After all, it was not the party that had created the wrongful content. Because it couldn't be held liable for it, it also couldn't be forced to take it down. But Yahoo had offered to take the post down anyway. It was a gratuitous offer, one it didn’t have to make. But, per the Ninth Circuit, once having made it, Section 230 provided no more protection from liability arising from how Yahoo fulfilled that promise.

Which may, on the surface, sound reasonable, except consider the result: now platforms don't offer to take posts down. It just doesn't pay to try to be so user-friendly, because if the platform can't get things exactly right on that front, they can be sued since, per the Ninth Circuit, Section 230 ceases to provide any protection. (And even if the platform might not ultimately face liability, it would still have to face an expensive lawsuit to get there.) So thanks to this case the Ninth Circuit ended up chilling platform behavior that we would have been better off instead encouraging to get more of. It may have won the battle for this person (their lawsuit could proceed) but it lost the war for the rest of the public.

This case from the Sixth Circuit presents a similar problem. Amazon did not have to do anything with respect to hoverboard sales, but it created liability problems for itself when it tried to anyway. Eventually it banned them, but more at issue is that it sent an email to purchasers indicating that there had been reports of problems with them:

“There have been news reports of safety issues involving products like the one you purchased that contain rechargeable lithium-ion batteries. As a precaution, we want to share with you some additional information about lithium-ion batteries and safety tips for using products that contain them.” The email included a link for the “information and safety tips,” a link “to initiate a return,” and a request that the recipient “pass along this information” to the proper person if the hoverboard was purchased for someone else. [p. 5]

The plaintiffs argued that the email Amazon sent was not enough of a warning and that it should have been more clear about the fire hazard. [p. 6] The Sixth Circuit did not decide whether it was adequate or not. What it did decide, however, was that Section 230 was no obstacle to the litigation continuing to explore that question.

Tennessee tort law provides that an individual can assume a duty to act, and thereby become subject to the duty of acting reasonably.

[…]

In this case, Plaintiffs allege that Defendant gratuitously undertook to warn Plaintiff Megan Fox of the dangers posed by the hoverboard when it sent her the December 12, 2015 email, that Defendant was negligent in that undertaking, and that Defendant’s negligence caused them harm. The district court held that § 324A was inapplicable to Plaintiffs’ claims because it “contemplate[d] liability to third parties.” (RE 161, PageID # 2221–22.) And the district court also held that Plaintiffs forfeited any § 323 claim. The first holding was erroneous, and the second we need not address.

[…]

Plaintiffs argue that Defendant undertook to warn Plaintiff Megan Fox when it sent her the December 12, 2015 email, and that Defendant’s negligent warning caused physical harm to the other members of her family. Accordingly, while Defendant’s liability to Plaintiff Megan Fox is properly governed by § 323, Defendant’s liability to the other members of her family is properly governed by § 324A.7 See Grogan, 535 S.W.3d at 872–73. Thus, the district court’s holding that § 324A was inapplicable to Plaintiffs’ Tennessee tort law claim was erroneous.

Applying § 324A to the facts of this case, Defendant chose to send the December 12, 2015 email to Plaintiff Megan Fox, and in doing so plainly sought to warn her of the dangers posed by the hoverboard.

[…]

Thus, we hold that Defendant assumed a duty to warn Plaintiff Megan Fox of the dangers posed by the hoverboard when it sent her the December 12, 2015 email. [p. 13-16]

The decision's explanation of how tort law works is not striking. The problem is that all sorts of state tort law could reach the Internet, and strangle it, if state tort law could reach platforms. And here is a court saying it can, despite the existence of Section 230 generally saying that it can't.

In a way, though, this case is much less dire for the Internet than some of the other cases we've discussed, like Oberdorf, HomeAway, and the Court of Appeals ruling in Armslist. Platforms can still avoid liability. But they will avoid it by curtailing the sort of beneficial activity Section 230 normally wants to encourage. In letting these state law tort claims go forward the decision reads as a big warning sign for platforms not to bother trying to help their users in similar ways. Amazon did not have to send an email, but by trying to reach out to users anyway it tempted trouble for itself it could have avoided if it had instead done nothing.

But if that fact doesn't pull at the heartstrings, remember that the precedent will apply to any other platform, no matter how small. The moral of this story is that it is much safer for all platforms to do nothing than to try to do something. If trying to be helpful to users causes platforms pick up duties that they otherwise would not have had and face liability for not fulfilling them well enough, they won't. They will be discouraged from trying, even though the public would be much better off if they were instead encouraged to continue these efforts. Curtailing Section 230 to allow state tort law to reach platforms now means that instead of getting more of the user-friendly behavior Section 230 tried to encourage, we will now get less.

