Federal Court Blocks Enforcement Of Florida's New Anti-Riot Law

from the looks-like-some-old-school-racism-from-here dept

Earlier this year, the Florida state legislature passed a law that turned protesting into a crime by expanding the definition of "riot" to make peaceful protesters culpable for the actions of those actually engaged in rioting. It refused bail to those arrested at protests and the term "aggravated rioting" was expanded enough to cover any gathering of more than nine people that blocked any road.

As soon as the law went into effect, it was deployed against protesters. But only certain protesters. Those involved in Black Lives Matter/anti-police brutality protests were targeted, but Cuban solidarity protesters were not only allowed to block traffic without being arrested, they were actually allowed onto freeway access ramps by police officers.

The law was immediately challenged by a number of groups when it went into effect. The Florida NAACP, Black Lives Matter Alliance Broward, and Dream Defenders sued to have the law blocked and declared unconstitutional. Thanks to a Florida federal court, they have obtained the injunction they were seeking.

The injunction order [PDF], written by Judge Mark Walker, opens with a brief recounting of how riot laws have historically been deployed to assist the government in enforcing segregation and other racists policies.

On May 27, 1956, Wilhelmina Jakes and Carrie Patterson, two Black students from Florida Agricultural and Mechanical University in Tallahassee, boarded a local city bus. They sat in the only available seats, which were in the “whites-only” section. The two women refused to move when ordered to do so, and the bus driver called in the police. Three police cars arrived at the scene and Ms. Jakes and Ms. Patterson were arrested. Their charge—“inciting a riot.” The rest is history.

Five years after the FAMU students’ arrests, nine clergymen arrived at the Tallahassee Airport to test the state’s Jim Crow laws as part of the Freedom Rides of 1961. The clergymen were Black and White men of various faiths, including two rabbis and ordained ministers from several Protestant denominations. Over the course of about 24 hours, they repeatedly rescheduled their outbound flights in an apparent attempt to see if the Tallahassee Airport’s restaurant would serve them as a group. The clergymen had previously been “given protection against violence or other disorder from groups or individuals who resented [their] activities,” but after a day of rescheduled flights, the City had enough of their efforts “to goad the municipality and its restaurant lessee to open the restaurant,” and serve the Black and White men together. Accordingly, the city attorney approached the clergymen at the airport and proclaimed that their assembly “at the municipal Airport of Tallahassee will tend to create a disturbance or incite a riot or disorderly conduct within the City of Tallahassee at its Municipal Airport over which the city had jurisdiction.” The city attorney ordered the clergymen to disperse, but after about ninety seconds and their failure to do so, the city attorney directed the chief of police to arrest them.

While Governor Ron DeSantis and his allies in the state legislature will never admit it, this law was passed to quell protests that largely concern black people and their interests -- one of which is the understandable desire to not be disproportionately targeted by police violence. The law was written as George Floyd-related protests occurred all over the nation. The fact that the new law was not deployed to arrest Cuban solidarity protesters whose actions met the new definition of "aggravated rioting," confirmed the law would only be used to target protesters DeSantis doesn't like.

The court says the plaintiffs have standing to sue. The order spends several pages detailing how these activist groups have curtailed their protest activity by cancelling planned events. The groups have also seen a noticeable drop in participation during the few protests they have engaged in since the law took effect, with many members of these groups stating the fear of being arrested for peaceful protesting has deterred them from attending events.

The only party to respond to the injunction request was the Governor himself. The court notes his submissions of evidence that speech isn't being chilled (which largely consists of printouts of social media posts about upcoming protests) isn't particularly persuasive. And one submission in particular by DeSantis all but confirms this statute was written to target black residents and protesters.

Specifically, Governor DeSantis points to a screenshot of Plaintiff Chainless Change, Inc.’s Facebook post showing a flyer for a “Juneteenth Black Joy Celebration” at Coleman Community Park in West Palm Beach on June 19, 2021. The post notes that “There will be . . . Music, Food, Games, Rental Assistance, Performers, Giveaways, Community Resources, and More,” and includes a photograph of several joyful Black children…

[...]

