California: No Face Recognition on Body-Worn Cameras

EFF has joined a coalition of civil rights and civil liberties organizations to support a California bill that would prohibit law enforcement from applying face recognition and other biometric surveillance technologies to footage collected by body-worn cameras.

About five years ago, body cameras began to flood into police and sheriff departments across the country. In California alone, the Bureau of Justice Assistance provided more than $7.4 million in grants for these cameras to 31 agencies. The technology was pitched to the public as a means to ensure police accountability and document police misconduct. However, if enough cops have cameras, a police force can become a roving surveillance network, and the thousands of hours of footage they log can be algorithmically analyzed, converted into metadata, and stored in searchable databases.

Today, we stand at a crossroads as face recognition technology can now be interfaced with body-worn cameras in real time. Recognizing the impending threat to our fundamental rights, California Assemblymember Phil Ting introduced A.B. 1215 to prohibit the use of face recognition, or other forms of biometric technology, such as gait recognition or tattoo recognition, on a camera worn or carried by a police officer.

“The use of facial recognition and other biometric surveillance is the functional equivalent of requiring every person to show a personal photo identification card at all times in violation of recognized constitutional rights,” the lawmaker writes in the introduction to the bill. “This technology also allows people to be tracked without consent. It would also generate massive databases about law-abiding Californians, and may chill the exercise of free speech in public places.”

Ting’s bill has the wind in its sails. The Assembly passed the bill with a 45-17 vote on May 9, and only a few days later the San Francisco Board of Supervisors made history by banning government use of face recognition. Meanwhile, law enforcement face recognition has come under heavy criticism at the federal level by the House Oversight Committee and the Government Accountability Office.

The bill is now before the California Senate, where it will be heard by the Public Safety Committee on Tuesday, June 11.

EFF, along with a coalition of civil liberties organizations including the ACLU, Advancing Justice – Asian Law Caucus, CAIR California, Data for Black Lives, and a number of our Electronic Frontier Alliance allies have joined forces in supporting this critical legislation.

Face recognition technology has disproportionately high error rates for women and people of color. Making matters worse, law enforcement agencies conducting face surveillance often rely on images pulled from mugshot databases, which include a disproportionate number of people of color due to racial discrimination in our criminal justice system. So face surveillance will exacerbate historical biases born of, and contributing to, unfair policing practices in Black and Latinx neighborhoods.

Polling commissioned by the ACLU of Northern California in March of this year shows the people of California, across party lines, support these important limitations. The ACLU’s polling found that 62% of respondents agreed that body cameras should be used solely to record how police treat people, and as a tool for public oversight and accountability, rather than to give law enforcement a means to identify and track people. In the same poll, 82% of respondents said they disagree with the government being able to monitor and track a person using their biometric information.

Last month, Reuters reported that Microsoft rejected an unidentified California law enforcement agency’s request to apply face recognition to body cameras due to human rights concerns.

“Anytime they pulled anyone over, they wanted to run a face scan,” Microsoft President Brad Smith said. “We said this technology is not your answer.”

We agree that ubiquitous face surveillance is a mistake, but we shouldn’t have to rely on the ethical standards of tech giants to address this problem. Lawmakers in Sacramento must use this opportunity to prevent the threat of mass biometric surveillance from becoming the new normal. We urge the California Senate to pass A.B. 1215.

via Updates

June 10, 2019 at 07:17PM

Details of Justice Department Efforts To Break Encryption of Facebook Messenger Must Be Made Public, EFF Tells Court

San Francisco—The Electronic Frontier Foundation asked a federal appeals court today to make public a ruling that reportedly forbade the Justice Department from forcing Facebook to break the encryption of a communications service for users.

Media widely reported last fall that a federal court in Fresno, California denied the government’s effort to compromise the security and privacy promised to users of Facebook’s Messenger application. But the court’s order and details about the legal dispute have been kept secret, preventing people from learning about how DOJ sought to break encryption, and why a federal judge rejected those efforts.

