Qualified immunity, explained

From Slate: Should Police Bodycams Come With Facial Recognition Software? A technology embraced to protect citizens could have major civil liberties implications.

The latest from the intersection of technology and civil liberties.

How are due process and privacy rights secured in during a time when its so easy to identify and track people?

- Click here for the article.

Imagine you’re at a large protest, thousands of demonstrators gathered. Police stand nearby, tasked with protecting those speaking out and maintaining safety. At each officer’s chest, a red light shows a body camera is recording, ensuring the officers do not engage in improper conduct. But what if that red light also meant a program was scanning, recording, and cataloging the face of every person in the crowd. Would you feel safe?

It would be a sad irony if police body cameras, brought into communities to check police power, became tools that improperly expanded it. But as they are rapidly being deployed in cities across the country, often without clear policies designed to protect privacy, we may be failing to fully consider the risks of pervasive surveillance these devices pose. And in addition to existing concerns, a huge new issue is rapidly approaching: body cameras that use facial recognition technology.

And body cameras that incorporate facial recognition technology are certainly on the horizon. This summer Taser International, by far the nation’s biggest producer of police body cameras, announced plans to incorporate facial recognition technology into its cameras in the future. And so far, not a single city places adequate limits on its use. Even if these enhanced technologies don’t lead to a world where “every cop will be RoboCop,” as Taser vice president Steve Tuttle once suggested, we need to talk about the real ways in which facial recognition devices could be used—and misused—and what limits should be put on their use.

. . . The least controversial use of facial recognition would be to identify individuals in relation to emergencies—setting police cameras to scan the city for the face of a missing child or a suspect in an ongoing kidnapping during an Amber Alert, for example, or for an active shooter. It’s hard to imagine persuasive objections to this specific use of the technology, since responding to an imminent threat is a commonly accepted exception to Fourth Amendment rules that generally require warrants for certain police action.

Law enforcement agencies might also use this biometric data to try to identify other fugitives at large in nonemergency situations—sending out face prints of individuals that have outstanding arrest warrants to body cameras, which could then scan police footage for chance matches. Such a system could take “Most Wanted” posters into the 21st century and help catch dangerous fugitives much more efficiently. The requirement of an active warrant would also give judicial oversight to the technology’s deployment.

. . . Beyond ability to target anyone with an outstanding warrant, this technology could also offer a powerful new means for location tracking and monitoring of the entire public. Law enforcement agencies commonly use location tracking for investigations—following an individual in public, attaching GPS tracking devices to cars, or obtaining cellphone locations from telecommunications companies, for example. But each of these methods requires intensive resources or, with some methods, a warrant.

By enhancing police-worn body cameras with facial recognition technology, beat cops themselves could be turned into a citywide mass automated tracking tool. But without judicial oversight, location tracking will not necessarily be limited to suspected wrongdoers. Law enforcement could use the technology to identify, monitor, and intimidate individuals involved in nonillicit activities absent any judicial review or prior arrests.

Most disturbingly, this could occur not only by tracking an individual, but also by targeting sensitive locations or events. Think if police were able to review body camera footage and use facial recognition to catalog every participant in a protest or every person that walked into a local mosque. Facial recognition and body cameras could quickly create a much more powerful, digital version of J. Edgar Hoover’s secret “enemies” lists.

From Fortune: Court Rules That Medical Marijuana Card Holders Can't Buy Firearms

It'll be fun following the fallout of this one - hat tip to JS.

- Click here for the article.

Because it can make them “irrational and unpredictable.”

If you have a medical marijuana card, the 9th U.S. Circuit Court of Appeals says that you can’t buy a gun.

The court ruled 3-0 on Wednesday that a ban preventing medical marijuana card holders from purchasing firearms is not in violation of the Second Amendment, the Associated Press reports. There are nine western states under the appeals court’s jurisdiction, including Nevada, where the case originated.

A lawsuit was filed in 2011 by Nevada resident S. Rowan Wilson after she tried to purchase a gun for self-defense and was denied based on a federal ban on the sale of guns to users of illegal drugs. Though marijuana has been legalized in some places on a state-by-state basis, it remains illegal under federal law. The court maintained that drug use “raises the risk of irrational or unpredictable behavior with which gun use should not be associated.”

Wilson claimed that she doesn’t actually use marijuana, she simply obtained a card to show her support for its legalization. The appeals court agreed with guidelines from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives that firearms sellers should assume that medical marijuana card holders use the drug.

