Daily Archives: August 2, 2022

The facade of the Eighth Circuit

A special education teacher in South Dakota has been denied qualified immunity for her alleged mistreatment of disabled students, a federal appeals court in St. Louis, Missouri found on Monday.

In the case stylized as Doe v. Aberdeen School District, the U.S. Court of Appeals for the Eighth Circuit ruled teacher Carrie Weisenburger can be sued for allegedly violating students Fourth Amendment rights by using forcible restraint and seclusion as punishment.

In 2018, parents of five special education students sued the school district, Weisenburger and several other named defendants for Fourth Amendment, 14th Amendment, federal statutory and state law violations. In an order affirming and reversing the district court, the appeals court limited the lawsuit going forward to three students unlawful Fourth Amendment seizure claims against Weisenburger.

The three-judge panel notes that the facts remain disputed in the highly contentious case but are recounted in the opinion in the light most favorable to the students, in line with circuit precedent.

The locus of the controversy has to do with a series of alleged physical touching and constraints by the teacher and her aides.

Autistic girl A.A. alleges that she was violated by Weisenburgers inappropriate use of the May Overby schools so-called little room.

The court describes the little room as a 1010 space, with one window on the door, situated in a different part of the school than the normal classroom, adorned with a small table, a whiteboard, and cupboards.

The opinion then details how the little room was typically used:

On a regular basis, Weisenburger and her two teaching aides physically picked up and carried studentswho sometimes resisted by kicking and screamingfrom class to the little room. Once there, students had to demonstrate calm behavior and complete several task baskets unrelated to whatever disciplinary infraction led to their visit before they were permitted to leave. Either Weisenburger or an aide would wait outside and hold the door shut until they gained compliance. Students sat in the little room for up to hours at a time, with a few instances extending to as long as an entire afternoon.

A.A. was frequently forced to go inside the little room. Citing a frowny face journal shown to the girls mother, the court recounts that she was place in the little room 274 times between October 26, 2015 and March 1, 2016 and that such punishments occurred for rule breaking as minor as incorrectly hanging up her coat and pushing a cabinet.

If necessary, staff can take [A.A.] up to the Little Room, the teachers tailored behavior plans for the girl says, so she is not a disruption to other students and she is not getting attention from others.

The court goes on to say A.A.s mother acknowledged her daughter would sometimes be placed in the little room but alleges she was told the space would be for one-on-one instruction rather than discipline.

Autistic and ADHD-diagnosed boy B.B., who the court says has a propensity for repeating movie quotes, alleges that he was repeatedly dragged to gym class by Weisenburger despite his protests and [that his teacher] once lifted him under his armpits to force his participation in a game. Additionally, he was often secluded in a so-called calm-down corner that was cordoned off and secured with dividers and staff to ensure students did not leave the area.

The court relays a harrowing incident later caught on video.

In another incident, B.B. refused to swim when the class went to the pool. Weisenburger and her aides grabbed B.B.s arms and pushed him into the water, the opinion says. As B.B. frantically tried to climb out, an aide pried his fingers from the edge and shoved him back into deeper water.

The second boy and third student whose claims have survived the lengthy legal process is identified as C.C., who has been diagnosed with moderate to severe inner ear hearing loss. Two particularly upsetting specific incidents form the basis of the second boys claims.

First, when C.C. refused to change for swimming, Weisenburger pinned him on the ground, forcibly stripped his clothes off, and put on his bathing suit, the court explains. C.C. screamed so loudly that a concerned adult walked into the locker room to check on whoever had yelled. Second, staff purportedly forced him to ride a horse while he was kicking and screaming. The teachers later learned that C.C. had been in pain from blocked ear tubes at the time.

Some of the allegations involving C.C. were first relayed to school officials by the boys sign language interpreter. An investigation by Special Education Director Camille Kaul deemed the accusations unfounded, the appellate court noted. Less than a year later, however, complaints surfaced again from two school employees.

The court cites several additional complaints:

Multiple generalized claims of physical and verbal abuse appear in the recordas well. Weisenburger would grab students by the chin and tell them to look at me when Im talking to you. And staff handled children roughly, grabbing arms and then jerking them around, which was usually accompanied by chasing the child. Weisenburger frequently made demeaning remarks about students and their parents. In response to an aide addressing a student, she said while laughing, Oh you are so cute talking to them like they understand you. She commented on the smell of one student who had toileting issues and would check the girls underwear in front of the whole class while referring to her parents as drug users and losers. There was a lot of yelling and shouting at the kids.

In January 2016, Kaul and May Overby Principal Michael Neubert placed Weisenburger on an assistance plan due to support staff not knowing what to do to address inappropriate behaviors.

Less than three months later, A.A.s mother witnessed Weisenburger and her aides push B.B. into the poo, the court goes on to note. She sent a cell phone video of the incident to Kaul.

After that, Kaul penned and sent a memo to the teacher, sketching out a final written warning concerning the improper use of restraints with students. Shortly after that, Weisenburger and her aides quit.

In finding for the students, in part, and for Weisenburger, in part, the court differentiated between some of the behavior alleged in the record.

We believe secluding A.A. in the little room and B.B. in the calm-down corner constituted seizures, the opinion says. Weisenburger and her aides picked up and carried A.A. into the little room, held the door shut, and forbade her from leaving until she completed tasks unrelated to any disciplinary violation. Staff also shuttered B.B. in the calm-down corner with physical barriers and prevented him from leaving.

Grabbing B.B. to push him into the swimming pool and pinning C.C. down to strip his clothes off also rose to the level of seizures, the opinion continues while noting that placing C.C. on the horse and carrying B.B. to gym class did not rise to the level of a constitutional violation.

The appeals court ultimately rejected the denial of qualified immunity for the horse and carrying allegations as well as for the generalized grievances about her behavior cited in the block quote above.

In line with Fourth Amendment jurisprudence, the court went on to describe the teachers behavior in several respects as unreasonable.

Weisenburger substantially departed from accepted standards, the opinion reads. She habitually secluded A.A. and B.B. for minor disciplinary infractions with no evidence that they posed imminent risk of harm to themselves or anyone else. And she restrained B.B. and C.C. to coerce compliance with routine directives to get in a pool and to change clothes.

Weisenburger, in arguing for application of the U.S. Supreme Court created doctrine of qualified immunity, argued that the students rights were not clearly established.

The panel disagreed, determining, rather, that her behavior substantially departed from accepted principles when restraining and secluding the students [and] violated clearly established federal rights because other cases where teachers use a harsher hand involved students showing severe and well-documented behavioral problems.

None of the children in the present case, 3rd and 4th graders at the time they were under Weisenburgers tutelage and control, presented an imminent threat of harm, the court concluded.

[image via U.S. Court of Appeals for the Eighth Circuit]

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Appeals Court Rejects Qualified Immunity for Special Ed Teacher Who Allegedly Forcibly Stripped Away Boys Clothes, Pushed Another Boy into a Pool -...

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2022-07-29 16:47

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July 29, 2022

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INDIANAPOLIS Indiana senators voted 26-20 on Saturday to advance a bill that bans nearly all abortions except in cases of rape, incest or when the parents life is at risk. Those exceptions had to survive a drawn-out challenge during the amendment process.

Days prior, the senators had convened to consider amendments to a bill that no one was happy with when it passed out of the Committee on Rules and Legislative Procedure on Tuesday. Republicans and Democrats alike critized the proposed legislation, some arguing it didnt go far enough to restrict abortion and others arguing it went too far.

The heated debate during the committee review and the amendment process demonstrated strong divisions in the Republican Party and the wide range of opinion over how far abortion restrictions should go.

The Republicans hoped that bringing the draft to the full Senate would help clarify the legislation, close any loopholes and satisfy their constituents. More than 60 members of the public testified for hours on Monday to Tuesday to voice their critiques, leading to frustration from the bills author, Sen. Sue Glick.

Am I happy with the bill? Not exactly, Glick said at the time. Nor was I happy when it was drafted. Well bring it to the floor so we can discuss it in detail, and if its the will of the body to kill the bill on the floor then so be it.

About half of those who testified, including all of the anti-abortion organizations that were represented, were against the bill because they felt it didnt go far enough to restrict abortions and did not include an adequate enforcement measure. Many medical professionals argued that the language was too vague, making it hard for them to both provide care and avoid criminal charges. Others who testified in opposition to the bill said that any infringement on a persons ability to make their own health care decisions was a government overreach.

Sen. Ed Charbonneau, a Republican on the committee, said he hoped the full Senate and any amendments would make a bad bill less bad.

The full Senate convened on Thursday to consider 62 filed amendments, the highest number several of the lawmakers said they had seen for one bill. The session was delayed by nearly four hours as Republicans met behind closed doors. Then, for more than seven hours, Democrat and Republican senators alike discussed, argued and occasionally called for more decorum when the conversation became emotional and personal.

One amendment, however, took center stage: one that would remove the rape and incest exceptions and only allow abortions that threatened the life of the pregnant person.

Exceptions equal death, said Republican Sen. Michael Young, who introduced the amendment.

More than two and a half hours of tearful debate, questioning and statements revealed that Democrats were united to keep the rape and incest exceptions in the abortion ban, while Republicans were divided down the middle.

