Civil Rights Law & Policy Blog

"The Consequences of Disparate Policing: Evaluating Stop-and Frisk as a Modality of Urban Policing"

The title of this post comes from this piece by Professor Aziz Huq now available on SSRN. The abstract states:

Beginning in the 1990s, police departments in major American cities started aggressively deploying pedestrian stops and frisks in response to escalating violent crime rates. Today, high-volume use of “stop, question and frisk,” or “SQF,” is an acute point of friction between urban police and minority residents. In numerous cities, recent consent decrees or settlements have imposed Fourth Amendment and Equal Protections constraints on police. But do these constitutional rules adequately respond to the harms of SQF? This Article argues that the core moral objection to SQF does not track the Constitution’s focus upon the evidentiary sufficiency of stops or the racial animus of individual officers. I develop instead a new account of the distinctive wrong of aggressive street policing that is not contingent on individual animus or fault. This alternative account turns on the manner in which such policing can reproduce social and racial stratification. To substantiate this, I present a detailed analysis of the costs and benefits of SQF, with careful attention to its ecological spillovers and dynamic, intergenerational effects. Having explained why constitutional law, given its narrow transactional frame, is disarmed from an effective response, I present the alternative lens that is constitutionally and legally available for diagnosing harmful forms of urban street policing. This draws from the disparate impact framework of Title VI of the 1964 Civil Rights Act and certain states’ laws. While an imprecise fit, disparate impact is legally feasible and readily available. To show that it is workable, I sketch three lines of econometric analysis capable of identifying an especially troubling subclass of racial disparate impacts in urban street policing.

"From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence"

The title of this post comes from this recent paper by Professor Devon Carbado, the abstract of which states:

2014 to 2016 likely will go down as a significant if not watershed moment in the history of U.S. race relations. Police killing of African Americans has engendered further conversations about race and policing. Yet, in most of the discussions about these tragic deaths, little attention has been paid to a significant dimension of the police violence problem: the legalization of racial profiling in Fourth Amendment law. This legalization of racial profiling is not a sideline or peripheral feature of Fourth Amendment law. It is embedded in the analytical structure of the doctrine in ways that enable police officers to force engagements with African Americans with little or no basis. The frequency of these engagements exposes African Americans not only to the violence of ongoing police surveillance, contact, and social control but also to the violence of serious bodily injury and death. Which is to say, Fourth Amendment law facilitates the space between stopping black people and killing black people. This Article demonstrates precisely how by employing a series of hypotheticals to reveal the ways in which the extraordinary violence police officers often use against Africans Americans can grow out of the ordinary police interactions Fourth Amendment law empowers police officers to stage.

"Policing as Administration"

The title of this post comes from this intriguing paper by Professor Christopher Slobogin, the abstract of which states:

Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court’s special needs jurisprudence (practices that this article calls “panvasive”). Under administrative law principles, when police agencies create statute-like policies that are aimed at largely innocent categories of actors — as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection — they should have to engage in notice-and-comment rule-making or a similar democratically-oriented process and avoid arbitrary and capricious rules. Courts would have the authority to ensure that policies governing panvasive actions are authorized by statute and implemented even-handedly, both in each instance and as they are distributed within the agency’s jurisdiction. Further, these principles would apply regardless of whether the panvasive practice has been designated a search or seizure under the Fourth Amendment.

"What’s the Evidence Mass Surveillance Works? Not Much"

...reads the title of this recent ProPublica article by Lauren Kirchner. Responding to recent calls for increased mass surveillance since the terror attacks in Paris (e.g., here), she lays out reasons to be skeptical about the effectiveness of mass surveillance in the first place.

"Intelligence Legalism and the National Security Agency's Civil Liberties Gap"

The title of this post comes from this recent paper by Professor Margo Schlanger, the abstract of which states:

This paper examines the National Security Agency, its compliance with legal constraints and its respect for civil liberties. But even if perfect compliance could be achieved, it is too paltry a goal. A good oversight system needs its institutions not just to support and enforce compliance but also to design good rules. Yet as will become evident, the offices that make up the NSA’s compliance system are nearly entirely compliance offices, not policy offices; they work to improve compliance with existing rules, but not to consider the pros and cons of more individually-protective rules and try to increase privacy or civil liberties where the cost of doing so is acceptable. The NSA and the administration in which it sits have thought of civil liberties and privacy only in compliance terms. That is, they have asked only “Can we (legally) do X?” and not “Should we do X?” This preference for the can question over the should question is part and parcel, I argue, of a phenomenon I label “intelligence legalism,” whose three crucial and simultaneous features are imposition of substantive rules given the status of law rather than policy; some limited court enforcement of those rules; and empowerment of lawyers. Intelligence legalism has been a useful corrective to the lawlessness that characterized surveillance prior to intelligence reform, in the late 1970s. But I argue that it gives systematically insufficient weight to individual liberty, and that its relentless focus on rights, and compliance, and law has obscured the absence of what should be an additional focus on interests, or balancing, or policy. More is needed; additional attention should be directed both within the NSA and by its overseers to surveillance policy, weighing the security gains from surveillance against the privacy and civil liberties risks and costs. That attention will not be a panacea, but it can play a useful role in filling the civil liberties gap intelligence legalism creates. 

Part I first traces the roots of intelligence legalism to the last generation of intelligence disclosures and resulting reform, in the late 1970s. Part I then goes on to detail the ways in which intelligence legalism is embedded in both the Foreign Intelligence Surveillance Act of 1978 (FISA) and Executive Order 12,333, which governs American intelligence practices, and why the result is a civil liberties gap. Part II discusses the ways in which NSA’s compliance and oversight institutions likewise embody intelligence legalism. I then move in Part III to some shortcomings of this system, and in particular the ways in which the law and NSA’s compliance regulations and infrastructure fall short of full civil liberties policy evaluation. In Part IV, I examine some of the many reforms that have recently been proposed, analyzing in particular those that might fill that gap. In light of the existing institutional arrangements, I sketch some thoughts on how they could do so most effectively.

"Programming Errors: Understanding the Constitutionality of Stop and Frisk as a Program, not an Incident"

The title of this post comes from this upcoming paper by Professor Tracey Meares, the abstract of which states:

This essay takes seriously the relevance of law enforcement effectiveness and the role of empiricism to understanding the constitutionality of the police practices at issue in the Floyd case and urban police practices more generally and also recasts the debate a bit. A critical, but obscured, issue is the mismatch between the level of analysis at which the Supreme Court articulated the relevant test for constitutional justification of a stop and frisk in Terry v. Ohio , and the scale at which police today (and historically) engage in stop and frisk as a practice. To put this more succinctly, while the Court in Terry authorized police intervention in an individual incident when the police officer possesses probable cause to believe that an armed individual is involved in a crime, in reality stop and frisk typically is carried out by a police force en masse as a program. Although the constitutional framework is based upon a one-off investigative incident, many of those who are stopped, the majority of them young men of color, do not experience the stops as one-off incidents. They experience them as a program to police them as a group, which is, of course, the reality. That is exactly what police agencies are doing. Fourth Amendment reasonableness must take this fact into account. I make an argument here about how we should approach this issue.

Judge decides law enforcement may compel defendant to unlock cell phone with fingerprint, but not with passcode

As reported in this local article, the Virginia circuit court judge said that the Fifth Amendment's protection against self-incrimination extends to passcodes as communicative evidence. A fingerprint, on the other hand, is like a writing sample or DNA, neither of which receive Fifth Amendment protection.

"Removing Malice from Federal 'Malicious Prosecution': What Cognitive Science Can Teach Lawyers About Reform"

The title of this post comes from this recent paper by Professor Sofia Yakren, the abstract of which states:

42 U.S.C. § 1983 (“§ 1983”) empowers individuals suffering civil rights abuses at the hands of state actors to seek recourse in federal court. The statute was enacted in response to southern states’ failure to control the Ku Klux Klan, and it has increasingly become a vehicle for federal reform of unconstitutional state and local government practices. Nationwide, state criminal justice systems cry out for such ex-post reform, as they continue to generate wrongful convictions at unacceptable rates with no notable preventative measures in place. 

“Malicious prosecution” claims brought under § 1983 are a common mechanism for redressing state-driven wrongful convictions, but this article asserts that they are not meeting their full reform potential. A plurality of federal courts erroneously requires plaintiffs to prove malice in support of such claims. While, superficially, the requirement comports with the “malicious” prosecution nomenclature, the nomenclature itself is misleading. Federal malicious prosecution claims are based on the Fourth Amendment, the purpose of which is to hold state defendants accountable for objectively unreasonable acts – not intentional, or malicious, ones. 

