Eighth Circuit (Again) Says There's Nothing Wrong With Detaining Innocent Minors At Gunpoint

from the underdeveloped-suspicion-and-overreactions dept

What's unreasonable for law enforcement to do when searching for a criminal suspect? Not much, apparently. The Eighth Circuit Appeals Court has handed down a ruling that says detaining minors at gunpoint is just good policework when they're in the general vicinity of a suspected criminal act. (via FourthAmendment.com)

Here's what prompted this apparently excusable violation of rights, taken from the Appeals Court decision [PDF]:

At 3:21 p.m. on April 24, 2016, a Cedar Rapids police dispatcher issued an alert for “a disturbance with a weapon” at “Higley Avenue and Wellington Street” based on a 911 call from a complainant named Elaine. It is undisputed that the dispatch transmitted to officers reported, “Complainant stated that there are three black males they live at the corner house by the alley. They are outside arguing, one displayed a 10-32 [gun] that subject is a black male white t-shirt heavier set. Another black male is in all blue.” There was no description of the third individual, nor did the dispatcher provide the complainant’s name or address.

This information was obtained by the officers being sued twice. While driving to the scene of the reported crime, Officer Tyler Richardson ran into the 911 caller (although he did not know this at the time). The woman again described the suspected individuals, describing one of the suspects as wearing a white shirt and blue pants.

So, Officer Richardson had two suspects: one with a white t-shirt and another described alternately as being in "all blue" or with a white shirt and blue pants. Here's who the officer decided were the most likely suspects:

He saw two people -- later identified as Bates and Irvin -- walking away from him along the left side of the street. The dashcam video shows Bates wearing a red shirt and black pants and Irvin wearing a blue shirt and blue pants.

This is what happened next:

Officer Richardson got out of his car and yelled, “Stop. Stop.” Irvin and Bates turned their heads, then stopped. Richardson said, “Yeah, you guys.” Bates replied, “No, we didn’t do nothing.” Richardson yelled, “Stop right now! Stop!” and drew his gun, pointed it at Irvin and Bates, and ordered them to get on the ground. Officer Jupin, whose squad car had arrived from the opposite direction, drew his gun and did the same. Irvin and Bates slowly got down on their knees. Richardson yelled, “Face down!” Richardson handcuffed Irvin. Jupin handcuffed Bates. A pat-down determined that neither was armed.

Handcuffed and seated on the ground, 16-year-old Irvin remained quiet. Bates, 33 years old, became agitated, speaking loudly and expressing anger that the officers had pulled their guns on him. Jupin stayed with Irvin and Bates while Richardson went a block away and talked to a heavyset black man in a white t-shirt the officers spotted while detaining Irvin and Bates. Richardson ordered the man to stop and put his hands on a stone wall next to the sidewalk. The man complied. Richardson patted him down for weapons, found none, and soon released him.

The pair remained handcuffed for twelve minutes as officers spoke to the witness. The witness confirmed they were not the ones she had seen involved in an altercation earlier. They were released.

The Eighth Circuit says there's nothing wrong with this. As far as the court sees it, cops should be able to stop nearly anybody when a crime has been reported nearby.

It is well established that, “if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.” United States v. Hensley, 469 U.S. 221, 229 (1985). Thus, Irvin and Bates could be stopped if there was reasonable suspicion that either or both were any of the three men involved in the reported disturbance.

Second, even limiting our focus to more serious gun offenses, Officer Richardson had descriptions of two of the three men. Irvin arguably fit one of the descriptions; Bates did not but the third participant had not been described.

That's the rule in the Eighth Circuit: if you're in the area a crime has been committed, you can be treated like a suspect and detained for as long as it takes to clear you of suspicion. In this case, it only took twelve minutes. But it could have taken longer. And, as this court sees it, time isn't a factor when it comes to turning being detained into being arrested. If it had taken six hours, the court may have still considered this to be an investigative stop.

