Tim Cushing's Techdirt Profile

Tim Cushing

About Tim Cushing

Posted on Techdirt - 6 January 2022 @ 07:44pm

Minneapolis Oversight Board Says Police Department Should Ditch 'Excited Delirium' Training

Excited delirium isn’t a medical condition. It’s just post-death rationalization that shifts the culpability for deaths at the hands of law enforcement to the corpses the cops created. This supposed medical diagnosis didn’t reach critical mass until the introduction of one of the most infamous “less-lethal” weapons ever created: the Taser.

Taser is a cattle prod for humans. But it has never been extensively tested on humans for obvious reasons: it has the capacity to be lethal. Taser has since rebranded as Axon, but its legacy lives on. And some of that legacy is the mainstream law enforcement adoption of “excited delirium” as the x factor in officer-involved killings that involve multiple or prolonged deployments of Taser’s modified stun gun.

Taser may have distanced itself from its only-slightly-less-lethal weapon, but there’s no escaping the death toll. And there’s no escaping Taser’s culpability in these deaths — a company that has lawyered itself up to the teeth and hired a shitload of medical experts to find any other reason than the most obvious for deaths in custody. Let’s not forget what inspired Taser and (kind of) gave it its product name: Tom Swift and His Electric Rifle, a young adult novel that featured a main character who carried a weapon that was anything but “less lethal.”

Of foremost notice is Swift’s invention of the electric rifle, a gun which fires bolts of electricity. The electric rifle can be calibrated to different levels of range, intensity and lethality; it can shoot through solid walls without leaving a hole, and is powerful enough to kill a rampaging whale, as in their steamer trek to Africa. With the electric rifle, Tom and friends bring down elephants, rhinoceroses, and buffalo, and save their lives several times in pitched battle with the red pygmies. It also can discharge a globe of light that was described as being able to maintain itself, like ball lightning, making hunting at night much safer in the dark of Africa.

“Pitched battles with red pygmies.” “Making hunting … safer in the dark of Africa.” Hmm. Problematic, to say the least. From those beginnings flows a marketing wing that got this weapon in the hands of law enforcement all over the world — one that had the capacity to kill but was sold as “less than lethal.” This marketing led cops to believe it could be deployed as often or as long as possible without killing people. But it did kill people, and when it did, Taser sent lawyers, NDAs, and its own medical experts to combat lawsuits against law enforcement officers.

Its lawyers and medical experts arrived in court with the novel theory that “excited delirium” had actually caused these deaths. The experts pointed to problems officers encountered subduing people and made the most of any illegal substances found in the systems of victims of police violence.

Years after the damage has been done, things may be changing. There’s enough criticism of the “excited delirium” medical theory — one not accepted by most medical regulation and oversight boards — that police oversight entities are starting to push back. In Minneapolis, Minnesota — ground zero for the latest nationwide protests against police brutality — a police oversight board has stated its unwillingness to allow officers to continue blaming police violence victims for their own deaths.

This is notable because Tasers weren’t involved in the murder of unarmed black man George Floyd (suspected of nothing more than passing a counterfeit $20 bill) by police officer Derek Chauvin. The killing here was committed by Officer Chauvin, who placed his knee on the neck of the black man in perhaps the most unsubtle depiction of systemic police racism engaged in by a cop. He did this for more than nine minutes — and for more than three minutes after another officer failed to detect a pulse.

The excited delirium theory was in play as Chauvin defended himself in court. His lawyer suggested this unrecognized “medical condition” contributed more to Floyd’s death than the asphyxiation caused by the officer’s knee to his neck. This faux medical condition has also been used by Minneapolis cops to suggest the use of ketamine by EMS responders — a tactic that has led to even more in-custody deaths.

The Minneapolis Police Conduct Oversight Commission — with input from the medical community — is strongly suggesting the PD walk away from this oft-abused excuse for in-custody deaths, citing both its questionable history as a medical condition as well as its tendency to be deployed to excuse the killing of minorities.

A Minneapolis police oversight board has recommended the police department replace what the board calls “outdated training” about excited delirium, a controversial medical diagnosis that police say can give people “superhuman” strength.

The diagnosis has not been recognized by the American Medical Association, the American Psychiatric Association or World Health Organization, but has been widely used by police to justify force and explain deaths of people in custody.

[…]

Abigail Cerra, chair of the PCOC, wrote to Mayor Jacob Frey and Police Chief Medaria Arradondo recommending that MPD re-educate officers on the issue, especially given the city will be hiring more than 100 police officers in 2022.

Good. And this request should receive no pushback from the Minneapolis Police Department. I mean, it probably will but the PD and the medical professionals contributing to the PD’s training have already disavowed use of this “diagnosis.”

Dr. Nicholas Simpson, chief medical director at Hennepin EMS, told the Minneapolis Police Conduct Oversight Commission earlier this month that Hennepin EMS and the Minnesota Department of Human Services are no longer using “excited delirium” in their practice and education. Hennepin EMS physicians have been revising medical training materials for law enforcement officers, including the Minneapolis Police Department.

According to the mayor, the PD has removed “excited delirium” training from officer education courses. If true, then the PCOC’s request will be adopted without argument. If untrue, the PD will start pushing back. Documents posted by the PCOC include “excited delirium” training presentations — documents the Minneapolis PD has yet to confirm have been removed from its training programs.

Let’s hope they have. The presentations argue that “excited delirium” sufferers — ones most often diagnosed after being declared dead following interactions with police officers — have both “superhuman strength” and the tendency to die at the drop of a Taser/knee. The sooner cops stop pretending “excited delirium” is nothing more than a convenient post-facto justification for unjustified deadly force, the sooner more people with start surviving their “interactions” with law enforcement.

Posted on Techdirt - 6 January 2022 @ 10:49am

Baltimore Police Union Blames City's Murder Rate On Defunding Efforts That Never Happened

In response to the killing of a Baltimore police officer, the head of the Baltimore police union, Mike Mancuso, has decided to accuse everyone who doesn’t love cops as being responsible for her killing. The statement from the Baltimore City Fraternal Order of Police (FOP) was delivered via Twitter, portraying itself as an “Open Letter to the People of Baltimore.”

It’s not really an open letter. It’s a rant that makes false claims, punctuated with one particularly meaningless statistic to drive its point home: the Baltimore PD no longer feels it has the support of the city government, nor the people it serves. FOP President Mancuso is probably correct on both counts. But nowhere does he even hint that part of the problem might be the Baltimore Police Department.

Here’s where the letter goes off the rails. It starts in the second paragraph which means you won’t have to read much of the “open letter” [PDF] before your eyes start rolling. Let’s turn it over to the head of the FOP:

In this time of contemplation, I have come to realize that Baltimore and its citizens have reached a crossroads in the path toward the future. You can no longer be still, as the path ahead has so completely diverged as to make silence no longer an option. The politicians running Baltimore and Annapolis have defunded the police in a now obvious way allowing attrition and recruitment to be ignored, causing our ranks to fall some six hundred officers short of what is needed.

First off, there has been no defunding. This claim is clearly contradicted by the city’s annual budget numbers, which are posted publicly. Mancuso obviously hopes no one will check his math. Certainly the choir he’s preaching to won’t.

