Supreme Court Says It's OK For Border Patrol Agents To Kill Mexican Citizens As Long As They Die In Mexico

from the precedent-controls-bullets-right-up-until-they-cross-an-imaginary-line dept

Border Patrol agents kill a lot of people, most of them citizens of another country. For years, agents have been able to open fire on people in moving vehicles and [checks Congressional report] people throwing rocks at them. New guidelines were handed down by the agency in 2014 following an outside investigation of the Border Patrol's use of force. The investigation contained many recommendations that could have resulted in fewer killings, but the Border Patrol rejected the conclusions and the suggested fixes.

So, the killings continue. And not much is being done to stop them. The Ninth Circuit Court of Appeals stripped qualified immunity from a Border Patrol agent who fired at leaast 16 bullets across the border at a 16-year-old resident who was allegedly throwing rocks at him. Ten of them hit the teen, killing him. The court ruled this was basically murder, something clearly not covered by qualified immunity. The Fourth Amendment governs what US government employees do. It makes no difference that the victim was not a US citizen.

That finding is likely to be struck down if it makes its way to the Supreme Court. A similar case involving the killing of Mexican resident by a Border Patrol agent standing on US soil has just received the Supreme Court stamp of approval.

Fifteen-year-old Sergio Adrian Hernandez Guereca was shot and killed by Border Patrol agent Jesus Mesa, Jr. as he played with friends in a culvert along the US-Mexico border. According to Hernandez's survivors, he and his friends were running back and forth across the culvert to touch the US border fence before running back to the Mexican side of the culvert. Agent Mesa claimed the teen was "involved in an illegal border crossing attempt" and "pelting" him with rocks.

The shooting resulted in an international incident. The Mexican government wanted the agent extradited to face murder charges in Mexico, the country where the murder occurred, even if the bullets originated on the US side of the border. The US government, on the other hand, decided Agent Mesa had done nothing wrong - that his deadly actions were clearly justified by the presence of rocks and/or border-crossing attempts.

Hernandez's parents sued. The Fifth Circuit took two swings at the case (once at the Supreme Court's request) and both times refused to extend the scope of Bivens to cover an incident where a government agent on the US side of the border shot and killed someone on the other side.

The Supreme Court likewise has refused to read Bivens as supporting a lawsuit against US government employees on behalf of a citizen of a foreign country. The Supreme Court believes doing so would upset the delicate balance currently preserved by Mexican outrage and US government indifference. From the ruling [PDF]:

Both the United States and Mexico have legitimate and important interests that may be affected by the way in which this matter is handled. The United States has an interest in ensuring that agents assigned the difficult and important task of policing the border are held to standards and judged by procedures that satisfy United States law and do not undermine the agents’ effectiveness and morale. Mexico has an interest in exercising sovereignty over its territory and in protecting and obtaining justice for its nationals. It is not our task to arbitrate between them.

This sounds positively Solomonic until you read the next paragraph of the ruling, along with some context that isn't discussed in the ruling.

In the absence of judicial intervention, the United States and Mexico would attempt to reconcile their interests through diplomacy––and that has occurred. The broad issue of violence along the border, the occurrence of cross-border shootings, and this particular matter have been addressed through diplomatic channels. In 2014, Mexico and the United States established a joint Border Violence Prevention Council, and the two countries have addressed cross-border shootings through the United States-Mexico bilateral Human Rights Dialogue. Following the Justice Department investigation in the present case, the United States reaffirmed its commitment to “work with the Mexican government within existing mechanisms and agreements to prevent future incidents.”

That 2014 date is key. That's the same year the Border Patrol was given new use-of-force guidelines while simultaneously rejecting the findings of an outside investigation that said agents used their weapons far too often in situations that either didn't require deadly force (rock throwing) or created new dangers (shooting at moving vehicles). The US government also cleared Agent Mesa of any wrongdoing, which suggests it has zero desire to hold its own people accountable for extrajudicial killings of foreign citizens -- something that can be easily accomplished by firing bullets from the US side of the border into Mexico.

In conclusion, the Supreme Court recommends trying not to get shot on the wrong side of the border.

Congress has repeatedly declined to authorize the award of damages against federal officials for injury inflicted outside U. S. borders. For example, recovery under 42 U. S. C. §1983 is available only to “citizen[s] of the United States or other person[s] within the jurisdiction thereof.” The Federal Tort Claims Act bars “[a]ny claim arising in a foreign country.” 28 U. S. C. §2680(k). And the Torture Victim Protection Act of 1991, note following 28 U. S. C. §1350, cannot be used by an alien to sue a United States officer. When Congress has provided compensation for injuries suffered by aliens outside the United States, it has done so by empowering Executive Branch officials to make payments under circumstances found to be appropriate. See, e.g., Foreign Claims Act, 10 U. S. C. §2734. Congress’s decision not to allow suit in these contexts further indicates that the Judiciary should not create a cause of action that extends across U. S. borders either.

The 5-4 majority says too much is at stake in terms of border security and international relations to come to any other conclusion. Since it's not going to legislate from the bench, US government employees can kill people in other countries without fear of being held personally responsible for their rights violations until Congress steps in -- something it's obviously in no hurry to do.

The concurrence, written by Justices Thomas and Gorsuch, is mainly annoyed the Court wasted time discussing a Congressionally-created escape hatch for federal officers and suggests tossing the Bivens doctrine altogether, further limiting lawsuits brought against federal officers/agents for Constitutional violations.