Here, Officers Richardson and Jupin actively investigated the disturbance after detaining Irvin and Bates, delayed by their refusal to cooperate. When backup arrived, Richardson interviewed a cooperative third individual and searched the area for a weapon. Jupin contacted a witness, who said that Irvin and Bates were not involved in the reported disturbance. Jupin promptly removed the handcuffs and told Irvin and Bates they were free to go, ending their detention. The entire encounter lasted approximately 13 minutes. We agree with the district court that Irvin and Bates “were detained no longer than was necessary for the officers to pursue their investigation” and therefore the lawful Terry stop “did not evolve into an arrest.”

So, what's the endpoint? The court says this:

The circumstances here are readily distinguishable from the handcuffing and extended -9- detention in our recent, divided panel opinion in Haynes v. Minnehan…

But that decision held that a five minute detention was unlawful due to a lack of reasonable suspicion and the fact that officers didn't appear too interested in investigating the alleged crime. That doesn't clear much up. Instead, it creates a gray area where officers can detain someone indefinitely, so long as they have a little suspicion and some interest in pursuing an investigation.

The decision also cites another case where the Eighth Circuit found it acceptable to point guns at unarmed minors just because a criminal act was suspected to have occurred somewhere in the vicinity. That case is currently sitting before the Supreme Court. Whether or not the nation's top court will do anything with it remains to be seen. But that case, summarized here by Jacob Sullum for Reason, is used as justification for the conclusion reached in this case.

On a rainy January evening in 2018, 14-year-old Weston Young and his 12-year-old brother, Haden, were walking home from their grandparents' house in Springdale, Arkansas, after a family dinner. A police officer ordered them to stop, pointed a gun at them, forced them to lie on the ground, handcuffed them, and, together with a colleague, searched them. Their mother and stepfather tried to intervene, explaining who the boys were, where they had been, and where they were going. But the officer, Lamont Marzolf, rebuffed both of them, seemingly uninterested in information suggesting that he was treating two innocent boys like criminals.

"Neither [Weston] nor [Haden] did anything wrong" that night, the U.S. Court of Appeals for the 8th Circuit later observed. "The boys simply happened onto the stage of a dangerous live drama being played out in their neighborhood because of criminals fleeing police nearby. [Weston] and [Haden] acted bravely, respectfully, and responsibly throughout the encounter, and their family would rightly be proud of them. Likewise, their family acted responsibly and respectfully during what would have undoubtedly been a frightening experience. In this situation, though, Officer Marzolf was doing his job protecting the people of Springdale from fleeing criminal suspects under challenging conditions."

That's the standard as far as the Eighth Circuit is concerned. If a cop is doing their job, then pointing guns at minors and violating rights is just acceptable collateral damage. The decision here rests on the court's conclusion there was plenty of reasonable suspicion underlying this chain of events. The dissent is not so sure.

Viewing the record in the light most favorable to Irvin and Bates, Officers Richardson and Jupin lacked reasonable suspicion to stop and detain them. The dispatcher relayed an anonymous 911 call, but did not provide any information indicating the basis of the caller’s knowledge. The only corroboration identified is the information Officer Richardson received from the woman on the street. But at the time of the stop, Officer Richardson did not know the woman’s name or even that she was the 911 caller. Moreover, the woman did not corroborate the dispatcher’s report or report any criminal activity; she simply gave Officer Richardson a description of what a person who had just walked around the corner was wearing—wavering in her description and never mentioning a person in a red shirt—and said nothing more. In short, nothing the woman said to Officer Richardson linked the person she had just described to the conduct reported in the 911 call.

Even setting aside the reliability of the tip, neither Bates nor Irvin matched the description of the person who displayed the firearm—a heavyset man in a white t-shirt.

The dissent points out it's not enough for race and gender to match the description. And without any further corroboration, Officer Richardson had, at best, conflicting descriptions of the suspects. On top of that, Richardson had no reason to believe they were involved in the reported criminal act. The caller had reported only one person with a weapon and that description matched neither of the two people Richardson detained at gunpoint.