EFF, the ACLU, and Stanford cybersecurity scholar Riana Pfefferkorn told the appeals court in a filing today that the public has First Amendment and common law rights to access judicial opinions and court records about the laws that govern us. Unsealing documents in the Facebook Messenger case is especially important because the public deserves to know when law enforcement tries to compel a company that hosts massive amounts of private communications to circumvent its own security features and hand over users’ private data, EFF said in a filing  to the U.S. Court of Appeals for the Ninth Circuit. ACLU and Pfefferkorn, Associate Director of Surveillance and Cybersecurity at Stanford University’s Center for Internet and Society, joined EFF’s request to unseal. A federal judge in Fresno denied a motion to unseal the documents, leading to this appeal.

Media reports last year revealed DOJ’s attempt to get Facebook to turn over customer data and unencrypted Messenger voice calls based on a wiretap order in an investigation of suspected M-13 gang activity. Facebook refused the government’s request, leading DOJ to try to hold the company in contempt. Because the judge’s ruling denying the government’s request is entirely under seal, the public has no way of knowing how the government tried to justify its request or why the judge turned it down—both of which could impact users’ ability to protect their communications from prying eyes.

“The ruling likely interprets the scope of the Wiretap Act, which impacts the privacy and security of Americans’ communications, and it involves an application used by hundreds of millions of people around the world,” said EFF Senior Staff Attorney Andrew Crocker. “Unsealing the court records could help us understand how this case fits into the government’s larger campaign to make sure it can access any encrypted communication.’’

In 2016 the FBI attempted to force Apple to disable security features of its mobile operating system to allow access to a locked iPhone belonging to one of the shooters alleged to have killed 14 people in San Bernardino, California. Apple fought the order, and EFF supported the company’s efforts. Eventually the FBI announced that it had received a third-party tip with a method to unlock the phone without Apple’s assistance. We believed that the FBI’s intention with the litigation was to obtain legal precedent that it could compel Apple to sabotage its own security mechanisms.

“The government should not be able to rely on a secret body of law for accessing encrypted communications and surveilling Americans,” said EFF Staff Attorney Aaron Mackey. “We are asking the court to rule that every American has a right to know about rules governing who can access their private conversations.

For the motion:


Senior Staff Attorney
Staff Attorney

via Updates

June 12, 2019 at 08:06PM

What In The World Were These Lawyers Thinking?

It’s been a while since I’ve asked the rhetorical question (or at least to me it’s rhetorical): What were these lawyers and judges thinking? Dinosaurs will remember (and maybe millennials if they’ve seen it on YouTube) Jay Leno’s interview with British actor Hugh Grant back in 1995 on the Tonight Show. Most millennials (dinosaurs will) won’t remember that Grant was busted for lewd conduct after being caught with a prostitute in a car in Hollywood (where else?). Jay Leno asked him the question that everyone wanted to ask.

In a situation of “be careful where you point that thing,” a judge in Pennsylvania is on leave while the state investigates the judge’s shooting of her estranged husband in her house.  The judge has a restraining order against the estranged husband and the issue is whether the shooting was justified.

A former (note the use of the term) United States Attorney for the Southern District of Georgia was convicted of two counts of aggravated stalking of his former girlfriend. He’s scheduled to be released from prison this summer, but he will have to find another line of work. The Supreme Court of Georgia has disbarred him. Do you think there’s an anger management problem here?

Let’s add law professors to this “what were they thinking?” question. In an unbelievable mash-up of poor taste and downright unpardonable laziness, a law professor’s exam question asked his students to discuss an incident that was not only in the news, but that killed one of their classmates. You don’t think that the professor could have changed some of the facts and rewritten the question in such a way that the obviousness was not so… obvious? No wonder there’s a perception that law professors are more interested in their own work than in preparing their students for the rigors of practice. Perception equals reality and this is a perfect example. Shame on him.

Two Harvard Law School grads are duking it out in contentious litigation.  Didn’t they learn dispute resolution skills while at Harvard? The lawyers have discussed mediation, but perhaps they need some persuasion to get them to talk.

Why can’t judges just keep quiet, rather than saying inappropriate things that only get them in trouble and cause them to lose a retention election? You can’t get in trouble for not talking. This is the perfect situation of where stifling oneself would have been the right thing to do. And thank you, Your Honor, for suggesting a prostitution defendant, a so-called “health risk,” move out of Illinois, possibly to California.

