Category Archives: Fourth Amendment

Updated 9:35am EDT, Saturday, June 6, 2020

FORT WAYNE, Ind. (AP) A lawsuit alleging that a northeastern Indiana sheriff violated a teenage boy's constitutional rights during an altercation last year at a festival has been transferred to federal court.

The lawsuit against Allen County Sheriff David Gladieux was filed by the parents of a 15-year-old boy in a county court, but it was moved to U.S. District Court in Fort Wayne after Gladieuxs attorneys filed a notice of removal.

The suit claims that Gladieux injured the teen and violated his rights under the Fourth Amendment during a July 2019 altercation. Removal to federal court is common when constitutional questions are raised, The Journal Gazette reported.

Brad and Erin Bullermans son was a volunteer during Fort Waynes Three Rivers Festival in July 2019. The couple's suit alleges that Gladieux smelled of alcohol and pushed their son to the ground, injuring him when he fell onto a metal stake, after the teen asked to see Gladieuxs VIP pass to a restroom area.

Their suit is seeking $300,000 for medical costs, emotional distress and other damages, according to documents now filed in federal court.

Gladieux, who was charged with misdemeanor battery in September, has said he used a sweeping motion to move the boys hands from the sheriffs chest before the youth fell. Gladieux was placed in a pretrial diversion program and ordered to pay a $334 fine and complete accredited anger management and alcohol treatment courses.

If he complies with all the programs terms, the battery charge will be dismissed Oct. 18.

The sheriff has apologized for his actions but says he did not commit battery. In a statement after he was charged, Gladieux said he failed to conduct myself in a manner fitting my office.

Read more here:
Suit against NE Indiana sheriff transferred to federal court - Huron Daily Tribune

When I joined the military, some 50 years ago, I swore an oath to support and defend the Constitution. Never did I dream that troops taking that same oath would be ordered under any circumstance to violate the Constitutional rights of their fellow citizensmuch less to provide a bizarre photo op for the elected commander-in-chief, with military leadership standing alongside.

Under what circumstances may the government use lethal and non- or lesser-lethal force in the face of unlawful protests, riots, and looting? The answer is context dependent. But the use of such forcewhether exercised by state or federal armed forcesis always constrained by a fundamental constitutional principle of reasonableness, so long as no armed conflict exists. Although I agree with everything Mark Nevitt wrote in his Just Security article on the powers and limitations of the Presidents response to the recent protests, it is important to ground the discussion in constitutional norms rather than just Department of Defense understandings or policy which would apply to use of the US military as well as federal and state law enforcement authorities.

It is critical to understand the scope of the state and federal governments authority to use physical force against individuals. Although federal and state authorities generally have authority to control domestic violence and discretion to determine the means necessary to do so, they must exercise that authority and discretion reasonably under the U.S. Constitution. In fact, the use of force continuum to which law enforcement agencies generally adhere as policy should be understood to be a constitutional requirement.

The Use of Force and the Constitution

All uses of lethal and non- or lesser-lethal physical force by government agents must be reasonable under the circumstances. This is not only wise policy, it is a constitutional demand. Reasonableness is required either by the Fourth Amendment or by the general constitutional demand that all government action be reasonable and non-arbitrary. In this context, the latter reasonableness requirementthat all government action be reasonable and non-arbitrarycan also be based in the Due Process Clauses of the Fifth and Fourteenth Amendments which protect against government infringements of personal liberty, including the infliction of physical injury.

Although not all measures to control crowds, riots, or looting necessarily implicate the Fourth Amendment, some certainly would. The Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures. Searches and seizures always entail the use of some measure of actual or constructive forcebroadly construedagainst persons and property.

The Fourth Amendment requires that all searches and seizures be reasonable. Courts interpret this requirement contextually. Reasonableness has substantive and procedural components. Substantively, there must be a legitimate constitutional basis for a search or seizure. Procedurally, both must always be conducted or executed reasonably. Measures adopted to control riots, looting, and crowds typically restrict or deprive individual movement, and therefore implicate arrests and other seizures.

Arrests involve substantial restraints on ones freedom of movement, typically taking someone from a public or private place where they have a right to be and placing them in government custody. Substantively, arrests require probable cause that the individual committed a crime. Procedurally, police may make arrests without a warrant for any crime committed in the officers presence or for a felony committed outside of an officers presence. Additionally, police may use only reasonable force to effect an arrest.

Seizures occur when someones movement is temporarily restricted in some meaningful way by an intentional show or use of government authority, including force short of an arrest. Substantively, in a law enforcement context, seizures are constitutional if they are based upon a reasonable suspicion that criminal activity is afoot or if there is some other specific, legitimate law enforcement purpose. Criminal behavior could include looting, assault, trespassing or a curfew violation. Other legitimate purposes for a temporary stop might include checking identification for a limited access area (such as by verifying press credentials, employment or residency) or seeking information related to a recent crime in the area. Procedurally, seizures are constitutional if the measures taken to effect a seizure, and during it, are reasonable under the circumstances. For example, stopping a suspicious person and conducting a non-intrusive frisk for weapons is appropriate if there is a reasonable suspicion both that the person may be involved in criminal activity and that they are armed and potentially dangerous.

Riot- and crowd-control measures include arrests and seizures, but not all measures would necessarily involve one or the other. Often, in these situations, an individuals movement or behavior is restricted or limited in some way, but they are free to leavein Fourth Amendment termsto go somewhere or do something else. A seizure occurs only when an individual is temporarily and intentionally immobilized, whether voluntarily or involuntarily, by a government agent. Efforts to effect a seizure or arrest must always be reasonable under a totality of the circumstances.

Notwithstanding the Fourth Amendment, there is also a strong argument that all government action must be reasonable in order to be constitutional. Generally speaking, government action must be reasonably calculated to achieve (or rationally related to) a legitimate government purpose. The government action must also be a reasonable and permissible means of achieving that legitimate purpose. As Justice Marshall wrote in McCulloch v. Maryland:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

This is a general principle of constitutional law. Government action must be appropriate and plainly adapted to its alleged purpose. Not only must it not be prohibited by the Constitutions text, it must be consistent with the Constitution. Every use of physical force not amounting to a search or seizure must also, therefore, be reasonably directed to a legitimate end and reasonably necessary under a totality of the circumstances.

The Insurrection Act Does Not Alter These Constitutional Requirements.

The Insurrection Act allows a president broad discretion to use as much of the federal armed forces and state national guard units as he or she deems necessary to quell insurrections against the authority of a state or to remove substantial interferences with the enforcement of federal laws. A president could invoke either of these justifications in response to widespread riots and looting.

These statutes allow a president to take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination or conspiracy. Despite this broad language, the president may not authorize the armed forces to do anything he would like. Although the exigencies of a situation may require some deference to on-the-spot judgement calls, Congress cannot empower a president to violate specifically applicable aspects of the Constitution. The requirement that the use of all physical force be reasonable under the circumstances is one such specifically applicable constitutional requirement.

Recent Examples

Unreasonable use of lethal force that violates the Fourth Amendment.

The President has infamously tweeted that when the looting starts, the shooting starts. In Tennessee v. Garner, the Supreme Court held that the use of lethal force to stop a fleeing suspected felon is a Fourth Amendment seizure that must be reasonable. In this context, lethal force is reasonable only if the suspect presents a threat of serious harm to the officers or others. Shooting unarmed looters who are not engaging in any form of violence against a person would therefore clearly violate the Fourth Amendment as interpreted by the Supreme Court.

