Court To Officers: You Can’t Charge Someone With Resisting Arrest When You Broke The Law With A Warrantless Entry

Legal Issues

from the is-that-my-petard?-put-me-up-on-it! dept

There are few things I enjoy more than watching cocksure cops trip over their own hubris.

And it happens so often. Cops believe that since they are (affirmatively) law enforcement officers and the people they target are (only allegedly) criminals, they are firmly in the right, no matter what they do or what rights they violate. For some reason, they tend to believe their powers are divinely granted, rather than subject to consent of the policed.

So, they fuck up. A lot. But only rarely do they get called out for it. It always takes a lawsuit or a challenge raised by the person accused of crimes. In a majority of cases, they simply get away with it. Not here. Not in this case, brought to us (but without a link to the opinion, what even the fuck John Wesley Hall) by FourthAmendment.com. In this case, a bog standard charge for lack of immediate compliance (resisting arrest) gets tossed out because the cops broke the law first.

It’s a short decision [PDF], but it’s more than enough to make it clear that when the cops do the lawbreaking first, they’re not allowed to arrest someone for resisting an unlawful seizure. Here’s how things went en route to Daniel Peacock being charged with resisting arrest, as recounted by the North Carolina Court of Appeals.

Deputy Jake Staggs testified that on 29 January 2020, his sergeant directed him to assist with executing a search warrant for stolen property at a home in Henderson County. Staggs and a group of six-to-eight officers arrived at the home around midday, knocked on the door and announced their presence, heard no response, and entered. The officers then forced entry into a locked bedroom where Defendant was lying in bed with a sheet over his head and body.

Defendant did not comply with orders to roll onto his stomach and place his hands behind his back and instead remained in place on the bed with his hands covering his face. Staggs pulled Defendant onto the floor and commanded him to get on his stomach. Defendant remained tense and failed to comply with instructions, then reached under the bed. Staggs struck Defendant in the head to “cause him pain compliance,” and was able to get Defendant’s hands behind his back. Staggs placed Defendant in handcuffs and cited him at 1:14 pm for resisting a public officer.

Pay attention to the time stamp in that last sentence. It’s important.

Also, take note of some other things that aren’t ultimately dispositive, but are worth pointing out. First, there’s the fact that the testifying deputy had no idea how many officers were actually involved in this search. That seems like the sort of thing that should have been noted in the post-raid paperwork.

Second, there’s this ridiculous phrase, which mangles English in a way only cops are capable of doing: “cause him pain compliance.” The strike was meant to “cause pain.” The pain may have been useful in securing compliance. But you cannot “cause pain compliance.” That’s pure copspeak, and it shouldn’t go unnoted.

Moving on. Here’s where the charge of resisting arrest becomes a problem. For someone to resist arrest, they must be subject to a lawful arrest. At the point this all happened, Peacock was doing nothing more than hiding under the covers while surrounded by trespassers, not law enforcement officers.

Staggs testified that he did not have a search warrant when the officers entered the home, and that he never saw a search warrant for the home.

Whoops. That’s a huge, unforced error. Sure, Deputy Staggs claimed his supervisor “directed” him to assist in warrant service, but if there’s no warrant then there’s no warrant service. Apparently, Deputy Staggs saw the warrant for the first time while testifying in criminal court. And that didn’t go well for the deputy.

[DEFENDANT:] And this was the search warrant that you were referring to that you were executing?
[STAGGS:] Correct
. . .
[DEFENDANT:] And what is the date and time on that?
[STAGGS:] 1/29 of 2020 at 2:15 p.m. by Susan Hoots (phonetic).
[DEFENDANT:] That’s more than one hour after you gave Mr. Peacock his citation; isn’t that right?
[STAGGS:] That’s correct according to that.

Yeah, that’s a problem. If officers are in a house without a warrant — and without a plausible law enforcement excuse to be there (exigent circumstances, community caretaking, etc.) — then they’re not really law enforcement officers. They’re just people trespassing on someone else’s property. And, in that capacity, they’re legally incapable of performing law enforcement duties.

So, when Peacock resisted, he wasn’t resisting a lawful order or even the commands of a law enforcement officer with the law on his side. He was simply ignoring someone who had illegally entered his home.

Here, the evidence viewed in the light most favorable to the State shows the following: Officers arrived at the home around midday on 29 January 2020 without a warrant. At that time, no exigent circumstances justified their entry. The officers knocked on the door, announced their presence, and heard no response. The officers nevertheless entered the home, where they encountered Defendant. When Defendant did not comply with orders, the officers placed him in handcuffs and issued a citation for resisting a public officer at 1:14 pm. A search warrant authorizing the officers’ presence inside the home was not issued until 2:15 pm, one hour after the officers encountered Defendant.

You can’t resist an arrest that isn’t legally an arrest. The trial court blew this one when it decided otherwise. The state Appeals Court rights that wrong.