Meanwhile, in Nashville, more than 200 attorneys have signed a letter calling for an ethics investigation of the Coffee County District Attorney for comments he’s allegedly made, proclaiming that he won’t prosecute domestic violence cases involving same-sex marriages (he believes that there can’t be same-sex marriages and so there’s no domestic in domestic violence) and alleged anti-Muslim comments. Nice to know that someone who is sworn to uphold the law and represent all the people doesn’t think that all of the people deserve to be represented.

An assistant public defender in Southern Illinois was fired because she was not a lawyer. Although she graduated from law school, she failed the bar exam twice. The public defender who hired her never asked for proof of bar passage because that had never been an issue before. It is now. The office’s workload just increased, as it now has to contact all the defendants that she represented. How to explain that snafu?

The last story in this version of “what were they thinking?” hits home because it involves a lawyer I know. I met him soon after he was admitted to the California Bar in 2012.  He was a baby lawyer, who worked with me on a planning subcommittee of a local bar association. I am heartsick at what damage he has brought upon his clients and himself. Named a Southern  California lawyer “Rising Star” for several years, he is now facing up to 20 years (not a typo) in federal prison having pleaded to a $4 million wire fraud charge. The victim of the wire fraud was not his only victim. There were others.

Where and how did he run aground? I could say that I thought he was smart (but apparently too smart for his own good), resourceful (to his clients’ detriment), and a hard worker (he worked hard but apparently not for his clients, who have suffered losses in excess of $4M). He has lost his reputation, he has been disbarred, and he faces substantial prison time. Now it’s all gone to hell and for what? What was he thinking?

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at

via Above the Law

June 12, 2019 at 04:26PM

Spotlight: Prosecuting Lifesavers Exposes Deep Problems With Laws and Their Enforcement

Four women leave water and food in a place where desperately hungry and thirsty people are likely to find them. The hope is to save lives.

Others come along and, sneering, pour out the water. One, laughing, calls it “trash.” Another kicks the jugs, violently. A video capturing these acts on several occasions between 2010 and 2017 is difficult to watch, because the people seem to take so much joy in depriving dying people of water.

These episodes might easily represent the best and worst of humanity, but, according to the federal government, the first violates the law and the second upholds it.

“During the summer of 2017, when temperatures reached triple digits in Arizona, four women drove to a vast desert wilderness along the southwestern border with Mexico” bringing water jugs and canned food, according to Kristine Phillips of the Washington Post. Thousands of people have died while making that trek in Arizona in recent years. Natalie Hoffman, Oona Holcomb, Madeline Huse, and Zaachila Orozco-McCormick, volunteers with the humanitarian group No More Deaths, were later charged with federal misdemeanors. Prosecutors argued that they violated federal law by entering a protected refuge area without a permit and by leaving water and food there. The judge convicted them. “In his verdict, U.S. Magistrate Judge Bernardo Velasco said the women’s actions violated ‘the national decision to maintain the Refuge in its pristine nature.’ Velasco also said the women committed the crimes under the false belief that they would not be prosecuted and instead would simply be banned or fined.” (They were sentenced to probation and were fined.)

“Aid workers say their humanitarian efforts, motivated by a deep sense of right and wrong, have been criminalized during the Trump administration’s crackdown on illegal border crossings. Federal officials say they were simply enforcing the law,” Phillips adds. Catherine Gaffney, another No More Deaths volunteer, said the guilty verdict challenges all “people of conscience throughout the country.” She asked, “If giving water to someone dying of thirst is illegal, what humanity is left in the law of this country?” Federal prosecutors argued, successfully, that the women should have been aware that leaving disposable items at the refuge is a punishable crime, and they admitted to violating federal law.