This is the most important issue in our lifetime, Young said in his closing remarks before the vote. And whatever we decide here tonight, we will be judged by what we did. We have to do the right thing.

The amendment failed to pass with an 18-28 vote.

Though 62 amendments were filed and dozens were discussed on Thursday, nearly 30 were rejected and only four amendments were passed. Several amendments had already been passed in committee on Tuesday, including added criminal charges to doctors who illegally perform abortions, an eight-week limit on when victims of rape could obtain an abortion (12 weeks for minors) and a requirement that victims of rape sign an affidavit before terminating their pregnancies.

Of those passed on Thursday, one gave the attorney general authority to enforce a law if a prosecuting attorney is categorically refusing to do so. Republican Sen. Aaron Freeman introduced the amendment, citing the Marion County Prosecutor Ryan Mears, a Democrat, who said in June that his office would not prosecute women or doctors who sought or performed abortions.

The prosecutors office in the state of Indiana is to prosecute all crimes, Freeman said. Their job is not to pick and choose which laws theyre going to enforce. If they want to do that, I would recommend they run for state legislature and begin passing laws that they want to either have or not.

Senate Minority Leader Sen. Greg Taylor, a Democrat, said that the body had already voted down this measure the year before. Taylor said passing it in a special session was troubling to him, particularly given the current attorney general is currently facing a lawsuit filed by the doctor who provided abortion for the 10-year-old girl from Ohio.

That is flat out wrong, Taylor said, adding that it failed to pass last session because prosecutors spoke out against it. [Freemans] going to take prosecutorial discretion away by saying the attorney general at any time has concurrent jurisdiction over those prosecutors. Thats bad. Shame on us.

Another added amendment, introduced by Democratic Sen. Timothy Lanane, tweaked the requirement for victims of incest: if the victim is a minor, there is no longer a requirement to obtain consent from a parent or guardian. A third amendment, introduced by Democrat Sen. Jean Breaux, authorized the statewide maternal mortality review committee shall study how changes in the states abortion laws affect maternal mortality. And the fourth amendment, introduced by Republican Sen. Liz Brown, requires that the affidavit signed by rape victims is notarized.

Amendments that did not pass include: a requirement that pregnancy resource centers to be licensed; the expansion of telehealth services to abortion medication; the creation of a review panel to deal with complaints against physicians that would then direct the attorney generals office to enforce; one that would ensure access to housing for pregnant and post-partum women with a child under one; a requirement that perpetrators of rape pay child support until their child turns 18; and another that would put the issue of abortion on the ballot for voters to decide its legality.

The bill is expected to head to the House next week. According to Indiana code, the special session has to conclude by August 14.

Original post:
How Indianas abortion ban maintained rape and incest exceptions - The 19th*

Commonwealths Attorney Parisa Dehghani-Tafti at Arlington Democrats election watch party in November 2019, when she was elected to office (Staff photo by Jay Westcott)

(Updated at 4:50 p.m.) The Arlington police union is pushing back on accusations that officers mishandled the search of a suspect who is now linked to a double murder.

In a rare public rebuke of Arlingtons top prosecutor, the Arlington Coalition of Police this afternoon sent out a press release accusing Commonwealths Attorney Parisa Dehghani-Tafti of ineptitude and deflection of blame.

The barbs stem from a 2020 case against Francis Rose, who is currently in jail in Alexandria after a series of break-ins at an apartment complex there reportedly led to two construction workers, a stepfather and stepson described as innocent bystanders, each being fatally shot in the head.

As ARLnow exclusively reported last week, Rose was released from Arlington County jail this past February after the 2020 case against him fell apart when a judge ruled that evidence was obtained during an unconstitutional search of his bag. With the gun and the drugs allegedly found in Roses bag disallowed as evidence, prosecutors dropped the charges against him, including possession of a firearm by a convicted felon.

Rose spent nearly two years in jail awaiting trial before being freed when charges were dropped.

As court records show, our office attempted to proceed on those charges, but during a suppression hearing, a judge ruled that the police had performed an unconstitutional search and, as the law required, suppressed the evidence in the case, Dehghani-Tafti told ARLnow last week. Obviously, we could not prove a case without the evidence, and therefore dismissed it.

My heart breaks for the families and loved ones of the people killed this weekend, she added.

Dehghani-Tafti subsequently said on Twitter, in response to criticism from the Virginia Republican party, that shes not casting blame on anyone for the case falling apart.

The Arlington Coalition of Police, however, suggests that Dehghani-Tafti should be taking more of the blame, accusing her of attempting to throw police officers under the bus for a lost [evidence] suppression hearing.

The full statement from the union is below.

Commonwealth Attorney Parisa Dehghani-Taftis recent statements regarding the suppression hearing for Francis Rose, intentionally worded to cast fault on the officers involved, were based on self-preservation and deflection of blame. Unlike the Commonwealth Attorney, the Arlington Coalition of Police ordered the transcript of the hearing to have a full understanding of what happened before making public comment.

Prior to the hearing, the Assistant Commonwealth Attorney handling the case believed there would be no problem regarding the suppression and believed the officers actions were lawful. At the time of the suppression hearing, Mr. Rose had spent approximately two years in jail awaiting trial. The Commonwealth Attorney opposed giving him bond on multiple occasions. If the Commonwealth Attorney believed the actions of the officers were unlawful, opposing bond and holding Mr. Rose for two years would be unethical.

Following the suppression decision, a competent Commonwealth Attorney would have either appealed the decision if they still believed in the case, or provided training to the police department to make sure similar issues wouldnt arise in the future. Neither option was taken by the Commonwealth Attorney, showing her ineptitude for the position. Instead, Ms. Dehghani-Tafti did nothing regarding the case until it became news and she needed to deflect blame.

Successful prosecutions rely on a collaborative effort between police officers and the Commonwealth Attorneys Office. The CWAs Office must understand each case, and should communicate with all witnesses, including police officers, to properly prepare for trial. The CWAs Office, since Ms. Dehghani-Taftis election, has suffered incredible turnover of experienced attorneys through the initial round of firings and continuing resignations. Those experienced attorneys are being replaced with new, inexperienced staff. Unfortunately for this case, the high turnover rate in the CWA office, combined with the lack of experience in both trials and suppression hearings, made them no match for a veteran defense attorney with decades of real courtroom experience.

The Arlington County Police Department is composed of highly educated officers who work hard each day to take dangerous criminals off the street. ACOP stands behind the actions of the officers that lead to the arrest of Mr. Rose.

Our thoughts remain with the families and friends of the Alexandria victims related to this incident. Hopefully we (yes, we collectively) can do better in the future to avoid another tragedy like this one.

Dehghani-Tafti called the statement disappointing and a political attack on our office when I myself did not use the occasion to denigrate police work.

More from Dehghani-Taftis response to ARLnow:

It is shocking for ACOPS to accuse our office of a breach of ethics because we asked for Mr. Rose to be held pending trial. We did so because we believed he posed a danger and because we believed the case was worth litigating; there was nothing unethical about the Commonwealth litigating the case until Mr. Rose won his motion. The motion was ably argued by a prosecutor with nearly a decade of experience, more than five of which have been in this Office, and a record of successfully defending police work in prior cases involving constitutional and evidentiary challenges. It was decided by a well-respected judge with 29 years of experience on the bench. Those are the facts. As professionals, we recognize once the issues are fairly litigated, our feelings dont matter.

The ACOPS surely is aware our office regularly trains the ACPD on constitutional issues (including Fourth Amendment), on testifying, and legislative updates and we have always been available for consultation as a proactive matter and in the moment. We will continue to do so.

A court transcript of the hearing that resulted in evidence being suppressed and the charges being dropped, provided to ARLnow by ACOP, shows an assistant commonwealths attorney arguing that evidence found in Roses bag should be allowed.

Again, I agree that if he had been standing on the side of the road and the police wanted to search his bag, they would have to have probable cause to search him and the bag by extension of his person, the prosecutor argued. But just because the bag is on his person in the car, doesnt change the fact that that is an item that is then subject to the probable cause search for the marijuana based upon the odor of marijuana.

In the end, the judge agreed with the defense that because Rose was wearing that bag, was a passenger in the car and did not himself smell of marijuana, the search of the bag was unconstitutional.

Despite criticism from local Republicans and others about Dehghani-Taftis progressive prosecutorial philosophy, the police association has up until now been silent about its views on her.

COPS hasnt spoken about the CA until now, the organizations president, Randall Mason, said in response to questions from ARLnow. Its our view that we should be working together in our efforts for criminal justice. We havent been on board with all the things that the CA has done. However, attacking the second member of a two party collaboration is both destructive to the relationship and in poor taste.

We are releasing this statement now because the CA intentionally tried to direct blame on the police in this case when there is plenty to blame on her office, Mason added.

Mason declined to discuss other officer concerns about Dehghani-Taftis office, and said the organization respects Arlington County Circuit Court Chief Judge William Newmans ruling based on the arguments and evidence that he had in from of him.

However, he said the police union believes this was a good search that was poorly handled at suppression.

The officers could have been more prepared to testify, Mason said. Historically, CAs would go over a motion to suppress with the officer ahead of time and discuss anticipated issues and testimony. That did not occur in this case.

