Monday, May 18, 2015
In its opinion in Lash v. Lemke, the Court of Appeals for the District of Columbia Circuit affirmed the grant of a summary judgment in favor of law enforcement officers in a suit filed by an Occupy D.C. protestor for a violation of Fourth and First Amendment rights.
Judge Griffith, writing for the court, and joined by Chief Judge Garland and Judge Kavanaugh, described the arrest of Ryan Lash at the Occupy DC encampment in January 2012 by United States Park Police Officers Tiffany Reed, Frank Hilscher, and Jennifer Lemke:
Officer Tiffany Reed, who had been following Lash as he hurried through the tents, stepped up behind Lash and seized his arms from the rear. Lash pulled his arms away and held them in front of his body, continuing to walk away as he insisted that he was innocent. Reed again sought to restrain Lash from behind and Lash again pulled his arms away from her. Reed then took hold of Lash’s left arm while Hilsher approached and seized his right arm. Lemke approached at the same time and drew her Taser from its holster, holding it ready.
Though Lash’s arms were now held by two different officers, he continued to struggle to keep his feet while Reed and Hilsher worked for several moments to gain control of him. Lemke, standing nearby and behind the trio, fired her Taser into Lash’s lower back. He fell to the ground, and the officers handcuffed him.
Lash argued that Lemke’s use of the Taser constituted excessive force in violation of Lash’s Fourth Amendment rights and was motivated by retaliatory animus against his protected expression in violation of his First Amendment rights. The defendant officers raised qualified immunity and the district judge granted summary judgment in their favor.
Relying on Ashcroft v. al- Kidd (2011), the DC Circuit Court of Appeals concluded that the "claimed right, whether it exists or not, is by no means 'clearly established.'" In so doing, however, the court acknowledged that this inquiry cannot be abstract, but must occur "in the specific context of the case." This "context," the court further acknowledged, depended on whether Lash was "resisting arrest."
This would seemingly make summary judgment - - - requiring no genuine disputes of material fact - - - difficult, but the court interestingly relied on multiple video-recordings of the "episode" which rendered Lash's description a "visible fiction."
Here is one of the videos of the incident:
The court further rejected Lash's arguments regarding the video as conclusive:
Lash argues that we may not rely on the videorecordings in this way because they “cannot fully convey everything that people at the scene felt” such as “how much force one person is exerting” or “the level of detail a person will experience in the moment.” This is no argument at all. The Supreme Court has explained that we determine whether a right is clearly established based on the “objective legal reasonableness of an official’s acts,” protecting officers from liability unless “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Subjective factors like those Lash identifies here cannot shed any light on whether a reasonable officer in these circumstances would have believed her actions violated Lash’s clearly established rights. It is that objective test, not Lash’s knowledge or Lemke’s thoughts, that determines the scope of qualified immunity. The videorecordings in the record provide us all we need to determine what a reasonable officer would have known at the scene. And we do not hesitate to conclude from the videorecording that there is “no genuine issue of material fact” regarding Lash’s active resistance.
Given the increased use of videorecordings in cases against police officers, the court's discussion of 'what the video shows' might be expected to be used in other cases.
Here, however, the court concludes that Lash was "actively resisting arrest," and thus there was no clearly established right not be subject to a Taser.
As to the First Amendment claim, the court quickly found that Lash did not show the officer had "retaliatory animus."
Monday, May 11, 2015
In its opinion in United States v. Pierce, the Second Circuit considered the arguments of co-defendant/appellant Melvin Colon regarding the admissibility of a rap video and images of tattoos in the criminal trial. The unanimous opinion, authored by Judge Denny Chin, affirmed the convictions of Colon and his co-defendants for conspiracy, racketeering, murder, narcotics trafficking, and firearms offenses largely related to their activities as members of a "violent street gang, dubbed the Courtlandt Avenue Crew (ʺCACʺ) by the government," as well as a gang known as Godʹs Favorite Children, or ʺGFC.ʺ
Colon contended that his First Amendment rights were violated when the district court permitted the government to present as evidence a rap video and images of his tattoos, some of which he had posted to his Facebook page. The "rap video" portrayed Colon as rapping: ʺYG to OG / Somebody make somebody nose bleed/ Iʹm OG shoot the Ruger / Iʹm a shooter.ʺ A witness, also seen in the video, testified for the prosecution that the Young Gunnaz crew, or YG, was feuding with the OG (formerly the GFC). The images of the tattoos introduced at trial were explained by the Second Circuit as including:
a close‐up of Colonʹs hand, showing his ʺY.G.K.ʺ tattoo, which stands for ʺYoung Gunnaz Killer.ʺ In some of the photographs Colon is pointing a gun at his Y.G.K. tattoo, indicating, according to the government, his desire to harm members of the Young Gunnaz. Other tattoos depicted in the photographs introduced at trial included one on his right arm that read ʺCourtlandtʺ; tattoos on his left arm that referenced [co-defendant] Meregildoʹs nicknames (ʺYoungʺ and ʺKillaʺ); and one stating ʺM.I.P. [Mac In Peace] T‐Money,ʺ referring to Harrison, the former leader of CAC.
The Second Circuit panel rejected the First Amendment challenges to the introduction of the evidence. First, the court noted that the conviction did not rest on the expression: "here, the speech is not 'itself the proscribed conduct,'" interestingly citing United States v. Caronia, the 2012 Second Circuit case reversing a conviction for promoting the off-label use of prescription drugs. Additionally, the Second Circuit considered Colon's argument that the rap lyrics were merely "fictional artistic expressions," and discussed the New Jersey Supreme Court decision last year in State v. Skinner, noting that the court there observed that ʺ[o]ne would not presume that Bob Marley, who wrote the well‐known song ʹI Shot the Sheriff,ʹ actually shot a sheriff.ʺ However, the Second Circuit distinguished Skinner in which the court reversed the conviction (although not explicitly on the basis of the First Amendment), by concluding that here the rap lyrics and tattoos were properly admitted, because they were relevant and their probative value was not substantially outweighed by the danger of unfair prejudice. Specifically - - - if cursorily - - - the Second Circuit reasoned:
The government proffered the rap video to show Colonʹs animosity toward the Young Gunnaz, as well as his association with CAC. The government similarly offered the tattoo evidence to help establish his motive for violence against the Young Gunnaz, and to show his loyalty to Harrison and Meregildo ‐‐ indeed other members of CAC had similar tattoos. Hence, the rap video and tattoos were relevant, their probative value was not outweighed by the danger of unfair prejudice, and Colonʹs First Amendment rights were not implicated when the district court admitted the evidence from his social media account.