Unreasonable use of non-lethal force that violates the Fourth Amendment.

A viral video on social media apparently shows Minneapolis law enforcement shooting several people with rubber bullets or paint balls to force them to go inside a house rather than stand on a private porch. The officers were allegedly enforcing a curfew order. That order, however, prohibited only travel on public streets or places (with certain exceptions not relevant here). Violating the order is a misdemeanor. The curfew is likely a constitutionally reasonable response to the disorder and turmoil that has been taking place in Minneapolis. The Citys website containing the order specifically clarified, however, that people may be outside a home as long as they were on private property.

Under these circumstances, the use of non-lethal force to compel someone on private property to go inside a home was not rationally related to enforcing the curfew order. It also appears to lack any other basis in law and was undertaken without warning. Police were apparently shouting that people go inside their homes. When these individuals did not do so and continued recording, an officer said only light em up before the police fired. No additional warning and no explanation for the over-enforcement of curfew order were given. It would therefore amount to an unreasonable use of non-lethal force. Because the purpose was to confine someone in their home, and doing so is likely a seizure, it also violated the Fourth Amendment. The officers undertaking this action are guilty of an assault. The city is also subject to a civil action under federal law.

Another viral video shows several Georgia police officers apparently arresting two college students inside a car, smashing the cars windows and using tasers on both individuals despite no visible resistance. Under these circumstances, the use of force would not reasonably necessary to effectuate the arrest to enforce the curfew order. Indeed, two days later, the Georgia chief of police fired two of the officers pictured in the video, and the Atlanta mayor condemned the officers actions.

Unreasonable uses of force not implicating the Fourth Amendment.

On Saturday night, May 31, 2020, there were reports of Minneapolis police firing rubber bullets and using tear gas and flash-bang devices to disperse allegedly peaceful crowds or protesters, all without warning. Numerous videos indicate that reporters and their cameramen have been pushed and shoved without warning despite their obvious status. And police in Washington D.C. reportedly used rubber bullets and tear gas to break up peaceful protesters outside the White House this past Monday night on June 1, 2020. This included a now-viral video of police and/or national guard, without warning, striking an Australian reporter and her cameraman with a baton and riot shield, respectively, before also being shot with rubber bullets. And several videos from New York City and Los Angeles over the past week seem to show police driving cars into protesters.

Lets assume the police were correct that a lawful government directive or purpose required the people affected to disperse or leave the area at the time and place that these forcible measures were used. Using such non-, lesser-, or potentially-lethal force without prior warning would be unreasonable if less stringent measures were feasible. Invasions of liberty and personal integrity such as occurred in these incidents must have some specific justification, including the absence or failure of feasible, less-intrusive coercive measures.

These examples do not involve a Fourth Amendment search or seizure. Not only were the individuals free to leavemeaning they were not seized under court precedentthey were forced to do so. But even assuming that end was appropriate, can we say the use of tear gas, flash-bang grenades and less- or non-lethal bullets was proper? Can we say that potentially grievously injuring a person by running into them with a car is a reasonable response? Was it consistent with the Fifth and Fourteenth Amendments to the Constitution? Absent some reasonable justification for failing to use lesser coercive measures, the answer is almost certainly no.

Because reasonableness surrounding the use of physical force is a constitutional requirement, nothing in the Insurrection Act would change the above legal analysis. It does not matter if the government agents are members of the national guard or federal armed forces or of the city police or state troopers. Whether acting under state or federal authority, the U.S. Constitution imposes the same constraints.

* * *

The authority to quell riots and looting must be exercised responsibly, meaning reasonably, at every level. All law enforcement officers, members of the National Guard and members of the federal armed forces must be told and trained to use force only when necessary and only when it reasonably appears that lesser means of coercion are not feasible under the circumstances or have failed. Warnings should be given before using physical force when possible. The Department of Justice and many law enforcement agencies refer to this as the use of force continuum. The continuum is not merely policy, however. It must be understood as a constitutional demand. Reasonableness is determined by what a government agent reasonably perceived in good faith under a totality of the circumstances. Those who have sworn to protect this country and its population have been vested with great power and must therefore show great restraint in the use of physical force.

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The US Constitution and Limits on Detention and Use of Force in Handling Civil Unrest - Just Security

STEAMBOAT SPRINGS As protests across the nation demand sweeping reforms in law enforcement, Colorado lawmakers are making their own attempt to fix a system many claim has been broken for decades.

On Thursday, the state legislature began fast-tracking a bill,SB20-217, known as the Law Enforcement Integrity and Accountability Act. Its proponents see it as a way to address problems in criminal justice and hold officers more accountable for misconduct.

Its critics, from law enforcement officials to public prosecutors, agree with the intent of the bill but raise serious concerns over unintended consequences it could have, not only for those enforcing the law but for the people the law is meant to protect.

Lawmakers developed the bill following more than a week of protests that sparked after George Floyd, a black man from Minneapolis, died while in police custody. Videos from bystanders surfaced of a white police officer pressing his knee against Floyds neck for 8 minutes and 46 seconds, a time that has become a poignant symbol at rallies and at Floydsown memorial.

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The officer, Derek Chauvin, initially was charged with third-degree murder and second-degree manslaughter. On Wednesday, prosecutors charged Chauvin with the more serious crime of second-degree murder. His bail has been set at$1 million, according to news reports.

Three other officers at the scene, J. Alexander Kueng, Thomas Lane and Tou Thao, have beencharged with aiding and abetting second-degree murder. All four of the men have been fired from the Minneapolis Police Department.

While peace officers rarely are convicted over their use of lethal force, Minnesota Attorney General Keith Ellison said he is confident the facts of this particular case support the charges against the men.

George Floyd mattered. He was loved. His family was important. His life had value, Ellison said in an announcement of the new charges against Chauvin on Wednesday. We will seek justice for him and for you, and we will find it.

But the protests are not just about demanding justice for Floyd. The rallies that originally erupted in the wake of his death have grown more organized, calling for fundamental changes to biased policing thatdisproportionately kill and incarcerate people of color.

Since 2015, the Washington Post has maintained a database to track and document every fatal shooting in the United States by a police officer in the line of duty. According to that database, police kill black Americans at a rate more than double that of white Americans, despite black people accounting for just 13% of the countrys population. Findings also show that police shoot and kill Hispanic Americans at a disproportionate rate.

This is evidence of widespread, systemic biases in how officers enforce the law. Matt Karzen, district attorney for the 14th Judicial District, which includes Routt County, described a culture among certain law enforcement agencies that creates an us versus them mentality. Many officers are taught to treat all citizens as potential threats and to be prepared, even in nonviolent situations, to use lethal force.

For domestic law enforcement function in America in 2020, that is a recipe for disaster, Karzen said.

In light of these issues, Colorados Law Enforcement Integrity and Accountability Act seeks sweeping reforms aimed at ridding agencies of bad cops and increasing public transparency.

Among its many provisions would be a requirement for all peace officers to wear body cameras while on duty. Except in certain circumstances, law enforcement must make public all recordings of an incident within 14 days of the incident occurring.

Officers could use deadly force to arrest someone or to prevent a suspect from fleeing only if that person is using a deadly weapon or likely to cause imminent danger.

The bill establishes a database of police misconduct and requires agencies to compile annual reports to the attorney general. The reports would include information on every time an officer used force that resulted in death or serious bodily injury, all instances when an officer resigned while under investigation for violating department policy, all data relating to stops conducted by peace officers and every instance when an officer conducted an unannounced entry.