From the Texas Tribune: Unholstered - When Texas Police Pull the Trigger

Among the criminal justice reforms that might be considered in the 85th session of the legislature is shooting by police. The trouble is that very little data exists about these incidents. It's tough to solve a problem little is known about.

- Click here for the report.

From the intro:

Police officers in Texas unholstered their guns and fired at suspects in at least 656 incidents between 2010 and 2015.

At least.

That total is undoubtedly incomplete. It includes only 36 of the state's largest cities from which The Texas Tribune was able to obtain information, often by prying it out of reluctant departments through public records requests. The level of detail provided for individual incidents varied by city, and some said they don't track data on shootings in which no one is hurt.

If information is key to understanding when and why Texas police officers shoot at people, the public, police officials and state lawmakers are working with woefully incomplete facts and figures, and are left to guess at the realities of police use of lethal force. Because there is no consistent, statewide effort to collect such data, discussions and policy debates are largely driven by the most recent, most controversial shootings.Shelby TauberA police officer patrols downtown Austin.

Anyone interested in knowing, for instance, whether Texas police disproportionately shoot at minorities, or are good at de-escalating situations without resorting to lethal force, are flying blind.

“When we don’t have a really solid knowledge base or data to pull from, people will tend to fall back on anecdotal cases they hear reported in the media,” said Kevin Buckler, a criminal justice professor at the University of Houston.

The Texas Tribune spent almost a year attempting to collect information on police shootings from departments in the state’s 36 largest cities, which have a population of 100,000 or more, and was able to confirm 656 fatal and nonfatal shooting incidents involving 738 individuals that occurred between 2010 and 2015. Those 36 cities make up almost half of the state’s population.

From RT: Shooting the messenger: Citizen journalists jailed for recording police

This is a little scary. I imagine a Supreme Court case is likely in the near future.

- Click here for the article.

Police practices are under fire as more and more recordings of excessive force and racist behavior surface. Some police departments have responded by trying to work with communities to regain trust lost, while others try to silence whistle blowers.

The availability of smartphones and cameras has empowered citizens to become guerrilla journalists who feel protected by the First Amendment. However, many have been shocked to discover revealing police misconduct may result in being targeted and harassed by law enforcement.

Filmmakers David Felix Sutcliffe and Laura Poitras have asked the documentary community to show their solidarity for civilian journalists by signing a petition. So far, the petition has at least 306 names, including multiple Academy Award-winning and nominated documentarians.

The Electronic Frontier Foundation has endorsed their petition, saying in a statement, “Arrests of grassroots journalists who record police activities implicate not only the 1st and 14th Amendments to the U.S. Constitution, but also the very legitimacy of our legal system, which grounds its claim to power in impartiality. Yet, around the country, the law has subjected to penalties people pursuing constitutionally protected activities that enhance transparency, while turning a blind eye to the violence prompting residents to place themselves at risk.”

The petition asks the Department of Justice (DOJ) to investigate the arrests of civilian journalists who film police actions. This shouldn’t be a difficult request, because the DOJ has acknowledged it as a problem in prior investigations.

In the DOJ’s 2015 report on the Ferguson Police Department (FPD), they wrote, “FPD officers also routinely infringe on the public’s First Amendment rights by preventing people from recording their activities,” and “the federal courts of appeal have held that the First Amendment ‘unambiguously’ establishes a constitutional right to videotape police activities.”

Despite this, citizens who record police often find themselves in the crosshairs. For example, the day after Chris LeDay filmed the death of Alton Sterling, he was detained after police told him that he “fit the description” of someone wanted on battery charges. He would end up spending the night in jail for unpaid fines, Complex reported.

From ABC News: Paper: Federal Civil Rights Cases Against Officers Are Rare

For our look at due process and civil rights - where 2305 and 2306 overlap. It's tough to prosecute police officers for violating civil so often it doesn't even happen.

- Click here for the article.

The study it refers to can be found here:

- Trib investigation: Cops often let off hook for civil rights complaints.

Federal prosecutors declined to pursue civil rights allegations against law enforcement officers 96 percent of the time since 1995, a newspaper found, with most experts blaming the low prosecution rate on the difficulty of winning such cases.

The Pittsburgh Tribune-Review said the 12,703 potential civil rights violations turned down nationwide out of 13,233 total complaints from 1995-2015 include high-profile incidents in Chicago, New York and Ferguson, Missouri, but also thousands of incidents the public knows little about.

It said the most frequent reasons cited for declining civil rights complaints involving officers were weak or insufficient evidence, high standards of proof established by Supreme Court rulings, and policies set by the Justice Department.