In abandoning the Fourth Amendment’s purpose, the offending courts have also ignored the real causes of wrongful convictions and, therefore, have failed to further true reform. Research shows that the vast majority of wrongful convictions are driven – not by malice – but by cognitive biases that cause inaccurate perceptions and objectively unreasonable decision-making. Although unintentional and often unconscious, cognitive biases may be ameliorated through education, exposure to divergent views, and reform of systemic factors that trigger and exacerbate bias. Reframing § 1983 relief for wrongful conviction as a question of objective unreasonableness rather than malice would tie liability more closely to: (1) non-malicious cognitive errors that frequently taint state actors’ decisions during criminal proceedings, and (2) states’ failure to implement cognitive error-neutralizing practices. This change to the legal standard, accompanied by close consideration of cognitive science, has the potential to enhance plaintiffs’ access to compensation and to require state reform of the true systemic causes of many wrongful convictions.

Police watchdog founder claims NYPD officers roughed him up, stripped searched him after he recorded encounter in which he asked for their badge numbers...

...reported The NY Daily News's Tina Moore earlier this week. Forty-four-year-old Jose LaSalle plans to sue NYC, the NYPD, and the officers involved for $500K for allegedly violating his civil rights.

Sneak and peeks predominately used in drug war despite national security justification

Yup, as ACLU's PrivacySos notes, this recent Electronic Frontier Foundation analysis confirms that so-called "sneak and peeks"  -- justified as a national security necessity -- more often than not are used to fight to the ridiculous war on drugs. Specifically, these warrants allow police to perform a search without first notifying the suspect.

"Riley v. California: The New Katz or Chimel?"

The title of this post comes from this recent paper by Professors Adam Lamparello and Charles MacLean, the abstract of which states:

Justice Brandeis forecasted that “[t]he progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping.” In the law enforcement and government surveillance context, technological advances have made it possible to store an individual’s DNA in a national database, and have made it nearly impossible for that same individual to send an email, download a YouTube video, or transmit a text message without knowing that the government might be watching — without having the slightest degree of suspicion of criminal behavior. In any society that values basic civil liberties, such practices are intolerable — and unconstitutional. In Riley, the Court correctly held that, if privacy is to mean anything, it should protect individuals from being monitored without their consent, without a reason, and without a warrant. It is the beginning of principled change and enhanced protections for civil liberties in the digital age.

Appeals court finds officers violated civil rights of "calm child" they cuffed for disobeying teacher

An en banc 9th Cir. recently ruled that two Sonora, Calif. PD officers used excessive force when they handcuffed an 11-year-old who hadn't followed his teacher's instructions during recess, reports Education Week's Mark Walsh. Worried that the child might run off, the school called police when the boy didn't respond to the physical education teacher's attempt to get him back inside the school. The responding officers placed the cuffed boy in the back of the police car and took him to his guardian. According to the court:

It is beyond dispute that handcuffing a small, calm child who is surrounded by numerous adults, who complies with all of the officers' instructions, and who is, by an officer's own account, unlikely to flee, was completely unnecessary and excessively intrusive.

The court found, however, that the officers were immune from allegations that they'd violated the child's Fourth Amendment right against unreasonable seizures.

"The Strife of Riley: The Search-Incident Consequences of Making an Easy Case Simple"

The title of this post comes from this recent paper by Professor Leslie Shoebotham, the abstract of which states:

In Riley v. California, the U.S. Supreme Court held that the Fourth Amendment requires police officers to obtain a warrant before searching an arrestee’s cellular phone in a search incident to a lawful arrest. The lauded decision heralds the modernization of the Fourth Amendment to embrace privacy in the digital age. But Riley’s reasoning contains a flaw that only Justice Alito recognized. Evidence gathering — i.e., the need to look for evidence of the arrestee’s crime for use at trial — has long justified law enforcement’s authority to perform incident searches. Indeed, evidence-gathering searches incident to arrest were recognized as legitimate searches over a century before the adoption of the Fourth Amendment. The Riley Court ignored this pedigree, however. Despite the doctrine’s centuries-long history, Riley concluded that the authority to search incident to arrest was defined by a trilogy of cases — California v. Chimel, United States v. Robinson, and Arizona v. Gant — cases that date back only to 1969. Based on the Chimel line, Riley concluded that the justifications for performing an incident search were limited to officer safety and preventing the destruction of evidence. And the only evidence-gathering incident search that Riley recognized was based on Gant; an incident search of the passenger compartment of an arrestee’s vehicle that Riley justified solely on the “unique circumstances” involved in the automobile context, not the search incident doctrine’s historical evidence-gathering basis. Therein lies the concern. By ignoring the doctrine’s evidence-gathering history, Riley has reorganized the search-incident doctrine into a rigid Chimel-based rule that just so happens to have a vehicle exception.

This Article amplifies Justice Alito’s admonition that evidence gathering must be recognized as a legitimate justification for police to search incident to arrest. This Article addresses the consequences of Riley’s digital-age reboot of the search-incident doctrine, especially Riley’s limitation of Gant to the vehicle context — a restriction that was, ironically enough, not necessary for imposing a warrant requirement on cell phone searches. Rather than relying solely on Chimel’s two “concerns,” this Article argues that the search-incident doctrine has been supported—both before and after Chimel — by three justifications: officer safety, preservation of evidence, and importantly, the need to discover evidence of the crime of arrest. Without evidence gathering as an implicit justification in a properly limited search incident to arrest, Riley’s limitation of Gant calls into doubt law enforcement’s authority to perform an incident search of an arrestee’s reaching distance — a Chimel search — to look for evidence of the arrestee’s crime once the arrestee has been handcuffed and is adequately secured. All things considered, Riley represents much more than a commonsense warrant requirement for cell phone searches. Riley is the deceptively simple beginning of the end of evidence gathering as a justification in a properly limited search incident to arrest.

"Cops Need a Warrant to Grab Your Cell Tower Data, Florida Court Rules"

WIRED's Kim Zetter:

The Florida Supreme Court ruled Thursday that obtaining cell phone location data to track a person’s location or movement in real time constitutes a Fourth Amendment search and therefore requires a court-ordered warrant.

 

The case specifically involves cell tower data for a convicted drug dealer that police obtained from a telecom without a warrant. But the way the ruling is written(.pdf), it would also cover the use of so-called “stingrays”—sophisticated technology law enforcement agencies use to locate and track people in the field without assistance from telecoms. Agencies around the country, including in Florida, have been using the technology to track suspects—sometimes without obtaining a court order, other times deliberately deceiving judges and defendants about their use of the devices to track suspects, telling judges the information came from “confidential” sources rather than disclose their use of stingrays. The new ruling would require them to obtain a warrant or stop using the devices.

 

[...]

 

The ruling constitutes the first time that a state court has reached this finding under the Fourth Amendment. It comes at a timely moment when federal courts of appeal in other jurisdictions are in the midst of taking up the question of cell tower data, Wessler told WIRED. Even if other jurisdictions rule differently, the Florida case makes it more likely that the issue will one day get to the U.S. Supreme Court.

NYPD police union argues for continuing stop-and-frisk appeal

Last year, U.S. District Court Judge Shira Scheindlin held the NYPD's stop-and-frisk policy unconstitutional and ordered reforms. The 2nd Cir. initially stayed Scheinlin's order, but it later vacated the stay.* Then-Mayor Bloomberg defended the policy and appealed, but now-Mayor de Blasio had other plans. He announced that the city would not defend the use of stop-and-frisk, and new NYPD Commissioner William Bratton thinks that's ok. But the police union isn't happy. Although it was not a party to the appeal, it filed a motion in federal court to take it up. The district court rejected its motion because it hadn't been timely. On Wednesday, the 2nd Cir. heard oral arguments in the union's appeal of that decision. 

* An earlier version of this post mistakenly said the 2nd Cir. affirmed Judge Scheinlin's ruling. 

"Stop and Frisk: Balancing Crime Control and Community Relations"

The title of this post comes from this recent report by The Urban Institute, the abstract of which states:

Police have been stopping, questioning, and frisking pedestrians for decades in an effort to protect themselves and the public from harm. However, pedestrians may view the stop and frisk experience as unjustified and perceive that they are subject to unfair and overly aggressive treatment. These feelings are most pronounced for those residing in high-crime areas that are targets for intensive stop and frisk activities. Because citizens’ views of the police contribute to their willingness to cooperate with and empower law enforcement, minimizing the negative effects of stop and frisk is crucial for overall police effectiveness and is especially important for improving relations with communities of color. This publication discusses the constitutionality and legal precedents of stop and frisk and the theory and practice behind these street stops. This background is followed by a discus¬sion of stop and frisk’s unintended consequences and a series of practical recommendations for the lawful and respectful use of pedestrian stops in the context of community policing.

