Appeals Court Dismisses Gang Designation Lawsuit Against The FBI Brought By Insane Clown Posse Fans

from the plaintiffs-welcome-to-build-time-machine,-prevent-FBI-from-applying-gang-tag-in dept

The Sixth Circuit Appeals Court has now had the dubious privilege of hosting a legal challenge by Juggalos (as fans of the Insane Clown Posse are known). The case traces back to 2014, following the FBI's 2011 designation of Juggalos as a gang in its National Gang Threat Assessment report.

This posed problems for Juggalos, thanks to local law enforcement treating fans of a band as though they were part of a crime syndicate. There appeared to be some actual injury (to use the legalese) suffered by Juggalos, who detailed additional hassling by The Man in their ACLU-aided lawsuit against the FBI.

The State Trooper indicated that he detained Parsons for an inspection because of the hatchetman logo on the truck.

The State Trooper indicated that he considered Juggalos to be a criminal gang because of the DOJ’s designation.

The State Trooper asked Parsons if he had any axes, hatchets, or other similar chopping instruments in the truck. Parsons truthfully answered that he did not.

The State Trooper continued to search the truck and interrogate Parsons for about an hour, delaying Parsons’ time-sensitive hauling work. During the search, the State Trooper did not find any weapons or contraband. The State Trooper did not issue a ticket or other citation to Parsons.

The FBI responded to the Juggalos' First Amendment complaint with "not our fault." The DOJ argued it was not responsible for any rights violations suffered by Juggalos as a result of its gang designation because it wasn't the DOJ's fault local lawmen took the contents of the gang threat assessment seriously.

Justice Department attorney Amy Powell said the group and its fans have no standing to sue. She said the government is not responsible for how police agencies use information in the 2011 national gang report. Powell said a "subjective chill" as alleged by plaintiffs was not enough to be in court.

"There is no general right of protection to a social association," she said, referring to First Amendment violations argued by Insane Clown Posse and its fans.

If so, gang reports are a waste of time and money. If law enforcement isn't supposed to take guidance from the DOJ to heart, there's really no point in the agency issuing any. It sounds exactly like the excuse the FBI deployed when questioned by the FCC about non-disclosure agreements the feds made local law enforcement sign before acquiring a Stingray device. The FBI said it was shocked (shocked!) to hear local cops and prosecutors were following the terms of the NDA they had signed.

The Sixth Circuit Court doesn't agree the plaintiffs have no standing to sue. As the court notes, sufficient allegations have been made to allow the suit to continue. But the DOJ's Plan B is going to keep the case from being pursued any further. The alternate legal theory advanced by the DOJ simply states the gang threat assessment can't be reviewed by the court. And the court agrees. From the decision [PDF]:

The district court initially granted a motion by DOJ and FBI to dismiss the case for lack of standing. We reversed that decision, finding that Appellants had alleged facts sufficient to demonstrate standing to pursue their APA claims against DOJ and FBI. Parsons v. U.S. Dep’t of Justice, 801 F.3d 701 (6th Cir. 2015). On remand, DOJ and FBI filed a second motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the Juggalo gang designation was not reviewable because it was not a final agency action and was committed to agency discretion by law. The district court granted the motion to dismiss, holding that the Juggalo gang designation was not a final agency action and, even if it was, it was committed to agency discretion by law.

This dovetails right into the DOJ's "not our fault" argument. The court finds the injuries suffered by the band and its fans stem directly from actions by third parties -- local law enforcement agencies -- who were not legally-bound to act on the advice given in the gang assessment report.

First, the Juggalo gang designation does not result in legal consequences because it does not impose liability, determine legal rights or obligations, or mandate, bind, or limit other government actors. As noted above, Congress directed NGIC to “collect, analyze, and disseminate gang activity information,” and to submit an annual gang-activity report to Congress. § 1107, 119 Stat. at 3093. That is the extent of NGIC’s legal authority. NGIC does not control other agencies or law-enforcement officers, nor are any agencies or law-enforcement officers required to consider the 2011 NGIC Report on gang-related issues. Instead, the 2011 NGIC Report, as the product of NGIC’s task to “collect, analyze, and disseminate,” is merely an informational agency report.

[...]

[T]he Juggalo gang designation does not result in legal consequences because the harms that Appellants suffered were caused by third parties who discretionarily relied on the gang designation. As the district court explained, each of the harms suffered by Appellants “constitutes a decision to act that rests on the shoulders of others . . . and not the Defendants or the agency action at issue in this case.” The government officials who harmed Appellants were not bound by the Juggalo gang designation nor were they required to consider the 2011 NGIC Report. Thus, the government officials’ actions are not direct consequences of the Juggalo gang designation in the 2011 NGIC Report, but are the product of their own independent decision-making.