The dissent, however, points out this isn't an extension of Bivens across the border. While Hernandez may have died in Mexico, the bullets were fired by an officer on United States soil.

Rogue U. S. officer conduct falls within a familiar, not a “new,” Bivens setting. Even if the setting could be characterized as “new,” plaintiffs lack recourse to alternative remedies, and no “special factors” counsel against a Bivens remedy. Neither U. S. foreign policy nor national security is in fact endangered by the litigation. Moreover, concerns attending the application of our law to conduct occurring abroad are not involved, for plaintiffs seek the application of U. S. law to conduct occurring inside our borders.

Even the government concurred a Bivens action could be brought against Agent Mesa if one key element had been satisfied.

The complaint states that Mesa engaged in that very conduct; it alleged, specifically, that Hernández was unarmed and posed no threat to Mesa or others. For these reasons, as Mesa acknowledged at oral argument, Hernández’s parents could have maintained a Bivens action had the bullet hit Hernández while he was running up or down the United States side of the embankment.

"Wrong place, wrong time" shouldn't be the determining factor.

The only salient difference here: the fortuity that the bullet happened to strike Hernández on the Mexican side of the embankment. But Hernández’s location at the precise moment the bullet landed should not matter one whit.

[...]

Mesa’s allegedly unwarranted deployment of deadly force occurred on United States soil. It scarcely makes sense for a remedy trained on deterring rogue officer conduct to turn upon a happenstance subsequent to the conduct—a bullet landing in one half of a culvert, not the other.

If Bivens is neutered, there's nothing left for plaintiffs. And the agency benefitting from this already does next to nothing to deter misconduct by its agents.

Regrettably, the death of Hernández is not an isolated incident. Cf. Rodriguez, 899 F. 3d, at 727 (complaint alleged that border agent fired 14 to 30 bullets across the border, killing a 16-year-old boy); Brief for Immigrant and Civil Rights Organizations as Amici Curiae 26–28 (describing various incidents of allegedly unconstitutional conduct by border and immigration officers); Brief for Border Network for Human Rights et al. as Amici Curiae 8–15 (listing individuals killed by border agents). One report reviewed over 800 complaints of alleged physical, verbal, or sexual abuse lodged against Border Patrol agents between 2009 and 2012; in 97% of the complaints resulting in formal decisions, no action was taken.

Zero accountability, blessed by two government branches. Here's the third branch doing the same thing. The message it sends is this: if you're going to kill a Mexican citizen, make sure they're still in Mexico. And that message means the case coming up from the Ninth Circuit is going to give another Border Patrol agent a free pass on taking a foreigner's life.

Filed Under: bivens, borders, cbp, jurisdiction, mexico, shooting, sovereignty, supreme court, us

Multi-Agency Task Force Raid House To Arrest Someone Already In Jail, Shoot Woman In House Multiple Times Because Reasons

from the ma'am-we're-the-professionals-here-he-said-as-he-shot-her dept

I usually don't jump in on things like these until a few more facts are in. As much as law enforcement complains about people "rushing to judgment" before every conceivable fact has been examined, here at Techdirt we prefer to be right, rather than first. Hey, we care about our reputation and we know our readers expect better of us.

That being said, there are a lot of tells in this story that suggest this is going to get a whole lot worse for the law enforcement agencies involved in this nearly-deadly raid. Not "worse before it gets better." Oh my no. The only way it gets "better" is if these officers and agencies have access to a time machine and can undo every fucked up thing they did here.

Here's a brief summary of what happened, as reported by the Associated Press:

Officers who mistakenly entered a home trying to arrest an Alabama man who was already in jail shot a woman who was inside, news outlets reported.

Ann Rylee, 19, was wounded during the raid on Thursday, television news outlets quoted family members as saying. They said she was hospitalized and was expected to survive.

You can already see one of the problems. The raid was conducted to arrest a person who was already in jail. That someone was shot during the raid is almost expected at this point, since law enforcement agencies regularly treat bog standard warrant service like a deployment on Omaha Beach in 1944.

As you dig into the details, certain things start to stand out. We'll begin with the lack of due diligence. Raiding a house to find someone who's already in jail isn't good. It means no one thought to run a check prior to the raid to ensure the person they were looking for was a.) at that address and b.) wasn't already in custody. That's strike one.

Let's move on.

Mobile County sheriff's deputies joined federal officers at a home in the Wilmer community looking for Nicholas McLeod, who used to live there. Jail records show he was actually arrested a day earlier on charges including possession of drug paraphernalia and evidence tampering.

A task force was assembled to arrest someone for these charges. What even the fuck. These are not charges that demand an armed response. I realize officers are always armed, but it is really tough to square those charges with a joint task force composed of Alabama deputies, the Department of Homeland Security, and US Marshals.

This seems like overkill, even if it (fortunately) didn't lead to anyone being killed. Not for a lack of trying though!

The task force rolled up on Christopher McLeod, who was taking out trash. They told him (and the friend he was with) to lay face down while they performed their violent warrant service. McLeod warned the law enforcement officers and agents that his fiancee was inside, asleep in a recliner. He also told them there was a loaded shotgun in the living room, which the couple kept for protection.

The warning went unheeded, apparently. The task force blew through the door and started shooting because why not. They had been told there was a gun in the house.

McLeod said Rylee was shot multiple times and underwent surgery.

