DOJ Releases Report On Minneapolis PD, Says It’s No Surprise This Problematic Cop Shop Produced A Murderer

Failures

from the broken-on-every-conceivable-level dept

Any investigative report of any police department in the United States composed by the DOJ’s Civil Rights division can be described as “scathing.” Bad cops doing bad things trigger these investigations, which invariably find evidence of biased policing, excessive force deployment, and a general disregard — if not actual disdain — for the people these departments are supposed to be serving.

This investigation of the Minneapolis PD was triggered by the rarest of occurrences: the murder conviction of Officer Derek Chauvin for spending nearly 10 minutes with his knee pressed to unarmed black man George Floyd’s neck — an act that would have been considered, at minimum, metaphorically reprehensible even if it hadn’t continued for three minutes after another officer informed Chauvin he could not detect a pulse.

Minneapolis burned, much like Los Angeles did thirty years ago following the brutal beating of a black man by white cops. Los Angeles is still overseen by terrible cops, showing it takes more than a few weeks of civil eruption to change the status quo. And, if history is any indication, it takes far more than a strongly worded report from the DOJ to change cop culture.

The system that emboldened Officer Chauvin to the point he was willing to take a life while being recorded by citizens still thrives. The DOJ report [PDF] makes it clear Derek Chauvin is no anomaly. He’s only the most visible symptom of a terminally ill system.

For years, MPD used dangerous techniques and weapons against people who committed at most a petty offense and sometimes no offense at all. MPD used force to punish people who made officers angry or criticized the police. MPD patrolled neighborhoods differently based on their racial composition and discriminated based on race when searching, handcuffing, or using force against people during stops. The City sent MPD officers to behavioral health-related 911 calls, even when a law enforcement response was not appropriate or necessary, sometimes with tragic results.

Overseeing the largest city in Minnesota (and one of its most diverse), the MPD has repeatedly failed to serve and/or protect. Instead, the past decade has been marred by acts of violence by officers that have only destroyed what little trust remains between the MPD and the people it’s supposed to be serving.

On May 25, 2020, MPD officer Derek Chauvin murdered George Floyd in broad daylight and on camera. Three other MPD officers failed to save Mr. Floyd. Widespread protest followed in Minneapolis, across the country, and throughout the world.

George Floyd was one of several people whose death at the hands of MPD officers garnered heightened public attention in recent years. For example, in 2015, MPD officers shot and killed Jamar Clark, a 24-year-old Black man, triggering 18 days of protests, including an occupation of MPD’s Fourth Precinct station. In 2017, an MPD officer shot and killed Justine Ruszczyk, a 40-year-old white woman, while responding to Ruszczyk’s 911 call. In 2018, MPD officers fatally shot Thurman Blevins, a 31-year-old Black man, following a foot chase. In 2019, MPD officers shot and killed Chiasher Vue, a 52-year-old Asian man, during a standoff at his home. In 2022, an MPD officer shot and killed Amir Locke, a 22-year-old Black man, during a no-knock raid on an apartment.

The DOJ report runs 92 pages. And it depicts yet another law enforcement agency that considers itself to be above the law. Unjustified force deployment is MPD standard operating procedure. And when officers aren’t shooting people for startling them (i.e, the killing of Justine Ruszczyk), they’re endangering citizens and other cops just because they’ve been startled by man’s best friend while intruding on people’s personal property.

In another case, an officer created unnecessary danger when he shot two dogs in the back yard of a home in a residential neighborhood. At least two people were inside the home at the time, and the home was flanked on both sides by neighboring homes and other structures. The dogs did not present an imminent threat.

MPD officers view excessive force as a means to an end, no matter what that end might actually be. Rather than being far down the list of acceptable responses to encounters with uncooperative individuals, violence appeared the first, if not only, option considered.

De-escalation, if it occurred at all, was poor; officers shouted commands, gave multiple conflicting orders, demanded immediate compliance, or threatened force. Officers made tactical decisions that endangered community members and officers alike. Officers often used neck restraints on people who were accused of low-level offenses, were passively resisting arrest, or had merely angered the officer. And, most troublingly, officers used neck restraints on people who were not a threat to the officer or anyone else.

“Less-lethal” does not mean any less excessively violent.

From January 1, 2016, to August 16, 2022, MPD officers used their tasers 564 times and pointed or unholstered them 1,039 times. We reviewed a sample of these incidents. Many of those encounters involved people known to have behavioral health issues. In a significant number of encounters, the associated offense was non-violent or did not involve a weapons-related offense. Sometimes, the only charge was obstruction of process.

MPD officers couldn’t even restrain themselves when patrolling with DOJ ride-alongs. One incident detailed in the report says an officer tased a man for filming an accident scene, despite the fact he was complying with their orders to move away from scene.

The DOJ notes MPD officers are complaining about low morale and are concerned the department is unable to retain long-time officers. If this is how the MPD operates on a day-to-day basis, then it’s better off without officers like the one described below, who are far more likely to abandon ship rather than suffer through any minimal increase in accountability.

In another incident, an officer expressed no remorse after using excessive force against a restrained person. A white man experiencing a behavioral health crisis was handcuffed to a stretcher. The man spat on an officer, who slapped and punched him in the face. After the man had been transported to a hospital, the officer said on body-worn camera: “I’m really proud of myself; I only hit him twice.” The supervisor did not refer the officer for a misconduct investigation.

And so it goes for the rest of the report:

MPD Fails to Render Medical Aid to People in Custody

MPD Encounters with Youth Result in Unnecessary, Unreasonable, and Harmful Uses of Force

MPD Unlawfully Discriminates Against Black an Native American People When Enforcing the Law

MPD Unlawfully Retaliates Against People During Stops and Calls for Service

MPD Violates People’s First Amendment Rights

MPD Fails to Conduct Thorough, Timely, and Fair Misconduct Investigations

This is the policing that’s costing Minneapolis taxpayers hundreds of millions of dollars every year. Violence inflicted for any or no reason. Bigotry pretending to be good police work.