In Marfa, Texas, a four-time elected prosecutor, Teresa Todd, is under investigation for human smuggling after stopping to help three migrants alongside the road at night in February. “I see a young man in a white shirt. He runs out toward the road where I am,” Todd told NPR. He was pleading for help. “I can’t just leave this guy on the side of the road. I have to go see if I can help.” The young man told Todd that his sister, 18-year-old Esmeralda, was in trouble. “I mean, she can hardly walk, she’s very dazed.” The migrants sheltered in Todd’s car while she sought legal advice from a friend who is the legal counsel for the local U.S. Border Patrol. Before the friend could reply, a sheriff’s deputy showed up. An agent was soon reading Todd her Miranda rights. When Esmeralda reached the hospital, doctors told hershe was on the brink of death. The sheriff of Presidio County defended the action against Todd, saying that anyone with undocumented migrants in their car risks arrest.

Now, another No More Deaths volunteer, college geography instructor Scott Warren, faces three felony charges and up to 20 years in prison, for conspiring to transport and for harboring two Central American men. The men had approached Warren, telling him that they had walked through the desert for two days with almost nothing to eat or drink. Warren shared his dinner with them, and called for medical help.

Many have noted, in response, that these laws are unjust, and that this is as good an occasion for jury nullification as ever existed. But in an op-ed in the Washington Post, Warren takes the discussion further. “Over the years, humanitarian groups and local residents navigated a coexistence with the Border Patrol. … At times, the Border Patrol sought to cultivate a closer relationship. ‘Glad you’re out here today,’ I remember an agent telling me once. ‘People really need water.’” Warren continues: “Those kinds of encounters are rare these days. Government authorities have cracked down on humanitarian aid [and are] aggressively prosecuting volunteers.”

Warren is pointing out that unjust laws are only half the problem. Unjust laws on the books are nothing new. For them to do the most harm, they must be enforced as such. Warren notes that smuggling and harboring laws “have always been applied selectively: with aggressive prosecutions of ‘criminal’ networks but leniency for big agriculture and other politically powerful industries that employ scores of undocumented laborers.”

In these cases, actors appear to have set out to enforce them in an unjust way. The U.S. Attorney’s Office did not have to bring charges, but it seems to have jumped at the chance. Former Attorney General Jeff Sessions ordered border prosecutors to prioritize harboring cases, after which such prosecutions shot up. UN Human Rights experts have urged the government to drop the charges.

Border Patrol did not need to cooperate, but it did. The head of the Border Patrol’s powerful union has publicly denounced the practice of leaving water for migrants in the desert. And Judge Velasco, who convicted the four women for leaving supplies in the desert, also presided over Warren’s case before felony charges were filed. He was found to have had private discussions about the case with prosecutors, without defense present, a serious violation.

Velasco did not need to convict the women. His hands were not tied. In the mid-2000s, he presided over the case of two college-age No More Deaths volunteers, who faced felony harboring charges for driving three sick migrants to a church for medical care. “In the run-up to the trial, Velasco batted away one pretrial defense motion after another. But once Collins, the district judge, took over, the case was dismissed,” reports Ryan Devereaux for The Intercept. “Efforts to prosecute No More Deaths volunteers for leaving water on federal lands similarly ran aground in the 9th Circuit.”

When laws are unjust, and prosecutors bring unjust cases, and judges make unjust decisions, juries are often the last line of defense. In Warren’s case, it seems, at least some jurors might be taking that job seriously. The jury is deadlocked.

via The Appeal

June 11, 2019 at 02:06PM

Mar-a-Lago Intruder May Face National Security Case

Federal prosecutors disclosed this week they are developing a potential national security case against Yujing Zhang, the 33-year-old Chinese woman charged with unlawfully entering Mar-a-Lago with a stash of electronic equipment, the Miami Herald reports.

They asked a federal judge to allow them to file “classified information” under seal without the public — or the defendant — seeing it. If the motion is granted, prosecutors will present the evidence directly to the federal judge in Zhang’s trespassing case during a private, closed meeting in the judge’s chambers. The prosecution’s motion indicates that she is a focus of a widening U.S. probe of possible Chinese espionage and suggests that authorities have evidence she was likely not simply a “bumbling tourist” who accidentally found her way into President Donald Trump’s private estate in Palm Beach.

via The Crime Report

June 13, 2019 at 09:31AM

Despite Crackdowns, Illegal Drugs Still Sold on Dark Web

Authorities in the U.S. and Europe recently staged a wide-ranging crackdown on online drug markets, taking down Wall Street Market and Valhalla, two of the largest drug markets on the so-called dark web. Yet the desire to score drugs from the comfort of home and to make money from selling those drugs appears for many to be stronger than the fear of getting arrested, The New York Times reports.