On these points, Routt County Sheriff Garrett Wiggins generally agrees. His deputies already use body cameras, and he said a database on officers misconduct would be a helpful tool to enforce policies and prevent agencies from hiring people with a history of violations.

As president of the County Sheriffs of Colorado, Wiggins sees a need for reform and supports the intent of the bill.

I do believe there are always ways we can improve how we interact with the public and our policies and procedures, he said.

But Wiggins has his concerns about the bills language and some provisions he said could make it harder for officers to do their primary job of protecting the public.

With regards to the restrictions against using deadly force, the sheriff worried that it could cause a delay in an officers response who is trying to assess if a suspect has a weapon or could cause imminent danger. Those moments of hesitation could let a suspect flee or cause harm to civilians and officers.

Law enforcement officers have to make millisecond-split decisions. Until youve been in that situation, its really hard to understand what law enforcement officers go through, Wiggins said.

His other major disagreement is over a section of the bill that would strip peace officers of qualified immunity. This protection has been in place to safeguard officers from frivolous lawsuits alleging they violated a plaintiffs rights.

Currently, it is not enough for an officer to violate someones rights for that person to file a lawsuit. A plaintiff has to prove an officer violated a clearly established law, such as the current case against the officers involved in Floyds death.

Under the original version of the bill, the officer would have no immunity to these types of lawsuits and would be required to pay 5% or up to $100,000, whichever is less.

Recruiting new peace officers has been a challenge in recent years, Wiggins said. Agencies across the country are having troublekeeping and hiring positions. If officers lose their qualified immunity and are liable for such hefty lawsuits, Wiggins worried it could cause a mass exodus among law enforcement officials.

Overall, he wants lawmakers to take more time reviewing the bill and considering its effects rather than let heightened emotions lead to knee-jerk action.

Others support the elimination of qualified immunity. The American Civil Liberties Union of Colorado started a petition to garner support for the bill. The stock message that the ACLU asks petitioners to sign and send to state senators describes qualified immunity as a legal doctrine that prevents the community from holding police responsible when they violate laws, policies, and community trust. It states that people of color should not have to live in constant fear of the officials meant to protect them.

An amendment to the bill would protect officers from lawsuits as long as they believed their actions were lawful and that belief was objectively reasonable. As Karzen explained, this means an officer would remain immune to a lawsuit if he or she could prove that his or her actions were appropriate and a reasonable person would agree.

This amendment to the bill gives Karzen more confidence that law enforcement would be held to a higher standard while continuing to protect peace officers that act in good faith. Still, it opens up officers to more litigation and punishment, even in cases where lethal force is not used.

Without (the amendment), the job of law enforcement would have been effectively impossible, Karzen said in an email.

The good-faith approach has legal precedent among civil rights cases, Karzen explained. He recalled a case from Georgia in which he represented a client who argued the local sheriff had violated the clients Fourth Amendment right during a search of his home without a warrant. Karzen was able to prove that the sheriff did not have an objectively reasonable cause to search his clients home, awarding the client an $85,000 jury verdict.

The district attorney has other concerns.

The bill, as currently written, only applies to local and county peace officers not state law enforcement, such as Colorado State Patrol or the Colorado Bureau of Investigation. That exclusion confuses Karzen, who does not understand why one type of officer should be held more accountable than another.

It shows (certain state legislators) will go a long way to protect themselves, but not cities and counties, Karzen said, adding that they effectively customized the legislation to protect their interests, namely the state budget.

The district attorney worried the rules requiring the release of body camera footage could harm due process in criminal trials by publicizing sensitive information, such as confessions, before a judge has a chance to review them. The footage also could include information on juvenile suspects or of victims who do not want their interviews to be public, such as survivors of sexual assault. While the bill allows the redaction of nudity or highly personal circumstances, it does not clearly define what circumstances would qualify.

While Karzen is supportive of the bills intent, these and other lingering issues might not survive constitutional challenges, he said.

The Law Enforcement Integrity and Accountability Act has only just begun its journey through the state legislature, and more amendments are likely in the days ahead.

Rep. Dylan Roberts, a Democrat who represents Routt and Eagle counties, signed on as a co-sponsor of the bill. Two of the bills original sponsors, Sens. Leroy Garcia and Rhona Fields, did not respond to requests for comment.

I agree that the legislation should be proposed, and we need to debate it here, Roberts said, adding that the protests make it particularly timely.

He plans to continue conversations with colleagues and stakeholders, from law enforcement officials to civil rights groups, on making further changes. Many of the provisions are not new concepts, Roberts said, and have long been priorities for him and his colleagues.

There may be a perception that this bill is moving fast, but these are conversations we have been having for years, Roberts said.

As a lawmaker, he wants to use his position of power to create more a more equitable criminal justice system that protects, not endangers, Coloradans. The issues will not be solved overnight, but Roberts believes the state cannot wait any longer to seek substantial change.

Given the national unrest and many events that have led us to this point, I think it has called us as legislators to action to get something done, he said.

To reach Derek Maiolo, call 970-871-4247, emaildmaiolo@SteamboatPilot.comor follow him on Twitter@derek_maiolo.

The rest is here:
Policing the police: A controversial bill intended to hold law enforcement accountable could have unintended consequences - Steamboat Pilot and Today

The full weight of U.S. policing has descended upon protesters across the country as people take to the streets to denounce the police killings of Breonna Taylor, George Floyd, and countless others who have been subjected to police violence. Along with riot shields, tear gas, and other crowd control measures also comes the digital arm of modern policing: prolific surveillance technology on the street and online.

For decades, EFF has been tracking police departments massive accumulation of surveillance technology and equipment. You can find detailed descriptions and analysis of common police surveillance tech at our Street-Level Surveillance guide. As we continue to expand our Atlas of Surveillance project, you can also see what surveillance tech law enforcement agencies in your area may be using.

If youre attending a protest, dont forget to take a look at our Surveillance Self-Defense guide to learn how to keep your information and digital devices secure when attending a protest.

Here is a review of surveillance technology that police may be deploying against ongoing protests against racism and police brutality.

Officers wearing new body cams for the first time. Source: Houston Police Department

Unlike many other forms of police technology, body-worn cameras may serve as both a law enforcement and a public accountability function. Body cameras worn by police can deter and document police misconduct and use of force, but footage can also be used to surveil both people that police interact with and third parties who might not even realize they are being filmed. If combined with face recognition or other technologies, thousands of police officers wearing body-worn cameras could record the words, actions, and locations of much of the population at a given time, raising serious First and Fourth Amendment concerns. For this reason, California placed a moratorium on the use of face recognition technology on mobile police devices, including body-worn cameras.

Axon Flex camera system. Source:TASER Training Academy presentation for Tucson Police Department

Body-worn cameras come in many forms. Often they are square boxes on the front of an officers chest. Sometimes they are mounted on the shoulder. In some cases, the camera may be partially concealed under a vest, with only the lens visible. Companies also are marketing tactical glasses that includes a camera and face recognition; we have not seen this deployed in the United States--yet.