But there's no reason to believe Rylee grabbed the gun or pointed it at officers. At least not at this point. All we have to go on is the word of the sheriff and the one person who happened to be near the residence when it became a war zone.

Here's the sheriff:

"As agents went up to the house they detained two men outside, who said there was a woman still inside. As they went to make entry into the house... This lady had armed herself with a shotgun and the entry team was giving her orders to drop the gun, put the gun down, drop the gun several times -- over a period of a few seconds it seems like... And there is video recordings of that. She didn't and she pointed the gun at one of them -- then two or three agents fired upon her striking her three or four times," said Mobile County Sheriff Sam Cochran.

And here's Christopher McLeod who as at the scene, although outside face down.

Two federal marshals who had approached the home started yelling “gun” and fired multiple times, he said.

First, let's discuss the second statement. Law enforcement officers shouting "gun" is indicative of nothing more than the existence of a gun. That existence was pre-disclosed by the person lying face down on the ground while officers shot his fiancee. It does not mean Rylee ever pointed a gun at officers.

And that's taking into consideration Sheriff Cochran's statement. Even if Rylee raised a gun and pointed it at officers, this does not excuse the officers' actions. The Second Amendment and the Castle Doctrine are still applicable in this country, even if an untold number of law enforcement officers have done everything they can to make it appear the only people allowed to point guns at anyone are law enforcement officers.

But let's look at what's missing in both of these statements. First, no one says officers ever identified themselves as officers of the law. If Rylee woke up and saw people pointing guns at her, it probably made sense to point one back at them.

Even that assumes too much. She may have just reached for it, turning the task force into a "reasonably scared" task force that felt justified in firing their guns until the "threat" was "neutralized."

There's something more concerning in the sheriff's statement, though.

"there is video recordings of that."

Really. Hmm.

[T]here is no body camera footage because the Mobile County Sheriff's Office doesn't have body cameras.

Video footage exists, the sheriff said, knowing none of his deputies recorded the shooting. So that leaves it up to the federal members of the task force. Well, Sheriff Bullshit, federal officers do not wear body cameras. In fact, until very recently, if feds partnered with law enforcement agencies who did have body cameras, the local boys had to leave their cameras at home. So where do these mysterious "video recordings of that" come from?

One possible answer is a security camera attached to the raided home. But if that existed, you would expect the man whose fiancee was shot to mention it. The only other possibility is someone on the task force was wearing a personal body cam -- one not supplied by their agency. If that's the case, that footage will never be released because it belongs to the camera's owner, not the agency employing them.

That footage will disappear forever unless it definitively shows every task force member was in the right when they started shooting Rylee. And it's probably going to disappear forever anyway, because there's no way every member of a multi-agency task force can justify deadly force deployment when they've forcibly entered a house to locate a suspect wanted for non-violent crimes, failed to identify themselves as officers, and shot someone simply for possessing a gun and possibly trying to defend themselves from armed invaders.

There are a ton of holes in the official narrative. Serious, disturbing holes. That's why this needs to be watched. And that's why I've chosen to bring it to your attention before the story has completely developed. More than one thing went wrong during this raid and the sheriff is out playing PR flack for a couple of federal agencies which should have better things to do than participate in raid to arrest someone wanted for nothing more than paraphernalia possession and witness tampering. This story stinks. And when the details come out, it's going to be even worse.

Filed Under: alabama, ann rylee, christopher mcleod, mobile county, nicholas mcleod, police, raid, shooting

Appeals Court Says No Rights Were Violated When A Cop Shot At A 'Non-Threatening' Dog But Hit A Kid Instead

from the ongoing-Fifery-of-American-policing dept

The Eleventh Circuit Court of Appeals has reached a conclusion that defies easy summation. But here's an attempt: it is not well-established that cops shouldn't shoot children they've ordered to lie prone on the ground while trying to shoot a dog that posed no threat to officers.

In reversing the lower court's denial of qualified immunity to Officer Michael Vickers, the Appeals Court has opened the door to preventing the stupidest, most-inept cops from being held responsible for their careless blunders.

In this case, Vickers and other officers were pursuing a suspect through a neighborhood. This pursuit inserted them into the backyard of Amy Corbitt, where Corbitt's 10-year-old child (known only as SDC in the opinion) and five other children (two of them under the age of three) were playing. The officers entered the yard and demanded everyone present to get down on the ground, including the children. They handcuffed the only adult in the backyard (Damion Stewart) and kept the children on the ground. The officers had the scene secured as they outnumbered the prone children who were still laying on the ground with guns pointing at them.

The surprise entrance of the family dog turned this scene from merely-horrific to possibly deadly. From the decision [PDF]:

Then, “while the children were lying on the ground obeying [Vickers’s] orders . . . without necessity or any immediate threat or cause, [Vickers] discharged his firearm at the family pet named ‘Bruce’ twice.” The first shot missed, and Bruce (a dog) temporarily retreated under Corbitt’s home. No other efforts were made to restrain or subdue the dog, and no one appeared threatened by him.

Officer Vickers, presumably still shaken by the sound of his own gunfire, decided to take another shot at the dog when it reappeared and tried to approach all the people it knew, who were lying on the ground all over the backyard. There's no indication the dog even turned in Officer Vickers' direction.

