Category Archives: Fourth Amendment

Chula Vista has earned an unwelcome distinction.

On a per capita basis, they're probably the most or one of the most surveilled cities in the country, said Brian Hofer, executive director of the Oakland-based privacy advocacy group Secure Justice. Pretty much the minute you walk outside your front door and move about your daily life, you're going to be tagged and tracked by some law enforcement agency, even though you've likely never been suspected of any wrongdoing.

RELATED: Chula Vista Is Building A Real-Time Crime Center

Some of that surveillance is no different than what people in most American cities encounter everyday.

Your cell phones are constantly pinging towers as you move around the city, revealing your location, your travel patterns and association, Hofer said. You could have facial recognition on all of the very many cameras you pass along the street and buildings.

RELATED: Chula Vista Police Drones Can Now Cover 100% Of City For Emergency Calls

Chula Vistas location adds federal surveillance to the mix. The city is just seven miles from the Mexico border, which opens it up to a network of monitoring by the nations largest law enforcement agency the U.S. Customs and Border Protection.

The agencys high-tech cache includes powerful drones, automated license plate scanners (ALPRs), facial recognition technology and surveillance towers with cameras, radars and infrared sensors, and surveillance blimps, according to the General Accounting Office and the nonprofit digital rights organization the Electronic Frontier Foundation.

Border residents may never know that their information is being collected, but essentially, the government is able to put together a map of people's movements, either through incident times in which they're crossing the border itself, but also traveling through border communities, said Shaw Drake, who serves as policy counsel for the ACLUs Border Rights Center. And so really, towns like Chula Vista, across the border, are subjected to more surveillance technology than anywhere else in the country.

And theres the Chula Vista Police Departments own technological capacity, which has unsettled some locals.

They worry the agencys signature drone program and automated license plate readers indiscriminately collect data on the innocent, disproportionately affect people of color and breach core American values. They want more scrutiny and oversight.

We should have an expectation of privacy, said Pedro Rios, director of the American Friends Service Committees U.S.-Mexico Border Program. We should have an expectation that the police arent surveilling us with this type of enforcement technology when there isn't a reason to do so.

Chula Vista city officials blame some of the criticism on a small group of overly woke residents and reiterate they themselves are well aware of the perils of embracing technology for technologys sake.

We don't just buy a shiny object to have it, said Chula Vista Mayor Mary Salas. Everything that we adopt is for a purpose. And it's been thoroughly vetted.

Salas said the technology is meant to serve residents, not spy on them. And she is promising more oversight in the new year.

Drones as first responders

The Chula Vista Police Department deploys nine drones as first responders at a cost of about $1 million a year. Police live stream the drones scans for hazards at scenes for all kinds of 911 calls murders, assaults, traffic accidents, missing people, trespassers, fires and natural disasters before officers arrive. Police contend drones reduce response times, offer crucial details, help them make better decisions and diffuse tense situations.

From a de-escalation perspective, there is no better tool in my mind, said Chula Vista Police Capt. Eric Thunberg. That to me is invaluable and I wish we had it years ago.

The departments website says police collect video and photos from drone flights to the scene and on the way back which are generally accessible to police investigators for official use only. The footage is stored for one year unless its connected to an ongoing investigation.

Roland Lizarondo / KPBS

The department also has another handful of drones that it uses for executing search warrants or finding missing people in hard-to-get to places. Those drones are automated and have the capacity to follow people in and out of buildings, Thunberg said.

We use them in more tactical environments, he said. They keep our officers out of danger.

The Chula Vista Police Department is one of more than 1,500 state and local public safety agencies in the country with drones, according to 2020 data collected by Bard College researchers.

The department claims it was the first in the country to win FAA approval to fly all over the 52-square-mile city.

Thunberg said department officials met with the ACLU and residents to address concerns before the drones took off from the departments roof for their maiden flight in 2018. The goal was to assure people that the department would use the technology responsibly.

Were not going to do things that are not good for our community, Thunberg said.

But civil libertarians still believe police drones can violate the privacy rights of the innocent.

They can reach places that are actually very difficult for people to access without a warrant, said ACLU attorney Mitra Ebodolahi. A drone may be able to look in on a backyard that's otherwise not publicly visible, where someone may have a reasonable expectation of privacy under the Fourth Amendment. A lot of really important questions about our privacy rights and the Constitution remain unanswered.

Mitra Ebodolahi, ACLU attorney

Privacy advocates argue equally troubling is that people have no way of knowing if drones have gathered footage on them or their property.

Thunberg argues these concerns have been addressed.

Those drones, when theyre flying from A to B, that camera lens is horizontal, its not vertical, he said.

But once on the scene and the cameras tilt downward, the drones can still capture details of nearby private property that are not part of the 911 call.

License plate readers and broken trust

Back in 2020 at the Chula Vista Police Department, Capt. Don Redmond made clear that the effective use of police technology relied on residents faith in the department.

The community allows us to protect them because they trust us, Redmond said. As soon as we break that trust, they become issues.

Late last year it was revealed that Chula Vista police shared data collected from its license plate readers with immigration officials. This technology, commonly referred to as ALPRs (Automated License Plate Readers), takes photos of license plates and includes the time the picture was captured and the location of the vehicle.

Rios, of the American Friends Service Committee, said sharing that data with federal officials belies Chula Vistas designation as a Welcoming City for immigrants as well as state law known as SB 54, which prohibits local and state resources from aiding in federal immigration enforcement.

The bigger question there for me is not only about the impact that it might have on our migrant community members and neighbors, but also the slippery slope around our civil liberties, said Rios, who also lives in Chula Vista.

Chula Vista police have since said they stopped sharing the data with ICE and Border Patrol in April of this year.

Police Chief Roxana Kennedy has been contrite. In retrospect, we regret not looking at this more thoroughly, Kennedy said at a Chula Vista City Council meeting in April.

The Chula Vista Police Department still shares ALPR data for specific investigations only with other California law enforcement agencies, bound by state law from helping immigration officials. Thunberg said there are safeguards and laws, both for personnel and agencies that misuse or abuse their authority when it comes to data sharing.

There are no absolutes, he said. People do the wrong thing sometimes. Sometimes those people are police officers. I cant speak to other agencies, but we work hard to ensure our personnel understand the law, our mission and culture and always strive to do right.

Roland Lizarondo / KPBS

Advocates contend that license plate readers treat everyone as suspects and want the department to stop using them.

A new study by the nonpartisan public policy group The Independent Institute in Oakland, found that 16 years of data from the Piedmont Police Department revealed no evidence that ALPRs give law enforcement investigative leads, deter vehicle theft or help recover stolen vehicles.