Despite enforcement actions over the last six years that led to the shutdown of about half a dozen sites, there are still close to 30 illegal online markets, according to DarknetLive, a news and information site for the dark web. The fight against online drug sales is starting to resemble the war on drugs in the physical world: There are raids. Sites are taken down; a few people are arrested. And after a while the trade and markets pop up somewhere else.

via The Crime Report

June 12, 2019 at 10:31AM

First Step Act Cut Sentences for 1,051 Fed Prisoners in Four Months: Report

Just over 1,000 individuals incarcerated in federal prisons were granted sentence reductions in the four months since the First Step Act was signed into law, according to the United States Sentencing Commission (USSC).

Their sentences were reduced by a mean of 73 months or 29.4 percent, as a result of the resentencing provisions allowed under the Act which, in addition to shortening mandatory minimum sentences for nonviolent drug offense, applied resentencing to be applied retroactively to individuals convicted of crack cocaine offenses before 2010—when the federal government reduced disparities between crack and powder cocaine offenses.

The USSC found that over a quarter of the 1,051 resentencing motions were granted by federal courts in Florida, South Carolina and Virginia.

Over 91 percent of the individuals whose sentences were shortened were African American and 98 percent were male, the USSC said.

The average age of those granted resentencing motions was 45—and the average at original sentence was 32.

The 2010 re-set of the crack-powder cocaine disparity, under the Fair Sentencing Act passed that year, disparity was aimed at tackling the disproportionate racial impact on nonviolent drug offenders.

The First Step Act, signed into law by President Donald Trump on Dec. 21, 2018, was the first major overhaul of the nation’s sentencing regime in decades. More ambitious overhaul plans had been stalled in Congress, despite widespread bipartisan support.

Although many observers called it a “modest step,” it was a considered “the starting point” for future legislation aimed at reducing mass incarceration, according to New York University’s Brennan Center for Justice.

“Federal mandatory minimum sentences were a catalyst for the recent surge of unnecessarily harsh prison sentences,” the Center said in its analysis of the Act last year, noting that the federal prison population has risen by more than 700 percent since 1980.

More than two-thirds of federal prisoners were serving a life sentence or a “virtual life sentence” as a result of a conviction for a non-violent crime, the Center said.

The First Step Act also replaced a federal “ three strikes” rule — which imposed a life sentence for three or more convictions—with a 25-year sentence; and it expanded the “drug safety-valve,” which would give judges more discretion to deviate from mandatory minimums when sentencing for nonviolent drug offenses.

The USSC’s complete report can be downloaded here.

via The Crime Report

June 10, 2019 at 09:42AM

Under Fire, Central Park Five Prosecutor Steps Down From Columbia Law

Controversial prosecutor Elizabeth Lederer on Wednesday resigned her post as a lecturer at Columbia Law School, under pressure from the Black Law Students Association and others who objected to her role in the Central Park Five case—in which five black and Latino boys were wrongfully convicted of a 1989 rape.

In an email to the law school community Wednesday evening, dean Gillian Lester wrote that Lederer told her she would not seek reappointment to her lecturer post. That decision comes just one day after the Black Law Students Association sent a letter to the administration, calling for her to step down and for the school to be more inclusive in its teaching.

A week earlier, a campus-wide organization for black students at Columbia released a petition demanding that Lederer be fired. The new Netflix miniseries about the Central Park Five case, “When They See Us,” has renewed interest in the case and increased scrutiny of those involved in the prosecution. Lederer, alongside Linda Fairstein, tried the case.

“I’ve enjoyed my years teaching at [Columbia Law School], and the opportunity it has given me to interact with the many fine students who elected to take my classes,” Lederer said in a statement included in Lester’s email. “However, given the nature of the recent publicity generated by the Netflix portrayal of the Central Park case, it is best for me not to renew my teaching application.”