[T]he State failed to prove that the officers whom Defendant resisted were discharging or attempting to discharge an official duty at the time they encountered Defendant…

That’s a legal requirement when bringing resisting arrest charges. Without this, officers have nothing. And, at the end of this decision, that’s exactly what they’re left with: a dismissal of charges and a vacated sentence.

The Constitution only asks officers to do the job right. Haste makes waste. And assuming you’ll just get away with it is an assumption too far, at least in this case. The court isn’t telling law enforcement officers things they don’t already know. It’s just making sure they aren’t able to benefit from breaking the rules.

Filed Under: 4th amendment, jake staggs, north carolina, north carolina court of appeals, resisting arrest, warrantless entry

Let’s Not Flip Sides On IP Maximalism Because Of AI

Copyright

from the copyright-is-the-wrong-tool dept

Copyright policy is a sticky tricky thing, and there are battles that have been fought for decades among public and corporate interests. Typically, it’s the corporate interests that win — especially the content industry. We’ve seen power, and copyrights, collect among a small group of content companies because of this. But there is one significant win that the public interest has been able to defend all these years: Fair Use.

Fair use’s importance has only grown over the years. Put simply, fair use allows people limited use of copyrighted material without permission. Fair use’s foundations are in commentary, criticism, and parody. However, fair use has arguably filled in important gaps to allow us to basically exist on social media. That’s because there are open questions on what is and isn’t copyright infringement, and things as simple as retweeting or linking could theoretically get us in trouble. Fair use also allows a lot of art to exist, because a lot of art critiques or comments on older art. On the flip side, when fair use was ruled to not cover music sampling it basically killed a lot of creative sampling in hip hop music. Now popular sample-based music is relatively tame and tends to use the same library of samples.

Fair use (probably) also protects the creator industry. Many people make a living streaming video games or making content around playing video games. All of that could violate copyright laws. We don’t know the extent of risk here, because it hasn’t been fully tested, but we do know that videogame makers have claimed videogame streaming content as copyrighted material. We also know that in Japan, which doesn’t have fair use, that a streamer got two years in jail for posting Let’s Play videos. A lot of creators also make “react” content, which also relies on fair use protection.

Blowing up Fair Use

Considering the importance of fair use, and the historically bad behavior of the content industry towards ordinary people, it’s surprising that a lot of public interest advocates want to blow it up to hurt AI companies. This is unfortunate, but not particularly surprising. Content industry lobbying has inflated copyright protections into a pretty big sledgehammer, and when you really want to smash something you often look for a sledgehammer. For example, copyright and right of publicity (a somewhat related state-level IP regime) were the first tools people turned to to protect victims when revenge porn first became a big problem.

Similarly, some public interest advocates are turning to copyright to stop AI from being trained on content without permission. However, that use is almost certainly a fair use (if it’s copyright infringement at all) and that’s a good thing. The ability of people to use computers to analyze content without permission is extremely useful, and it would be bad to weaken or destroy fair use just to stop companies from doing that in a socially problematic way. The best way to stop bad things is with policy purposefully made to address the whole problem. And these uses of copyright law often plays into the hands of powerful interests — the copyright industry would love the chance to turn the public interest advocacy community against itself in order to kill fair use.

I’m not saying that there aren’t issues with AI that need to be addressed, especially worker exploitation. AI art generators can be especially infuriating for artists: they use a lot while giving back little. In fact, these generators are arguably being built to replace artists rather than to provide artists with new tools. It can be attractive to throw anything in the way to slow it down. But copyright, especially copyright maximalism, has done a terrible job of preventing artist exploitation.

Porting “on a computer” to copyright

One of the biggest public interest fights in patent law has been against “on a computer” software patents that clogged up the system and led to a number of patent infringement suits against small businesses for silly claimed inventions. The basics of the problem is this: it was initially allowed to claim an invention in doing something that was already known, but on a computer. These on a computer patents have been greatly restricted through Supreme Court rulings (which special interests would like to overturn). However, the bad effects of software patents still exist today, as do patent trolls seeking to exploit them.

This current fight over copyright in training data reminds of this same problem. For example, if a writer wanted to study romance novels to find out what is popular it would be perfectly acceptable under copyright policy for them to read and analyze a lot of popular romance novels and to use that analysis to take the most successful parts of those novels to create a new novel. It is also perfectly acceptable under copyright law for an artist to study a particular artist and replicate that artists style in their own works. But using an AI to do that analysis, doing it “on a computer,” is now suspect.

This is short sighted for a number of reasons, but one I’d like to highlight is how this shrinking of fair use is difficult to contain. We are talking about an area in which the question of whether loading files into RAM is “copying” under copyright law (and therefore needs permission or is a violation) is an actual policy debate that public interest advocates have to fight. If using content as training data becomes a copyright violation, what’s the limiting principle? What kinds of computer analysis would no longer be protected under fair use?