Rose, meanwhile, remains in jail in Alexandria on burglary charges, but has not yet been charged with the murders as of this afternoon.

At this juncture, all I can say is that the police department continues to actively investigate the matter, Alexandria Commonwealths Attorney Bryan Porter told our sister site, ALXnow.

Rose is also facing an armed burglary charge from a June incident in Alexandria. A warrant was issued for his arrest prior to the murders but police were unable to locate him, NBC 4 previously reported.

Original post:
Police, prosecutor trade accusations after suspect in botched case is accused of murder - ARLnow

The Detroit City Council offered a settlement Tuesday of $1,035,000 to Detroit Will Breathe in an effort to end their twoyearslong lawsuit against the city of Detroit.

Detroit Will Breathe, the group that led the Detroit Black Lives Matter protests in 2020 after George Floyd's murderat the hands of a Minneapolis police officer, filed a federal lawsuit against the city, claiming police used excessive force against protestersand violated their First and Fourth Amendment rights.

Among the allegations were the use of tear gas, pepper spray, rubber bullets, sound cannons, flash grenadesand chokeholds, and mass arrests without probable cause.

In September2020, Detroit Will Breathe secured a temporary restraining order on the police's use of force against protesters. The restraining order only lasted two weeks, and prevented police from using striking weapons, sound cannonsand chokeholds, and arresting without probable cause.

The City Council also made offers of judgment on four other lawsuits: $10,000 on Marlon Frazier v. City of Detroit, et al; $10,000 on Timothy Hall v. Blake Navarre, et al; $60,000 on Emma Howland-Bolton, et al v. City of Detroit, et al; and $150,000 on Nadia Rohr, et al v. City of Detroit, et al.

More:Detroit City Council approves $1.7 million contract to demolish portion of Packard Plant

More:Detroit man convicted of sex trafficking, child pornography at house of horrors

These offers are for damages only, and if they are accepted, the city would also pay for any attorney fees the plaintiffs' incurred until theoffer was made.

Continue reading here:
City offers to settle Detroit Will Breathe lawsuit for $1 million - Detroit Free Press

A recentNew York Times story about armed teachers casts doubt on the adequacy of the training they receive with a misleading comparison to the hours required to become a police officer. The real scandal here is not how little training is mandated for teachers who want to carry handguns in school but how little training police officers receive for a job that extends far beyond handling firearms.

Under a new Ohio program, teachers who volunteer to carry guns as a safeguard against mass shooters have to complete 24 hours of firearms training. "The law in Ohio has been especially contentious because it requires no more than 24 hours of training, along with eight hours of recertification annually," the Timessays.

Although the training for teachers is more extensive than Ohio's requirements for armed security guards, the Fraternal Order of Police of Ohio thinks it is plainly inadequate. "That, to us, is just outrageous," Michael Weinman, the union's director of government affairs, tells theTimes, which adds: "By comparison, police officers in the state undergo more than 700 hours of training."

That is hardly an apples-to-apples comparison, as the Times more or less concedes in the next paragraph. Supporters of the new law, it notes, "say 24 hours is enough because while police training includes everything from traffic tickets to legal matters, school employees tightly focus on firearm proficiency and active shooter response." If anything is "outrageous" here, it's how easily someone can qualify as an armed agent of the state empowered to detain, search, and arrest people as well as use deadly force against them.

As the CincinnatiEnquirer noted in 2020, Ohio requires much less training for police officers than it does for "the person who cuts your hair." Basic training for cops involves 737 hours of training, compared to "1,500 forlicensed cosmetologists and 1,800 for barbers."

Some cities in Ohio go beyond the state's minimum requirements. "Cincinnati police run a 28-week training program," the Enquirer noted, while "Columbus and Cleveland police both offer 1,100 hours of training to recruits"still less than you need to accept money for a haircut. The paper added that "the level of training often depends on a department's finances, which vary dramatically across the state."

Police training is actually more rigorous in Ohio than it is in most states. According to the Institute for Criminal Justice Training Reform (ICJTR), the national average for basic training is 652 hours. State minimums range from zero hours in Hawaii to 1,321 in Connecticut. In Hawaii, the ICJTR notes, "agencies such as the Honolulu Police Department may provide training to some [officers], but not all attend." And while Ohio does not allow cops to start working before completing basic training, 37 states do.

Insider notes that "the average US police department requires fewer hours of training than what it takes to become a barber or a plumber." According to a 2017 Institute for Justice report, the average training requirement for barbers was about 1,300 hours. To qualify as a master plumber, you have to complete trade school and up to five years of apprenticeship.

The Institute for Justice reported that three states and the District of Columbia required licenses for interior designers. In those jurisdictions, it noted, "aspiring designers must pass a national exam, pay an average of $364 in fees and devote an average of almost 2,200 dayssix yearsto a combination of education and apprenticeship before they can begin work." In Louisiana, which requires that interior designers have 2,190 days of education and experience, someone with a high school diploma can work as a police officer for up to 12 months even before completing basic training, which entails a minimum of 450 hours.

In Texas, the report noted, "eyebrow threaders with 20 years of experience are being told they must stop working and spend between $7,000 and $22,000 and 750 hours in a government-approved beauty school that does not even teach threading." But if you want to wear a badge and carry a gun as a law enforcement officer in Texas, you need just 696 hours of training and can work up to a year before completing it.

In addition to firearms training, would-be police officers are supposed to learn "everything from traffic tickets to legal matters," as the Times puts it. Those "legal matters" include complying with constitutional constraints on the use of force. But as UCLA law professor Joanna Schwartz points out, that aspect of police training typically provides nothing more than a brief overview of major Supreme Court cases.

While "police departments regularly inform their officers about watershed decisions," Schwartz notes in a 2021 University of Chicago Law Review article, "officers are not regularly or reliably informed about court decisions interpreting those decisions in different factual scenariosthe very types of decisions that are necessary to clearly establish the law about the constitutionality of uses of force." Yet the doctrine of qualified immunity, which shields officers from civil liability for alleged misconduct that did not violate "clearly established" law, is based on the premise that officers can reasonably be expected to know the relevant cases, giving them fair warning about when they are overstepping constitutional limits. Schwartz calls that assumption "qualified immunity's boldest lie."

Even when officers should understand that a particular use of force is unlawful, they do not necessarily act accordingly, as dramatically illustrated by the 2020 death of George Floyd in Minneapolis. In federal court last week, J. Alexander Kueng and Tou Thao, two of three officers who failed to stop their colleague, Derek Chauvin, from killing Floyd, were sentenced to three years and three and a half years, respectively, for violating Floyd's constitutional rights. The week before, the third officer, ThomasLane, received a federal sentence of two and a half years. Lane had previously pleaded guilty to a state charge of aiding and abetting manslaughter, for which he has not yet been sentenced. Kueng and Thao are scheduled to be tried on similar charges in January.

Active Bystandership for Law Enforcement (ABLE), a training program that was established in 2021, aims to avoid situations like this by encouraging officers to intervene when a colleague violates someone's rights or seems about to do so. ABLE, which was developed by Georgetown University's Center for Innovations in Community Safety, grew out of a New Orleans program known as EPIC (Ethical Policing Is Courageous) that was launched in 2014 under the guidance of Ervin Staub, an emeritus professor of psychology at the University of Massachusetts in Amherst. It is based on insightsgained fromresearchinto why people either intervene or fail to intervene in emergency situations.

ABLE entails eight hours of training conducted by officers who have completed a week-long certification program. But this is a supplement to standard training that so far has been adopted by just 265 or so of the country's 18,000 police agencies. Is it too much to expect that police departments add another eight hours to basic training, which would increase the average from 652 hours to 660, so that officers are less likely to look the other way when a colleague needlessly escalates an encounter or uses unlawful force?

Additional training is by no means a silver bullet for police abuse. It seems doubtful that any amount of instruction would have changed Chauvin's behavior. And when cops lie to convict defendants or willfully misuse their authority to punish people who irk them, the problem is not that they were never taught they should not do that.

Still, "active bystandership" training might have affected how Kueng, Thao, and Lane responded when Chauvin kneeled on Floyd's neck for nine and a half minutes. It was clear that Lane, a rookie who twice suggested that Floyd be moved from his stomach to a position in which it would have been easier for him to breathe, remembered what he had been taught about the dangers of "positional asphyxia." If his training had included more emphasis on the duty to intervene and had better equipped him to do so, he might have been more insistent, and Floyd might still be alive.

Even basic information about techniques commonly used by police might help prevent Fourth Amendment violations. A couple of years ago, the Johnson County, Kansas, Sheriff's Office reached a $150,000 settlement with a couple whose home was searched in 2012 based on a drug field test that misidentified tea in their trash as marijuana. Neither the deputies nor their boss, then-Sheriff Frank Denning, seemed to be aware that such tests arenotoriously unreliable,notwithstanding a warning label that said their results "are only presumptive in nature" and should be confirmed by laboratory analysis. A little instruction on how often field tests finger innocent people could help reduce false arrests, not to mention thousands of guilty pleas based on a technology that is not accurate enough to be used in court.