As in other cases raising First Amendment challenges to the introduction of expressive evidence, the First Amendment issues are subsumed into the evidentiary one.
Colon also challenged a portion of the Stored Communications Act (SCA), 18 U.S.C. § 2703(c)(1), regarding the subpoenaing of Facebook for page content. Appellant Colon, however, is not challenging the Government's acquisition of his own Facebook content, however, but argued that SCA's prohibition of his subpoena of Facebook content from a witness, denied him his Fifth Amendment due process right to present evidence and his Sixth Amendment right to confront adverse witnesses. Colon managed to obtain some of the Facebook postings through the work of a private investigator and his attorney used it in cross-examination and introduced portions of it. The Second Circuit declined to reach the constitutional question, given that "Colon possessed the very contents he claims the SCA prevented him from obtaining, and his suggestion that there could have been additional relevant exculpatory material in the Parsons Account is purely speculative."
The court's opinion resolves the issues before it (including a sentencing issue which earned a remand), but does little to elucidate the important First Amendment concerns that remain regarding the admissibility of rap lyrics and tattoos in criminal trials.
Thursday, May 7, 2015
In its lengthy, well-reasoned, and unanimous opinion in American Civil Liberties Union (ACLU) v. Clapper, the Second Circuit today concluded that NSA's bulk telephony metadata collection is not authorized by §215 of the PATRIOT Act, 50 USC §1861(b)(2)(A). After hearing oral arguments last September, the panel reversed the district court's opinion that had rejected both the statutory and constitutional challenges to the scheme. Recall that this widespread collection has been controversial since the program was first revealed through information obtained by Edward Snowden; we've additionally discussed the issues here, here, and here.
The Second Circuit, in the opinion authored by Gerard Lynch, did agree with the district judge that the ACLU plaintiffs had standing to challenge the collection of call records. The court stated that "the government’s own orders demonstrate that appellants’ call records are indeed among those collected as part of the telephone metadata program." The court rejected the government's contention that any alleged injuries depend on the government's reviewing the information collected rather than simply collecting it: the collection is [challenged as] a seizure and the Fourth Amendment prohibits both searches and seizures. The court distinguished Amnesty International v. Clapper in which the United States Supreme Court's closely divided opinion concluded that the alleged standing was based on a "speculative chain of possibilities." Instead:
appellants’ alleged injury requires no speculation whatsoever as to how events will unfold under § 215 – appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the FISC; and the records have been collected.
The panel likewise held that the ACLU organizations have standing to assert a First Amendment violation regarding its own and its members' rights of association.
However, the court did not rule on the Fourth and First Amendment claims explicitly, although its conclusion regarding §215 occurs in the shadow of the constitutional issues, or as the court phrases it: "The seriousness of the constitutional concerns" has "some bearing on what we hold today, and on the consequences of that holding."
What the court does hold is that "the telephone metadata program exceeds the scope of what Congress has authorized and there violates §215." After a discussion of the program and §215, it first considers the government's arguments that the judiciary is precluded from considering the issue. The court interestingly observes that judicial preclusion here would "fly in the face of the doctrine of constitutional avoidance."
[I]t would seem odd that Congress would preclude challenges to executive actions that allegedly violate Congress’s own commands, and thereby channel the complaints of those aggrieved by such actions into constitutional challenges that threaten Congress’s own authority. There may be arguments in favor of such an unlikely scheme, but it cannot be said that any such reasons are so patent and indisputable that Congress can be assumed, in the face of the strong presumption in favor of APA review, to have adopted them without having said a word about them.
The court likewise held that there was no implicit preclusion.
On the merits of the §215 challenge, the court essentially found that the government's interpretation of "relevant" was too broad. The court noted that both parties relied on the grand jury analogy, supported by the statute's language and legislative history. Yet for the court, the government's argument faltered on this very ground:
Moreover, the court relies on the Privacy and Civil Liberties Oversight Board (PLCOB) Report regarding the overbreadth, noting that "counterterrorism in general" is not sufficiently narrow. Further, the court states that the government's interpretation reads the "investigation" language of §215 out of the statute, and even more specifically, §215's language "relevant to an authorized investigation (other than a threat assessment)."
Search warrants and document subpoenas typically seek the records of a particular individual or corporation under investigation, and cover particular time periods when the events under investigation occurred. The orders at issue here contain no such limits. The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future. The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program.
May 7, 2015 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Standing, State Secrets | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 29, 2015
The case centers around Oklahoma's use of midazolam as the first drug in the cocktail. In particular the case asks whether midazolam, a sedative, reliably induces a sufficiently pain-free state so that the condemned prisoner wouldn't feel the intense pain associated with the second drug, potassium chloride. (Everyone agrees that potassium chloride alone causes intense pain and suffering. The pain is described as burning alive, or burning from the inside out.) If so, there's probably no constitutional problem with midazolam. (Under Baze, the Court upheld a different lethal injection protocol on the assumption, supported in the record, that the first drug reliably produced a deep, coma-like unconsciousness.) If not, however, Oklahoma's protocol may violate the Eighth Amendment.
But there's a problem: Nobody seems to know for sure. More: the state's expert's testimony at trial on a key point about how midazolam works was wrong--so much so that the state itself backed away from that testimony. That means that the district court's ruling, based on its conclusion that midazolam sufficiently protects against pain, based on the state's expert's testimony, is seriously flawed. (Justice Kagan described it as "gobbledygook." That seems about right.)