Many legal and civil rights experts told the newspaper ( http://bit.ly/252UQoo ) that convicting a police officer of a civil rights violation is one of the toughest challenges a prosecutor can face. But some criminal justice experts also said the Justice Department needs to put more resources into the cases, and suggested that the typical partnering of police and prosecutors affects decision-making.

"The standard is high and challenging," said Alan Vinegrad, a former federal prosecutor in Brooklyn, New York, who oversaw criminal civil rights cases.

"It's got to be a willful deprivation of rights, meaning the police officer intended and wanted to either kill or injure the person," said Vinegrad, now a partner at the law firm of Covington & Burling LLP in New York. "Not just 'it was reckless or negligent' or anything like that."

The U.S. attorney's office in Pittsburgh will open files for even minor accusations that the FBI investigates against a police officer, said Steve Kaufman, chief of the office's criminal division. But, he said, "it's one of the most difficult cases to gather sufficient evidence to prove it beyond a reasonable doubt at trial."

This Day in History: Lead Story 1866 First U.S. train robbery

I love this stuff. It doesn't specifically mention the development of national law enforcement agencies - most law enforcement was handled by the railroad companies themselves, but calls to do so followed the increase in robberies of moving trains.

- Click here for the story.

On this day in 1866, the Reno gang carries out the first robbery of a moving train in the U.S., making off with over $10,000 from an Ohio & Mississippi train in Jackson County, Indiana. Prior to this innovation in crime, holdups had taken place only on trains sitting at stations or freight yards. 

This new method of sticking up moving trains in remote locations low on law enforcement soon became popular in the American West, where the recently constructed transcontinental and regional railroads made attractive targets. With the western economy booming, trains often carried large stashes of cash and precious minerals. The sparsely populated landscape provided bandits with numerous isolated areas perfect for stopping trains, as well as plenty of places to hide from the law. Some gangs, like Butch Cassidy’s Wild Bunch, found robbing trains so easy and lucrative that, for a time, they made it their criminal specialty. Railroad owners eventually got wise and fought back, protecting their trains’ valuables with large safes, armed guards and even specially fortified boxcars. Consequently, by the late 1800s, robbing trains had turned into an increasingly tough and dangerous job.

For more:

- Early Days of Railroad Policing to present.
- History of the Railroad Special Agent.

From the Atlantic: How a City With Two Dozen Law Enforcement Agencies Handles a Huge Crisis

How do 27 law enforcement agencies with overlapping jurisdiction (as exists in DC) respond efficiently to an event like the Navy Yard shooting?

Here's an attempt at an answer:

"Dispatch gets the 911 call saying shots have been heard or fired, and the closest police units respond. Park Police gets a call as well and they show up too," [Homeland Security and Emergency Management Agency Director Chris] Geldhart says. Those earliest responders, no matter their rank, are responsible for setting up an "Incident Command System," which the Department of Homeland Security describes as an "incident management approach" that:

• Allows for the integration of facilities, equipment, personnel, procedures and communications operating within a common organizational structure.
• Enables a coordinated response among various jurisdictions and functional agencies, both public and private.
• Establishes common processes for planning and managing resources.

Every law enforcement agency in D.C. knows how to set up an ICS, according to Geldhart. As representatives from more agencies begin to show up, the responders rely on interoperable radio systems to keep everyone on the same page. These radios allow users to talk across agencies, though Geldhart did say that Navy Yard police were not able to communicate via radio with people outside the building (Congress is looking into this claim, as well as a report that Capitol Police were told to stand down). Interviews and intelligence gathered by various agents, largely from witness and survivor interviews, is relayed to the ICS through the radios, and then vetted.

From Forbes: How The Boston Marathon Bombing Investigation Will Be Conducted

Forbes offers a helpful primer on how the different levels of government will respond to yesterday's bombing.

Some more:

- CNN reports that the FBI will lead the investigation.
- The Huffington Post concurs.

Should Forensics be Separated from Law Enforcement?

Radley Balko:

After countless scandals in recent years, the problems with America's forensics system are finally getting some national attention. In December, Sen. Patrick Leahy (D-Vt.) introduced a bill to reform the country's crime labs. In January, ProPublica and Frontline teamed up for a year-long investigation into the ways criminal autopsies are conducted across the country. In North Carolina, the state legislature is considering reforms to that state's crime lab, which was rocked by a damning 2010 investigation commissioned by the state attorney general and a follow-up report by the Raleigh News and Observer that uncovered widespread corruption, hiding of exculpatory findings, and a pro-prosecution bias among crime lab workers. All of this comes on the heels of a congressionally commissioned 2009 report from the National Academy of Sciences that found expert witnesses in many areas of forensics routinely give testimony that is not backed by good science.