Filed Under: 3rd circuit, e-commerce, liability, section 230
Companies: amazon

The Third Circuit Joins The Ninth In Excluding E-Commerce Platforms From Section 230's Protection

from the selling-out-the-Internet dept

Remember when there was a terrible decision in the 5Pointz VARA case and I wrote 3000 words to explain just how terrible it was? Well, buckle-up, because here's another awful decision, this time in the Section 230 realm. In fact, this one may even be worse, because it was a decision at the federal appellate level, and thus we are more likely to feel the impact of its terribleness. What follows is an explanation of how it so badly missed the mark.

Not long ago we warned that the Ninth Circuit's decision in HomeAway v. City of Santa Monica, if allowed to stand, threatened Internet commerce. This new decision from the Third Circuit in Oberdorf v. Amazon heightens that alarm. As with the Ninth Circuit, it reflects undue focus on the commercial transaction it facilitated instead of on the underlying expression the transaction was connected to. Worse, it did so in a way that gave short shrift to the policy interests behind why Section 230 exists in the first place.

As is typical in cases with terrible Section 230 rulings, the underlying facts in this case are terrible too. One of the plaintiffs had bought a retractable dog leash via Amazon. The leash was defective, and when it broke it recoiled in a way that blinded her in one eye. She and her husband then sued Amazon over the injury. The district court dismissed their claims, partially for Section 230 reasons, and also because it could not find a way to deem Amazon a "seller" for purposes of the Pennsylvania consumer protection law the plaintiffs were trying to base their claim upon. But the Third Circuit, looking at the decision afresh, substantially rejected the district court's analysis and largely reversed its holding. It's this decision that joins the Ninth Circuit HomeAway decision in now seriously threatening Internet commerce.

It is worth noting that this was a 2-1 decision, with a majority opinion providing the controlling analysis and a dissent. Much of the majority decision involves pages and pages of discussion about what counts as a "seller" under that Pennsylvania law. While on the surface this discussion may seem at first seem tangential to our larger Section 230 concerns, in this case it ends up being fairly relevant. For one thing, it's part of the decision, and it shouldn't be. Section 230 includes a pre-emption provision because state and local laws are often messy and, worse, contradictory. An Internet platform's protection from liability should not be contingent on how any given state a platform's services may reach has opted to write its local law. So the mere fact that the decision starts out by reviewing how Pennsylvania's state law might affect the liability of an Internet platform like Amazon is the first sign that the decision is trouble.

Also, the "seller" analysis is itself revealing about how the court got the analysis denying Amazon Section 230 protection so very wrong. Not only does it read like a pre-ordained result – the court seems to really want Amazon to lose this case and stretches its reasoning to make sure this consumer protection law can reach them (in ways the dissent takes significant issue with) – but what's most telling is that the ways that the court decides that Amazon flunks the four-factor test it used to use to decide whether Amazon was a "seller" show why Section 230 should have applied and foreclosed this entire "are they a seller" analytical exercise in the first place.

Things start off poorly. The first factor is whether Amazon “may be the only member of the marketing chain available to the injured plaintiff for redress.” The majority complains:

[…]Amazon fails to account for the fact that under the Agreement, third-party vendors can communicate with the customer only through Amazon. This enables third-party vendors to conceal themselves from the customer, leaving customers injured by defective products with no direct recourse to the third-party vendor. [p. 14]

It is a legitimate policy problem that it can be challenging, if not sometimes impossible, to find the person who used the Internet to cause harm and then hold them responsible. But that difficulty doesn't mean that Section 230 is to blame, nor does it follow that Section 230 should be curtailed, which would only end up inviting all the other significant harms that Section 230 exists to prevent. Courts have been clear on this point for over twenty years: Section 230 applies even if the party behind the content at issue cannot be found.

Furthermore, even if there were some reason why that rule should be different here, the majority presented no meaningful justification for why, even though Section 230 would insulate a platform in cases where, say, a user might have said something defamatory, it would not similarly protect the platform if the user's expression instead had offered the sale of a defective good. In all these situations the problem with the expression originated with the user, not the platform, yet the majority treats these situations as if they were somehow different, when they are not. Section 230 should therefore still apply.