MPD leadership has persistently encouraged using traffic enforcement and stops of “suspicious” people and vehicles as a way to reduce violent crime and get guns off the street. One MPD presentation we reviewed described traffic law enforcement stops as the “top tactic used by MPD for illegal gun recovery.” But only a small percentage of MPD’s traffic stops resulted in recovering guns. For example, in 2018, MPD conducted roughly 32,000 vehicle stops, but recovered only 97 guns—meaning just 0.3% of traffic stops resulted in MPD recovering a gun.

Moreover, from November 1, 2016, to August 9, 2022, MPD data showed no record of a citation or arrest of any kind for 71.7% of traffic stops. The burden of these stops fell most heavily on Black and Native American people. MPD stopped but did not cite or arrest Black people at 5.7 times the rate at which it stopped but did not cite or arrest white people, given their shares of the population. And Native Americans were stopped but not cited or arrested at 5.9 times the rate.

Having been forced to confront this internalized bigotry following the murder of George Floyd, officers simply decided to stop complying with their employer’s policies.

Starting in late May 2020, officers suddenly stopped reporting race and gender in a large number of stops, despite MPD policy requiring officers to collect the data. We estimate the percentage of daily stops with known race data recorded dropped from about 71% just before May 25, 2020, to about 35% afterwards, a drop of roughly 36 percentage points. This sudden decrease in MPD officers recording racial data continued throughout the next two years.

This is what this kind of cop culture (which is pretty much the same cop culture no matter where in the nation you are) gets you: cops who know they won’t be punished no matter what they do.

Some officers act as though they are unconcerned about being held accountable for even egregious discriminatory misconduct. For example, in late 2020, a woman called MPD to ask about a man she believed was putting flyers threatening Black Lives Matter supporters onto vehicles. She told us that the officer who answered said Black Lives Matter was a “terrorist” organization and stated: “We are going to make sure you and all of the Black Lives supporters are wiped off the face of the Earth.” He said, “I think you should file a complaint, and I want you to do it well, so let me spell my first and my last name so you get it right. Then I’ll give you my badge number.” The woman asked to speak to a supervisor, but the officer refused to transfer her or take her contact information. The woman filed a complaint the next day but was not interviewed for seven months.

It’s not someone “acting” like they are “unconcerned” about potential punishment. This is an officer who knows he had nothing to fear in terms of reprisal.

The Minneapolis PD is headed towards a consent decree, something meant to reverse years of negative cop culture but generally just means citizens will be shelling out tens of millions of dollars for negligible reforms. All the MPD needs to do is maintain the status quo until court orders expire and the city residents find something else to focus on. The only thing that can truly change the MPD is the MPD itself. And it’s made it this far without changing so why bother doing it now?

Filed Under: civil rights, derek chauvin, doj, minneapolis, minneapolis pd

Appeals Court Awards Half A Win To Professor Wrongfully Arrested For Sharing ‘Secret’ Tech With Chinese Entities

Legal Issues

from the we-admit-we're-wrong-but-you-still-can't-sue-us dept

Being abnormally suspicious of anything Chinese isn’t new. There’s a wave of hysteria-based lawmaking happening right now involving TikTok, but deciding Chinese nationals and Chinese entities are inherently suspicious has been part of this nation’s cultural fabric since the construction of railroads back in the mid-19th century.

That supposition that foreigners — especially the exotic-looking ones — are trying to undermine our nation is almost as old as this nation itself. This case only dates back to May 2015 — the day the Chair of the Temple University Physics Department, Xiaoxing Xi — was arrested at gunpoint by FBI agents.

The FBI agents held Xi and his family (including his daughters) at gunpoint while they ransacked his house. Xi was interrogated for two hours and subjected to DNA sampling and fingerprinting. Once this was completed, the FBI finally got around to telling Xi why it had arrested him. According to the FBI, Xi had been indicted for four counts of wire fraud for allegedly passing on information about a “pocket heater” (not the one you’re thinking of, Midwesterners) to Chinese entities.

After a bit of actual due diligence, DOJ prosecutors realized Xi had never discussed this supposedly “revolutionary” bit of superconductor tech with anyone in China and dropped the charges against him. (Albeit, without prejudice, which is kind of shitty.)

Instead, his emails had only discussed his own invention, which wasn’t related to the “pocket heater” the FBI agent handling the case pretended the case was about. Well, “pretending” is perhaps too kind. FBI agent Andrew Haugen — the lead defendant in this lawsuit — lied about Xi’s communications. We know he lied because he had already been informed of the truth and decided to move forward with a raid of Xi’s house anyway — a raid predicated on the lies Agent Haugen told the court in order to secure the search warrant.

This is from the Third Circuit Court of Appeals decision [PDF]:

In the course of that investigation, as set forth in the Complaint, Haugen had interviewed the inventor of the pocket heater and learned that Xi’s emails were “not related” to the STI pocket heater, but rather to a different process that Xi himself had invented. Nevertheless, according to the Complaint, Haugen averred in his affidavits, reports, and other communications with prosecutors that those emails did concern the pocket heater.

Dropping the charges freed Xi from prosecution but it didn’t undo the damage to his life. Thanks to widespread news coverage of this bogus bust, Xi was suspended by Temple University and barred from participating in any research or communication with his students. Special Agent Andrew Haugen, however, suffered no consequences at all for his actions.