Rios cites the Chula Vista Police Departments own statistics showing a hit rate of less than 1% with vehicles tied to suspected crimes, mostly in western Chula Vista, where many of the citys poor and people of color live.

It makes me wonder when police are checking out the vehicle that contains the ALPR technology if they are purposefully using it only in one community of the city of Chula Vista, Rios said.

To that, Thunberg told KPBS that the police department is committed to partnering with the community and serving with professionalism.

We deploy our resources based on the demand for our services, Thunberg said.

He also suggested that the low number of hits from its license plate readers might partly be due to the fact that the city only has four of the devices. He added that hits are just one feature of ALPRs.

The ALPR system is an investigative tool, Thunberg said. It allows our investigators the opportunity to see if a vehicle of interest was at or near the scene of a crime. With the lowest staffed department in the county and one of the lowest in the state, we can better serve victims of crime in our city by using ALPRs to solve crimes.

And Chief Kennedy has said that the double digit rise in murders, assaults and robbery in the city this year underscores the need for the technology.

There have been countless success stories where the ALPR program has played a pivotal role in solving crimes and in keeping our community safe, she said earlier this year.

New operations center

In spite of public concern, Chula Vista police officials are moving ahead on plans to integrate the data the department gathers. The agency is building a real-time operations center. It will sew together different surveillance networks and information, like jail records, to keep watch over whats happening in the city, gather intelligence and solve crimes.

This results in decision-quality data reaching the officers on scene and can lead to quicker and safer incident resolutions. Thunberg said.

The brightly lit center sits on the first floor of the agencys headquarters in downtown Chula Vista. One wall is plastered with a bank of 12 screens that livestream drone footage, display 911 calls and show the whereabouts of on-duty officers. The center also has access to ALPR data and shows the latest social media reports of illegal activity in the city.

It allows us to have everything at our fingertips at one place, Thunberg said.

But privacy advocates say police departments intentionally downplay the cutting edge technology at these centers by claiming they are only compiling existing resources in a central location.

Its intentionally obfuscating the reality of how this is quite different from mere piecemeal data collection, ACLU lawyer Mitra Ebadolahi said.

She said one piece of data obtained on an individual in isolation is likely innocuous. But when data is mined from disparate sources, assembled and analyzed, profiles develop. Some of these may be of innocent people.

Eric Thunberg, Chula Vista Police captain

And so someone who has not committed any kind of wrongdoing is nonetheless a part of the information that is seeding a real time crime center, Ebadolahi said. There's no individualized suspicion that justifies that kind of attention on that individual. And there's also no way of knowing the extent to which that individual's information is in the system and how often it's queried and whether or not there are adverse consequences for that person as a result.

Advocates like Ebadolahi and Rios have also raised concerns about crime centers enabling predictive policing which uses data to forecast crime. Recent reports show the bias in some of these predictive policing technologies.

They disproportionately target Black people and people of color, said Ebadolahi. They disproportionately predict criminality in people of color.

Motorola Solutions, which has built the operations center for the Chula Vista Police Department, asserts in documents that the facility has the capacity to do analytics, facial recognition and AI. Thunberg said the department does not intend to activate those features.

The department has expressed a desire to incorporate predictive policing in its five year strategic plan. But Thunberg emphasized that the departments operations center will not add additional data mining capacity or predictive policing without public discussion.

Thats not something that were just going to flip a switch and turn on, Thunberg said. If we have it down the road, it will be because we vetted it with the community.

Calls for more oversight

Civil rights activists in Chula Vista have pushed for more scrutiny of police surveillance tools.

There needs to be an independent body overseeing the police departments use of technology, said Ricardo Medina, a member of Chula Vistas Human Relations Commission. It needs to have people who understand technology, its privacy consequences, its effectiveness and how to measure it, not through anecdotes, but through hard evidence.

Chula Vista city officials say they are working on creating an oversight commission on police technology use. The hope is that the new body will draft a privacy policy on law enforcement surveillance tools.

Thunberg said he looks forward to receiving input from the panel.

We value that because thats how we get better, said Thunberg, adding the department will be involved. Well be a part of that and be a player.

As a private citizen, Thunberg said he is untroubled by new police technology

Im not doing anything wrong, he said. Im not worried about being watched or followed. I dont have anything to hide.

Hofer argued thats precisely the wrong way to look at the issue.

Its not that we have nothing to hide but that we all have something to protect, Hofer said.

How Chula Vista became one of the most surveilled cities in the country Part 2

ACLU lawyer Ebadolahi said its a message that should resonate with private citizens.

If you arent already, this is the time to take privacy seriously because we are witnessing a rapid proliferation of these technologies, Ebadolahi said. These technologies just keep building on each other and we end up with a massively surveilled community which is just inconsistent with living in a free society. You start to look like a police state.

But Mayor Salas said she is confident that ultimately Chula Vista residents will be satisfied that the citys policing technology are tools to solve crimes, not watch people for no reason.

I love my police, and I know that they're doing the right thing, and they come from the right attitude, she said.

A combination of federal, municipal and private tracking systems has turned the border city of Chula Vista into one of the most surveilled cities in the country, according to privacy advocates. Now a new high tech operations center for the local police department will work to integrate all the data coming in from police activities.

Border artist Michelle Guerrero struggled with addiction for years, but a surprise pregnancy helped her straighten out her life. Eventually, she taught herself how to paint large-scale murals, in part, by painting murals on the actual border fence. These days, she goes by Mr B Baby, and she travels the West Coast and Mexico, painting huge Mexican-inspired murals in a style that is her own.

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How Chula Vista became one of the most surveilled cities in the country - KPBS

NEWS AND OPINION:

Easy come, easy go? Fox News Sunday host Chris Wallace has announced he has left Fox News the nations leading cable news provider to become a fixture at CNN+ the networks new streaming service. Mr. Wallace, CNN and Fox News issued fairly cordial statements and that was that.

Follow-up press coverage in the hours that followed his announcement, however, was politicized very quickly.

Some headlines centered on former President Donald Trump, or the Make America Great Again fans who follow him.

Chris Wallace quits Fox News for CNN after years of Trump attacks, challenging the GOP, said Newsweek. The Daily Beast cited six times that Mr. Wallace feuded with his right-wing colleagues.

Then there was this stark headline from Breitbart News: Wallace quits Fox News. Welcome home! MAGA hater to CNN.

There was a little drama too. Politics, media worlds react to Wallace News, declared The Hill.

Those particular worlds reacted with shock to the news, the news organization said, quoting tweets from Republican Sens. Lindsey Graham of South Carolina and Mitt Romney of Utah, among other public figures who expressed surprise and support or sent congratulations.