You probably can think of additional examples. The notion that a few months of training (if that) is enough to prepare people for a job that presents myriad opportunities to wrongfully detain, interrogate, search, arrest, assault, and kill people is risible. Americans would be safer if states took those risks more seriously than the danger of a bad haircut.

More:
Comparing Training Hours of Armed Teachers and Police Is Misleading - Reason

Janine Jackson interviewed Free Presss Nora Benavidez about post-Roe data privacy on the July 22, 2022, episodeofCounterSpin. This is a lightly edited transcript.

CounterSpin_Show220722Benavidez.mp3

Janine Jackson: The anticipatedbut still devastatingDobbs decision aims to take reproductive health care out of the hands of countless people, and its already having that effect. But one might think as terrible as that is, at least a person can go online to learn how to get to the nearest abortion access point, or order pills from Canada.

But the same social media platforms that constantly tell us theyre about building community around and through demographic and geographic barriers are not showing up hard for those values when it comes to a free flow of information on abortion access. What are they doing and what might they do?

Were joined now by Nora Benavidez, civil rights attorney and the senior counsel and director of digital justice and civil rights at Free Press. She joins us now by phone. Welcome to CounterSpin, Nora Benavidez.

Nora Benavidez: Hi, Janine. Thanks so much for having me.

JJ: Well, maybe lets start with the shape of the problem. What are the concerns right now around data privacy that are generated specifically by this court ruling and other rulings around abortion access and its criminalization? What could happen? Or what do we see happening?

NB: From the outset, the gutting of Roe by Dobbs is so devastating for, of course, the constitutional reasons, that at one time, Roe codified and really affirmed that abortion was a basic right.

Dobbs, in overruling that, overturning that, has laid open states to pick and choose whether they will allow abortion providers and individuals that kind of right.

But were in a very different moment now in 2022 than we were in the 1970s, and thats really because of the rise of the digital age. With it, as you mentioned in your opening, is that the Internet is our primary pathway for almost everyone, I think, to information, to healthcare to, you know, telehealth appointments.

And so there are these huge questions now about how people will access both just information, and then who is going to have access to that data that we are all of us engaging in and creating a footprint for.

The number one concern is that basically anything we do on our devices is reachable and is collected, retained, even sold by data brokers. In this new post-Roe era, in the states where abortion is criminal now, which is in the dozens, police and prosecutors will be able to buy information, both location and our search history, our app usage, to build criminal cases against women and providers of abortion.

PBS (6/28/22): Unless all of your data is securely encrypted, theres always a chance that someone, somewhere can access it.

And so its really kind of a terrifying moment where privacy is, in a very new way, the entry point for our civil and basic rights.

JJ: So in the face of that, what could social media platforms and ISPs do? I mean, a lot of them have these, we understand they simply are beholden to law enforcement. If law enforcement or the government asks for information, they hand it over. Is there something different that they could be doing in that regard?

Yeah, well, you know, so lets start from what we already know. Platform companies are in the business of selling records to data brokers, to advertising firms. And a lot of what pre-Dobbs weve seen is that a lot of this information then allows platforms to target users with either content that they enjoy or content that otherwise discriminates, which is its own set of issues.

In addition, companies can also be subpoenaed, as you say. They can be subpoenaed by prosecutors who might be wanting the whereabouts of people seeking reproductive health care.

In the last year, Google has been forced to turn over its location information about its customers when law enforcement seek court orders for that information. Whats been interesting is that actually in response to Dobbs, Google has updated its privacy policy to start deleting location data about users who visit places related to their health.

My organization, Free Press, has been working on pressuring Google to modify its retention and collection practices. So this is a really huge step. Its some initial victory. But thats only one company. Weve seen, for the last several years, other companies like Amazon have put major sets of information together for law enforcement when they seek something through a search warrant, subpoena, other court orders.

All of these are within the bounds of the law. The problem is that theres that additional layer that law enforcement can actually circumvent both court oversight and other Fourth Amendment concerns by buying our data from third parties. So when they dont want to go through the process of seeking a search warrant, a subpoena, or another court order, police can just circumvent it very easily. They can go through a data broker and pick and choose whatever they want to buy.

JJ: So what do we do in the face of this? I understand that there are certain legislative moves that are going on or being proposed. There has to be a way to address this.

NB: Yeah. Well, I always try to start with the individual and work my way up, and its always important, I think, to help affirm for people that they can seek out information. There are really wonderful guidelines now for how to protect yourself online. And whether that is through encrypted apps, using a VPN, those are important things to start learning about.

There are also then the much larger, what I call kind of systemic reforms that we need to be looking at. And as you say, some of that is through legislation. You know, Congress has currently a set of proposals before it that would limit what law enforcement can buy from data brokers.

One of those bills is called the Fourth Amendment Is Not For Sale Act. Its a long name, but its a really good bill. And it closes a loophole that allows data brokers to sell our information to police without a warrant.

There is going to be a hearing on this bill coming up this month. Free Press has endorsed the legislation. I think that we need a groundswell of support all over the country who are saying yes, this is the kind of privacy protection we need.

We also then need more, you know, we need other agencies throughout the federal government to step in. And one of those critical ones is the Federal Trade Commission, which is tasked with oversight over deceptive practices, the kinds of things that weve described today where peoples data has been sold, otherwise used in nefarious ways.

And so the FTC has before it a really unique moment to look at use of data practices, and begin creating rules around how corporations can mitigate the harm to their customers and other consumers. So I hope that over the coming months we are going to see the FTC take this on with an open and participatory process. Its one that we call a rulemaking, where they build a record of the harm and then begin developing the guardrails to prevent these kinds of deceptive, unfair practices.

But we need all of these things, Janine. This isnt some distance threat. It isnt like women may at some point risk being prosecuted. This is already happening around the country. And so we need advocates to start telling these stories to help make the link that what we do online has very real world consequences.

JJ: Well, first of all, its so dystopian, the idea of our information being packaged and sold to begin with, and it almost feels like, you know, shutting the barn door after the cows have escaped. Just bigger picture, it makes me think about publicizing, nationalizing the Internet anyway. I mean, isnt it really a public resource, and the idea of all of our information being essentially a commodity is just kind of terrifying, big picture.

NB: I agree. I mean, and yet, many times when I talk with people, their natural instinct is to say that the gathering of our data actually helped. You know, theres this intuitive sense that whatever I do on Facebook actually can help make my experience more unique and personalized. And that may be true in some instances where you start getting ads for the types of local Facebook groups that you actually might want to join. I get that.

What we have to start talking about is that theres that underbelly to whats really happening, and that the Internet no longer serves people in the ways that we once thought it held such promise to connect us all to make a more equitable future.

In the middle of all of that then, I just sort of think to myself, how do we talk about these issues to help people understand there are pros and there are very real trade offs, very dangerous ones that really strip us of our own autonomy.

If youre doing something online unaware of the trade off that as you search for something, that search result will be collected, stored and even sold to someone, that isnt just about making your local Facebook group recommendations better or more exciting for you. That really removes any anonymity, which is something that throughout history, this country has been so committed to, at least in theory.

You know, when the founding fathers dreamt up what the fourth amendment would be, it was early, early British rule where crown officials would storm into peoples homes and take their writing and their other belongings because it was seen as potentially threatening to the crown.

And so theres this old history of all of it being centered on power. And so what were seeing now in the stripping of and the violations of our privacy all come back to the ways that our power has been taken from us.

JJ: Well, I guess I would say we do have a positive vision of an Internet that could have the good things that we want if we can build in these protections that help us in terms of privacy. We can have a positive vision going forward of what the Internet could be thats kind of the way we thought of it, you know, hopefully, many, many years ago. That can still happen, yeah?

NB: I think it can, and some of the work that excites me the most, both in my own job at Free Press, the work I see across the country now from policymakers and allies on the ground throughout the country, are people who are trying to dream up what a better Internet would look like, and what real realized civil rights are online.

One of the most exciting places that Ive seen this is through the Disinformation Defense League, a network of over 230 local organizations around the country, either led by or centering communities of color. We are so oftenIm a Latina, you know, I work with groups that are considered typically on the fringes and otherwise not really at the table for large, systemic conversations. And this network is one of the most exciting places that I have seen harvest and try to incubate great ideas for reform.

That includes policy reform, privacy protections, civil rights protections online, things that can intervene to blunt what we see as harmful and discriminatory practices online. So I think that there is a future Internet that we can realize, and we all need to have a voice and a seat at the table.

JJ: Weve been speaking with Nora Benavidez from Free Press. Theyre online at freepress.net. Nora Benavidez, thank you so much for joining us today on CounterSpin.

NB: Thanks so much, Janine.

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'Privacy Is the Entry Point for Our Civil and Basic Rights' - FAIR

Melissa Tyson, David Boyd

A federal appeals court has sent a case back down to a lower court after deciding that a local sheriffs deputy in Texas who allegedly forced a woman to expose her genitals to him while he masturbated isnt entitled to a qualified immunity defense.

On Thursday, a three-judge panel on the U.S. Court of Appeals for the Fifth Circuit ruled that David W. Boyd had likely violated the civil rights of Melissa Tyson during what was supposed to be a welfare check, and therefore he cant claim qualified immunity, as a lower court had previously ruled.