This would seem to invite the filing of handful of lawsuits against the individual agencies that violated the Juggalos' rights. If the locals weren't legally-bound to take the FBI's Juggalo gang designation to heart, it seemingly follows they should be liable for any legal injuries caused. The problem with taking this route is that it would allow law enforcement agencies to defer to the FBI's gang guidance. Under the same circumstances, the allegations of additional hassling by law enforcement officers would likely be waved away by assertions of good faith reliance on DOJ threat assessment reports. They're not "bound" by the report, but they can likely rely on it to make threat determinations that result in longer, more explorative interviews and traffic stops. It's lose-lose for Juggalos if the court's going to allow the DOJ to give law enforcement agencies information (no matter how unreliable) and then claim it has zero responsibility for choices made by end users.


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  • icon
    Ninja (profile), 2 Jan 2018 @ 11:05am

    I read one 'blog' from a guy here and he says we are in the "Screw-it Era". Governments and people in general just don't care even with looks anymore. Hope it's a short-lived era for sure.

    The executive has given up any pretense of caring about the Constitution or citizen rights.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Jan 2018 @ 12:22pm

      Re:

      It even pretends that the Constitution does not apply in vast swaths of the country by the borders and around airports. So if it doesn't apply, they have no standing to rule ie, they are full of shit and need to be replaced.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Jan 2018 @ 2:03pm

        Re: Re:

        funny you say that... because most citizens don't care about the constitution either.

        No matter which "Political Religion" you vote for you will find someone willing to sacrifice a piece of the constitution to advance their agenda.

        If we don't care, why should they? Everybody loves corruption when it gets their side what they want.

        reply to this | link to this | view in chronology ]

    • icon
      seedeevee (profile), 2 Jan 2018 @ 3:13pm

      Re: The Executive always lies and cheats - nothing is new

      The executive cares tremendously about the Constitution. It's the Constitution that gives the Executive the power to do whatever the fuck it wants.

      Obama wants to assassinate an American citizen - Constitution says go for it!
      Bush (or Obama or Clinton or bush or Reagan or) wants to invade/bomb/blockade a country - Constitution says go for it!
      Bush/Obama/Trump want to tap all of th einternet and phone traffic - Constitution says go for it!

      Nothing about this is new.

      reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 2 Jan 2018 @ 12:16pm

    You might want to explain "Insane Clown Posse" to non-Americans. I don't think it has anything to do with the Trump administration or its followers, but I'm not absolutely certain.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Jan 2018 @ 12:52pm

      Re:

      Despite what it sounds like, no it’s not a clever name for the Trump administration.

      reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 3 Jan 2018 @ 6:47am

      Re:

      Juggalos are associated with black and white face paint, and are fans of the Insane Clown Posse music group. They pretend to be creepy murderers, but are mostly harmless normal people.

      Not to be confused with Trumpalos that are associated with orange face paint, and actually do worship an insane clown. They pretend to be normal people, but are corrosive to American society.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jan 2018 @ 12:38pm

    So....

    The FBI designates fans of a band as a criminal gang.

    The Police act on criminal gang designations as set by the FBI. (Which, IMHO, they should since criminal gangs are bad)

    The FBI claims they didn't really make the police do anything, and they are free to disregard any gang designation they like. (Which renders the designations moot)

    The police say the designation list just gives them a 'good faith' presumption of guilt, granting them constitutional immunity from wrongful persecution. (Yet another way cops say 'Screw rights, we know what we're doing)

    While not illegal, it is now 'suspicious activity' to show appreciation for a musical group.

    Unlike wrongful placement on a terrorist watchlist (which don't get me wrong is damn near impossible to get off of as it is), there is literally no recourse to someone who enjoys this bands music, meaning merely listening to a CD in your car or having a relatively harmless decal in your window may lead to prolonged traffic stops, presumption of guilt and legal harassment.

    Which side is a posse of insane clowns? Cause only one side of this comes across looking insanely foolish.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 2 Jan 2018 @ 1:09pm

      "criminal gangs are bad"

      I think that's a presumption that is no longer valid.

      Our police are a legal gang that acts in antisocial ways that would be criminal if...

      The legal system is biased to make everything done by the police legal and everything done by civilians criminal...

      And when the police fails to actually police, that is why gangs form, to keep peace where the state fails to do so. And granted, they're often not very good at it. But that's beside the point.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Jan 2018 @ 1:54pm

        Re: "criminal gangs are bad"

        Suddenly I find myself curious as to the legal definition of a gang...