So the good news is that we are starting to see some skepticism, even some outrage, about the way forensic science is used in criminal cases. The bad news is that the solutions politicians and policy makers are proposing, while better than nothing, do not really address the primary problem. That problem is perverse incentives.

To be sure, there are other problems with the forensics system. For starters, many forensic disciplines, such as hair and carpet-fiber analysis, blood spatter analysis, and especially bite mark analysis, have not been subject to rigorous scientific testing. Even fingerprint analysis is not the sure thing it was once thought to be. Many of these fields were either invented by law enforcement agencies or honed and refined by them. The fields have not been subjected to peer review, and the methods by which, for example, a carpet-fiber or ballistics analyst produces a "match" are not blind. On the contrary, the analyst often knows the details of the crime and which sample implicates the suspect. When done this way, these analyses are not science, but they are often presented in court as if they were.

Does the Constitution Shield Members of Congress From Criminal Investigations?

According to the Washington Post, that may be the consequence of recent readings of the clause in the Constituton that states that members cannot be questioned in other places for things they say on the floor of Congress and are privileged from arrest when going to and from Congress.

Do Cameras Affect Police Behavior?

Speaking of the media . . . though this story is about reality shows, not newspaper journalism. Do we act differently when the camera is on us? Do police? Considering that some want the Supreme Court to be televised, does this story suggest this would be a bad idea?

Have Attitudes About Surveillance Cameras Changed?

Once seen as contrary to civil liberties -- living in a police state and all -- the Times Square near miss seems to have led to a reappraisal of the relative merits of police surveillance cameras. See the third lesson from the Times Square bomb.

Texas Forensic Science Commission

A state bureaucratic agency in the news recently:

- Website: Texas Forensic Science Commission
- Relevant Legal Code: Texas Code of Criminal Procedure - Article 38.01. Texas Forensic ...
- Current controversy: Two Texans sent to death row by bad science
- Current controversy: Texas: Governor Fires Chairman of Forensic Science Committee

OGs and the Expansion of National Law Enforcement Power During the Great Depression

This may be a bit lowbrow, but I've been flipping through cable and stumbled across a History Channel piece on the history of crime, which put its hook in me and I watched for a while. One of the points made in its coverage of crime in the summer of 1933, during the Great Depression, was that local law enforcement quickly became incapable of fighting back against increasingly better armed gangsters.

Small towns were selected principally due to their inability to protect themselves. Many of the names were familiar with during this time (Dillinger, Bonnie and Clyde, etc...) were in operation at the same time period, which caught the attention of the national media. For an ambitious bureaucrat like J. Edgar Hoover this was a perfect opportunity to expand his institution's authority. Though law enforcement had previously been primarily a state and local domain - a reserved power - support increased for the national involvement in order to assist local authorities, and the increased focus on criminality led to popular support. Since banks had been robbed, and the crimes crossed state borders, the constitution's commerce clause was used as providing justification for the expansion of power.

The point I'm making is that quite often when people discuss constitutional issues, especially those involving expansions of national power, we tend to only focus on the textbook problems associated with how terminology is interpreted and forget about the pragmatic problems faced at different points in our history and how expansions of national authority were considered to have been practical solutions to those problems.

File this under ideology versus pragmatism.

Who Protects You From the Police?

We've been discussing paper assignments in my 2301 and 2302 classes and some students have expressed interests in pursuing questions regarding aggressive police behavior. While we like the idea that the police around to save us from bad guys, we're stuck if the bad guys turn out to be the police themselves.

Here's a disturbing Washington Post story about suspicions that some DC police would cause problems at the inauguration:

In the days leading up to President Obama's inauguration, U.S. law enforcement agencies huddled regularly in an effort to minimize any possible security risk to an event that promised record crowds for the country's first black president. But one agenda item led authorities to a target close to home: the ranks of the U.S. Capitol Police.

An FBI investigation that included taped surveillance had placed two off-duty veteran Capitol Police officers in the company of individuals whose racial views and capacity for violence were under scrutiny. Although the recorded discussion did not center on Obama, federal law enforcement officials wanted to ensure that the officers were not on duty covering the Capitol, where the president took the oath of office, according to two sources involved in the matter.