The Baltimore PD has never been defunded. It didn’t happen during the recent wave of defunding efforts across the nation. And it didn’t happen during any of the years Macuso has chosen to bracket his arguments with:

What has happened to our city is devastating. Since 2015, there have been 2318 victims of homicide and 4848 victims of shootings, all while in conjunction with a mass exodus of dedicated members of our agency.

I wonder what happened in 2015 that would have possibly led to (1) more gun violence and/or (2) a mass exodus of Baltimore police officers?

On April 12th, 2015, a 25-year-old black man from the west side of Baltimore named Freddie Gray was arrested for possession of a “switchblade,” put inside a Baltimore Police Department (BPD) transport van, and then, 45 minutes later, was found unconscious and not breathing, his spinal cord nearly severed. Following a seven-day coma, Gray died on April 19th; his untimely death and citizen video of his arrest, which showed Gray screaming in pain, prompted both the peaceful protests and headline-grabbing riots. The subsequent two-week police investigation ultimately concluded that Gray’s injury happened sometime during the van’s route – over six stops, with two prisoner checks, and another passenger pick-up.

This killing of Freddie Gray by BPD officers resulted in protests and backlash against the police department. The intervening years did nothing to improve the PD’s reputation nor its relationship with Baltimore residents.

In 2017, body camera footage of an officer planting drugs led to a department-wide investigation that resulted in the indictment of eight officers on racketeering charges for stealing money, fabricating evidence, and other misconduct. Hundreds of criminal cases were dismissed.

At that point, the PD was already subject to a consent decree from the DOJ, following its investigation of the department, which found:

BPD engages in a pattern or practice of: (1) making unconstitutional stops, searches, and arrests; (2) using enforcement strategies that produce severe and unjustified disparities in the rates of stops, searches and arrests of African Americans; (3) using excessive force; and (4) retaliating against people engaging in constitutionally-protected expression.

By 2020, the number of indicted or convicted police officers had reached 14, adding in even more allegations (many sustained) of evidence theft, evidence planting, falsified paperwork, and a ton of rights violations.

So, it was not simply the backlash caused by the “rough ride” death of Freddie Gray, a man arrested for carrying a legal knife. The results of the DOJ’s investigation were published in 2016. The consent decree arrived January 2017, followed shortly thereafter by reports of corrupt cops planting drugs and stealing evidence.

Back to the FOP’s president’s statement. He claims the PD has been shedding officers steadily since that point. According to Mancuso, it’s the city holding the department back by somehow preventing the department from recruiting or hiring cops. But there has never been a hiring freeze. Some expenditures were put on hold during the COVID crisis. But, for the most part, the PD has had five out of the last six years to hire as many officers as it can.

There are several reasons the BPD might be leaking cops. Some of its worst officers might have left the force, realizing even a minimal amount of scrutiny might uncover their wrongdoing. Others may have left the force because they no longer wished to be associated with the corruption observed in several high-profile cases.

The same can be said for the PD’s inability to outpace departures with new hires. Good cops most likely would prefer to steer clear of a department with a reputation as terrible as Baltimore’s. Bad cops most likely steered clear of the BPD because officers were being overseen by a DOJ consent decree and the heightened scrutiny that always follows massive scandals. Realizing it might be more difficult to engage in lawless behavior, potential officers likely looked elsewhere.

With that out of the way, we can get back to looking at the department’s budget, which the FOP claims has been “defunded.” The stats are easily available, compiled and published by the City of Baltimore. Here’s how the years in question break down in terms of dollar amount and number of officers, which are the only stats the FOP cares about.

2015
Budget: $440,793,081
Employees: 3,470

2016
Budget: $467,608,064
Employees: 3,125

2017 (report for this year returns a 404 error, est. budget from 2016 request listed below)
Budget: $451,472,227
Employees: 3,125

2018
Budget: $486,079,670
Employees: 3,243

2019
Budget: $499,575,448
Employees: 3,243

2020
Budget: $508,291,238
Employees: 3,241

2021 (budgeted)
Budget: $500,357,075
Employees: 3,193

2022 (requested)
Budget: $521,725,791
Employees: 3,197

The FOP’s statement about defunding is a lie. So is its count of officers. It claims 600 have walked away and never been replaced. At best, the actual numbers show the BPD has shed less than 300 employees (not all of them officers) since 2015. As of last August, the BPD was only short 108 officers, nowhere near the number stated by the FOP.

Meanwhile — despite lower labor costs — the department’s budget has increased by nearly $81 million over the past five years. There was a slight dip between 2020 and 2021, but that dip is purely conceptual at this point. The BPD may end fiscal 2021 having spent more in 2021 than in 2020. Its budget may have been slightly lower than 2020 but its actual expenditures have yet to be tabulated.

There is no evidence of defunding here. And there’s no evidence the situation — in terms of officers — is anywhere near as dire as the FOP portrays it.

These are the factors the FOP ties to the increase in homicides. One has been exaggerated. The other is nonexistent.

It’s true the murder rate in Baltimore has been climbing since 2015. The FOP boss wants to blame it on everyone turning against the cops, resulting in a mass exodus of officers (isn’t happening) and the stripping of funding (isn’t happening either). Baltimore’s murder rate is the highest its been since the mid-1990s, which was a highwater mark for criminal activity almost everywhere in the country.

Maybe the explanation is closer to home than the FOP wants to admit. It could be the murder rate is rising because would-be murderers know the odds are with them. Even at its own, self-reported best, the PD only solves half the murders committed in Baltimore.

The official clearance rates for those years have been reported as 51% (2017), 43% (2018), 32% (2019), and 40% (2020).

At worst, the odds are even better for murderers. These clearance rates are inflated, according to the former Deputy Attorney General of Maryland, Thiruvendran “Thiru” Vignarajah. Vignarajah has examined the BPD’s reported crime stats and has some insight into how the department handles clearances. A cleared case doesn’t always mean the perp has been arrested or convicted. In some cases, the clearance means nothing has happened.

Vignarajah calculates it — without “exceptional clearances” and without arrests in homicides from previous years — the clearance rate for each of those years was much lower. “Less than a quarter [24%] of all 1,336 murders from the beginning of 2017 through the end of 2020 resulted in an arrest,” Vignarajah says.

Even if we give officers credit for closing cases that began the previous year, the abuse of “exceptional clearances” allows the PD to overstate its effectiveness.

The most common use of “exceptional clearances” is to pin murders on corpses. Subject only to a cursory review by supervisors and prosecutors (both of which clearly benefit from higher clearance races), investigators can claim a body in the morgue was responsible for the death of others. Sometimes they may be correct. But it certainly looks like an easy way to juice clearance rates, all without having to actually prove the cadaver committed the crime.

The actual number of exceptional clearances may seem small compared to the ~300+ murders committed in Baltimore every year, but it’s enough to turn a disappointing number into something that appears to show a supposedly undermanned and underbudgeted homicide unit is exceeding expectations.

The number of cases closed by exception in Baltimore has increased in each of the last four years, data obtained by The Sun through a Maryland Public Information Act request show, from 11 in 2014 to 18 in 2015 to 26 in 2016 to 34 last year. The practice has helped police improve their homicide clearance rate over that time, from 30.7 percent in 2015 to 51.4 percent last year.

