Civil Rights Law & Policy Blog

'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.

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.

Concreteness Drift and the Fourth Amendment

The title of this post comes from this paper by Professor Luke M. Milligan claiming that the Supreme Court's decision in Katz v. United States  has not "reorient[ed] interpretations of the Fourth Amendment" as many had anticipated. Here's the abstract: 

Katz v. United States was expected to reorient interpretations of the Fourth Amendment. This was not simply because Katz repealed the constitutional rules governing electronic eavesdropping established in Olmstead v. United States. Rather, it was because Katz called for doctrinal reform across a broad swath of cases-the entire catalogue of "search" issues-and it supplanted a mechanical rule with an open standard based on contextual and evolving societal expectations. Of course the hope of Katz would prove hollow. In forty-five years, Katz has had only a marginal impact on the Court's "search" decision-making. Put more directly, Katz has failed to direct judges to evaluate the term "search" based on contextual and evolving privacy norms. Explanations for Katz's failure come in many forms: some point to the resilience of the justices' personal juridical and policy preferences; others to the vagueness of the Katz opinions themselves; and still others to the inaccessibility of good empirical data regarding "reasonable expectations of privacy." I agree, more or less, with each of these explanations. Yet I believe that the prevailing explanations are somewhat incomplete. This essay seeks to offer a fuller picture of Katz's failure.

CRL&P related posts:

• 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?

Drug search involving anal probe results in $1.6-million settlement

Yesterday, The Los Angeles Times had this eye-opening story on the settlement of a civil rights suit stemming from body cavity searches performed on a New Mexican man the police suspected of drug possession. The police were immodestly diligent in their pursuit of the alleged drugs, but their efforts yielded nothing. From the article, the plaintiff appears to have raised several intriguing CrimPro issues--e.g. whether the hospital at which the cavity search is performed must be within the jurisdiction in which the search warrant had been issued--but ones to which I cannot respond without beginning, "I presume..." So, here's a portion of The Times's article from which the title of this post comes: 

Police took [David] Eckert [Plaintiff] to a hospital. His federal civil rights lawsuit — which reached a partial conclusion this week — detailed what happened next.

 

First Eckert got an X-ray, which was inconclusive for drugs, according to his lawsuit. Then a doctor examined Eckert's anus with his finger, as did a second doctor. Neither found drugs.

 

Then the doctors gave a protesting Eckert an enema, he alleged, forcing him to have a bowel movement in front of medical staff. There were no drugs in his stool.

 

Doctors purportedly gave him two more enemas and got the same result.

 

They took another X-ray, which was negative this time. Then came the colonoscopy, which involves inserting a camera into the anus. It found nothing.

 

No drugs were found in Eckert's body.

 

Weeks later, he received a hospital bill for $4,539.

 

He sued the city of Deming, along with Hidalgo County and the hospital, Gila Regional Medical Center in Grant County.

 

In his complaint, Eckert said he was denied the opportunity to call his attorney; that the search warrant had expired by the time the doctors were examining him; that the procedures were carried out in a different county where the warrant wasn't valid; and that police mocked him during the procedures and intentionally pulled back his privacy curtain while he was exposed.

 

City and county officials denied some of the allegations in preliminary court filings. But last month, after a six-hour negotiating session, they settled. Eckert will get $1.6 million in damages.

CRL&P Daily Reads: Nov. 14, 2013

Northern Illinois University student has been arrested after police discovered an AR-15 rifle and a handgun in his dorm room; federal agents claim gun made by a 3-D printer could threaten security; Iowa gun store owner has been arrested after selling fully automatic machine gun; Milwaukee youth help city officials develop strategies to reduce gun violence; and a Florida woman pulls a gun on a journalist.

Sen. Rubio is scheduled to speak at a conference led by an anti-gay activist; Indiana woman has been denied access to her partner who is currently unconscious in the hospital; and five Senagalese women could face as much as five years in prison because they are lesbians.