The only suspicious activity the 911 caller described was that a heavyset man in a white t-shirt displayed a gun. There was no reason to believe any other person had a weapon, concealed or not, and a suspicion otherwise was nothing more than a hunch. While the 911 caller reported an argument where one man displayed a gun, she reported no threats, assaults, or shots fired. And when Officer Richardson turned the corner, the reported crime had ended, and neither Irvin nor Bates was behaving in a manner as to indicate they were armed or were engaged in––or about to engage in—criminal activity.

Making someone a suspect because someone else brandished a weapon isn't how reasonable suspicion works. Citing another case where qualified immunity was awarded despite the "suspects" not matching the description and being accused of "fleeing" despite walking towards the police officer's car doesn't exactly shore up the shaky reasoning underpinning this decision.

This decision will also likely be appealed to the Supreme Court. The earlier case might be a better fit for reversal, given the disparity between the detainees and the description, but both are questionable. And both serve as cover for bad judgment calls by police officers -- ones that culminate with weapons being pointed at minors.

Filed Under: 4th amendment, 8th circuit, law enforcement, minors, police

Louisville PD Hid Thousands Of Records Detailing Officers' Abuse Of Minors, Deleted Backups When Local Paper Asked For Them

from the move-along-nothing-to-see-here dept

The people who are supposed to be the bulwark standing between regular society and criminal society are, far too often, criminals themselves. They promise they're doing everything they can to end the sexual exploitation of children but often aren't willing to address the exploitation committed by officers.

The Louisville Metro Police is still dealing with the fallout of a botched no-knock raid, which ended with officers killing Breonna Taylor in her own apartment. Six of the 32 bullets fired by LMPD officers -- some blindly through covered windows -- hit Taylor. No officers were charged in Taylor's death.

The PD is now dealing with another scandal involving its officers. Criminal charges have been brought against three officers who sexually abused minors participating in the PD's "Explorer Program."

A third Louisville Metro Police officer has been indicted on charges of sexually abusing a juvenile in the department's now-defunct Explorer Program for youths aspiring to be in law enforcement.

A federal grand jury indictment accuses Brad Schuhmann, while acting as a police officer, of sexually abusing a minor in 2010, saying he "willfully deprived” a juvenile identified as Jane Doe “of liberty without due process of law, which includes the right not to have her bodily integrity violated by a person acting under color of law."

This side project of the Boy Scouts of America has produced nearly as many sexual abuse allegations as the Boy Scout program itself. What happened in Louisville isn't an aberration. Putting cops in close contact with minors appears to be a bad idea.

In recent decades, more than 100 police officers have had sex with Explorers they were entrusted with mentoring, the vast majority of them underage. In just the past year, two sheriff's deputies in San Bernardino, California, were arrested for having sex with underage girls; a New York City cop was charged with child sex abuse after sending racy text messages to a 15-year-old; an officer in Bremerton, Washington, was reprimanded for sleeping with an 18-year-old; and a former cop in Burlington, North Carolina, pled guilty to taking indecent liberties with a minor after being accused of having sex with a 14-year-old he'd taken on ride-alongs.

That's from a 2011 report. There have been numerous other incidents since then. The Louisville Courier Journal's coverage of this current scandal -- which dates back to 2017 -- shows the problem infects law enforcement agencies around the nation.

In the wake of Louisville’s own Explorer scandal, in which two former officers have been accused of sexually abusing Scouts and the police department of covering it up, the Courier-Journal found that over the past 40 years, at least 137 girls and 26 boys have been allegedly raped, seduced, fondled, kissed, dated or otherwise exploited in 28 states by at least 129 law enforcement officers, firefighters and other advisers.

The youngest victims were 13. One was in the sixth grade.

One officer tried to set up three-way sex with Explorers. Another took surreptitious photographs of Explorers’ underwear. A third took bondage photos of boys he took on Civil War re-enactment camping trips. In Warick, Rhode Island, six officers had sex with one girl. In Bandon, Oregon, five officers made a sex tape featuring two girls and two boys.