That’s what Xi is hoping to change. But the Appeals Court only allows one cause of action to move forward, claiming (like almost every court does, thanks to Supreme Court precedent) that the agent can’t be sued for rights violations under Bivens because (altogether now) this is a “new context.” As the Third Circuit notes, the Supreme Court has bound the hands of every court in the land:

In the fifty-two years since Bivens was decided, however, the Supreme Court has pulled back the reins to what appears to be a full stop and no farther.

In other words, if your rights have been violated by a federal agent, there is roughly a 0.0001% you’ll be able to successfully bring a Bivens claim. For everyone else, there’s whatever else might still have a remedy the Supreme Court hasn’t managed to destroy yet.

Making this a bit worse, the Third Circuit also says it would not have granted a Bivens claim to Xi even if the Supreme Court hadn’t all but eliminated that option… because national security.

[A]s a practical matter, counterintelligence officials, like Border Patrol agents, are on the front lines of responding to national security threats where the prospect of damages liability could cause them to “second-guess difficult but necessary decisions” with significant consequences for public safety and foreign policy.

But Xi still has one option left: the Federal Tort Claims Act, which allows the government to be sued for the negligence of its employees. That claim can proceed.

The Appeals Court first addresses the lower court opinion, which said the FTCA claim was valid but that qualified immunity should be awarded to Agent Haugen. The Appeals Court says this gets the law wrong. There’s no qualified immunity element in the FTCA, which waives sovereign immunity for government agencies to allow citizens whose rights were violated to bring a lawsuit against the federal government.

Given these factors, Agent Haugen’s misconduct cannot be immunized. And it’s clear from Xi’s allegations that there’s more than enough to allow this lawsuit to proceed:

Xi has met that pleading standard here because the Complaint alleged at least seven discrete instances of Haugen intentionally, knowingly, and/or recklessly providing false information that led to Xi’s prosecution. It alleged, for example, that before charges were filed, the inventor of the pocket heater informed Haugen that the emails in question described an “entirely different” device from the pocket heater—one that Xi himself had invented; and that the pocket heater technology was not “revolutionary,” but “widely known.” It also alleged that Haugen accused Xi of “a scheme to obtain the pocket heater technology” at a point in time when, as Haugen knew or recklessly disregarded, that technology did not yet exist, and that Haugen knew or recklessly disregarded that Xi never sent samples or test results from the pocket heater to colleagues in China, but only engaged with them in normal academic collaboration. Such detailed allegations are hardly the “naked assertion[s] devoid of further factual enhancement” that would justify dismissal. George v. Rehiel, 738 F.3d 562, 581 (3d Cir. 2013)

It’s a very limited win. And even if this goes Xi’s way in the lower court, the FTCA claim limits him to monetary damages, which means he’ll only be able to get back what he can prove the FBI cost him. Reputational damage won’t be a factor, which means the FBI and the agent that basically fabricated claims against Xi will likely walk away from this owing Xi almost nothing for baselessly attempting to destroy his life.

Filed Under: 3rd circuit, bivens claim, civil rights, espionage, fbi, federal tort claims act, ftca, wire fraud, xi xiaoxing

NYPD Adds $121 Million In Settlements To Its $11.2 Billion Tab

Legal Issues

from the soak-the...-um...-everybody dept

New York’s Finest continue to set the sort of records New York residents would rather the NYPD didn’t. The NYPD is not too big to fail. But it’s apparently too big to curtail.

In 2019, it capped off a spectacular two-year run in which it racked up over a half-billion in lawsuit settlements. That’s on top of what it was charging residents to do the sort of job that results in more than $250 million in settlements per year. Of course, the NYPD is the only cop shop in town, so to speak. So, it can get away with charging a premium for subpar service.

And oh what truly lousy service it is! Prosecutors around the city spent most of the last couple years dismissing hundreds of cases tainted by more than a dozen dirty cops. The worst of the bunch — narcotics detective Joseph Franco — was responsible for most of those. Franco was facing 26 criminal charges ranging from perjury to official misconduct, but managed to walk away from all of those after prosecutors did what prosecutors do best: withhold evidence from criminal defendants.

The numbers are in for this year. And while they may look like a significant improvement over the NYPD’s astounding 2018-2019 run, they’re actually worse than they were last year.

The city shelled out more than $121 million in police misconduct lawsuit settlements in 2022 — the highest amount meted out to NYPD abuse victims in at least five years, the Legal Aid Society said Thursday.

The payouts were $34 million more than the $87 million in settlements made in 2021, according to a five year look-back conducted by Legal Aid.

And last year’s number could be even higher, the group said. The Legal Aid Society’s analysis didn’t count money paid out by the City Comptroller’s office prior to the lawsuits ending up in court, according to Maggie Hadley, legal fellow with the agency’s Criminal Defense Practice’s Special Litigation Unit.

$121 million is some serious money. But it’s all a matter of perspective. Given that the city will end up spending nearly $11.2 billion to fund the NYPD this year, another $121 million isn’t that much more to ask from city residents. I mean… comparatively.

It’s not just the obscene amount of unnecessary spending. It’s what it was spent on.

Last year’s larger settlements included a $12 million payout involving two officers sued for leaving a young city resident paralyzed.

In May, a second $12 million settlement check was made out to Pablo Fernandez, who was wrongfully convicted in 1996 for a homicide that he did not commit. He served more than two decades in prison before his release, and the charges were dismissed.

Those two instances are truly horrifying. The smaller amounts are linked to less horrendous forms of power abuse, but it’s still the abuse of power. It costs real money to pay back people who have been wronged by NYPD officers. And yet, good money is thrown after bad year after year. That’s on top of annual budget increases the NYPD has come to expect, even if its level of service remains just as terrible as ever.