As a news item, though, Mr. Wallaces sudden announcement has already given way to the traditional media parlor game: Who will replace the outgoing host, who spent 18 years at Fox News?

A source said that Bret Baier, John Roberts, Shannon Bream, Martha MacCallum, Neil Cavuto and Bill Hemmer would be among the names expected to fill in as Fox News Sunday hosts in the interim, reported Deadline.com, an industry insider source.

As was once said in the broadcast business: Stay tuned.

WHOS WATCHING YOU?

Those who fret over the constant presence of webcams and security cameras might want to peek in on the 2021 Cato Surveillance Conference a live online event which takes place Tuesday.

Academics, technologists, policymakers, and privacy advocates will be on hand to parse out the pressing topic in privacy and digital civil liberties, among other things.

The organizer here is the Cato Institute a libertarian public policy think tank which advances solutions based on the principles of individual liberty, limited government, free markets, and peace.

Americans in the age of COVID-19 are relying more than ever on digital networks to work, socialize, and learn which makes safeguarding the privacy and security of those networks even more essential, the organization notes in a guide to the event.

Well demonstrate just how vulnerable the ubiquitous Internet of Things makes us with a live hacking demonstration, the guide said.Topics include the surveillanceindustrial complex, virtual classrooms and the potential of schools to use spyware to monitor students, issues related to the Fourth Amendment, and the links between anonymity and freedom.

The event runs from 9 a.m. to 4 p.m. Eastern time; viewers are invited to submit questions on Twitter using the hashtag #CatoSpyCon. Find information on the conference at CATO.org/events.

MORE TEPID NEWS FOR DEMOCRATS

From our Uh-oh Desk comes news that only 22% of U.S. voters want President Biden to run for reelection in 2024. That includes 8% of Republicans, 8% of independents and 37% of Democrats, So says an Issues & Answers poll of 1,013 registered U.S. voters conducted Dec. 1-4.

The news however, was not very promising for other possible Democratic contenders as well.

A White House run by Vice President Kamala Harris drew 12% support, Transportation Secretary Pete Buttigieg warranted 4% support. Another dozen senators and representatives plus several governors won between 1%-3% support. That list included Sen. Elizabeth Warren of Massachusetts and Rep. Alexandria Ocasio-Cortez of New York.

Another 6% of the respondents were looking for some other candidates while 31% were not sure about the matter.

Among other things, the data suggest that at just under 11 months into his term as president, Bidens political support, never strong to begin with, is collapsing, noted an analysis by Issues & Insights editor Terry Jones.

ONE FOR MARK LEVIN

It is interesting to note that Mark Levins book American Marxism currently tops the Amazon Best Sellers of 2021 (So Far) a popularity list which includes hardcover and Kindle eBooks, CDs and vinyl records, video games and other offerings.

Mr. Levins book published July 23 is currently the most popular product of the year according to sales and public interest.

Levin explains how the core elements of Marxist ideology are now pervasive in American society and culture from our schools, the press, and corporations, to Hollywood, the Democratic Party, and the Biden presidency and how it is often cloaked in deceptive labels like progressivism, democratic socialism, social activism, and more, notes Threshold Editions, the conservative imprint of publishing giant Simon & Schuster.

The author writes in his opening paragraph that the counter-revolution to the American Revolution is in full force. And it can no longer be dismissed or ignored for it is devouring our society and culture, swirling around our everyday lives, and ubiquitous in our politics, schools, media, and entertainment.

Mr. Levin is a Fox News host, nationally syndicated talk-radio host, and host of LevinTV, an online broadcast. This is his seventh book.

POLL DU JOUR

45% of U.S. adults say the national news media is overreacting in their descriptions of the omicron variant of the coronavirus.

74% of Republicans, 48% of independents and 20% of Democrats agree.

41% say the media descriptions are about right.

19% of Republicans, 38% of independents and 63% of Democrats agree.

14% say the media is not taking the variant seriously enough.

6% of Republicans, 14% of independents and 17% of Democrats agree.

SOURCE: A CBS News poll of 1,731 U.S. adults conducted Dec. 7-9.

Helpful information to jharper@washingtontimes.com.

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Inside the Beltway: The Chris Wallace press tour - Washington Times

Supreme Court Justice Clarence Thomas asked U.S. Solicitor General Elizabeth Prelogar during arguments Wednesday on a new Mississippi abortion restriction where in the Constitution does she find the right to abortion.

"If we were talking about the Second Amendment, I know what we're talking about. Because it's written, it's there. What specifically is the right here [to abortion] that we're talking about?" he asked.

Related Video: Sotomayor In Abortion Case: Will The Institution Of The Supreme Court "Survive" If The Public Believes It Is All Political?

SOLICITOR GENERAL ELIZABETH PRELOGAR: The right is grounded in the liberty component of the 14th Amendment, Justice Thomas. But I think it promotes interests in autonomy, bodily integrity, liberty, and equality. I think it is specifically the right to abortion here, the right of a woman to be able to control without the state forcing her to continue a pregnancy whether to carry that baby to term.

THOMAS: I understand we are talking about abortion here.

But what is confusing is that we -- if we were talking about the Second Amendment, I know exactly what we are talking about. If we're talking about the Fourth Amendment, I know what we're talking about because it's written. It is there. What specifically is the right here that we are talking about?

PRELOGAR: Well, Justice Thomas, I think that the court in those other contexts, with respect to those other amendments, has had to articulate what the text means and the bounds of the Constitutional guarantees. And it has done so through a variety of different tests that implement First Amendment rights, Second Amendment rights, and Fourth Amendment rights.

I don't think there is anything unprecedented or anomalous about the right that the court articulated in Roe and Casey, and the way it implemented that right by defining the scope of the liberty interest by reference to viability and providing that's the moment when the balance of interest tips and when the state can act to prohibit a woman from getting an abortion, based on its interest in protecting fetal life.

THOMAS: So the right, specifically, is abortion.

PRELOGAR: The right of a woman, prior to viability, to control whether to continue with a pregnancy, yes.

THOMAS: Thank you.

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Clarence Thomas: "What Specifically Is The Right" To Abortion In The Constitution? Where Is It Written? - RealClearPolitics

A police officers seizure of socks and underwear from a hospital room violated the constitutional rights of a teenage boy accused of killing his elderly neighbor, but excluding theevidencefrom the clothes would not have changed the outcome of the criminal proceedings, the Ohio Supreme Court ruled recently.