"Stop and Frisk, Judicial Independence, and the Ironies of Improper Appearances"

The title of this post comes from this recent paper by Professor Anil Kalhan, the abstract of which states:

On October 31, 2013 — just days before New York City’s mayoral election — three federal appellate judges, José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., hastily issued an unusual order staying two major decisions by U.S. District Judge Shira A. Scheindlin, which held that the New York City Police Department’s “stop and frisk” practices involved unconstitutional racial profiling. Acting sua sponte and providing no reasoned explanation, the three judges dismissed Judge Scheindlin from presiding over the stop and frisk cases altogether, summarily concluding that she had “compromised” the “appearance of [im]partiality” surrounding the litigation. Two weeks later, after their order had been widely criticized, the three judges abruptly issued a new opinion casting aside the ostensible basis for their earlier decree in favor of other legal grounds. To support their decision, the three judges relied entirely upon extrajudicial information that — by their own acknowledgment — they “read [in] the newspapers.”

In this Article, I closely examine this episode, which highlights a growing fluidity between adjudication and public discourse. With enormous amounts of news, opinion, and other information instantly available online, it has become trivially easy for judges to independently research matters outside the formal judicial record that they deem relevant to the cases before them. As a result, judges increasingly appear to render decisions based on extrajudicial sources, but without meaningful constraints or norms to guide and limit the practice. The panel’s actions illustrate the hazards in this apparent trend. Throughout the stop and frisk litigation, New York City officials relentlessly attacked Judge Scheindlin in the media for her alleged “bias” against law enforcement, but declined to actually seek her recusal. By validating and giving effect to that campaign — based entirely on what they had read in the newspapers — Judges Cabranes, Walker, and Parker openly permitted the norms of contemporary political discourse embodied in those news stories to displace the norms of reasoned judicial decision making, and unnecessarily inserted themselves into the mayoral election campaign.

Whatever the precise reasons for the conduct of Judges Cabranes, Walker, and Parker, both due process and the quality of their adjudication suffered as a result. And ironically, the three judges also thereby failed to satisfy the very standards to which they sought to hold Judge Scheindlin. The procedurally irregular and substantively deficient nature of their adjudication gave more than ample cause for reasonable observers to question the three judges’ own impartiality and propriety, and undermined the decisional independence that trial judges must enjoy to render fair and impartial decisions that are seen as legitimate across the full spectrum of the public’s diverse litigants and communities.

Woman locks officer in basement during warrantless search, wins civil rights suit against police

As I recently noted, Baltimore PD has had its problems. And its image isn't improving. This local article explains the BPD's latest embarrassment:

In July 2009, [87-year-old Venus] Green's grandson, Tallie, was shot and wounded. Tallie said he was shot at a convenience store, but police insisted it happened inside Green's house and that the shooter was either Tallie or Green.

 

"Police kept questioning him. They wouldn't let the ambulance attendant treat him," Green said. "So, I got up and said, 'Sir, would you please let the attendants treat him? He's in pain,'" Green said.

 

Green said the officer said to her, "Oh, you did it, come on, let's go inside. I'll prove where that blood is. You did it."

 

Police wanted to go the basement, where Tallie lived, but Green refused on the basis that the police did not have a warrant.

 

"I said, 'No, you don't have a warrant. You don't go down in my house like that. He wasn't shot in here.'" Green said the officer replied, "I'm going to find that gun. I'm going to prove that you did it."

 

A struggle ensued between a male officer and Green [in which she suffered a separated shoulder].

 

"He dragged me, threw me across the chair, put handcuffs on me and just started calling me the 'b' name. He ridiculed me," Green said.

 

An officer went into the basement and Green locked him inside.

The city recently settled with Green because it doubted it could prevail in a case before a jury.

"Two More Ways Not to Think About Privacy and the Fourth Amendment"

The title of this post comes from this essay by Professor David Alan Sklansky, the abstract of which states:

This brief essay challenges two increasingly common ideas about privacy and the Fourth Amendment. The first is that any protections needed against government infringements of privacy in the Information Age are best developed outside of the courts and outside of constitutional law. The second is that the various puzzles encountered when thinking about privacy and the Fourth Amendment can be solved or circumvented through some kind of invocation of the past: either a focus on the text of the Fourth Amendment, or the study of its history, or an effort to preserve the amount privacy that used to exist, either when the Fourth Amendment was adopted or at some later point.

"Negotiated Order: The Fourth Amendment, Telephone Surveillance, and Social Interactions, 1878-1968"

The title of this post comes from this paper by Professor Colin Agur, the abstract of which states:

In the US, the words ‘telephone surveillance’ bring to mind contemporary security concerns about smart phone tracking, the NSA warrantless wiretapping scandal, and the telecommunications provisions of the Patriot Act. Yet telephone surveillance is as old as telephony itself, dating back to the nearly simultaneous commercialization of the telephone and phonograph in 1878. First put to use by users, so they would have a written record of business meetings held over the phone, recorders were later put to use by police for surreptitious recording of criminal suspects’ conversations. This article examines telephone surveillance by American law enforcement agencies from the inception of telephone service to the passage of the Federal Wiretap Law in 1968, focusing on the challenges an advancing, proliferating, and shrinking technology posed for Fourth Amendment law. To highlight the technological, institutional and cultural interactions that have shaped Fourth Amendment jurisprudence, the article deploys Jack Balkin’s theory of cultural software and Anslem Strauss’s concept of a negotiated order, and brings together major cases, federal legislation, and evidence of government surveillance. The article shows how telephone surveillance brought the Fourth Amendment into prominence and inspired many of its most contentious debates; the article argues that during the first 90 years of telephone usage in America, laws on search and seizure developed not from constitutional consistency or logic, but as the result of a complex negotiation process involving new media and human agency.

"Following the Script: Narratives of Suspicion in Terry Stops in Street Policing"

The title of this post comes from this recent paper by Professors Jeffrey Fagan and Amanda Geller. The abstract states:

Regulation of Terry stops of pedestrians by police requires articulation of the reasonable and individualized bases of suspicion that motivate their actions. Nearly five decades after Terry, courts have found it difficult to articulate the boundaries or parameters of reasonable suspicion. The behavior and appearances of individuals combine with the social and spatial contexts where police observe them to create an algebra of suspicion. Police can proceed to approach and temporarily detain a person at a threshold of suspicion that Courts have been unable and perhaps unwilling to articulate. The result has been sharp tensions within Fourth Amendment doctrine as to what is reasonable, why, and in what circumstances. The jurisprudence of suspicion is no clearer today than it was in the aftermath of Terry. This issue has taken center stage in both litigation and policy debates on the legality of the Stop and Frisk policing regime in New York. Under this regime, police record the bases of suspicion using both a menu of codified stop rationales with supplemental text narratives to record their descriptions of suspicious behaviors or circumstances that produced actionable suspicion.

Evidence from 4.4 million stops provide an empirical basis to assess the revealed preferences of police officers as to the bases for these Terry stops and identify narratives of suspicion that justify their actions beyond the idiosyncrasies of the individual case. First, we identify patterns of articulated suspicion. Next, we show the individual factors and social conditions that shape how those patterns are applied. We also show how patterns evolve over time and become clearer and more refined across a wide range of police stops. That refinement seems to follow the capacious interpretative room created by Fourth Amendment jurisprudence. Next, we assess the extent of constitutional compliance and examine the neighborhood and individual factors that predict noncompliance. The results suggest that the observed patterns of narratives have evolved into shared narratives or scripts of suspicion, and that these patterns are specific to suspect race and neighborhood factors. We conclude that scripts are expressions of the norms within the everyday organizational exercise of police discretion and that these scripts defeat the requirement of individualization inherent in caselaw governing Fourth Amendment stops.

"Digital Security in the Expository Society: Spectacle, Surveillance, and Exhibition in the Neoliberal Age of Big Data"

The title of this post comes from this paper by Professor Bernard Harcourt, the abstract of which states:

In 1827, Nicolaus Heinrich Julius, a professor at the University of Berlin, identified an important architectural mutation in nineteenth-century society that reflected a deep disruption in our technologies of knowledge and a profound transformation in relations of power across society: Antiquity, Julius observed, had discovered the architectural form of the spectacle; but modern times had operated a fundamental shift from spectacle to surveillance. Michel Foucault would elaborate this insight in his 1973 Collège de France lectures on The Punitive Society, where he would declare: “[T]his is precisely what happens in the modern era: the reversal of the spectacle into surveillance…. We have here a completely different structure where men who are placed next to each other on a flat surface will be surveilled from above by someone who will become a kind of universal eye.” 

What should we make of those archetypes today? Do they help us better understand our neoliberal digital condition of data collection, mining, and profiling by corporate giants such as Google and Facebook, and the NSA? With neoliberalism and digitization — in the age of digital security — I suggest, we have gone beyond both spectacle and surveillance to a new form: one that is captured best by the idea of exposition or exhibition. Guy Debord spoke of “the society of the spectacle,” Foucault drew our attention instead to “the punitive society,” but it seems as if, today, we live in the expository society. This essay offers an architectural schema to better understand our contemporary distributions of power, one that focuses on the themed space of consumption. It then actualizes the metaphor by exploring one particular manifestation of a fully-digitized themed space, and asks how we have come to embrace and love these new forms of exhibition today.