Next year’s total will be worse. The fiscal turkeys will be coming home to roost as the city pays off the hundreds of defendants wrongfully arrested, detained, or convicted due to years of misconduct by officers the NYPD chose to ignore. The NYPD has the luxury of ignoring the rot in its ranks. Lawsuit settlements may be reflected on its budget sheets, but no one employed by the NYPD is ever held directly financially responsible for the rights violations they’ve committed.

As long as the NYPD gets to play with other people’s money, it will never get better. And if the city is unwilling to tie at least some of its budget to effective discipline, it will continue to be nothing more than an enabler for the worst officers the NYPD employs.

Filed Under: civil liberties, civil rights, nypd, settlements

Nevada’s Top Court Says Cops Can Now Be Sued For Rights Violations, Won’t Have Access To Qualified Immunity

Legal Issues

from the now-do-it-everywhere-else dept

Cops in Nevada had better start behaving. The state’s Supreme Court has handed down a ruling that not only guarantees residents the right to sue under state law, but won’t allow officers to easily escape lawsuits by asking for qualified immunity.

Here’s the background of the case, as summarized by Nick Sibilla at Forbes:

What became a pivotal ruling for civil rights started because Sonja Mack just wanted to see her boyfriend. Back in 2017, Mack traveled to High Desert State Prison to visit her partner, who was then behind bars. While waiting, Mack said she was approached by two correctional officers, who then conducted a “demeaning and humiliating” strip search of Mack. Even though officers didn’t find any drugs or contraband, the prison still banned Mack from seeing her boyfriend and revoked her visitation privileges.

Mack sued, arguing that being strip searched violated her rights under the Nevada Constitution.

The problem facing Mack is that the Nevada legislature had never passed a law that expressly granted residents a right to sue government employees at the state level for constitutional violations. And no court had apparently been asked in a persuasive way to do what the state legislature had failed to do.

The defendant, the Nevada Department of Corrections, argued the lack of legislation meant only the state could punish corrections officers for civil rights violations. Fortunately, the state Supreme Court disagrees.

[W]e reject the NDOC parties’ assertion that state tort law provides meaningful redress for invasions of the constitutional right at issue here. Although other courts have determined tort remedies suffice to compensate for personal invasions of certain constitutional rights, […] we disagree that any commonalities between state tort-law claims and constitutional protections… provide meaningful recourse for violations of the constitutional right against unreasonable searches and seizures by government agents, as state tort law ultimately protects and serves different interests than such constitutional guarantees.

The NDOC thinks everything should be limited to tort law, which really doesn’t cover constitutional violations. The government would apparently prefer it never be held responsible for violating rights. The court says that’s not acceptable.

Absent a damages remedy here, no mechanism exists to deter or prevent violations of important individual rights in situations like that allegedly experienced by Mack. Thus, a damages remedy is warranted under this factor of the Restatement test, as monetary relief remains necessary to enforce the provision for individuals in Mack‘s shoes, and a damages remedy furthers the purpose of the search-and seizure provision to the extent it acts as a deterrent to government illegality.

As the court notes later in the decision, a right without a remedy for enforcement can hardly be called a right.

Now, on to the NDOC’s attempt to have the court adopt the qualified immunity doctrine found at the federal level (and in several states). The court points again to the legislature, noting that it has never attempted to create anything resembling state-level qualified immunity for government employees. If it legislated from the bench, the court says it would “undermine this State’s public policy, reflected in NRS 41.031, that [state actors] ‘should generally take responsibility when [they] commit wrongs.'”

This is the court’s final say on that matter:

Accordingly, qualified immunity, as that doctrine is understood under federal law, is not a defense available to state actors sued for violations of the individual rights enumerated in Nevada’s Constitution.

That’s it. The court recognizes a right to sue government employees for constitutional violations. And qualified immunity won’t be an option. So, either cops (and corrections officers) will need to start doing better respecting Nevada residents’ rights. Or they’re going to have to try to talk courts (at both state and federal level) into allowing them to move state law cases to federal court where they can possibly score themselves a little QI. Either way, civil rights suits will take more than a motion filled with qualified immunity boilerplate to get government employees dismissed.

Filed Under: civil rights, ndoc, nevada, police, qualified immunity

NYPD Says Kids Don’t Need Lawyers While Fighting Reforms Targeting Interrogations Of Minors

Legal Issues

from the all-lawyers-do-is-make-us-respect-rights! dept

Leave it to the NYPD to suggest some people’s rights just don’t matter. The NYPD has resisted pretty much every reform effort shoved in its general direction and this one — which would affect questioning of juvenile detainees — is being resisted as well. (“Stop resisting!” only works in one direction, unfortunately.)

Here’s C.J. Ciaramella with more details for Reason:

The City recently reported that a coalition of public defenders, juvenile justice organizations, and other groups are pushing to pass a bill in the next session of the New York Legislature that would require minors speak with a lawyer before they waive their Miranda rights and talk to police.

If such a bill passed, New York would join several other states that have tightened rules for juvenile interrogations in recent years. Both Maryland and Washington passed laws requiring attorney consultations for minors before interrogations. Last year, Illinois became the first state in the U.S. to ban police from lying to minors during interrogations. Oregon followed suit shortly after. 

It’s a simple reform: one that ensures minors receive the same constitutional protections adults do when detained by police. There’s no reason they shouldn’t have these protections. While the rights of minors can sometimes be slightly diminished to ensure things like school safety, their rights when arrested by police officers remain exactly the same as every other American.

All this would do is force the NYPD to give juveniles access to lawyers during questioning — the same demand that can be made by anyone under arrest. The NYPD ain’t having it, though. And, as Ciaramella points out, the statement it gave The City suggests it thinks children should be underserved when arrested, unable to fully utilize their constitutional rights.