A Supreme Court majority affirmed the convictions of J.L., who was 15 when hepleadedno contestto multiplechargesarising from a March 2015 incident, which culminated in the murder of a 94-year-old in her Niles home. J.L. wassentencedto life imprisonment without the possibility ofparolefor aggravated murder, along with an additional 30 years inprisonon othercounts.

The Court unanimously concluded that a Trumbull County Common Pleas Court incorrectly denied J.L.s request tosuppresstheevidenceobtained from the clothes he wore when taken to a hospital after his mother discovered blood on him. However, the justices were divided 4-3 on whether the error had a substantial impact on J.L.s decision to plead no contest.

Writing for the Courtmajority, Justice Patrick F. Fischer noted the police collected evidence of the victims DNA from J.L.s body and other clothes located at his home. Because any evidence from the socks and underwear would have been duplicative of what theprosecutionalready obtained, thetrial courtsdecision to allow the illegally seized evidence was harmless error, Justice Fischer wrote.

Chief Justice Maureen OConnor and Justices Sharon L. Kennedy and R. Patrick DeWine joined Justice Fischers opinion.

In a partiallyconcurringanddissenting opinion, Justice Michael P. Donnelly agreed with the majority that the socks and underwear evidence taken from the hospital was inadmissible, but found there was no basis to conclude that the trial courts failure to suppress that evidence did not contribute to or have a material effect on J.L.s decision to plead no contest. He argued the Court should haveremandedthe case to the trial court for further proceedings.

Justices Melody J. Stewart and Jennifer Brunner joined Justice Donnellys opinion.

When J.L. arrived home in the late afternoon, his mother discovered blood on him. Believing her son had been assaulted, she called the Niles Police Department. Niles Police Officer Todd Mobley arrived at the home and found J.L., who appeared intoxicated, wearing only socks and underwear, and repeatedly saying statements such as theyre going to kill me for this. Mobley, who noted J.L. had blood on him but no visible injuries, arranged to transport the teen to the hospital.

As an ambulance departed with J.L., Mobley was directed to a home across an alley from J.L.s and met the victims daughter. Two detectives joined Mobley and the officers discovered blood everywhere and the victims body in a bedroom.

Niles Officer Michael Biddlestone was instructed to secure J.L. as a suspect in the victims death. Biddlestone handcuffed J.L. to his hospital bed. Hospital staff removed J.L.s socks and underwear. A nurse advised the officer that there was blood on J.L.s groin and that the nurse wiped his groin clean with a washcloth.

Biddlestone obtained the socks, underwear and washcloth from the hospital room. A detective who searched the victims home obtained a searchwarrantthat allowed for a swab of J.L.s cheeks, penis and hands for DNA evidence. Hospital personnel obtained fingernail scrapings from J.L. and provided them to the detective.

J.L. was charged in juvenile court withdelinquencycounts related to the victims death. The juvenile court granted the Trumbull County prosecuting attorneys request to transfer the case to adult court. J.L. then was charged with multiple counts, including aggravated murder, aggravated robbery and attempted rape.

J.L.filedamotionto suppress evidence taken from the hospital room, including the socks and underwear, the washcloth and the fingernail scrapings. The trial court denied the motion.

J.L. pleaded no contest to all the charges. Along with his prison sentence, he was also classified as a Tier III sex offender.

J.L.appealedhisconvictionand sentence to the Eleventh District Court of Appeals, whichaffirmedthe trial courts suppression rulings. J.L. appealed the decision to the Supreme Court, which agreed to consider his argument that the personal items seized from the hospital room without his consent and without a warrant violated his rights under the Fourth Amendment to the U.S. Constitution.

The Fourth Amendment protects people against unreasonable searches and seizures, Justice Fischer explained, and the evidence collected at the hospital fell into three distinct categories for the Court to determine if the seizures were constitutional.

The Court first examined the washcloth, which J.L. claimed that along with his clothing was his personal property and that he had an expectation of privacy in it. Theprosecutormaintained the washcloth was hospital property, arguing that J.L. had no privacy interest in the washcloth because J.L. had no injuries. The blood wiped from his body with the washcloth was not his blood, but rather the victims, the prosecutor argued. Because police had a warrant to swab his penis, the police would have inevitably discovered the victims blood from the same area of J.L.s body as that which was removed by the washcloth, the prosecutor asserted, meaning it would have been admissible.

Because the penile swabs revealed the victims DNA, the Court affirmed the decision to allow the washcloth seizure.

J.L. also challenged the fingernail scrapings, arguing the warrant allowed for the swabbing of his hands, but did not specifically mention or authorize taking fingernail scrapings. Citing U.S. Supreme Court decisions, the opinion stated that the purpose of a search warrant prevents general searches that allow for wide-ranging exploratory searches. In this case, the warrant did not authorize an open-ended search but only allowed for three specific areas of J.L.s body to be searched, including his hands.

Because the fingernails are part of an area specified in the search warrant, the Court permitted the search and seizure of J.L.s fingernails.

The prosecution maintained that it did not seize J.L.s socks and underwear because it was the hospital staff that took them from J.L.. Once removed, J.L. had no expectation of privacy in the clothing, the state maintained.

J.L. argued that when the hospital took his clothing, the hospital was merely holding his property and had no right to possess them or give them to anyone else. The Court agreed that it was the police, not the hospital, that seized the clothing. It concluded that the prosecution had failed to establish that any exception to the search-warrant requirement applied to the seizure of the clothing.

Because some of the evidence J.L. challenged should have been suppressed, the Court stated it had to determine whether the trial courts ruling wasreversibleerror. The opinion noted that a limited number of prior cases address the situation of determining the significance of an error that occurs at a suppressionhearing, which takes place before atrialbegins, and the impact that error has on leading adefendantto plead no contest.

Among the decisions the Court cited was the U.S. Sixth Circuit Court of AppealsUnited States v. Leake(1996) decision. While the federal courts do not have an explicit test to determine harmless error, the Sixth Circuit stated a court must inquire into the degree of success and probability that the excluded evidence would have had a material effect on the defendants decision to plead guilty.

The opinion noted that courts often do not have a full picture of the evidence at the suppression hearing stage, and it is difficult to determine at that time whether excluding the evidence would change the defendants decision to plead no contest. The opinion stated it might be the rare case in which denying a motion to suppress would be considered harmless error.

The Court noted the states Bureau of Criminal Investigation prepared a report that was introduced during the suppression hearing, which contained no test results from J.L.s socks. The report found the victims blood on J.L.s shirt and shoes. A bloodstain from his underwear did contain the victims DNA, but that evidence is duplicative of the DNA evidence that was lawfully obtained from a swab of J.L.s penis.

Because the washcloth and fingernail evidence were obtained legally, and along with the other evidence the police collected, suppressing the evidence from the clothes would not have had a material effect on J.L.s decision to plead no contest, the Court majority concluded.