I should also point out that IP maximalization is the easiest way to build oligopolies. Big companies will be able to figure out how to navigate the maze of rights necessary to build a model, and existing models will likely be grandfathered in (with a few lawsuits to get through). However, it will be impossible for any new company or new open source model to be created. Dealing with rights at scale is a problem so significant that even the rightsholder industry has trouble tracking them. And information about rights has been withheld to leverage better deals due to the risk (and high costs) of accidentally infringing someone’s rights.

Matthew Lane is a public interest advocate in DC focusing on tech and IP policy. This post was originally published to his Substack.

Filed Under: ai, copyright, copyright maximalism, fair use

Musk’s Faulty Vision Of ‘Free Speech’ Is Driving Speech Off ExTwitter

Failures

from the that's-not-how-free-speech-works dept

I mean, it’s not like we didn’t warn Elon Musk. Free speech is not about creating a single private space where everyone gets to speak, because that doesn’t support free speech. It enables the worst of society to browbeat, harass, and abuse anyone they dislike, creating a total garbage dump that drives people away and silences them.

That’s not free speech. It limits free speech.

In my mind, there are two key aspects to free speech: underlying protocols that are not privately controlled that allow people to speak (but which enable others to build curation/moderation tools on top of them) and a near total limit on the government’s ability to suppress speech.

ExTwitter had a chance to be a leader in this, back when Jack Dorsey endorsed the protocol approach and helped get the Bluesky project off the ground. But Elon killed that also. And now his confusion over all of this is driving speech off of ExTwitter, rather than enabling more of it.

We’ve already talked about how advertisers are bailing on ExTwitter, and this accelerates every time Elon says something hateful, bigoted, or ignorant. Yesterday he added to this by not just tweeting (and later deleting) a Pizzagate meme (that also misunderstands the fact that Michael Scott of The Office is the joke), but one based on an outright fabricated NY Post headline that never existed, falsely claiming that the person who debunked Pizzagate (which was actually debunked by many, many people because it was a delusional nonsense conspiracy theory) was just sentenced to jail for child sexual abuse material. Except, none of that was true.

And people wonder why advertisers are bailing.

But it’s not just the advertisers. We’ve highlighted in the past how traffic appears to be significantly down as well, and now it’s being reported that many of the companies that have pulled their advertisements have just stopped using the platform altogether.

… people familiar with the social media strategies of Paramount and WBD confirmed under the condition of anonymity that it’s no coincidence: the companies have made the active decision to stop posting under certain handles on X due to concerns, including brand safety.

The blackout on X extends beyond these companies’ corporate accounts, in some cases. For instance, the most high profile accounts affiliated with Disney have gone dark on X, such as @StarWars, @Pixar, and @MarvelStudios, which were previously posting multiple times a day on the platform to their millions of followers. Instead, these brands have switched over to the Meta-owned rival Threads, where they have started actively posting.

For instance, when“The Late Show With Stephen Colbert” on Monday shared the news that host Stephen Colbert would be off the air this week due to appendicitis, the program did so on Threads. Prior to Musk’s backing of an antisemitic post, Colbert’s show, however, was primarily active on X, regularly posting videos and other content. Now, the inverse is true.

The article lists many other companies that aren’t just pulling ads but stopping tweeting altogether. And that’s not getting into the many individuals, including some big names, who have gone silent as well.

What kind of “free speech” is it when you drive everyone away?

Filed Under: advertisers, bigotry, conspiracy theories, elon musk, free speech, pizzagate, tweeting
Companies: disney, twitter, warner bros. discovery, x

Daily Deal: MagStack Foldable 3-in-1 Wireless Charging Station with Floating Stand

Deals

from the good-deals-on-cool-stuff dept

MagStack is the perfect on-the-go wireless charging station that also transforms into a floating stand for smartphone FaceTime or video playback while charging. This 3-in-1 foldable design featuring 3 wireless charging spots, enables charging for up to 3 devices simultaneously, including iPhone, Apple Watch, AirPods Pro, AirPods with Wireless Charging Case, other Qi-compatible Android phones, and Bluetooth earbuds. With its versatile foldable design, MagStack also folds into a space-saving single-device charger for your phone or earbuds. It’s on sale for $45.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Ron Wyden Wants To Know Why The DEA Still Has On-Demand Access To Trillions Of Phone Records

(Mis)Uses of Technology

from the collect-it-all-because-why-not dept

For decades, the government has used the Third Party Doctrine to obtain massive amounts of phone records without a warrant.

Even prior to the creation of the Third Party Doctrine by the Supreme Court in 1979, government agencies were obtaining phone records using pen register requests that provided them with info on numbers called and the length of the calls. This method, however, required the government to supply some information of its own: specifically, a targeted source phone number phone companies could use to search for call metadata.

Then the NSA got involved. Leveraging the doctrine erected decades earlier, the NSA used its foreign surveillance authority to force Verizon to hand over every single phone record generated by users of its business services. No targeting necessary.

This mass collection was exposed by the initial Snowden leak. The FISA court order published by multiple news outlets showed the government was able to engage in bulk surveillance via a single FISA request. This one targeted Verizon’s business services, but nothing about what was published suggested this was the only cell service provider responding to these blanket orders.