In 2018, there were 309 murders in Baltimore. The PD allowed more than 10% of those cases to be closed by blaming it on someone who could no longer defend themselves against these charges. In some cases, this may have been true. But the easy out dead-ends investigations and allows the PD to rack up unearned wins. It also, obviously, allows some murderers to go free.

All of this undermines the breathless conclusion to Mike Mancuso’s open letter. If the claims he makes and the correlations he implies are false, then this is all just pro-cop agitation, completely devoid of meaning.

This is not a political issue of left vs. right, nor is it a rift between Baltimore’s citizens and their sworn protectors. This is simply a fight between good vs. evil, and we must decide where we stand.

Sorry, Mr. Mancuso. The PD has proven capable of housing plenty of evil. And the murder stats cited are meaningless without the uncomfortable context that the BPD is just kind of terrible at solving murders. The claim about defunding is flat-out false. If the PD can’t find a way to attract and retain officers despite remaining fully funded for the last half-decade (this includes the governor’s $150 million budget boost for 2022 — one delivered by the governor with verbal attacks on defunding efforts), the problems are mostly internal. Heal thyself, BPD. And kick this ridiculous charlatan to the curb. He’s useless and he’s a liar.

Posted on Techdirt - 5 January 2022 @ 08:02pm

Appeals Court Denies Immunity To Bored Cop Who Decided To Turn A Natural Death Into A Murder

What happens when you add a bored cop to a cold case? Bad things. Very bad things. That’s the moral of the story conveyed by this Seventh Circuit Appeals Court decision [PDF].

Actually, calling it a decision is overstating the conclusions. Apparently, the plaintiff, the defendants, and the lower court all made matters far more confusing than they needed to be, leaving the Appeals Court with a muddied record, unclear assertions from all parties, and open questions as to whether qualified immunity on Fourth Amendment claims had actually been denied.

But the path to the procedural shitshow is a full-blown horror show. An unfortunate death, a full autopsy, no sign of foul play, and yet some officer put out to pasture by his department decided he was the second coming of Columbo and mounted a concerted attempt to ruin a person’s life.

Curt Lovelace’s wife, Cory, died in her bed one morning while Curt was getting their children ready for school. Almost any death in a person’s home will trigger an investigation. This tragedy was no exception.

Because Cory was relatively young when she died, the City of Quincy police, along with several Adams County officials, conducted a thorough investigation of her demise. All the physical evidence pointed toward a natural cause of death. It turned out that Cory was severely alcoholic, bulimic, and had been sick with flu-like symptoms for several days before she died. An autopsy revealed that Cory had been suffering from “marked steatosis of the liver.” Severe steatosis—significant fat throughout the liver—can cause the liver to become inflamed and riddled with scar tissue; at that point the person has cirrhosis of the liver, which can lead to liver failure and death. This evidence could not establish a single, indisputable cause of death, but it was more than enough to suggest an array of plausible natural explanations—chronic alcoholism, when combined with other medical conditions, can itself be fatal. Moreover, Cory’s body bore no signs of violent trauma. She had a small patch of redness under her nose, but it was more consistent with a cold or acne than with violence. And she had a small cut inside her mouth, but because it was already healing when Cory died, it was determined to have predated her death.

Curt’s accounting of the events was corroborated by his children.

Investigators also verified Curt’s account of the morning in question by comparing his story to the physical evidence indicating time of death. Curt recounted that Cory was supposed to take their three school-aged children to school that day, as Curt was scheduled to teach a class at a local university. But Cory was still unwell when she woke up. They decided that Curt would cancel his class and take their children to school instead. At one point Cory came downstairs to help get the children ready, but she was feeling very weak, and so Curt helped her back upstairs and into bed. Curt then took the children to school at around 8:15 am. He was back at the house by 8:35 am, but he did not go upstairs until around 9 am, when he discovered that Cory had died. The police interviewed Curt’s three oldest children; all three corroborated this timeline. In particular, all three confirmed that they had seen their mother alive and moving about on the morning in question.

The autopsy, as noted above, saw no evidence of foul play. There was a question raised about the level of rigor mortis observed by the doctor performing the autopsy, but responders to the scene saw nothing out of the ordinary, noting the body was still warm, pliable, and displaying a minimum amount of lividity. An EMS attendant was able to raise Cory’s arms to a position above her heart so he could attempt to revive her. Her arms remained in the position the EMS tech had moved them to as rigor mortis set in. The investigation was closed shortly thereafter with law enforcement concluding this was a tragic death, not a homicide.

For most of a decade, the case remained closed. But then a cop with too much time on his hands turned his idle hands into the devil’s cold case unit.

There the story should have ended. But seven years later, Detective Gibson set in motion a second act. Formerly one of the Quincy police department’s canine officers, Gibson had been reassigned to elder services after his dog retired. But the new role did not keep him busy, it seems, and so to pass the time he made a habit of reviewing files from old cases. One photo of Cory’s body in the Lovelace file caught Gibson’s attention in November 2013. In it, her arms were raised in what appeared to Gibson to be an unnatural position. He concluded that Curt had suffocated Cory with a pillow the evening before her death was reported, that rigor had set in overnight, and that her arms had stayed put when the pillow was removed sometime the next morning. This was, as we already have noted, wild speculation; Gibson was simply looking at photos that were taken after [the EMS tech had] repositioned Cory’s arms.

Unfortunately, the Quincy PD did not tell the detective to get back to his real work and stop trying to turn closed investigations into ongoing investigations. Detective Gibson managed to rope in a coroner who had spent a few minutes at the home moving Cory’s body. Coroner Keller — years after the fact and prompted by Detective Gibson’s enthusiasm for refusing to leave the past unmolested — made a number of claims supportive of the detective’s murder theory.

[Keller] claimed, apparently without notes or other corroboration, to recall that Cory’s body had been in full, not partial, rigor, and that the room had smelled bad, as if her body had already begun to decompose. Those claims, if true, would have supported Gibson’s alternate timeline and contradicted Curt’s account. But no other eyewitness, including several who had spent far more time on the scene than Keller, had reported a similar degree of rigor or mentioned any strong odor. Moreover, Keller made no effort to explain how someone could have moved Cory’s arms if Keller was correct.

Detective Gibson and his coroner co-conspiracist discarded everything that didn’t agree with the “Curt killed Cory” theory. They began shopping this narrative around to other medical examiners, hoping to obtain an autopsy report that turned the grieving husband into his wife’s murderer.

They started in early January 2014 with Dr. Derrick Pounder. But after hearing Gibson’s theory, Dr. Pounder explained in an email that “rigor is not a reliable method of estimating time of death.” And he advised Gibson that Cory could have spoken to her children that morning, just as Curt claimed, and then been dead with her arms at some stage of rigor 90 minutes later. Gibson did not write up a report memorializing Dr. Pounder’s conclusions.

In late January, Gibson and Keller consulted Dr. Scott Denton. Like the original investigators, Dr. Denton quickly dismissed the redness above the lip and small cut in the mouth as irrelevant. And he, too, homed in on the liver as the most likely cause of death. In February, Gibson met with Dr. Denton in person, but again he made no record of Dr. Denton’s opinions. Nor did Dr. Denton himself submit any report at the time.