Seventy-five cases resulted in criminal charges and 19 in lawsuits, including one that cost Irwindale, California, a city of only 1,422 people, $2.75 million to settle.

The latest twist in the LMPD's ongoing scandal is its apparently deliberate attempt to hide documents related to this abuse from journalists. And the department did this with the county and city's approval.

Louisville Metro Police concealed at least 738,000 records documenting the sexual abuse of Explorer Scouts by two officers — then lied to keep the files from the public, records show.

The Courier Journal last year requested all records regarding sexual abuse of minors by two officers in the Explorer Scout program for youths interested in law enforcement careers.

Police officials and the Jefferson County Attorney’s Office said they couldn't comply, insisting all the records had been turned over to the FBI for its investigation.

But that wasn't true, according to records The Courier Journal recently obtained in the appeal of its open records case.

In fact, the department still had at least 738,000 records, which the city allowed to be deleted.

While it's true the FBI is in the middle of an investigation, the PD still had its own copies of those files on hand. Or, at least it did until the Courier Journal started asking for them. The PD then insisted it had turned everything over to the FBI. This assertion was backed up by the Assistant County Attorney. Supposedly, the FBI had "taken control" of everything, including any physical or digital copies the LMPD might have had on hand.

This assertion by County Attorney Annale Taylor was directly contradicted by the LMPD's own statements in emails to the attorney.

Three months earlier, in June, Louisville Sgt. Robert Banta, a task force member, had told Taylor in an email he could provide "any and all documents involved in the Explorer investigation up until April 1, 2017, when the federal investigation was initiated."

“All that information still resides in the PIU (Professional Integrity Unit) case file and is available to the county attorney’s office,” Banta said in his June 6, 2019, email, which he also sent to then-Chief Steve Conrad and LMPD legal adviser Dennis Sims.

And the denial any records still existed was contradicted by the county attorney's office in another email to the attorney general's office. This email said the LMPD had found thousands of documents in a "hidden folder." A letter sent to the paper's attorneys made it clear the PD had retained almost everything it had previously claimed the FBI was in sole possession of.

In an Oct. 21 letter to The Courier Journal's lawyers "amending previous factual statements made in error,” Assistant County Attorney Roy Denny acknowledged 9,700 folders containing 738,000 documents — 470 gigabytes of data — had been found on the secret folder.

The catch was these had been backed up to the city's servers, but only temporarily. These had been turned over to the FBI as well -- months after the paper had asked for them -- and wiped from city's backup.

The paper is now accusing the LMPD and city of destroying records. The county attorney office's legal representative, Kenyon Meyer, insists no destruction has occurred. The paper still has the option of demanding these records from the FBI.

Just little intra-government coverup, apparently. The city and PD seem more than willing to deal with accusations of records destruction and open records law violations if it means they won't immediately have to deal with whatever's in the thousands of files related to multiple officers' sexual abuse of minors. Sending these away to the FBI -- and deleting their own copies -- places the paper back at square one. It will take another set of FOIA requests -- and more litigation -- to acquire the records these two entities seemingly want buried.

Filed Under: louisville, louisville metro police, minors, police, records, transparency

CBP, DHS Using Quasi-Scientific Guesswork To Turn Adult Immigrants Into Minors

from the and-vice-versa dept

Our nation's immigration agencies wield a considerable amount of power. So much power, in fact, that they're free to dump incoming immigrants off the space-time continuum at will. If a CBP officer decides a person isn't the age they say they are, they can alter the person's age so it matches the officer's beliefs.

How does the CBP accomplish this neat little trick? Well, oddly, it involves X-rays. A recent episode of This American Life details the surreal nature of this CBP-induced time warp -- one it inflicted (repeatedly!) on a 19-year-old Hmong woman coming to the United States to reunite with her fiance.