A body-worn camera lens is visible between the buttons on a Laredo Police officer's vest. Source:Laredo Police Department Facebook

Sahuarita Police Department display its drones on a table. Source:Town of Sahuarita YouTube

Drones are unmanned aerial vehicles that can be equipped with high definition, live-feed video cameras, thermal infrared video cameras, heat sensors, automated license plate readers, and radarall of which allow for sophisticated and persistent surveillance. Drones can record video or still images in daylight or use infrared technology to capture such video and images at night. They can also be equipped with other capabilities, such as cell-phone interception technology, as well as back-end software tools like license plate readers, face recognition, and GPS trackers. There have been proposals for law enforcement to attach lethal and less-lethal weapons to drones.

Drones vary in size, from tiny quadrotors (also known as Small Unmanned Aerial Vehicles or sUAVs) to large fixed aircraft, such as the Predator Drone. They are harder to spot than airplane or helicopter surveillance, because they are smaller and quieter, and they can sometimes stay in the sky for a longer duration.

Activists and journalists may also deploy drones in a protest setting, exercising their First Amendment rights to gather information about police response to protestors. So if you do see a drone at a protest, you should not automatically conclude that it belongs to the police.

Photo by Mike Katz-Lacabe (CC BY)

Automated license plate readers (ALPRs) are high-speed, computer-controlled camera systems that can be mounted on street poles, streetlights, highway overpasses, mobile trailers, or attached to police squad cars. ALPRs automatically capture all license plate numbers that come into view, along with the location, date, and time. The data, which includes photographs of the vehicle and sometimes its driver and passengers, is then uploaded to a central server.

Photo by Mike Katz-Lacabe (CC BY)

At a protest, police can deploy ALPRs to identify people driving toward, away from, or parking near a march, demonstration, or other public gathering. For example, CBP deployed an ALPR trailer at a gun show attended by Second Amendment supporters. Used in conjunction with other ALPRs around the city, police could track protestors movement as they traveled from the demonstration to their homes.

A 'Mobile Utility Surveillance Tower' at San Diego Comic-Con and a mobile surveillance pole in New Orlean's French Quarter

Hundreds of police departments around the country have mobile towers that can be parked and raised a number of stories above a protest. These are often equipped with cameras, spotlights, speakers, and sometimes have small enclosed spaces for an officer. They also often have ALPR capabilities.

Common towers include the Terrahawk M.U.S.T. which looks like a guard tower mounted on a van and the Wanco surveillance tower, which is a truck trailer with a large extendable pole.

Forward-looking infrared (FLIR) cameras are thermal cameras that can read a persons body temperature and allow them to be surveyed at night. These cameras can be handheld, mounted on a car, rifle, or helmet, and are often used in conjunction with aerial surveillance such as planes, helicopters or drones.

Face recognition in the field froma San Diego Countypresentation

Face recognition is a method of identifying or verifying the identity of an individual using their face. Face recognition systems can be used to identify people in photos, video, or in real-time. Law enforcement may also use mobile devices to identify people during police stops.

At a protest, any camera you encounter may have face recognition or other video analytics enabled. This includes police body cameras, mounted cameras on buildings, streetlights, or surveillance towers.

Also, some police departments have biometric devices, such as specialized smartphones and tablets, that show the identity of individuals in custody. Likewise, face recognition can occur during the booking process at jails and holding facilities.

Social media monitoring is prevalent, especially surrounding protests. Police often scour hashtags, public events, digital interactions and connections, and digital organizing groups. This can be done either by actual people or by an algorithm trained to collect social media posts containing certain hashtags, words, phrases, or geolocation tags.

EFF and other organizations have long called on social media platforms like Facebook to prohibit police from using covert social media accounts under fake names. Pseudonyms such as Bob Smith have long allowed police to infiltrate private Facebook groups and events under false pretenses.

Cell-site simulators, also known as IMSI catchers, Stingrays, or dirtboxes, are devices that masquerade as legitimate cell-phone towers, tricking phones within a certain radius into connecting to the device rather than a tower.

Police may use cell-site simulators to identify all of the IMSIs (International Mobile Subscriber IDs) at a protest or other physical place. Once they identify the phones IMSIs, they can then try to identify the protesters who own these phones. In the non-protest context, police also use cell-site simulators to identify the location of a particular phone (and its owner), often with greater accuracy than they could do with phone company cell site location information.

Fresno Police Department's Real-time Crime Center. Source: Fresno PD Annual Report 2015

Real-time crime centers (RTCCs) are command centers staffed by officers and analysts to monitor a variety of surveillance technologies and data sources to monitor communities. RTCCs often provide a central location for analyzing ALPR feeds, social media, and camera networks, and offer analysts the ability to use predictive algorithms.

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How to Identify Visible (and Invisible) Surveillance at Protests - EFF

Four years ago I wrote an article for PoliceOne that was highly critical of a Ninth Circuit Federal Court of Appeals decision in George v. Morris. [1] This case resulted in a 2-1 decision in which the majority judges ruled against law enforcement officers and failed to comprehend the danger they faced from a subject holding a firearm and refusing to drop it. [2] Now federal judges from the Eighth Circuit, citing George as persuasive authority, have compounded the Ninth Circuits uninformed mistake in a new decision titled Cole v. Hutchins. [3]

In George, officers from the Santa Barbara (California) Sherriffs Office responded to a call from the subjects wife that her husband had a gun and was distraught because of serious illness. Officers found him in the back yard holding a semi-automatic firearm. An officer told him to drop the gun, but George refused. George was holding the gun pointed at the ground. An officer said he raised the gun and pointed it directly at him. Three officers fired at George and he was killed. A firearm containing hollow-point bullets was recovered next to his body.

The lower court in the lawsuit that followed refused to grant the officers summary judgment based on qualified immunity. The judge, following pre-trial procedural rules, declined to accept officer testimony that George raised and pointed the gun before they shot him. Instead, the court accepted as true Georges wifes claim that George was too weak to raise the pistol from his side.[4]

The lower court ruled that if the officers shot a man holding a gun pointed toward the ground after telling him to drop it, they violated clearly established Fourth Amendment rights. The two-judge appellate majority agreed with the lower court and ruled, If the deputies indeed shot the sixty-four old decedent without objective provocation with his gun trained on the ground, then a reasonable jury could determine that they violated the Fourth Amendment. I said in my 2016 article that the Ninth Circuit judges were wrong and cited a scientific study, titled Reasonableness and Reaction Time (Blair Reaction Time Study) to prove my point. [5]

The Blair Reaction Time Study was conducted by Dr. J. Pete Blair, executive director of the Advanced Law Enforcement Rapid Response Training (ALERRT) Center and criminal justice professor at Texas State University. The study involved 30 college students who played the role of suspects and 24 experienced police SWAT team members. Each SWAT team officer was told they were responding to a man with a gun call and to individually approach 10 different suspects, one at a time, who were placed in separate areas of a building. They were told to approach each suspect with their Glock training pistols (which fired marking cartridges) up and pointed at each suspect from a distance of 10 feet. Each suspect had a similar pistol either pointed at their own head or down at their side pointed at the floor. The suspects were told to shoot the officer after being ordered to drop the gun. [6] The officers were told to shoot as soon as each suspect made a move to shoot at them.

The suspects with the guns at their sides were able to raise and fire at the officers in an average of .36 of a second. The officers were able to fire their up and pointed pistols in an average of .38 of a second. The suspects with guns at their heads were able to lower, point and fire in an average of .38 of a second. Officers fired back in .38 of a second. The study proves that once the suspects started movement with the gun from down at their sides or away from their heads, the officers would be shot, regardless of their attempts to return fire. [7] This raises the rhetorical question, were the officers in immediate danger of death or serious bodily harm when the suspects had the guns pointed down at their sides or at their heads? Were the officers in the George case in a life-threatening situation when George held the gun at his side and before George pointed his gun at them?