At the same time Snowden was airing the government’s dirty surveillance laundry, the DEA was inadvertently exposing its delicates. A particularly spectacular unforced error by the DEA saw it handing over information on its secret “Hemisphere” program in response to records requests seeking something else entirely. The information contained in this accidentally exposed presentation not only showed AT&T had employees “embedded” in the DEA to provide more instantaneous responses to phone records requests, but also that DEA agents and experts were being instructed to engage in parallel construction to hide the origin of phones records obtained with this program that were being used as evidence in court.

The DEA’s ability to obtain phone records in bulk was confirmed several months later by none other than the DEA, which released another set of Hemisphere documents to records requesters. Perhaps figuring there was no longer any reason to pretend this program didn’t exist, the DEA was more forthcoming the second time around.

These revelations soon were buried by months of steady NSA leaks from Snowden and others. The Hemisphere program, however, never went away. Although it did receive attention from legislators and privacy advocates once it was exposed, the feds never officially ended this collection. AT&T was the only private company named in the documents, but there was never any official denial from other cell service providers that they, too, weren’t working with the DEA to provide real-time and bulk access to phone records.

Hemisphere is dead in name only. That’s only one of the revelations in this recent report from Dell Cameron and Dhruv Mehrota for Wired.

A little-known surveillance program tracks more than a trillion domestic phone records within the United States each year, according to a letter WIRED obtained that was sent by US senator Ron Wyden to the Department of Justice (DOJ) on Sunday, challenging the program’s legality.

According to the letter, a surveillance program now known as Data Analytical Services (DAS) has for more than a decade allowed federal, state, and local law enforcement agencies to mine the details of Americans’ calls, analyzing the phone records of countless people who are not suspected of any crime, including victims. Using a technique known as chain analysis, the program targets not only those in direct phone contact with a criminal suspect but anyone with whom those individuals have been in contact as well.

DAS is nothing more than a rebrand of Hemisphere — a program that underwent periodic suspensions by various presidential administrations following its exposure by journalists and public records requesters. As Cameron and Mehrota note, the first suspension followed its first exposure, delivered by Barrack Obama in 2013. Since then, the leaders of the free world have been flipping the on-off switch randomly.

[W]hile discretionary funding was withheld over the following three years, a White House memo obtained by WIRED shows that individual law enforcement organizations across the US were permitted to continue contracting with AT&T directly in order to maintain access to its data-mining service. Funding resumed under former president Donald Trump but was halted again in 2021, according to the White House memo. Last year, under president Joe Biden, the funding resumed once more, the memo says.

If there’s anything that reaches across the massive partisan divide, it’s the willingness to allow domestic law enforcement agencies to engage in domestic surveillance with minimal oversight. As pointed out above, even while the DEA was (intermittently) denied funding to engage in this phone records collection, state and local law enforcement agencies were still allowed to convert AT&T into a proxy surveillance agency.

Ron Wyden’s letter addresses information uncovered by Distributed Denial of Secrets, a collective of transparency activists that has routinely been subjected to social media bans and criticism from government officials for daring to obtain information through any means necessary and making this information available to the general public.

Just as disturbing is the fact that this program survives, despite the NSA itself choosing to end its own call records program (under Section 215 authority) because it was (1) too difficult to avoid surveilling Americans and (2) because it wasn’t all that useful.

But what the NSA has abandoned, the DEA has kept alive, using federal funding and agreements with AT&T forged by the Office of National Drug Control Policy. AT&T, for its part, has once again refused to comment on this cozy relationship with federal drug warriors, offering up nothing more than the obvious acknowledgment that it’s obliged to comply with federal subpoenas. Of course that’s true, but it doesn’t explain why AT&T was the proactive partner in this alliance, much less why it still — despite years of records requests and law enforcement leaks — appears to be the only cell service provider willing to crawl into (em)bed with the DEA to provide instantaneous access to cell records that it pretends are only subject to subpoenas.

Its statements also fail to explain why it does things it’s not required to do when it appears the only beneficiary of these actions would be the DEA and its law enforcement partners.

There is no law requiring AT&T to store decades’ worth of Americans’ call records for law enforcement purposes. 

The only explanation is that AT&T considers this a feature, rather than a deliberately ignored bug. The evidence on the record shows AT&T would rather court cops than protect customers.

Documents reviewed by WIRED show that AT&T officials have attended law enforcement conferences in Texas as recently as 2018 to train police officials on how best to utilize AT&T’s voluntary, albeit revenue-generating, assistance.

The money isn’t the motive. Or, at least, it shouldn’t be, not at these prices. While AT&T is compensated for hooking up with drug warriors, the Wired report says the Office of National Drug Control Policy has contributed only $6.1 million to the program over the last decade. There are other sources of funding, of course, but it’s unclear how much of this makes its way to AT&T directly or indirectly. Sure, it’s pure profit when you’re already retaining these records for years at a time, but AT&T still has to pay analysts, liaisons, and (hopefully) a handful of lawyers — something that would appear to make the rebranded Hemisphere a loss leader, rather than a true contributor to the company’s bottom line.

