Topic: Law and Civil Liberties

The Walter Scott Case

Yesterday, South Carolina’s Post and Courier released the video of a North Charleston police officer fatally shooting a fleeing man, Walter Scott, in the back. After the mayor’s press conference late yesterday afternoon, the State Law Enforcement Division arrested the officer and charged him with murder. Under Tennessee v. Garner (1985), it is illegal for an officer to shoot a fleeing suspect absent an objectively reasonable fear of danger to the public or himself.

 

Photo via the Post and Courier.

The officer had originally stated that he “felt threatened” before deploying lethal force against the 50-year-old man. The police report also stated that the officer performed CPR on Scott after the shooting, but video shows the officers left him handcuffed and on the ground with no attempt at CPR.

You should read the full story here.

This was cross-posted at PoliceMisconduct.net

Erie County Forced to Hand Over Stingray Documents

A few weeks ago, a New York judge ruled that the Erie County Sheriff’s Office had inappropriately denied a freedom of information request from the NYCLU regarding the office’s use of Stingray cell phone trackers.  The judge ordered the sheriff to release the documents that had been inappropriately withheld.

Yesterday, the sheriff complied and the documents prove exactly what transparency and civil liberties advocates have been arguing: these devices are often deployed in complete secrecy and with no judicial oversight.

Per the NYCLU press release:

The Sheriff’s Office used Stingrays at least 47 times between May 1, 2010, and October 3, 2014, including to assist other law enforcement departments like the Monroe County Sheriff’s Office. It appears that the office only obtained a court order in only one of those 47 circumstances, in October 2014, and even in that case it was not a warrant but a lower level court order (called a “pen register” order). This contradicts what the sheriff said to a local reporter and undermines what he said to the legislature – that this device is being used subject to “judicial review.”

Further, the federal government is directly complicit in this secrecy, forcing law enforcement agencies to sign non-disclosure agreements in exchange for use of the devices.  The agreements forbid participating law enforcement agencies from disclosing the nature of these devices, even to judges and defense attorneys.  The agreement even contains provisions giving the FBI the authority to compel prosecutors to drop criminal cases rather than reveal the Stingray use to the court.

From the non-disclosure agreement:

In addition, the Erie County Sheriff’s Office will, at the request of the FBI, seek dismissal of the case in lieu of using or providing, or allowing others to use or provide, any information concerning the Harris Corporation wirelesss collection equipment/technology, its associated software, operating manuals, and any related documentation (beyond the evidentiary results obtained through the use of the equipment/technology), if using or providing such information would potentially or actually compromise the equipment/technology. This point supposes that the agency has some control or influence of the prosecutorial process.  Where such is not the case, or is limited so as to be inconsequential, it is the FBI’s expectation that the law enforcement agency identify the applicable prosecuting agency, or agenices, for inclusion in this agreement.

This is not just idle boilerplate.  Although that provision of the agreements has until now been redacted, civil liberties advocates have long assumed its existence based on several instances of serious criminal charges being dropped when scrupulous defense attorneys or judges start inquiring into how police were able to locate suspects. Perhaps more troubling, the conditional nature of that provision implies that police and prosecutors can use information gleaned from these devices unless the judge or opposing counsel asks the right questions to expose the Stingray use.  That implication raises a troubling question: how often has evidence from illicit Stingray use been allowed to stand because neither the judge nor the lawyer knew what to look for?

A legitimate justice system requires transparency and accountability.  It requires checks and balances and respect for the rule of law. With every revelation about the widespread and unfettered use of cell site simulators by police, it becomes more clear that this program flies in the face of our cherished principles of justice.

 

Immigration and Equality

Now that a federal judge has enjoined President Obama’s unilateral amnesty, immigration reform will have to be achieved the old-fashioned – and constitutional – way: by compromise with Congress. A grand bargain is not impossible, but it will require a broad re-framing of the issues and a clear sense of what is at stake. For one thing, any such bargain should end, once and for all, governmental discrimination on the basis of race.

Affirmative action and immigration might, at first glance, appear unrelated; in fact, they are profoundly and perversely intertwined. It is often said that anti-immigration sentiment is driven by a fear of competition; Americans are said to fear competing against new immigrants for jobs, for contracts, for educational opportunities. This account leaves out a crucial part of the story: Americans have never lacked competitive spirit or feared a fair fight. What many Americans fear is that these competitions will, in fact, be rigged from the outset. The sad fact is that they are right.

Religious Liberty’s Denouement in Indiana

With the Final Four set to begin in Indianapolis this evening, maybe we can shift our attention from the anti-discrimination protests there that have consumed our attention all week to the games. But maybe not, since protests are expected even at the games. The left just doesn’t know when to stop. That’s the subject of the lead editorial in today’s Wall Street Journal, “Liberal Intolerance, Round II: To stamp out cultural dissent, the left is willing to stomp on religious liberty.” Here’s a sense of what the week’s been like for ordinary Hoosiers:

Take the family-owned pizza parlor in Walkerton, Indiana—population 2,144. A local TV reporter went door-to-door asking restaurants how they would respond if they were asked to cater a gay wedding. The innocents at Memories Pizza, who had never faced the question in daily business, said that they would prefer not to participate in a hypothetical same-sex pizza party ceremony. Cue the national deluge.