Meanwhile, the dissent points out that the majority's decision would effectively punish marketplace platforms for not having vetted all of their users. To which the majority unconvincingly dismisses this reality by declaring, without support, that if the Internet user cannot be found the platform must absorb the liability.

The first factor weighs in favor of strict liability not because The Furry Gang cannot be located and/or may be insolvent, but rather because Amazon enables third-party vendors such as The Furry Gang to structure and/or conceal themselves from liability altogether. As a result, Amazon remains “the only member of the marketing chain available to the injured plaintiff for redress.” [p. 15].

In other words, like the Wisconsin Court of Appeals in Armslist had tried to do (before the Wisconsin Supreme Court corrected it), the Third Circuit is seeking to allow for the punishment of a platform for being a platform that people could use in bad ways. But it is because we knew that people would use the Internet in bad ways that Congress passed Section 230 in the first place. It's the very reason why we insulated platforms from liability. It is not a reason to now take away that protection.

Section 230 was also passed so that platforms would not be crippled with the burden of having to vet all their users or all the expression their users used their services to facilitate. The dissent is right that the majority decision creates that obligation, and thus threatens to chill future online commercial activity, not just by Amazon, but by anyone, including any smaller platforms and anyone who might want to compete with Amazon.

Worse, the majority holds against Amazon that Amazon had tried to police the commercial user expression appearing on its platform anyway, even though it didn't have to. It deems the volitional acts Amazon performed as evidence of sufficient "control" over the contents appearing on its platform to justify holding Amazon liable for anything wrong with that user speech.

Although Amazon does not have direct influence over the design and manufacture of third-party products, Amazon exerts substantial control over third-party vendors. Third party vendors have signed on to Amazon’s Agreement, which grants Amazon “the right in [its] sole discretion to . . . suspend[], prohibit[], or remov[e] any [product] listing,” “withhold any payments” to third-party vendors, “impose transaction limits,” and “terminate or suspend . . . any Service [to a third-party-vendor] for any reason at any time.” Therefore, Amazon is fully capable, in its sole discretion, of removing unsafe products from its website. Imposing strict liability upon Amazon would be an incentive to do so. [p. 16]

First, given the sheer volume of content that Amazon intermediates, it is not at all certain that it is correct to say that "Amazon is fully capable of removing unsafe products from its website." It requires a giant, unsupported logical leap to read the language in Amazon's vendor agreement reserving its rights solely with respect to its vendor-users as any sort of declaration that it has the practical ability necessary to do the sort of moderation the majority declares it now must do.

The dissent recognizes this problem. As the majority cites in footnote 28:

The dissent contends that holding Amazon strictly liable for defective products will require them to “enter a fundamentally new business model” because “the company does not undertake to curate its selection of products, nor generally to police them for dangerousness.”

But then the majority dismisses this concern in the same footnote:

We do not believe that Pennsylvania law shields a company from strict liability simply because it adheres to a business model that fails to prioritize consumer safety. The dissent’s reasoning would give an incentive to companies to design business models, like that of Amazon, that do nothing to protect consumers from defective products.

Not only does this language return us to the discussion as to why Section 230 includes a pre-emption provision in order to protect it reliably from the vagaries of state law, but it also fails to account for the market pressures that will demand marketplace platforms act in ways that best protect consumers. The majority seems to take the view that "but for" its ruling no one would be looking out for consumers, but it provided no basis to believe that this assumption is true.

Worse, the decision ends up making it all that much harder, if not impossible, for platforms to look out for consumers as the Third Circuit would want them to. By taking issue with all the things Amazon says it may do to police their platform in the language of its vendor agreement, it's made it impossible for Amazon, or any other marketplace vendor, to actually pursue any of them since the attempt just risks liability for itself. Yet these things are exactly the sorts of moderation activities that Section 230 expressly protects in order to encourage platforms to do. Section 230 sets up a situation where platforms can feel able to take what steps they can to police the user content they facilitate because it removes the risk of liability if they do. But here is the Third Circuit now chilling that moderation activity by instead using it as a basis for imposing liability.

The reasoning for the third and fourth factors isn't much better. The third factor involves considering whether Amazon is “in a better position than the consumer to prevent the circulation of defective products.” [p. 17]. In an earlier Pennsylvania case an auction house had been found not to have been liable for a defective product it sold as a "seller," for several reasons, including that it didn't have sufficient ability to prevent the distribution of defective problems. With little more than supposition, however, the majority decided that Amazon, somehow, did.