The Court focused principally on two questions today. The first, whether the state's use of midazolam reliably induces a sufficiently pain-free state so that the condemned prisoner wouldn't suffer from potassium chloride, seemed to divide the Court along conventional ideological lines. The progressive wing went with the condemned (against the use of midazolam), and the conservatives went with the state. The second question--whether the petitioners bear the burden to show that midazolam does not induce the state (and to identify a constitutional alternative for the state), or whether the state bears the burden to show that its use of midazolam does not cause intense pain and suffering--divided the Court the same way.
Justice Kennedy is probably the swing vote, but he was relatively quiet today. He only piped up when the arguments turned to whether the petitioners contributed to the problem in the first place. (Oklahoma started using midazolam because it couldn't gain access to the barbiturate drugs that more reliably protect against pain--and that the Court upheld in Baze. Oklahoma can't gain access to the barbiturate drugs because manufacturers have stopped supplying them, for ethical reasons, for use in lethal injections. Justice Alito suggested that opponents of the death penalty contributed to that situation, and that the Court shouldn't be complicit in this "guerrilla war" against the death penalty.) Justice Kennedy simply asked what relevance this all had to the case. Answer from the petitioners: none.
On one level, the case asks pretty narrow and technical questions about a particular drug and the burdens in proving an Eighth Amendment violation under Baze.
But on another level, the case potentially strikes a serious blow against the death penalty itself. That's because if the Court strikes Oklahoma's use of midazolam (whatever it does with the burden), Oklahoma and other lethal-injection states will have to look to a much less attractive alternative--something like electrocution, the gas chamber, or even a firing squad. (That's "much less attractive" on the barbarity scale, not the constitutional one (alas).) Some states have already moved in this direction. If that happens across the board, moves like this could erode public support for the death penalty. And if that's true, a ruling for the petitioners could be much more than a narrow, technical ruling on lethal injections: it could strike a serious practical blow against the death penalty itself.
In a well-crafted but hardly surprising opinion in Abu-Jamal v. Kane, Chief Judge Christopher Conner of the Middle District of Pennsylvania concluded that Pennsylvania's "Revictimization Relief Act" is unconstitutional.
Recall that Act provided:
In addition to any other right of action and any other remedy provided by law, a victim of a personal injury crime may bring a civil action against an offender in any court of competent jurisdiction to obtain injunctive and other appropriate relief, including reasonable attorney fees and other costs associated with the litigation, for conduct which perpetuates the continuing effect of the crime on the victim.
At the time of signing, it was clear that the Act was primarily directed at Mumia Abu-Jamal; Abu-Jamal brought suit soon after the Act was passed; another challenge was brought by Prison Legal News and consolidated.
Judge Conner began his opinion by noting that the First Amendment does not "evanesce" at the prison gate, and ended it by stating that the First Amendment does not "evanesce at any gate." (emphasis in original). In applying well-settled First Amendment doctrine, Judge Conner focused on both Simon & Schuster v. Crime Victims Board (1991) (holding unconstitutional the so-called "Son of Sam" law) and Snyder v. Phelps (2011) (essentially holding that free speech trumped the tort of intentional infliction of emotional distress). Judge Conner easily rejected the State's argument that the statute regulated "conduct" - - - which is, after all, the word in the statute and which would merit lower scrutiny - - - noting that:
throughout its brief legislative gestation, the law was championed primarily as a device for suppressing offender speech. The Act's sponsor extolled its capacity to silence Abu-Jamal in particular. The chairman of the house judiciary committee opined that the Act would end the "extreme distress" suffered by victims when offenders achieve celebrity, admonishing Goddard College for providing a "cold blooded murderer" [Abu-Jamal] with a speaking forum.
(emphasis in original; citations to Stipulation omitted). As a content-regulation, the Act "instantly fails" the exacting scrutiny standard according to Judge Conner.
In addition to the content-restriction fatality, Judge Conner found that the Act was impermissibly vague and substantially overbroad as those doctrines are derived from due process. The Act's "central limitation" turns on the unknowable emotive response of victims, which a person cannot determine "short of clairvoyance." Moreover, the Act applies to "offenders," a term the statute does not define, and which could presumably apply to a wide swath of persons, including non-offender third parties who publish statements by offenders. Relatedly, the overbreadth defect of the Act concerned the judge:
[T]he Act ostensibly affects protected - - - and critically important - - - speech, including: pardon applications, clemency petitions, and any testimony given in connections with those filings; public expressions of innocence, confessions, or apologies; legislative testimony in support of improved prison conditions and reformed juvenile justice systems; programs encouraging at-risk youth to avoid lives of crime; or any public speech or written work whatsoever, regardless of the speaker's intention or the work's relation to the offense.
In other words, if the victim can demonstrate "mental anguish," the statute would be satisfied. And, combined with the broad notion of "offender," taken to its "logical conclusion," the Act would "limit an accused person's right to profess his innocence before proven guilty."
Pennsylvania would be wise not to appeal this judgment. It would have even been more wise if the legislature had not passed - - - and the Governor had not signed - - - such a patently unconstitutional statute last year.
Saturday, February 28, 2015
In its opinion in Matthews v. City of New York, the Second Circuit upheld the First Amendment rights of a police officer in a unanimous panel opinion, authored by Judge Walker.
The court reversed the district judge's grant of summary judgment in favor of the City that had concluded that the police officer, Craig Matthews spoke as a public employee, not as a citizen, and that his speech was thus not protected by the First Amendment.
At issue is the application of the closely divided Garcetti v. Ceballos and its "clarification" in the United States Supreme Court's 2014 decision in Lane v. Franks ,regarding the "scope of employment" exclusion for First Amendment protection. Matthews alleged that he was retaliated against for speaking about an alleged quota system mandating the number of arrests, summons, and stop‐and‐frisks that police officers must conduct. These are the same policies that have been so controversial in NYC and have been considered by the Second Circuit.
In February 2009, Matthews, believing that the quota system was damaging to the NYPD’s core mission, reported its existence to then‐Captain Timothy Bugge, the Precinct’s commanding officer at that time. In March and April of 2009, Matthews again reported the quota system’s existence to Captain Bugge, and, in May 2009, Matthews reported the same to an unnamed Precinct executive officer.
