Topic: Law and Civil Liberties

Event: You Have the Right to Remain Innocent

The police are supposed to protect and serve the public.  Most police procedural dramas on television–perennially among the most popular shows for decades–paint a picture of officers working diligently and honestly to catch the bad guys. Many children are taught that police officers are among the most trusted members of the community and that there is no need to fear them. But is that how police work in real life?

Not exactly.

Police officers are trained to extract information from people whether or not they are criminal suspects. Indeed, one of the more common tricks officers use is getting people to give up the right to refuse a search of their person or property. With consent, police officers can rummage through your pockets and cars–or even your homes–looking for a reason to arrest you. 

For this reason, talking to police when you don’t have to is often a bad idea. So many of the wrongfully convicted people in this country didn’t exercise their right to be silent and were put away because they didn’t think they had anything to hide. How wrong they were.

On Thursday, Cato is hosting an event with Prof. James Duane, the law professor whose lecture to NEVER talk to the police went viral. He’s here to discuss his book on self-incrimination and the criminal justice system, You Have the Right to Remain Innocent. The book is engaging, informative, and easy to read. Cato adjunct Randy Barnett of Georgetown University Law Center will be commenting on the book and it will be moderated by our own Tim Lynch. 

Copies of the book will be sold at the event. You can register for the free event and lunch here. You can join the discussion online using the Twitter hashtag #6ARights. 

Clinton’s Domestic Surveillance Policy: Duplicitously Neocon As It Ever Was

The Guardian has a story out today outlining–to the extent that the Clinton campaign would do so–what the ex-Secretary of State would do vis a vis national security policy if she becomes the next occupant of the Oval Office. For those concerned with our out-of-control, post-9/11 Surveillance State, these three paragraphs should give you pause:

Domestically, the “principles” of Clinton’s intelligence surge, according to senior campaign advisers, indicate a preference for targeted spying over bulk data collection, expanding local law enforcement’s access to intelligence and enlisting tech companies to aid in thwarting extremism. 

The campaign speaks of “balancing acts” between civil liberties and security, a departure from both liberal and conservative arguments that tend to diminish conflict between the two priorities. Asked to illustrate what Clinton means by “appropriate safeguards” that need to apply to intelligence collection in the US, the campaign holds out a 2015 reform that split the civil liberties community as a model for any new constraints on intelligence authorities. 

The USA Freedom Act, a compromise that constrained but did not entirely end bulk phone records collection, “strikes the right balance”, Rosenberger said. “So those kinds of principles and protections offer something of a guideline for where any new proposals she put forth would be likely to fall.”

One Police Video, Many Interpretations

Members of the public should be able to access the body camera footage related to Tuesday’s police-involved shooting that left Keith Scott dead and prompted violent protests in Charlotte, North Carolina. But we shouldn’t be under any illusion that everyone who watches the footage will arrive at the same opinion about the police officer’s behavior. Two people can watch the same video and come to different moral conclusions. A study on video footage that proved instrumental in a Supreme Court case helps illustrate this fact.

In Scott v. Harris (2007) the Supreme Court considered whether a police officer (Scott) had violated the Fourth Amendment when he deliberately ran Harris’ car off the road during a high-speed chase, which resulted in Harris being left a quadriplegic. An 8-1 majority found that, “a police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”

Against Judicial Restraint

That’s the provocative title of my new essay in National Affairs, out this week. I’m mostly addressing conservatives who believe that judges ought to be “restrained,” as opposed the in contradistinction to the “liberal judicial activism” of the Supreme Court in the 1960s and ’70s. It’s puzzling that the attack would be that judges should have a bias towards inaction, towards sitting on their hands, when it’s precisely this deference to the political branches that allowed progressives to rewrite the Constitution during the New Deal. As I explain:

Under the founders’ Constitution, under which the country lived for its first 150 years, the Supreme Court hardly ever had to strike down a law. The Congressional Record of the 18th and 19th centuries shows a Congress discussing whether legislation was constitutional much more than whether it was a good idea. Debates focused on whether something was genuinely for the general welfare or whether it served only a particular state or locality. “Do we have the power to do this?” was the central issue with any aspect of public policy… .