In his partially dissenting opinion, Justice Donnelly described the majoritys harmful-error analysis as woefully ill-considered and wholly disruptive to the right to appeal certain pretrial rulings following a no-contest plea and fundamentally incompatible with J.L.s right to due process of the law. The dissenting opinion stated the problem is that no evidence of a J.L.s guilt had beenadmittedinto the caserecordat this early stage of the proceedings.

The dissent maintained that at the suppression hearing stage, the trial court only knew the evidence the prosecutor stated it would present if the case proceeded to trial, and the state clearly intended to use the socks and underwear. Justice Donnelly stated he could not see how the majority can fairly say J.L.s decision was unaffected by the trial courts ruling, and that the majority should not usurp J.L.s right to decide for himself whether he would change his no-contest plea had the evidence been suppressed.

Justice Donnelly further stated that the majoritys application of the harmless-error rule practically defeats the reason for pleading no contest, which is to obtain appellate review over a select category of pretrial rulings implicating constitutional rights. From now on, a defendant who enters a no-contest plea to contest an erroneous trial court evidentiary ruling can be stuck with the no-contest plea even after showing that the trial court ruling that induced the no-contest plea was constitutional error.

The dissent stated criminal defendants must now understand that they may lose their cases even if they demonstrate the evidence should have been suppressed. The practical consequences of the decision may be fewer no-contest pleas, more criminal trials, and irreparable damage to the vindication of constitutional rights, the dissent concluded.

Suppressing the clothing taken from the hospital would not give J.L. a free pass, the dissent stated, but both J.L. and the prosecutor deserve the opportunity to reassess their respective positions with a clear understanding of the evidence that may or may not be used at trial, the dissent concluded.

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Ohio Supreme Court: Seizing suspect's clothing at hospital illegal, but did not affect conviction - The Highland County Press

Supreme Court Justice Sonia Sotomayor made a statement respecting the denial of certiorari on Monday in a qualified immunity case where Louisiana police officers repeatedly kicked and punched a man while he was lying on the ground.

In the case stylized as Tucker v. City of Shreveport, the plaintiff, Gregory Tucker, was originally pulled over for two minor traffic violationsbroken brake and license plate lights.

Without physically resisting arrest, Tucker was violently pulled to the ground, causing his face to bleed as it smacked against the concrete. He suffered numerous injuries as a result.

After that, and still in police custody, the flailing plaintiff was repeatedly punched and kicked, ostensibly in order to gain control of his hands and complete the arrest, according to the U.S. District Court for the Western District of Louisiana, which ruled partially in Tuckers favordenying qualified immunity claims raised by Shreveport Police Department Officers Chandler Cisco, William McIntire, Yondarius Johnson and Tyler Kolb as well as the city itself.

The misdemeanor and traffic violations of which he was suspected did not of themselves warrant a particularly high degree of force, Magistrate Judge Elizabeth Erny Foote wrote. Once he landed on the ground, four officers surrounded him and were able to handcuff him in less than a minute; the fact that there were four officers and that Tucker was on the ground where he had less room to maneuver suggests a reduced threat to officer safety.

The district courts fact assessment goes on to note that the officers each punched Tucker at least once, and McIntire kicked him at least three times as Tucker was kicking his legs while on the ground and was not laying still in order to allow himself to be handcuffed.

Ultimately, Judge Foote determined the officers actions were unreasonable violations of the Fourth Amendment and that they were not entitled to qualified immunity because Circuit precedent forbids slamming a non-violent suspect to the ground and because the force employed by the officers clashed with clearly established principle that officers cannot strike a subdued and restrained suspect.

The court noted, in summary:

It is undisputed that as a result of Defendant Officers actions, Tucker cut his forehead and strained his left shoulder. While these injuries are unlikely to be sufficiently severe if the takedown and subsequent blows were reasonable, if the police maneuvers selected were unreasonable, then these injuries may be of constitutional significance. Moreover, one can clearly hear on the video a change in the tone of Tuckers voice; the sound is that of a man in significant pain. Tucker has also testified that he had a black eye for several days after theincident, a headache, and a sprung knee. More significantly, he has testified to psychological damage, including extreme fear of the police that affects his ability to navigate the world. Because the Court must make inferences in Tuckers favor on summary judgment, the Court finds that he has established a constitutional injury.

In a 28-page ruling, the conservative U.S. Court of Appeals for the Fifth Circuit overruled the district courtwithout disagreeing about any of the facts.

It is only with respect to the legal significance of those facts where we ultimately part ways with the district court, George W. Bush-appointed Circuit Judge Kurt D. Engelhardt wrote for the two-judge panel majority.

Considering the record in this manner, we find the district court erred in concluding that the conduct of Officers McIntire and Ciscoin taking Tucker to the groundwas objectively unreasonable in light of pertinent clearly established law in November 2016, the judge wrote in rejecting the lower courts application of precedent because some of them came after the December 1, 2016 date of the incident.

Additionally, Engelhardt rejected the lower courts understanding because none of those prior cases, squarely govern the particular facts at issue in Tuckers dispute.

On these facts, given Tuckers refusal to comply with their verbal directives to put his hands behind his back and quit moving, it would not have been evident to Defendant Officers, based on clearly established law, that they were not entitled to use heightened force in order to gain control of Tuckers hands and place him in handcuffs, the appeals court found, summing up its own analysis of the facts.

In dissent, Barack Obama-appointed Circuit Judge Stephen A. Higginson sharply and tersely disagreedcharacterizing the incident much differently and in line with the detailed findings of the district court that took Tuckers claims at face value, as the law typically demands in summary judgment opinions.

Video footage of the incident confirms the violent takedown and Defendant Officers use of repeated strikes and kicks against Tucker while he was on the ground, the dissent argues. Tucker asserts that, immediately prior to the takedown, he was putting his hands behind his back in compliance with Officer Ciscos order and did not pull away from Officers Cisco and McIntire prior to being taken to the ground. The footage does not blatantly contradict his account.

Higginson also faulted his colleagues for their application and understanding of the Fifth Circuits precedent:

The law is clearly established that the use of violent physical force againstnot to mention the extreme violence of kickingan arrestee who is not actively resisting arrest is a constitutional violation. It may be that the Defendant Officers will nonetheless prove entitled to qualified immunity for the extreme force they used against Tucker from start to finish. But, as the district court found, a jury must first resolve the factual uncertainty as to whether Defendant Officers had justification and urgency to throw Tucker down and repeatedly strike and kick him.