"Two More Ways Not to Think About Privacy and the Fourth Amendment"

The title of this post comes from this essay by Professor David Alan Sklansky, the abstract of which states:

This brief essay challenges two increasingly common ideas about privacy and the Fourth Amendment. The first is that any protections needed against government infringements of privacy in the Information Age are best developed outside of the courts and outside of constitutional law. The second is that the various puzzles encountered when thinking about privacy and the Fourth Amendment can be solved or circumvented through some kind of invocation of the past: either a focus on the text of the Fourth Amendment, or the study of its history, or an effort to preserve the amount privacy that used to exist, either when the Fourth Amendment was adopted or at some later point.

"An International Legal Framework for Surveillance"

The title of this post comes from this recent paper by Professor Ashley Deeks, the abstract of which states:

Edward Snowden’s leaks laid bare the scope and breadth of the electronic surveillance that the U.S. National Security Agency and its foreign counterparts conduct. Suddenly, foreign surveillance is understood as personal and pervasive, capturing the communications not only of foreign leaders but also of private citizens. Yet to the chagrin of many state leaders, academics, and foreign citizens, international law has had little to say about foreign surveillance. Until recently, no court, treaty body, or government had suggested that international law, including basic privacy protections in human rights treaties, applied to purely foreign intelligence collection. This is now changing: several U.N. bodies, judicial tribunals, U.S. corporations, and victims of foreign surveillance are pressuring states to bring that surveillance under tighter legal control.

This article tackles three key, interrelated puzzles associated with this sudden transformation. First, it explores why international law has had so little to say about how, when, and where governments may spy on other states’ nationals. Second, it draws on international relations theory to argue that the development of new international norms regarding surveillance is both likely and essential. Third, it identifies six process-driven norms that states can and should adopt to ensure meaningful privacy restrictions on international surveillance without unduly harming their legitimate national security interests. These norms, which include limits on the use of collected data, periodic reviews of surveillance authorizations, and active oversight by neutral bodies, will increase the transparency, accountability, and legitimacy of foreign surveillance.

This procedural approach challenges the limited emerging scholarship on surveillance, which urges states to apply existing — but vague and contested — substantive human rights norms to complicated, clandestine practices. In identifying and valuing new, objectively verifiable, neutral norms, the article offers a more viable and timely solution to the perils of foreign surveillance.

Poll finds only 35% of people believe government surveillance has "gone too far in restricting civil liberties"

The Hill breaks down the new Pew poll. 

"Two More Ways Not to Think About Privacy and the Fourth Amendment"

The title of this post comes from this recent essay by Professor David Alan Sklansky, the abstract of which states:

This brief essay challenges two increasingly common ideas about privacy and the Fourth Amendment. The first is that any protections needed against government infringements of privacy in the Information Age are best developed outside of the courts and outside of constitutional law. The second is that the various puzzles encountered when thinking about privacy and the Fourth Amendment can be solved or circumvented through some kind of invocation of the past: either a focus on the text of the Fourth Amendment, or the study of its history, or an effort to preserve the amount privacy that used to exist, either when the Fourth Amendment was adopted or at some later point.

Florida family awake as police storm their house in search of neighbor

Hit & Run's Robby Soave notes yet another mistaken no-knock entry by police.

Federal judge holds warrant for individual emails permits law enforcement to seize entire email account

The New York Law Journal reports that a federal judge has found that the Fourth Amendment does not prohibit law enforcement officials from seizing and reviewing an email account after the execution of the initial search. The article states:

"In the case of electronic evidence, which typically consists of enormous amounts of undifferentiated information and documents, courts have recognized that a search for documents or files responsive to a warrant cannot possibly be accomplished during an on-site search," [U.S. District Magistrate for the Southern District of New York Gabrial Gorenstein] said.

 

So courts have developed a more flexible approach compared to on-site searches and "routinely" allow the seizure of entire hard drives, he said, and that's why the Federal Rules of Criminal Procedure were amended in 2009 [Rule 41(e)(2)(A)] to allow a warrant that "authorizes a later review of the media or information." Under the amended rule, the time for executing the warrant "refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review."

 

Gorenstein also said in June the U.S. Court of Appeals for the Second Circuit held in United States v. Ganias, 2014 WL 2722618, that "the creation of mirror images for off-site review is constitutionally permissible in most instances, even if wholesale removal of tangible papers would not be."

 

Gorenstein said he could "perceive no constitutionally significant difference between searches of hard drives and email accounts.

Update: NSA is still creepy

And the White House is complicit in its continued neglect of our civil liberities. Writing last week in WaPo, former State Department employee John Napier Tye explained that neither metadata nor the content of private communications by U.S. citizens is protected from NSA peeping. Indeed, as a result of Executive Order 12333, many private communications remain exposed without even minimal Congressional oversight (such that it is, right Sen. Feinstein?). Here's the breakdown:

Bulk data collection that occurs inside the United States contains built-in protections for U.S. persons, defined as U.S. citizens, permanent residents and companies. Such collection must be authorized by statute and is subject to oversight from Congress and the Foreign Intelligence Surveillance Court. The statutes set a high bar for collecting the content of communications by U.S. persons. For example, Section 215 permits the bulk collection only of U.S. telephone metadata — lists of incoming and outgoing phone numbers — but not audio of the calls.

 

Executive Order 12333 contains no such protections for U.S. persons if the collection occurs outside U.S. borders. Issued by President Ronald Reagan in 1981 to authorize foreign intelligence investigations, 12333 is not a statute and has never been subject to meaningful oversight from Congress or any court... 

 

Unlike Section 215, the executive order authorizes collection of the content of communications, not just metadata, even for U.S. persons. Such persons cannot be individually targeted under 12333 without a court order. However, if the contents of a U.S. person’s communications are “incidentally” collected (an NSA term of art) in the course of a lawful overseas foreign intelligence investigation, then Section 2.3(c) of the executive order explicitly authorizes their retention. It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.

Perhaps you don't give two hoots about the NSA's activities abroad. You live in 'Merica, and your communications stay here. Well tighten your belt... As Tye explains:

A legal regime in which U.S. citizens’ data receives different levels of privacy and oversight, depending on whether it is collected inside or outside U.S. borders, may have made sense when most communications by U.S. persons stayed inside the United States. But today, U.S. communications increasingly travel across U.S. borders — or are stored beyond them. For example, the Google and Yahoo e-mail systems rely on networks of “mirror” servers located throughout the world. An e-mail from New York to New Jersey is likely to wind up on servers in Brazil, Japan and Britain. The same is true for most purely domestic communications.

So, forget privacy. 

For her part, Sen. Feinstein cares enough about the unchecked surveillance of US citizens to pretend to care. But only time will tell whether or not her concerns bear fruit, for the story-told creates considerable doubt as to her seriousness.

NSA whistleblower claims NSA's aim is 'total population control'

Via RT:

“At least 80 percent of fiber-optic cables globally go via the US. This is no accident and allows the US to view all communication coming in. At least 80 percent of all audio calls, not just metadata, are recorded and stored in the US. The NSA lies about what it stores.” Former NSA technical director William Binney

The article notes that Mr. Binney cannot prove these allegations because he didn't heist any documents. But, of course, he praises Edward Snowden and cites the documents released by Snowden as evidence that the NSA's surveillance efforts far exceed those previously claimed by the agency. 

Say what? You wanna search this phone? Get a warrant, y'all!

The Superior Court of Pennsylvania says the police may not search your cellphone without a warrant. Citing SCOTUS's recent decision in the consolidated cases of Riley v. California and U.S. v. Wurie, the court upheld the lower court's "suppression of photographs containing alleged child pornography that were obtained from defendant Adam Edward Stem’s phone during a warrantless search following his arrest for an unrelated incident." 

As you may recall, Chief Justice John Roberts wrote these cheeky lines for the majority in Riley and Wurie: 

The fact that technology now allows an individual to carry [private] information in his hands does not make the information any less worthy of the protection for which the founders fought. Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple—get a warrant.

Risky business: photography edition

A professional photographer was placed in a terrorism investigation database after attempting to photograph Dorchester, MA's gas storage tank, which looks like this:

The artwork is titled 'Rainbow Swash,' and it's reportedly "historic." It has a Wikipedia page, so that must be right.

In any case, there seems to be little justification for subjecting citizens to surveillance for activities as routine as photographing artwork. What's next? Does the government intend to monitor anybody caught photographing the Golden Gate Bridge? The Capitol? 