On Sept. 18, 2018, Tysons husband had called the Sheriffs Department of Sabine County, Texas, to request a welfare check on his wife. According to court documents, Tyson was at home alone and distressed while Wade Tyson was out of town.

Boyd called Melissa Tyson that night, introducing himself as a sheriff and telling her he would stop by the next morning. At the time, he told Tyson that he handled welfare checks because he was a preacher, although as the Fifth Circuit ruling notes, Boyds ministerial credentials had actually been revoked eleven years prior because of prohibited sexual conduct. As a minister, Boyd had also been sued by church members for alleged sexual misconduct.

Boyd did indeed go to Tysons house the next day, but rather than address Tysons well-being, Boyd allegedly engaged in disturbing conduct that left her traumatized and afraid.

The appeals court described what allegedly took place in explicit detail:

The next morning, Deputy Boyd showed up alone at Tysons home in a plain car and wearing a shirt identifying himself as a Sheriff. He was not visibly carrying a weapon. Tyson offered a handshake but, instead, Deputy Boyd hugged her. Deputy Boyd asked if there was a place that they could talk. She led him to chairs and a table on the side porch of the house. Before sitting down, Deputy Boyd asked if she had security cameras or neighbors, and he began to search the exterior of the home. Tyson said that she did not have cameras and her neighbors were usually not home. He commented that Tyson must be lonely with [her] husband being gone and living . . . by [herself] the majority of the time at a dead-end road. Tyson said that she wasnt lonely, she was fine. She testified that she thought the officers behavior was strange, but she gave him the benefit of the doubt because he was helping her.

Deputy Boyd stayed for approximately two hours, during which time he made numerous inappropriate sexual statements and commands, which the district court found were neither invited nor consensual. For example, Deputy Boyd told Tyson that he and fellow officers had recently seen her at a restaurant, and he repeated sexual comments that the officers made about her body. For example, he said that the officers talked about what they would like to do to [her] if they could. He also compared the size of Tysons breasts with his wifes breasts. He pressed her to answer invasive questions about her sex life, such as whether she and her husband would consider a threesome and whether her husband would allow someone to watch them having sex. And he asked for nude pictures of her husband.

[. . .]

Tyson alleges that Deputy Boyd then sexually assaulted her on the porch of her home. He commanded her to expose her breasts and her vagina, and spread her labia to expose her clitoris. After a prolonged hesitation, Tyson complied. Deputy Boyd then masturbated to ejaculation in front of her. She closed her eyes and waited for him to finish, at which point he left.

Tyson said that immediately afterwards, she felt distressed and cried.

Boyd continued to contact her, texting her messages such as I saw you today or I havent heard from you, but she didnt respond. She told a friend she was worried about him hurting her.

She began frequently seeing a psychotherapist and a hypnotherapist, her intimacy with her husband significantly decreased, she gained thirty pounds, she started carrying a gun, she put cameras up, and she generally stopped leaving her home, the Fifth Circuit said in the ruling. In short, the incident changed [her] whole life, and she isnt who [she] used to be.'

According to Tyson, she felt forced to submit to Deputy Boyds sexual misconduct because she was isolated and alone, as Deputy Boyd had pointed out; she felt intimidated by his authority; and she was frightened that the sexual harassment would escalate if she did not comply.

In July of 2021, U.S. District Judge Michael Truncale, a Donald Trump appointee, granted Boyds motion for summary judgment, ruling that the facts didnt support Tysons allegation that Boyd violated her civil rights.

Certainty [sic], Deputy Boyds conduct toward Tyson was inappropriate and uninvited, Truncale wrote. But after careful consideration of the case law, Deputy Boyds conduct does not shock the conscience for purposes of the Fourteenth Amendment. As such, Tysons substantive due process claim fails as a matter of law and cannot support her Section 1983 claim.

On Thursday, three judges on the Fifth Circuit reversed that decision in part, sending it back to Truncales court for further analysis.

In an opinion penned by U.S. Circuit Judge Edith Brown Clement, a George H.W. Bush appointee, and joined by U.S. Circuit JudgesGregg Jeffrey Costa and James Earl Graves, Jr., both Barack Obama appointees, the judges didnt overturn Truncales ruling completely. They agreed that Tyson hadnt shown that there had been a seizure such that her Fourth Amendment rights against unreasonable search and seizure had been violated.

They had a different take, however, when it came to Tysons 14th Amendment Due Process rights.

It is beyond dispute that no legitimate state interest can justify an officers use of coercion to compel the subject of a welfare check to expose her most private body parts for his sexual enjoyment, the ruling says. Nor does Deputy Boyd argue that any legitimate state interest could justify his instructions to Tyson to perform nonconsensual sexual acts while he masturbated.

The panel of judges said that Boyds alleged actions did, indeed, shock the conscience, despite Truncales finding otherwise, and therefore werent covered by a claim of qualified immunity.

[T]his is not a case of recklessness, negligence, or overzealous policing, the ruling said. The record supports a premeditated intent to introduce sexual abuse into the welfare check because Deputy Boyd misrepresented to Tyson that he was on duty and searched the exterior of the home for cameras immediately upon arrival.

Deputy Boyds alleged conduct was an outrageous abuse of power thatshocks the conscience and violated Tysons right to bodily integrity, the judges later added.

In a footnote, the judges noted that criminal proceedings against Boyd are ongoing. He was indicted in 2019 on sexual assault, indecent exposure, and official oppression charges, the court said.

We are proud that Justice was served today in the Fifth Circuit Court of Appeals, attorney Jason Byrd said in an email. We look forward to trial in the coming months and the opportunity to hold true wrongdoers responsible.

Representatives for Boyd did not immediately respond to Law&Crimes request for comment.

Read the Fifth Circuits ruling, below.

[Image via screengrab/KFDM.]

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Fifth Circuit Denies Qualified Immunity Defense to Texas Deputy Who Allegedly Forced a Woman to Expose Herself to Him While He Masturbated - Law &...

GLASGOW: I really didn't have the safety net, best safe place for myself to go to. So I went out and I tried to find it in the streets. I was good with numbers. I was good with dealing with people. I knew how to connect. And I grew up around a lot of influential Italians, and people in our community who had those connections in the streets.

CHAKRABARTI: On May 1st, 2004, Tyrique got a phone call. Someone told him his sister was involved in a fight. By the time he got there, the crowd had scattered. But later that day:

GLASGOW: I see one of the individuals walking down the street. And for me, I was still in, you know, I could fight. So I got out of the car and I wanted to fight and I was shot.

CHAKRABARTI: He was shot 11 times. Shot in the leg and arms. In his back, in his head. Tyrique spent six days in the hospital. And yes, having scars from 11 bullet holes in his body humbled him.

GLASGOW: But there's also a badge of honor when you're in the streets and get shot and to come back, so to say.

CHAKRABARTI: Tyrique says growing up, it was impossible to hear anything beyond the siren song of that violent street culture. The only thing that cut through it for him was prison. In 2007, he was convicted of manufacturing and dealing drugs. Tyrique was sentenced to five years.

GLASGOW: When I was in jail, it really woke me up. Because when you're out and you're out in the street ... you think that everything is reality. ... You think that you're doing everything right. You think you're doing stuff to benefit the welfare of your family. The welfare of yourself. When in reality, it's a nightmare. When I went to jail, it was like God gave me a reset. Like ... take this as a time out. You're getting shot. You're being arrested six, seven times. It's violence going on. You're losing family members left and right. I'm going to sit you down, because I understand. I have a bigger purpose.

CHAKRABARTI: Tyrique was released from prison in 2012. That same year, he founded the Young Chances Foundation to help at-risk youth in South Philadelphia. Around that same time, Philly's homicide rate actually began trending down. From 2013 to roughly 2017, the city recorded its lowest homicide rates in decades. But then the numbers began to rise. Last year, Philadelphia recorded its highest homicide rate ever, 562 murders. Tyrique Glasgow says fear is spreading across the entire community.

GLASGOW: Our three main people is our children, our seniors and our community at whole. If a child can't walk to school without being murdered, it's a problem. ... It's a concern when our seniors can't go to the supermarket to shop in peace, and to have a good day without being assaulted, robbed or even shot. These are the things that challenge us every day in our community. ... I have never met a person who said, I want to live like this. I want to live in violence.

No, they want their kids to go to good schools. They want to have a good job. They want to want to have a home that they could come to that's taken care of. That's not around gun violence, or hearing gunshots or three-year-old's being murdered. Or kids walking to school being shot. Those are not the stories that you hear. The story is, I just want to get my kids out of here. I just want these young boys to stop it. I don't know what's gotten into these young girls. These are the concerns that you hear every day.

CHAKRABARTI: This is On Point. I'm Meghna Chakrabarti. And that was Tyrique Glasgow, founder of the Young Chances Foundation. Now, last year, as homicides soared, Philadelphia's District Attorney, Michael Krasner told reporters, quote, We don't have a crisis of lawlessness. We don't have a crisis of crime. We don't have a crisis of violence. End quote.

Well, that drew a scathing response from Philly's former mayor, Democrat Michael Nutter. He said, quote, I have to wonder what kind of messed up world of white wokeness Krasner is living in, while he advances his own national profile as a progressive district attorney.