This Court is perplexed by the Governor’s decision to include this specific Facebook post as evidence that Plaintiffs’ speech is not actually chilled in the manner they assert in their motion. To start, this year marked the first official recognition of Juneteenth National Independence Day as a federal holiday. 5 U.S.C. § 6103(a) (2021). This Court—along with other courts across the country—was closed for the occasion. The Facebook post advertises a community celebration on a federal holiday commemorating the end of slavery in America...\

[...]

Here, the Governor has conflated a community celebration of a federal holiday commemorating the end of slavery with a protest. He does so to argue that Plaintiff Chainless Change’s claimed injury of chilled speech and self-censorship is not to be believed. It should go without saying that a public gathering of Black people celebrating “Black joy” and release from bondage does not automatically equate to a protest—or something that the Governor apparently implies should be chilled by the new riot law if Plaintiff Chainless Change’s claimed injury is to be believed.

Yeah… that looks pretty bad. So does this, which follows a discussion of the plaintiffs' assertions that they have already been targeted by police violence and intimidation during protests prior to the passage of the law.

Not one of the Defendant Sheriffs filed any evidence to dispute Plaintiffs’ version of the facts.

Governor DeSantis argued the court was getting ahead of itself by not allowing state courts to make the first call on the constitutionality of the law and/or its overbreadth. The federal court says this argument is nonsense when crucial civil rights and liberties are on the line.

Here, the chilling effect is particularly pronounced given that the law not only creates a risk of prosecution, but also subjects the person to mandatory time in custody until first appearance. § 870.01(6), Fla. Stat. Given that a vague law does not give a would-be protestor any notice about what the law criminalizes, and that the person may be punished for constitutionally protected activity given the law’s potentially overbroad scope, a reasonable person, as the declarations in this case make clear, would censor his own speech rather than risk arrest and time in jail.

As for the definition of "riot," the court says it's way too vague to be constitutional. It's not that rioting can't be clearly defined. It's that this law has the potential to make peaceful protesters culpable for the actions of rioters in the immediate area. The court starts with this…

This Court… acknowledges the obvious up front; some conduct clearly falls within the definition’s scope. Tossing Molotov cocktails at the police station with 10 of your best friends is clearly rioting. But the Supreme Court has squarely rejected the argument that “a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp.”

Before heading on to tell the state of Florida why this law doesn't work.

This is where things fall apart. Although both Governor DeSantis and Sheriff Williams argue that the phrase “willfully participate” is commonly understood, neither party offers an actual definition. Is it enough to stand passively near violence? What if you continue protesting when violence erupts? What if that protest merely involves standing with a sign while others fight around you? Does it depend on whether your sign expresses a message that is pro- or anti-law enforcement? What about filming the violence? What if you are in the process of leaving the disturbance and give a rioter a bottle of water to wash tear gas from their eyes?

Other phrases in the law only add to the confusion:

A “violent public disturbance” raises similar questions. Is a violent public disturbance a peaceful protest that later turns violent? Is it a protest that creates an imminent risk of violence? Do the violent actions of three people render an otherwise peaceful protest of 300 people a violent public disturbance? Does a rowdy group of Proud Boys or anarchists have veto power over peaceful protests under this definition?

A long semantic discussion follows, interrupted by some truly amazing sentence diagrams and the court drily noting the statute appears to be impervious "to any reasonable reading," before the court brings the hammer down.

The problem for Defendants is that, although they repeatedly claim that their preferred reading is crystal clear, they never truly explain why. Simply put, Defendants argue that one can tell that the statute embraces their reading because of the way it is. And it should come as no surprise that Defendants refuse to engage meaningfully with the statute’s text. As demonstrated above, the moment one does, Defendants’ interpretation crumbles.

Defendants’ proposed interpretation strains the rules of construction, grammar, and logic beyond their breaking points, and requires this Court to ignore the plain text of the statute and blithely proclaim that “everyone knows what a riot means,” notwithstanding this new definition that the Florida Legislature enacted.

[...]

In short, Defendants’ preferred construction is neither reasonable nor readily apparent given the plain language of the statute. Instead, it reduces much of the verbiage to surplusage and invites this Court to fill in the blanks that the Florida Legislature left behind.