They were suddenly converted into the public face of antigay bigotry across cable news and the Internet, and became the target of a social-media mob, as if they somehow screened for sexual orientation at the register. The small business closed amid the torrent, although a crowd-funding counter-reaction supplied tens of thousands of dollars in recompense.

Tens of thousands? The South Bend Tribune reports that the fund stood at $842,000 as of this morning.

Faithful readers of Cato@Liberty know our views on the underlying issue. Indeed, Cato’s amicus brief supporting those now pressing the Supreme Court to prohibit states from discriminating against same-sex marriages has just generated a brief from conservative scholars who direct their arguments entirely against ours: A most unusual move, they must be concerned.

But while we support same-sex marriage, we support religious liberty every bit as much. This week I addressed that issue here and here. And The National Interest has just put up a longer piece of mine that puts the whole freedom of association issue in perspective.

 

Arizona Governor Vetoes Bill Hiding the Names of Police Involved in Shootings

Arizona Gov. Doug Ducey (R) has vetoed a bill that would have prohibited disclosure of the names of police officers involved in shootings for 60 days, citing the potential unintended consequences of such a law:

“I know the goal of this legislation is to protect officers and their families, and it’s a goal I share… Unfortunately, I don’t believe this bill in its current form best achieves the objectives we share, and I worry it could result in unforeseen problems.”

While proponents argued that the bill was necessary to prevent officers from being unfairly targeted by mass protests or threatened with violence, opponents–including some in law enforcement–argued that transparency considerations and community relations outweighed that concern.

Roberto Villaseñor, chief of the Tucson Police Department and president of the Arizona Association of Chiefs of Police, told the New York Times:

“To add another law that’s going to add distrust or adversarial relationships is not the way to go. Why do I cloak it in secrecy for 60 days, and now I’m going to have this story run twice? Sixty days later, we’re going to rehash it again.”

The opaqueness of government behavior, especially surrounding the government’s use of violence, has eroded the rule of law and the relationship between civilians and police around the country.  Transparency about police shootings is a necessity for effective reform and accountability. We need more transparency, not less. 

Good for Governor Ducey and the Arizona law enforcement officials who stood against more police secrecy. 

When It Comes to Police Body Cameras, Federalism Is Key

Last week, Sens. Rand Paul (R-KY) and Brian Schatz (D-HI) introduced legislation that would create a pilot grant program to assist state and local police agencies in leasing or purchasing body-worn cameras. The bill requires states, “units of local government,” and Indian tribes wishing to receive a full grant to commit to a range of reforms related to privacy, police practice, and data storage.

The bill presents something of a dilemma for libertarians like me, who want increased accountability and transparency within law enforcement but are also hesitant to support federal policy prescriptions for issues such as policing, which are often best handled at the local level. Given the worrying body camera legislation that has been proposed by some state lawmakers, it is tempting to think that a conditional federal police body camera grant program might be the best way to ensure that local government agencies implement worthwhile body camera policies. Yet Paul and Schatz’s legislation shows that police body camera policy ought to be addressed at the state and local level.

This is not to say that the legislation does not contain some good policy requirements. If the bill were to be enacted as written, an entity (state, unit of local government, or Indian tribe) interested in receiving a full grant would have to demonstrate a commitment to implementing some sensible policies before officers use the body cameras.

Among those policies is the development of public regulations and protocols relating to the use of body cameras, the storage of body camera footage, and the protection of the privacy rights of individuals recorded by body cameras. This is an important requirement. As the ACLU discovered last year, some law enforcement agencies do not have body camera policies, and some of those that do choose not to release them.

Yet while the legislation does make committing to publishing policies related to the release of body camera footage a condition for receipt of a full grant, it does not require that these policies advance transparency and accountability. The legislation only requires that a requesting entity develop and publish policies for “the release of any data collected by a body-worn camera in accordance with the open records laws, if any, of the State” (my bolding).

This is worrisome considering that, according to the AP, “Lawmakers in nearly a third of the states have introduced bills to restrict public access to recordings from police officer-worn body cameras.” Some of these bills, such as Michigan’s HB 4234 and Florida’s SB 248, aim to protect citizens from privacy violations by exempting police body camera footage of the interior of private homes from disclosure. SB 248 extends this protection to footage captured at the site of medical emergencies and on the property of social service, mental health, and health care facilities. However, other legislation such as North Dakota’s HB 1264, which has been passed by the North Dakota House and Senate, exempts body camera footage “taken in a private place” from public record requests. New Hampshire’s HB 617 would make police body camera footage exempt from public record requests, though HB 617 would allow for citizens who pay for the recording to access body camera footage in which they can be seen or heard. (HB 617 would also require state police to use body cameras and to record all interactions with the public).