That's what Nutter wrote in the Philadelphia Inquirer. And he went on saying, If he actually cared about Philadelphia's Black and brown communities, he'd understand that the homicide crisis is what is plaguing us the most. End quote.

In fact, Black Philadelphians are the majority of homicide victims in Philadelphia. Of the 562 people killed there last year, 80% were Black. 70% of all Philly's homicide victims over a 30 year period were Black, though they make up slightly more than 40% of the city's population. Philadelphia is on track to have a similarly deadly year this year. That's led some elected leaders to resurrect a highly controversial idea. Earlier this month, City Council President Darrell Clarke suggested bringing back a version of the policing tactic known as stop-and-frisk.

DARRELL CLARKE [Tape]: There are a lot of citizens in the streets of the city of Philadelphia to talk about, when are we going to look at stop-and-frisk in a constitutionally enacted way?

CHAKRABARTI: A constitutionally enacted stop-and-frisk. That's what we're going to look at today. What exactly does that mean? What would it look like in practice? Can a constitutional stop and frisk even exist? Critics say no. They say any version of the tactic is a fundamental violation of civil rights. Well, let's start with Sammy Caiola. She's the gun violence prevention reporter at WHYY in Philadelphia. Sammy, welcome to On Point.

SAMMY CAIOLA: Hi. Thanks so much for having me.

CHAKRABARTI: So first of all, tell me, what are lifelong Philadelphians whom you've spoken with telling you about the amount of gun violence, the number of homicides the city experienced last year?

CAIOLA: I've done a lot of listening in communities that are highly impacted by gun violence. And I want to be clear. These are neighborhoods sort of scattered across the city that have been disinvested in. They've seen real declines in just the state of the environment where they live. And it's corresponded with the rise in shootings. And they say it's been a drastic change over the last decade. They used to feel safe. They used to go out. They used to gather. Their children used to, you know, run free around the neighborhood.

And now there is a much more felt state of fear. And that makes sense. Looking at the numbers, you know, there's been an almost doubling of homicides since, you know, the 2017 period. You know, last year was a record year. And we're seeing, you know, more than a homicide a day. Something like 1.5 homicides a day in Philadelphia. So it's just part of life for some people. There is really no sense of safety for them. And I think that's the context for these conversations about the role of policing, and the role of local government. And how do you help people feel able to navigate their own neighborhoods at this point?

CHAKRABARTI: Yeah, so it sounds like it's very much having an impact across the city in just people being able to live their daily lives. I'm looking here at a map from the Office of the Comptroller in Philadelphia that's got a city map that's tracking all shootings, not just homicides, but all shootings. And they are in various neighborhoods across the city. But it also seems as if the violence is particularly concentrated in certain neighborhoods. ... What neighborhoods are they? Are they predominantly Black neighborhoods?

CAIOLA: Yes, these are predominantly Black neighborhoods with lower median incomes than the rest of the city. And, you know, that's where we see the concentration of shootings. But I think as time goes on, we're seeing this problem bleed out. We see shootings in outskirt neighborhoods. We see shootings in suburbs. You know, and it's to the point where it's happening at large public events.

And it's just kind of a ripple. You know, it's the trauma and the fear and the stress of this that is affecting really anybody who lives here. And, you know, for every person that is shot, they've got loved ones, they've got friends, they've got neighbors. You know, every bullet kind of creates this circle of secondary victims. And it's, you know, in many of the neighborhoods you're mentioning, you won't find somebody who has not been touched by gun violence.

Wow. We've got about 30 seconds before our first break. Sammy, can you just quickly tell me, do people in Philadelphia, particularly in the most vulnerable neighborhoods, do they feel like city leadership right now is doing enough?

CAIOLA: Largely, I would say no. I've heard people tell me they feel like the city has put their hands up, that they feel their neighborhoods have been abandoned. And that's everything from, you know, garbage not being picked up, to abandoned vehicles on the streets, to police not having great community relations there. They'd like to see more community policing, police walking the streets, meeting the neighbors. They want to feel that the city cares about them, and is treating this urgently.

CHAKRABARTI: This is On Point. I'm Meghna Chakrabarti. And today, we're talking about why a conversation has begun among some city leaders in Philadelphia to bring back some form of the police tactic known as stop-and-frisk. Specifically, they're talking about a constitutionally enacted stop-and-frisk. Well, what is that? What would it look like in practice? Can such a thing even exist? I'm joined today by Sammy Caiola. She's the gun violence prevention reporter at WHYY in Philadelphia. And Sammy, so it seems as if, from my understanding, Philly has spent, you know, quite a bit of money, several million dollars in gun violence prevention programs.

Given what you said about how the current spate of homicides is is having an impact in various neighborhoods, is it safe to say that those residents don't believe that the money has made much of a difference?

CAIOLA: I think the residents are waiting to see whether the money makes a difference. This is such a deeply rooted problem that it's not going to be fixed overnight. And I think we're going to be tracking for the next several years whether these financial investments are being used effectively, whether they're being used for solutions that are actually informed by the community.

You know, something that we're seeing is a lot of funding being given directly to nonprofits so that they can do this work where they live as trusted messengers there, which, you know, hopefully will make a difference in the long run. But I think right now there are still some very urgent problems in the neighborhoods that people feel like aren't being addressed immediately.

CHAKRABARTI: Well, yeah, I mean, extremely urgent. 562 people being gunned down, just murdered, last year. And it seems as if the city's on track to at least match potentially that number this year. Now, the reason why I asked about the money that has been spent is that's just a means of giving at least a little bit of context that of course, there are lots of efforts going on in Philadelphia, and there have been for years to address the epidemic problem of gun violence.

So it's not as if nothing has been done, which is why this sort of renewed question and conversation over stop and frisk popping up in the city council really drew a lot of attention. Can you just give us the quick story on how and why that happened?

CAIOLA: So I want to acknowledge that I actually have not directly reported on the stop-and-frisk conversation in the city. So I don't know that I can speak right to that, but I will agree with you that there has been so much that's been tried. There are so many projects happening in the nonprofit level, on the academic level and the government level. And there's this feeling ... like nothing is working, that we're all just trying to put together this puzzle that will never finish.

And, you know, it seems to me that the stop-and-frisk conversation is coming out of just this place of like, you know, we need to do something more drastic. We need to take, you know, more emergency type steps. And, you know, we've had some activists call for the National Guard to come to Philadelphia to confront the crisis. So, you know, I think everybody's in this really tense space of, you know, wanting action, but also not wanting to live in a police state. And, you know, you're seeing some people who just don't, you know, don't want the government to get more involved.

They just want to handle it themselves. We can police ourselves. We need to take back the village. We need to rebuild our communities. And then there are others that say we need more investment, we need more action. And so, you know, it's a lot of voices at the table. And it's a very tall order, I think, for those in power in Philadelphia to listen to those voices and try to come up with something that will make a tangible impact on these numbers.

Well. Sammy Caiola, gun violence reporter for WHYY in Philadelphia. Thank you so much for being with us today, Sammy.

CAIOLA: Thanks for having me.

CHAKRABARTI: So as we said, we're going to focus on this question of a constitutionally enacted stop-and-frisk, as has been discussed in Philadelphia, at least the idea of it. And we'll get back to Philadelphia's own particular city's history with stop-and-frisk a little later in the show. But let's actually see what lessons can be learned from New York. And joining us now from New York is Shira Scheindlin.

She's a former judge who served on the United States District Court for the Southern District of New York. And in 2013, Judge Scheindlin ruled on the famous case of Floyd vs. the city of New York. And that was the case where the New York City Police Department stop-and-frisk tactics were found to be unconstitutional, or violated the rights of tens of thousands of New Yorkers who were stopped by New York police, the majority of whom were people of color. So, Judge Scheindlin, welcome to On Point.

SHIRA SCHEINDLIN: Thank you. Thank you for having me.

CHAKRABARTI: So we're going to explore what does a constitutional stop-and-frisk actually mean or could it potentially mean? But give us the backdrop to the Floyd case that you ruled on. Just remind us what was going on in New York that brought the case to your court.

SCHEINDLIN: What was going on in New York is that the number of stops were rising and rising and rising. And by 2011, 686,000 stops were made in one year. And the problem was that a lot of those, most of those, were of people of color. So of the 4.4 million stops that occurred between 2004 and 2012, 52% of those stopped were Black, 31% were Hispanic, only 10% were white. And that did not reflect the population figures, which were different than that. The population was only 23% Black.

So the point is, Blacks were being stopped almost twice as much as whites. Disproportionate. Clearly disproportionate. So a class action lawsuit was brought to say that the stop-and-frisk as practice violated both the Fourth Amendment and the 14th Amendment of the U.S. Constitution. And that's what I found. There was a trial, a long trial, and I found that as practiced, it did violate both the fourth and 14th Amendment.

CHAKRABARTI: Now, I can't remember. So please correct me if I'm wrong, but I've frequently heard the argument made that in certain cities where the overwhelming number of people who were stopped by police, and we're talking about pedestrian and vehicle stops here, the reason why they are predominantly people of color is that the stops were happening in neighborhoods that were suffering from a higher crime rate, which were often neighborhoods where the majority of the residents were people of color. So it may be disproportionate regarding the demographic makeup of a city like New York overall. But was it disproportionate given where the crime was happening? Did that come up in the Floyd case?