It’s unclear how many years Lederer taught at the school, though her profile on the school’s website say she taught trial practice. According to that bio, she is senior trial counsel in the forensic and cold case unit in the New York County District Attorney’s Office. In that role, Lederer reviews and reinvestigates unsolved murder and rape cases, it says.

“The mini-series has reignited a painful—and vital—national conversation about race, identity, and criminal justice,” Lester wrote in her email. “I am deeply committed to fostering a learning environment that furthers this important and ongoing dialogue, one that draws upon the lived experiences of all members of our community and actively confronts the most difficult issues of our time.”

via – Newswire

June 13, 2019 at 08:18AM

Is There a Right of Self-Defense Against Police?

On March 18, 2018, in Sacramento, Stephon Clark was shot and killed by police officers who thought he was holding a gun and aiming it at them.

At least, that’s what the police officers say they saw. One also thought he saw a muzzle flash from the gun, indicating Clark was already shooting at them. The other officer only thought he saw light reflected off the metal of the gun.

As it turned out, Clark was only holding a cellphone. Light could have reflected off the phone, or Clark could have been taking a photo of the officers (as people who think the police are harassing them often do) and they saw the flash.

It was dark and the police are taught to shoot first when they believe their lives, or the lives of their fellow officers, are in danger. They at least thought they were pursuing a violent felon who had already broken several car windows and a sliding glass door on a home.

In any case, the police were not charged with a crime. So, is shooting someone because you think they are pointing a gun at you legal?

What if that someone is a police officer? If someone breaks into your home without warning, is it legal to shoot that person if you don’t know he  or she is a police officer?

What if Stephon Clark had been holding a gun? If he had shot them preemptively because he thought they would shoot him on sight when they saw he had a gun, would he have been justified? What if the police had broken into Clark’s home?

Would he have been acquitted? Should he?

The law is one thing, reality another. While there is some legal theory that a using lethal force in defense of a home would have been justified, the courts and the police tend to overlook the errors of law enforcement more generously than those of the general citizenry.

Here are a few examples, all involving no-knock warrants looking for armed and dangerous drug dealers but which found nothing to justify police action:

  • On Dec. 19, 2013, Texan Henry Goedrich Magee shot and killed an officer entering his home with a no-knock warrant. He said he thought he was being burglarized and the grand jury decided that was a reasonable assumption. They decided against indicting him, on the shooting, anyway, though Magee did spend 18 months in jail on a marijuana charge.
  • On the other hand, in a similar case, Marvin Guy of Texas is still awaiting trial more than four years after a no-knock raid resulted in an officer’s death.
  • Cory Maye of Mississippi spent 10 years on death row for killing a police officer during a drug raid on his home before a plea deal reduced the charge to manslaughter and time served in 2014. Maye had claimed he was defending his young daughter against what he believed was an attack on his home.
  • Ray Rosas – who wasn’t even the target of the raid and didn’t kill the police officers he shot – spent two years in jail, mostly in solitary confinement, awaiting trial before he was acquitted. His elderly mother was removed from his care and he lost his family home.

So, yes, sometimes you can shoot a police officer in self-defense – at least if it’s a no-knock raid and you don’t know the intruder is a police officer – but that doesn’t mean you will get off scot-free.

Stephon Clark’s case wasn’t a no-knock situation. He was out in the open. Still, he didn’t have the gun police thought he did. There were other factors, however, that may have led to the officers not facing charges.

Clark was acting peculiarly.

What the officers couldn’t have known at the time is that Stephon Clark had multiple drugs in his system – alcohol, marijuana, opioids, benzodiazepine, and an over-the-counter allergy medicine – and his blood alcohol concentration (BAC) was 0.091, higher than the 0.08 drunk driving standard.

Some have suggested he was committing suicide by cop. At a press conference, Sacramento district attorney Anne Marie Schubert implied that Clark was suicidal. At the very least, he may have been depressed. Evidence included:

  • His browser search history revealed he was looking up ways to commit suicide with drugs;
  • His girlfriend/fiancé said he struck her and now was threatening him with jail for violating parole;
  • A text he sent to his girlfriend showed a photograph of a handful of pills (Xanax), with the message, “Let’s fix our family or I’m taking all of these.”