I regret not having persuaded the majority, the dissent continuesbefore commenting on the political salience of the case. I hope, however, our disagreement highlights the importance of recent attention given to the issue of qualified immunity and violent police-citizen encounters.

In her own terse statement, Justice Sotomayor fully endorsed Higginsons dissent.

While this case does not meet our traditional criteria for certiorari, I write to note that the Fifth Circuits reversal of the District Courts detailed order denying qualified immunity appears highly questionable for the reasons set forth by Judge Higginsons thorough dissenting opinion, Sotomayor concluded.

[image via Leigh Vogel/Getty Images]

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Justice Sotomayor Calls Out Fifth Circuits Highly Questionable Reversal in Qualified Immunity Case of Man Kicked and Punched by Louisiana Cops - Law...

Editors note: Once a month through spring, Twin Cities law professors from diverse backgrounds and perspectives are writing about timely constitutional ideas and issues.Heres more about this series and previous columns.

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants certain rights when they have been formally accused of a criminal act. They have the right to a speedy trial (including a public trial without unnecessary delay), the right to a lawyer, the right to an impartial jury, the right to know who their accusers are, the nature of the charges against them, and the right to call witnesses.

This amendment was added to the Bill of Rights in 1791. It satisfies the democratic expectation of transparency and fairness in criminal proceedings. We will briefly explore each of these rights and what they mean in a criminal prosecution.

This amendment and the Constitution itself are important to me as a former state prosecutor because, when followed, they uphold the integrity of prosecution. Theyre special to me as a Black woman because the Constitution was not always meant to protect us as people, but we are now afforded equal protection under the law, and the accused are disproportionately Black people.

The requirements of a public and speedy trial are an essential part of due process. Without this right, criminal defendants could be held indefinitely for unproven accusations. This is one of the most important rights. If too much time passes, witnesses could die, move away, or simply forget what happened. Physical evidence could even be lost.

That said, there is no hard and fast rule on how long is too long to wait for trial. It varies state by state.

However, the U.S. Supreme Court laid out several factors to determine whether a trial is speedy enough. Those factors include the length of delay, the reason for the delay, and the defendants assertion of their right to a speedy trial.

The defendant can also waive their right to a speedy trial. This often happens when it is the accused requesting more time to prepare for trial. The court may ask that they waive their right to a speedy trial in order for the request to be granted.

If the right to a speedy trial has been violated before trial, the court may dismiss the charges. If it is determined the right to a speedy trial was violated after trial, a court could overturn a conviction.

Each state has its own speedy trial rules. When a criminal defendant demands speedy trial, that speeds up the clock and the government then has to bring the case sooner than planned, usually within 50 days of the demand. It also means the defendant must be available and ready for trial.

For federal cases, the Speedy Trial Act of 1974 states the trial must begin within 70 days of the date formal charges are filed or from the date the defendant appears before an officer of the court for which the charge is pending; whichever is later.

In Minnesota, when a defendant demands speedy trial, the trial must begin within 60 days from the date of the demand or plea, or within 10 days if the defendant is in custody for a misdemeanor. This rule does not apply to defendants entering guilty pleas.

The right to have the trial decided by a jury seeks to eliminate bias and protect impartiality. This section of the Sixth Amendment takes the case out of the judges hands and puts the decision-making on jurors. It allows the state and the defense attorneys to have a say in the jury selection. The lawyers on both sides have the opportunity to question the jury panel and screen out anyone who is potentially prejudiced.

Its what you have to look forward to when you receive that juror summons in the mail.

A pool of jury candidates will come into the courtroom for questioning by the lawyers and sometimes the judge as well. For example, if one juror says she hates all cops, she may be stricken by the prosecution. On the other hand, if the same juror said she respects all police officers, would believe anything they say, and is not able to put those beliefs aside to decide the case fairly, she may be stricken by the defense.

Attorneys also get a limited number of what are called peremptory challenges, which allow them to strike a potential juror for no reason at all.

This selection process is also known as voir dire, which is French for to speak the truth. The goal is to choose a diverse cross-section of the community to decide the case without bias.

In addition to a jury trial, this amendment guarantees a public trial. Thats important because it protects the accused from secret trials that may encourage abuse of the system.

There are some exceptions. For example, a judge may close public proceedings or limit access in certain cases to keep order in the court or prevent witness intimidation. You may have seen this in the Bill Cosby or Derek Chauvin trials which had limited access due to the high-profile nature of the cases.

The criminally accused have the right to an attorney. This right also applies to custodial interrogations. That means any time law enforcement questions you about a crime and you are not free to end the conversation, you have the right to a lawyer. It is important because without legal assistance, the police may intimidate or coerce an accused criminal to provide testimony against their will. The right to counsel evens the playing field so people accused of criminal activity cannot be bullied by the government.

Additionally, the right to legal counsel applies any time there is a criminal proceeding. Defendants who cannot afford a private attorney are entitled to a public defender. It doesnt guarantee there will be no conviction. Defendants can still be convicted even if they have the assistance of an attorney.

However, if it is proven that the attorneys performance was not effective or up to the reasonable standard for the profession, the criminal defendant may be able to get their conviction overturned.

Also, if a full defense is hindered by prosecutorial misconduct, the defendant may be able to challenge their conviction.

We saw this happen when Bill Cosby, who was convicted of sexual assault in 2018, was released from prison in July 2021. The prosecutor in that case promised Cosby in 2005 that he would not charge him criminally if Cosby testified in the civil case against him. But the prosecutor went back on his promise and charged Cosby anyway. The court ruled that when a prosecutor makes an unconditional promise of non-prosecution, and when the defendant relies upon that promise to the detriment of his constitutional right not to testify, the principal of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced.

Criminal suspects must be made aware of who their accuser is and the crimes they are accused of committing.

This usually comes in the form of an indictment or formal criminal charge. In state criminal cases, it may come in the form of an arraignment, where an accused person is brought to court to answer a criminal charge. Both types of court hearings will give the accused criminal a list of the charges they face. The Confrontation Clause also gives criminal suspects the right to see their accuser(s) and cross-examine them. They can also call their own witnesses in their defense.

The confrontation of accusers usually plays out in trial when the prosecution calls witnesses who have knowledge of the facts in the case. This clause prevents the government from relying on hearsay or out-of-court statements.

Prosecutors must put their witnesses on the stand to testify under oath. The defense attorney representing the accused criminal can then question the governments witnesses to discredit them or poke holes in the states case. The questioning is often hostile and puts pressure on the witnesses to tell the truth.

The defense attorney can call witnesses at the end of the states case to tell the defendants side of the story but there is no requirement to do so. The defendant also does not have to testify in his or her own defense.