Moreover, Amazon is uniquely positioned to receive reports of defective products, which in turn can lead to such products being removed from circulation. Amazon’s website, which Amazon in its sole discretion has the right to manage, serves as the public-facing forum for products listed by third party vendors. In its contract with third-party vendors, Amazon already retains the ability to collect customer feedback: “We may use mechanisms that rate, or allow shoppers to rate, Your Products and your performance as a seller and Amazon may make these ratings and feedback publicly available.” Third-party vendors, on the other hand, are ill-equipped to fulfill this function, because Amazon specifically curtails the channels that third-party vendors may use to communicate with customers: “[Y]ou may only use tools and methods that we designate to communicate with Amazon site users regarding Your Transactions . . ..” [p. 18]

The majority never explains why third-party vendors can't also read the public reviews, or why the Amazon-provided communications mechanisms might not be adequate. And the dissent questions the entire conclusion that Amazon is somehow better situated to take defective items out of circulation.

The dissent contends that Amazon is no better-positioned than the consumer to encourage the safety of products sold in the Amazon Marketplace. However, the dissent openly acknowledges at least one aspect of Amazon’s relationship with third-party sellers that demonstrates Amazon’s powerful position relative to the consumer: Amazon “reserves the right to eject sellers.” Imposing strict liability on Amazon will ensure that the company uses this relative position of power to eject sellers who have been determined to be selling defective goods. [fn 35]

It is hardly revelatory that platforms have the power to terminate users. It's no secret that they can. Pretty much all platforms can, but per the majority's reasoning, none of them should ever be able to avail themselves of Section 230 protection as a result, if they do. Also, using the threat of liability to mandate censorship of any kind – even censorship that might be valid or beneficial – is also what Section 230 was intended to prevent, since the censorship that results from liability pressures so often isn't valid or beneficial. Yet here is the majority doing just that, using the threat of liability to cause vendor expression to be removed, even though it will inevitably cause the same unwarranted censorship, for fear of liability, that Section 230 was designed to forestall for all types of user expression.

Then the fourth factor considers who can best pay to redress the harm. The majority effectively finds that Amazon has the deepest and most locatable pockets, so therefore it decides that it should pay. If this be the rule, other large platforms have deep pockets as well, but not so smaller ones generally, yet eroding Section 230 protection for the big players erodes it for them as well. And even large pockets are not infinitely deep. The majority dismisses this concern by reasoning that Amazon can simply raise its prices:

Moreover, Amazon can adjust the commission-based fees that it charges to third-party vendors based on the risk that the third-party vendor presents. [p. 20]

Of course, those price increases will ultimately be passed onto consumers. Also, if the solution to platform liability is that platforms should just charge more for their services, it bodes poorly for all the free services Internet users have been able to benefit from to date and threatens to lock out those users who won't be able to afford to continue.

Ultimately, if there is a bright spot in this decision it is that the majority still found that Section 230 knocked out a few of the plaintiffs' claims, claims where the court was able to identify how they involved expressive activity by the platform.

to the extent that Oberdorf is alleging that Amazon failed to provide or to edit adequate warnings regarding the use of the dog collar, we conclude that that activity falls within the publisher’s editorial function. That is, Amazon failed to add necessary information to content of the website. For that reason, these failure to warn claims are barred by the CDA. [p. 32-33]

But in failing to recognize the expressive activity involved with "Amazon’s role as an actor in the sales process" the Third Circuit has doubled-down on the false dichotomy the Ninth Circuit's earlier HomeAway decision had created by deeming the brokering of the financial transaction connected with the facilitation of expression as something somehow separate from that expression. This bifurcation threatens to put all commercial activity beyond the reach of Section 230 and create an exception to its protection that simply is not in the statute, for good reason.

Filed Under: 3rd circuit, cda 230, e-commerce, intermediary liability, section 230, transactions
Companies: amazon

Appeals Court Says TSA Agents Are Beyond The Reach Of Federal Lawsuits

from the agents-in-baggy-tactical-pants-shouting-'u-can't-touch-this'-forever dept

Well, this is disappointing. The 3rd Circuit Court of Appeals has just made it pretty much impossible to sue a TSA officer, no matter how you've been treated or how many of your rights have been violated. Reuters has the rundown on the decision, which all comes down to the court's definition of the words "law enforcement officer." (via Parker Higgins)

In a 2-1 vote, the 3rd U.S. Circuit Court of Appeals in Philadelphia said Transportation Security Administration (TSA) screeners were not “investigative or law enforcement officers,” and were therefore shielded from liability under the Federal Tort Claims Act (FTCA).