But, as has been pointed out by some commentators, we don’t know if the police had any drugs in their system or their mental state. There’s no indication that their blood was tested for drugs, or that their phones or browsing histories were checked for incriminating evidence.

And they should be. Police officers are two or three times more likely to abuse drugs than the population as a whole.

A quarter of police officers are estimated to have alcohol or drug abuse problems. We should be doing more to help them into addiction rehab before their self-medication leads to avoidable civilian or police deaths, and that starts with knowledge.

Aside from the risks associated with performing their duties, there is the risk of suicide. According to Blue HELP, in 2018 more police officers took their own lives than were lost in the line of duty for at least the third year in a row.

Another police officer involved in a shooting was Amber Guyger, who was off-duty when she shot and killed Botham Jean in his own apartment, Sept. 6, 2018, in Dallas. In a way, this was a no-knock situation, but no warrant or raid was involved.

Guyger had just gotten off a 14- or 15- hour shift (she wanted the overtime) when she attempted to enter Jean’s apartment, which was one floor above her own. She claims she thought it was her apartment and that Jean was an intruder. She also says she was tired – understandable after a long shift. But other aspects of her story have changed:

  • Guyger at first said the apartment door was closed, then later she claimed it had been open a little, ajar at least. Neighbors have said that the apartment doors close automatically, so it couldn’t have been ajar.
  • Guyger says she put her key in the lock, pushed, and the door opened. Lawyers for Jean’s family claim they have a witness who heard her pounding on the door demanding to be let in.
  • Guyger claims she thought it was her apartment, but when she called 911 she had to check the apartment door to give them the number. (If she had just realized she was in the wrong apartment, this would be understandable.)

Guyger has been indicted and was fired by the Dallas Police Department. The trial is set to begin in September 2019.

That Guyger was off-duty at the time of the shooting may explain why her treatment differed from that of Stephon Clark’s shooters. Police Chief Renee Hall said at a press conference that “we have ceased handling it under our normal officer-involved shooting protocol.”

Even so, she is receiving much better treatment than civilians who shoot police officers. Guyger at least is out on bail.

Although Guyger’s blood was drawn for a toxicology report, the tests either haven’t been completed or have not been released more than nine months later. Stephon Clark’s toxicology report was revealed after less than six weeks. It would be cynical to suggest that if Guyger’s report was clean, it would have been released already.

Some of Guyger’s behavior suggests possible intoxication, mental confusion or poor judgment. She might even be suffering from post-traumatic stress disorder (she shot a suspect in 2017).

Allegedly, Guyger had complained about noise from Jean’s apartment before. Maybe she went there to say she needed some sleep and to please keep the noise to a minimum, and it escalated. Maybe she held a grudge and was in a bad mood. (Her Pinterest account was said to include violent braggadocio.)

Police have a dangerous and stressful job. It’s a job that most citizens know needs doing. That doesn’t excuse police officers who abuse their authority or are reckless or careless.

It doesn’t excuse institutional racism either. It may only be circumstantial, but with the exception of Magee, all the civilians in these cases are persons of color.

Finally, it doesn’t excuse so violent and fallible a technique as no-knock raids. There are more than 20,000 no-knock raids every year – as many as 50,000 in 2004 – but only about 25 percent turn up the suspected drugs.

The New York Times’ own inventory found no-knock raids resulted in an increase in officer deaths (eight instead of five) while civilian deaths decreased (31 instead of 47) over knock-and-announce.

Stephen Bitsoli

Stephen Bitsoli

The U.S. Constitution made the right to bear arms a guaranteed right second only to freedom of speech.

Police shouldn’t give the law-abiding citizens they are sworn to protect cause to exercise this right against them.

Stephen Bitsoli, a Michigan-based freelancer, writes about addiction treatment, politics, history, and related matters for several blogs. He welcomes comments from readers.

via The Crime Report

June 10, 2019 at 07:33AM

Prosecutors must maintain ethical conduct during misdemeanor plea deals, ABA ethics opinion says

By Jason Tashea

When entering into a plea bargain for a misdemeanor offense, prosecutors have an ethical duty to ensure the legal and evidentiary basis of the charges are sound, according to a new formal ethics opinion from the ABA Standing Committee on Ethics and Professional Responsibility.