        I mean... the suggestion you provide references a paid institution of lawful employment of a gang (I have not yet and do not intend to argue with your suggestion they be potentially considered a gang)

        If such a definition is valid... could any institution of employment be considered a gang?

        Not a criminal gang neccessarily, just... a gang ._.

        If so, what implications does that have legally.

        If not, where is the line.

        Is a gang only a criminal designation?

        I have so many questions~!

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 2 Jan 2018 @ 3:13pm

          Re: Re: "criminal gangs are bad"

          I've read a bit of law over the years, both federal and state. And you can rely on the fact that if there is actually a definition, it is so obtuse as to be meaningless.

          It always boils down to the same thing:

          "We know what it means, no we won't explain it to you, now fuck off before we lock you up too."

          The FBI has a long history of declaring persons enemies of the state for solely philosophical differences, going all the way back to Hoover. And this isn't the first time they've gone off the rails because of a music group. John Lennon is another example.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 2 Jan 2018 @ 4:29pm

            Re: Re: Re: "criminal gangs are bad"

            Much to my own embarassment, I can usually read legalese fairly fluently and require only a smattering of research to define terms I thought I already understood.

            I have been told many times in my life I should have been a lawyer.

            I continue to assert that welfare is a far less embarrassing and morally compromising choice.

            Mostly because I am a sufficiently accomplished con artist that I COULD make horribly immoral and downright insane logic stick in court.... and I really do not want to be in a position where I HAVE to.

            reply to this | link to this | view in chronology ]

          • icon
            Uriel-238 (profile), 2 Jan 2018 @ 7:50pm

            Enemies of the State

            As a matter of full disclosure, I am a radical Lennonist.

            reply to this | link to this | view in chronology ]

      • icon
        An Onymous Coward (profile), 2 Jan 2018 @ 3:41pm

        Re: "criminal gangs are bad"

        The police not only act in antisocial ways, they often commit outright crimes with the court-backed excuse that they didn't know the law.

        That's right. The public is held to a higher standard than those who police the public. And the public trusts them... why again?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 3 Jan 2018 @ 7:33pm

          Re: Re: "criminal gangs are bad"

          Exactly.

          If you have little or no knowledge of the law, then ignorance of the law is not an excuse no matter how much good faith you have.

          But if you are professionally trained in the law and the enforcement thereof, and certified by the government to be an expert in doing so, then somehow ignorance of the law IS an excuse and even the flimsiest, most transparent lie about acting in good faith is accepted at face value. Because the law is too complex for anyone to have an expert understanding of it.

          Seriously.

          reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 2 Jan 2018 @ 12:50pm

    Enjoin non-reccomendations

    It's annoying, but it seems solution does raise its head. Get an injunction against staties following these non-recommendations of the FBI. After all according to the FBI, they didn't make a recommendation, so if the state is acting upon these as recommendations, then it has no grounds to fight an injunction.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Jan 2018 @ 1:07pm

      Re: Enjoin non-reccomendations

      Sadly, I see the police equating these 'non-recommendations' to anonymous tips, and arguing in court that such an injunction discourages police from following through on any anonymous (or even named) tip off for fear of running afoul of the injunction, making such an injunction both untenable and dangerous to public safety.

      reply to this | link to this | view in chronology ]

    • icon
      An Onymous Coward (profile), 2 Jan 2018 @ 3:43pm

      Re: Enjoin non-reccomendations

      There's no need. Any group listed on the FBI's report can now take their local police department to task for harassment because their "good faith" defense is no longer valid after this court decision.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 2 Jan 2018 @ 1:22pm

    Call yourselves "insane clowns" and then whine when believed.

    As Maya Angelou said -- and boy do I see this brilliant and useful the more applied -- "when someone tells you who they are, believe them".

    So too "pirates", you pirates. -- I believe you, and you then whine that I do.

    You want to be "cool", "edgy", and "outlaws" without any consequences.

    But civil society is not obligated to treat "insane clowns" and "pirates" with respect.

    Indeed, police are more or less required to believe such statements.

    So go ahead and advertise yourselves as stupid and thievish!


    In the office pool, I've got the entire first 3 months block for Techdirt going away, so I'd like to see more of dull topics as thus far today.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Jan 2018 @ 2:03pm

      Re: Call yourselves "insane clowns" and then whine when believed.

      First, neither insanity nor being a clown suggest stupidity. Merely mentally unsound or frivolously foolish.

      Second, so I am to believe you are a coward by your designation?

      Third, there is nothing illegal about being insane nor a clown if done peacefully and without disruption, which these individuals by all accounts have done.

      Fourth, if merely saying who one is proves sufficient grounds to believe them, then I as President Donald Trump would like to sell you a fantastic building.