Other constitutional rights pertaining to suspected criminals include the Fourth Amendment right to be free from unreasonable search and seizure and the Fifth Amendment right to be protected from self-incrimination. But thats another article for another day.

If you have ever wondered how an attorney can defend a murderer, child abuser, or any other terrible criminal, remember, alleged criminals have rights too. They are the accused and are innocent until proven guilty. Criminal defense attorneys protect their clients constitutional rights and keep the government from abusing the system.

DeShayla Strachan is a visiting assistant professor at Mitchell Hamline School of Law. She is a former prosecutor as well as a former journalist.

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DeShayla Strachan: Defendants have rights too: How the 6th Amendment guards against government abuse. - TwinCities.com-Pioneer Press

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If your giant middle finger to a congressional committee contains a footnote acknowledging that certain public statements made by your client may constitute a privilege waiver, youre probably starting off a little behind the proverbial STFU Eight Ball.

And so attorney Charles Burnham has opted to go on offense with the January 6 Select Committee when announcing that his client John Eastman intends to assert his Fifth Amendment right against self-incrimination in response to a subpoena regarding his role in the Capitol riot. Because shutting up will be a novelty for the conservative law professor who authored the infamous Coups for Dummies memos explaining how the Vice President could overthrow democracy in five easy steps. Particularly since Eastman just went on Steve Bannons podcast yesterday to yell some more about how hes done talking.

Burnhams theory is similar to the wackassery put forth by former DOJ lawyer Jeffrey Clark, who argued that the Select Committee has no subpoena power because it lacks a Ranking Member. According to Burnham, subpoenas can only be issued after consultation with the Ranking Member, and no one on the Committee was appointed by Minority Leader Kevin McCarthy, ipso facto propter hoc, the subpoenas are illegal.

Burnham conveniently elides the fact that, of the five Committee members McCarthy proposed, Pelosi only blocked Reps. Jim Jordan and Jim Banks, after which the other three members refused to participate. Although he does CC all five of the nominees on his letter, because LOL, so crafty.

In fact, the Committee does have two Republicans: Vice Chair Liz Cheney and Rep. Adam Kinzinger. But they dont count, according to Burnham and Eastman, because they werent anointed with holy oil by the GOP Conference.

Here on Planet Earth, thats a political question, and the House can run itself any way it likes. But Burnham isnt making a real legal argument here. He goes on to howl about a preservation letter sent to telecoms for January 6 communications without a search warrant based on probable cause, adding The threat to First Amendment freedoms and Fourth Amendment rights inherent in such a demand is palpable.

Okay, buddy, maybe switch to decaf.

And heres his bizarre argument that the supposed lack of a Ranking Member is tantamount to a deprivation of due process in violation of the Fourth Amendment, since theres no one to get overruled or outvoted when it comes to subpoenas and contempt referrals:

The Chair and the Committee thus serve as prosecutor, judge, and jury, contrary to the most basic requirements of due process. The only check on this inherently unfair process is that, under the rules, a member of the committee may appeal the ruling of the chair. Id. But without a single member of the Committee having been appointed after consultation with the minority leader, it doesnt take a rocket scientist to realize that even that check is meaningless with this particular committee.

Also holding closed hearings and barring the witnesses from discussing their testimony is terrible because it allows House Members to selectively leak to favored news outlets Burnham argues in a letter which was immediately turned over to Bannons co-host Raheem Kassam, who let wingnut media get a 24-hour head start on spinning it as John Eastmans Lawyers Just Destroyed the Jan 6 Committee and Its Subpoenas. Youre going to want to read this letter in full. before Politico finally got its hands on a copy.

(Fun fact: Kassam is married to Kraken lawyer Emily Newman.)

The foregoing discussion provides important background as to why Dr. Eastman, though innocent of wrongdoing, would choose the invoke the Fifth Amendment, to which we now turn, Burnham says, eight pages into his ten-page nastygram.

And citing statements from Committee members suggesting that criminal prosecution might be in order for some members of the former presidents inner circle, he is further declining on Fifth Amendment grounds to provide the requested privilege log.

But Eastman isnt claiming, as Clark did before him, a rightnot to appear at all. Hed clearly like to be spared the ignominy of spending four hours in a Committee hearing room getting dunked on over and over as he either tries to claim attorney-client privilege for a memo he forwarded to half of DC or says over and over I decline to answer on the advice of counsel citing my right against self-incrimination. But Steve Bannon tried that one and wound up in handcuffs.

Or, as he put it in his intro to Eastmans appearance, yesterday, Im focused on destroying brick by brick this radical regime that is the Biden administration. And proud of it, so suck on that, Democrats, embrace the suck.

Clarks antics got him a criminal referral that will be sent to the wider House for a vote if he doesnt show up in the mood to cooperate for scheduled testimony this weekend. So what are the odds that the Committee takes Burnhams piss off letter and lets Eastman walk away clean?

LOL, lotsa luck.

Eastman Letter

Elizabeth Dyelives in Baltimore where she writes about law and politics.

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John Eastman Makes Belated Decision To Shut The Hell Up - Above the Law

After reading the story "Report: 6 Palestinian rights activists hacked by NSO spyware," I felt inspired to respond. This issue is extremely relevant to our 21st century society.

The use of discreet spyware to obtain information about an individual is a violation of common liberties. Privacy should be honored and protected.

In today's era, technology plays a major role in all aspects of life. It allows people to use their freedom of speech to, for example, publicly voice their opinions online, even if it could be interpreted controversially. The article highlights an important right of privacy which can so easily be violated.

It described Palestinian American activists who were hacked by an Israeli hacker-for-hire company. The Fourth Amendment specifically protects against unreasonable searches and provides security both inside our homes and in personal effects.

This constitutional right should apply to outside sources as well. The government should be held accountable for creating an environment which respects personal privacy from domestic and foreign encroachments.

Ubai Aboudi, one of the U.S. citizens affected by the use of spyware says he lost "any sense of safety' through the dehumanizing hack of a phone that is at his side day and night and holds photos of his three children."

The reality is that most of an American's life can be traced through analyzing their cellphone usage. This information and power needs to be guarded to ensure that cellphone data is sheltered against unjustified disclosure.

Alicia Brak

Round Lake

Visit link:
Protect devices from invasive spying - Chicago Daily Herald

A federal lawsuit alleging unlawful arrest and reckless use of force by Athens-Clarke police has been filed on behalf of an Alpharetta manwho was tased during his arrest outside a tavern in downtown Athens more than a year ago.

The suit was filed Nov. 28 in U.S. Middle District Court against the Athens-Clarke County government and police officers Enrique Rivera and Ethan Marsden. A third officer was listed in the suit as John Doe.