This part of the law is unconstitutionally vague, the court says. Therefore, the law cannot be enforced, at least under this unreasonable quasi-definition of the term "riot." That being said, the court points out law enforcement can still arrest and prosecute rioters, listing 19 applicable criminal statutes and noting that this list of possible enforcement options does not encompass the entirety of applicable laws.

The state is appealing the injunction, of course. But the injunction remains in place while the appeals process plays out. Governor DeSantis appears to believe the vague, overly-broad law will be enforceable again when this is all over.

DeSantis said during an appearance in New Port Richey that the state will take its case to the Atlanta-based 11th U.S. Circuit Court of Appeals. The governor called the ruling by Walker a “foreordained conclusion” and has said he frequently prevails when appealing Tallahassee judges’ orders.

“I guarantee you we’ll win that on appeal,” DeSantis said.

I'd like to put some money on that. This decision cited plenty of Eleventh Circuit precedent while handing DeSantis a loss, none of which appears to favor the state government and its attempt to revive the state's long tradition of punishing black people for pushing back against racist policies.

Filed Under: 1st amendment, anti-riot laws, black lives matter, florida, free speech, protests, riots, ron desantis

Florida's New Law Against Blocking Roads During Protests Already Being Ignored By Cops Policing Protests The Governor Supports

from the behold-the-discretion-being-exercised-by-law-enforcement dept

Just a few months ago, Florida governor Ron DeSantis signed a broadly-written anti-protest bill that, among other things, criminalized the act of participating in a protest if other protesters did illegal things. It also criminalized the blocking of traffic and roadways by protesters, something that was already illegal but now was super-illegal with enhanced punishments that made this act a felony.

This was the Florida legislature's response to anti-police violence and Black Lives Matters protests in the state -- protests that became far more frequent and intense following the killing of Minnesota resident George Floyd by Minneapolis police officer Derek Chauvin.

Failing (perhaps deliberately) to recognize a lighter law enforcement touch was needed to regain the trust of the public, DeSantis and likeminded legislators doubled down, making the very act of protesting police violence an opportunity to be hit with felony charges.

The new law is in the news because it very much appears it won't be enforced equitably. Miami's Local 10 wants to know why the new law wasn't deployed to stop Cuban solidarity protesters from blocking highways during recent demonstrations.

“All of a sudden you have people out there shutting down a highway. They start to do that, there needs to be swift penalties.”

Those were Gov. Ron DeSantis’ words back in April when he signed a controversial anti-riot bill.

On Tuesday?

“I think people understand the difference between going out and peacefully assembling, which is obviously people’s constitutional right,” DeSantis said on a day when South Floridians stood in solidarity with Cuban citizens’ protests by taking to the Palmetto Expressway and closing it down for hours.

The Associated Press also amplified questions about this apparent divergence from a law supposedly desperately needed to keep protests from shutting down cities.

Demonstrators on Tuesday in Miami, Tampa and Orlando temporarily blocked busy roads, chanting support for the Cubans who had taken to the streets in the communist nation Sunday to air grievances about poor economic conditions and other issues.

“When they protest for regime change, which aligns with the governor’s political viewpoint ... you see no enforcement from law enforcement,” said Michael Sampson, who co-founded the Jacksonville Community Action Committee, one of many groups that sprung up under the banner of the Black Lives Matter movement.

The governor had no real explanation for why officers were not only not arresting people for blocking roads, but waving people through police lines so they could head up ramps to access the highways they would soon be blocking. The only comment DeSantis offered was that this protest wasn't the kind of protest he felt needed to be shut down.

During a visit to Miami on Tuesday, DeSantis said the demonstrations in South Florida were “fundamentally different than what we saw last summer.”

The statement made by Christina Pushaw, the governor's spokesperson, wasn't any better.

“The legislation protects First Amendment freedoms, while ensuring that law enforcement professionals are empowered to use their discretion to maintain public safety,” Pushaw said. “The Governor has always urged all Floridians exercising their right to protest, to make their voices heard peacefully and lawfully.”

Well, ok then. I guess we'll see what happens the next time BLM protesters take to the streets and block a few of them off. If DeSantis doesn't want to look like he only respects the rights of people he agrees with, he'll need to keep cops from exercising their discretion and arresting people protesting against unequal treatment by law enforcement.

