Your Tax Dollars At Work: Cops Arguing They Thought A Small Envelope Might Have Contained A Weapon

Legal Issues

from the most-unreliable-narrators-of-all dept

When a police officer violates rights, they’re put in the awkward position of defending their actions. If qualified immunity isn’t immediately awarded to them by far-too-compliant courts, they’ve got to put in their work in defending the indefensible. That’s when taxpayer dollars get spent defending actions that violate the rights of taxpayers.

And there are so many examples of bad behavior no one should be defending in court. Here are cops arguing that someone invoking their rights is suspicious behavior. Here’s one claiming that driving carefully and obeying all traffic laws is suspicious. Here are two cops claiming there’s an expectation of privacy in the room they used to drink alcohol and nap while on the clock. Here are some officers claiming Constitutional rights are time-wasting bullshit.

There’s just so much of it. It would be darkly comic if it wasn’t so tragic and/or frightening. Here’s a school resource officer claiming a small amount of missing cash justified the strip search of twenty-two preteen girls. Here’s another arguing it’s OK to arrest a bunch of middle school students to “prove a point.” Oh and it’s apparently just good police work to hurl a flashbang grenade in the general direction of a toddler.

This is all a lead-in to this gem of a defense, offered by cops hoping to see their small drug bust survive their unconstitutional actions. (via FourthAmendment.com)

After running a red light, Joshua West was approached by a police officer after he had already parked his truck in the County Administration Building’s parking lot. Officer Williams asked West to get back in his truck and proceeded to ask him questions about the truck’s ownership, since it only had dealer tags in the window. West presented the officer with some paperwork — including his valid license and insurance information. Officer Williams began writing a ticket for the red light violation.

At some point during this stop, West dropped a small object on the floor of his truck. The officers weren’t sure what it was but they really wanted to take a look. So, without actually having the legal permission to do so (West did not give consent), they began searching the truck. During this search, they found the object West had dropped: a small envelope (one that was — according to the officers — “concealed in West’s fist”) containing a clear plastic bag with methamphetamine in it.

They then performed a second search, which turned up even more drugs. West moved to suppress this evidence, arguing the initial search of his truck was unjustified.

Here’s where it gets ridiculous. The officers claimed the first unlawful search was in fact lawful because it was done for “officer safety.” Somehow, this “protective search” for weapons inside the truck allowed the officer to open an envelope and inspect its contents. The appeals court [PDF] agrees with the district court: this is a very stupid thing to assert.

The district court found that the envelope — which had been in West’s hands and lap to the end of the encounter — was full of papers and could not have been used to hide even a small weapon without first pushing the papers aside and without creating a visible bulge. In the light of these circumstances, no reasonable suspicion could exist that would support Officer Sorrell’s initial search of West’s truck or the envelope for weapons.

Not only that, but there was nothing about the stop or West’s behavior that should have given the officers any reason to suspect he was dangerous or carrying weapons he planned to use against them.

Given the totality of the circumstances presented in this case, we conclude that no probable cause existed to justify Officer Sorrell’s initial search of West’s truck. West was pulled over for having run a red light. West engaged in no erratic driving, and nothing evidenced that West attempted to flee. Neither officer had had prior dealings with or knowledge of West before the traffic stop. Nor did either officer smell or see marijuana or other contraband inside the truck.

During the traffic stop, West complied with Officer Williams’s orders, provided Officer Williams with the requested information and documents, and remained calm and cooperative. Officer Williams confirmed that West had a valid driver’s license and no outstanding warrants. These circumstances gave the officers no good reason to suspect West of engaging in criminal activity beyond running a red light.

The Appeals Court also disagrees with the sworn statements made by the officers, which were undermined by their own silent witness.

Although Officers Williams and Sorrell testified that West appeared nervous and agitated during this interaction with Officer Williams, the district court found that the officers’ testimony about West’s demeanor was contradicted by the video recording of the traffic stop.

All of this unjustified behavior led directly to cops arguing in court that they had to search an envelope because it might have contained a weapon. The evidence is gone, along with the conviction. And this was done with tax dollars. The government argued on behalf of these cops who couldn’t take down a drug user without ignoring the Constitution. Lots of things are done in our name, using our money. Arguing that an small envelope might have contained a gun shouldn’t be one of them.