Eight or ten seconds after Vickers fired the first shot, the dog reappeared and was “approaching his owners,” when Vickers fired a second shot at the dog. This shot also missed the dog, but the bullet struck SDC in the back of his right knee. At the time of the shot, SDC was “readily viewable” and resting “approximately eighteen inches from . . . Vickers, lying on the ground, face down, pursuant to the orders of [Vickers].”

Maybe this attempt to secure the scene was necessary because other officers were still trying to detain the criminal suspect…

Barnett (the fleeing suspect) “was visibly unarmed and readily compliant” with officers.

Officer Vickers claimed he was entitled to qualified immunity for shooting at a non-threatening dog and shattering a child's knee instead. In support of this, he pointed to an unpublished decision by the Eleventh Circuit saying no one has the right to be free of "accidental applications of force." The lower court disagreed. The Eleventh Circuit apparently feels there's no case law precisely on point to prevent it from rewarding Officer Vickers for his courageous stupidity in the face of non-danger.

Its explanation of this conclusion sounds like it's going the other way the whole time… right up until its conclusory sentence.

As noted above, at the time Vickers fired at the dog, SDC just happened to be playing in his own yard when, for reasons beyond his control, his yard became the scene of an arrest operation. Although we have held that SDC was already seized at the time of the shot, SDC is best described as an innocent bystander. And although the commands of the officers that SDC and the other children lie face down on the ground were actions directed at SDC and the other children, Corbitt does not claim that those actions violated SDC’s Fourth Amendment rights; rather, she claims that the action of Vickers firing at the dog and accidentally hitting SDC violated the Fourth Amendment. We hold that Vickers’s action of intentionally firing at the dog and unintentionally shooting SDC did not violate any clearly established Fourth Amendment rights.

Or, more concisely: being careless with your deployment of force doesn't violate the Constitution.

Indeed, we are unable to identify any settled Fourth Amendment principle making it obviously clear that volitional conduct which is not intended to harm an already-seized person gives rise to a Fourth Amendment violation.

There will be no holding by the court to encourage more careful deployments of force in the future.

This is not a case that so obviously violates the Fourth Amendment that prior case law is unnecessary to hold Vickers individually liable for his conduct. To find otherwise would require us to conclude that no reasonable officer would have fired his gun at the dog under the circumstances. This we are unable to do.

What do you mean by "we," asks Judge Wilson's dissent:

The majority accurately points out that qualified immunity protects “all but the plainly incompetent.” Maj. Op. at 10 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Because no competent officer would fire his weapon in the direction of a nonthreatening pet while that pet was surrounded by children, qualified immunity should not protect Officer Vickers. Therefore, I dissent.

As the dissent points out, there was nothing "reasonable" about Officer Vickers' actions, especially when it's apparent from the allegations no one BUT Vickers felt compelled to shoot at the non-threatening dog.

Consider the present facts and circumstances: officers arrived at a home and found the subject of their search. At gunpoint, the officers ordered the suspect and all persons in the area—including six children—to the ground. Everyone complied. A nonthreatening family pet was present on the scene; there is nothing to suggest that this pet acted with hostility or threatened the safety of anyone— including the officers. With all the children and the suspect still lying on the ground pursuant to the officers’ commands, Officer Vickers shot at the family pet. He missed. He waited. He shot again. He missed again, instead striking a child who had been—at all times—lying within arm’s reach of the officer.

This conduct—discharging a lethal weapon at a nonthreatening pet that was surrounded by children —is plainly unreasonable.

If the question is "reasonableness" of the actions taken, Officer Vickers fails the test every step of the way.

No reasonable officer would engage in such recklessness and no reasonable officer would think such recklessness was lawful.

Unfortunately, the majority felt the impact of denying qualified immunity would be too much for the occupation of law enforcement to bear. If officers are forced to consider the implications of their violent actions, they might… I don't know… commit fewer acts of violence. Spun into blueness, this would be misconstrued to mean second-guessing themselves in life or death situations. That's extrapolation from facts not in evidence. Nothing here was a threat. But Officer Vickers fired until he hit something anyway. That it happened to be a child rather than the family pet is horrifying, but the truth is, Vickers never should have opened fire at all. But he's free to make the same harmful mistakes again and again, as are all his blue brethren in the 11th Circuit.

Filed Under: 11th circuit, amy corbitt, dog, kids, michael vickers, police, qualified immunity, shooting

Police Chief Tries To Blame Newspaper Shooting On The Loss Of Social Media Monitoring Tool, But It Doesn't Add Up

from the please-show-your-work dept

The first response to a tragedy by many public officials is to capitalize on it. That's what the Anne Arundel County police are doing in the aftermath of the shooting at the Capital Gazette newspaper that left five journalists dead. Police Chief William Kampf seems to believe this could have been prevented if the department hadn't been locked out of its social media snooping tool. (h/t WarOnPrivacy)

The acting police chief of the Anne Arundel County Police Department said a controversial tool could've helped investigators track down the Capital Gazette gunman before his deadly rampage.

Geofeedia is a social media intelligence tool that helps identify a user’s location based on where they post to their social media account. Acting police chief William Kampf said his department lost access to the tool, which has limited their abilities to track individuals like suspected gunman Jarrod Ramos.

I don't think Chief Kampf is lying. But he is wrong. Very wrong. And he should have gathered all the facts before using a shooting in his town to complain about this loss of access. At the very least, he perhaps should have demonstrated Geofeedia's crimefighting value using other cases in which something was actually prevented. But nothing was presented -- not even Kampf's ability to fully apprise himself of the situation before opening his mouth.