In January 2011, Matthews met with then‐Captain Jon Bloch, the Precinct’s new commanding officer, and two other officers in Captain Bloch’s office. Matthews told them about the quota system and stated that it was “causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers,” and that it “was having an adverse effect on the precinct’s relationship with the community.”
The Second Circuit panel held that "Matthews’s speech to the Precinct’s leadership in this case was not what he was “employed to do,” unlike the prosecutor’s speech in Garcetti." Importantly, "Matthews’s speech addressed a precinct‐wide policy. Such policy‐oriented speech was neither part of his job description nor part of the practical reality of his everyday work."
The court also considered whether the speech had a "civilian analogue," discussing its previous opinion in Jackler v. Byrne, a 2011 opinion in which the panel had also found the speech of a police officer protected by the First Amendment. In part, the panel's conclusion rested on the fact that "Matthews reported his concerns about the arrest quota system to the same officers who regularly heard civilian complaints about Precinct policing issues."
In holding that Matthews' speech is protected by the First Amendment, the opinion may be further indication that the grip of Garcetti on employee speech is loosening. It is not only Lane v. Franks, in which the United States Supreme Court unanimously reversed the Eleventh Circuit's summary opinion and the Second Circuit's previous opinion in Jackler, but cases such as the Third Circuit's Flora v. Luzerne County decided last month. This is not to say that Garcetti does not remain a formidable obstacle to any First Amendment claim by a public employee, but only that the obstacle is becoming less insurmountable.
Friday, February 13, 2015
The D.C. Circuit ruled today that deputy federal marshals enjoyed qualified immunity from a suit for damages after they shot a 16-year-old driver who hit another marshal as he drove out of an apartment parking lot.
The case, Fenwick v. Pudimott, arose after three deputy federal marshals observed Fenwick, a 16-year-old, struggling to park a car in the lot. Fenwick exited the vehicle, entered the apartment building, and came back to his car. As he backed up, the officers instructed him to halt. Instead, he drove forward toward the parking lot exit and clipped one of the officers. The other officers fired shots and struck Fenwick with four bullets. Fenwick recovered and sued.
The D.C. Circuit held that the officers enjoyed qualified immunity from suit, because, under the second prong of Saucier v. Katz, their use of deadly force didn't violate a clearly established constitutional right. The court noted that Fenwick "posed no immediate threat to either officers or bystanders when [the officers] opened fire," but also that the officers saw pedestrians and other vehicles in the vicinity just before the shooting, and that Fenwick hit one of the officers with the car. This was enough for the court to hold that the officer's use of deadly force wasn't clearly unconstitutional.
Still, the court saw it as a very close case. Given that, and undoubtedly conscious of recent instances of police abuses around the country, the court issued this caution:
[W]e emphasize that nothing in this opinion should be read to suggest that qualified immunity will shield from liability every law enforcement officer in this circuit who fires on a fleeing motorist out of asserted concern for other officers and bystanders. Outside the context of a "dangerous high-speed car chase," deadly force, as the Supreme Court made clear in Garner, ordinarily may not be used to apprehend a fleeing suspect who poses no immediate threat to others--whether or not the suspect is behind the wheel.
Judge Karen LeCraft Henderson, who concurred, didn't see it as so close. Citing the Court's ruling last Term in Plumhoff v. Rickard (holding that officers' use of deadly force to stop a driver in a high-speed chase didn't violate the Fourth Amendment), she would have resolved the case on Saucier's first prong--that the use of deadly force didn't violate the Constitution.
Thursday, January 15, 2015
Reversing the district court, the Third Circuit's opinion today in Flora v. County of Luzerne held that a public defender's complaint contained sufficient allegations to proceed with a First Amendment retaliation claim.
The unanimous panel held that the United States Supreme Court's 2014 decision in Lane v. Franks "clarified that '[t]he critical question under Garcetti [v. Ceballos] is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.” While the Third Circuit noted that the district judge did not have the "benefit of Lane" when it rendered its decision, it stated that "Garcetti alone should have steered it away from applying" the standard it did, a “related to” employment standard.
So what did Chief Public Defender Flora do that he alleges was protected by the First Amendment? First, after many unsuccessful attempts to procure what he saw as inadequate funding for indigent defense, he eventually initiated a class action lawsuit for the benefit of indigent criminal defendants in state court, and interestingly simultaneously sought relief in federal court from being terminated for this action. Second, the county's notorious "Kids for Cash" scandal had resulted in a 2009 order by the state supreme court of vacatur and expungement of thousands of delinquency adjudications and consent decrees, but in 2013 Flora learned that over 3,000 expungements had not yet occurred. He "brought that failure to the attention of the County, the District Attorney for the County, the Administrator of the Court of Common Pleas, the public interest law firm that represented the juveniles in the expungement proceedings, and Judge Grim," who had been the special master in the case.
Both the lawsuit and the reporting of the failure to expunge were obviously "related to" Flora's position as a public defender. But the Third Circuit rejected the "related to" standard in favor of the "ordinary duties" standard. In this light, its interesting that the court highlights Flora's allegations that
his obligations as an attorney, rather than as the Chief Public Defender, compelled him to make the statements at issue. [And that] the funding crisis and the expungement issue as extraordinary circumstances impelling him to extraordinary speech.
The Third Circuit concludes:
A straightforward application of Lane leads us to conclude that, given those allegations, Flora’s speech with respect to both the funding litigation and the expungement problems was not part of his ordinary responsibilities – it was not part of the work he was paid to perform on an ordinary basis. . . Flora’s ordinary job duties did not include the public reporting of lingering effects from government corruption or the filing of a class action suit to compel adequate funding for his office. Rather, he represented indigent clients in criminal court and in related proceedings . . . .To view it otherwise would unduly restrict First Amendment rights, because reporting malfeasance or misfeasance will regularly benefit an employee in the execution of his job duties by, presumably, removing impediments to proper government functioning.