“Parents and guardians are in the best position to make decisions for their children, and this bill, while well-intentioned, supplants the judgment of parents and guardians with an attorney who may never have met the individual,” a police spokesperson said in an unsigned email. 

No wonder no one signed this horseshit. Who would want to put their name on such self-interested stupidity?

The NYPD knows lawyers specializing in criminal defense are pretty goddamn good at defending the rights of accused and arrested people. Of course the NYPD doesn’t want anyone qualified to do this important job anywhere near people being questioned, whether they’re juveniles or adults. Pretending its in the best interest of arrestees to get help from people with little to no legal experience works out best for the NYPD and its apparent desire to engage in as much unconstitutional questioning as possible.

It’s not like this is just reform for the sake of reform. It’s the desire to prevent the NYPD from adding to the long list of false confessions and rights violations perpetrated by law enforcement agencies across the nation against minors they’ve arrested. There’s nothing theoretical about the potential harm. There are plenty of real life cases found everywhere in the nation.

Ciaramella highlights just one of them — a case that shows exactly why the NYPD wants children to have access to no one but parents, as well as why this reform effort is sorely needed.

Reason reported in 2021 on the case of Lawrence Montoya, who at the age of 14 falsely confessed to being at the scene of a murder after several hours of being badgered by two Denver police detectives. Montoya’s mother was present for the first part of the interview. She encouraged him to talk and eventually left her son alone in the interrogation room with detectives, allowing them to lean on him until he gave them what they wanted: a flimsy confession constructed with the facts that they had fed to Montoya.

That’s what the NYPD prefers: parents who will likely suggest cooperation is the best route and leave it in the hands of professionals who want to secure confessions and convictions, rather than actually seek justice.

Filed Under: children, civil rights, lawyers, minors, nypd, public defenders, representation

Yes, Section 230 Also Matters In The Fight Over Abortion Rights

Free Speech

from the speak-up dept

We’ve already discussed how the expected overturning of Roe v. Wade by the Supreme Court may impact the debate on encryption, but it has a likelihood of impacting lots of other important tech debates as well. Senator Ron Wyden has written a thoughtful piece over at Slate, explaining how important Section 230 is in a post-Roe world as well. As he notes, for all the nonsense claims from Republicans about how they’re supporting free speech, their actions show the exact opposite.

Step one in the extremist playbook is making abortion illegal. Step two is preventing pregnant people or health care providers from discussing it online. It is no accident that Republican politicians’ efforts to outlaw abortion and exert state control over women’s bodies have moved in tandem with their crusade to provide the government with control over what people can say, write, or teach. Conservative extremists want to force everything from websites to news to book apps for children to conform with their 1930s version of cultural norms.

And, that tracks, given the efforts by a variety of states, most notably Texas and Florida, to try to control how websites can moderate content. Section 230 was designed to prevent that from happening, which is part of the reason why so many Republican politicians have been trashing 230.

In coming months well-funded anti-choice extremists will launch a coordinated campaign to deluge websites and social media companies with lawsuits over user speech in Republican-led states where just seeking information about an abortion could become illegal. Just as anti-abortion activists worked to attack reproductive rights in statehouses across the nation, these fundamentalists will use the same playbook of coordinated laws and legal actions against the online speech of those they dislike. They’ve already targeted libraries and bookstores over LGBTQ books and classified health care for trans youths as child abuse.

As Wyden notes, even if these lawsuits won’t win, without Section 230 acting as a protective buffer, the threat of liability becomes large enough to pressure websites into blocking discussions about abortion. This isn’t theoretical. We saw it with the last change to Section 230 — FOSTA (ironically, of course, some of the foolish people co-opted into the disingenuous campaign for FOSTA, are now among those speaking out about the overturning of Roe).

They don’t need to win these suits, only overwhelm the smaller companies that lack the resources to fight these claims or intimidate the big tech companies into taking down any posts on the topics of abortion or reproductive health care. The last reform to section 230, a bill called SESTA-FOSTA, resulted in marginalized groups—women, people of color, LGBTQ+ folks, and sex workers—being silenced when tech companies tried to avoid lawsuits. Meta has already banned discussion of abortion on its internal messaging platform. Is there any doubt it would do the same to Facebook and Instagram in the face of conservative pressure?

Wyden’s piece goes on to talk about the other big issue at play here: how our lack of regulations on data brokers may be impacted by the overturning of Roe. As we’ve noted, it’s not difficult for a motivated individual to purchase data from data brokers that can identify those who visited abortion clinics.

The risk of authoritarian power over speech, privacy, and human bodies seems like kind of a big issue.

Unfortunately, for reasons that still don’t make any sense, the attacks on Section 230 remain bipartisan, playing right into the hands of censorial Republicans trying to stifle rights. It’s time that Democrats realized, yet again, how they’re being played, and focus on protecting, rather than undermining Section 230.

Filed Under: abortion, authoritarian control, civil rights, data privacy, free speech, location data, privacy, roe v. wade, ron wyden

Supreme Court Makes It All But Impossible To Sue Federal Officers For Rights Violations

Legal Issues

from the SCOTUS:-who-are-we-to-presume-to-adjudicate-cases dept

The Supreme Court has been very reluctant to handle cases that might expand protections for American citizens. It has instead, in recent years, chosen to hand down decisions that curtail rights and make it far easier for government employees to escape lawsuits.

This Supreme Court’s decision in a lawsuit filed by a US citizen versus a US Border Patrol agent is more of the same. The Ninth Circuit Court of Appeals found in favor of Washington resident Robert Boule, who was accosted by a Border Patrol agent on his property as he drove his guest (a Turkish national) to the bed-and-breakfast he operates near (and I mean VERY NEAR) the Canadian border. Boule’s property (housing his “Smuggler’s Inn” bed-and-breakfast) extends five feet past the US-Canada border, something he has playfully marked with a line of stones.