Filed Under: 4th amendment, joshua west, police, probably cause, rights

Defense Department Oversight Thwarted By Defense Department Officials Who Refused To Talk About Trump's Communications

Failures

from the cut-to-DoD-officials-tying-gags-over-their-own-mouths dept

Every presidential administration seems to make a game of thwarting oversight. The current one is no different. President Trump is setting himself apart from the pack by firing IGs at an alarming pace. Whatever’s being done in our name at various government agencies is being done in the dark. Whistleblowers and leakers are being hunted down and persecuted/prosecuted (another favorite presidential sport).

What would be considered unlawful obstruction in a criminal investigation is just business as usual at the Executive branch. The latest (but certainly not the last) obstruction was revealed in the investigation of the “JEDI” contract procedure. Amazon really wanted to be a part of American bloodsports, but was beaten out by Microsoft for lucrative Pentagon cloud storage contracts. Amazon sued, alleging it got illegally screwed by the President, claiming his frequent derogatory comments about Amazon and the Jeff Bezos-owned Washington Post pushed the Pentagon towards selecting Microsoft.

An investigation was opened by the Defense Department’s Inspector General. And we’ll never know what really happened because it appears the administration inserted itself into the investigation. Jacqueline Feldscher has more details at Politico:

The Pentagon’s inspector general “could not definitively determine” whether the White House influenced the procurement process for a major cloud computing contract because senior Defense Department officials were barred from answering questions on the subject during interviews, according to a 313-page report released on Wednesday.

Sticking it to the Deep State, I guess. So, what looks like some impropriety now officially only looks like some impropriety because the Defense Department’s general counsel told DoD officials to not answer any questions about communications between the DoD and the White House. “Presidential communications privilege” successfully asserted.

Given the lack of answers, it seems pretty ridiculous for the Pentagon to hang the “Mission Accomplished” banner and declare everything to be above-board. But that’s what has happened because that’s the the kind of government we have. Here’s the Pentagon’s spokesperson pretending there’s nothing to see here.

“This report should finally close the door on the media and corporate-driven attacks on the career procurement officials who have been working tirelessly to get the much needed JEDI cloud computing environment into the hands of our frontline warfighters while continuing to protect American taxpayers.”

Everything is over except its eventual fading into obscurity, washed under the flotsam that is the day-to-day horror of living in an ongoing pandemic. The Pentagon has cleared itself of any wrongdoing by refusing to answer questions related to alleged wrongdoing. The overseers were neutralized by presidential privilege, resulting in the Inspector General drawing inconclusions the Pentagon has declared to be exculpatory with one comment to the press. The IG’s office decided to release the incomplete report anyway, stating it did not want to further delay any reporting on its non-findings since it was apparent no amount of waiting things out was going to get these officials to discuss things they didn’t want to discuss.

As for Amazon, it must be refreshing to be on the other side of impropriety accusations for once. The run-up to the awarding of the contract saw a few DoD officials becoming far too friendly with the cloud service provider.

The inspector general substantiated allegations of ethical misconduct against Deap Ubhi, a Pentagon employee who worked on the early stages of crafting the JEDI program before leaving the department to work for Amazon.

Investigators did not, however, find evidence of ethical misconduct by other senior defense officials, including former Defense Secretary Jim Mattis, who attended a dinner with Amazon officials organized by his former aide Sally Donnelly.

Ah. Well, at least the IG found out something about somebody. The President’s dislike for Amazon and Bezos remains under “presidential privilege” wraps and the swamp will continue draining at its current rate of 0 liters/flush.

Filed Under: communications, contract, dod, donald trump, inspector general, jedi, oversight, retaliation, transparency
Companies: amazon, microsoft

Ninth Circuit Says Man Can't Sue Officers Who Destroyed His Home To Capture An Unarmed Homeless Man

Legal Issues

from the I-HAVE-BECOME-COP,-DESTROYER-OF-HOUSES dept

The nation’s courts continue to disappoint citizens who’ve seen their homes destroyed by overzealous cops and their home-wrecking toys. If you’re a suspected criminal and you hole up in your own home, perhaps some destruction is warranted, especially if you do something like open fire on law enforcement officers. You’d think extricating someone from someone else’s house would be handled with more care. But it isn’t.