'The Hitchhiker's Guide to the Fourth Amendment: The Plight of Unreasonably Seized Passengers Under the Heightened Factual Nexus Approach to Exclusion'

The title of this post comes from this recent paper by Professor Nadia B. Soree, the abstract of which states:

Over thirty years ago, the Supreme Court, in Rakas v. Illinois, made it abundantly clear that “mere passengers” do not have “standing” to contest the searches of the cars in which they are riding. However, the Court offered a glimmer of hope to passengers in California v. Brendlin, by holding that passengers, like drivers, are seized when the police effectuate a traffic stop. Theoretically, then, unlawfully seized passengers can seek suppression of the evidence found in the stopped vehicles as fruit, not of the search of the vehicle, but of their unlawful detentions. Three circuits, however, have expressly adopted a heightened factual nexus test in determining whether passengers can successfully move to suppress evidence discovered in cars that are initially stopped lawfully, but whose occupants are then unlawfully detained, for example, when the duration of the stop exceeds the stop’s lawful scope. The Sixth, Ninth, and Tenth Circuits utilize a counterfactual hypothetical, typically to reach a finding that because the passenger is unable to demonstrate that the evidence would not have been found but-for her and only her detention, the passenger fails to establish the causal relationship between the constitutional violation and the discovery of evidence necessary to trigger the exclusionary rule. These courts force the passenger defendant to prove the following unlikely scenario: that had she asked the police for permission to leave, the police would have permitted her not only to leave, but to take the car (not belonging to her) as well. This Article surveys the relevant case law in the circuits that have considered and either adopted or rejected this approach and argues that the heightened factual nexus approach is inconsistent with the Court’s holdings in Brendlin and its other decisions defining seizures, particularly with respect to automobile passengers. Further, this Article posits that the heightened factual nexus approach creates a no-win situation for passenger defendants, where the very fact of their unlawful detention, necessary for standing to seek suppression, seems to preclude their success in doing so. Further, this Article argues that the subjective motivations of officers who prolong a seizure beyond its lawful scope should be taken into account when making exclusionary rule determinations, and that the Court’s decision in Whren v. United States, holding that when a traffic stop is predicated on objective probable cause, the subjective motivations of the officer are irrelevant in determining the reasonableness of the stop, does not preclude such scrutiny of officer motives in this context. Finally, the Article seeks to illustrate the danger to FourthAmendment rights and values engendered in the heightened factual nexus approach by examining data on traffic stops and motions to suppress arising from such stops.

'Justice Scalia's Fourth Amendment Text, Context, Clarity, and Occasional Faint-Hearted Originalism'

The title of this post comes from this intriguing paper by Professor Timothy C. MacDonnell, the abstract of which states:

Since joining the United States Supreme Court in 1986, Justice Scalia has been one of the most prominent voices on the Fourth Amendment, having written twenty majority opinions, twelve concurrences and eight dissents on the topic. Justice Scalia’s Fourth Amendment opinions have had a significant effect on the Court’s jurisprudence relative to the Fourth Amendment. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision for how technology’s encroachment on privacy should be addressed; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia’s opinions, he has championed the originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from these commitments; particularly in the areas of the special needs doctrine and qualified immunity. The article asserts that Justice Scalia’s non-originalist approach in these spheres threatens the cohesiveness of his Fourth Amendment jurisprudence, and could, if not corrected, unbalance the Fourth Amendment in favor of law enforcement interests.

'Police Ignorance of the Law Is No Excuse'

Cato Institute's Ilya Shapiro argues (I think correctly) that a police search violates the Fourth Amendment's reasonableness requirement when conducted based upon a police officer's incorrect assesment that the conduct justifying the search is illegal. Shapiro writes: 

To execute any search or seizure, a police officer must reasonably suspect that a crime has been or is being committed based on the facts available to him at the time he executes the search or seizure. Under this standard, searches can be lawful even if the officer is mistaken in his understanding of the facts before him, as long as his understanding led him to reasonably suspect criminal activity. But what if the officer is mistaken about whether a particular activity is actually criminal?

 

Nicholas Heien was driving with a broken taillight in North Carolina when he was pulled over by police who mistakenly believed that state law required two working taillights. Upon receiving consent to search the car—note: you don’t have to agree to such requests!—police found cocaine and charged Heien with drug trafficking. At his trial, Heien sought to suppress the evidence arising out of the search by arguing that the officer never had the reasonable suspicion necessary to pull his vehicle over because having one broken taillight is not illegal. The trial court ruled against him, but the appellate court found a Fourth Amendment violation and reversed. The North Carolina Supreme Court reversed in turn, by a 4-3 vote, holding that an officer’s understanding of the state’s taillight requirements could form the basis for reasonable suspicion because that understanding, while incorrect, was reasonable.

 

There is considerable disagreement among state and federal courts, so the U.S. Supreme Court took the case to resolve the issue. In a brief filed jointly with the National Association of Criminal Defense Lawyers, the ACLU, and the ACLU of North Carolina, Cato argues that the approach taken by the North Carolina Supreme is inconsistent with the logic that applies to factual mistakes committed by law enforcement and erodes civil liberties, all while undermining police authority and safety. The allowance for mistakes of fact in police evaluation of suspicious conduct is justified because facts can be ambiguous and unique to each circumstance, and officers must make quick evaluations based on their own observation and expertise. In contrast, the law is the same regardless of the particular circumstance to which it is applied, and can be ascertained long before the officer needs to enforce it. Officers have no specialized expertise in evaluating law, while ambiguities in the criminal code are typically resolved (by courts) in favor of criminal defendants, or struck down for vagueness. The burden placed on citizens by our accommodation of officers’ mistakes of fact is justified as a means of avoiding the social cost of unlawful conduct. Lawful conduct imposes no such cost, however, so excusing mistakes of law serves no social purpose.

 

The North Carolina ruling opens citizens up to searches based on all kinds of lawful conduct, as long as law enforcement can have a “reasonable” misapprehension of the law in a given area. To avoid the intrusion of police searches, people will need not only to avoid appearing to participate in criminal activity, but also to avoid appearing to participate in innocent activity which police could construe as criminal. The result is a system in which “ignorance of the law is no excuse” for citizens facing conviction, but police can use their own ignorance about the law to their advantage. Officers are therefore disincentivized from knowing the law, which undermines public confidence in their authority and encourages citizens to dispute it during police encounters—putting both parties in greater danger. The U.S. Supreme Court should make clear that law enforcement mistakes of law preclude lawful searches and seizures under the Fourth Amendment.

 

The Supreme Court will hear the case of Heien v. North Carolina this fall.

"Is the NSA Spying Upon Judges?"

The question posed by the title of this post comes from this Courthouse News Service article on one reporter's lawsuit to compel the NSA to disclose requested documents potentially revealing whether the scope of its surveillance extends into judges' chambers.  It reports:

The 7-page lawsuit tersely summarizes the controversies stirred up by NSA spying on foreign leaders and U.S. citizens, and recent judicial rulings on it.

 

[Jason] Leopold claims that, in a fine example of Orwellian doublespeak, the NSA refused a senator's inquiry on whether it spies upon members of Congress, by replying that it can't tell because it's not allowed to examine its own collection of metadata unless it thinks a specific phone number may be associated with a specific foreign terrorist group.

 

Leopold says in the lawsuit: "The vast scope of the NSA's surveillance program has raised questions about whether the agency has spied on the coordinate branches of the federal government. In response to an inquiry from Sen. Bernie Sanders about whether the NSA spies on members of Congress, NSA director Gen. Keith Alexander responded, 'Nothing NSA does can fairly be characterized as 'spying on members of Congress or other American elected officials[.]' But the response stated that the agency could make no guarantees that representatives or senators have not had their telephone metadata caught in broad government sweeps. Further, Alexander did not rule out the possibility that the NSA would, in the future, examine the telephone metadata of specific members of Congress or other American elected officials. According to Alexander, 'The NSA can query the metadata only based on phone numbers reasonably suspected to be associated with specific foreign terrorist groups' and '[f]or that reason, NSA cannot lawfully search to determine if any records NSA has received under the program have included metadata of the phone calls of any member of Congress, other American elected officials, or any other American without that predicate.' But according to Sen. Feinstein, such a query apparently does not require approval from the FISA court.

 

"Jerrold Nadler, an attorney and congressman on the House Judiciary Committee who attended a secret briefing, relayed that he was told that the contents of a phone call could be accessed 'simply based on an analyst deciding that.' "These revelations beg the question of whether the NSA has spied on the third branch of government, the judiciary.

 

"Little is known about whether the NSA has surveilled judges or their staff. With regard to spying on lawyers in the United States more generally, a recent report published by the National Lawyers Guild, 'Breach of Privilege,' details covert governing spying on the legal profession by federal agencies, including the NSA.

 

"The NSA, and the executive branch more generally, have a powerful incentive in intercepting communications involving judges or their staff. For example, the NSA might desire to learn about deliberations by this court in cases involving Guantanamo detainees, or in cases involving the Foreign Intelligence Surveillance Court. It is not beyond peradventure that the NSA would conclude that such deliberations are relevant to an investigation into foreign terrorism and that a federal judge's phone number could be 'associated' with a foreign terrorist organization, in the broadest sense of that word.