Supreme Court considers whether law enforcement officials violate the Fourth Amendment when they search an apartment after one roomate denies them entry but another later permits it; and TSA's profiling program is ineffective.

Students decry lack of diversity at UCLA; and federal court hears oral argument on University of Texas's addmission policy that considers race.

Former Dolphin's offensive lineman Jonathan Martin might sue the team for harassment and discrimination.

ProPublica documents China's efforts to censor Twitter messages.

 

CRL&P Daily Reads: Nov. 13, 2013

Woman alleges that local police violated her civil rights by snooping into her driving records.

Female students file a federal lawsuit against UConn alleging that it did not notify police of sexual assault reports as required by the university's policy.

Officer files civil rights suit alleging that San Francisco PD wrongfully arrested and discriminated against him.

ACLU claim alleges Arizona's 'show me your papers' law violates citizens' civil rights.

Hawaii governor is expected to sign same-sex marriage bill today, and one-third of Americans now live where same-sex marriage is legal.

California school district to discuss the appropriateness of controversial Arab mascot.

 

Cops who shot gun owner denied immunity

The title of this post comes from this article about a gun owner who was shot by sheriff's deputies when he stepped outside his cousin's home with his gun to investigate the noises he had heard. As the Courtroom News Service reported at the time, he filed a lawsuit against the sheriff's department:

He seeks punitive damages for excessive force, unwarranted use of deadly force, illegal search and entry, illegal seizure, racial discrimination, assault, battery, negligence and due process violations.

The sheriff's office asserted qualified immunity because of their belief that the man had been armed, but the judge rejected that claim.

The parties dispute whether the plaintiff actually had fired a shot after he stepped outside.

The article begins:

Sheriff's deputies must face claims related to their shooting of a man who heard possible intruders outside his home and stepped out with a gun to investigate, the 4th Circuit ruled.

The decision notes that George Cooper Sr. had been at the mobile home of his cousin, Paul Herring, on May 2, 2007, in rural Leland, N.C., after they spent the better part of the day repairing the floor of a nearby relative's home.

Before dinner, the men relaxed in Cooper's backyard, "talking about '[f]ootball games [and] old fights," Judge Robert King wrote for the three-judge appellate panel.

"Cooper may have enjoyed the mid-spring evening a little too much, smoking marijuana laced with cocaine, and chasing 'three or four beers' with a pint of Brandy," he added.

It was just after 11 p.m. when a neighbor called 911 to report that an altercation was occurring on Cooper's property. The dispatchers then related the call to Brunswick County Sheriff's deputies James Sheehan and Brian Carlisle.

 

Illinois county faces class-action suit for jail's allegedly illegal strip-search policy

Last month, CRL&P noted this story about a woman who had been forcibly strip-searched by four prison gaurds in LaSalle County, Illinois. The woman filed a lawsuit alleging that the forcible search violated her civil rights and Illinois law. She claimed that the guards did not have "reasonable belief" that she possessed contraband or weapons as required in Illinois; and, she alleged that three male guards participated in the search in violation of Illinois' law requiring strip-searches to be performed by guards of the same sex as the arrestee (a claim supported by surveillance video of the incident).

The woman's attorney has since filed a separate class-action suit against LaSalle County, the sheriff, and several sheriff's officers. According to The Chicago Tribune, "The class-action suit against LaSalle County...claims the four named plaintiffs...were either forcibly stripped or made to take their clothes off and then made to stay in cells without bathrooms for several hours. There, they were ordered to urinate and defecate in a drain on the floor of the cell, and in some of the cases not given toilet paper, the suit claims."

The Tribune also reports:

The new lawsuit, filed Thursday, claims that in addition to forcibly stripping three female arrestees and one man brought to the jail in a civil matter, the four were forced to stay in their cells for several hours without access to a bathroom.

The suit also claims one of the women was denied medication for diabetes and denied food she was capable of eating based on her medical condition.