SCHEINDLIN: It did. It did. The argument was that the stop population should reflect the criminal suspect population. That's what the city argued. But that's wrong. Because the stop population are not criminals. They're innocent, because it turned out that 88% of these stops produce absolutely nothing, no further law enforcement action. And as far as obtaining a weapon or any contraband, only 1.5% of the stops produced anything.

So they were mostly dry stops of innocent people. So the question was, was it an effective technique in preventing crime? That's what you have to ask yourself. And it turns out it was not effective. Because when my opinion came out, and the practice of unconstitutional stops ended, and the stops went down from 686,000 to 36,000. Crime did not rise. That was the dramatic statistic. Ending the practice didn't cause a rise in crime. So we have to ask ourselves, using it that way, so broadly, was it effective? But I hope you'll get to ask me, Can it be used constitutionally? And might that be effective?

CHAKRABARTI: Yes, I will definitely ask you that. But again, I just want to give people sort of context so that helps us understand better your answer to that question when I get around to asking it. Because, I mean, my understanding is, is that police were required, even before your ruling, to provide some kind of justification for the stop. So that was their sort of work around about whether it was a constitutional stop or not. What were the justifications they offered?

SCHEINDLIN: Right. So they had a check off form, instead of having to write a narrative where they really would describe what was suspicious. They just had to check a form. And what we we found in the trial is that the most common check off combination was furtive movement and high crime area. And those two were checked off on form, after form after form. But they don't tell you anything. Because when you ask the police officers at the trial, What is a furtive movement? You really got a huge number of funny answers. Walking funny, looking over your shoulder, one guy said stuttering.

And it was really something. Coming in and out of a building, quickly sitting on a park bench. I mean, furtive movement became almost anything the police wanted it to be. And of course, high crime area. You already said, that's targeting certain neighborhoods, where indeed the statistics are high. But putting those two together did not satisfy the constitutional standard. My point is, the community lost all trust in the police because of this vast number of stops, and they were stopping mostly very young Black males.

So we're talking about people 16 to 22, and they couldn't even go to the grocery store without being stopped. Some of the witnesses testified they were stopped six times, eight times, over and over again. And, you know, you might not think it's so terrible to be stopped, but it's intrusive. It's public. Sometimes the stop was followed by a frisk. It's really a very unpleasant and intrusive experience. And it caused great friction between the community and the police.

CHAKRABARTI: Now, the practice of stop-and-frisk, which I'm putting in quotes, cause I'm not sure what else to call it, as a policing practice. To be clear, it's a judicially sanctioned practice, right?

SCHEINDLIN: There's a Supreme Court case, Terry vs. Ohio, more than 50 years ago. And in Terry vs. Ohio, the court said you can make a stop and you can do a frisk. But in order to make a stop, a police officer must have, and I'm using a quote now, individualized, reasonable suspicion that the person has committed a crime, is committing a crime, or is about to do so. And there have to be objective facts that support the conclusion, not a mere hunch or speculation.

So that's the point. What can the police officer really point to objectively that tells him that he's concerned that this person is committing, or is about to commit or just committed a crime? And for a frisk, to frisk a stop person, the police have to have reason to suspect that the person is armed and dangerous. And we found that most of the frisks were bad. They had no basis to believe they were armed and dangerous, other than they were young Black males.

CHAKRABARTI: So then let's press ahead with this question of what would a constitutional stop and frisk then potentially look like in practice? So, first of all, for the stop part, I mean, you already talked a little bit about it. But tell me more. How would it satisfy the constitutional bar that you just said was set?

SCHEINDLIN: Well, so you'd have to make up some hypotheticals as we discuss this. I already said you have to have individualized, reasonable suspicion that the person has committed a crime, is committing one or about to. What might that be? You might have a witness who said, Gee, I saw a man in a black leather jacket. He's six foot tall, he's wearing red sneakers. And he just came out of the store with all these, you know, televisions. Okay. If you saw a man that fit that, that's certainly individualized, reasonable suspicion. Or if the police themselves saw somebody rushing out of, who knows what, a supermarket, or jewelry store, running.

And maybe even having some kind of weapon in their hand. That's certainly individualized, reasonable suspicion. So you'd have to discuss the scenarios that would amount to a reasonable suspicion that there's criminal activity afoot, is the word that was used in Terry. So you can do this constitutionally, but if you did, it wouldn't end up with 700,000 stops in one year. It would be the right stops, where you had a reason to believe it. Maybe a tip, maybe a witness. Maybe the police saw the activity themselves.

Those are examples I can think of. But in New York, where stop-and-frisk has now been reformed and is still used, the police officer now has to explain on a form, in a narrative, why did you stop this person? And you have to write out a reason. You can't just check off furtive movement. You have to explain.

CHAKRABARTI: Okay. You have to explain. But then that's still after after the fact. And so it sounds like there's officer discretion still involved, of course.

SCHEINDLIN: Absolutely. It's always going to be a judgment call. And I have to say that I believe that police can do stop-and-frisk in a constitutional way, if they're trained correctly, if they're supervised, monitored and disciplined. ... If they do it right, it could be effective. Absolutely. If you know something, see something, have a basis to make that stop, you should make that stop. You shouldn't let that person walk away. That person could be armed and dangerous. So I think that stop-and-frisk should be used, but it has to be used well. And I think the police are perfectly capable of using it well.

CHAKRABARTI: Yeah. So you talked about what could initiate a stop in a constitutional way, but then there's the frisk part. Should there be even a higher bar there?

SCHEINDLIN: Oh, there is a higher bar. The police have to have reason to believe that the person is armed and dangerous. And that's important. Because the police officer is entitled to worry about his or her own safety. So if they have a reason to believe that this person is armed, they should be allowed to frisk them and get whatever might be there, a knife, a gun, who knows? So one of the things on the check off form had been suspicious bulge. Well, the problem with suspicious bulges is that it often turned out to be a cell phone.

And of course, somebody reached reached in their pocket. They were reaching for their cell phone. But it depends. Maybe the outline of the gun is clear. Maybe an outline of a knife is clear. Maybe a pat down is the right thing to do, because the police officer has to worry about his or her own safety. And of the people around. New York is a busy and crowded city with lots of pedestrians, as is Philadelphia. So we have to worry about who's in the area, as well as the police officer.

CHAKRABARTI: Judge Scheindlin, from what I'm hearing, you describe it, what a constitutional a stop and frisk might look like. It sounds to my ear about what sort of normal police policing should already be. A high degree of evidence required for a reasonable stop. Go ahead.

SCHEINDLIN: Well, the thing is, on an arrest situation, you have to have probable cause to make an arrest. So it's something less than probable cause. Reasonable suspicion is a lower standard. I don't want you to think that, gee, you know, he has to have seen the guy walk in the bank and rob the bank. That's too high. That would be probable cause. But reasonable suspicion is less than that. And it is a judgment call. So it's all about training police officers to do the right thing. And not to target people based solely on their race. And that's what we were seeing in New York in the bad days.

CHAKRABARTI: This is On Point. I'm Meghna Chakrabarti. And today we're talking about the conversation going on among some city leaders in Philadelphia about whether or not the city should enact a form of a constitutional stop-and-frisk policing tactic that Philly has had a long history with. But this word constitutional stop-and-frisk is what has really caught our attention.

And, of course, Philadelphia is experiencing a massive surge in its crime and particularly its homicide rate. 562 people murdered in Philadelphia just last year. I'm joined today by Judge Shira Scheindlin. She is a retired judge who used to sit on the U.S. District Court for the Southern District of New York. And she, in 2013, ruled on the Floyd vs. the city of New York case, where she ruled that that city's NYPD stop-and-frisk tactics violated the constitutional rights of New Yorkers.

And we've been talking with her about what a constitutional stop-and-frisk might look like. So let's again return to the conversation happening in Philadelphia. On July 5th, when City Council President Darrell Clarke first talked about enacting some kind of constitutional stop-and-frisk, he also addressed why he was calling for that discussion.

DARRELL CLARKE [Tape]: When I talk to people out in the streets of the city of Philadelphia, they want to know what did Ramsey and what did Nutter do when they had those numbers down below 300? And a simple reality is that they used stop-and-frisk. They went too far, people abused it, and the courts had to step in and say, We're shutting this down. But the question is, do you do it in a way for cause, right? Because it has to be for cause, because this is America.

You can't just simply decide you want to stop somebody. Look, I'm a 6-foot-3 Black guy, right? I take this suit off and I'm walking downCecil B. Moore Avenue, I'm likely to be stopped. I'm likely to have a cop look at me two, three times. Right. That's reality, right?

But that's a conversation we're going to have to have. Because you can't have an environment where everybody is carrying a gun, an illegal gun. So let's have the conversation. Let's have real people involved in a conversation and let's figure out what we're going to do.

CHAKRABARTI: Well, joining us now from Philadelphia is Councilman Isaiah Thomas. He is an at-large member of the Philadelphia City Council. Councilman Thomas, welcome to On Point.

ISAIAH THOMAS: Thank you, and thank you for having me. I appreciate being a part of this conversation.