The Third Circuit's opinion is another example of courts retreating from the broad brush of Garcetti and providing First Amendment protections for "whistleblowers," including attorneys who take action based on their ethical obligations.
Thursday, January 8, 2015
Judge Irene Berger of the Southern District of West Virginia issued a Memorandum Opinion and Order clarifying and amending but essentially reaffirming her extensive "gag" order in United States v. Blankenship, the criminal prosecution (which some say is unprecedented) of CEO Don Blankenship (pictured below) of Massey Energy for his alleged responsibility for the the Upper Big Branch Mine Disaster. Recall Blankenship as the outsized contributor to the campaign of Brent Benjamin for the West Virginia Supreme Court of Appeals; as a Justice Benjamin ruled in a case involving Massey Coal. The 2009 sharply divided Supreme Court opinion in Caperton v. Massey Coal held that the failure of Benjamin to recuse himself violated due process. The case is the subject of the book The Price of Justice.
To say that Blankenship is controversial - - - given the Upper Big Branch Mine disaster and Caperton with its underlying facts - - - is probably an understatement. And Judge Berger has a difficult task attempting to protect Blankenship's rights to an impartial jury and fair trial. But do Judge Berger's orders go too far?
The objections to Berger's original orders were filed as a motion to intervene by the Wall Street Journal, the Associated Press, Charleston Gazette, National Public Radio, Inc., and the Friends of West Virginia Public Broadcasting, Inc.. Judge Berger allowed the intervention for the limited purpose of challenging the previous orders and found that the press organizations had constitutional standing.
Judge Berger's analysis centered on the classic First Amendment/Sixth Amendment conflict cases of Sheppard v. Maxwell (1966) and Nebraska Press Association v. Stuart (1976). From these cases, Judge Berger noted she has
the discretion and, more importantly, the duty to take specific, reasonable steps to guard against prejudice at the outset where it has knowledge, given prior publicity, that continued publicity, regarding the facts underlying the indictment, is likely to taint prospective jurors. Courts do not exist or operate in a vacuum. In the Southern District of West Virginia, we live in coal country. Many of our families depend on coal mining for their livelihood. Many families and communities within the Southern District of this state were impacted by the deaths of the miners in the Upper Big Branch mine explosion referenced in the indictment. Interest in this case is, understandably, heightened by that loss of life. In short, the environment matters.
Judge Berger stressed that the court's order "is not directed toward the press." Instead, it limits the "parties" from communicating with press (and "only limits the subject matter") and keeps documents filed in the court case sealed.
Yet three questions remain about the orders.
First, the breadth of the "gag" order was challenged. In addition to the parties, attorneys, and court personnel it includes
potential witnesses, including actual and alleged victims, investigators, family members of actual and alleged victims as well as of the Defendant.
In a footnote, Judge Berger explained the inclusion of "family members":
the order applies only to those who may appear during some stage of the proceedings as parties or as witnesses. Even if not direct witnesses to the alleged offenses, victims and their family members may be witnesses at sentencing or potential beneficiaries of restitution, should the case reach that posture. As such, they are “trial participants.”
Later, she states that allowing " a potential trial participant to speak through his or her family member would eviscerate the protective measures, and is further evidence of the need for the inclusive order."
Yet "family" here could potentially be quite broad, especially in the context of rural West Virginia.
Second, Judge Berger relied on the fact that the docket was available, although not the underlying documents being referenced. Nevertheless, the new (Amended) Order released many documents, based on a principle that
any documents that do not contain information or argument related to the facts and substance of the underlying case do not fall within the purview of the [original] order, and should be publicly accessible.
Yet the standard does seem murky, and of course the press will have a difficult time objecting to the non-release of pleadings or other documents.
Third and last, Judge Berger's rejection of change of venue (as well as voir dire) as lesser restrictions of the First Amendment rights of the press (and public) as "not feasible options at this time" is interesting. Berger outlines the preference for an accused to be tried in the district in which the crime is alleged to have been committed. She writes that transfer of venue "takes place after pretrial publicity has tainted the jury pool such that a jury cannot be seated within the district." Thus, she essentially elevates the "right" to be tried in the alleged-crime's district over both the First and Sixth Amendment rights.
Judge Berger has crafted a delicate balance which will most likely need continuing calibration. Her task to prevent a "Roman holiday" for the media (as the Court said in Sheppard) is not only operative during the pre-trial publicity stage but will undoubtedly be pronounced during the trial itself.
January 8, 2015 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), Family, First Amendment, Opinion Analysis, Sixth Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, January 5, 2015
The actions - - - or inaction - - - of the grand jury that did not indict police officer Darren Wilson for the death of Michael Brown has prompted much controversy, including protests. At the heart of this controversy is not only the actual facts of the incident, but the conduct of the grand jury by the prosecutor, Robert McCulloch. McCulloch took the unusual step of providing a detailed statement about the grand jury proceedings to the press and of filing a motion in court for public disclosure of materials considered by the grand jury.
Both of those documents - - - McCulloch's statement to the press and his memorandum in support of the motion for disclosure - - - are appendices in a complaint filed today in the Eastern District of Missouri, by the ACLU of Missouri, Grand Juror Doe v. Robert McCulloch.
Grand Juror Doe, who served on the grand jury, argues that the Missouri statutes prohibiting grand jurors from discussing the proceedings are an infringement of the First Amendment as applied in this situation. A copy of these statutes, Mo. Stat. §540.080 (Oath of Jurors); Mo. Stat. §540.320 (Grand juror not to disclose evidence-penalty); and Mo. Stat. §540.310 (Cannot be compelled to disclose vote), were given to the grand jurors at "the conclusion of their service," according to paragraph 28 of the complaint. But because the prosecutor has released evidence and made statements, as well as because of the legislative resolution to submit for voter referendum a repeal of the Missouri state constitutional provision providing for grand juries, Doe argues that s/he is being chilled from expressing opinions about matters of public concern and engaging in political speech.