Geofeedia's social media monitoring service was a big hit with both local and federal government agencies. Documents obtained by the ACLU showed the company marketed the software with a "stay ahead of the rioters" tagline in the wake of Ferguson protests. This implicitly encouraged the monitoring of First Amendment-protected activities since the dividing line between "riot" and "protest" is sometimes nothing more than law enforcement's response to the situation.

Once these documents were made public, Facebook and Twitter revoked Geofeedia's access to their respective firehoses. This drastically limited the usefulness of the tool. This appears to be what Chief Kampf is referring to when he says his department "lost access." This cutoff happened in October of 2016. This cutoff date makes the chief's assertions about Geofeedia's usefulness highly suspect. By the time the cutoff happened, there would have been nothing to monitor.

Since Nov. 20, 2011, [the shooter] mentioned in tweets @ethartley or his last name 107 times, Marquardt by name or as "Evil Tom" nearly 100 times and @capgaznews more than 50 times, according to a USA TODAY analysis.

The account regularly attacked the newspaper and its journalists, including a reference to the deadly shooting at the French newspaper Charlie Hebdo in 2015.

It had been dormant since January 2016.

Even if Geofeedia hadn't lost its API access, the monitoring tool would have done nothing to warn the police about the shooter's activities or plans. Social media monitoring software is useless when targets aren't using social media.

It's also unclear why the police would have continued to monitor a dormant account belonging to someone it had already investigated and found nothing to arrest him for.

A detective who investigated threats shooting suspect Jarrod Ramos made years ago against The Capital Gazette told the newspaper's staffers he did not believe Ramos was a threat to them.

The newspaper itself declined the detective's offer to forward what he had to the State Attorney's Office to see if it thought there was something criminal about the shooter's social media activities, but the paper demurred, feeling it would be "a stick in a beehive."

For this to work out the way Chief Kampf wants us to believe it does, the shooter's social media account would had to have been active and his posts would have needed to contain enough targeted keywords to make his tweets appear on the PD's Geofeedia dashboard. Even if all of that were true, the tweets would have needed to be unambiguously threatening to give law enforcement a reason to interact with the shooter again. Nothing stated by the police department in multiple comments indicates the shooter was being monitored with Geofeedia prior to the newspaper bringing its threat/harassment complaints to the police.

There are too many unresolved "ifs" to make Chief Kampf's complaint plausible. And there is one undeniable fact that makes his claim completely bogus: the account was dormant -- invisible to Geofeedia. The tool would not have helped police head off this tragedy before it could occur. Claiming it would have after the fact is nothing more than opportunism.

Filed Under: capital gazette, monitoring, police, shooting, social media, surveillance, william kampf
Companies: geofeedia, twitter

The Vegas Shooting Makes It Clear More Surveillance Isn't The Answer

from the neither-is-a-reduction-in-civil-liberties dept

The solutions proposed by legislators, law enforcement, intelligence agencies, and multiple direct beneficiaries of amped-up surveillance in the wake of acts of terrorism are always the same: more of the stuff that didn't prevent the last attack.

London is a thicket of CCTV cameras and yet it's suffered multiple attacks in recent years. The NYPD and New York's former mayor idolized the London system: cameras everywhere (but not on NYPD officers). Despite this, New York City's relative safety appears to based more on policing tactics than hundreds of passive eyes.

Considering the unshakable belief "more cameras = more safety," how do surveillance supporters explain the recent shooting in Las Vegas, perhaps the most heavily-surveilled city on the planet?

In 2013, Nevada outfitted the Strip's "real-time crime center" with an additional 37 pivot-and-zoom cameras with a $350,000 federal grant. And as a surveillance expert told the Sun, most casinos on the strip are running thousands of cameras already: "Casinos have 100 percent coverage of virtually every square inch," he said. In the highways around Vegas, there are still cameras every half-mile. "Loss-prevention" recording devices stalk the Strip's employees in the back-of-house.

And still, while the footage will be rewound and analyzed in the coming weeks, acquired by the press, and used to model future scenarios, none of those cameras stopped a man from walking into the Mandalay and stocking a small arsenal of automatic weapons in his hotel room.

More isn't better. This much is clear. The NSA's infamous haystacks have caused more problems for analysts, who are tasked with sifting through millions of communications in hopes of flagging something worth pursuing. Thousands of cameras are useless if there aren't thousands of eyes to watch them in real time. It may help investigators after the fact, but after-the-fact detective work is never preferable to preventing deadly attacks.

As Molly Osberg points out for Splinter, the proposed prevention efforts will likely include even more cameras. And these proposals will come with zero stats backing up claims of increased safety and security.

[L]ondon police estimated almost a decade ago that for every 1,000 security cameras installed, only one crime was solved.

Eliminating cameras isn't the answer. But neither is continuing to prop up the delusion that more = safer. The same goes for other surveillance methods. Grabbing millions of communications daily might seem like a good way to catch something relevant now and then, but hours are wasted on filtering out false positives and internet detritus that wouldn't be swept up in more targeted approaches.

The surveillance state hasn't failed. It's just enamored with compounding its existing problems by adding more capacity. The only thing really guaranteed is more failure.