 

"The Department of Justice, one of the defendants in this case, has previously taken the position that it has the legal authority to mislead federal courts on issues involving national security. Islamic Shura Council of S. Cal. v. FBI, 779 F. Supp. 2d 1114, 1117 (C.D. Calif. 2011) ('The Government asserts that it had to mislead the Court regarding the Government's response to Plaintiffs' FOIA request to avoid compromising national security.') To an agency which has taken the position that federal judges cannot be trusted to avoid compromising national security, it would be a logical step to approve, or at least to consider, surveillance of judges who handle national security cases. " 

After breathalyzer and blood test, man suspected of drunk driving subjected to forced catheterization

In Indiana, 23-year-old William Clark alleges that local police violated his civil rights by subjecting him to forced catheterization after he failed to provide a urine sample on his own. He had been arrested on suspicion of driving drunk. As this local article reports:

According to his lawsuit, Clark submitted to a blood test at the Dyer hospital that showed his blood alcohol was below the legal limit. It states [Officer Matthew] Djukic, however, became impatient with Clark's inability [sic] to provide a urine sample and made an effort to forcibly get the sample. The suit claims Djukic physically restrained Clark while hospital personnel inserted a catheter to extract the fluid.

Clark says the forced catheterization was "painful, degrading and humiliating." Among other things, he alleges that it amounted to excessive force, and he’s seeking more than $10 million in total damages.

Excessive force claims usually are analyzed under the Fourth Amendment, which protects citizens’ “persons, houses, papers, and effects” from “unreasonable searches and seizures” by law enforcement. A reasonable search or seizure generally is one supported by a warrant issued by a magistrate, although certain circumstances may justify waiving the requirement. Such is the case when the search is likely to produce evidence of criminality, and when the warrant requirement is impractical.

In Schmerberg v. California, the Supreme Court held that warrantless blood testing for alcohol by law enforcement squares with the Fourth Amendment’s prohibition on unreasonable searches. Because the body works to eliminate alcohol as soon as drinking stops, the application of the warrant requirement to drunk driving cases would prevent discovery of needed evidence. Blood testing also is “a highly effective” means of determining one’s level of intoxication.

But a prick of the finger is less invasive than catheterization. Blood testing usually requires only the exposure of one’s finger to momentary discomfort. Forced catheterization requires exposing one’s genitals to medical staff so that a tube may be inserted into the urethra, allowing for the collection of urine directly from the bladder. The procedure could last a minute or more. Because some people experience severe pain, local anesthetic is occasionally used. The propriety of the warrantless procedure is also specious given Grant’s submission to both a breathalyzer and a blood test—less invasive, but effective, alternatives to urinalysis.

As one federal judged argued, unlike blood testing, “the Fourth Amendment’s protection of human dignity and privacy might require a warrant at the very least before government officials could compel a citizen to undergo a catheterization.” Officer Djukic didn't have one, and the existence of exigent circumstances justifying forced catheterization is doubtful.

Still, even assuming the validity of Grant’s excessive force claim, Officer Djukic may nevertheless be immune from legal action if a reasonable officer wouldn’t have known the forced catheterization violated Grant’s rights.

(h/t Debra Cassens Weiss at the ABA Journal Blog)

"Too Much Information: How Not to Think About Privacy and the Fourth Amendment"

The title of this post comes from this upcoming paper by Professor David Alan Sklansky, the abstract of which states:

Fourth Amendment law today is overloaded with information: not just in the sense that the explosive growth of digitized information requires rethinking traditional rules of search and seizure, but also and more importantly in the sense that a preoccupation with data flows has led to the neglect of important dimensions of privacy. There is no doubt that the control of personal information is an important value and one uniquely threatened by the rise of social media, by the proliferation of technological surveillance, and by the arrival of Big Data. But the reduction of privacy to control over information has made it difficult to think sensibly about the distinctive threats posed by government searches, and it is partly to blame for the growing and unwarranted idea that the Fourth Amendment should be decoupled from privacy - an idea variously motivated by a belief that the concept of privacy is meaningless, by the fear that privacy is dead or dying, and by a sense that the main threats to privacy today are orthogonal to the chief dangers posed by law enforcement. Search and seizure law would be better served by an understanding of privacy rooted in respect for a zone of refuge and informed by privacy’s longstanding associations with enclothement, retreat, and personal sovereignty. This alternative conception of privacy - privacy as refuge - should also be attentive to the relational nature of privacy, the connection between privacy and civility, and the effects of privacy violations on the perpetrators as well as the victims.

CRL&P related posts:

• "School Surveillance and the Fourth Amendment"
• The Difference between Invisible and Visible Surveillance in a Mass Surveillance World
• Concreteness Drift and the Fourth Amendment
• John Yoo: NSA mass surveillance totally copacetic

"School Surveillance and the Fourth Amendment"

The title of this post comes from this recent paper by Professor Jason Nance, the abstract of which states:

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school crime, and school disorder. These empirical findings are problematic on two related fronts. First, research suggests that students subjected to these intense surveillance conditions are deprived of quality educational experiences that other students enjoy. Second, the use of these measures perpetuates social inequalities and exacerbates the school-to-prison pipeline. 

Under the current legal doctrine, students have almost no legal recourse to address conditions creating prison-like environments in schools. This Article offers a reformulated legal framework under the Fourth Amendment that is rooted in the foundational Supreme Court cases evaluating students’ rights under the First, Fourth, and Fourteenth Amendments. The historical justification courts invoke to abridge students’ constitutional rights in schools, including their Fourth Amendment rights, is to promote the educational interests of the students. This justification no longer holds true when a school creates a prison-like environment that deteriorates the learning environment and harms students’ educational interests. This Article maintains that in these circumstances students’ Fourth Amendment rights should not be abridged, but strengthened.

Teacher alleges strip search by school nurse violated Fourth Amendment

A teacher in Virginia has sued school officials for civil rights violations following an alleged strip search. According to her complaint, after the parent of one of her students reported a child with scabies, the assistant principle interrupted the teacher's class and escorted her from her classroom to the nurse's office where she was forced to remove everything but her undergarments. The nurse looked her over, but found nothing. The teacher then "returned to her class to continue teaching though very upset." According to the Courthouse News service:

[She] says the search violated her Fourth and Fourteenth Amendment rights to bodily privacy.

 

"Because a parent or guardian of the student made an unsupported allegation, with no rational connection to the plaintiff, the defendants responded with an intrusive search," she says in the lawsuit. "The search was unjustified at its inception, and the nature of the search as conducted - removing Ms. Anderson's clothes to inspect her body for mites - was not reasonable to the perceived or alleged problem in its scope, and unsupported by any objective facts."

 

Anderson, who says she suffers from severe mental anguish and embarrassment from the search, seeks $622,000 in damages.

"Analyzing the SDNY's Amended 'Related Case' Rule: The Process for Challenging Nonrandom Case Assignment Remains Inadequate"

The title of this post comes from Professor Katherine MacFarlane's latest contribution to the stop-and-frisk debate, the abstract of which states:

On October 31, 2013, the Second Circuit relied on a little-known Division of Business Rule to remove a well-respected and long-serving jurist from two high-profile stop-and-frisk cases. This highly unusual and unexpected move has stirred up an uproar of public support for the judge. But the Southern District of New York’s Division of Business Rule 13, the catalyst for a series of unprecedented procedural twists and turns, has been left unexamined. This essay refocuses the discussion on the overlooked rule at issue in Judge Scheindlin’s removal. First, it explains the consequences of Rule 13’s Division of Business label. Unlike local rules of civil procedure, Rule 13 is not subject to review by the Second Circuit, nor is it open to public comment. Creation and enforcement of a district court’s division of business rules are delegated to the court itself; unsurprisingly, decisions made pursuant to such rules are largely unreviewable. Next, this essay explains that precisely because it was a division of business rule, Rule 13 permitted case assignment decisions that might have raised red flags had they occurred pursuant to a local rule of civil procedure. This essay further argues that Rule 13 was only nominally a rule about relatedness. Instead, it functioned as a mechanism through which judges could pull certain cases onto their docket based on the cases’ subject matter. Rule 13 is the reason so many high-profile stop-and-frisk cases were sent to Judge Scheindlin, as opposed to being divvied up at random amongst all S.D.N.Y. judges. The essay also tracks how the stop-and-frisk cases were assigned, their odd procedural history on appeal, and recent hints of settlement. 

On December 18, 2013, the S.D.N.Y adopted amendments to Division of Business Rule 13, seemingly in reaction to the circumstances that caused Judge Scheindlin’s removal. This essay ends with an analysis of the amendments, concluding that they do not do enough to explain why a judge decides to deem a case related to an earlier-filed matter. The amendments also do not create meaningful motion practice through which parties can challenge a relatedness decision. Rather, the district’s case assignment procedures remain shrouded in secrecy, and, most disturbingly, are still easy to manipulate. If a judge wants to overcome random case assignment and engage in subject matter-specific case shopping, the S.D.N.Y.’s Division of Business rules will not stop it.