The factual allegations in the complaint do provide a window on the content and viewpoint of Doe's expression. Doe alleges that the conduct of the grand jury investigation of Darren Wilson "differed markedly" from other cases presented to the grand jury, and even more provocatively, that McCulloch's statement to the press and release of records do not comport with Doe's own opinions of the process.
This request for a permanent injunction against enforcing any of the challenged Missouri statutes against Doe should s/he speak about the grand jury proceedings against Wilson is supported by basic First Amendment considerations and basic notions of fairness. The root problem here is not grand jury secrecy, but the lifting of that veil of secrecy for one party and perspective only. As Justice Scalia stated in the context of vindicating First Amendment rights in RAV v. City of St. Paul, this would be akin to "authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules."
Friday, January 2, 2015
Cyrus Favier, over at ars technica, surveys the candidates of current litigation- - - five! - - -that might bring the issues of the constitutionality of NSA surveillance to the United States Supreme Court.
Favier looks at the dueling opinions in Klayman v. Obama and ACLU v. Clapper, as well as lesser known cases winding their ways through the courts. And as he implies, regardless of the status of these particular cases, there are plenty more percolating:
Case name: N/A
Moreover, the Court's unanimous recent opinion in Riley v. California finding a cell phone search requires a warrant and the continuing uncertainty over the 1979 "pen register" case Smith v. Maryland gives some credence to the speculation.
ConLawProfs looking for something accessible yet substantively provocative for the first day of classes should take a look at Favier's article.
Wednesday, December 3, 2014
Eleventh Circuit Finalizes Rejection of Constitutionality of Florida Drug Testing of Welfare Recipients
In its 54 page opinion today in Lebron v. Sec't Florida Dep't of Children & Families, a unanimous panel of the Eleventh Circuit held that Florida Statute §414.0652 requiring drug testing of all persons who receive public benefits is unconstitutional.
Recall that a previous panel (of three different judges) had affirmed a district judge's grant of a preliminary injunction against the statute. The district judge then entered a permanent injunction and this appeal followed.
Today's opinion holds that the statute violates the Fourth Amendment because Florida "failed to meet its burden of establishing a substantial special need to drug test all TANF applicants without any suspicion." Importantly, the court also held that
the State cannot circumvent constitutional concerns by requiring that applicants consent to a drug test to receive TANF payments. When a government benefit is conditioned on suspicionless drug testing, the voluntariness of the program is properly viewed as a factor baked into the special needs reasonableness analysis, not as an exception to it.
The court rejected Florida's reliance "on unconstitutional conditions cases that arose in different contexts," such as Rust v. Sullivan, stating that "the consent inquiry is included within the special needs analysis" in the Fourth Amendment context.
The court concludes:
the State cannot use consent of the kind exacted here -- where it is made a condition of receiving government benefits -- to wholly replace the special needs balancing analysis. We respect the State’s overarching and laudable desire to promote work, protect families, and conserve resources. But, above all else, we must enforce the Constitution and the limits it places on government. If we are to give meaning to the Fourth Amendment’s prohibition on blanket government searches, we must -- and we do -- hold that § 414.0652 crosses the constitutional line.
While Florida and its governor have been adamant in defending the constitutionality of mandatory drug-testing, the federal courts have been just as adamant that such drug-testing is unconstitutional. But perhaps Florida will seek certiorari and a chance to validate this policy.
Monday, November 10, 2014
In its opinion in Williams v. City of Cleveland, a panel of the Sixth Circuit faulted the district judge for over-extending Florence v. Board of Chosen Freeholders of County of Burlington (NJ) to include a challenge to a practice by Cleveland that "compelled pretrial detainees who were being processed into the facility to undress in the presence of other detainees and to have their naked genitals sprayed with delousing solution from a pressurized metal canister."
Recall that the United States Supreme Court in Florence upheld the authority of jail authorities to strip search a person accused of a minor crime without individualized suspicion under the Fourth Amendment. As we stated when the decision was rendered in April 2012, "Writing for the 5-4 majority, Kennedy's relatively brief opinion could be summed up in a single word: deference."
Yet that deference was not total and today's holding from the Sixth Circuit elaborates on the limits of Florence. The complaint in Williams was stayed pending resolution of Florence, and after Florence, the plaintiffs sought to amend their complaint to distinguish Florence. The district judge denied the motion to amend as "futile" because there was no real constitutional issue raised by the manner of the delousing.
Reversing, the unanimous panel of the Sixth Circuit noted that Florence "took pains to emphasize that its holding applied only to the blanket policy before it, which required a visual strip search and a compulsory shower with self-applied delousing solution." This means, according to the court, that the particular method of conducting a search must still be reasonable, and that this reasonableness is weighed against the level of intrusion.
As the panel described the allegations, the "hose treatment" included the plaintiffs being "ordered to crouch naked on the floor with several strangers in the room while corrections officers" directed a pressurized hose of delousing liquid aimed at their intimate body parts. The incident also included for one plaintiff being hosed off by another detainee and for another plaintiff, the delousing liquid "penetrating her anus." For the panel, "simply spraying the detainee with a hose as if she was an object or an animal," is problematical because
it is not obvious that it would be impracticably onerous for the jail to permit self-application of the delousing solution while reserving the “hose treatment” for instances where individual detainees misapply or refuse to properly apply the provided solution.
However, the panel noted that in "the final analysis" "the jail may have had good reasons for conducting these procedures in the particular manner in which it did." However, "that is a matter for resolution either at trial or on summary judgment, not on the pleadings."
Thus, the case will proceed at the trial level.
Wednesday, October 15, 2014
With the denial of certiorari in James Risen's case by the United States Supreme Court in June 2014, from the Fourth Circuit's divided opinion in United States v. Sterling, the situation of James Risen is in limbo. In large part, it was Risen's book, State of War that led to his current difficulties because he will not reveal a source.
Now Risen has a new book, Pay Any Price: Greed, Power, and Endless War, just reviewed in the NYT. As part of the book promotion - - - but also quite relevant to the case against Risen - - - Risen has made several media appearances of note, with the twist on the book title being that it's James Risen who is prepared to "pay any price" to protect his journalistic integrity (and by implication resist governmental power).