Filed Under: 1st amendment, black lives matter, cuba, different standards, florida, free speech, protests, ron desantis

Five Palo Alto Cops Sue The City And Their PD, Claiming A Black Lives Matter Mural Harassed Them

from the must-have-hired-the-first-attorney-who-didn't-immediately-start-laughing dept

A group of California police officers has decided other people's expressive rights end where their personal offense begins. Five Palo Alto police officers are suing the city, along with their own police department, for somehow discriminating against them by allowing artists to create a street-long Black Lives Matter mural these officers passed on their way to work. (Well, at least up until the mural was removed by the city in November 2020, less than six months after it was first painted.)

The complaint contends harassment begins with the letter "E." From the lawsuit [PDF]:

The iconography at issue in the letter “E” of the mural is an image of Joanne Chesimard, better known as Assata Shakur, who was convicted in 1977 for the murder of New Jersey State Trooper Wermer Foerster, a white police officer. In 1979, while serving life sentence for the murder, Shakur escaped from prison and ended up in Cuba where she now has refuge and where the Cuban government refuses to extradite her to the United States. As result of her conviction and subsequent prison escape, Shakur was placed on the FBI’s Top Ten List 0f Most Wanted Domestic Terrorists.

The cops also have a problem with a "portion of a logo" that has been attributed to the New Black Panthers, an organization designated a hate group by the Southern Poverty Law Center.

It's these two elements of the city-ordained mural that seem to be triggering (yes, and in that form of the word as well) the harassment allegations. That and the fact that the officers were somehow forced to pass the mural on their way to work despite -- as the Palo Alto Daily Post points out -- the officers having to go out of their way to subject themselves to it.

The police department is located at 275 Forest Ave., on the opposite side of City Hall from the mural. The two vehicle entrances to the department are in the 600 block of Ramona and Bryant streets, a half block from where the mural had been located.

Here's a little visual aid that shows how impossible it was for these officers to avoid being confronted by a controversial E:

Somehow the existence of this mural on a street a block away from the police department resulted in host of discrimination and harassment targeting this "protected" group of police officers.

Plaintiffs’ careers have been materially and adversely affected, and irreparably harmed and damaged by the conduct of the Defendants. Defendants, and each of them, created and allowed to exist harassing, discriminatory, and retaliatory work environment and failed to eliminate the illegal conduct complained of by Plaintiffs. Plaintiffs were discriminated against and harassed on the basis of their race, national origin, and/or color and retaliated against for exercising their rights to be free from harassing and discriminatory conduct in the workplace.

Moreover, Plaintiffs spoke out about and reported misconduct, retaliation, discrimination, and harassment in violation of state and federal law and reported such conduct to people above them in the chain of command. As direct and proximate consequence of reporting such misconduct—which constitutes protected activity under state and federal law—Defendants, and each of them, retaliated against, discriminated against, and harassed Plaintiffs and subjected them to adverse employment actions.Those adverse employment actions include, but are not limited to, refusing to eliminate the harassing and discriminatory conduct, and failing or refusing to investigate Plaintiffs’ complaints.

So, while the city did allow the mural to occupy the street and gave its blessing to the sixteen artists involved, it did not direct or supervise the content of the mural. And it's not really "retaliation" for the PD and the City to not remove a mural just because five cops seem super angry about it. Nor is it "retaliation" to refuse to investigate claims that are facially idiotic.

The complaints aren't any less specious just because a law firm signed off on it. The plaintiffs fail to indicate which protected group they believe they're in, which makes it appear the officers believe "police officer" ranks right up there with race, national origin, and skin color.

They also believe the mural bullied them in horrible but nonspecific ways.

As a direct, foreseeable, and proximate result of Defendants' harassing conduct and failure to act, Plaintiffs suffered and continue to suffer humiliation, embarrassment, anxiety, mental anguish, and emotional distress. Plaintiffs were required to and did employ, and will in the future employ, physicians and health care providers to examine, treat, and care for Plaintiffs, and did, and will in the future, incur medical and incidental expenses.

Welp, this lawsuit isn't going to help much on the humiliation and embarrassment fronts. Without more factual assertions about the mural's harassment of protected individuals who happened to pass by it on their way to work as public servants, it's probably not going to survive the first motion to dismiss.