Filed Under: cameras, haystacks, las vegas, privacy, shooting, surveillance

The War On Dogs Continues: Cop Shoots Two Non-Threatening Dogs During Burglar Alarm Call

from the no-matter-how-scared-you-are,-shooting-a-cop's-dog-is-a-criminal-act dept

Man's best friend remains a cop's worst enemy. At least, that's what the numbers appear to show. Cops claim the job is dangerous -- hence the ~1,000 people killed every year by law enforcement officers. Trigger-happy cops: "Hold our beer."

The exact number of dogs killed by law enforcement officers is difficult to quantify because there is no official record of these deaths across American agencies. Laurel Matthews, a program specialist with the US Department of Justice’s community-oriented policing services office, says fatal encounters are an “epidemic” and estimates that 25 to 30 pet dogs are killed daily by police.

Even while suggesting cops are killing ~9,000 dogs a year, the DOJ's specialist still couches the data in cop-friendly language: "fatal encounters." No officers have been killed by dogs, but plenty of dogs have been killed by officers. The fatalities run in one direction.

And that estimate may be on the low side. Records of people killed by cops are incomplete, thanks to the DOJ's long-running belief any reporting on police shootings should be purely voluntary. But there's no shortage of reporting on the epidemic, which has deemed law enforcement "puppycide."

In Minneapolis, Minnesota, two more dogs have been shot by a police officer for no apparent reason at all. The dogs will survive but the owner is now saddled with medical bills she wouldn't have had if responding officers had handled the situation with more common sense.

Returning early from a camping trip, one of Jennifer LeMay's daughters accidentally set off the burglar alarm while attempting to disarm it. LeMay called the company and told them what had happened but apparently officers had already been sent out to investigate.

It should have seemed obvious someone was home, but neither officer approached the front door of the house. One climbed over the privacy fence and into LeMay's backyard. When he did, he was approached by one of LeMay's dogs. In the video, posted to Facebook, the dog can be seen approaching the officer, but not in a threatening way. If anything, the dog appears cautious and curious.

But the lesson to be learned here is try not to leave your dogs in the yard if police officers might need to be in there for any reason at all ever.

The video, with no audio, shows an officer standing in the backyard. He then approaches the house and goes out of camera range. A moment later, he steps backward rapidly with his gun drawn.

Ciroc, a white and brown dog, trots toward the officer and stops about 10 feet away. The dog looks distracted but does not appear to be charging the officer. The officer fires, the dog falls and then scrambles to his feet and runs away. At the same time, a black dog runs into camera range. The officer shoots several times and the dog flees.

The officer appears to assess the scene for about 18 seconds before he exits the yard by climbing over the fence.

LeMay's 13-year-old daughter saw the whole thing from the upstairs window. That probably wouldn't have made a dent in the official narrative, but the incident was also captured by the home's security cameras. Nevertheless, there's still an official narrative:

"We are aware of the recent incident involving MPD officers responding to an audible residential burglary alarm and while at this call an MPD officer discharged their firearm, striking two dogs belonging to the homeowner. Anytime an officer discharges their firearm in the line of duty there is an investigation ... by the Minneapolis Police Department's Internal Affairs Unit. We are in the process of reviewing the video posted online, as well as the officer's body camera video. We have reached out to the owner of the dogs and will continue to do so during the investigation."

In other words, the MPD is trying to find some way to spin this. The video looks pretty damning. If the officer didn't want to be scared by someone's pets, perhaps he or another officer could have taken the last step first.

After the dogs' shooting, another officer knocked on the front door. The 18-year-old explained that she'd triggered the alarm and that it had been deactivated.

Then there's this part of it, which shows MPD officers really don't know what they're doing when it comes to dealing with pets. And they clearly don't understand… or care… how attached regular people are to their canine companions.

The family didn't instantly take the dogs to the emergency vet because police told the family that "animal control" would be there in minutes to access the dogs' medical needs. No one showed up, LeMay said.

The alarm was accidentally set off at 8:50. The alarm was deactivated by the alarm company after notification by the homeowner by 8:54. For some reason, twenty minutes later, cops show up and one of them shoots two dogs. Even if the cops weren't notified by the security company, what made them think the best approach was to invade someone else's private space and shoot two pets on sight before making any contact with the people inside the house? An overabundance of caution would seemingly indicate staying a safe distance from the premises while they determined who was actually inside the house, not entering the backyard with a gun out and shooting animals that had more right to be there than the uniformed, armed interloper.

Then there's the fact the officer left after shooting the two dogs. What happened to the burglary investigation? It could be this was the point the other officer finally knocked on the front door of the house, but once again, this step should have been taken long before a cop invited himself into the backyard and try to kill the yard's inhabitants for reacting -- in a non-threatening way -- to his intrusion. Is no one else alive -- humans or pets -- allowed to feel "fear for their safety?" Or is that solely the "right" of cops, who do things to increase the danger of situations and are allowed to shoot their way out of it.

Filed Under: dogs, police, shooting, violence

Predictable: The Fragmented Media Will Give Us All Our Post-Oregon-Shooting Outrage Blankets

from the two-minutes-hate dept

As you no doubt have heard by now, and as we already tangentially discussed earlier, there has been yet another mass shooting in America. This time, it came to Oregon, where a single gunmen made his way into a community college and managed to murder nine innocent people, injure others, before his own life was extinguished, either by his own hand or by those of law enforcement. And, as we wake up the next morning, anyone with any interest in civil society and culture grapples with the story. President Obama remarked that these stories have become routine, seeming to suggest that everyone has become numb to these events, accepting them as part of the American life. He's wrong about that. Desperately and importantly wrong. Instead, the truth is that the public is the opposite of numb. The public is angry. Unfortunately, because of the way that a fragmented and ideologically aligned media landscape has emerged in the past two decades or so, we all end up angry about different things, with our outrage stoked and guided in avenues that put us at odds with those that have had their outrage stoked and guided in entirely different avenues.