CRL&P related posts:

• Debate: The Constitutionality of Stop-and-Frisk in New York City
• Across the Hudson: Taking the Stop and Frisk Debate Beyond New York City
• "Probabilities, Perceptions, Consequences and 'Discrimination': One Puzzle About Controversial 'Stop and Frisk'"
• "The Inverse Relationship between the Constitutionality and Effectiveness of New York City 'Stop and Frisk'"
• "Stop and Frisk Didn't Make New York Safer"
• While on the topic of stop-and-frisk...

While on the topic of stop-and-frisk...

The Atlantic today has What Stop-and-Frisk Means to the Descendants of Slaves by Theodore R. Johnson, which begins:

Jehu Grant was a Rhode Island slave who escaped the bondage of his anglophile master to join the fight for American independence. He was in his eighth month of service in George Washington’s Continental Army when the military returned him to his owner. Years later, Grant obtained his freedom papers and, as an 80 year old indigent man who’d lost his eyesight, he applied for the military annuity authorized in the Pension Act of 1832. His appeal was denied because the War Department determined that a slave could not also be a soldier. Despite a commitment to America’s founding principles and a mortal fight for liberty, he was denied capital gain by the very nation in which he’d literally placed his blind trust.

 

Grant’s story is instructive: as a black man, I know America was not intended for me. This is not an indictment; it’s just reality. When the nation was forged from fruited plains and purple mountain majesties, it was crafted for a specific, privileged segment of the population. The founding fathers determined that the actual construction of the republic was a higher priority than ensuring that the rights it promised were available to everyone. Pragmatism ruled over idealism. Despite a national gospel that deified freedom and independence, the exclusion of black liberty was coded into the American DNA.

 

This is what Daniel Bergner ultimately details in his April Atlantic article, “Is Stop-and-Frisk Worth It?” The proactive policing program is ostensibly an honorable attempt to provide safe communities. But whether or not the program is effective (the rationale and statistics have so far been insubstantial), the discriminatory way it is carried out reflects the same pathologies that thwarted our first attempts at liberty. Stop-and-frisk isn’t racist on purpose. It was just born that way.

"Stop and Frisk Didn't Make New York Safer"

The Atlantic's Donald Braman writes:

When former NYPD Commissioner Ray Kelly was asked what would happen if stop-and-frisk were curtailed, his response was characteristic of his tenure: “No question about it,” he said “violent crime will go up.” When homicides rose in Chicago, Chicagoans clamored for NYPD-style stop-and-frisk. The same premise is repeated by proponents of stop-and-frisk throughout Daniel Bergner’s illuminating Atlantic article: if you want to reduce crime, you have to be willing to suffer more aggressive policing tactics.

 

In reality, there’s no good reason to assume that these strategies work to reduce crime. David Greenberg has conducted the most comprehensive analysisof the relationship between the NYPD’s practice of stop-and-frisk and crime levels to date, and he finds “no evidence that misdemeanor arrests reduced levels of homicide, robbery, or aggravated assaults.”

 

No one thinks a police officer with a reasonable suspicion that a suspect has a gun should be barred from frisking the suspect, but that is not what stop-and-frisk has come to mean. The now-abandoned practice of requiring officers (often fresh out of the academy) to meet performance goals for citations and arrests seems wrong on several levels, but the most fundamental one is that it doesn’t reduce crime. A close second is the increased costs to families and communities. As Bruce Western, Amanda Geller, Christopher Wildeman, andmany others have described, the collateral damage from broad criminalization is far-reaching, and concentrated on the populations that can least afford them.

 

So why are so many so enamored of these dubious tactics?

"The Inverse Relationship between the Constitutionality and Effectiveness of New York City 'Stop and Frisk'"

The title of this post comes from this recent contribution to the debate over NYC's stop-and-frisk program by Professor Jeffrey Bellin, the abstract of which states:  

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all of the strands – falling crime, reduced incarceration and aggressive policing – analyzing the hazy historical and empirical connections between them, and evaluating the legal implications of a crime-fighting policy that might “work” to reduce both crime and incarceration precisely because of the factors that render it unconstitutional.

CRL&P related posts:

• "Probabilities, Perceptions, Consequences and 'Discrimination': One Puzzle About Controversial 'Stop and Frisk'"
• Across the Hudson: Taking the Stop and Frisk Debate Beyond New York City
• Debate: The Constitutionality of Stop-and-Frisk in New York City
• SDNY amends related-case rule to increase transparency over case assignments

Dancers sue San Diego police following recent raid of area strip club

The San Diego Police Department faces a civil rights lawsuit filed on behalf of more than two dozen dancers who allege they were held against their will during a recent raid of a local strip club. This local article explains:

Twenty-five dancers at a San Diego strip club have filed a civil rights lawsuit against the San Diego Police Department, claiming that police officers held them against their will and took revealing pictures of their tattoos.

 

Ten San Diego police officers raided the Cheetahs Gentlemen’s Club in Kearny Mesa on March 6 to check 30 dancers’ permits and the business’ compliance to city codes, according to a claim filed by attorney Dan Gilleon.

 

During the check, the claim says the unidentified officers detained dancers against their will for about one hour without a warrant and without probable cause.

 

They ordered the women to pose in various positions and expose their body so the police could photograph their tattoos, all the while making “arrogant and demanding comments” and telling the women to “smile,” the claim states.

 

According to Gilleon, the SDPD said its officers were abiding by municipal code as they inspected the business and demanded identification.

 

“Any peace officer shall have free access to any police-regulated business during normal operating hours,” municipal code states.

 

But the civil rights lawsuit said the officers went too far, violating the dancers’ civil rights by making them disclose private information like Social Security numbers and subjecting them to demeaning searches and seizures.

 

Cheetahs manager Rich Buonantony said this isn’t the first time something like this has happened.

 

He claimed the women were helpless because if they said “no” to any part of the operation, their work permit and business licenses could be taken away.

 

The claim filed against the SDPD is for more than $10,000, though an exact dollar amount has not been released.

"Probabilities, Perceptions, Consequences and 'Discrimination': One Puzzle About Controversial 'Stop and Frisk'"

The title of this post comes from this essay by Professor Kent Greenawalt, the abstract of which states:

The essay focuses on a particular issue about “stop and frisk” raised by the concern about concentration on young men in racial minorities. Although reference is made to the recent decision in Floyd v. City of New York, my focus is not on what has actually happened in New York and elsewhere, but whether, if there is substantial evidence that a higher percentage of members of a group commit certain kinds of crimes more than members of other groups, it is appropriate for police to stop partly on the basis of whether movements that are somewhat suspicious are made by members of that group, or whether that constitutes inappropriate discrimination.

Using an imagined private analogy and made up statistics about levels of criminal behavior and innocence among different groups, I contend that given the level of probability needed for a stop, i.e., “reasonable suspicion,” the likelihood that a group characteristic could figure importantly in the necessary probability is somewhat higher than when a more demanding standard such as “probable cause” is in play. In respect to a person’s gender and age, I suggest that use of that in applying a probability standard is really uncontroversial. But race is different. Both because of the risk of nonobjective appraisals, based partly on prejudices or implicit cultural assumptions, and because of the harmful negative message conveyed to members of minorities subject to stops, I conclude that police should not explicitly use race as a factor (unless they are looking for a person already identified by his race). I also believe this problem is serious enough so that such use should be viewed as a constitutional violation.

"The Due Process Exclusionary Rule"

The title of this post comes from this recent paper by Richard M. Re, the abstract of which states:

As the Supreme Court continues to cut back on and perhaps eliminate Fourth Amendment suppression, the exclusionary rule has entered a new period of crisis. The rule’s greatest vulnerability today stems from the consensus that it can be justified only based on policy arguments from deterrence or atextual values like judicial integrity. Instead of pursuing those prevailing theories, the exclusionary rule’s defenders should draw on arguments centered on constitutional text and historical change. Under that approach, the exclusionary rule would spring not from the Fourth Amendment itself, but rather from the historically evolving interrelationship between the Fourth Amendment and the Due Process Clauses. By the mid-twentieth century, changes in law and practice had recast the Fourth Amendmentas a source of pre-trial “process” analogous to in-trial procedural guarantees such as the Confrontation Clause. And when a criminal conviction is predicated on a violation of the Constitution’s criminal procedure requirements, including the Fourth Amendment, the conviction works an ongoing deprivation of liberty without due process. This approach has a number of advantages and implications. It provides a constitutional foundation for the harmless error doctrine, explains why the same exclusionary principles apply to different constitutional rights, clarifies the contested bounds of many exclusionary exceptions, and supplies a manageable framework for analyzing the remedial implications of newly emerging Fourth Amendment rules for digital surveillance technologies.

CRL&P related posts:

• Concreteness Drift and the Fourth Amendment
• Excessive force claims under Fourth Amendment less protective when police use tasers?
• Policing the Immigration Police: ICE Prosecutorial Discretion and the Fourth Amendment

Police unions pursue appeal of ordered changes to NYPD's stop-and-frisk policy

The dispute over the NYPD's stop-and-frisk policy appeared to have come to a conclusion last month when new NYC mayor Bill de Blasio announced that the city would not pursue its appeal of ordered changes to the policy. But, last Friday, unions representing much of the NYPD announced that it won't acquiesce so easily. The Associated Press reports:

Police unions told a federal appeals court Friday that they want the courts to decide whether a judge properly ordered changes to the New York Police Department's stop-and-frisk program even if the city no longer wants to challenge her rulings.