They also went back to the person who had performed the original autopsy and tried to get her to change her mind about the cause of death. This effort failed. So did their fourth attempt to secure a medical report in their favor from Dr. Shaku Teas. Teas not only agreed with the other medical experts the pair had approached, but was so troubled by Detective Gibson’s actions, she testified on behalf of Curt Lovelace during his trial.

Fifth time was the charm.

Gibson and Keller’s fifth and final attempt to secure a favorable expert opinion took place in April and May, when they presented the case to Dr. Jane Turner. That time, they took a more aggressive approach. Rather than providing Dr. Turner with an accurate and complete picture of the evidence and allowing her to draw her own conclusions, they provided her with selected background “facts.” They told Dr. Turner that Cory was in full rigor before the paramedics arrived (not mentioning that this was at least disputed), told her about the minor injuries to Cory’s lip and mouth but omitted any mention of the benign explanations for those injuries, and falsely suggested that another expert—Dr. Denton—had already all but confirmed the suffocation theory. Most damningly, they told Dr. Turner about the position of Cory’s arms, but not that the arms had been repositioned by the paramedics. Dr. Turner, making it clear that her conclusions rested solely on the information that had been presented to her, prepared a report supporting the suffocation hypothesis.

Using this, Detective Gibson had Curt Lovelace arrested. Lovelace was incarcerated for 21 months because he was unable to make bail. His first trial ended with a mistrial because of a hung jury. Prosecutors went after Lovelace again, but he was more prepared for the second trial. Documents obtained through FOIA requests uncovered a lot of Detective Gibson’s attempts to build a murder case out of a previously undisputed natural death. This time around, a jury acquitted Lovelace after two hours of deliberation.

The lawsuit followed. Unfortunately for Curt Lovelace, he might not be able to hold Detective Gibson and his coroner buddy liable for wrecking his life. There are questions about whether or not Fourth Amendment claims were preserved for appeal. There are also questions as to whether the lower court has even made a decision on the qualified immunity the defendants are seeking. A lot of this mess will return to the lower court to get sorted out, which means there’s still a chance the detective and the coroner will be able to utilize qualified immunity to have the case tossed.

There’s a credible Fourteenth Amendment claim that survives completely intact, though. This appears to have been argued somewhat poorly at the lower level, but the Appeals Court says there are enough facts in dispute that the lower court should not have awarded qualified immunity on that count. That’s reversed, which means both claims will hopefully be handed over to a jury to sort out just how badly these government employees fucked over Curt Lovelace and how much it should cost them. But that also means any closure — much less compensation — is still probably years away for the man one cop decided might be a murderer.

Posted on Techdirt - 5 January 2022 @ 10:45am

Chinese Government Dragnet Now Folding In American Social Media Platforms To Silence Dissent

The Chinese government’s surveillance of undesirables isn’t limited to its borders. It has been working with tech companies to produce an outsider-oriented surveillance platform to keep tabs on visiting students and foreign journalists — neither of whom might feel particularly obliged to maintain the party line.

The journalist-targeting surveillance system, detailed in a December 2021 Yahoo report, is apparently already mostly a reality. This New York Times report shows the government is already applying its oppression to visitors to the country, hoping to ensure nothing contradicting the official narrative makes its way to the internet airwaves.

Jennifier Chen went back to China to visit her hometown for the Lunar New Year. While she was there, she tweeted from her anonymous account to around 100 followers. Those actions managed to attract the attention of the Chinese government’s social media surveillance apparatus.

While living in China, she retweeted news and videos, and occasionally made comments censored on Chinese platforms, like voicing her support for Hong Kong’s protesters and her solidarity with minorities who have been interned.

It wasn’t much, but it was enough for the authorities to go after her. The police knocked on her parents’ door when she was visiting. She said they had summoned her to the station, questioned her and then commanded her to delete her Twitter posts and account. They continued to track her when she went overseas to study, calling her and her mother to ask if Ms. Chen had recently visited any human rights websites.

This isn’t completely a new idea for China, which has always sought to suppress anti-government sentiment, no matter where it originates. But the surveillance system behind this tracking of visitors and foreigners is somewhat new, and it utilizes new techniques to harvest social media content from foreign accounts posted to sites blocked in China. Security forces — including local law enforcement — keep tabs on the internet, combining offending social media posts with public records and government databases to identify and track surveillance targets.

Content not specifically under the government’s jurisdiction can still cause trouble back at home. Anyone associated with the person offending the government will be targeted by efforts to suppress speech.

One video recording, provided by a Chinese student living in Australia, showed how the police in her hometown had summoned her father, called her with his phone and pushed her to remove her Twitter account.

[…]

Three weeks later, they summoned him again. This time, calling her via video chat, they told her to report to the station when she returned to China and asked how much longer her Australian visa was valid. Fearful, she denied owning the Twitter account but filmed the call and kept the account up. A few months later, Twitter suspended it.

This foreign-facing work begins at home. Documents seen by the New York Times show law enforcement agencies are paying up to $1,500 per “investigation” targeting an overseas social media account. Contractors start with easily accessible social media content before digging into voter registries, drivers license databases, and whatever hacked data can be purchased or obtained from dark web data purveyors.

The offending content is subjected to a ranking system that allows the government to determine the person’s threat level. Criticism of government officials or attempts to organize protests is considered the biggest threat. Forbidden content like libel or porn is considered the least threatening, although it can also subject people to government harassment. The end result of these surveillance programs manifest themselves as visits from law enforcement, not-so-veiled threats delivered to close relatives, and, in at least one case, the temporary “disappearing” of parents or siblings.

Oppression without borders. That’s the Chinese government’s goal. Visitors who can’t play by the rules will be encouraged to leave. Locals traveling abroad will be reminded they can never escape their homeland’s grasp. A surveillance system that operates without constraint or consent rolls on uninterrupted, gaining power and momentum with each new iteration.

Posted on Techdirt - 4 January 2022 @ 08:12pm

Eighth Circuit (Again) Says There's Nothing Wrong With Detaining Innocent Minors At Gunpoint

What’s unreasonable for law enforcement to do when searching for a criminal suspect? Not much, apparently. The Eighth Circuit Appeals Court has handed down a ruling that says detaining minors at gunpoint is just good policework when they’re in the general vicinity of a suspected criminal act. (via FourthAmendment.com)

Here’s what prompted this apparently excusable violation of rights, taken from the Appeals Court decision [PDF]:

At 3:21 p.m. on April 24, 2016, a Cedar Rapids police dispatcher issued an alert for “a disturbance with a weapon” at “Higley Avenue and Wellington Street” based on a 911 call from a complainant named Elaine. It is undisputed that the dispatch transmitted to officers reported, “Complainant stated that there are three black males they live at the corner house by the alley. They are outside arguing, one displayed a 10-32 [gun] that subject is a black male white t-shirt heavier set. Another black male is in all blue.” There was no description of the third individual, nor did the dispatcher provide the complainant’s name or address.

This information was obtained by the officers being sued twice. While driving to the scene of the reported crime, Officer Tyler Richardson ran into the 911 caller (although he did not know this at the time). The woman again described the suspected individuals, describing one of the suspects as wearing a white shirt and blue pants.