His “Smuggler’s Inn” is aptly named. Boule’s history is what people would call “checkered” if they’re not bold enough to use the word “troubling.” Boule’s inn has frequently hosted actual smugglers, resulting in the recovery of drugs from his BnB on several occasions. Boule has also spent several years as a federal informant, which has contributed to the multiple drug recoveries. According to the history recounted in the Supreme Court decision, Boule has also charged people money to cross the border with their illicit goods, promising them safe passage to the “Smuggler’s Inn” prior to ratting them out to federal agents.

In this case, Boule informed the Border Patrol he would be picking up a Turkish national of possible interest to the US government at the Seattle airport. The Turkish national cleared customs and made his way back to the inn in Boule’s car. Agent Egbert — despite having ample time to stop or detain Boule and his passenger before Boule reached his property chose to wait until Boule had pulled up in his driveway. It was at that point the agent decided to detain the Turkish national.

Boule stood between Agent Erik Egbert as he tried to get to Boule’s passenger. When Boule refused to move, Agent Egbert shoved him against the car before grabbing him and throwing him to the ground.

The Appeals Court said this Bivens action was pretty much a carbon copy of the original Bivens lawsuit, which saw the Supreme Court side with Webster Bivens, who had his rights violated when six Federal Bureau of Narcotics (the predecessor of the DEA) agents intruded on his private property without a warrant, searched his residence, and arrested him. The only difference, as the Ninth Circuit saw it, was the name of the agency involved. It allowed Boule to continue with his Bivens lawsuit against Agent Egbert.

Egbert appealed. The Supreme Court’s opinion [PDF] (delivered by Justice Clarence Thomas) says this claim is so novel — so different from the original Bivens action that gives this sort of lawsuit its name — that it cannot possibly allow the lawsuit to continue. The same court that recently ruled there’s no way to sue a Border Patrol agent who fired 16 bullets across the Mexican border (placing 10 of those into the body of a 16-year-old standing on Mexican soil, killing him), says there’s no lawsuit here either.

The Bivens inquiry does not invite federal courts to independently assess the costs and benefits of implying a cause of action. A court faces only one question: whether there is any rational reason (even one) to think that Congress is better suited to “weigh the costs and benefits of allowing a damages action to proceed.” Ziglar, 582 U. S., at _ (slip op., at 12). Thus, a court should not inquire, as the Court of Appeals did here, whether Bivens relief is appropriate in light of the balance of circumstances in the “particular case.” Stanley, 483 U. S., at 683. A court inevitably will “impai[r]” governmental interests, and thereby frustrate Congress’ policymaking role, if it applies the “‘special factors’ analysis” at such a narrow “leve[l] of generality.” Id., at 681. Rather, under the proper approach, a court must ask “[m]ore broadly” if there is any reason to think that “judicial intrusion” into a given field might be “harmful” or “inappropriate.” If so, or even if there is the “potential” for such consequences, a court cannot afford a plaintiff a Bivens remedy.

The Supreme Court says it will not create a new cause of action if there exists any remedy at all elsewhere. In this case, it points to existence of a complaint form citizens can fill out when their rights have been violated by Border Patrol agents. That’s it. That’s all the court needs to, as it sees it, somehow stepping on Congress’ toes by allowing lawsuits against federal agents proceed.

But, as the dissent points out, there’s no new cause of action being created here. In the original Bivens case, federal officers warrantlessly intruded on someone’s property and violated their Fourth Amendment rights. That’s exactly what happened here:

The only arguably salient difference in “context” between this case and Bivens is that the defendants in Bivens were employed at the time by the (now-defunct) Federal Bureau of Narcotics, while Agent Egbert was employed by CBP. As discussed, however, this Court’s precedent instructs that some differences are too “trivial . . . to create a new Bivens context.” Ziglar, 582 U. S., at _ (slip op., at 26).2 That it was a CBP agent rather than a Federal Bureau of Narcotics agent who unlawfully entered Boule’s property and used constitutionally excessive force against him plainly is not the sort of “meaningful” distinction that our new-context inquiry is designed to weed out.

The majority’s holding is clearly ridiculous, the dissent (written by Justice Sotomayor) says. No case will ever be “close enough” to satisfy the bar being set here.

Indeed, if the “new context” inquiry were defined at such a fine level of granularity, every case would raise a new context, because the Federal Bureau of Narcotics no longer exists.

Just as ridiculous is the majority’s assertion that the mere existence of complaint form is all the remedy those whose rights have been violated by federal border security agents will ever need.

Moreover, the Court’s holding that a nonbinding administrative investigation process, internal to the agency and offering no meaningful protection of the constitutional interests at stake, constitutes an alternative remedy that forecloses Bivens relief blinks reality.

With this decision, the Supreme Court has basically retconned its Bivens decision out of existence. There will be almost no situation where it will find a person can pursue a case under this action. As long as the government has interests (in this case border/national security) or the employing agency has a form to fill out, the alleged rights violator can walk away from the lawsuit. Whatever minimal amount of deterrence the 1971 Bivens decision created has been erased by this court’s unwillingness to consider its own precedential decision as anything more than a handy way to deny justice to people whose rights have been violated.

Filed Under: bivens, border patrol, civil rights, qualified immunity, robert boule, supreme court

Court Reminds DOJ It Can’t Dismiss A No-Fly List Lawsuit Just Because It Removed The Plaintiff From The List

Legal Issues

from the your-disingenuous-mootness-has-no-power-here dept

The federal government has unlimited money to burn. That’s how we end up here with the federal government being told for a second time that it can’t walk away from a civil lawsuit just because it unilaterally decided to stop violating the plaintiff’s rights.