      Fifth, police are not required to believe such statements, as proven by the fourth point. Police are expected to exercise investigative prowess and common sense. (Not saying they do, but that they are expected to)

      Sixth, why the hell are you dragging piracy into this? It is completely irrelevant.

      Finally, civil society is obligated to treat law abiding citizens with respect. I repeat that neither insanity nor being a clown, on its own, is grounds to repeal this.

      Signed
      President Donald Trump

      P.S. Seriously, 100 bucks for Trump Towers. Best deal you'll ever see.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Jan 2018 @ 2:04pm

      Re: Call yourselves "insane clowns" and then whine when believed.

      Didn't take the bootlickers long to show up.

      reply to this | link to this | view in chronology ]

      • icon
        An Onymous Coward (profile), 2 Jan 2018 @ 3:49pm

        Re: Re: Call yourselves "insane clowns" and then whine when believed.

        The first response to your pointless ramble took a lot longer than it took you to respond to the first response. Were you continuously reloading your browser, just waiting for someone to respond to your unmitigated wit? Like a child, far less clever than he thinks he is, who sets a trap for his sister to fall into and get slime all over her shirt, waiting in desperate anticipation for the event to occur?

        Short version: Grow up.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Jan 2018 @ 8:20pm

      Re: Call yourselves "insane clowns" and then whine when believed.

      Actually not all of us are pirates, just concerned that a lot of the laws you advocate for and demand are potentially invasive and reckless. And what a surprise, you don't believe it.

      Thankfully it doesn't take much convincing to believe you are a corporate tool.

      reply to this | link to this | view in chronology ]

  • icon
    schnick (profile), 2 Jan 2018 @ 1:27pm

    social association

    ***********************************
    "There is no general right of protection to a social association," [Justice Department attorney Amy Powell] said, referring to First Amendment violations argued by Insane Clown Posse and its fans.
    ***********************************

    Uhhhhhhh ... I had always thought that the First Amendment included something about Congress not making laws that would abridge the right of the people peaceably to assemble.

    While you could certainly argue that the ICP does violence to good taste, and what the fuck is the deal with Fanta ... it seems pretty clear to me that enjoying the output of a particular artistic collaborative falls squarely in the first amendment, and if people are going to be deprived of basic freedoms of movement and liberty based on their association with same, the onus is on the government to prove that the association is not peaceable, or the assembly is not peaceful, or, you know, some fucking thing that isn't clearly delineated as protected behavior by the fucking First Amendment, you government stooge lawyer you.

    "There is no general right of protection to a social association..."

    A lawyer for the US gov't actually said this. I mean, am I misunderstanding something here, or is that ridiculous?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jan 2018 @ 1:40pm

    Get a life. Get a better therapist. But first of all, get a dictionary.

    reply to this | link to this | view in chronology ]

  • icon
    mcherm (profile), 2 Jan 2018 @ 3:05pm

    New opportunities

    Hmm. Given that the court has clearly stated such a decision is utterly unreviewable, I wonder when the Trump Administration will be declaring Black Lives Matter to be a gang posing a threat.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 2 Jan 2018 @ 3:14pm

    "It's not our fault they take what we say seriously, we're only the FBI!"

    So the FBI isn't liable, because despite the fact that they chose to designate the ICP as a gang they have no responsibility for what the police do with that designation. You know, like treating them as a gang.

    The police meanwhile will almost certainly argue that they aren't responsible for their own actions, because hey, the FBI designated ICP members as a gang, how else were they supposed to respond?

    Apparently out of the three groups involved only the ones without badges are responsible for their own actions, as everyone else simply gets to point the finger at someone else with a 'Not my fault, blame them' dodge.

    reply to this | link to this | view in chronology ]

    • icon
      orbitalinsertion (profile), 2 Jan 2018 @ 4:01pm

      Re: "It's not our fault they take what we say seriously, we're only the FBI!"

      Uh huh. More like intent. And knowing Juggalos are, as a group, guilty of nothing more then not knowing how fucking magnets work (has something to do with Jesus apparently), we might call this malice aforethought. (Something of a current or older usage will work. Charitably, less than intent to kill, but more than depraved indifference.)

      reply to this | link to this | view in chronology ]

  • icon
    Heena khan (profile), 3 Jan 2018 @ 12:55am

    ????

    retards

    reply to this | link to this | view in chronology ]

  • identicon
    Yes, I know I'm commenting anonymously, 3 Jan 2018 @ 3:56am

    Misread

    On my first reading of the title, it looked like the fans went to court to get the FBI classified as a gang...
    That would have been funnier. I'm somewhat disappointed now.

    reply to this | link to this | view in chronology ]


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