So, Officer Richardson had two suspects: one with a white t-shirt and another described alternately as being in “all blue” or with a white shirt and blue pants. Here’s who the officer decided were the most likely suspects:

He saw two people — later identified as Bates and Irvin — walking away from him along the left side of the street. The dashcam video shows Bates wearing a red shirt and black pants and Irvin wearing a blue shirt and blue pants.

This is what happened next:

Officer Richardson got out of his car and yelled, “Stop. Stop.” Irvin and Bates turned their heads, then stopped. Richardson said, “Yeah, you guys.” Bates replied, “No, we didn’t do nothing.” Richardson yelled, “Stop right now! Stop!” and drew his gun, pointed it at Irvin and Bates, and ordered them to get on the ground. Officer Jupin, whose squad car had arrived from the opposite direction, drew his gun and did the same. Irvin and Bates slowly got down on their knees. Richardson yelled, “Face down!” Richardson handcuffed Irvin. Jupin handcuffed Bates. A pat-down determined that neither was armed.

Handcuffed and seated on the ground, 16-year-old Irvin remained quiet. Bates, 33 years old, became agitated, speaking loudly and expressing anger that the officers had pulled their guns on him. Jupin stayed with Irvin and Bates while Richardson went a block away and talked to a heavyset black man in a white t-shirt the officers spotted while detaining Irvin and Bates. Richardson ordered the man to stop and put his hands on a stone wall next to the sidewalk. The man complied. Richardson patted him down for weapons, found none, and soon released him.

The pair remained handcuffed for twelve minutes as officers spoke to the witness. The witness confirmed they were not the ones she had seen involved in an altercation earlier. They were released.

The Eighth Circuit says there’s nothing wrong with this. As far as the court sees it, cops should be able to stop nearly anybody when a crime has been reported nearby.

It is well established that, “if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.” United States v. Hensley, 469 U.S. 221, 229 (1985). Thus, Irvin and Bates could be stopped if there was reasonable suspicion that either or both were any of the three men involved in the reported disturbance.

Second, even limiting our focus to more serious gun offenses, Officer Richardson had descriptions of two of the three men. Irvin arguably fit one of the descriptions; Bates did not but the third participant had not been described.

That’s the rule in the Eighth Circuit: if you’re in the area a crime has been committed, you can be treated like a suspect and detained for as long as it takes to clear you of suspicion. In this case, it only took twelve minutes. But it could have taken longer. And, as this court sees it, time isn’t a factor when it comes to turning being detained into being arrested. If it had taken six hours, the court may have still considered this to be an investigative stop.

Here, Officers Richardson and Jupin actively investigated the disturbance after detaining Irvin and Bates, delayed by their refusal to cooperate. When backup arrived, Richardson interviewed a cooperative third individual and searched the area for a weapon. Jupin contacted a witness, who said that Irvin and Bates were not involved in the reported disturbance. Jupin promptly removed the handcuffs and told Irvin and Bates they were free to go, ending their detention. The entire encounter lasted approximately 13 minutes. We agree with the district court that Irvin and Bates “were detained no longer than was necessary for the officers to pursue their investigation” and therefore the lawful Terry stop “did not evolve into an arrest.”

So, what’s the endpoint? The court says this:

The circumstances here are readily distinguishable from the handcuffing and extended -9- detention in our recent, divided panel opinion in Haynes v. Minnehan…

But that decision held that a five minute detention was unlawful due to a lack of reasonable suspicion and the fact that officers didn’t appear too interested in investigating the alleged crime. That doesn’t clear much up. Instead, it creates a gray area where officers can detain someone indefinitely, so long as they have a little suspicion and some interest in pursuing an investigation.

The decision also cites another case where the Eighth Circuit found it acceptable to point guns at unarmed minors just because a criminal act was suspected to have occurred somewhere in the vicinity. That case is currently sitting before the Supreme Court. Whether or not the nation’s top court will do anything with it remains to be seen. But that case, summarized here by Jacob Sullum for Reason, is used as justification for the conclusion reached in this case.

On a rainy January evening in 2018, 14-year-old Weston Young and his 12-year-old brother, Haden, were walking home from their grandparents’ house in Springdale, Arkansas, after a family dinner. A police officer ordered them to stop, pointed a gun at them, forced them to lie on the ground, handcuffed them, and, together with a colleague, searched them. Their mother and stepfather tried to intervene, explaining who the boys were, where they had been, and where they were going. But the officer, Lamont Marzolf, rebuffed both of them, seemingly uninterested in information suggesting that he was treating two innocent boys like criminals.

“Neither [Weston] nor [Haden] did anything wrong” that night, the U.S. Court of Appeals for the 8th Circuit later observed. “The boys simply happened onto the stage of a dangerous live drama being played out in their neighborhood because of criminals fleeing police nearby. [Weston] and [Haden] acted bravely, respectfully, and responsibly throughout the encounter, and their family would rightly be proud of them. Likewise, their family acted responsibly and respectfully during what would have undoubtedly been a frightening experience. In this situation, though, Officer Marzolf was doing his job protecting the people of Springdale from fleeing criminal suspects under challenging conditions.”

That’s the standard as far as the Eighth Circuit is concerned. If a cop is doing their job, then pointing guns at minors and violating rights is just acceptable collateral damage. The decision here rests on the court’s conclusion there was plenty of reasonable suspicion underlying this chain of events. The dissent is not so sure.

Viewing the record in the light most favorable to Irvin and Bates, Officers Richardson and Jupin lacked reasonable suspicion to stop and detain them. The dispatcher relayed an anonymous 911 call, but did not provide any information indicating the basis of the caller’s knowledge. The only corroboration identified is the information Officer Richardson received from the woman on the street. But at the time of the stop, Officer Richardson did not know the woman’s name or even that she was the 911 caller. Moreover, the woman did not corroborate the dispatcher’s report or report any criminal activity; she simply gave Officer Richardson a description of what a person who had just walked around the corner was wearing—wavering in her description and never mentioning a person in a red shirt—and said nothing more. In short, nothing the woman said to Officer Richardson linked the person she had just described to the conduct reported in the 911 call.

Even setting aside the reliability of the tip, neither Bates nor Irvin matched the description of the person who displayed the firearm—a heavyset man in a white t-shirt.

The dissent points out it’s not enough for race and gender to match the description. And without any further corroboration, Officer Richardson had, at best, conflicting descriptions of the suspects. On top of that, Richardson had no reason to believe they were involved in the reported criminal act. The caller had reported only one person with a weapon and that description matched neither of the two people Richardson detained at gunpoint.

The only suspicious activity the 911 caller described was that a heavyset man in a white t-shirt displayed a gun. There was no reason to believe any other person had a weapon, concealed or not, and a suspicion otherwise was nothing more than a hunch. While the 911 caller reported an argument where one man displayed a gun, she reported no threats, assaults, or shots fired. And when Officer Richardson turned the corner, the reported crime had ended, and neither Irvin nor Bates was behaving in a manner as to indicate they were armed or were engaged in––or about to engage in—criminal activity.

Making someone a suspect because someone else brandished a weapon isn’t how reasonable suspicion works. Citing another case where qualified immunity was awarded despite the “suspects” not matching the description and being accused of “fleeing” despite walking towards the police officer’s car doesn’t exactly shore up the shaky reasoning underpinning this decision.