The plaintiffs should be wary of trying to push this too far, because it really looks like the plaintiffs are trying to make the case that saying "Black Lives Matter" somehow means the lives of people who aren't black somehow don't. Their incorrect assumptions about the meaning of this phrase -- as well as their innate ability to be personally offended by certain elements of the street mural -- isn't even remotely in the ballpark of any legally actionable claims.

Filed Under: black lives matter, mural, palo alto, palo alto police department

Recordings, Transcripts Show Police, Prosecutors Lied To A Grand Jury To Bring Gang Charges Against BLM Protesters

from the ends-aren't-even-justifiable,-never-mind-the-means dept

More information has come out about the disastrous attempt by Arizona prosecutors to turn anti-police-violence protesters into a street gang. Phoenix police officers waded into the protest comprised of (checks official documents) 17 protesters, showering them with pepper balls and arresting them all. Charges were brought, including one very damaging one: assisting a criminal street gang. Gang charges are automatic felonies with hefty sentence enhancements.

According to the prosecutors handling the case, the use of the acronym ACAB (All Cops Are Bastards) by the protesters was indicative of their gang status. That and their use of umbrellas and black clothing. According to grand jury transcripts obtained by ABC15, a county prosecutor and Phoenix police Sgt. Doug McBride led jury members to believe "ACAB" was a street gang. Here's the prosecutor questioning McBride during a grand jury presentation:

Q: And are you finding that ACAB is following the exact same type of philosophy of let’s say the Bloods and the Crips?

A: Yes.

Q: And what about even maybe the same philosophy as the Hells Angels?

A: Very similar, yes.

Q: And why would that be similar?

A: I think because the tattoos, the intimidation factor, how they are directing their violent behavior very similar to the Hells Angel organization where they actually organize their violent behavior, and then they carry that out in a very organized fashion. It’s not random with the Hells Angels.

Q: And are you finding that’s exactly what this ACAB group is doing is they are organizing for the intent to create violence?

A: Yes.

That's how you end up securing gang felony charges against protesters who, at their worst, ignited a smoke bomb and dragged some traffic barriers around during their 30 minutes of 17-person mayhem. The claims that "ACAB" is a street gang were reiterated during bond hearings. The equivalence was made between these protesters who were otherwise unaffiliated and dangerous criminal organizations that are responsible for thousands of homicides over the past few decades.

These charges didn't stick. And now one of the prosecutors, April Sponsel (who is married to a state trooper), is being investigated for assertions she made during grand jury hearings.

April Sponsel is a Maricopa County prosecutor currently on administrative leave and under an outside investigation ordered by Maricopa County Attorney Allister Adel. Adel took the action following a series of ABC15 reports that showed Sponsel and Phoenix officers presented clearly false information to a grand jury in order to charge protesters as gang members.

It gets uglier still. A retired police officer engaged in an unauthorized investigation into the protest arrests with seemingly the sole purpose of protecting this prosecutor:

After a one-week contract to review a controversial protest case, a retired Phoenix gang detective continued a shadow investigation with the goal to protect officers and a prosecutor entangled in the scandal.

According to audio recordings obtained by ABC15, retired Phoenix Police Detective Clint Davis has interviewed at least one witness in the protest cases.

[...]

“My only skin in the game is protection of the public and protection of officers,” Davis said to the case witness in a March 4 meeting. “That's what I care about. And, I care about April Sponsel.”

The conversation involved Clint Davis, Gilbert PD Detective Terry Burchett, and Riley Behrens, an arrested protester who agreed to act as an informant. Davis reiterated his support of April Sponsel after Behrens called her a "jerk" for continuing to press charges after Behrens agreed to supply evidence and testify.

Behrens provides another link to more questionable law enforcement activity surrounding Black Lives Matter protests in the Phoenix area. The FBI was brought in by the Phoenix PD to interview Behrens and make them an official informant. Information supplied by Behrens appears to have been put to use later during other protests.

Protesters and their attorneys have long suspected that police and prosecutors have been surveilling certain demonstrators and targeting leading activists for arrests.

In some cases, body camera footage shows officers clearly identifying certain protesters in the crowds before moving in to specifically arrest them.