Now Eighth Circuit judges in the newly decided Cole v. Hutchins case have erroneously adopted the Ninth Circuits unscientific approach in George. In Hutchins, Officer Hutchins of the Little Rock (Arkansas) Police Department, responded to a 911 call from neighbors that there was an altercation in the front yard of the Underwood residence.

Darrell Underwood and his nephew Roy Richards became involved in a physical altercation on Underwoods front lawn around midnight. Before arriving, officer Hutchins was told that Richards was armed with a long gun. Hutchins and a second officer parked a short distance away from the house and approached on foot because of their concern for the gun. A neighbor saw the officers approach and informed the combatants who were still fighting that the police had arrived.

From here the facts are disputed. However, the lower court in the lawsuit that followed this incident was required by pre-trial procedural rules to assume the truth of the plaintiffs version of the facts. [8] In that version, the fight continued for about 10 seconds before stopping by mutual consent. Underwood walked toward his front porch while Richards walked to his vehicle parked in the driveway.

Richards grabbed what appeared to be a rifle from the drivers side of his vehicle. [9] Underwood walked up the steps of the front porch and Richards walked around the back of his car holding the gun vertically and approached the porch. Richards started up the steps, but Underwood entered the home and slammed the front door. Richards walked back down the steps and started back toward his vehicle. According to Underwood roughly five seconds after he closed the front door, he heard five shots. Those shots were fired by Hutchins at Richards and he was killed. [10] It is alleged that Hutchins fired without warning Richards to drop the gun.

Cole, the personal representative for Richards estate, sued Hutchins and the City of Little Rock in federal court pursuant to 42 U.S.C. 1983 for allegedly violating the Fourth Amendment for using excessive force on Richards. The trial judge rejected Hutchins summary judgment motion based upon qualified immunity grounds. He ruled that the law was clearly established at the time of the shooting that an officer could not use deadly force against a person who posed no immediate threat to cause serious physical injury or death. Hutchins appealed to the Eighth Circuit, which affirmed the trial judges ruling.

The Eighth Circuit stated that police use of deadly force is objectively unreasonable absent probable cause to believe the suspect poses an immediate threat of death or serious bodily injury to others. The court stated that a suspects mere possession of a firearm is not enough to establish probable cause that he/she poses an immediate threat of death or serious bodily harm. Instead, the court opined that the suspect must also point the firearm at another individual or take similar menacing action. The court ruled that Hutchins's shooting of Richards was not objectively reasonable because Richards, with his gun pointed either toward the ground or the sky, retreated down Underwoods front steps and turned away from his front door. The court failed to mention or discuss that while the immediate threat to Underwood had lapsed, Richards still presented a deadly immediate threat to Hutchins and his fellow officer. To support its decision, the court cited an earlier Eighth Circuit opinion in which the court declared a police shooting unreasonable and not an immediate threat when the suspect held a gun to his head and began to move it away from his head when shot by police.[11]

The court was also critical of the failure of Officer Hutchins to warn Richards before firing at him. The court observed that a warning is necessary when feasible before an officer uses deadly force. The court explained that while the failure to warn when feasible does not automatically render use of deadly force unreasonable it does exacerbate the circumstances and militates against finding use of deadly force objectively reasonable.

The Eighth Circuits decision ignores the danger Richards posed to the on-scene officers during this incident. The courts focus was on the cessation of a deadly threat to Underwood when he entered his home and slammed the door. The fact that seemed irrelevant and inconsequential to the judges was that Richards was still in possession of what appeared to be a rifle and was walking toward his vehicle, a location that was about to give him the tactical advantage of cover behind the engine block or a vehicle pillar. Moreover, the opinion erroneously takes the position that in order for a suspect holding a firearm to be an immediate threat to an officer or others, he must point it at them or make a similar menacing action (whatever that is?).

This opinion and the earlier opinion of the Ninth Circuit in George demonstrates just how uninformed and out of touch many federal judges are regarding the threat posed to officers by persons holding a firearm, pointed at innocent persons or not, due to the deadly reactionary gap. In fact, Richards would still be a deadly threat to the officers before he reached cover behind his vehicle. He can decide to fire at the officers, rapidly turn, point the gun and fire so quickly that the officer will not be able to react in time. Reaction time studies show that once a decision to shoot is made and the firearm is pointed, a round can be fired in .3 tenths of a second. [12] This means that once the suspect points the weapon approximately four shots could be fired at the officer in 1.06 seconds.

Regarding the issue of a warning before an officer can fire. The Supreme Court in Tennessee v. Garner[13] made clear that warnings should be given if feasible. Common sense tells us that it is not feasible to warn if a reasonable officer believes it would place him in greater danger to warn. If the officer is standing without cover in the open in close proximity to the shooter raising or pointing a firearm, a warning is not feasible. If the suspect has his back to the officer but is holding a firearm, a warning may not be feasible.

In cases like this, it is imperative that attorneys representing accused officers present expert affidavit testimony to enlighten and educate the court in summary judgment motions and appeals concerning the action v. reaction concept, aka the deadly reactionary gap. [14] Moreover, scientific evidence from studies on the deadly reactionary gap, like the findings from the Blair Reaction Time Study and the many reaction time studies conducted by Force Science Institute Executive Director Dr. William J. Lewinski [12] establish beyond question that an officer who waits for a gun to be pointed at him/her can be shot before they can react. This scientific factual evidence must be communicated to all judges involved in cases of this kind.

Police chiefs associations should endeavor to be invited to speak about these matters at federal and local judicial conferences so that skeptical judges are apprised of scientific developments before becoming involved in similar matters.

References

1.736 F.3d 829 (9th Cir. 2013).

2. Callahan M. What the Ninth Circuit got wrong in George V. Morris (and why it still matters now). PoliceOne.Com.

3. (No. 19-1399). (8th Cir. 5/28/20).

4. After the shooting Mrs. George told the police that before they arrived, she tried to physically take the gun out of her husbands grasp but was unable to do so. This contradicted her claim that he was too weak to raise the gun. The court apparently ignored this information by limiting itself to the plaintiffs set of facts.

5. Blair P. Reasonableness and reaction time. Police Quarterly, Vol. 14, Issue 4, pp. 323-343.

6. Eighty percentof the suspects were told in advance to fire and the remainder were told in advance to surrender. The officers were not told how the suspects would react to the order to drop the gun.

7. This assumes accurate shot placement. From a distance of 10 feet, accurate hits are highly probable.

8. When a defendant in a civil rights lawsuit files a pre-trial motion for summary judgment, asking the judge to decide the case on legal or qualified immunity grounds without permitting a jury trial, the legal procedure requires the judge to accept as true for purposes of deciding the motion, the plaintiffs version of material facts when those facts are disputed by the parties.

9. All witnesses believed [it to be] a rifle but later learned it was a pellet gun after the incident was over.

10.Hutchins fired with his patrol rifle.

11.SeePartridge v. City of Benton, 929 F.3d 562, 565-567 (8th Cir. 2019).

12. Lewinski W, Hudson W. Time to start shooting? Time to stop shooting? The Tempe study. The Police Marksman, Sept-Oct 2003 edition. According to a later Lewinski study, every subsequent shot will be delivered in .25 of a second intervals.

13. 471 U.S. 1 (1985).