Perhaps the most populist of Risen's appearances is in an extended segment of the television show "60 minutes" including not only James Risen but others. The segment explains and situates the controversy, including its current status under President Obama. It also includes statements by General Mike Hayden that he is at least "conflicted" about whether Risen should be pursued for not divulging his source(s), even as Hayden expresses his view that NSA surveillance is "warantless but not unwarranted."
The entire segment is definitely worth watching:
Springboarding to some extent from General Hayden's remarks is Risen's extensive interview with Amy Goodman on Democracy Now (full video and the helpful transcript is here), in which Risen talks about his arguments in the book and a bit about his own predictament, concluding by saying:
AMY GOODMAN: So, you’re covering the very people who could put you in jail.
JAMES RISEN: Yeah, sometimes, yes. As I said earlier, that’s the only way to deal with this, is to keep going and to keep—the only thing that the government respects is staying aggressive and continuing to investigate what the government is doing. And that’s the only way that we in the journalism industry can kind of force—you know, push the government back against the—to maintain press freedom in the United States.
A third noteworthy appearance by Risen is his interview by Terry Gross on NPR's Fresh Air (audio and transcript available here). One of the most interesting portions is near the end, with the discussion of the contrast to the celebrated Watergate investigation of Woodward and Bernstein and Risen's solution of a federal shield law for reporters.
For ConLawProfs teaching First Amendment, these "sources" could be well-used.
October 15, 2014 in Books, Cases and Case Materials, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, International, Privacy, Recent Cases, Speech, State Secrets, Theory, War Powers, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Tuesday, September 23, 2014
New Jersey Supreme Court Finds Constant GPS Monitoring of Sex Offender Unconstitutional as Ex Post Facto
In a closely divided opinion in Riley v. New Jersey State Parole Board, the New Jersey Supreme Court has found that its Sex Offender Monitoring Act (SOMA), passed in 2007, violates the prohibition on ex post facto laws under both the New Jersey and United States Constitutions when applied to a person whose crime was committed in 1986 and was released from prison not under any type of parole supervision.
George Riley, who is now 81 years of age, argued that the monitoring constituted punishment, rather than simply civil consequences. The majority of the court found that SOMA was penal in nature: it "looks like parole, monitors like parole, restricts like parole, serves the general purpose of parole, and is run by the Parole Board. Calling this scheme by another name does not alter its essential nature."
The majority also discussed the particulars of the GPS monitoring: the device combines the transmitter and tracking device into a single ankle bracelet that Riley experiences as heavy and causes pain when he sleeps; the device identifies Riley as a sex offender "no less clearly than if he wore a scarlet letter"; the device transmits prerecorded messages while Riley is in public; Riley must be "tethered" to an electrical outlet for one or two hours every sixteen hours and cannot be out of range of the GPS receiver; and the wearing of the GPS is not reviewable under SOMA.
The majority stressed that Riley was not otherwise subject to probation and parole, but had completed his sentence, thus distinguishing his situation from some of the other cases that had considered the GPS monitoring issue. However, the majority did note that "North Carolina Supreme Court in 2010 upheld against an ex post facto challenge a statute that provided for GPS monitoring of sexual offenders, regardless of whether the offenders had completed their sentences."
Importantly, the majority applied United States Supreme Court precedent in analyzing whether the New Jersey statute was punitive and specifically stated that the "New Jersey Ex Post Facto Clause is interpreted in the same manner as its federal counterpart." Thus, the state may clearly seek United States Supreme Court review of the state supreme court's holding in Riley. Whether or not it will is uncertain, but the division on the New Jersey Supreme Court as well as divisions among state courts may tip the balance toward asking the United States Supreme Court for review.
Thursday, August 7, 2014
In a closely watched case with First Amendment implications, the New Jersey Supreme Court in State v. Skinner held in an unanimous opinion that violent rap lyrics, written by a defendant before the events that led to his indictment, may not be admitted at his criminal trial as evidence of motive and intent.
The court's opinion takes the opportunity to explicitly outline the First Amendment issue:
The New Jersey Chapter of the American Civil Liberties Union (ACLU) appears in this case as amicus curiae on behalf of defendant. The ACLU asserts that defendant’s rap lyrics are a form of artistic expression and thus are entitled to heightened protection under the First Amendment of the United States Constitution and Article I, Paragraph 6 of the New Jersey Constitution. The ACLU emphasizes that defendant’s lyrics are not akin to a diary and therefore contain limited probative value. Moreover, because rap lyrics are often a vehicle for social and political commentary, the ALCU argues that admitting defendant’s lyrics would run the risk of chilling otherwise valuable speech. Accordingly, the ACLU urges the establishment of a strict guideline against the admissibility of expressive works in a criminal trial, in light of the First Amendment protections ordinarily afforded to such works. It urges that their admissibility should be limited to situations clearly indicating that the author engaged in the crimes about which he or she has written. In the ACLU’s view, to hold otherwise would unduly discourage, or even punish, lawful expression.
[Update: The ACLU brief is available here].
However, the remainder of the opinion does not explicitly engage with the First Amendment or free speech doctrine. Nevertheless, the court's ruling is infused with free speech perspectives. After articulating its holding under the NJ rules of evidence that "violent, profane, and disturbing rap lyrics that defendant wrote constituted highly prejudicial evidence against him that bore little or no probative value on any motive or intent behind the attempted murder offense with which he was charged," the court notes that the "use of the inflammatory contents of a person’s form of artistic self-expression as proof of the writer’s character, motive, or intent must be approached with caution."
The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views. One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff,” actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story “The Tell-Tale Heart,” simply because of their respective artistic endeavors on those subjects. Defendant’s lyrics should receive no different treatment. In sum, we reject the proposition that probative evidence about a charged offense can be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced.
Again, while the rationale is firmly embedded in the evidentiary rules, the First Amendment perspectives are evident.