Yong Xiong was questioned by Customs officers at the Chicago airport. The CBP officer thought she was being trafficked and didn't believe the birth date on her passport. After a round of questioning meant to determine whether or not Yong was being trafficked, the CBP officer arrived at the conclusion she was, despite the officer marking "No" on ten of the eleven trafficking indicators.

So, how does the CBP try to determine someone's age when officers don't believe the person or the documents in front of them? They call in a dentist. Yong's teeth were x-rayed to determine her age. This may involve science on the front end, but the back end is mainly educated guesswork.

From This American Life's Nadia Reiman:

The dentist took the X-ray. No one would talk to me on the record about this, but because it's the government, there is a massive paper trail. And not just in Yong's case. I'm going to go deep on these tooth X-rays for a second, so bear with me. They're used in all kinds of immigration cases, not just trafficking. And a lot rides on the results. If you're under 18, you have more protections. You get put into a shelter instead of a detention center. It's harder to get deported.

But tooth X-rays are just not a very precise way to determine someone's age. The way it works is they measure how developed the roots of your molars are, and then based on that, the dentist can determine your age, but only within a range, usually around five years. So these X-rays can't tell you the difference between a 17-year-old and a 19-year-old. The same teeth might belong to a 15-year-old or a 20-year-old.

In Yong's case, the CBP was sure she was being trafficked. Since the officer already thought that, the CBP leaned toward the lower end of the dentist's estimate.

In the documents, the dentist writes, quote, "The range of possible ages is 14.76 to 19.56 years." In other words, it's totally plausible that Yong could be 19 as she's been saying.

Instead of accepting this as evidence that might back the birth date on Yong's passport, the CBP agent gave her a new birth date: January 1, 2000. This instantly turned Yong into a minor and the CBP placed her in a juvenile shelter. She continued to tell staff and counselors she was 19 and needed to head to Minneapolis to meet with her family and fiance. The staff told her they couldn't do anything about this because the paperwork said she's a minor.

This isn't true. They are able to make changes to these dates, but no one at this detention center was willing to do that. Well... they weren't willing to change her birth date to make her an adult again. Instead, as Yong approached her fake 18th birthday -- January 1, 2018 -- the DHS decided to make her even younger:

It turns out ORR [Office of Refugee Resettlement] resubmitted the X-rays of Yong's teeth to a second dentist who concluded Yong could be anywhere between 15 and 20 years old. After which, ORR did change her birth date. But they used the lowest end of the range possible. The documents say DHS, the agency that oversees everything related to immigration, told them to. Her new, new birth date is now September 1, 2002.

A wrist X-ray was performed to determine "bone age." The results said Yong was most likely 18. The doctor interpreting them for the DHS decided this simply wasn't true and issued a conclusion saying Yong is 15, but with "advanced bone age."

After 14 months in a juvenile detention center, Yong is finally released by the DHS… as a minor, into the custody of her aunt. A couple of weeks later, the DHS stated to her lawyer it would no longer "contest" the "contents" of her passport. The single contested "content" was Yong's true birth date. The US government graciously allowed Yong to become 22 again, after 14 months of treating her like a teenager.

Yong is not an isolated case. The DHS routinely uses wide-ranging estimates to arbitrarily assign birth dates to immigrants and asylum seekers. For whatever reason, CBP tends to add years to males and subtract them from females. This results in people like Yong being treated as minors for months or years. In other cases, it turns unaccompanied minors into adults and places them in adult detention facilities.

This report from The Conversation detailing the x-ray "aging" of two unaccompanied teens says CBP's reliance on this process is illegal.

Federal law dictates that X-rays in cases where adult age is not obvious be used only in concert with other methods, such as verification of documentation and interviews. This makes sense because X-rays only provide orienting information rather than a definitive answer.

