Daily Archives: May 20, 2021

In July 2016, Cleveland police officers stopped a 20-year-old Black man namedShase Howse. According to Howse, police slammed him to the ground, struck him twice in the back of his neck while he was trying to enter his own home, and took him to jail. Howse subsequently sued the police officers for using excessive force. But because of a judicially created doctrine called qualified immunity, the officers were not held accountable. In all too many cases like these, justice could have been served, if it were not for qualified immunity.

In 1967, the Supreme Courtcreatedfrom whole cloth the legal doctrine ofqualified immunity, and it has repeatedly expanded the defense ever since. As the doctrine currently exists, government officials, including police officers, cannot be held personally liable for their official misconduct unless they have violated a constitutional right that was clearly established at the time of the violation. In practice, this has become very difficult because plaintiffs are practically always required to identify prior case law involving nearly identical fact patterns. Even in cases in which the defendants actions were obviously unconstitutional, the plaintiff is often denied relief and the government official escapes accountability.

Unfortunately, thats exactly what happened in Howses case. In 2020, the U.S. Court of Appeals for the Sixth Circuit refused to consider whether the police violated Howses rights and held that the police officers were entitled to qualified immunity because there was no prior case exactly like Howses. And earlier this year, the U.S. Supreme Courtdeclinedto review this case, thereby letting the Sixth Circuits decision stand. This pattern repeats itself again and again, enabling the cycle of police violence to continue without accountability.

In March, the U.S. House of Representativespassedthe George Floyd Justice in Policing Act, which would eliminate qualified immunity as a defense for law enforcement officers, therefore allowing victims of the kind of police violence Howse and others have experienced to hold law enforcement officers accountable. While some argue that it's not fair to hold police officers liable if they didnt know that they violated the Constitution, in many cases, this concern is irrelevant because indemnification arrangements processes of compensating for injuries practically always shift financial liability away from those individual officers to their employers. Furthermore, constitutional doctrines that govern the use of force already give police leeway to make reasonable mistakes. Qualified immunity, however, shields officers from suit even when they trample on constitutional rights.

Even still, the Justice in Policing Act does not go far enough. While there are countless qualified immunity cases dealing with law enforcement officers, qualified immunity reaches further than the realm of policing. It applies to a wide variety of government action and has thwarted justice for constitutional violations that take place in schools, child protective contexts, state prisons, and more.

For example, an Arizona school nurse and administrative assistantsubjecteda 13-year-old girl to a strip search of her bra and underpants because they believed she had pain relief pills. This was an apparent violation of the girls Fourth Amendment rights; the girls mother sued, arguing school officials had no reason to believe the girl was hiding a pain reliever in her underpants. The Supreme Court held that the school officials could not be held accountable in a court of law for their misconduct because of the impossibly high threshold created by the Supreme Courts qualified immunity doctrine.

In another case, the Second Circuitgrantedqualified immunity to prison officials who had kept a pretrial detainee in solitary confinement for more than a year simply because the detainee asked a question about commissary access. While the Second Circuit held that the prison officials had violated the Constitution, the court granted qualified immunity, even though as the dissent observed, the prison officials actions were no different from loading [him] with chains and shackles and throwing him in a dungeon. Once again, because there wasnt a case with a similar enough fact pattern, justice was not delivered.

Qualified immunity cases like these, which do not involve police officers, are not covered by the Justice in Policing Act. Given that, several members of Congress led by Sen. Ed MarkeyEd MarkeyQualified immunity must be ended across the board Democrats ask Facebook to abandon 'Instagram for kids' plans Ron Johnson calls cyber attacks an 'existential' threat following Colonial Pipeline shutdown MORE (D-Mass.) and Rep. Ayanna PressleyAyanna PressleyOcasio-Cortez leading effort to block arms sale to Israel Qualified immunity must be ended across the board Dems offer bill to help single-parent families get expanded child tax credit MORE (D-Mass.) have proposed theEnding Qualified Immunity Act, which would eliminate qualified immunity across the board, not just in the context of policing.