The Ninth Circuit Appeals Court has just delivered some bad news to a homeowner who saw his farmhouse destroyed by an unknown number of cops who arrived at the scene in 55(!!) vehicles, including a “Crisis Response Team” motorhome and two helicopters. Two SWAT teams were involved — one from the Fresno (CA) Sheriff’s Office and one from the Clovis PD. (via Courthouse News)

This was all in response to a homeless man who had been spotted by a neighbor breaking into David Jessen’s house after being rousted from a nearby construction site. The homeless man refused to come out and threatened to shoot officers. The man was actually unarmed and had done nothing more than help himself to the contents of Jessen’s fridge when the supposed standoff began. Several hours later it was over. The combined forces of two law enforcement agencies resulted in $150,000 of damage. Five rooms were teargassed. Four doors and seven windows were destroyed, along with 90 feet of fencing that was rolled over by SWAT vehicles. An entire wall was ripped out as well.

All of this happened to Jessen and there’s no recourse awaiting him in the Ninth Circuit. The court dispenses of multiple allegations, including failure to train and accusations that the Sheriff’s Office uses live SWAT raids as “training exercises” by inviting nearby law enforcement agencies to get some hands-on work in. These claims were always a bit on the edge and it was unlikely any court would sympathize with Jessen’s theory that his rural home provided the perfect training grounds for inexperienced SWAT team members.

But the decision [PDF] does come to the depressing conclusion that citizens and their homes are at the mercy of police officers in situations like these. Many law enforcement officials speak proudly of the discretion they have at their disposal. Far fewer actually exercise that omnipresent option. When you have more power than restraint, you tend to cause more damage than you prevent. One homeless B&E suspect is not worth $150,000 of damage. Of course, if you’re not the one stuck with the bills, it really doesn’t matter how much you put on someone else’s tab.

The court says this is OK. It’s just the unintended consequences of enforcing the law. But the use of the word “discretion” is a bit rich in this context.

The district court did not err in concluding that the Defendants are immune from liability for negligence under Conway v. County of Tuolumne, 231 Cal. App. 4th 1005, 1016 (2014). Public entities like Defendants are immune from liability for negligence if the alleged injuries were caused by the officers’ “discretionary acts.” Cal. Gov’t Code § 820.2; id. at § 815.2(b). In Conway, the California Court of Appeal held that discretionary act immunity applies to the selection of the means to effectuate an arrest, including the decision to deploy a SWAT team in effectuating an arrest, and the subsequent decision to deploy tear gas. The Jessens do not discuss Conway, let alone identify any distinguishing aspect of the officers’ decision to deploy tear gas here. Under Conway, Defendants are immune from liability, and the district court properly granted summary judgment for Defendants on the Jessens’ negligence claim.

When we hear the word “discretion,” we tend to think of restraint. When cops hear the word “discretion,” they think of something else: a wealth of options, most of them highly-destructive. When an opportunity to use all the cool tools and repurposed war gear arises, you take advantage of it. And if a person’s home is standing in between you and the person you want, the house has to go.

Filed Under: 9th circuit, david jessen, discretionary acts, fresno, police, property destruction, swat teams

Florida Governor Responds To Lawsuit Over Coronavirus Infection Documents By Pressuring Newspaper's Law Firm To Drop The Suit

Legal Issues

from the yes-more-opacity-will-definitely-flatten-the-curve dept

We’re at a time when we need more transparency from our government officials than ever. And, of course, we’re not getting it. The White House ordered federal health officials to designate documents from top-level coronavirus meetings as classified, keeping them away from FOIA requesters. The nation’s other coronavirus task force — headed by Jared Kushner — is carrying out its official business using private email accounts.

Things aren’t much better at the state level. The Miami Herald filed a public records request seeking information about nursing homes in the state affected by the virus. The governor has repeatedly refused to release this information, which is putting healthcare workers and nursing home residents at risk. So, the Miami Herald sued. It notified Governor Ron DeSantis’ counsel that it would be filing suit, as is required by the state’s litigation process. The governor’s lawyers responded by telling the Herald’s legal rep to drop the case.

Florida Gov. Ron DeSantis’ general counsel called a representative of the Miami Herald’s law firm seeking to quash a public records lawsuit that would force the state to divulge the names of all elder-care facilities that have had a positive test for the coronavirus.