Predicting these avenues is trivially easy. A cursory glance at the story of a mass shooting and the media reaction to it provides everything required to act as a Nostradamus for the outrage outlets we will see. Over the next few days, we'll hear stories about the gunmen being from a broken family, with traditional family breakdown serving as a punching bag for remorse. Some outlets will discuss the shooter's video game hobby. Or his interest in horror movies and novels. Some outlets will focus on his access to guns, while others will focus on his reported targeting of Christians and religion. Still others will scream "false flag!", sadly undermining the very real lives lost and lives shattered through injury and terror. Too many of us, a majority of us, will ingest the news of the shooting in the medium and outlets of our choice, chosen specifically because that medium and outlet feeds us the meal we want the way we want it. Cable news started this, of course, planting flags of partisanship in a realm once at least thought to be dominated by facts. Spin-masters will work their magic, taking dead bodies and boldly morphing them into causes and outrage. Meanwhile, the shooter gets exactly what these shooters want: fame. Rather than employing the seriously genius "some asshole initiative" by refusing to name these shooters or focus on them in any way, we'll do the opposite and turn on the spotlights. We will be distracted.

Put another way: we will retreat. Retreat away from the horror of death and into the comforting arms of the outrage that lets us feel like it all means something else to us. Here's what you'll see. A discussion about guns will arise before quickly falling away and nothing will happen. A conversation about 4chan, and other internet sites, and whether or not more needs to be done to police the internet looking for potential killers will be sparked, but nothing will happen. Some will lament the decline and/or targeting of religion in America, wondering aloud, stupidly, if too much religion or not enough of it is responsible for the killings, but nothing will happen. Violent media, be it games, movies, or novels will be trotted out as sacrificial lambs for our anger, but nothing will happen. From the fringe will be another crowd, bleating that none of this actually happened and that it's all fake news and actors playing out a game of gun-snatching that never seems to actually materialize, because nothing ever happens.

Why? Because we retreat to fragmented media and mediums that focus our outrage onto the target of our choice. Facts matter little if at all, as one can tell by the speed with which reports and reporters begin funneling our outrage. This is a problem, one started by mass media and continued, unfortunately, on the internet. There's nothing wrong with choice, of course, when it comes to us choosing our media outlets. The problem as I see it is when the choices become fragmented by political or ideological lines. The fact that we can name a media outlet and guess with an unfortunate amount of accuracy exactly what spin will be put on the reporting of a mass shooting is a problem. The answer to that problem is, as usual, the dropping of ideology, of political dogma, of the retreat. So, as you read the news about this reporting in the coming weeks, notice the rush to find factors of blame and reject them.

The news is that this was a tragedy. The sad news isn't just that we're not going to do anything about it, but rather that we're not going to do anything about it even though we all have a cause in it.

Filed Under: culture, echo chambers, fragmented media, journalism, media, media bubbles, school shootings, shooting

Virginia Police Force BBC Reporters To Delete Camera Footage Of Police Pursuit Of Shooter

from the hello-first-amendment dept

The story of this morning's live "on air" shooting of a local TV news reporter in Virginia is horrifying on many, many levels. Like with many senseless killings, there are all sorts of "big questions" being raised, most of which aren't really appropriate Techdirt fodder, though I'm sure those of you interested in those things can find other outlets for them. However, one tangential story fits right into Techdirt's core areas of focus: apparently two BBC reporters who were covering the police pursuit of the apparent shooter (who then shot himself) were forced by police to delete their own camera footage. This is illegal. I don't know how many times it needs to be repeated. Even the DOJ has somewhat forcefully reminded police that they have no right to stop anyone from photographing or videotaping things, so long as they're not interfering with an investigation. And yet...

Two BBC reporters covering the police pursuit of Vester Lee Flanagan said that cops threatened to seize their car and camera if they didn't delete footage of site where the Flanagan shot himself. "Was too far away to get any good footage. One officer threatened to tow my car and take my camera," reporter Franz Strasser tweeted. "Watched me delete my one file, and let me go. Other officer apologized and said we have to understand." His colleague, Tara McKelvey, filmed the encounter.

It appears that the cops used the same bullshit excuse we've seen them use in the past: that it's "evidence."

Officer Clark says: "that could be evidence and seized." He was telling us about our camera. The suspect is reported dead.

— Tara McKelvey (@Tara_Mckelvey) August 26, 2015

But, as Strasser notes, if that's true, then why did the cops make them delete it?

But why they are then okay with deleting 'evidence' makes one question their reasoning.

— Franz Strasser (@franzstrasser) August 26, 2015

As has been noted before, this is a clear violation of Constitutional rights, and the BBC and the reporters in question could file a civil suit against the police department, potentially winning a fair amount of taxpayer money because the police in Virginia are apparently unfamiliar with the First Amendment of the Constitution.