It’s great that Ron Wyden is again demanding answers from the DOJ and DEA about this domestic surveillance effort, but it’s far less heartening to see that multiple presidential administrations have never been willing to shut this program down completely, despite it being something most Americans would never support. Trillions of phone records that aren’t even a subpoena away from government scrutiny isn’t the sort of thing residents of the United States expect to be happening, much less believe should be happening. The government should need more than the voluntary obeisance of one of the nation’s largest cell service providers to engage in this surveillance. But because it has this — and the periodic support of those holding the highest office in the land — phone records are still just a government plaything, something capable of putting people several degrees removed from suspected criminals under the government’s drug war microscope.

Filed Under: das, data analytical services, dea, doj, hemisphere, phone records, ron wyden, third party doctrine

Sports Illustrated The Latest To Bare Its Entire Ass Thanks To Laziness, Greed, And Half-Cooked ‘AI’

Journalism

from the I'm-sorry-I-can't-do-that,-Dave dept

The rushed integration of half-baked “AI” (aka not at all sentient language learning models) into journalism has been a gargantuan mess. Execs at companies like Red Ventures (CNET) and G/O Media (Gizmodo) have made it very clear they see LLMs primarily as a way to attack labor and cut corners, resulting in soulless and low quality product, oodles of plagiarism, and no shortage of employee ill will.

Enter Sports Illustrated, which appears to have been caught (like Gannett) creating fake journalists with fake bios in the hopes nobody would notice. Futurism first noticed the practice, which involves using fake people with AI-generated headshots to write what smells like automated copy. And, as we’ve seen repeatedly, the resulting product isn’t very good, either:

“The AI authors’ writing often sounds like it was written by an alien; one Ortiz article, for instance, warns that volleyball ‘can be a little tricky to get into, especially without an actual ball to practice with.'”

Initially when Futurism asked Sports Illustrated owner The Arena Group about the practice, they just deleted all the AI-generated content and refused to comment, which speaks for itself. Only once the story gained media traction did the company shift course and (just like Gannet did) try to blame the whole thing on one of their third-party vendors:

“Today, an article was published alleging that Sports Illustrated published AI-generated articles. According to our initial investigation, this is not accurate. The articles in question were product reviews and were licensed content from an external, third-party company, AdVon Commerce. A number of AdVon’s e-commerce articles ran on certain Arena websites. We continually monitor our partners and were in the midst of a review when these allegations were raised. AdVon has assured us that all of the articles in question were written and edited by humans.“

The Arena Group’s “investigation” doesn’t sound like much of one. They’re trying to claim they had no idea they’d hired a third party company (the same company that helped Gannett do the exact same thing with a history of doing exactly this) to produce AI-generated content by AI-generated people. Poorly. Employees that actually work at Sports Illustrated tell Futurism the claim is laughable.

So many of the executives at major media giants genuinely view AI as a way to create an automated ad-engagement machine that effectively shits money for pennies on the dollar. Just a giant, automated ouroboros that throws billions in ad engagement dollars their way without concerns about any of the pesky stuff like product quality, audience interest, public welfare, or folks eager to be paid a living wage.

There’s no interest in journalism or even editorial ethics here; Sports Illustrated not only created fake people with fake headshots and fake bylines, they constantly rotated new fake reporters in and out without any transparency with readers or staff. There’s a lack of ethics and competency that’s a problem before language learning models even enter the frame.

There certainly are innovative, helpful uses for AI in journalism. The problem is the least competent people imaginable have failed upward into positions of power at most media orgs. And if they have their way, what’s left of the already-shaky art of journalism is going to become a homogenized, soulless, engagement machine that will make our current lopsided signal to noise ratio look downright adorable.

Filed Under: ai, automation, hedge funds, journalism, llm, media, plagiarism, signal to noise ratio, sports illustrated
Companies: advon commerce, arena group

Settlement Handed To 11-Year-Old Autistic Student Who Was Locked in A Cop Car For Hours, Hit With $25,000 Bail

Legal Issues

from the loss-handed-to-school's-biggest-bullies dept

The problem with putting cops in schools isn’t necessarily that there are never things that happen in schools that require a law enforcement response. (Unfortunately, a lot of those things are school shootings, which cops aren’t all that capable of responding to.)

The problem is that school administrators tend to think that because they have cops (often referred to as “school resource officers”) on tap, nearly any disciplinary problem should be turned over to them, rather than handled by school personnel and/or the student’s parents.

This reduces school discipline to the sort of math cops understand: binary. If no one asks for a cop, it’s not a crime. If someone does ask for a cop — no matter what infraction has occurred — it’s obviously criminal activity.