14. Even if the court refuses to officially consider the scientific study testimony at the pre-trial stage because of legal procedural rules, the judge will nonetheless receive important education on this critical topic.

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Eighth Circuit judges fail to comprehend threat rifle-bearing subject poses to police - Police News

On Tuesday evening, as a large group of peaceful protesters marched over the Manhattan Bridge, members of the New York Police Department parked on opposite ends of the span, trapping 5,000 people over the water for nearly an hour. The night before, in Dallas, police officers corralled protesters on the Margaret Hunt Hill Bridge before arresting 674 of them (they were released later that night, with at-large charges for blocking traffic). That same night in Washington, D.C., police officers drove protesters into a crowded intersection of Swann and 15th NW with teargas. All over the country this week, police officers have surrounded protestersand then refused to let them leave.

This tactic is called kettling, a word you might have seen popping up in social media posts from and about the protests. The term evokes a boiling tea kettle, but it actually comes from a German military term referring to an army thats completely surrounded by a much larger force. Kettling is a law enforcement tactic specifically applied when the police have chosen to criminalize existence in public spaces, says Blake Strode, Executive Director of ArchCity Defenders, a legal advocacy group that has handled kettling cases in St. Louis. So separate and apart from who is caught in them and how people are impacted, which is all true and well-stated, it is also fundamentally about police dictating whom is allowed to be where and when.

Ostensibly a form of riot control, kettling occurs when police officers block off streets and push people into confined areas, like a city block or a bridge. While protest and riot management traditionally focuses on dispersing crowds, kettling is all about containment. When youre kettled, you have no access to bathrooms, very little space, and no place to go. Critically, no one gets to leave until the police say so. Basically, its a pressure cooker without a valve, said civil rights attorney Javad Khazaeli, ArchCity Defenders co-counsel on kettling cases.

In theory, the technique allows police officers to slowly release small groups out the kettle as a way of defusing tension. In practice, however, its deeply problematic. Youre interfering with peoples right and ability to do what the first amendment protects, which is to go out in the street and tell the government what you think, says Jonathan Smith, Executive Director of the Washington Lawyers Committee for Civil Rights and Urban Affairs. It also punishes the innocent for the misconduct of the few. That is also constitutionally infirm. To seize somebody, under the fourth amendment, you need to have a basis for doing so. But when kettling happens, large swathes of people are grouped together indiscriminately.

But kettling is particularly insidious for the way it elevates tension, rather than defusing it. The tactic of completely surrounding a group of civilians leads to panic and increases the likelihood of a physical confrontation between the citizens and the police, said ArchCity Defenders attorney Maureen Hanlon. Tensions run high in a kettleprotesters can become agitated, giving police officers grounds to employ more violent tactics and conduct arrests. Such was the case in Brooklyn this Wednesday, when police officers circled a peaceful protest at Cadman Plazaand then descended with batons. The danger is even greater while battling a pandemic: in addition to garden-variety aggressive policing, kettling is also the opposite of social distancing.

If kettles mark a new phase in this summers wave of protests, they are not a novel strategy for police. One of the first major instances in the United States took place at an anti-globalization and anti-war protest in Washington, DC in 2002, when officers protesters and random civilians alike in Pershing Park. Police hogtied some of those detained and posed for pictures. In 2017, DC police officers kettled protesters at Donald Trumps inauguration. That same year, police officers kettled protesters marching against the acquittal of former police officer Jason Stockley, who fatally shot Anthony Lamar Smith. ArchCity Defenders and Khazaeli are still handling those cases. Perhaps the most infamous kettle took place in London in 2009, when police attempted to contain 10,000 people protesting the G20 summit for several hours. The UK courts subsequently ruled that the maneuver was illegal, and that kettling could only be used as a last resort catering for situations about to descend into violence.

If kettling has been on the rise this week, so has the outcry against it, from AOC (No, this is dangerous, she tweeted, before heading to the bridge) to Mark Ruffalo. But NYC Mayor Bill De Blasio defended the Manhattan Bridge kettle on Wednesday morningsuggesting that, at least in New York, kettling isnt likely to go away any time soon. So what should a protester caught in one do? The Network for Police Monitoring acknowledges that kettles can be hard to anticipate, but youre at less of a risk if you move quickly. To that end, the Be Water protest strategy employed in Hong Kong is usefulan agile pop-up protest model based on movement and frequent digital communication.Situational awareness is the only real way to prevent it, Smith advised. If you feel like youre being trapped, take an exit route. Thats the safest thing to do.

Originally posted here:
What Is Kettling? Explaining the Police Protest Tactic - GQ

What does qualified immunity look like?

In practice, qualified immunity makes it difficult for people to bring suits against police officers, to say nothing of winning them. Consider the case of Malaika Brooks:

In 2004, Ms. Brooks, a black woman who was seven months pregnant, was pulled over by the Seattle police for speeding while driving her 11-year-old son to school.

Ms. Brooks believed she had been wrongly stopped and refused to sign the ticket, thinking, mistakenly, that her signature would be an admission of guilt.

The officers then threatened to throw her in jail, twisted her arm behind her back and tased her three times first on her thigh, then in an arm and then in her neck before dragging her into the street, laying her face down and cuffing her.

Ms. Brooks sued the officers, and in 2011 a federal appeals court argued that a reasonable person could conclude that the officers had indeed violated her constitutional rights. But those same judges dismissed her case, arguing that no precedent had clearly established that tasing a woman in Ms. Brookss circumstances was unconstitutional at the time.

Ms. Brookss story is far from unique: An investigation by Reuters found that in the past 15 years, the courts have shown an increasing tendency to grant police officers immunity in excessive-force cases. The Supreme Court, for example, has denied immunity only twice in its 30 most recent relevant cases, according to George Will.

[Read the investigation: For cops who kill, special Supreme Court protection]

People all across the political spectrum, actually. Justice Sotomayor is arguably the Supreme Courts most left-leaning member, but her concern about police impunity is shared by one of the courts most conservative members, Justice Clarence Thomas.

From the right: In The Wall Street Journal, Robert McNamara, a member of the Federalist Society, raises the case of Shaniz West, an Idaho woman who gave her house keys to the police to search for her ex-boyfriend, who was wanted on firearms charges. He wasnt inside, but the police bombarded the house with grenades and shotguns until it was uninhabitable, leaving Ms. West homeless. Ms. West sued the officers for violating her Fourth Amendment rights, but her claim was rejected because of qualified immunity.

Nobody seriously believes that consent to enter a home is permission to lob grenades into it. But no court has ever decided the question, because as far as I can tell, this is the first time anybody has made the argument, Mr. McNamara writes. Since no court has considered it, qualified immunity means Ms. West loses. As long as an officials conduct is uniquely outrageous, its impossible to hold him liable for it.

From the left: In the New Republic, Matt Ford notes the case of three California police officers who were accused of seizing more than $275,000 in rare coins from a persons house while reporting that they had seized only $50,000. The federal Court of Appeals for the Ninth Circuit said the alleged theft of $225,000 was deeply disturbing, but it dismissed the suit anyway because it said no precedent had ever established that officers cant steal on the job.

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The One Police Reform That Both the Left and the Right Support - The New York Times

I want to begin by expressing my sincere respect and confidence in our police, and recognize their dedication to protecting our lives, our property, and our freedom. At the same time, it is clear that there is something systemically wrong with the law enforcement and justice system in the United States. The rule of law at all levels of government is being undermined and the respect for the law is eroding among the population. This must change.