This decision will also likely be appealed to the Supreme Court. The earlier case might be a better fit for reversal, given the disparity between the detainees and the description, but both are questionable. And both serve as cover for bad judgment calls by police officers — ones that culminate with weapons being pointed at minors.

Posted on Techdirt - 4 January 2022 @ 01:31pm

Chinese Government Fines Local Car Dealerships For Surveilling While Not Being The Government

The Eleventh Commandment (paraphrased from the original Homer Simpson):

THOU SHALT NOT HORN IN ON THY [GOVERNMENT’S] RACKET

Lots of nations are surveillance states. Very few engage in the depth and breadth of surveillance China does. Whatever any other country does, China has already done, redone, and modded to abstraction. The government not only loves deploying facial recognition tech, but is working on adding things like racial recognition to keep an eye on pesky foreigners and unwanted minorities.

It’s one thing if the government does it. It’s apparently quite another if private companies try to get in on the Big Brothering.

Many Chinese provinces and cities have explicitly legislated against companies collecting facial recognition information from late last year to early this year, and it appears that a subsidiary of XPeng Motors has ignored those regulations.

An XPeng sales company in Shanghai was recently fined RMB 100,000 ($15,710) by local market regulators for illegally collecting facial recognition information, according to an administrative penalty decision included by data provider Tianyancha.

The irony of forbidding the use of private facial recognition tech is probably lost on the Chinese government. I mean, it doesn’t seem to appreciate any form of humor, even grimdark irony like fining a private company for stepping on its surveillance turf.

It may be unfair to single out China for this sort of thing. It happens everywhere. Countries where facial recognition tech has been deployed by governments also have laws in place that forbid the same sort of collection by private companies. In some US states, government use is legal but private use violates local laws. In most of the US, though, it’s still the tech Wild West, with both governments and private entities subject to few guidelines or regulation.

But you can’t applaud the Chinese government for taking a tough stance on surveillance tech use by private entities. It clearly finds nothing wrong with its pervasive, ever-expanding surveillance state, which makes its regulation of private use extremely hypocritical. And the fact that it works closely with local companies to expand its surveillance opportunities makes its double-standard especially pronounced.

Xpeng, for its part, claims this was all a mistake. It claims a subsidiary purchased the cameras from a third party and deployed them without verifying they complied with local laws. But that doesn’t explain how this oversight went unnoticed for nearly six months, resulting in the collection of nearly 450,000 facial images.

But this fact is undeniable: if these cameras had been operated by the government and trained on people doing nothing more than buying cars, it all would have been above-board. The Chinese government can’t possibly justify all the surveillance it engages in. It does it because it can. But the far more innocuous collection of information to analyze customer demographics is apparently where the Chinese government draws the line.

Posted on Techdirt - 4 January 2022 @ 10:44am

ICE Is So Toxic That The DHS's Investigative Wing Is Asking To Be Completely Separated From It

The Department of Homeland Security is trying to distance itself from its most toxic asset, the Washington Post reports:

Federal agents from Homeland Security Investigations say they have been kicked out of joint drug operations, shunned by local police departments and heckled at campus career fairs. Their parent agency, U.S. Immigration and Customs Enforcement, carries a stigma that is undermining their investigative work across the country, the agents said in an internal report.

The agents say they face a backlash in liberal “sanctuary” jurisdictions where authorities strictly limit contact with ICE but also in some Republican-led states where politicians are vocal in their support for the agency. And the toll on HSI agents is “getting worse,” according to the report that was prepared by a working group of agents formed by HSI to consider changes to the agency’s place within the Department of Homeland Security.

ICE has always been controversial. Under President Trump, the agency was unleashed. It willingly embraced its awfulness, deploying everything from fake warrants to fake colleges in its war on foreign residents and would-be immigrants, many of whom were here legally. It courted controversial tech companies to expand its surveillance arsenal and made it clear it was interested in ejecting as many foreign people as possible, rather than the “worst of the worst” Trump claimed his immigration policies targeted.

But now it’s clear that working with ICE means not actually getting any work done. Homeland Security Investigations (HSI) agents have informed the DHS Secretary that partnering with ICE has all sorts of negative side effects. Agents are complaining about threats to their personal safety, crime victims being unwilling to engage with investigators due to ICE presence, and harming relationships with local law enforcement. ICE is a drain on resources due to its horrendous reputation. Here’s how the HSI agents put it in their letter to DHS officials:

“HSI’s affiliation with ICE significantly impedes investigations and HSI’s ability to fulfill its mission.”

Unfortunately, it appears this is unlikely to result in HSI decoupling from ICE. It would take an act of Congress to do so, and support for this sort of division is far from universal. The other solution is just as unlikely to happen: the rehabilitation of ICE’s image.

ICE has done a lot of damage to its reputation due to its willingness to become the embodiment of xenophobic presidential directives and policies. It could rein itself in, but any rehabilitation could easily be undone by the next president to take office. Most people never truly believed someone like Trump could ever be elected, but millions of Americans proved us wrong in 2016. All bets are off.

ICE’s response to the assertions in this letter is less than helpful. The agency, through a spokesperson, says nothing but uses a lot of words to deliver its nonexistent message:

In a statement, ICE spokeswoman Paige Hughes said the agency “relies on close working relationships with its state, local, and international partners,” but she did not elaborate on the details of the report. She added: “ICE refrains from discussing deliberations publicly with its partners to maintain operational security and in recognition of the sensitive nature of many of our activities.”

Congress may not be willing to bless a HSI-ICE divorce. But it’s clear from this letter that federal agencies forced to partner with ICE are being held back by ICE’s negative reputation. And ICE can’t blame anyone else for being so toxic its federal partners want nothing to do with it. It may have received questionable directives from the former president, but it was under no obligation to carry these out with as much enthusiasm and zeal as it did.

Plenty of federal agencies are capable of barely meeting the minimal requirements of Congressional and presidential mandates. ICE could have slow-walked its “toss out the brown people” directives until power changed hands. Instead, it showed itself to be an enthusiastic participant in bigoted policies, making it clear the 2016 regime change had simply allowed it to be the thuggish enforcer of immigration law it had always wanted to be.

Posted on Techdirt - 3 January 2022 @ 07:53pm

Tenth Circuit Denies Qualified Immunity To Social Worker Who Fabricated A Mother's Confession Of Child Abuse

For the second time in about as many weeks, an appeals court has handed down a decision denying qualified immunity to a government employee. That’s good! We don’t see a lot of these. Getting more than one in a month almost feels excessive, as if we’re being set up by the courts for a few months of anger and disappointment to offset this judicial largesse.

Offsetting this unexpected goodwill towards the appellate courts in general is this fact: both cases also involve what should unquestionably be obvious violations of rights. Both cases involve fabricated evidence.

The one recently handled by the Third Circuit alleged officers hid evidence that would have cleared a man falsely accused of murder… and they, along with the prosecutor, kept this information from the imprisoned man for 25 years. Truly obscene and truly a blindingly obvious violation of rights, as the court noted:

We conclude that the constitutional rule that framing criminal defendants through use of fabricated evidence, including false or perjured testimony, violates their constitutional rights applies with such obvious clarity that it is unreasonable for us to conclude anything other than that the detectives were on sufficient notice that their fabrication of evidence violated clearly established law.

When you’re that awful, courts don’t need a case directly on point to deny you immunity.