The majority said it was “sympathetic” to concerns that its decision would leave fliers with “very limited legal redress” for alleged mistreatment by aggressive or overzealous screeners, which adds to the ordinary stresses of air travel.

“For most people, TSA screenings are an unavoidable feature of flying,” but it is “squarely in the realm” of Congress to expand liability for abuses, Circuit Judge Cheryl Ann Krause wrote.

Thanks, Judge Krause. I'm sure Congress will get right on that. Seeing as there's no personal benefit to Congress members and ample opportunity to piss off fellow government employees with the power to make their travel experiences closely resemble an abduction by aliens, there's little chance of this being pursued, no matter how many cases are shrugged into their lap.

Here's the background: the appellant (Nadine Pellegrino) was selected for additional screening. She demanded a private screening and things went from bad to worse quickly. Items were carelessly packed and unpacked. Personal belongings were damaged. TSA agents were unhelpful, rude, and apparently deliberately obstructive. Agents claimed Pellegrino "hit" them with her belongings while in the screening room. Not "hit" as in the endpoint of a swing, but "hit" as in things bumped into them while they were dealing with an unhappy traveler. Oh, and she called the two officers in the room "bitches." This is how a bunch of government employees -- starting with the TSA agents -- chose to handle it. From the decision [PDF]:

When the police arrived, Pellegrino was frisked, handcuffed, and arrested. Labbee confiscated her driver’s license and, along with Abdul-Malik, swore out criminal complaints against her. Kissinger offered a witness statement corroborating the allegation that Pellegrino struck Labbee in the leg with her bag. The police escorted Pellegrino out of the airport in plain view of other passengers. She was held for roughly 18 hours and released after her husband posted approximately $400 in bail.

The police incident report stated Pellegrino struck both Labbee and Abdul-Malik with her bags and shoes that she tossed out of the private screening room. It also noted both TSOs suffered from leg pain and a stomach bruise as a result of Pellegrino’s actions.

Did things calm down? Hardly. The Philadelphia District Attorney’s Office charged Pellegrino with ten criminal violations: two counts of felony aggravated assault, see 18 Pa. Cons. Stat. § 2702; two counts of possession of an instrument of a crime (the suitcases allegedly used to hit the TSOs), see id. § 907; two counts of making terroristic threats, see id. § 2706; two counts of simple assault, see id. § 2701; and two counts of recklessly endangering another person, see id. § 2705. (Someone must have taken creative charging and aced the test; either that or there was a lot of lawyer-lounge temporizing.)

That's where this all starts. This is how the 3rd Circuit chose to end it.

The long decision spends most of its running time interpreting various words to the detriment of the public at large. TSA officers enforce laws, detain people, perform searches of both people and their things and yet, somehow, they're not "investigative or law enforcement officers." The court unhelpfully explains the only reason TSA officers are called "officers" is because the agency threw employees an undeserved bone to lift flagging morale.

[A]s we noted previously, TSOs were originally called “screeners,” and their title was changed in 2005 merely as part of an effort to improve employee incentives and “upward mobility opportunities within [the] profession.” Specifically, it appears that the title change and related adjustments were intended to “give TSOs an opportunity to . . . apply for DHS law enforcement positions”—further undermining the notion that TSOs already constitute a species of law enforcement officer.

If we can take any joy from this decision at all, it's the fact that the "promotion" from "screeners" to "officers" was as meaningless as everything else the TSA does. That's the most cynical way to appreciate this decision -- one that decides a whole bunch of words scattered across a few dozen pages somehow alters the fact that these "officers" do stuff associated with law enforcement and investigation, even if they have to turn over actual arrests and bookings to local cops.

Judge Thomas Ambro's dissent highlights how ridiculous -- and ridiculously unhelpful -- the majority's dissembling is.

No other Court of Appeals has gone as far as they do by categorically barring certain classes of individuals (i.e., those who are not criminal law enforcement officers) from the reach of the proviso. Nor has any other Court of Appeals relied on another statute’s and an agency’s classifications to determine whether a federal agent is an “investigative or law enforcement officer” under § 2680(h).14 The majority’s reasoning would allow Congress—and perhaps even agencies—to exempt individuals from the proviso’s reach simply by categorizing them as employees who lack criminal law enforcement powers. See Majority Op. at 43 (citing a TSA directive that discusses the distinctions between TSOs and law enforcement officers). It would also empower courts to disregard § 2680(h)’s statutory definition of “investigative or law enforcement officer” in favor of those terms’ meanings as perceived by the particular judicial panel. Such a rule would allow courts to expand or contract statutory definitions as they see fit.