This turns students into criminals. And it turns SROs back into cops, who use the same techniques they deploy against suspected adult criminals on children. A little restraint by school cops would go a long way. Unfortunately, most of them would read that previous sentence to be a blessing of physical restraint methods more suited to volatile, violent criminals, rather than minors who minds and bodies are far from fully developed.

But, because schools have decided they must have cops in the building, they end up tacitly blessing things like this, as recounted in an autistic student’s lawsuit [PDF] against their school and the school’s cops in a case brought by the ACLU:

On August 29, 2019, officers in police uniforms entered Sagewood Middle School and aggressively handcuffed A.V., an eleven-year-old child with autism. They dragged the handcuffed child through the hallways of his school, placed him in a patrol car, and left him there for hours, while, still handcuffed, he banged his head repeatedly against the plexiglass of the patrol car and cried in pain.

The alleged crime? Responding to another student writing on him with markers (A.V. is hyper-sensitive to touch due to his autism) by poking the student with a pencil. The school did, at least, contact one A.V.’s parents. But apparently not because the school felt the legal guardian should have any say in this particularly brutal disciplinary process.

A.V.’s stepfather rushed to the school and asked to see A.V., but the officers would not allow him to see A.V. A.V’s stepfather asked the officers to take A.V. to get medical attention, but they refused.

Instead, after A.V. was left handcuffed and banging his head for hours, an officer drove A.V. to a juvenile detention center and placed A.V. in custody on charges of assault, harassment, and resisting arrest. A.V. remained in custody until his parents were able to post a $25,000 bond. The charges against him have since been dropped.

The lawsuit followed, naming both the school district and the SROs employed by the district — one of which continued to demonstrate his willingness to bully young students with disabilities.

The officers involved in this traumatic handcuffing and arrest of A.V. were School Resource Officers (“SROs”). They are Douglas County Sheriff’s deputies who are jointly employed by the Douglas County School District. They had been specifically assigned to middle schools for the first time that year without adequate training on interacting with students with disabilities.

No SRO was disciplined due to the incident, and in fact, one of the SROs, SRO Nicholson, was commended for his handling of the situation. He was deemed to have completed the SRO field training program and recommended to be moved to solo status just a few days after the incident. Only a few months after handcuffing A.V, SRO Nicholson repeated his behavior: he handcuffed a twelve-year-old child with disabilities after that child became escalated. As with A.V., he left that child handcuffed for hours.

The lawsuit was filed in March 2021. Of course, every government entity and employee (including the involved school resource officers) asked for immunity. Immunity was denied to some of them in a February 2022 ruling [PDF], which said the facts needed to be more fully developed before the court would consider the officers’ attempt to exit the lawsuit:

To be sure, the Complaint sets forth allegations suggesting that Plaintiff had committed a battery against another student, which could give rise to probable cause supporting Plaintiff’s arrest. However, assuming the truth of Plaintiff’s well-pleaded factual allegations and viewing them in the light most favorable to the Plaintiff, Plaintiff’s plausible allegations also raise the possibility that Defendants only decided to arrest Plaintiff after misperceiving his subsequent lawful conduct, which was the result of the disability. (See ¶ 40 (“SRO Nicholson responded by instead proposing that he ask [Plaintiff] to come talk to him in the SRO office and said: ‘if he wants to come, that’s fine; if he doesn’t, that’s fine too.’”); ¶ 44 (“Nicholson continued to ask [Plaintiff] if he would come talk in the SRO office. [Plaintiff] stared blankly and occasionally shook his head no in response.”); ¶ 45 (“Then, despite the fact that [Plaintiff] was sitting quietly and that there was no emergency requiring immediate intervention, SRO Nicholson and
Peterson abruptly approached [Plaintiff] in a threatening manner and aggressively handcuffed him.”).)

Accordingly, the Court denies this portion of the DCSO Defendants’ Motion to Dismiss. Among other things, this will allow the parties additional time to develop the factual record through discovery on the issue of what prompted the SROs to arrest Plaintiff.

The sued officers claimed (repeatedly) that this was wrong. The court was required to grant them deference, rather than (as the court is required to do during motions to dismiss) grant deference to allegations raised by the plaintiff. And that was all they did for weeks on end: claim qualified immunity law required the court to give more credit to their (unsupported at this point) claims any officer in their position would not have known that tossing an autistic 11-year-old into a cop car for hours over a pencil-poking might have violated the student’s rights.

And the officers weren’t entirely wrong! That’s the sad thing. The Supreme Court has constantly told lower courts the first thing to consider is whether or not there’s any way to allow cops to escape taking responsibility for their actions. If this means glossing over apparent rights violations, so be it.

But it’s not the only option courts have. It’s just the one the Supreme Court would prefer they deploy. It didn’t happen here, much to the dismay of the officers. And this refusal to play by the rules this court set dismayed the court, which issued an order reaffirming its desire to hear more facts before considering qualified immunity arguments as well as this irritated (and lengthy!) note on the docket about the officers’ refusal to abide by the court’s orders by insisting any discovery (at this point, just depositions from the officers) until after it had ruled in favor of their qualified immunity requests.