“Observance of the special obligations of prosecutors under the Rules of Professional Conduct is critical to achieving fair guilty pleas,” the opinion states.

Released Thursday, Formal Opinion 486, “Obligations of Prosecutors in Negotiating Plea Bargains for Misdemeanor Offenses,” states that the application of these ethical standards apply regardless of constitutional requirements or whether the defendant is represented by counsel.

“Hundreds of times weekly, prosecutors negotiate plea deals with misdemeanor defendants who lack counsel and may agree to unfair dispositions,” says Barbara S. Gillers, chair of the ABA Standing Committee on Ethics and Professional Responsibility. “Opinion 486 imposes duties on prosecutors and their supervisors to ensure that the accused has a reasonable opportunity to obtain counsel, that decisions to resolve a case through plea bargaining are grounded in the prosecutor’s independent assessment of the case, and that prosecutors reveal known collateral consequences, which may include deportation and the loss of eligibility for a wide range of public services, including food assistance and public housing. The failure to take the precautions described by the opinion especially harms the poor and minorities, who are disproportionately represented among the defendant population.”

The guidance addresses Model Rules 1.1 (Competence), 1.3 (Diligence), 3.8 (Special Responsibilities of a Prosecutor), 4.1 (Truthfulness in Statements to Others), 4.3 (Dealing with Unrepresented Person), 5.1 (Responsibilities of a Partner or Supervisory Lawyer), 5.3 (Responsibilities Regarding Nonlawyer Assistance), and 8.4 (Misconduct).

Under Rule 3.8(a), for example, prosecutors may not bring “a charge that the prosecutor knows is not supported by probable cause.” This means that a DA can’t begin a plea bargain without assessing each charge. However, the opinion notes that because of limited resources and the perception that a misdemeanor is “lower stakes,” prosecutors often rely “uncritically” on a police officer’s report. “Unless the prosecutor has reasonable confidence in the thoroughness of the fact finding and the evenhandedness of the judgment of other law enforcement officers who prepare the supporting documents and investigation, reliance on them is likely to be misplaced and the very discretion the Rule is designed to protect may be abused,” the opinion states.

Barbara Gillers.

Additionally, the opinion warns that a prosecutor’s failure to vet each charge independently, could violate the duty of competence under Rule 1.1.

The opinion comes at a time when misdemeanor criminal enforcement has received heightened attention.

About 80 percent of America’s criminal dockets are taken up by misdemeanor offenses, a number that has doubled since 1972, according to the opinion. This trend disproportionately impacts poor and minority people.

At the same time, prosecutors are engaging in plea bargaining before the right to counsel has been raised, using delay tactics or the threat of a higher sentence to keep the defendant from invoking the right to counsel. The opinion also found that tactics, including forcing a defendant to waive his or her right to counsel as a criteria to negotiate a plea, violate the Rules of Professional Conduct and potentially the Constitution.

These practices occur, in part, because many people charged with a misdemeanor are given a citation or notice to appear and are not arrested for the offense, which means the accused is not read his or her rights. In such situations, it may fall to the prosecutor to make clear to the accused their right to counsel.

Noting that, in some cases, the accused may choose to be unrepresented or does not qualify for subsidized representation from the state, prosecutors have unique and heightened duties. For example, if a prosecutor does not mention the impact of the plea deal on a separate case or the broader social or economic impacts of a criminal record, called collateral consequences, it could be considered misrepresentation or deceptive conduct under Rules 4.1 and 8.3(c), respectively.

“A prosecutor will rarely know all of the potentially relevant collateral consequences of accepting a plea or the exact nature of any subsequent sentence enhancement,” reads the opinion. “However, if the prosecutor knows the consequences of a plea—either generic consequences or consequences that are particular to the accused—the prosecutor must disclose them during the plea negotiation.”

Ultimately, the opinion looks to reinforce the idea that, “a prosecutor’s duty is to seek justice, not merely to convict.”

“The professional integrity of prosecutors is essential to the administration of criminal justice,” the opinion states.

via ABA Journal Daily News

May 9, 2019 at 10:31AM