This isn't any way to run a law shop. But this is the way the Third Circuit runs its jurisdiction. This is its second shielding of TSA officers from federal civil rights lawsuits -- something it says it does reluctantly, but also apparently repeatedly.

TSA officers are empowered to search for violations of federal law and enforce federal travel regulations. However the TSA chooses to define their duties -- and it deliberately chooses to describe them as outside the reach of federal torts whenever convenient -- they are officers of the law and there's even a hint of "investigation" to the work they do. Then again, what do you expect from an agency that defines the airport screening process this absurdly?

The Government [...] contends TSA screenings are not searches under § 2680(h)’s proviso because they are consensual and limited in nature.

They're only "voluntary" in the sense that no one holds a gun to your head and forces you to buy a plane ticket. Other than that, they're mandatory. If you're flying, you're submitting to a search the federal government says lies outside the protections of the Fourth Amendment and, in this case, outside the reach of a federal lawsuit, should a TSA officer steamroll your rights.

Filed Under: 3rd circuit, law enforcement, lawsuits, tsa

The Fifth Amendment Vs. Indefinite Jailing: Court Still No Closer To Deciding On Compelled Decryption

from the might-as-well-take-your-time,-as-it's-actually-someone-else's dept

We wrote about this case last April, and it appears very little has changed over the last 10 months. Francis Rawls, a former Philadelphia policeman, is still in jail because he has refused to decrypt his computer for prosecutors. At this point, Rawls has been jailed for sixteen months on contempt of court charges.

How long will Rawls stay jailed without a criminal conviction? The prosecution says that's up to him. As for the appeals court, it apparently doesn't feel a pressing need to address the unresolved issue: whether or not the Fifth Amendment protects citizens against being forced to turn over passwords.

The federal court system appears to be in no hurry to resolve an unresolved legal issue: does the Fifth Amendment protect the public from being forced to decrypt their digital belongings? Until this is answered, Rawls is likely to continue to languish behind bars. A federal appeals court heard oral arguments about Rawls' plight last September. So far, there's been no response from the US 3rd Circuit Court of Appeals, based in Philadelphia.

If Rawls' devices had been secured with a fingerprint, there's a good chance he'd already have been forced to unlock his devices. There haven't been a lot of decisions pertaining to the use of fingerprints to decrypt devices, but those we have seen indicate judges don't view the taking/application of suspects' fingerprints to be "testimonial." Unlocking a device that contains evidence to convict a person apparently doesn't undermine their right to not be forced to testify against themselves. The reasoning in a recent appeals court decision was that a fingerprint is not something stored in a suspect's mind. Therefore, it's not testimony. It's, for lack of better words, a bodily "fact," like the blood stored in a suspect or a suspect's resemblance to a person described by eyewitnesses.

Because Rawls is facing child pornography charges, there hasn't been much public support for his legal battle. The problem with ignoring this one and waiting for a "better" case to roll around is that the weakening (or rewriting) of Constitutional protections almost always starts with the worst cases. Once precedent and/or legislation is in place, the diminished protections affect everyone -- even those whose alleged actions are far less socially-abhorrent as the accused in this case.

The EFF, however, has stepped into the breach -- as it has in other cases where child porn suspects are central to battles over Constitutional rights.

The Electronic Frontier Foundation told the court in a friend-of-the-court brief (PDF) that "compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment provides an absolute privilege against such self-incriminating compelled decryption."

The other aspect of this case that bears watching is the All Writs Order the government has deployed to obtain this fingerprint. The All Writs Act of 1789 is seeing an uptick in deployment 200+ years after its passage. The government uses this any time it can't find statutory authority for its demands. It's a feature of the Act, not a bug, and its increased use suggests several other laws are badly in need of updating -- and not just in the government's favor. There are at least as many gaps in protections as there are gaps in authority in the laws governing digital data and communications, many of which were written long before the internet became the main means of public communication and storage capacity/prices allowed any person to store several lifetimes of information on devices small enough to stick in their pockets.

Filed Under: 3rd circuit, compelled decryption, encryption, fifth amendment, francis rawls, passwords