Police reports from various criminal cases also mention intelligence briefings about protests but don’t elaborate on where the information came from.

This meeting -- also secretly recorded and handed to ABC15 -- occurred just two days before officers arrested the 17 protesters and hit them with gang charges.

This is all a hell of lot of coordination for law enforcement activity that targets something that is -- for the most part -- protected First Amendment expression. That it continued from there to a prosecutorial farce involving providing false information to a grand jury solely to hit arrested protesters with gang-related sentence enhancements is incredibly disturbing. If law enforcement officers and officials thought they were dealing with too much blowback previous to the George Floyd flashpoint, they've done nothing more than add fuel to the fire currently consuming them.

Filed Under: 1st amendment, arizona, black lives matter, blm, free speech, gang, police, police violence, protests

LAPD Asked Ring Users To Turn Over Footage Of Anti-Police Brutality Protests

from the I'm-pretty-sure-we-can-said-people-who-never-wondered-if-they-SHOULD dept

It's not just a home surveillance system. It's a surveillance system.

Documents obtained by the EFF and shared with The Intercept show law enforcement used footage from Ring doorbell cameras -- cameras some people have obtained for free from Ring's thousands of law enforcement "partners" -- to hunt down people protesting police violence.

The documents show the Los Angeles Police Department sent requests to Los Angeles residents asking them for footage recorded by their cameras. But the LAPD did not specify what sort of footage it was looking for. The task force making the request was charged with investigating crimes committed "during protests and demonstrations."

This information was vaguely conveyed to Ring owners in the area. The requests didn't even bother to specify whether the "incident" the LAPD was investigating could even have been captured by the doorbell cameras targeted by this request.

"The LAPD ‘Safe L.A. Task Force’ is asking for your help,” reads the message, from detective Gerry Chamberlain. “During recent protests, individuals were injured & property was looted, damaged, and destroyed. In an effort to identify those responsible, we are asking you to submit copies of any video(s) you may have for [redacted].” The request appears to have made no mention of what exactly the LAPD was pursuing; no crime, proven or alleged, is described in the unredacted portion of the request, only that the police wanted footage of an unspecified “incident” related to a protest. The redacted portion of the request does not appear to contain any substantive further description.

This was not the only message sent. The documents show the LAPD made additional requests following other demonstrations, in essence asking Los Angeles residents to rat out people engaged (for the most part) in peaceful protests. The task force wasn't asking for any info about specific crimes, but rather anything that showed people doing stuff that (again, for the most part) was protected by the First Amendment.

And there wasn't a lot of criminal activity. At least, not so much the LAPD should have felt comfortable sending out blanket requests for footage from cameras owned by private citizens.

In October, the Los Angeles Times cited LAPD data showing that the “vast majority” of the city’s Black Lives Matter rallies, part of a national wave of outraged mobilization following the police killing of Floyd, were peaceful, with only “between 6% and 7%” of protests resulting in any violence, including violence perpetrated by the LAPD itself.

But Ring has made aggressive inroads with thousands of law enforcement "partners." And it has provided them with instructions for requests like these -- ones that evade warrant or subpoena requirements.

On the plus side, the requests make any handover of footage completely voluntary. Bear in mind that law enforcement "requests" for footage are perceived by citizens as being far less voluntary than law enforcement perceives them to be. But the bottom line is these are requests, not demands. Even so, the LAPD would rather not answer questions about its mass emails or their efficiency rate.

And that's a problem Ring doesn't have an answer for. Indeed, it's an answer Ring doesn't even appear to care about. Ring likes cops. The people actually buying and/or deploying its cameras appear to be far down the list of things Ring cares about. As far as Ring is concerned, the market it has cornered is little more than an extension of existing government surveillance networks. If it did care about its users, it would have done more to protect them from malicious hackers and law enforcement officers who can't be bothered to boilerplate up a warrant affidavit.

Even if you decide the First Amendment question isn't settled enough to give Los Angeles residents pause when handing over footage to cops, the mutual appreciation society formed by Ring and law enforcement cuts private citizens out of the equation. It turns their cameras into cop cameras.