The same goes for Marcia Tuggle, a caseworker for the Alamosa (CO) Department of Human Services. While investigating suspected child abuse after a doctor diagnosed a two year old child with serious brain injuries, she accompanied police officers to interviews with suspects. The child was in the care of Patrick Ramirez at the time the injury was discovered, left there by his mother. The child died two months later and police opened an investigation.

They first interviewed Ramirez who told police he was carrying the child when he fell. The officer and the social worker also interviewed the boy’s biological mother, Krystal O’Connell. Here’s how that went down, according to the Tenth Circuit Appeals Court decision [PDF]. (h/t Volokh Conspiracy)

Sergeant Alejo first interviewed Ms. O’Connell without anyone else in the room. Later the same day, Sergeant Alejo and Ms. Tuggle conducted a joint interview of Ms. O’Connell. According to Ms. O’Connell, Sergeant Alejo hurled accusations while Ms. Tuggle watched. Ms. Tuggle noted the responses, stating that Ms. O’Connell had admitted shaking Kyran and slamming him on the bed. Ms. O’Connell denied saying this and presented evidence that Ms. Tuggle had fabricated the confession

O’Connell was convicted of child abuse. Her conviction was overturned in 2017. This lawsuit followed.

Unbelievably, the social worker argued she should be granted qualified immunity because there was no prior case law that would have made her aware that fabricating a confession and handing it over to be used during the investigation and prosecution of O’Connell was a violation of her rights.

Alternately, she argued she wasn’t actually at fault at all because her notes were for her own social services investigation, not the criminal investigation that ended in O’Connell’s conviction. Wrong on both counts, says the Tenth Circuit.

From Ms. Tuggle’s own testimony, the existence of an ongoing criminal investigation would have been obvious. And Ms. Tuggle’s own notes reflect Ms. O’Connell’s confession to the crime of child abuse. From the existence of the criminal investigation and the confession of child abuse, Ms. Tuggle recognized that her office would need to share her notes with the sheriff’s office.

So under Ms. O’Connell’s version of events, Ms. Tuggle obviously knew—when she fabricated the confession—that her fabricated report would go to the sheriff’s office to advance the criminal investigation. Given that knowledge, any reasonable social worker in Ms. Tuggle’s position would have known that lying about a confession would contribute to the prosecution of Ms. O’Connell for child abuse.

The rights violation is so obvious there’s no need to find exact precedent.

Given that knowledge, Ms. O’Connell’s version of events would create an obvious denial of due process. We thus affirm the denial of summary judgment to Ms. Tuggle.

Equally unbelievably, there’s a dissent — written by Judge Mary Beck Briscoe — that argues the social worker should be granted immunity because she had no way of knowing fabricating a confession would violate someone’s rights.

When considered in the factual context of this case, I find no clearly applicable Tenth Circuit or Supreme Court case law that would have alerted Defendant that her actions would violate the constitutional rights Plaintiff now asserts.

As to the cases cited by the plaintiffs, the dissenting judge says this:

None of those cases would have provided a reasonable social worker in Defendant’s position with fair notice that fabricating a social services report violates constitutional rights related to a criminal investigation. Franks and Pierce do not describe similarly situated officials. Those cases described law enforcement officers or those working for law enforcement for the purpose of investigating crimes. Here, Defendant was a social worker responsible for drafting a social services report. To be sure, Sergeant Alejo was present during Defendant’s interview with Plaintiff, and Defendant was likely aware of a potential criminal prosecution. The mere presence of a law enforcement officer, however, is clearly dissimilar from a forensic scientist investigating crime scene evidence while employed by the police department and knowing full well the evidentiary purpose and importance of her report. Thus, Defendant lacked fair notice that the holdings of Franks or Pierce would apply to a social worker in her position.

But why should someone need “fair notice” they can’t — as government employees with the power to deprive people of their liberties — falsify confessions? Who knows, but Judge Briscoe believes this social worker shouldn’t be held accountable for her inexcusable actions simply because no other social worker in a similar situation had done anything equivalently awful prior to the Tenth Circuit taking up this appeal.

Do you need another reason to hate the doctrine of qualified immunity? Judge Briscoe supplies one. [Emphasis in the original.]

As the district court observed, “common sense” should have informed Defendant that “a social worker, like any other public official, cannot knowingly create false information in furtherance of an investigation.” Yet, neither common sense nor our prior case law would have informed Defendant that she could not do so for constitutional reasons, as opposed to some general, moral reason. And in determining whether Defendant is entitled to qualified immunity, we must look to the constitutionality of Defendant’s actions.

Thanks to qualified immunity, government employees can engage in actions that are morally or even criminally wrong and expect to get away with it simply because no court previously declared similar immoral or criminal acts constitutional violations. So, it’s basically the honor system but for people who don’t have any.

People who aren’t government employees can’t escape lawsuits when they fuck up someone’s life enough that they get sued for it by telling the court there’s no precedent directly correlating to their fuckery. But government employees can do this, which means those we expect to see held to a higher standard frequently aren’t — not by their supervisors, not by the agencies they work for, and in far too many cases, not by this nation’s courts.

Posted on Techdirt - 3 January 2022 @ 01:32pm

Federal Court Tells Proud Boys Defendants That Raiding The Capitol Building Isn't Covered By The First Amendment

A handful of Proud Boys members charged with crimes related to the January 6th raid on the Capitol building are arguing their actions are protected by the First Amendment. According to the defendants, the raid they participated in was nothing more than a protest. Alternatively, they’re arguing one of the laws being used against them is unconstitutionally overbroad, turning otherwise legal activity into illegal activity.

Unfortunately for these would-be insurrectionists, the DC federal court doesn’t find any of their arguments sympathetic. (via Courthouse News Service)

This is the law the Proud Boys members are challenging, as related in the recitation of the indictment by the DC court [PDF]:

The First Superseding Indictment alleges that Defendants helped plan and orchestrate the events of January 6. Count One charges them with conspiracy under 18 U.S.C. § 371. Defendants allegedly conspired “to stop, delay, or hinder Congress’s certification of the Electoral College vote,” in violation of 18 U.S.C. § 1512(c)(2), and “to obstruct and interfere with law enforcement officers engaged in their official duties to protect the Capitol and its occupants from those who had unlawfully advanced onto Capitol grounds,” in violation of 18 U.S.C. § 231(a)(3).

Defendants—who allegedly held leadership positions or planning roles with the “Proud Boys” organization—purportedly carried out this conspiracy by, among other things, encouraging other Proud Boys to attend the protest on January 6; “[u]sing websites, social media, and other electronic communications to raise funds to support travel and equipment purchases for the visit to Washington, D.C.”; “[o]btaining paramilitary gear and supplies—including tactical vests, protective equipment, and radio equipment—for the January 6 attack”; “[s]cheming to evade detection by law enforcement by dressing ‘incognito’ rather than wearing Proud Boys colors”; traveling to Washington, D.C., “prior to the attack”; using “programmable handheld radios, encrypted messaging applications, and other communications equipment to communicate and coordinate the January 6 attack”; “[d]ismantling” police barricades, and “[s]torming past” those barricades and law enforcement officers “in efforts to disrupt the proceedings at the Capitol”; and obtaining “entry into the Capitol building as a result of damage to windows and doors that otherwise would have precluded entry.”