Congress should make clear thatallgovernment officials should be held accountable when they violate peoples constitutional rights. The doctrine of qualified immunity must be ended completely.

Elizabeth Wydrais president ofConstitutional Accountability Center, a public interest law firm and think tank dedicated to promoting the progressive promise of the Constitutions text and history. She previously served as clerk at the U.S. Court of Appeals for the Ninth Circuit, Follow her on Twitter@ElizabethWydra.

View post:
Qualified immunity must be ended across the board | TheHill - The Hill

Last week I posted about a new podcast series I've started running. Now there is another.

Professor Dan Epps and I have just launched a new podcast on the Supreme Court, called Divided Argument. We describe it as "an unscheduled, unpredictable Supreme Court podcast." We won't make any promises to keep to a weekly schedule or cover every round of Supreme Court arguments or decisions, but we'll drop new episodes when we feel like we have something to say, and I suspect we'll have plenty to say over the next few weeks. And hopefully you'll find that we don't adhere to any particular party line.

I realize that not everybody likes to spend time listening to podcasts, which I understand. (Actually, I don't completely, but maybe they spend less time running errands or doing housework than I do.) But it gives me a different format for talking through lots of things about the Supreme Court.

Our first two episodes are a two-part discussion of the Supreme Court's "shadow docket," something I wrote about eight years ago in an article that was in turn drawn from many reflections from blogging here, and which has been in the news a lot lately:

Episode 1, Normal Procedural Regularity

Episode 2, Woke To The Trend

Our third episode discusses yesterday's Supreme Court decisions, especially the important habeas opinions in Edwards v. Vannoy, as well as the Fourth Amendment decision in Caniglia v. Strom:

Episode 3, Grandma's House of Vice

I hope you enjoy, and feel free to leave feedback in the comments or send it along to pod@dividedargument.com.

Read more:
My New Divided Argument Podcast Reason.com - Reason

This article is part of the Policing and Technology Project, a collaboration between Future Tense and the Tech, Law, & Security Program at American University Washington College of Law that examines the relationship between law enforcement, police reform, and technology.

Theres a man pacing back and forth in the grocery store parking lot, evidently agitated, shouting at the sky. Concerned, you ring 911. On the phone, a police dispatcher reassures you that someone is coming over to helpand so is a drone. Soon, you hear the telltale buzz of a drone overhead. Through its camera, someone is watching the agitated man in the parking lot, feeding information back to emergency services. They are also, intentionally or not, watching you, and everyone else who happens to wander into the drone cameras expansive field of view.

In the Southern California town of Chula Vista, drone flights like this fictional example happen dozens of times a day, launched to the scene almost every time someone calls 911. The Chula Vista Police Departments is the first of its kind, enabled by a special, sweeping 2018 regulatory waiver from the Federal Aviation Administration.

Drones were sent out more than once to situations described as fake COVIDtesting.

Most everywhere else in the U.S., drone pilots must secure hard-to-get waivers to fly beyond visual line of sight or over people. But in 2018, the Chula Vista Police Department procured a special waiver connected to the Trump-era UAS, or Unmanned Aerial Systems, Integration Pilot Program run by the FAA, which aimed to evaluate how drones can become more involved in American life. That waiver permitted the department to create its Drone as First Responder program, which allows police to fly over the entire city using small multirotor drones that are launched and piloted largely from central headquarters. By August 2019, the CVPD was permitted to use drones over 33 percent of the citys area, and in March 2021, the FAA approved an expansion of the CVPDs range to cover the entirety of the city. Now, when a call comes in to 911, the dispatcher decides whether to send a drone. The answer is usually yes, in which case the drone launches from the department HQ and flies to the scene of the incident at an altitude of about 300 to 400 feet. All along the way, it records video through a zoom camera lens, streaming footage back to HQ and to responding officers mobile devices. The footage is stored in Chula Vistas evidence.com data repository, where detectives and police can access it, as well as the district attorneys office. (The department has denied public access to the footage, claiming an exception under the California Public Records Act, but an April lawsuit filed by a San Diego newspaper is challenging this claim). According to the police force, as of March, the drones have flown more than 5,400 missions and played a role in more than 650 arrests.