The back-door pressure — through an attorney that had no involvement in the case — paid off.

The law firm, Holland & Knight, told Sanford Bohrer, a senior partner with decades of representing the Miami Herald, to stand down and abandon the lawsuit.

The newspaper will not be abandoning its lawsuit. It has found another law firm to take up its case. But there’s already a chill in the air, thanks to these actions.

It appears the governor’s office spoke to a different partner in the firm, rather than the lawyer representing the paper. Conveniently, this member of the law firm has represented the state in other matters, making it that much easier to persuade the law firm to drop the Herald as a client in this case.

General Counsel Joe Jacquot sought to short-circuit the litigation. He didn’t call the lawyer who drafted the lawsuit and had sent the letter, but rather another Holland & Knight lawyer, George Meros.

Meros has represented the state on numerous matters, including its recent efforts to defend legislation that undermines the intent of Amendment 4, the ballot measure — passed overwhelmingly — that gives felons the right to vote after they have served their sentences.

Meros has represented a long list of state agencies during his career as an attorney. And his employer apparently felt the best step to take was to direct the paper to drop its lawsuit.

The governor is claiming his office did nothing wrong. His office’s spokesperson says contacting a law firm to dissuade them from filing a lawsuit is just a normal pre-litigation tactic used to “avoid unnecessary litigation.” That would make sense if the governor’s office had called to settle or offer to turn over the records the paper is seeking. But it didn’t do that. The governor’s lawyer instead leaned on a law firm employee with a long history of defending the state in lawsuits and the firm obliged by “advising” the paper to drop the lawsuit.

There’s enough plausible deniability built into this that the blame may lie with the law firm, rather than the governor’s office. If the law firm wanted to pass on the lawsuit due to possible conflicts of interest, it could have said as much. And if the governor’s office wanted to discuss the lawsuit during the five-day waiting period, it could have spoken to the paper’s rep, rather than an attorney that had frequently defended the government in the past. None of that happened, and the paper was forced to hire a new legal rep to continue seeking information the governor’s office should have been willing to release in the first place.

Filed Under: florida, foia, george meros, law firms, litigation, pressure, public records, ron desantis, sanford bohrer, threats, transparency
Companies: holland & knight, miami herald

French Government Says Google Must Pay French News Agencies For Sending Traffic Their Way

Copyright

from the local-news-concerns-demand-the-right-to-fuck-themselves dept

European publishers just can’t punish themselves enough, apparently. News agencies experiencing downturns related to their inability to take advantage of the miraculous communications platform that is the internet are turning to their governments, demanding something be done about Google and its [checks notes] insistence on sending search traffic their way.

Building off the dubious assertion of “neighbouring rights,” the French government is now demanding Google pay French newspapers for the privilege of supplying them with additional readers.

In its latest crackdown on big tech, today the French Competition Authority has ordered Google to negotiate with French news organizations within the next three months to pay to reuse excerpts of news stories. That means Google will have to pay publishers for the headlines and snippets of stories that appear in Google News and even Google searches.

Note that it’s an “order to negotiate,” rather than the imposition of a tax. This is obviously in hopes of avoiding a repeat of Google’s response to the snippet tax imposed in Spain. When the Spanish government declared local news agencies had an “inalienable right” to be paid by Google for snippets and headlines showing up in Google searches, the company shut down its news service in Spain. This resulted in news agencies asking for the thing they had just asked for to be rolled back. Losing Google’s referral traffic obviously hurt them more than Google’s previous uncompensated “use” of their headlines and content snippets.

Of course, Google still has the nuclear option available, negotiation orders notwithstanding. A negotiation can open with Google offering to shut things down completely if French news agencies aren’t happy with the traffic Google’s sending them. And it’s a lot. The French Competition Authority knows this. And it knows its demands are placing a gun to news agencies’ heads, rather than Google’s. But it’s making these demands anyway.

These practices are made possible by the dominant position that Google is likely to hold in the market of general search services. This position leads Google to bring significant traffic to the websites of publishers and news agencies. Thus, according to the data provided by the complainants relating to 32 press titles, and not disputed by Google, the search engines — and therefore Google for a large part — represent, according to the sites, between 26% and 90% of the redirected traffic to their pages. This traffic is also very important and crucial for publishers and news agencies who cannot afford to lose any share of their digital readership due to their economic difficulties.