The court wasn’t interested in engaging in the Catch-22 the school resource officers were attempting to deploy. Either the officers could offer sworn depositions to add to the factual record before raising the immunity defense or they could kindly get the hell out of this courtroom:

ORDER: In their Motions for Protective Orders 158, 159, 160, Defendants express a sense of deja vu at once again briefing the question of whether they are entitled to a stay of discovery. This Court knows the feeling. The Court finds itself, once again, addressing the same flawed arguments regarding qualified immunity. Defendants’ Motions do not bring anything new to the conversation, and they continue to ignore this Court’s repeated invitation to present any particularized argument as to why discovery would be burdensome or inappropriate.

To be sure, in Rome v. Romero, which Defendants seek to distinguish, Judge Krieger was presented with specific requests for production-some of which she found to be properly propounded on the individuals and others she concluded were not. In her evaluation, she noted that in cases where, as here, the parties present differing versions of the underlying events, some discovery on individual defendants is appropriate. She then concluded that other of the proposed requests were more appropriately made on the institutional defendants. With respect to any future discovery, Judge Krieger noted the individual defendants should be protected against any requests seeking information other than that relating to disputed factual issues regarding the actual events giving rise to the qualified immunity defense.

But other than contending they should not have to sit for their depositions, Defendants have not identified any line of questioning that would fall outside of those parameters identified in Rome. Particularly, they have never addressed the glaring issue that they are the primary witnesses in this matter upon whose actions this lawsuit is based, and therefore, would be subject to discovery no matter what the ultimate questions on qualified immunity are determined to be.

Defendants declaration that qualified immunity no longer has any meaning is overwrought; the Court has never held as such. Instead, the Court has only held the mere and basic assertion of qualified immunity without more is insufficient in this case to justify a stay. Because that assertion is all Defendants have ever offered the Court, including at present, the Motions for Protective Orders are DENIED.

I love it. The court says if the officers want to argue no officer in their position would know the sort of behavior being sued over fell on the wrong side of the Constitution, they should at least be willing to present their side of the story in a deposition. But these officers apparently didn’t want to do that. Instead, they presented their GET OUT OF LAWSUIT FREE! cards to the judge and thought that would be sufficient. When the court said it wasn’t, they apparently decided the best course of action was to continue to refuse to defend themselves against these allegations until the court… I don’t know… gave up and decided to give them what they actually wanted: immunity.

With no immunity to be had, a settlement has now arrived. And that’s kind of a shame. The school district was excused from the lawsuit but the county apparently felt allowing these officers to walk away from the lawsuit was the best use of county residents’ tax dollars.

After more than two years in court, the ACLU announced Wednesday that all of the parties named in the suit agreed to a settlement offer.

“Pursuant to the settlement, the defendants have agreed to require advanced training for any SROs assigned to the Douglas County School District, to include training created by the disability rights community that will improve interactions between law enforcement and students with disabilities,” said the ACLU.

“The defendants will also ensure that all SROs review the Behavioral Improvement Plans (a written improvement plan to help students who struggle with behavior issues in class) specific to each student and comply with those plans when interacting with the student.  Important reporting requirements will also ensure that the SROs are complying with de-escalation techniques consistent with students’ plans,” the ACLU stated. 

While it is good to see the SROs will now receive more training on the handling of students with behavioral disabilities, the accompanying statement from the district makes a point to note the involved officers continue to “deny any wrongdoing.” If these officers were so sure they were in the right, they shouldn’t have been so worried about being deposed. Their actions in this lawsuit contradict their insistence on being perceived as innocent. But now it’s not their problem. Their “innocence” has been purchased with tax dollars supplied by people like A.V.’s stepfather, who helps fund a school overseen by a county that figures it’s better to throw money at a plaintiff than subject any government employee to actual accountability.

Filed Under: discipline, douglas county, police, qualified immunity, school police, school resource officers, sros

Main Chinese Social Media Platforms Now Require Top Influencers To Display Their Real Names Online

Free Speech

from the we-know-who-you-are dept

Back in 2015, Techdirt wrote about one of China’s many attempts to control the online world, in this case by requiring everyone to use real names when they register for online services. As that post noted, the fact that the Chinese authorities had announced similar initiatives several times since 2003 suggests that implementing the policy was proving hard. Twenty years after those first attempts to root out anonymity online, China is still trying to tighten its grip. A post on the Rest of the World site reports:

On October 31, Weibo, as well as several other major Chinese social media platforms including WeChat, Douyin, Zhihu, Xiaohongshu, and Kuaishou, announced that they now required popular users’ legal names to be made visible to the public. Weibo stated in a public post that the new rule would first apply to all users with over 1 million followers, then to those with over 500,000.