US citizen Yonas Fikre’s lawsuit made its way to the Ninth Circuit Appeals Court for the first time in late 2018. Fikre alleges FBI agents approached him at a Portland airport following his trip to Sudan. They questioned him about his ties to a local Oregon mosque, as well as the nature of his finances. Apparently finding none of his answers particularly useful, the agents informed Fikre he was on the no-fly list. They them offered to remove him from the list if he chose to become a government informant — something the FBI appears to do on a regular basis.

Fikre refused. On his following trip to the Middle East, Fikre was imprisoned and tortured by United Arab Emirates law enforcement. Once he was finally released, he was unable to return to Portland because of his no-fly list status. He sued.

Following his lawsuit, the FBI decided to take Fikre off the no-fly list. The agency offered no explanation for this move. According to submitted documents, the DHS had reviewed Fikre’s no-fly status twice since his 2010 placement on the list (following his interaction with FBI agents at the Portland airport). In both cases, the DHS decided Fikre was too dangerous to be allowed to fly. But it did decide to remove him shortly after he sued the government.

In that decision, the court pointed out Fikre’s unexpected removal from the no-fly list appeared to be prompted by his lawsuit.

This record suggests that Fikre’s removal from the No Fly List was more likely an exercise of discretion than a decision arising from a broad change in agency policy or procedure.

The court said this belated move — one apparently made solely in hopes of allowing the FBI to exit the lawsuit — doesn’t actually make this case moot. As surely as the government unilaterally decided to remove Fikre from the no-fly list, it could place him back on it once his lawsuit was dismissed. The Ninth Circuit refused to terminate the suit, sending it back to the lower court.

It has now returned to the Ninth Circuit following its reappearance at the lower level. The government continues to argue its removal of Fikre from the list makes the case moot. Once again, the Appeals Court disagrees [PDF]:

Returning to Fikre’s appeal, the government insists that it is “absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur,” Already, 568 U.S. at 91(quoting Friends of the Earth, Inc., 528 U.S. at 190), because it filed a notice in district court announcing Fikre’s removal from the No Fly List. We disagree. Even accepting the government’s argument that its notice constitutes a “formal agency action, publicly made, and unequivocally expressed,” the mere announcement that Fikre was removed from the list falls short of meeting the government’s burden.

One of the reasons the lawsuit isn’t moot is because the government could subject Fikre to the same indignity again, despite its sworn assurances otherwise.

[T]he government has not assured Fikre that he will not be banned from flying for the same reasons that prompted the government to add him to the list in the first place, nor has it verified the implementation of procedural safeguards conditioning its ability to revise Fikre’s status on the receipt of new information. As far as we can tell, the current permission Fikre has to travel by air is “discretionary,” and not “entrenched” or “permanent.”

The court then gives the government deference it certainly hasn’t earned, at least in this case. It says it “assumes” the government is acting in “good faith” with the removal of Fikre from the no-fly list. That being said, two trips to the Appeals Court with basically the same arguments has not convinced the court the government won’t change its mind once litigation is terminated. And the plaintiff should feel even more suspicious of the government’s apparently litigation-motivated turnabout.

With no explanation of the reasons for dropping Fikre from the No Fly List, we may not infer the government’s acquiescence to the righteousness of Fikre’s contentions. On this record, the government has not repudiated the decision to add Fikre to the No Fly List and maintain him there for approximately five years.

Bang. That’s the second straight gavel announcing the government’s loss. It may have talked the district court into accepting its bogus reasoning during its last return to the lower level, but it’s been unable to bamboozle the Appeals Court in consecutive tries. The lower court’s ruling is reversed and the government — more than a decade after disrupting Yonas Fikre’s life for reasons it has never explained — will continue to face this important challenge of its abuse of its terrorist watchlists.

Filed Under: 9th circuit, civil rights, dhs, fbi, no fly list, yonas fikre

As Scrutiny Of Law Enforcement Increases, Legislators Are Trying To Criminalize Filming Of Police Officers

Free Speech

from the public-servants-are-deciding-'service'-means-'fucking-the-public' dept

It appears several legislators haven’t learned anything from the months of anti-police violence protests that spread across the nation in the wake of the murder of George Floyd by Minnesota police officer Derek Chauvin.

What should have provoked a reassessment of law enforcement’s contribution to society, and a closer examination of their means and methods, has instead generated a super-perverse form of backlash that has seen certain legislators circle the lawmaking wagons in hopes of shielding already very powerful people from additional scrutiny.

There’s a good chance Officer Chauvin would never have been convicted if his actions hadn’t been recorded by a resident at the scene of what’s generously referred to as an “arrest.” Without this recording, the public would have been left with the Minneapolis PD’s narrative, which stated only that George Floyd had “died” following a “medical incident” during a “police interaction.” What actually happened was never acknowledged in the MPD’s press release: Chauvin kneeled on Floyd’s neck for more than nine minutes… and for three minutes after another officer informed Chauvin he could no longer detect Floyd’s pulse.

The answer to this problem is more scrutiny and more recordings of police officers performing their public duties. Pretty much everywhere in the nation this activity is considered protected First Amendment activity. But some legislators believe more opacity is the answer and are trying to criminalize the act of recording officers.

We’ve already covered one such effort. Arizona Republicans are trying to pass a bill that would make it illegal to record officers from less than eight feet away. Not discussed is how officers are supposed to accurately gauge this distance. Also not discussed is what happens if an officer closes the gap, turning a legal activity into a suddenly-illegal one.