Sure, people may retain control of the devices and ignore emailed requests for footage, but Ring is doing all it can to erase the line between public and private. It allows law enforcement agencies to give cameras to citizens, increasing the chance the recipients of these freebies will be receptive law enforcement requests. It gives cops a portal that shows them where cameras are located, giving the government information it wouldn't have under other circumstances. Finally, Ring inserts itself into the PR process, giving itself final approval on press statements from law enforcement that involve its products, allowing it to craft a more self-serving narrative.

There's no indication this effort was limited to areas where criminal activity during protests was suspected. Instead, the portal provided by Ring made it possible for the LAPD to ask for private citizens' inadvertent recordings of protected speech. This is secondhand surveillance. And its encroachment into our everyday lives should be greeted with suspicion. This is an opportunistic approach to law enforcement, one that embraces mission creep.

Filed Under: black lives matter, iot, lapd, protests, ring, surveillance

Arizona Prosecutors Pretend 'ACAB' Is Gang Lingo To Hit Protesters With Felony Gang Charges

from the it-appears-at-least-some-of-these-cops-are-bastards-tho dept

This is how the law enforcement community has responded to nationwide complaints that they do their jobs poorly, violently, and abusively: by doing their jobs poorly, violently, and abusively.

The killing of George Floyd by a Minnesota police officer set off anti-police brutality protests across the nation. These protests were met with more police violence, with some of the violence singling out journalists, protesters, and legal observers. Things have since calmed down, but each new instance of police violence tends to result in another set of protests. Cops have proven they can't stop killing people or violating their rights so this cycle will continue in perpetuity.

Since it's impossible to calm the police down, it appears prosecutors and law enforcement agencies are shifting their focus into inflicting maximum pain on those exercising First Amendment rights. A truly ridiculous response to a recent protest in Arizona shows just how far the government is willing to go to stifle dissent. Maybe the ultimate goal isn't to end protests, but the end result of this Phoenix protest shows local law enforcement is willing to put their credibility on the line to punish citizens for being unhappy with the status quo.

On Oct. 17, about 20 people gathered in downtown Phoenix to march for justice for victims of police violence. The group was made up mostly of young people, including three 17-year-olds, an honors student from Arizona State University, and a Harvard student. The group marched down the streets of Phoenix chanting “Black lives matter.” Some of the protesters moved traffic cones and signs into the middle of the street. Some carried umbrellas, which protesters have used to protect themselves from tear gas and projectiles.

Eventually, police officers donning helmets and bulletproof vests closed in on the group. With a weapon drawn, an officer told them to get on the ground, which they did. Police ripped away the umbrellas. Dozens of officers surrounded the protesters, video footage shows. Police handcuffed the kneeling protesters, yanked them to their feet, and put them in the back of cruisers. Police used pepper bullets on at least one of the protesters.

This is only part of the disproportionate response. The major damage came after the arrests, when prosecutors added felony gang charges. Here's what prosecutors offered in support of these charges.

The street gang charges are based on the group’s common use of the phrase “all cops are bastards,” the fact they all dress in black, and carry umbrellas.

Police testified the group used the umbrellas to attack officers, conceal their activities, and further their criminal activities.

In essence, prosecutors are claiming "ACAB" is a gang. The acronym used by plenty of people who don't know or associate with each other is being presented as evidence of gang affiliation or activity. Depending on what specifics accompany these charges (whether its "participation" or merely "assisting"), these sentence enhancements can add up to ten years in prison to whatever else the protesters are convicted of. As The Appeal's report points out, one protester is being charged with felony aggravated assault of a police officer for allegedly digging his nails into the officer's thumb while being arrested.

And the Maricopa county prosecutor's office has continued to double-down on this brutal stupidity. It has refused to directly address the ridiculousness of pretending ACAB is a gang call sign and instead keep pointing people to its asterisk:

On October 27, 2020, a Maricopa County Grand Jury issued indictments on fifteen individuals for incidents that occurred on October 17, 2020. The indictment is for several crimes, including conspiracy to commit assault, riot, and assisting a criminal street gang. The attached Grand Jury Indictment outlines all charges.

While some will attempt to describe these defendants as “protestors,” a grand jury found probable cause to *charge this group with crimes, including the planning of violence.

It's just an accusation, folks.