But what, exactly, are those drones looking at during all these flights? In a laudable act of transparency, the Chula Vista Police Department posts detailed records online of where their drones flyand why. The data offers a poignant snapshot of the human experience, captured through the filters of 911 calls and the blinking red lens of a police drones camera. Many of the flights involve clearly dangerous scenarios: weapon threats, assaults, fires. Others are less so: a person sleeping on the sidewalk, a water leak, a report of someone drunk in public. Some are downright weird: Drones were sent out more than once to situations described as fake COVID testing.

Then, there are tragedies. Chula Vistas drones fly regularly when police conduct welfare checks and respond to reports of domestic violence. Drones fly to the scenes of child endangerment incidents and attempted suicides, and overdoses, and to scenarios described as person down or subject lying on the sidewalk, unknown if breathing/conscious. In February, the drone flew to investigate reports of a body near a taco shop. Some calls are ambiguous, leaving open room to speculate about what they might mean: suspicious circumstances, suspicious person, unknown problem, and subjects causing disturbance Finally, theres a constant drumbeat of mental subject flights and related terms: a woman walking down the freeway, a crazed person dancing in traffic, a naked transient.

Do all these very human scenarios really warrant surveillance from the sky? Im skeptical.

Chula Vistas willingness to use drones for anything and everything is a major departure from the way police have been talking about, and using, drones in the past few years. For a while, police have largely justified drones by pointing to efficiency and officer safety. These arguments and the media coverage that accompanies them tend to imply drones will be used mostly for extreme and dangerous scenarios.

In the wake of intense new scrutiny around police violence, policeChula Vista foremost among themare shifting to a new rationale for using drones: deescalation. They argue that sending a drone to the scene of an incident instead of an armed human being is a way for police to get a sense of whats going on from a detached and (if I may) Gods-eye-view perspective, reducing risk to both police and the public. Per a Chula Vista police spokesperson, 25 percent of the time the drone shows up before (human) police do, allowing them to use the drone imagery to assess whether a scenario is truly serious enough to warrant in-person response, giving everyone a moment to breath and take stock of the situation before armed officers appear on the scene. Its a compelling argument. But it fails to fully consider the downsides of a world where someone in crisis may see a drone coming to the scene before they see a person.

According to a Chula Vista spokesperson, the department works with the County of San Diego to send specially trained Psychiatric Emergency Response Team members to the scene when theyre called out to a mental health crisis, a system that can work in conjunction with the drones. The spokesperson also told me that to the best of their knowledge, the police havent encountered scenarios where the drone appeared to agitate or frighten someone. But the PERT team cant respond to every crisis.

You cant build a relationship through a buzzing blinking robot on your doorstep like you could with a person, says Eric Tars, the legal director of the National Homelessness Law Center. Then youve got the subset of the population with mental health crises that involve feelings of distrust for authority and paranoia. If youve got drones constantly buzzing overhead you dont have to be a conspiracy theorist to feel like the government is constantly watching you. Because they are.

While Chula Vistas police department says that it has done extensive community outreach around the drone program, Pedro Rios, a local resident and the director of the American Friends Service Committee U.S./Mexico Border Program, isnt convinced. From my experience, there doesnt seem to be enough public awareness and outreach to ensure that the public knows to what extent the drones are being used and for what purpose, and that they understand the safeguards that are in place so that the drone technology is actually used for proper law enforcement purposes and isnt susceptible to being abused or misused by anyone involved in the program, says Rios.

Rios has also written about how the Chula Vista police have a worrisome track record when it comes to securing the data they collect with other technologies. In early 2021, protesters demanded answers after it came to light that the departments automatic license-plate readers were sharing data with ICE and other federal agencies via the Vigilant Solutions network. While Chula Vistas police chief claimed that the data sharing was an accident, it doesnt inspire confidence in the departments ability to understand whats going on with its data.