In September 2007, the Private Security Company (PSC), Blackwater, operating under contract with the U.S. Department of State, opened fire on a crowd of civilians at Nisour Square, Baghdad Iraq, killing 14. The use of force was unnecessary, excessive, and tragic. In addition to the loss of life, it fundamentally changed our relationship with the Iraqi people and damaged the reputation of the United States. After this event, legislative and departmental remedies were implemented to uphold accountability under the law for misconduct by PSCs. Noteworthy among these was the Congressional requirement to develop business and operational standards relevant to private security providers. At that time, I was the U.S. governments technical expert on Private Security and the development of such standards fell to me.

Congress primary concern was the assurance that companies were competent and capable of performing their contracted services. The Defense Department went beyond that, incorporating provisions of the recently concluded Montreux Document, an international framework covering private military and security companies. We worked with the State Department and the Department of Justice, along with other stakeholders from the PSC industry, academia, human rights organizations, and representatives from other governments, incorporating respect for human rights as integral to all aspects of private security company operations. The most critical aspect of this work was the one element that distinguishes private security from any other business or government contractor. The use of force, up to and including deadly force.

The Department of Defense issues very specific rules for the use of force. These are orders specifying when force may be used, the limitations on that force, and the requirement to de-escalate force as soon as it is safe to do so. Since 2008, contractors accompanying the armed forces have been subject to military justice, making those rules enforceable by both U.S. civilian and military law. Most PSCs, however, are not Defense Department contractors, or work for any U.S. agency or foreign government. The standards, therefore, needed to address the use of force applicable to any legal context by any PSC from any country. We began with the firm understanding that PSC personnel do not have the right to engage in combat and under no circumstances did they possess combatant immunity. The use of force by PSC personnel is restricted by their civilian status, similar to police. We were guided by two fundamental principles: There is an inherent right to life, which includes the right of self-defense and the defense of others against unlawful attack. Any use of force must be necessary and reasonable. That is, it must be necessary to use force to protect lives and property and the force used must be reasonable in intensity, duration, and magnitude.

Prior work in this area was critical to success. This work included existing use of force procedures in Defense Department directives and the UN Basic Principles for Use of Force and Firearms by Law Enforcement Officers. Most important was review and comment by the U.S. Department of Justice. The language of the standard includes clear requirements to follow local law, when it is operative and wherever it is more restrictive than the standard, and to report any use of force. Soon after publication, the use of force guidance in the standards formed an integral part of the UN Office of Drug and Crime sponsored Handbook on the Use of Force for Private Security Companies. Since the publication of these documents, inappropriate use of force by PSC personnel has gone from usual to exceptional.

Considering that we based the standards requirements on the use of force principles common to U.S. police departments, and considering the success of these standards, recent police actions are very concerning. This includes the recent murder of George Floyd by Derek Chauvin and the other policemen with him. Sadly, this tragedy was not unique. There are frequent reports of the use of force by police that appear inconsistent with what is necessary and reasonable. Even if Chauvin and those like him represent only.01% of police, the effect of that misconduct adversely affects the relationship of the police with a large segment of the population, creating a spiral of fear and distrust. Such incidents, however, do not appear out of nowhere. They are the result of a long chain of events. A chain which could be broken at any link. What were the links that led to Minneapolis, or St. Louis, or New York, or Atlanta? I do not claim to have the right answers. I can try, however, to ask the right questions.

News about the murder of George Floyd is displacing news about another recent event; the death of Breonna Taylor in Louisville as the result of a No-Knock warrant. A no-knock warrant is an exception to the normal procedure called, knock and announce. In no-knock, police are allowed to execute forcible entry, often with a battering ram and considerable destruction of property. The justification is a situation where the official requesting the warrant provides evidence that knock and announce would place police at risk of serious injury or death or would allow the destruction of the evidence the warrant is intended to seize. There are an estimated 20,000 no-knock warrants every year in the United States. There are strong indications that the widespread use of these warrants is not necessary and may violate Supreme Court restrictions on their use. Does the proliferation of no-knock warrants indicate a rapid movement away from the rule of law and erosion of trust and confidence in the police?

No-knock warrants are also dangerous. The American Civil Liberties Union cited the dangers of no-knock warrants in 2015, arguing, No-knock warrants pose a danger to the lives of police officers as well as innocent civilians, In most states, homeowners are allowed to use deadly force to resist persons breaking and entering while the premises are occupied. The ACLU noted, If the police do not successfully communicate their identity in the split-second when they kick down the door, they are likely to encounter gunfire from citizens who believe they are justifiably defending their homes from lawless intruders.

This is what happened in Louisville. Just after midnight on March 13, 2020, plainclothes narcotics officers conducted a no-knock raid at the home of Breonna Taylor. Taylors boyfriend woke up and grabbed his legally owned firearm. He fired at the perceived intruders, and the police returned fire, shooting at least 20 bullets. Eight of these hit Taylor, killing her. The boyfriend was arrested for the attempted murder of a policeman, but charges were later dismissed. There were no drugs and the person the police were looking for was already in custody at the time of the raid. What risk analysis justified violent entry into Breonna Taylors residence?

This isnt a matter of a few rogue policemen. The Fourth Amendment to the U.S. Constitution requires a warrant for any search. Like any warrant, no-knock warrants have to be approved by a judge. The information provided, under oath and penalty of perjury, must be factually correct and must be specific. Warrants cannot be fishing expeditions. In 1997, the Supreme Court placed further restrictions on no-knock warrants. The unanimous decision clearly stated, The Fourth Amendment does not permit a blanket exception to the knock and announce requirement for felony drug investigations. The decision requires an issuing court to evaluate the reasonableness of each warrant request, examining the facts and circumstances of the particular entry justifying why knocking and announcing would be dangerous or futile, or that it would inhibit the effective investigation of the crime. How did the court fulfill this responsibility in issuing the warrant for Breonna Taylors residence?

Unfortunately, in 2006 the Supreme Court undermined the effectiveness of this requirement, ruling that even if the police violate the knock-and-announce rule, they can still use any incriminating evidence found inside. This was a significant blow to both demanding reasonableness in no-knock entry and the protections of the 4th Amendment.

We are faced with a situation where the Supreme Court created ambiguity, judges allow no-knock entries without confirming necessity, and police use force that may appear unreasonable in intensity and magnitude. In executing these raids, police create the risk of being misidentified as burglars, and inviting a lethal response by the residenta particularly unwarranted risk in the 10 percent of cases where the police raid the wrong residence. In some cases, the justifying information is provided by an informant; information that sometimes proves to be misleading, false, and tragic. The outcome of this chain of events does not only affect the African-American community. Almost half of all no-knock raids are against Caucasian subjects and households.

These are just some potential links in a long chain leading to the death of Breonna Taylor. A chain that may also produce a culture attaching low importance to necessity and reasonableness and undermines of lack of commitment to the rule of law. This appears in less violent encounters, too, such as rough handling and handcuffing of cooperative subjects. The death of George Foley began as a non-violent arrest.

Returning to private security, the internationally accepted standard modeled its use of force language on that used by police departments throughout the United States. The language that requires the use of force, any force, must be determined as necessary for the protection of lives and property. Where the use of force is necessary, it must be limited to that which is reasonable in intensity, duration, and magnitude. Further, there must be a continuum of force, de-escalating as soon as higher degrees of force are no longer necessary. For private security providers who adopt these standards, and the organizations that hire them, this has been successful. Sadly, it seems to be less successful in the law enforcement organizations we modeled. Why do PSCs seem more successful in applying the use of force principles than the police?