As that indicates, there’s a new wrinkle in the fight against anonymity: real names are only required for top influencers on the main social media sites. That’s obviously much easier to police than trying to force hundreds of millions of users to comply. Here’s why the Chinese government is concentrating on the smaller group:

Min Jiang, a professor of communication studies at the University of North Carolina at Charlotte, told Rest of World the real-name rule would limit the influence of key opinion leaders, who still wield a lot of power on the Chinese internet. “Outspoken individuals have been conditioned to navigate the red line with ingenuity and creativity, steering public opinions even under heavy censorship,” she said.

The new targeted approach seems to be working. Several high-profile influencers who use pseudonyms online have announced that they will give up posting altogether. Others are actively “purging” their fans to get the total below the one million threshold for the new policy:

Tianjin Stock King, who posts finance content, removed over 6 million followers overnight, cutting his following from 7 million to just over 900,000. Ken, another Weibo “Big V,” told Rest of World he used the extension Cyber Zombie Cleaner to remove about 20,000 followers over the past month. The software, developed by software engineer Xiao Gu, enables users to remove inactive followers in large numbers, and has accumulated over 100,000 views on China’s code-sharing forum, CSDN.

Interestingly, the Rest of the World post says that it is not government repression that those with big followings fear under the new rules. Previous policies regulating anonymity already require Weibo users to register with their real name, and to show their IP location next to their user name. But mandating real names online means that influencers will be subject to the scrutiny of other users, who will be able to compare a person’s online activity with their offline identity. Conveniently for the Chinese authorities, that will make it more difficult to express controversial opinions. One group who are likely to be particularly affected by this requirement are influencers working at state-affiliated organizations, who may be accused of disloyalty or lack of patriotism once their identity is known to the wider public.

Follow me @glynmoody on Mastodon.

Filed Under: anonymity, china, influencers, purging, real names, social media
Companies: douyin, kuaishou, tiktok, weibo, xiaohongshu, zhihu

Elon Musk’s Latest Round Of Bigoted Tweets Likely Cost ExTwitter $75 Million Over The Rest Of 2023

Failures

from the that's-a-costly-mouth dept

We keep pointing out just how incredible it is that Elon Musk is personally responsible for the destruction of so much of ExTwitter’s business model. Even if you believe that the company was too bloated, or that it’s business model needed to change, as you look at how the company is flailing, it can be tied back almost entirely to Elon Musk being a stupid, ignorant bigot on the platform that he bought.

The product decisions, the renaming, all of that has some impact, but the reason that advertisers keep bailing is because of Elon Musk’s awfulness. We noted that back in April. Incredibly, the details highlighting that came out in an email thread created by… Linda Yaccarino, now CEO-in-name-only of ExTwitter, who was about to interview Elon Musk at an event for various advertisers. She wanted to know what advertisers were thinking about advertising on the site, and many pointed out that Musk himself was the problem, way more than the platform.

They were frightened that Musk would say something stupid, hateful, or bigoted next to their ads, and they told Yaccarino that — and a month later she decided to go work for Elon.

One of the biggest barriers to spending more, advertisers say, is Musk’s own behavior on Twitter.

And, once again, we’re seeing that play out. While Musk keeps trying to blame more advertisers fleeing on Media Matters, the reality is that it was his own embrace of an antisemitic trope that resulted in more advertisers pulling their ads.

Once again, this was a costly decision. The NY Times got its hands on an internal presentation, showing that ExTwitter sales people believe that Musk’s actions a few weeks ago likely cost the company $75 million in ad revenue over the final month and a half of the year (often the biggest advertising season).

Internal documents viewed by The New York Times this week show that the company is in a more difficult position than previously known and that concerns about Mr. Musk and the platform have spread far beyond companies including IBM, Apple and Disney, which paused their advertising campaigns on X last week. The documents list more than 200 ad units of companies from the likes of Airbnb, Amazon, Coca-Cola and Microsoft, many of which have halted or are considering pausing their ads on the social network.

The documents come from X’s sales team and are meant to track the impact of all the advertising lapses this month, including those by companies that have already paused and others that may be at risk of doing so. They list how much ad revenue X employees fear the company could lose through the end of the year if advertisers do not return.

A few months ago, Yaccarino said that ExTwitter was on a path to profitability by Q1 of next year, and that seems increasingly difficult to believe given the way that her boss keeps driving away millions of dollars in ad revenue.

It’s not entirely clear how much ad revenue ExTwitter still makes, but reports suggest that ad revenue has been consistently down about 60% (and drops lower every time Musk does something stupid and bigoted). In 2021, the last year we have full data, Twitter generated $4.5 billion in ad revenue. Cut that by 60% and we’re talking about $1.8 billion.

So if we do some very, very rough back-of-the-envelope math here, at $1.8 billion, that’s about $150 million per month. So, the final month and half would be in the range of $225 million expected. Perhaps more, given the advertising season. Taking away $75 million of that is… pretty significant.

Again, almost none of this is due to product decisions, but due to Elon Musk’s inability to shut up, and his near total credulity in believing every two bit nonsense peddler and bigot he’s ever come across.

Filed Under: advertising, brand safety, elon musk, linda yaccarino
Companies: twitter, x