This is the Competition Authority stating that it thinks Google shouldn’t be able to pull the plug on local news services in response to snippet taxes. This condemnation of Google’s actions in Spain comes bundled with some inadvertent transparency about the importance of Google’s search engine to news agencies — the same ones who believe it’s Google that owes them money, rather than the other way around.

So, to avoid being nuked, the Competition Authority has laid down ground rules for “negotiations” that it hopes will keep Google from saying au revoir to its French Google News service.

Google must conduct negotiations within 3 months from the request to open negotiations from a press publisher or a news agency.

Neither the indexing, nor the classification, nor the presentation of the protected content taken up by Google on its services should in particular be affected by the negotiations.

Google will have to provide the Autorité with monthly reports on how it is complying with the decision.

But it won’t really be a negotiation. The Competition Authority says there’s only one acceptable outcome.

This injunction requires that the negotiations effectively result in a proposal for remuneration from Google.

This is dumb and highly unlikely to result in anything that makes French news agencies happy. They may be able to wrestle some money out of the company currently sending them traffic for free, but it’s not going to turn their fortunes around. Nor is it likely to result in more traffic being sent their way.

Filed Under: aggregation, copyright directive, eu copyright directive, france, google news, google tax, neighboring rights, traffic
Companies: google

Kushner's COVID Task Force Is Looking To Expand The Government's Surveillance Of Private Healthcare Companies

Privacy

from the move-fast-and-break-privacy dept

Jared Kushner’s shadowy coronavirus task force is still at work behind the scenes, bringing this country back to health by leveraging Kushner’s innate ability to marry into the right family. Very little is known about it and very little will be known about thanks to the task force’s decision to run communications through private email accounts.

Kushner’s focus appears to be the private sector — the same area his father-in-law appears to be most worried about. The curve has yet to flatten, but Trump and Kushner want to make sure companies remain healthy even if their employees aren’t.

It appears Kushner is now branching out into the public sector. The private sector will be involved, but as the target for a new strain of surveillance, as Adam Cancryn reports for Politico.

White House senior adviser Jared Kushner’s task force has reached out to a range of health technology companies about creating a national coronavirus surveillance system to give the government a near real-time view of where patients are seeking treatment and for what, and whether hospitals can accommodate them, according to four people with knowledge of the discussions.

This information will be used to determine where resources might need to be allocated. It will also be used to make judgment calls for social distancing and “stay at home” orders, with an eye on getting companies back up and running as quickly as possible.

What the task force is pushing for is relaxed rules on data sharing by private health companies.

[T]he Trump administration has sought to ease data-sharing rules and assure health data companies they won’t be penalized for sharing information with state and federal officials — a move driven in part by Kushner’s push to assemble the national network, according to an individual with knowledge of the decision.

To do this, the administration is likely to lean on its favorite weapon against privacy: national security. There are exceptions built into health privacy laws that make it easier for the federal government to demand access to this data. If the task force can sell the pandemic as a national security crisis, the government will be able to peer into multiple databases and do whatever it wants with that data. And it will be able to do so for as long as it wants, so long as it can claim the threat is still present.

The thing is there’s no need to reinvent the surveillance wheel… unless the additional layer of surveillance is actually what the administration wants, rather than a targeted response to health care needs.

Some public health experts, meanwhile, suggested that the administration might instead build out and reorient an existing surveillance system housed within the Centers for Disease Control and Prevention that aided the response to prior epidemics. The system, called the National Syndromic Surveillance Program, is a voluntary collaboration between the CDC and various state and local health departments that draws data from more than 4,000 health care facilities.

While there may be some short-terms gains from adding another level of health care surveillance, the inherent problem is rolling back that surveillance once it’s no longer needed. Americans may be more agreeable to additional government snooping during a short-term crisis, but they’re less willing to look the other way when the threat to the nation has passed. The government, however, generally doesn’t care what the people want. If it has found some self-serving uses for this increased access, it will keep the access and say enough stuff about national security threats to defeat attempts to scale things back to their pre-COVID levels. We saw this with the 9/11 attacks. And we may see it again with this unprecedented pandemic.