Unfortunately, this isn’t an anomaly, as Trone Dowd reports for Vice News. More legislators are working hard to punch holes in this Constitutionally-protected act.

While Arizona is still grappling with passing its proposal, laws that could threaten the right to film the police have passed in other states. As of last April, Oklahoma has an “anti-doxing” law to prevent an officer’s personal information, which could include video badge numbers, patrol car license plates, and other identifiable information, from being released to the public.

So, you can film cops in Oklahoma. You just have to ensure you don’t release any information anyone else at the same incident can see clearly, like badge numbers and license plates. According to the bill’s author, identifying information simply isn’t protected. According to state Senator Dan Bullard, “there’s no reason to get up close to a vehicle or up to the officer.”

A similar “anti-doxing” provision is now up for debate in Florida — an expansion of the state’s already terrible anti-rioting law.

Florida state Rep. Juan Fernandez-Barquin, the Republican author of Florida’s HB1 anti-riot bill, had a similar motivation for the “cyber intimidation by publication” portion of his bill.

“​​‘Harass’ has a specific definition that requires the person’s actions to serve no legitimate purpose,” he told VICE News.“To violate the law, a person’s threat or harassment must put the victim in reasonable fear of bodily harm—not just annoy the person. This statute is narrowly tailored to prevent individuals with bad motives from ‘doxing’ someone.”

If you don’t like the public to identify you while you perform public duties, maybe you should exit the public sector. Plenty of other public servants work in offices or at desks that have their name and position on them. Vehicles on public streets have no expectation of privacy, which has allowed law enforcement agencies to collects billions of license plate/location records. Only someone interested in shielding officers from the consequences of their actions would argue the capturing of badge numbers and cop car license plates is dangerous and a potential violation of their (nonexistent) privacy.

This is obviously a whole new level of legislative bullshit. It has nothing to do with officer safety and everything to do with protecting them from accountability. The incidental capture of information these bills and laws say is off-limits will deter recordings and give vengeful cops and prosecutors an easy way to punish people for daring to aim cameras at cops.

Filed Under: 1st amendment, civil rights, recording police, transparency

Taxpayers Shell Out $900k To Cover For Cops Who Charged 64 People With Possessing 1 Oz. Of Weed

Legal Issues

from the law-enforcement-efficiency dept

You’ve presumably read the headline. Let’s take a look at how we got there.

On Dec. 31, 2017, Nija Guider finished her waitressing shift and headed to a friend’s 21st birthday party in Cartersville, Georgia. She had been at the party for less than an hour when, suddenly, the police arrived. Without a warrant or permission, they entered the house and detained everyone inside. Guider and more than 60 other guests’ wrists were zip-tied.

“Boom, we were all going to jail,” Guider, then 21, recalled.

Each guest was charged with possessing less than an ounce of marijuana that had been found in the home. Some spent days in jail, held under harsh conditions, Guider and other party guests allege. The district attorney’s office would eventually drop charges against everyone.

Dropping charges was the right thing to do but the right thing to do came long after the damage had been done. Most of those arrested were held over the weekend, denied access to legal representation, strip-searched, prevented from using the restroom or using their cell phones, and held in a 30-degree cell. Jail staff placed signs designating the overfilled holding cell as “THE PARTY CREW.” Some of those arrested were placed in solitary confinement after complaining about their treatment. No other drugs were recovered beyond the single ounce officers arrested 70 people over and charged 64 with possessing.

Here’s the law enforcement depiction of the incident:

At about 2 a.m. on Dec. 31, 2017, Cartersville Police Officer Joshua Coker was responding to a report of gunfire in the area when he drove down Cain Drive. Even with his car windows rolled up, he smelled marijuana, according to his testimony at a subsequent hearing.

He then saw four men in front of the home where Guider and others had gathered. Coker requested two other officers in the area join him.

The officers asked the men what was occurring inside; they explained it was a party. The officers then entered the home and announced everyone was being detained, according to police testimony. The majority of the guests were in their late teens or early 20s, according to booking reports.

“I had exigent circumstances to go inside and clear the residence … and make sure of no destruction of evidence prior to the Drug Task Force arriving,” testified Coker.

The “exigent circumstances” claimed by the officer was nothing more than the odor of marijuana, something he apparently detected while in a moving vehicle with its windows up. A warrant wasn’t obtained until two hours after officers had arrived, entered the residence, and detained the partygoers. The search — which produced a single ounce of marijuana and 64 criminal charges — was later deemed unconstitutional.

The party guests who sued police officers for their actions have been vindicated, as Liz Dye reports for Above the Law.

Forty-four of those arrested filed a federal civil rights lawsuit against the various law enforcement agencies responsible for this debacle. And this week the parties came to a settlement, with the plaintiffs splitting a $900,000 payout. 

Of course, it won’t be the cops paying for this. It’s the city of Cartersville (GA) paying for it. And the city won’t really be paying for this either. It will be the residents of Cartersville footing the bill and being asked to fund police misconduct with no assurance they won’t be asked to do this again. As is standard with far too many settled lawsuits against government employees, the money is tied to exonerative boilerplate.

Police admit no liability, with the Cartersville City Manager telling Fox 5 News that the defendants were simply seeking to avoid the cost of litigation and acknowledge no wrongdoing.

If no entity involved in the wrongdoing is made to feel any financial pain, the perpetrators are likely to re-offend. Say what you will about the evils of the carceral state, but at least that side of the justice system forces perps to pay for their crimes out of their own pockets. The other side of the justice system often expects nothing from offenders — something that should raise far more concerns about law enforcement recidivism, and result in government efforts to reduce it. Somehow, it never does.

Filed Under: 4th amendment, cartersville, civil rights, drug possession, georgia, joshua coker, probable cause