I do not propose to have any solution for these recent and ongoing tragedies. I can only propose questions we can ask as we carefully examine the chain of eventsand break or repair links whenever we a defect.

Continued here:
Necessary and Reasonable - International Policy Digest

The killing of George Floyd and the ensuing civil unrest have placed journalists at the center of

large-scale protests and demonstrations across the United States, including in major metropolitan

centers throughout Texas. In the course of covering these protests, many journalists have found

themselves in harms way, and members of the press corps have been assaulted, detained, or

arrested in the line of duty. The press has a responsibility to cover these public events, and the

First Amendment protects journalists ability to cover public demonstrations, such as those going

on in response to the death of George Floyd. The following outlines First Amendment

protections as they relate to coverage of protests and demonstrations.

Does the Press Have a First Amendment Right to Cover Protests?

Yes. In general, journalists have a First Amendment right to cover protests and demonstrations.

Members of the press cannot be excluded from public spaces simply because they are journalists.

Similarly, law enforcement cannot prevent journalists from reporting, and law enforcement or

government officials cannot retaliate against journalists for doing their job.

At the same time, these First Amendment protections do not place journalists above the law.

Journalists are still generally subject to the same laws and restrictions as the public, including

PAGE 2

orders regulating the time, place, and manner of First Amendment activity. Furthermore,

members of the press typically do not enjoy special access to places or information that are not

accessible to the public, and the First Amendment does not allow journalists to trespass or

otherwise break the law, even if they are doing so in furtherance of newsgathering efforts or to

report on protests or demonstrations.

Can Journalists Record Law Enforcement Activity at Public Protests?

Taking photographs or video of people or events that are visible in public is permissible and

constitutionally protected. Journalists who are lawfully present in a public space have the right to

record anything in plain viewincluding police activity, so long as the press activity is not

interfering with legitimate law enforcement operations. By contrast, when an individual is on

private property, the owner of the property may restrict anyones ability to record or require

individuals to leave for any reason.

As stated above, First Amendment protections to engage in newsgathering activity do not entitle

journalists to break the law, such as laws against trespassing. Journalists should also be familiar

with Texas wiretapping statute, which prohibits surreptitious recording of private conversations

without consent. Under Texas Law, a person may only record audio of conversations if those

conversations are in a public place where there is no reasonable expectation of privacy, or if at

least one party to the conversation has consented to the recording. As a matter of best practices,

journalists should clearly identify themselves as members of the press and remain open and

transparent about their use of recording devices.

When Can Journalists Be Detained or Searched?

If a law enforcement officer has a reasonable suspicion that a person is involved in criminal

activity, that officer can temporarily detain him or her in what is known as a Terry stop, (also

known as a stop and frisk). During such a stop, a law enforcement officer may conduct a patdown to ensure that a detainee is not armed and dangerous. For a law enforcement officer to

arrest someone, the officer must have probable cause to believe that the person committed a

crime. This is a higher standard than the reasonable suspicion required for a temporary stopand-frisk.

The Fourth Amendment protects individuals from unreasonable searches or seizures of their

property. Furthermore, the Privacy Protection Act of 1980 prevents law enforcement officers

from searching and seizing a journalists work product, including notes, photographs, and video

footage, without a warrant. If a law enforcement officer demands to inspect such newsgathering

materials, journalists should clearly identify themselves as members of the press and explain that

they are covered by this law. Furthermore, in the absence of a warrant, journalists may withhold

consent for law enforcement to search their belongings or work product, including the contents

of recording devices and cellular telephones.

What Should Journalists Do if Confronted by Law Enforcement?

Journalists should exercise extreme caution covering protests and demonstrations. Members of

the press have reported incidents in which journalists have been targeted by law enforcement for

covering protests. Members of the press have been detained or arrested, shot with rubber bullets,

PAGE 3

and sprayed with tear gas or pepper spray in the course of their reporting in the field. Journalists

should remain alert and mindful that they may face hostility from both demonstrators and law

enforcement when covering these protests.

Journalists should be sure to carry a government-issued identification, as well as contact

information for attorneys or organizationsincluding the Texas Press Association or the

Reporters Committee for Freedom of the Pressthat can provide legal resources and guidance to

journalists. Journalists should clearly identify themselves as members of the press and

prominently display all press credentials. Members of the press should remain alert and

cognizant of potential threats, and should calmly and respectfully discuss their rights with law

enforcement if they feel that their First Amendment rights to engage in newsgathering activity

are being violated.

Furthermore, journalists in the field should stay apprised and mindful of any dispersal orders or

curfews that may impact their ability to be in public spaces. Many state and local curfews

contain exemptions for members of the media, but members of the press should stay aware of

any developments that may impact their ability to safely or legally be at the scene of a public

demonstration.

Texas journalists should contact the Texas Press Association at 512-477-6755 or the Reporters

Committee for Freedom of the Press at 800-336-4243 or rcfp@hotline.org.

Read more from the original source:
First Amendment Protections for Journalists Covering Protests - The killing of George Floyd and the ensuing civil unrest have placed journalists at...

Remember when Donald Trump took a walk from the White House to St. Johns Episcopal Church to pose for a picture with a Bible? Well, to get to the church, he dispersed protesters from the area with tear gas and projectiles. Now, as a result, his little stunt has gotten him, and his administration sued.

Thursday, the Washington, D.C., chapter of Black Lives Matter filed a suit in conjunction with the American Civil Liberties Union against Trump and his administration. The lawsuit alleges the administration violated the organizations civil and constitutional rights. Monday, during the groups peaceful protest, they were forced out of Lafayette Square by U.S. Park Police, and the National Guard, who used horses, projectiles, and gas. Journalists and protesters were gathered in the square to demonstrate peacefully against police violence in the wake of George Floyds death, NBC News reports.

BLM and ACLU are asking for a jury trial in the U.S. District Court of the District of Columbia. Their suit alleges that the administration violated their First and Fourth Amendment rights, which protect the right to protest and protect against unreasonable search and seizure. Both parties of the suit claim authorities shot flash-bang shells, tear gas, smoke canisters, pepper balls, and rubber bullets into the crowd.

Out of all the devices used, the U.S. Park Police has disputed the use of tear gas.

The conspiracy targeted Plaintiffs protected First Amendment activities because Defendants held animus towards Plaintiffs viewpoints, the lawsuit said. The violent actions of the conspirators directly and unlawfully interfered with these activities. The suit also claims that the administration conspired to deprive them of their civil rights and protections.

The groups are also asking for a judge to grant relief by issuing an injunction to stop the administration from continuing to use force against protesters.

According to NBC News, Attorney General William Barr, who is named in the lawsuit, defended the use of force on the protesters Thursday. Barr alleged that the administration was provoked by increasing violence. On Monday, we were still facing very large demonstrations that were belligerent and throwing projectiles, Barr said, adding that its very important to use sufficient forces, law enforcement, to establish law and order in a city when you have riots running. If you use insufficient resources, its dangerous for everybody.

However, multiple news outlets in attendance on Monday disputed these claims and said protesters were in the park for hours without any incidents.

Defendants actions to shut down the Lafayette Square demonstration is the manifestation of the very despotism against which the First Amendment was intended to protect, the suit said.

The rest is here:
Black Lives Matter Chapter In DC Sues the Trump Administration for Violating Their 1st & 4th Amendment Rights - balleralert.com