Then there are the more overt acts, which turned the conspiracy into a reality. These included acquiring gear, mobilizing Proud Boys members, leading a group of Proud Boys into the Capitol building, using a riot shield to break a window to allow others to access the building, recording videos while inside the Capitol building, and spending the rest of the day celebrating their illegal actions via social media platforms and encrypted messaging services.

Here’s the main argument the Proud Boy defendants offered in their motion to dismiss the indictment:

According to Defendants, Section 1512(c)(2) does not apply here because Congress’s certification was not an “official proceeding,” and the phrase “otherwise obstructs, influences, or impedes” is limited to conduct like the destruction or alteration of documents and other records. In addition, if the statute is not read as they propose, Defendants argue that it is vague as applied; contravenes the rule of lenity; conflicts with the novel-construction principle; and violates the First Amendment.

Here’s the court’s short take before it goes on to explain why:

None of these arguments succeeds.

Here’s why:

[E]ven if an “official proceeding” had to be quasi-adjudicative or quasi-judicial in some way—a requirement missing from the plain text of the statute—because Congress’s certification of the Electoral College vote has some of those features, it would pass the test. As explained above, it is a formal process. […] In addition, the Vice President, as President of the Senate, serves as “presiding officer” while the votes cast by Electors are counted. 3 U.S.C. § 15. As in a court of law, members of Congress may object, which in turn causes the Senate and House of Representatives to separately consider and render their separate “decision[s]” on the objection.” Further, after the count is finished, the certification must end with a “result declared.”

The rest of the arguments fail as well. And here’s what the court has to say about the statute as applied to the Proud Boys’ alleged actions, which the defendants argue allows the government to punish them for engaging in protected speech. The court says the Proud Boys have no argument worth considering.

The Court first turns to the threshold question of whether the conduct with which Defendants are charged is protected by the First Amendment at all. […] It is not. Defendants are alleged to have “corruptly” obstructed, influenced, and impeded an official proceeding, and aided and abetted others to do the same—that is, they allegedly “unlawfully entered the Capitol grounds or the Capitol building to . . . stop, delay, and hinder Congress’s certification of the Electoral College vote,” and succeeded in doing so. And more specifically, they are charged with conduct involving acts of trespass, depredation of property, and interference with law enforcement, all intended to obstruct Congress’s performance of its constitutional duties. No matter Defendants’ political motivations or any political message they wished to express, this alleged conduct is simply not protected by the First Amendment.

Perhaps some of their activities on January 6 may have been covered by the First Amendment, but the actions they’re being charged for are not.

Defendants are not, as they argue, charged with anything like burning flags, wearing black armbands, or participating in mere sit-ins or protests. Moreover, even if the charged conduct had some expressive aspect, it lost whatever First Amendment protection it may have had.

The Proud Boys had plenty of available options to express their displeasure with the outcome of the 2020 election — options fully protected by the First Amendment. Instead, they chose to violate a handful of laws.

Quite obviously, there were many avenues for Defendants to express their opinions about the 2020 presidential election, or their views about how Congress should perform its constitutional duties on January 6, without resorting to the conduct with which they have been charged.

The motion is denied. The Proud Boy defendants will continue to face charges for their coordinated raid on the Capitol. It may be that some of these charges fail to stick, but what’s been alleged isn’t covered by the First Amendment, something the defendants surely knew when they decided they could somehow reverse history by shutting down the certification of the presidential election results.

Posted on Techdirt - 3 January 2022 @ 10:44am

Boston Police Department Used Forfeiture Funds To Hide Purchase Of Surveillance Tech From City Reps

Asset forfeiture is just cops going shopping for things they want. The analogy — one prompted by statements made by Sean McMurty, the head of a county forfeiture unit in New Jersey — works on multiple levels. McMurtry encouraged cops to seize stuff they wanted or needed.

Mr. McMurtry made it clear that forfeitures were highly contingent on the needs of law enforcement. In New Jersey, the police and prosecutors are allowed to use cars, cash and other seized goods; the rest must be sold at auction. Cellphones and jewelry, Mr. McMurtry said, are not worth the bother. Flat screen televisions, however, “are very popular with the police departments,” he said…

Mr. McMurtry said his handling of a case is sometimes determined by department wish lists. “If you want the car, and you really want to put it in your fleet, let me know — I’ll fight for it,” Mr. McMurtry said, addressing law enforcement officials on the video. “If you don’t let me know that, I’ll try and resolve it real quick through a settlement and get cash for the car, get the tow fee paid off, get some money for it.”

That’s direct shopping, utilizing law enforcement’s version of the five-finger discount. Take what you think you can use. Convert the rest to cash.

With cash in hand, cops can once again go shopping (albeit without the discount) for things they want. Even better, they can hide this shopping from the public and their oversight, stocking their cupboards with surveillance tech they don’t want the public to know about and make purchases that would never be approved by those holding the rest of their purse strings.

We’ve seen this happen (obviously months or years after the fact thanks to the secretive source of funds) in some of the largest police departments in the country. Both the Chicago and New York City police departments have used secret funds to buy surveillance tech. In Chicago’s case, the secret slush fund was powered by forfeitures. In New York, it was a fund the city gave explicit permission to the NYPD to spend as it wanted.

Now it’s the Boston Police Department being caught… well, not in the act, but, I guess, after the fact(?), thanks to local journalists.

[I]n 2019 the Boston Police Department bought the device known as a cell site simulator — and tapped a hidden pot of money that kept the purchase out of the public eye.

A WBUR investigation with ProPublica found elected officials and the public were largely kept in the dark when Boston police spent $627,000 on this equipment by dipping into money seized in connection with alleged crimes.

There are plenty of funds to work with. Law enforcement agencies and prosecutors in the state directly profit from forfeitures, encouraging cops to perform more seizures and district attorneys to initiate as many proceedings as possible. What’s supposed to be draining organized criminal enterprises of much needed cash is instead a slush fund for both entities. District attorneys get to buy what they want and cops get to do their own, off-the-books shopping to obtain controversial tech.

According to the documents obtained by WBUR and ProPublica, the only interaction the city had with this Stingray purchase was confirming there was enough in the forfeiture fund to buy it. When reached for comment, Boston city reps had no idea the Boston PD had bought itself a cell site simulator.

The Boston PD obviously knows it made this purchase but it isn’t talking. No comment from the BPD spokesperson. No comment from any PD official.

And this sort of secrecy will remain normal, at least for the immediate future. There is no mandated reporting on spending of forfeiture funds and nothing forcing the Boston PD to run all purchases past its city oversight, no matter what funds it’s spending. A proposed ordinance would change that, requiring explicit permission from the city to purchase surveillance gear but it’s not law yet.

But a better solution would be to end the practice of civil asset forfeiture, which allows law enforcement to take money from alleged criminals but without having to actually prove the person formerly in possession of the money was actually engaged in criminal activity. An acceptable stopgap would be to take the seized money out of law enforcement’s hands, as state rep Jay Livingstone suggests, and reroute it to a state general fund less likely to be abused or the source of secret purchases.

For now, law enforcement agencies are still free to spend off-the-books forfeiture funds on whatever they want. Until that incentive goes away, forfeiture programs will be still be heavily abused.

More posts from Tim Cushing >>