CHAKRABARTI: So you've also been doing a lot of work for years on violence prevention and equitable policing in Philadelphia. So what was your first response when you heard what Council President Clarke had said?

THOMAS: I know the council president, and I understand his passion as it relates to the gun violence problem, the gun violence crisis that we're facing in the city of Philadelphia. And I understand where he's coming from, as it relates to the importance of having a conversation about what police are doing currently, what's taking place and what methods we're using to address crime. But more importantly, what direction we go in in the future.

Because clearly what we're doing right now and what we have been doing as of recently is not working. Because we're not putting a dent in the crime, and we're seeing it move actually in the opposite direction. So I 100% respect the council president's his passion. I understand that this is an emotional time. We're all frustrated. And I think it's important that police and other parties have conversations about what we're doing, what we're not doing, and what can we do to address this gun violence crisis.

CHAKRABARTI: Well, you've been listening along throughout the hour thus far. So you heard what Judge Scheindlin was describing as a form of stop-and-frisk that might clear constitutional bars. Do you think what you heard would be plausible for Philadelphia?

THOMAS: Well, what I heard from the judge, I think is important. And it speaks to the legality of what we can and cannot do. Every state has different laws and different guidelines on what can be done, and what cannot be done. So for us in the Commonwealth of Pennsylvania, over the last three years or so, we've had a number of state Supreme Court rulings that has limited what can be done by law enforcement as it relates to searches, stops, as well as other means of trying to address this conversation around stop-and-frisk.

So for us, police officers are very limited in what they can do. And it would be very difficult for police officers in the city of Philadelphia to operate what we're calling constitutional stop-and-frisk based on what stop-and-frisk has been traditionally. Now, when a judge talks about some of the ideas around reasonable suspicion, you know that to us as policing. That's part of the job and that's part of what needs to be done.

When I think about stop-and-frisk, when some of my contemporaries think about stop-and-frisk, we think about the idea of giving law enforcement the power to be able to look at you. And say, you look guilty, you look suspicious without any reasonable suspicion, but just going off of their own instincts. And that being enough to pull somebody over to stop a pedestrian and to search that person. And we do not believe that that is the best method to address the crime that we're seeing in the city of Philadelphia.

CHAKRABARTI: Now, Judge Scheindlin, I'm going to come back to you in just a moment. But let me ask you first, Councilman Thomas, have you been stopped and frisked by Philly police in your lifetime?

THOMAS: In my lifetime, absolutely. I thought you were going to say this year, but in my lifetime, absolutely. I've been stopped. I've been stopped more times than I can count. When folks talk about, you know, what have we done in the past? You know, I was one of those folks who grew up as a teenager, and somebody in my young twenties when stop-and-frisk was the most prevalent.

So I know what that type of policing and that police style does. I know what it did to my perception of law enforcement, as well as a lot of my contemporaries. And when you look at some of the issues that we have around hiring police officers right now in the city of Philadelphia, clearly we're going through the great resignation, not just in Philadelphia, but all across the country as we come out of this COVID situation.

It's called a crisis. But at the end of the day, I think that some of the issues that we're facing is because of the tainted relationships that a lot of folks in my generation have as it relates to law enforcement, because of so many negative interactions growing up.

CHAKRABARTI: Now, just to give folks a little bit more background on the history that Philadelphia has with stop-and-frisk, I'll focus for a moment on the years that former Philly Mayor Michael Nutter was in office. There was a huge number of stops. I think by the time near when Nutter left office, there was something like 800,000 in one year.

That, along with other policing, changes in violence prevention, you did see a dip in the homicide rate, but that massive number of stops did end up in court. And actually, even before that, in 2010, the city was sued by the Pennsylvania ACLU. And coming out of that was something called the Bailey Agreement, which stipulated that Philly police had to have, quote, reasonable suspicion of criminal conduct in order to make a stop, and that frisks should be undertaken, quote, only when there is reasonable suspicion that the person stopped is armed and dangerous. Now, Judge Scheindlin, that sounds exactly like what you were describing about 10 minutes ago to me.

SCHEINDLIN: It does, indeed. It's exactly the words that I used, and also the words the councilman just used about the bad relationship between the community and the police that grew out of these enormous numbers of stops. That's why it had to end. I'm for a lot of police presence. That's one thing Philadelphia can do. The police force should actually be increased, not decreased. There should be presence, but the presence should mean a good relationship with the community, where they can work together to reduce crime, where people will tell the police officer, Gee, this is what's been going on.

I think this guy is selling drugs. I think, you know, a tip. If the community worked with the police, things would get better. So I think there's a way to do effective policing and mass and broad stop-and-frisk is not the way to do effective policing, but targeted stop-and-frisk is still a good idea. It's good policing.

CHAKRABARTI: Targeted. And Councilman Thomas, I'll turn this one to you. It sounds to me that based on what's in place from that 2010 Bailey agreement, about the very narrow conditions under which Philly police can do a stop. Plus, you know, as you said, from a year or two ago, the prohibition against those so-called quality of life stops, where people were getting stopped and frisked for just panhandling on a street corner. All these things are already in place. So I'm not sure what could be expanded, or how might the targeting change to work in Philadelphia. Do you see what I'm saying?

THOMAS: I do. And that's why I'm concerned as well, too. When you think about the 2019 Supreme Court ruling for the Commonwealth vs. Hicks, Commonwealth vs. Perfetto. ... Commonwealth vs. Alexander in 2020. These are all cases that puts us in a position as it relates to Supreme Court ruling for the Commonwealth of Pennsylvania that limits what it is that police officers can and cannot do, as it relates to vehicle and pedestrian stops.

So at the end of the day, when there is some type of a probable cause, when there is some type of reasonable suspicion, in my mind, I don't call it stop-and-frisk. I call that police officers being police officers, similar to what the judge said. When we're talking about a police presence in neighborhoods, we are all for community policing in the city of Philadelphia.

We want to see patrol officers walking neighborhoods and talking to constituents, developing relationships, understanding the difference between model citizens in a particular community and the small percentage of people who don't necessarily move and operate as model citizens. So whenever I hear the idea of constitutional stop-and-frisk, it's not that I'm not open to the conversation. I think that as an elected official that represents the entire city, I'm obligated to come to the table and look to collaborate.

Even if the idea introduced initially is not something that I necessarily agree with. It's my responsibility as an elected official to still come to the table. I'm just curious, from a legal perspective, you know, what are we calling a constitutional stop-and-frisk in the commonwealth of Pennsylvania, specifically in the city of Philadelphia, that does not put us in a position where we're not adhering to Supreme Court rulings specifically related to the Commonwealth of Pennsylvania.

SCHEINDLIN: This constitutional standard that you described in Pennsylvania is the same as what the U.S. Supreme Court said. But the current U.S. Supreme Court handed down a terrible decision this term in Brooklyn, the case that said there can be no restriction on carrying guns, you know, concealed or not concealed, it's a terrible thing. So I think we're going to see even more guns on our streets all over the country.

And I have to express my outrage at that decision. It's bad for everybody and we can't close our eyes to that. So while you cite good decisions that limit police conduct in an important way, so that people of color are not discriminated against and stopped wrongly as you were when you were a kid. That's wrong. And that can't come back. It can't come back.

But good policing, as you said, based on reasonable suspicion, is a good thing. And with the flood of guns that we're going to see, we're in trouble in this country. As we know, we don't go a day without reading about a mass shooting.

THOMAS: I agree with the judge. I think the judge is absolutely on point with that.

CHAKRABARTI: We've got about 5 minutes left, and I want to talk a little bit more about what could be done right now for the people in, you know, the neighborhoods that you grew up in and represent, Councilman Thomas. Because as you heard a little earlier, the description that it's so bad in certain places that it's really touching every aspect of of life in these Philly neighborhoods. So I was looking at a quote from Don Jackson, who runs an intervention group in Philly called Urban Navigation. And here's what he said.

He wants the Philadelphia mayor to call a state of emergency. He wants them to reinstate random stops to look for guns. Guns specifically, not random stops for other things, for outstanding warrants, etc. And he said this probably wouldn't hold up in court. He acknowledges that. But Don Jackson said he's convinced that if they stop between 1,000 and 1,500 people, I guarantee you there will be less firearms on the streets. That's what he was quoted as saying in a report from WHYY.

And the reason why I point that out is because it does feel like there is an emergency going on right now in these neighborhoods. And it is understandable that people want some equally urgent action and that, you know, long-term gun violence prevention programs, they can't wait for that, while their loved ones are being gunned down.

THOMAS: I agree with the sense of urgency. I was one of the council members who co-sponsored legislation that called on the mayor to call for a state of emergency as it relates to gun violence. But I want to be very clear, there are some long term systemic problems that we have in the city of Philadelphia, like poverty, like failing schools. That puts us in a position where we have a cycle in a system that continues to oppress the same people in the same neighborhoods.

But in the short-term, I do want to be clear. Even when we had 300 homicides a year, that's way too much. So I would hate to look at what we did when we had 300 homicides a year and try to replicate that as if that number is acceptable. In my mind, that number is not acceptable at all either. I grew up in the city of Philadelphia. I've lived here my entire life, and we've almost always had a crime problem.

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Amid rising violence, a look inside the possible return of stop-and-frisk in Philadelphia - WBUR News