"This abusive and humiliating treatment has been, and continues to be, a regular and common practice in the LaSalle County Jail as a means of illegally punishing arrestees," the lawsuit reads.

LaSalle County officials could not be reached Thursday night for comment but previously said that County Jail guards did nothing wrong in the incident involving Holmes.

 

CRL&P Morning Reads: Nov. 8, 2013

Although not charged, the Cleveland PD continue to hold a man's gun pursuant to a city ordinance that permits police to seize an arrestee's guns until a court orders their return.

House Republicans say they're worried about ENDA's effect on small businesses, and gay-rights advocates turn to President Obama urging him to sign an workplace anti-discrimination order. Crotia prepares to vote on whether to allow gay-marriage.

Secure email system used by Snowden now will work to create a new system that is immune from government surveillance.

LAPD arrests 54 Walmart protesters as more than 500 workers and community leaders gathered to protest the store's low wages.

Mother files suit against local school district alleging it ignored reports that an assistant principle repeatedly snuck her daughter out of her home for sex.

 

The legislative response to mass police surveillance

The title of this post comes from this upcoming article offering a model statute to guide state legislatures as they craft public policy balancing the safety interests compelling mass surveillance with issues of fundamental fairness. Here's the abstract:

Police departments have rapidly adopted mass surveillance technologies in an effort to fight crime and improve efficiency. I have previously described this phenomenon as the growth of the digitally efficient investigative state. This new technological order transforms traditional law enforcement by improving the efficiency of everyday policing activities and retaining copious amounts of data on both suspicious and unsuspicious behavior. Empirical evidence shows that police surveillance technologies are common and rapidly expanding in urban America. In the absence of legislative action, police departments have adopted widely disparate internal policies. The Supreme Court had the opportunity to reign in the scope of police surveillance in Jones v. United States. But the Court could not agree on whether technological improvements in efficiency transform an otherwise legal policing tactic into an unconstitutional search. Nor could the Court agree on whether a person may have a reasonable expectation to privacy in public movement. Post-Jones, the jurisprudence of police surveillance emerged as incoherent as ever. 

I have previously argued that the judiciary should regulate police surveillance technologies. While it remains possible that the judiciary will someday make such a doctrinal shift, the immediate responsibility for regulating police surveillance technology falls on state legislatures. In this Article, I offer a model statute to regulate mass police surveillance. The model statute limits indiscriminate data collection. It also caps data retention for personally identifiable information. It excludes from criminal court any locational evidence obtained in violation of the statute. And it gives the state attorney general authority to bring suit against police departments that fail to abide by the law. This legislation would give discretion to police departments to craft data policies fitting their city’s unique needs, while also encouraging consistency and fairness.

 

Cyber-Surveillance Without Restraint? The Meaning and Social Value of the Probable Cause and Reasonable Suspicion Standards in Governmental Access to Third Party Electronic Records

The title of this post comes from this recent article arguing that the Fourth Amendment's probable cause and reasonable suspicion standards provide adequate protection against impermissible searches of third-party electronic records. Here's the abstract:

The United States Supreme Court has interpreted the Fourth Amendment to provide no privacy protection for records held by third parties. The American Bar Association recently sought to step into this breach by recommending standards to govern government access to third-party electronic records, such as those held by banks, Internet service providers, and medical care providers. Those standards retain requirements of probable cause and reasonable suspicion for government access respectively to highly protected and moderately protected records. Law enforcement has challenged these requirements as unduly burdensome, while some commentators have argued that probable cause and reasonable suspicion are so easy to prove in the third-party records context as to provide no effective privacy protection at all. This Article challenges both those views by defining with greater specificity than has yet been accomplished the meaning of two aspects of probable cause: the quantitative and the qualitative. The Article also addresses their social value by exploring cognitive science, philosophy on the nature of probability, and political incentives facing police and prosecutors. The Article also examines the evidentiary concept of “weight” and analyzes the implications of various technological processes for applying these justification requirements in the third-party electronic-records context. The Article ultimately concludes that retaining probable cause and reasonable suspicion protections—when coupled with additional protections provided by the standards—is neither oppressive of law enforcement nor underprotective of persons whose records are searched. Instead, the balance achieved by the standards in this area is just right.