Filed Under: bryce williams, deleting video, filming police, first amendment, franz strasser, free speech, police, reporting, shooting, tara mckelvey, tv, vester lee flanigan, virginia
Companies: bbc, wbdj

Guy Who Took Walter Scott Shooting Video Now Demanding To Be Paid; Everyone Gets Confused About Fair Use

from the let's-take-this-slowly... dept

As you probably heard, last week there was a big story involving North South Carolina police officer Michael Slager being charged with murder for the shooting death of Walter Scott. Slager had told a story about how Scott had taken his taser. But, a few days later, a bystander's video of the incident was released and told a very different story. If you didn't see it, here is the video, which is rather graphic, seeing as someone is shot to death in the video. We didn't cover this story, which surprised some -- since we frequently cover police brutality stories, with a special focus on stories involving cellphone videos being used to dispute the "official line" from police. However, this was one case where the issue had received so much press coverage that we felt we had little to add to the story.

Well... that is until a copyright angle was added to the story. You see, the guy who actually shot the video, Feidin Santana, has apparently hired a publicist who is demanding news stations pay up for showing the video. And yes, news stations are playing the video so often that it's become a Jon Stewart punchline. Sanata had initially been anonymous, and claimed that he was worried about retribution, but since coming forward has apparently decided that he might as well cash in.

The publicist who is apparently going around trying to charge for this (one assumes after being retained by Santana) has some interesting views on how this all works:

“It’s been allowed to be used for free for over a week now,” Max Markson, CEO of the Sydney-based Markson Sparks group, told the Daily News.

“Now it’s going to be licensed and now you have to pay for it.”

But there's a big problem with this plan, and that is known as "fair use." News reporting is one of the fundamental parts of fair use. Unfortunately, the reporter from the NY Times, Frances Robles, seems to have very little knowledge about fair use and relied on a ridiculously biased expert to argue otherwise. She spoke with Frederic Haber of the Copyright Clearance Center, an organization that goes around trying to license everything and is fundamentally against fair use. And yet, Robles insisted that "copyright experts agree" that fair use somehow no longer applies:

Copyright experts agreed that although news agencies are allowed to use even copyrighted material under what is called “fair use” clauses in the law that time period has passed.

Many actual copyright experts challenged Robles about this issue on Twitter, and she insists she spoke to two others besides Haber and they all agreed, though when questioned, she refused to name who those copyright experts were. And that's a problem, because all three of those copyright experts -- assuming Robles actually found three -- are wrong. There is no "time limit" element to fair use. At best someone might try to argue that after a certain period of time the piece was no longer newsworthy and thus fair use no longer applied, but that seems like a huge stretch.

There is no fair use in Australia, so perhaps that's why Markson is so confused. Take, for example, the nonsensical statement he gave Buzzfeed:

“Fair usage for video exists and networks can still use it for a certain amount of time,” Markson further explained, “like with footage from the Olympics, but the fair usage fee is for people who want to use it again. And in the lead-up to the trial we expect there will be more requests for licensing.”

This makes no sense. There is no such thing as a "fair usage fee." Markson doesn't seem to have any idea how fair use works, and it's unfortunate that the NY Times report that many people are basing their own reporting on isn't any better.

There is plenty of case law that I'm sure any real "copyright expert" would have passed along to Robles had she asked them. Hell, just last year there was a good fair use ruling saying that Bloomberg was allowed to distribute a recording of Swatch's investor calls. The idea that time does away with fair use doesn't make much sense. There's a 1968 case in which Time Life sued Random House and others claiming that using stills from the famed Zapruder film of President Kennedy's assassination was infringing, but the court found it to be fair use, despite it happening years after the film was made (rather than weeks in the case of the Walter Scott video). Then there's the case involving video footage of the beating of Reginald Denny, in which the videographers sued CBS over their use and distribution of the footage (including that it was briefly broadcast on Court TV). Here again, courts found the use to be fair use noting:

We conclude that each factor, particularly the nature of the copyrighted work, weighs in favor of fair use except the substantiality of the use, which we treat as neutral.   Accordingly, we agree with the district court that Court TV's use was protected, and we affirm the grant of summary judgment in its favor.

So it seems rather difficult to see how fair use magically disappeared, no matter what Frederic Haber or the mysterious other two "copyright experts" told Robles.

“At some point it’s not newsworthy anymore and you are using it for commercial benefit,” said Frederic Haber, a vice president and general counsel of the Copyright Clearance Center, a collective licensing organization that works on behalf of copyright holders such as The New York Times. The issue could change once the video is played in court during a trial, he said.

Robles later also seems more confused about how copyright works in suggesting that because Walter Scott's family gave the NY Times the video, it wouldn't be subject to these demands for payment:

The Times has used the video with the family’s permission and not received a cease and desist letter.

That sounds good but is meaningless. The Scott family doesn't have the copyright on the video. Santana does. They have no right to license it and the NY Times is clearly relying on fair use in its presentation as well.

Unfortunately, because most reporters don't really want to bother to understand the issue, many took the NY Times report and ran with it, insisting that, yes, media outlets now have to pay to continue using the video. Even the Poynter Institute, which should know better, ran with a headline saying that the "media must pay" to continue using the video. The article itself at least discusses the fair use issue, but the headline seems to ignore that.

I'm guessing that many big news organizations will just pay up, because it's cheaper than fighting, but they have every right to fight this attempt to undermine fair use. The video is newsworthy and its use in reporting is the kind of quintessential example of fair use that is often used to show how fair use works.

Filed Under: copyright, fair use, feidin santana, max markson, michael slager, news coverage, newsworthy, police, shooting, walter scott
Companies: markson sparks