 

Unions representing most of the 35,000 members of the nation's largest police force told the 2nd U.S. Circuit Court of Appeals that they would like to continue the case despite the city's recent announcement that it wanted to drop its appeal and settle the case in the lower court.

 

New York City Mayor Bill de Blasio announced last month that the city would agree to the appointment of a monitor to oversee a process to reform stop-and-frisk tactics after U.S. District Judge Shira Scheindlin concluded last summer that the crime-reduction program was sometimes carried out in a discriminatory manner and that a monitor was necessary. De Blasio's administration also asked the 2nd Circuit to drop its appeal, which was made by his predecessor, Mayor Michael Bloomberg.

 

When the city made its request, the appeals court invited the unions to submit written arguments saying why they oppose the city's request to return the case to the lower court for an eventual settlement.

 

"The court entered findings that unfairly besmirch the reputations of the men and women of the NYPD, imposed facially overbroad remedies, and exposed the NYPD to an unwarranted and indefinite period of federal supervision," according to papers submitted to the appeals court on behalf of the Patrolmen's Benevolent Association, the Detectives Endowment Association, the Lieutenants Benevolent Association and the Captains' Endowment Association.

 

"The contemplated injunction would directly burden the officers' daily work and would impair the police unions' collective bargaining and other rights," lawyers for the unions said.

In separate papers, the Sergeants Benevolent Association said a dismissal of the city's appeal "would leave in force the two grossly flawed opinions" from Scheindlin.

 

It said its members were "among the most harshly criticized individual NYPD officers mentioned in the opinions" and "deserve the opportunity to defend and vindicate themselves through this appeal."

 

The unions also invited the 2nd Circuit to vacate Scheindlin's rulings as a condition of approval for any agreement reached between the city and plaintiffs in lawsuits challenging the stop-and-frisk procedures.

 

The unions said they have been injured by the rulings because "their daily work lives will be changed substantially if the remedies embodied in the district court's order — now to be embodied in a consent decree — are ever to be implemented."

 

Last year, the 2nd Circuit took the unusual step of removing Scheindlin from the case, saying she misapplied a related ruling that allowed her to accept it to begin with and had inappropriately spoken publicly about the case. Lawyers for the judge have challenged her removal.

 

Baher Azmy, legal director of the civil liberties group Center for Constitutional Rights, which had argued on behalf of those challenging the stop-and-frisk tactics, said of the unions: "Mere disagreement doesn't give them the right to intervene in a legal case."

 

He said the remedial process ordered by Scheindlin includes the police unions, giving them a voice in any reforms.

CRL&P related posts:

• NYC agrees to stop-and-frisk monitor, reforms
• Across the Hudson: Taking the Stop and Frisk Debate Beyond New York City
• Debate: The Constitutionality of Stop-and-Frisk in New York City
• UPDATE: SDNY amends related-case rule to increase transparency over case assignments
• SDNY amends related-case rule to increase transparency over case assignments
• NYPD's stop-and-frisk program dead?
• UPDATE II: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law
• UPDATE: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law
• The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law

The Difference between Invisible and Visible Surveillance in a Mass Surveillance World

The title of this post comes from this recent paper by Professor Steven Friedland arguing that mass surveillance programs justified on national security grounds require at least minimal transparency to ensure that individuals' privacy interests are not infringed. Here's the abstract:

In Tijuana, Mexico, one can now look in the night sky and possibly see a small, desk-size object flying over the city. The object, a small, unmanned, low-altitude aircraft commonly referred to as a drone, is capable of twenty-minute battery-operated flights. The drone sends live video to screens at police headquarters. Several drones are being used both day and night in Tijuana for crime interdiction, particularly against burglaries. In Great Britain, multiple cameras appear throughout the country, part of a network of closed-circuit televisions also utilized for crime interdiction. 

While the United States has some “red light” cameras at intersections, most of its government surveillance is invisible to the public. The National Security Agency (NSA), for example, has multiple surveillance programs. The NSA obtains data from private companies, taps telephone calls, and gathers a massive amount of phone metadata and telephone records. Biometric techniques, such as facial recognition software, are already employed in a sophisticated manner by private companies such as Facebook, and will be utilized by the United States through its Biometric Optical Surveillance System (BOSS). 

These collective activities lead inexorably to the realization that we are now living in a mass surveillance world. The forms of surveillance are multiplying, from drones to biometrics to signals analysis. As we learn from the French root of the word surveillance, surveiller, meaning to watch over, our movements are being watched, stored, connected and dissected every day in myriad ways. 

For most surveillance to succeed, unless it is designed primarily to deter observers instead of capturing information or behavior, it is almost axiomatic that an element of secrecy is needed. This is especially true when the governmental objective is national security. The problem is that the national security narrative cloaks surveillance in invisibility. In doing so, the cloak minimizes other factors in the calculus for determining the parameters of lawful surveillance, such as the harms incurred by individuals, the Constitution and the rule of law. As a recent report by the independent Privacy and Civil Liberties Oversight Board noted, “Despite widespread support for balancing openness and secrecy, there has been equally widespread consensus within and without the government that the system tilts too far in the direction of secrecy.” 

With invisibility, there generally is no narrative, and without such a narrative, a coherent voice — the core of our adversarial court system and democracy — cannot be raised concerning the harms of surveillance, such as whether it might violate the Fourth Amendment or various statutes. Consequently, it is more difficult to distinguish between legitimate and illegitimate powers, creating a slippery slope of one-sided justification. 

This paper will explore the distinctions between visible and invisible surveillance. Given the significance of these distinctions, I will argue that some visibility of surveillance — some transparency — is needed to ensure that proper privacy safeguards exist. In short, reframing the analysis to allow a narrative about the harms of indiscriminate mass surveillance will lead to the protection of liberty and a stronger rule of law.

CRL&P related posts:

• Concreteness Drift and the Fourth Amendment
• Katz on a Hot Tin Roof: The Reasonable Expectation of Privacy Doctrine is Rudderless in the Digital Age, Unless Congress Continually Resets the Privacy Bar
• The legislative response to mass police surveillance
• Policing the Immigration Police: ICE Prosecutorial Discretion and the Fourth Amendment
• Excessive force claims under Fourth Amendment less protective when police use tasers?

NYC agrees to stop-and-frisk monitor, reforms

Yesterday, New York City Mayor Bill de Blasio (D) announced that the city will develope reforms to end the discriminatory use of stop-and-frisk. The mayor's announcement ends a lengthly legal saga that peaked last August when a district court judge ruled NYC's stop-and-frisk program unconstitutional and ordered reforms. The appellate court subsequently removed the district judge from the case, although she later was exhonerated of "judicial misconduct."  The appellate court also upheld her ruling.

The title of this post comes from this article, which begins:

The new mayor on Thursday delivered on his campaign promise to reform stop-and-frisk police tactics, agreeing to the appointment of a monitor and seeking to end a 14-year court fight that culminated in a judge's ruling that New York City had discriminated in carrying out the crime-reduction program.

 

"We believe these steps will make everyone safer," Mayor Bill de Blasio told a Brooklyn news conference shortly after city lawyers asked the 2nd U.S. Circuit Court of Appeals to return the case to the lower court "for the purpose of exploring a full resolution."

 

He added: "This will be one city where everyone rises together, where everyone's rights are protected."

 

He said the city agreed to the appointment of a monitor for three years to oversee the creation of reforms aimed at ending discrimination. The monitor will oversee a process in which those communities most affected by the stop-and-frisk tactics will provide input on the reforms.

 

"I can't wait to get started," said Vincent Warren, executive director of the Center for Constitutional Rights, which has represented plaintiffs in the lawsuits.

 

But he cautioned that the announcement did not mean discrimination would immediately end.

 

"Nobody standing here today is pretending this is mission accomplished. The problem hasn't been solved," he said. "We will have a collaborative reform process. We'll have a court monitor to ensure these reforms move forward."

 

Police Commissioner William Bratton said the policy as it had been carried out for years had left too many people who were frisked asking, "Why, why me?" while police officers being pressed to make ever more arrests even as crime rates fell dramatically were wondering, "Why more?"

 

He said the practice had torn the fabric between the police and the population. "We need to repair it," he said.

CRL&P related posts:

• Across the Hudson: Taking the Stop and Frisk Debate Beyond New York City
• Debate: The Constitutionality of Stop-and-Frisk in New York City
• UPDATE: SDNY amends related-case rule to increase transparency over case assignments
• SDNY amends related-case rule to increase transparency over case assignments
• NYPD's stop-and-frisk program dead?
• UPDATE II: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law
• UPDATE: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law
• The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law