[image: Bob Marley via]
Wednesday, July 16, 2014
In his opinion today in Jones v. Chappell, federal judge Cormac Carney vacated the death sentence of Ernest Dewayne Jones as violating the Eighth Amendment’s prohibition against cruel and unusual punishment.
Jones was sentenced to death in 1995 and has been on "death row" in California State Prison at San Quentin since then. For Judge Carney, this is precisely the problem. As Carney writes:
Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.
[emphasis in original].
Thus, it is not the arbitrariness in the imposition of the death sentence that is unconstitutional, but the arbitrariness in the execution of the death sentence that renders it unconstitutional.
Judge Carney's analysis centered on his finding that of the more than 700 persons presently on California's "death row,"
their selection for execution will not depend on whether their crime was one of passion or of premeditation, on whether they killed one person or ten, or on any other proxy for the relative penological value that will be achieved by executing that inmate over any other. Nor will it even depend on the perhaps neutral criterion of executing inmates in the order in which they arrived on Death Row. Rather, it will depend upon a factor largely outside an inmate’s control, and wholly divorced from the penological purposes the State sought to achieve by sentencing him to death in the first instance: how quickly the inmate proceeds through the State’s dysfunctional post-conviction review process.
Judge Carney then discussed Jones' situation as an example.
To be sure, however, Judge Carney did not view Jones' situation as unique. Indeed, the opinion contains an 18 page color-coded appendix listing the status of more than 500 persons sentenced to death in California between 1978 -1997. Here's a bit of it, with the entry for Ernest Jones:
Thus, Judge Carney's careful reasoning applies to every person sentenced to death in California, even those sentenced more recently. California's Attorney General and Governor now have some serious litigation choices to make.
Monday, June 2, 2014
On her second trip to the United States Supreme Court, Carol Anne Bond prevailed again.
Recall that Carol Anne Bond was convicted of a crime in violation of the Chemical Weapons Implementation Act, 18 U.S.C. § 229(a), passed to implement a treaty , the Chemical Weapons Convention. But the fact that she is not a "terrorist," but rather a "vengeful" participant in a "love triangle" has caused much consternation. While the international arms-control agreement prohibits nation-states from producing, stockpiling, or using chemical weapons, Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband. Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.
Recall that in 2011, the Court unanimously held that Bond could raise a Tenth Amendment claim in her prosecution, reversing the Third Circuit. On remand, the Third Circuit rejected Bond's argument to "set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress's ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution."
Today's opinion in Bond v. United States again reverses the Third Circuit. The focus in oral argument was on the Treaty power and whether a treaty can alter constitutional structures, namely federalism. And while today's decision is unanimous, there are multiple concurring opinions.
The opinion for the Court, authored by Chief Justice Roberts, and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, is a relatively brief 21 pages and notes that the Bond's case is "unusual" and thus the "analysis is appropriately limited." For the Court,
the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise.
Essentially, the Court practices constitutional avoidance by construing the statute narrowly; there is no need to confront Holland v. Missouri's holding regarding the constitutional parameters of Congress's treaty power.
Indeed, the Court only mentions Holland in its discussion of the Third Circuit's holding and Bond's arguments; it notes that notwithstanding that "debate" there is a "well-established principle" of constitutional avoidance and includes a citation to Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). Because "Bond argues that section 229 does not cover her conduct" it considers "that argument first," and finds it decides the issue.
In a nutshell, the Court concludes that the federal prosecutors exceeded the power the statute gave them - - - and thus there is no need to decide whether Congress exceeded the power the Constitution's treaty and necessary and proper powers gave it.
Justice Scalia, concurring and joined by Thomas, would conclude that the statute clearly covers Bond's Act and therefore is unconstitutional. Justice Thomas writes a separate concurrence, joined by Scalia and in part by Alito, writes separately to "suggest that the Treaty Power is itself a limited federal power." And in a very brief opinion, Alito argues that the "insofar as the Convention may be read to obligate the United States to enact domestic legislation criminalizing conduct of the sort at issue in this case, which typically is the sort of conduct regulated by the States, the Convention exceeds the scope of the treaty power" and thus the statute "lies outside Congress’ reach unless supported by some other power enumerated in the Constitution."
So, while the opinion is "unanimous," the three Justices considered to be the most conservative and perhaps most hostile to international law, would have limited Congress' power to implement treaties made pursuant to Article II §2 allowing the executive to "make Treaties, provided two thirds of the Senators present concur."
And for ConLawProfs, it demonstrates the relevance of the "Ashwander doctrine" as a part of constitutional law courses.
June 2, 2014 in Cases and Case Materials, Congressional Authority, Criminal Procedure, Executive Authority, Federalism, International, Interpretation, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
The United States Supreme Court denied certiorari in the closely watched case of Risen v. United States (13-1009).
Recall our analysis of the sharply divided Fourth Circuit panel opinion in United States v. Sterling, with James Risen as Intervernor, that declared there was no First Amendment right - - - or common law privilege - - - for a reporter to resist a subpoena to reveal the identity of a source.
Thursday, April 17, 2014
With the announcement of the disbanding of the "Demographics Unit" in the NYC Police Department, some might think that litigation we've previously discussed about Muslim surveillance after 9/11, such the dismissal of a complaint about surveillance in New Jersey and federal litigation in New York, is no longer viable.
An editorial from the Board of the New York Times today points to the larger (and longstanding) issues beyond the particular "Demographics" unit:
This problem dates back to the 1960s and ’70s, when the department’s infamous “Red Squad” conducted what civil rights lawyers described as illegal surveillance of groups like the Black Panthers, who were acquitted on charges of conspiring to blow up department stores and police stations. The case became a class-action suit that included other political groups and was named for a plaintiff, Barbara Handschu.
Under a 1985 settlement, the city agreed to court-supervised investigation guidelines that were then loosened after the Sept. 11, 2001, attacks.
The editorial recommends that the city agree
to reinstate a provision of the original Handschu agreement that calls for an authority that includes high-level Police Department officials and a citizen appointee to review investigations into individuals or groups engaged in political activity. The point is not to obstruct those investigations, but to ensure that they are warranted and consistent with the Constitution.