The recent court cases demonstrate that ICE has broken the law by exclusively relying on X-rays for age determination, ruling that the teens be released back into ORR’s custody as minors. Are these cases isolated or illustrative of a bigger problem? A 2008 report by the Office of Homeland Security found that it was not only unclear how often ICE needed to resort to X-rays to assist with age determination, but unknown how common it was for them to rely solely on X-ray results. Without accurate numbers, there is no way to know how widespread the practice is or how to improve the process.

Nothing has improved since then. And part of the reason nothing has improved is that the same Congress that expressed concern about the DHS's reliance on X-rays to determine immigrants' ages pushed the DHS to continue to rely on the X-rays.

In 2007 and again in 2008, the House Appropriations Committee called on the Department of Homeland Security to stop relying on forensic testing of bones and teeth. But it was the Trafficking Victims Protection Reauthorization Act of 2008 that declared age determinations should take into account “multiple forms of evidence, including the non-exclusive use of radiographs.”

Apparently, the "non-exclusive" part of the law is being ignored. Nothing but an X-ray and a CBP officer's hunch turned 19-year-old Yong Xiong into a 17-year-old. And nothing but an X-ray made her even younger... even as she aged 14 months right in front of the government's eyes.

Filed Under: age detection, cbp, dentists, detention, immigration, minors, x-rays

Lawyer: 16-Year-Old Shouldn't Be Upset By Explicit Photos Cop Sent Her Because She's Probably Seen Penises On The Internet

from the I-see-at-least-one-huge-dick-here dept

Edwin Guzman is currently facing charges of "annoying and accosting" a person of the opposite sex, as well as disseminating harmful material to a minor. That would be Officer Guzman -- and not just any officer -- but Sergeant Guzman, who was promoted around the same time he was sending naked pictures of himself to a 16-year-old girl. (Warning: AUTOPLAY)

“It started off we regularly chat and it's mostly about school and how life is,” the teenager who was 16 at the time told 5 Investigates’ Mike Beaudet.

But she says the conversations kept escalating from there.

“If I gave him like pleasure and let him do things to me, he'd be willing to buy me things,” she said. “He took a picture of his penis and he sent it to me.”

Please note that if a classmate had sent a photo of his penis to this 16-year-old girl, he might be facing child pornography charges and a lifetime on the sex offender registry, rather than "annoying and accosting," which would net Guzman a maximum $200 fine and 6 months in jail.

That an officer -- and a family friend -- would use both of these positions to attempt to coerce a minor into sexual activity is disturbing enough. But what's more disturbing is his lawyer's dismissiveness of the teen's response to the unwanted explicit pictures. (h/t Chris Soghoian)

Afterward, his lawyer, Kenneth Anderson, said there are discussions with prosecutors to resolve 
the case.

“I really can’t go into detail given the nature of things. They’re serious charges,” Anderson said.

But he disputed the charges that Guzman sent a 16-year-old girl harmful pictures and said even if the allegation were true, he doesn’t believe the material would have been that shocking.

“You can’t tell me someone her age has never seen a picture of a penis on the Internet,” Anderson said.

So, by this rationale, the teen shouldn't be upset if an older relative, politician, church leader, trusted community figure, random neighbor or anyone else that shouldn't be sending dick pics to minor sent her explicit photos. After all, spend enough time on the internet and you're bound to see a penis. Perhaps Anderson could help her get over her fear of penis pictures by sending a few of his own her way.

This argument never should have been stated out loud. Hopefully, he won't be raising this in court. There's a huge difference between being sent an unwanted explicit photo and just coming across one while surfing the web. Add to this the fact that the person sending them was not only a family friend, but also in a position of power, and the disparity between "random internet dick pic" and what actually happened here becomes even greater. Even if the unnamed minor went searching for penis photos on the web, it would have been a consensual act. But there's nothing consensual about being sent explicit photos by a person in a position of power and trust -- one obviously willing to abuse both -- and arguing that just because someone has seen a penis before means they have no right to be upset about being sent unwanted photos is the lowest (in all senses of the word) form of rhetoric.

Filed Under: edwin guzman, internet, minors, porn, sexting