Let Public See Charlotte Shooting Body Cam Footage

A recent police-involved shooting in Charlotte, North Carolina helps illustrate the importance of body cameras and why North Carolina’s body camera law is misguided and unhelpful. Last night, Governor Pat McCrory declared a state of emergency following protests over the shooting of Keith Scott, who was shot and killed by an officer on Tuesday. The protests have left one citizen on life support and numerous police officers injured. The National Guard has been deployed. Making footage of the shooting publicly available would show that the Charlotte-Mecklenburg Police Department is dedicated to accountability and transparency while providing Charlotte residents with valuable information about the police who are tasked with protecting their rights.

Although the officer who shot Scott was not wearing a body camera, three officers at the scene were. There are concerns associated with making this body camera footage available to the public. But in my Cato Policy Analysis “Watching the Watchmen” I outline policies that I think balance citizens’ privacy with the need to increase accountability and transparency.

Many routine police interactions with citizens present significant privacy concerns. What about when police talk to informants, children, or victims of sexual assault? What if a citizen is naked, or is the victim of a traffic accident? What about footage that shows someone’s bedroom or living room? Police regularly interact with people experiencing one of the worst days of their lives, and it would be irresponsible to think that a desire to increase police accountability outweighs these privacy concerns.

Nonetheless, the Scott shooting is an example of the kind of police encounter that presents few privacy concerns. Scott was outside, in a parking lot. He and the responding officers did not have a reasonable expectation of privacy. The shooting, like the Walter Scott shooting, could have been filmed by passerbys. There is no indication from the reporting that I’ve seen suggesting that Scott was naked, intoxicated, or blurting out confidential information. According to Charlotte-Mecklenburg Police Chief Kerr Putney, Scott refused repeated demands to put down a gun. Scott’s family claim he was reading a book in his vehicle.  

An upcoming North Carolina law heavily restricts access to body camera footage, requiring members of the public to have a court order before accessing video. Despite the fact that the law doesn’t come into effect until next week, Charlotte-Mecklenburg Police Chief Kerr Putney has mentioned it while discussing his decision not to release the footage. However, he has stated that Scott’s family will be able to view the relevant footage, which he claims does not show Scott definitively pointing a gun at anyone.

Footage of the Keith Scott shooting is not the kind of footage sometimes mentioned in discussions about which body camera footage should be exempt from public release requests. Scott was outside, and his shooting is clearly of interest to the public. As such, footage of the shooting should be released.

Cities Seek Police Surveillance Transparency and Oversight

Today, legislative efforts began in eleven cities (see right) aimed at requiring police departments to be more transparent about the surveillance technology they use. The bills will also reportedly propose increased community control over the use of surveillance tools. These efforts, spearheaded by the ACLU and other civil liberty organizations, are important at a time when surveillance technology is improving and is sometimes used without the knowledge or approval of local officials or the public.

Many readers will be familiar with CCTV cameras and wiretap technology, which police use to investigate crimes and gather evidence. Yet there is a wide range of surveillance tools that are less well-known and will become more intrusive as technology advances.

Facial recognition software is already used by some police departments. As this technology improves it will be easier for police to identify citizens, especially if it is used in conjunction with body cameras. But our faces are not our only biometric identifiers. Technology in the near future will make it easier to identify us by analyzing our gait, voice, irises, and ears.

Using Persistent Surveillance to Watch the Watchmen

Yesterday, police in Oklahoma released aerial and dash camera footage of an unarmed man named Terence Crutcher being shot by an officer as he stood beside his SUV. Tulsa Police Chief Chuck Jordan described the footage as “very difficult to watch,” and the officer who shot Crutcher is on administrative leave. The aerial footage of the shooting ought to remind us how important transparency policy is in the age of the “Pre-Search” and the role persistent aerial surveillance may come to play in police misconduct investigations.

Reporting from earlier this year revealed that police in Baltimore have been testing persistent aerial surveillance technology, described by its developer as “Google Earth with TiVo,” which allows users to keep around 30 square miles under surveillance. The technology, developed by Persistent Surveillance Systems (PSS), has helped Baltimore police investigate thefts and shootings. But the trial was conducted in secret, without the knowledge of key Baltimore city officials, and was financed by a billionaire couple.

Shortly after news of the persistent surveillance in Baltimore was reported I and others noted that it should cause concern. Citizens engaged in lawful behavior deserve to know if their movements are being filmed and tracked by police for hours at a time. Yet, as disturbing as the secretive persistent surveillance in Baltimore is, technology already exists that is far more intrusive.