*A charge in a crime is merely an accusation and the defendant is presumed innocent until and unless proven guilty.

See? Nothing stupid or politically-charged about turning BLM protesters carrying umbrellas into a street gang for indictment purposes.

A few months down the road and these charges remain on the books. Nothing has changed. The prosecutors are offering plea deals, but the "deals" involve pleading guilty to something that simply isn't true:

According to an attorney familiar with the case, the plea requires the defendants to plead guilty to two felony offenses, including the street gang charge.

Unlike some of the other charges the protesters are facing, these charges can't be expunged or downgraded to misdemeanors. This is permanent. And it's only there because cops and prosecutors found a handy way to severely punish people who are already unhappy with the actions of cops and prosecutors. There's nothing in here that's going to close the divide between these public servants and the people they serve. This is Maricopa law enforcement showing residents they're exactly who the residents thought they were: petty, vindictive people with far too much power.

Filed Under: acab, arizona, black lives matter, gangs, phoenix, police, police brutality, police violence, protestors

Supreme Court Rejects Appeals Court's Revival Of Anonymous Cop's Stupid Lawsuit Against BLM Activist

from the duty-to-not-be-a-litigious-dumbass-still-not-litigated-yet dept

Early last year, the Fifth Circuit Court of Appeals (which has more than its fair share of inexplicable decisions) released an inexplicable decision. The appeal arose from a lower court's dismissal of an injured cop's lawsuit against multiple parties over injuries he sustained when a protester threw a chunk of concrete at him.

The pseudonymous cop sued a number of entities, including "Black Lives Matter," a Twitter hashtag, and activist DeRay Mckesson. His claims against the social movement and the social media sorting mechanic didn't survive. But the Fifth Circuit Court felt it was plausible -- under Louisiana state law -- that Mckesson was somehow responsible for the injuries sustained by the cop.

According to the court, Mckesson should have known that leading protesters onto a highway would "provoke" a "confrontation" with law enforcement. Being aware of this potential provocation was enough for the court to revive Officer John Doe's idiotic attempt to hold Mckesson personally responsible for an act of violence committed by another person.

That ridiculousness has now been undone by the Supreme Court. The nation's top court rolls back [PDF] the Fifth Circuit's inexplicable resurrection of the cop's misguided claims and sends it back down the judicial food chain. Allowing this decision to stand would do damage to the First Amendment and invite similarly misguided lawsuits from plaintiffs like this one -- people seeking to bleed the biggest litigation target, rather than the person who perpetrated the injurious act.

The Supreme Court says the Fifth Circuit was right to recognize the issue, but was less correct in its handling of it.

As the Fifth Circuit recognized at the outset, Louisiana law generally imposes no “‘duty to protect others from the criminal activities of third persons.’” But the panel majority held that a jury could plausibly find that Mckesson breached his “duty not to negligently precipitate the crime of a third party” because “a violent confrontation with a police officer was a foreseeable effect of negligently directing a protest” onto the highway. 945 F. 3d, at 827. The dissent would have demanded something more—a “special relationship” between Mckesson and Officer Doe—before recognizing such a duty under Louisiana law.

It goes back to the courts, but not the Fifth Circuit. This one is being shipped to the Louisiana state Supreme Court, which needs to clarify the law -- and the alleged duty supposedly owed by Mckesson.

The Louisiana Supreme Court, to be sure, may announce the same duty as the Fifth Circuit. But under the unusual circumstances we confront here, we conclude that the Fifth Circuit should not have ventured into so uncertain an area of tort law—one laden with value judgments and fraught with implications for First Amendment rights— without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court.

This isn't a win for Mckesson yet. But it most likely will end up that way. Reading the law the way the Fifth Circuit seemed inclined to would turn First Amendment-protected expression -- like Mckesson's attendance and participation in a protest -- into an enabler of frivolous lawsuits that would introduce a chilling effect on protests and demonstrations. Allowing random people to be sued for actions perpetrated by violent outliers would dissuade a great number of people from exercising their First Amendment rights. Hopefully, the state Supreme Court will recognize the collateral damage allowing these claims to continue would produce.

Filed Under: 1st amendment, 5th circuit, black lives matter, deray mckesson, free speech, louisiana, police, protests, supreme court