 

CRL&P Daily Reads: Oct. 30, 2013

Arizona Sheriff Joe Arpaio wants to employ 'one or two' drones in surveillance of Pheonix area.

NPR says Texas voter-ID law is unexpectedly making voting difficult for some women.

Support growing in the Senate for Employment Anti-Discrimination Act (ENDA) banning workplace discrimination on the basis of sexual orientation or gender identity, and an Ohio funeral home wants gay marriages recognized on death certificates.

Planned Parenthood says Iowa ban on telemedicine system used for dispensing abortion pills prevents rural access to needed medical services and asks judge to suspend the ban.

Egyptian military tribunal sentences a journalist to one year in prison for allegedly impersonating a military officer.

NY appeals judges ponder fate of stop-frisk ruling

The title of this post comes from this article reporting that the Second U.S Circuit Court of Appeals may suspend the lower court's ruling that NYC's stop-and-frisk policy is unconstitutional. The article begins:

A federal judge's conclusion that New York City police officers sometimes violate the constitution when they stop and frisk people has made officers "passive and scared" to use the crime-fighting tactic, lawyers warned a federal appeals panel Tuesday as they asked that the ruling be suspended while it is appealed.

The three-judge 2nd U.S. Circuit Court of Appeals asked plenty of questions but did not immediately rule in a case that may be affected in a major way by next week's mayoral election. Democratic candidate Bill de Blasio, who is leading in polls, has sharply criticized and promised to reform the police department's stop-and-frisk technique, saying it unfairly targets minorities.

Attorney Celeste L. Koeleveld, arguing for the city, said officers are "hesitant, unfortunately" to use the tactic anymore.

Attorney Daniel Connolly, making legal points on behalf of former Mayor Rudolph Giuliani and former U.S. Attorney General Michael Mukasey, told judges that city officers were "defensive, passive and scared" about using the technique.

Read more here: http://www.star-telegram.com/2013/10/29/5288170/ny-appeals-judges-ponder-fate.html#storyli

Policing the Immigration Police: ICE Prosecutorial Discretion and the Fourth Amendment

The title of this post comes from this paper examining the role of prosecutors in upholding the Fourth Amendment in immigration cases, and what remedies might be available to noncitizens when law enforcement violate its mandate during arrests. Here's the abstract:

A persistent puzzle in immigration law is how the removal adjudication system should respond to the increasing prevalence of violations of noncitizens’ constitutional rights by arresting officers. Scholarship in this area has focused on judicial suppression of unconstitutionally obtained evidence, typically by arguing that the Supreme Court should overrule its 1984 decision in INS v. Lopez-Mendoza not to enforce the exclusionary rule in civil immigration court. This Essay, in contrast, considers the role of Immigration and Customs Enforcement (ICE) attorneys in upholding the Fourth Amendment, taking as a launching point the recent exercise of prosecutorial discretion by ICE attorneys in Charlotte, North Carolina in cases arising from systemic unlawful policing.

Part I briefly describes how ICE's lawyers in the Charlotte immigration court have closed deportation cases against noncitizens arrested through unlawful policing by local officers in North Carolina, following a Department of Justice report on the discriminatory targeting of Latinos in Alamance County, North Carolina. The Essay then explores two potential bases for an ICE prosecutor’s decision to take remedial action when arresting officers violate the constitution. First, Part II examines ICE prosecutors’ constitutional responsibilities as executive branch attorneys in light of the Supreme Court’s decision to underenforce the Fourth Amendment in the context of immigration arrests. Part III then considers whether ICE’s remedial actions in North Carolina comport with internal agency guidelines for exercising prosecutorial discretion in deportation cases.