In this, Chula Vista police have plenty of company, considering the sheer volume of reports of police across the country mishandling and misinterpretingintentionally or unintentionallythe sensitive data that they collect, often in close collaboration with private vendors. Adding huge quantities of drone data to the mix, collected multiple times a day, raises worrisome questions about U.S. police departments ability to truly understand who can access their data and for what purposes.

Perhaps the most big-picture frightening aspect of the Chula Vista drone program is that while its not quite an all-seeing system of persistent surveillance, its certainly getting there, as its always-recording drones crisscross the citys skies dozens of times a day, collecting data that police can then review at a later date. Its easy to imagine how the mere visual presence of the drone could create a major chilling effect on people in the community below, a psychological burden that will likely fall heaviest on more vulnerable people, like the unhoused, people with mental illnesses, and the considerable Southern California population of people who are undocumented or who have undocumented family.

For generations, the Fourth Amendment was not the biggest limit on surveillance, it was economics. Police had to be somewhat conservative with invasive surveillance tools because they were so expensive, says Albert Fox Cahn, founder of the Surveillance Technology Oversight Project (S.T.O.P) But as these tools get cheaper and cheaper, Fourth Amendment jurisprudence fails to keep up, and you end up with a cheap and affordable surveillance state where the tools that are being used are massively disproportionate to the harms theyre combating.

This cheapness has led the police down a very familiar 21st-century path of data overcollection, in which people and organizations reason that using surveillance tech to squirrel away vast quantities of dataeven if they dont need it right nowbeats not collecting it at all. According to police technology expert Andrew Guthrie Ferguson, a law professor at American Universitys law school, its a case where police are of the mindset that more info is better, and that information will outweigh any sort of concerns the community might have. Theyre only looking at it from the frame of police and police need, and not from the larger frame of What are the impacts of having drones fly out for every 911 or 311 call?

In essence, Chula Vista is running a yearslong technological and social experiment, empowered by the federal government, on how drones intersect with policing and with people. From the point of view of the police, the program has been an enormous success, one that theyre eager to export to others across the country and across the world (so eager that the department has been accused of conflict-of-interest issues after former officers jumped ship to private drone companies). Sometimes it feels more than a little like police drone advocates are asking us to make a decidedly forced choice: a sky full of surveillance drones or more police shootings. You pick.

If we want to avoid living in a world of just-in-case police drone surveillance, then well have to make it less cheap and less easy for police to use them.

Some people, like Hamid Khan of the Stop LAPD Spying Coalition, believe that a complete ban on police drones is the best way forward: We dont really believe in regulating or creating policies because that continues to expand their use, he says, pointing out that at the time of their introduction, police helicopters and SWAT teams were also supposed to be rarely used measures reserved exclusively for extreme situationsa distinction that swiftly broke down.

Cahn also prefers an outright ban to half measures, but he suggests one alternate strategy might be mandating that drones can be used only if someone at the very top of the police organization signs off on the matter, along the lines of how wire taps are authorized. If its something where you have to bother the chief of police, then thats something thats more a check. Anything that increases the cost in dollar and cents or time is going to be helpful in limiting these abuses, he says.

Others suggest more reform-based measures, along the lines of the ACLUs Community Control Over Police Surveillance effort, which supports the creation of community-based review boards that give people a say in how police use technology. This might take the form, as Ferguson suggests, of giving members of the community the authority to review the data to decide if a situation merits a police response or not, giving them more control over who holds the information itself.

Drones may have legitimate uses in policing. But we shouldnt accept that the constant presence of surveillance technology, from drones to facial-recognition cameras to license plate readers, is the price that our communities must pay to avoid police violence. If police want to use drones more widely than they already are, then we should demand that they truly understand the risks that fly alongside them first.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

Go here to see the original:
The California City That Sends a Drone Almost Every Time Police Are Dispatched on a 911 Call - Slate