Filed Under: covid-19, healthcare, jared kushner, surveillance

Apple, Google Join Forces To Create Free Tools For Coronavirus Tracking

(Mis)Uses of Technology

from the stepping-up-when-the-gov't-won't...-or-at-least-shouldn't dept

Fortunately, the US government hasn’t decided (yet!) to opt everyone into some sort of tracking program to mitigate the spread of the coronavirus. This doesn’t mean you can’t opt yourself into tracking to head off possible infections and/or gauge your risk level.

Apple and Google are working together to build a set of tools that can be used to track the spread of the virus, and it’s all purely voluntary. Obviously, there are some concerning aspects about the use of these tools by public health agencies, but the companies have done a pretty good job lowering the risk of these being turned into always-on surveillance apps.

This is from Apple’s press release, which is light on details but gives a broad overview of what’s happening.

First, in May, both companies will release APIs that enable interoperability between Android and iOS devices using apps from public health authorities. These official apps will be available for users to download via their respective app stores.

Second, in the coming months, Apple and Google will work to enable a broader Bluetooth-based contact tracing platform by building this functionality into the underlying platforms. This is a more robust solution than an API and would allow more individuals to participate, if they choose to opt in, as well as enable interaction with a broader ecosystem of apps and government health authorities. Privacy, transparency, and consent are of utmost importance in this effort, and we look forward to building this functionality in consultation with interested stakeholders. We will openly publish information about our work for others to analyze.

These will allow for voluntary contact tracing using Bluetooth signals. A unique signal would be broadcast by participants to nearby devices, including those within the CDC-recommended six feet minimum for social distancing. Users would self-report their COVID status, broadcasting that info as well. No one’s location data is gathered and their movements aren’t tracked. All processing of signals occurs on users’ devices.

More details can be found in spec sheets released by the companies. Apple’s notes that device privacy is protected by identifiers that change every 15 minutes, making it almost impossible to use the APIs for long-term tracking of people’s movements. If a user tests positive for COVID-19, they must opt in to sharing that data with the API servers.

There are no perfect solutions for this pandemic and this one isn’t. But it’s far more robust and more respectful of users’ privacy than most of what’s being pushed by governments elsewhere in the world. The addition of government fabric to the framework doesn’t undercut the protections built into the system. The upside for public health agencies is better, faster tracking of viral spread — something that’s almost impossible at this point in time.

The downsides are mostly related to the tech itself and the nature of human beings. Bluetooth signals don’t necessarily indicate human contact — especially when lots of people live in close proximity but are rarely face-to-face, like in large apartment complexes.

Also worrying is the potential for abuse by the worst human beings, of which there are far too many. Ashkan Soltani suggests the apps could be misused to troll the system into uselessness.

MOST IMPORTANTLY there’s a REAL risk of abuse from these apps — generating false alarms and Denial-of-Service attacks from people falsely flagging that they’re infected with COVID19 (crying ‘wolf) — thereby potentially affecting the others they’ve digitally been in contact with

Finally, there’s the problem with our healthcare system in general. There supply of reliable tests is still limited and it seems unlikely heading to your primary care provider with a Bluetooth positive (but no symptoms) is going to persuade them to test you for the virus. Hopefully the availability of tests will increase as time goes on, making this tool more useful to more people.

Even the ACLU seems cautiously supportive of the tech companies’ joint effort:

“To their credit, Apple and Google have announced an approach that appears to mitigate the worst privacy and centralization risks, but there is still room for improvement. We will remain vigilant moving forward to make sure any contact tracing app remains voluntary and decentralized, and used only for public health purposes and only for the duration of this pandemic.”

As always, the biggest drawback of this effort is also its greatest strength: it’s entirely voluntary. In a nation of rugged individualists (which unfortunately includes people who believe this isn’t actually a pandemic or that the 5G rollout is somehow linked to the coronavirus), it’s tough to get people to buy into voluntary health efforts, no matter how beneficial they may be to themselves or anyone else around them. Mandatory tracking would provide better data faster, but our government hasn’t shown it can be trusted to handle this much power responsibly. So, voluntary it is and whatever buy-in there is will be better than the nothing we’re doing now.

Filed Under: api, bluetooth, contact tracking, coronavirus, covid-19, privacy
Companies: apple, google