Atlanta attorney Harry Daniels, who specializes in civil rights cases, announced the lawsuit Monday. Charges of disorderly conduct and obstruction against London Rozier Best were dismissedon Nov. 9, 2020, about a month after his arrest.

Athens attorney Greg Sowell, who represents Athens-Clarke County in the matter, could not be reached for comment early Tuesday.

More: Video of downtown Athens arrest sparks questions about use of force

At the time of his arrest, Best was a football player for Campbell University, a private college in North Carolina. He now plays for a junior college in California, according to Daniels.

The arrest occurred about 11 p.m. on Sept. 29, 2020, outside the Centro Bar on Clayton Street, where a bystander made a video of the arrest that began after officers had Best on the pavement, where one officer used his taser.

A Centro manager had called police following a disturbance at the bar, from which Best was subsequently banned.

While he was standing along the street, the suit alleges Best used an expletive that was heard by an officer, but that the comment was an expression that he didnt care that he couldnt reenter Centro.

The suit claims Best did not resistarrest and the use of the stun guncausedhim pain and ongoing emotional distress.

Police conducted an internal investigation, which Daniels saidmisrepresented the reason for the arrest. They said Mr. Best was arrested for failing to leave the property.

But the initial incident report clearly shows he was arrested for using profanity. The problem with that is you cant get arrested for cursing that clearly is the law in Georgia, said Daniels, who explained he was in law enforcement before becoming a lawyer.

The suit, which seeks damages to be determined by a jury, also alleges a violation of Best's First and Fourth Amendment rights againstfalse arrest and malicious prosecution.

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Athens-Clarke government, police officers sued over 2020 arrest that involved taser - Online Athens

Courts routinely grant qualified immunity to officers who shoot first and think later. That's a serious barrier to police accountability and fairness.There are others.

Chris Kemmitt and Kevin Jason| Opinion contributors

Police reform: Departments across the country are considering changes

From chokehold bans to qualified immunity, here are some of the biggest changes happening in police departments across the country.

Just the FAQs, USA TODAY

For decades, qualified immunity has provided a safe harbor for police malfeasance. The court-developed doctrine says police officers and other government officials generally cannot be sued for damages, even when they unconstitutionally kill or injure people, unless a previous court decision has ruled that nearly identical conduct violated the Constitution.

In this way, qualified immunity denies the victims of police violence the opportunity to seek justice through civil damages in court and removes an important mechanism for police accountability. Unsurprisingly, it has led to a series of grotesque injustices, with officers escaping liability for setting a man on fire, allegedlystealing hundreds of thousands of dollarsand shooting a driver for slowly rolling his car forward with nobody in the vehicles path.Yet as bad as qualified immunity is, eliminating it is only the first step towardreining in discriminatory and violent police behavior.

The Supreme Court and lower federal courts have long allowed the police to get away with discriminatory conduct and unnecessary violence by ruling that the Constitution permits it. Eliminating qualified immunity will only hold police accountable for violent and discriminatory conduct that courts already view as unconstitutional.

Considerthe Supreme Courts approach to police violence, which is governed by the Fourth Amendmentprohibition on the use of excessive force.

The court has not imposed on officers a dutyto deescalate encounters when possible. It has not requiredofficers to use the minimum force needed to accomplish their work. It has, however, ruledpolice may constitutionally use deadly force even when death or serious injury could be readilyavoided.

Qualified Immunity: Police recruitment was already tough. Attacks on qualified immunity make matters worse.

Rather than provide officers with concrete guidance regarding the use of force, the court has adopted an ambiguous reasonableness standard that does little to constrain officerdiscretion.

To make matters worse, the Supreme Court has said that lower courts must take into account "the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation.

The Supreme Courts description of split-second judgments mischaracterizes nearly all police encounters with the public.Forcing lower courts to review an officers actions through that false frame leads courts to effectively defer to the officer'sjudgment regarding the need for force.

The result is that courts routinely excuse officers who shoot first and think later. Andsuch actions have led to the deaths of Black community members armed with nothing more than a wallet,a cellphoneor a Snickers bar.

The Supreme Courts malign influence on police conduct is not limited to its permissive approach to police violence. It has also created doctrines that enable discriminatory police practices and over-policing of communities of color.

David Mastio: Americans' conversation about police reform isn't going away. Here's an updated look.

One example is the courts approach to police stops of vehicles and pedestrians. Notoriously, in 1996, the Supreme Court decided an officers intentions, even when improperly based on race, play no role in examining the reasonableness of a seizure.

Effectively, the court ruled the Fourth Amendment allows an officer to pull over a Black driver for being Black so long as the officer can identify a potential legal infraction a broken taillight, a failure to signal when switching lanesor any other such minor traffic violation to justify the stop.

The courts view of the Fourth Amendment facilitates over-policing in another way, too:by ignoring the lived experiences of the Black community.

Under court precedent, a police encounter does not trigger Fourth Amendment scrutiny unless the interaction would be nonconsensual or coercive to a hypothetical reasonable person. But the standard for what is unreasonablehas long been divorced from reality.

In determining whether a reasonable person would feel free to leave or refuse consent to search, the overwhelmingly white members on the federal judiciary have routinely discounted how communities of color have a palpable and understandable fear of police. As a result, officers expecting little resistance are essentially permitted to intrude in the lives of Black individuals while white individuals experience stronger Fourth Amendment protection.

These are just a few examplesthatprove a larger point: Qualifiedimmunityis one of manyseriousbarriers to accountability andfairness in policingin a court system that otherwise allows police to act with nearimpunity, to the unique detriment of communities of color.

In evaluating how individualsinteract withlaw enforcementin Fourth Amendment cases, federalcourts shouldmore squarely center race and thecheckered history of policing.State and localcourts andlegislatures canlimit the circumstancesthat may trigger apoliceencounter, shiftthestandardof officer-imposedforce from what is "reasonable" to what is "necessary," and make it easier to demonstrate that discriminatory policing has occurred.

Advocates must continue the fight to end qualified immunity, but they must simultaneously pursue law reform that tackles these other doctrines thattransform obviously bad and discriminatory policinginto lawful policing.

Chris Kemmitt is deputy director of litigation for theNAACP Legal Defense and Educational Fund.

Kevin Jason is assistant counselfor theNAACP Legal Defense and Educational Fund.

This column is part ofa seriesby the USA TODAY Opinion team examining the issue of qualified immunity. The project is made possible in part by a grant fromStand Together. Stand Together does not provide editorial input.

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NAACP Legal Defense Fund: This is the first step to end police violence. But not the last. - USA TODAY